
If you can't compete in the open market, you don't deserve a seat at the table - rgrieselhuber
http://www.ginzametrics.com/blog/if-you-cant-compete-in-the-open-market-you-dont-deserve-a-seat-at-the-table/
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diminoten
> Patents are designed to protect an implementation of an idea, not the idea
> itself

Nope. In fact, one doesn't even have to have an implementation whatsoever in
order to be granted a patent.

Just reading the rest of the article, it seems like ya'll don't know a whole
lot about patent law.

I don't either, but I do know enough to know that forcing patent holders to
"go after the largest infringer" is a silly idea. How would you determine
"largest"?

~~~
georgemcbay
Actually the idea that they should be forced to go after the largest infringer
is a really good one, one which I haven't seen advocated for very much and
seeing it there turned my initial first reaction of the piece upside down
(nothing personal to original blog author, I just have a strong negative bias
towards SEO).

Though you can handwave the idea away by the technicality of it being
difficult to determine who the "largest" infringer is, you could achieve the
gist of idea by structuring enforcement of the IP protection such that if you
know about infringement or can reasonably be assumed to know about
infringement (because it is happening very publicly), you must take action or
risk losing the protection. This is already how trademarks work, why not
patents?

There is some initial bad fallout that would come from a system like this in
that there are surely companies who know about infringers of their patents who
let it slide for whatever reason and this might force them to act, but I think
the eventual positive effects this sort of system would have (IMO) would be
worth that initial pain.

~~~
diminoten
What you're saying is a terrible idea, because it shifts due diligence to the
infringing party. This means that whenever I create something, I'd _have_ to
hire a legal team to figure out if I'm infringing on _something_ or not, or
risk losing the ensuing lawsuit.

Furthermore, I resent the notion that I'm just "handwaving" at all here. It's
not only difficult, but _completely and entirely_ impossible.

It's entirely untenable, and it's a little silly to take patent law reform
advice from someone who admits to not knowing much about patent law.

~~~
marcosdumay
> This means that whenever I create something, I'd have to hire a legal team
> to figure out if I'm infringing on something or not, or risk losing the
> ensuing lawsuit.

What's the difference from the current situation?

~~~
diminoten
It's currently... not that way?

~~~
nknighthb
Of course it is. If you don't want to be hit with or lose a patent
infringement lawsuit, you'd damn well better search for applicable patents so
you can avoid them.

Perversely, if you simply assume there will be patent lawsuits you will lose,
you're better off not finding them, lest you then be hit with treble damages.

For a small entity, of course, it doesn't matter. Your legal bills will
bankrupt you anyway.

~~~
diminoten
Actually, no, that's not how it works. When being sued for patent
infringement, a valid defense is indeed, "I didn't know about that patent."

~~~
georgemcbay
No it isn't. You either infringe a patent or you don't. It is better not to
know about the patent if you get caught infringing because of the treble
damage possibility that nknighthb referenced, but "I didn't know about that
patent" is a meaningless defense, you're still on the hook for the base cost
of the infringement, just not 3x whatever that base is.

In either the current situation or the one I think is worth considering, you
either infringe or you don't, nothing changes with regard to due diligence.
Many patents are infringed every day with the infringing party having no idea
infringement occurred (see: Carmack's reinvention of the z-fail stencil shadow
system or any of countless other examples); but not knowing of the patent is
absolutely not a defense. This is one of the more insidious problems with the
current patent system as it relates to software, there are so many broad
patents currently active that you basically can't avoid infringing all of them
if you write any code at all, even if you never spend a second looking at
other people's patents. The only variables are will you ever get big enough to
be worth suing or not prior to the lifetime of the many patents you will
invariably infringe.

Also, the idea that having a system where the IP holder is essentially forced
to act to maintain control of the IP can't, by definition, be "impossible"
because it is already how trademark law works in the US.

And as I mentioned in the original post I made on this I recognize there would
be some negative fallout from the proposed system, but I think over the long-
run it efficiently adds in a lot of features to patents that are currently
missing (eg. a lot of people have proposed a yearly fee to renew patents to
make sure people don't horde mountains of defensive garbage patents, this
would achieve that same goal because they wouldn't want to put the legal
resources in worthless suits against known infringers, and thus their garbage
patents would very quickly lose their power; also it would make it far easier
for many unknowing infringers (see for example the recent audio podcast patent
disaster that is still going on) to group up to fight garbage patents because
the person claiming patent protection would be forced to pull them all in
instead of using the current system which is "go after the small fish, get a
victory in East Texas, then use that to bleed everyone else dry".

~~~
diminoten
> No it isn't. You either infringe a patent or you don't. It is better not to
> know about the patent if you get caught infringing because of the treble
> damage possibility that nknighthb referenced, but "I didn't know about that
> patent" is a meaningless defense, you're still on the hook for the base cost
> of the infringement, just not 3x whatever that base is.

So yes it is, then?

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bunderbunder
The carbonated beverage example is an interesting choice, considering that
there was a whole lot of patent activity in that industry when it was first
born. We just don't remember it because it all went down about 200 years ago.

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texasgirlerin
Arguing the ins and outs of patent laws was not the point. I think the point
was to say that if you're going to patent something (especially a vague idea)
that it comes across as cowardly to only go after one company out of 20 -
because obviously you're not in it to protect your idea, more to take down
anyone that manages to take any marketshare. Ray's point is that you should
maintain marketshare by having the best product, the one people want to use -
not by forcing them to use you because you've sued everyone else out of the
space.

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jnbiche
Well-done, and thank you for taking a stand against a broken system.

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superduper33
tl;dr - I'm scared. Don't sue us too please.

~~~
jnbiche
Did you even read the blog post? He's all but daring them to sue him. I
congratulate him for taking a stand -- if all of us did the same, this broken
software patent business would be much less of a problem, and only worst
socially-outcast patent trolls would bother suing anyone.

