
Obama Calls for Patent Reform to Topple Trolls - PhearTheCeal
https://www.eff.org/deeplinks/2013/02/obama-calls-patent-reform-topple-trolls
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rednukleus
The primary problem is not NPEs, it's trivial "inventions" such as one-click
purchasing and slide-to-unlock. If the bar were much higher for patents, then
NPEs would not be a problem.

Having companies that licence out technology is a perfectly reasonable system,
if the company has done significant research or purchased patents from people
who have. A secondary market for significant inventions is probably a good
thing; a secondary market for borderline obvious inventions is not.

~~~
rayiner
I agree. The focus on NPE's is misguided. A secondary market in patents is a
good thing. E.g. Northwestern invented the drug that became Lyrica. As a
university, they have no business being in the medical products business. So
they sold it to Pfizer. What if, instead, they had sold it to a holding
company that licensed out the technology to drug companies? That holding
company would be an NPE, but it's a perfectly valid one and serves an
important market purpose.

It's clear that the patent office can't tell an obvious invention apart from a
non-obvious one, so I'm not sure if there is much to be gained in that
direction either. I think there are a lot of collateral ways to attack the
problem, though:

1) Reforms on how damages are calculated. If you neither sell a product nor
license IP to third parties, there is no way you're losing any revenue from an
infringement. You should not be awarded even "reasonable royalty" damages if
you wouldn't have received any royalties in any case.

2) Reforms involving intent and copying. The economic heart of the patent
system is unfair competition: I invent something and you copy it and undercut
me in the market because you have no R&D costs. As you get further from this
core justification, the less justifiable the regime becomes. A lot of troll
litigation could be shut down quickly if patent infringement functioned
similarly to copyright infringement in requiring direct copying. This, unlike
the above reform, would be a fundamental change in the system, from "monopoly"
to a more "unfair competition" grounds, but the fact of the matter is that
independent invention is strongly probative of something that probably doesn't
deserve patent protection, either for being obvious generally or for being
obvious in the context of other advancements in technology.

~~~
AnthonyMouse
>1) Reforms on how damages are calculated. If you neither sell a product nor
license IP to third parties, there is no way you're losing any revenue from an
infringement. You should not be awarded even "reasonable royalty" damages if
you wouldn't have received any royalties in any case.

What stops them just publishing a sham product whose sole purpose is to be for
sale while infringing the patent and then show a few licenses to a couple of
fishing buddies?

The real trouble with how damages are calculated for software patents is that
there is no good way to determine the degree to which the patent was integral
to the success of the product, and juries have had a tendency to grossly
overestimate their value. Witness Apple v. Samsung.

I imagine your typical smart phone infringes probably twenty or thirty
thousand software patents. Even if you assume that every penny of the device's
price is attributable solely to patents (and nothing for, say, manufacturing,
shipping or advertising), and the device "only" infringes 10,000 patents, the
average value of one of those patents against the sale of ten million $500
devices would be $500,000. Which would hardly be even worth litigating over,
given that the lawyers cost more than that. But there is no real way to prove
that any given patent subscribes to the averages, and plaintiffs will
naturally argue that _their_ patent is worth more than all the other patents,
and the jury who finds for them on infringement is predisposed to agree on
damages as well. So we get billion dollar awards that should be sub-million
dollar awards and the trolls get fully funded to buy more radiological weapons
and lobby hard for their own continued existence.

>A lot of troll litigation could be shut down quickly if patent infringement
functioned similarly to copyright infringement in requiring direct copying.

What standard could you use to prove that? Correct me if I'm wrong, but if I
recall copyright is "similarity and access" and for published works "access"
is kind of a formality (because everybody has access), which is why the degree
of similarity requires a significant amount of specificity. I don't imagine
you could find anyone to argue that Chrome infringes the copyright on Firefox
as a result of their similarity.

But that's not going to cut it with patents. The intent of drafting a patent
claim is to make it as broad as possible while still getting it through the
patent office. Any non-mandatory specificity is the enemy. The only way you
could give defendants any hope of actually proving that they didn't copy a
patent under a standard like that would be to crank the level of specificity
required in patent claims up to the point where you'll just have reinvented
copyright and called it a patent.

Which is kind of the issue. Copyright works really well for software. The
_implementation_ is the hard part, and that is the part that copyright covers.
Patents just don't work at all -- because there are so many ways to implement
something in software that the only way a third party would ever actually
infringe a software patent is to allow it to be so broad that it covers the
problem itself rather than any specific solution to it (e.g. shopping cart
patents), or covers any implementation that applies the mathematical formula
that describes the optimized result for a specific problem dictated by
information theory (e.g. encoding or encryption patents).

~~~
rayiner
You make excellent points, but I have a bone to pick with your last one:
"Copyright works really well for software. The implementation is the hard
part, and that is the part that copyright covers."

Whether design or implementation is the hard part depends entirely what kind
of software you're building. Think of something like Google's self-driving
car. I can't imagine that the hard part of that is just sitting down and
writing the code.

~~~
AnthonyMouse
>Whether design or implementation is the hard part depends entirely what kind
of software you're building. Think of something like Google's self-driving
car. I can't imagine that the hard part of that is just sitting down and
writing the code.

That's kind of what I'm talking about. You can't get a patent claim on "a
self-driving car" -- and if you do the patent office has failed miserably.
Software patents don't cover the overall product, they cover the building
blocks you use to make one. And each of the individual building blocks is not
the hard part, the hard part is the overall implementation -- assembling them
all into a cohesive whole that accomplishes the major goal you set out to
achieve.

You want someone who starts with the Google self-driving car and sets out to
copy it to have a hard time of it legally, so that they decide instead to do
their own independent implementation and have their own costs (and maybe
advance the field themselves) so that they can't just undercut Google having
done no R&D, but at the same time still make it so that they _can_ do an
independent implementation without infringing. Those are the two important
criteria.

Copyright pretty well does the first one. If you can't just copy Google's code
out of their car and put it in yours, you have to write some tens of millions
or more lines of code yourself. And then you have to test it and stamp out the
bugs, which is by far the most expensive part of producing software in
practice. (I expect this goes double when the thing you're making is a car.)
Patents don't really add very much on top of that -- if someone is already
doing an independent implementation, having to work around a patent is a small
incremental cost, especially if the issued patent is not so broad that it
covers the problem itself rather than a specific solution.

Which brings us back to the trouble: In order for the patent system to do
anything for software R&D, you can't just have one patent, you need thousands.
Which thoroughly violates the second criteria -- now no one can do an
independent implementation without accidentally stepping on some fraction of
the outlandish number of issued software patents. To clear yourself you have
to clear tens or hundreds of thousands of issued patents, but to sue you the
plaintiffs need only find a single patent for which you failed to do so. And
to shake you down they don't even need to do that, as long as the cost of
proving they're full of crap in court is more than the amount they're
demanding for a license. These costs vastly exceed any possible incremental
benefit over copyright of having software patents at all.

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zmmmmm
I think dropping the default length of software patents to 5 years would be a
really good first start. As a concession, I would suggest even slightly
lowering the barrier to entry for getting such a patent, and then retaining a
tier at 20 years with a MUCH higher threshold for inventiveness. There would
still be bad software patents, but I think this would greatly limit the damage
from them. The incentive for trolls would be enormously reduced if they can
only extort license fees for a few years, while the lower barrier to entry
would make it much easier for small entrepreneurs to actually get patents
without going through 20 rounds with the patent office.

There needs to be a recognition that in software entire segments are born and
die within 20 years (even within 10 years). 20 years protection on a simple
idea is way too long, even if it is truly novel. This is not like drugs where
it may take 10 years of trials before you can even get it on the market.

~~~
jandrewrogers
Algorithms live much longer than 20 years and often require more than 5 years
to bring to market. As a practical matter it takes about a decade for a new
computer science concept to be fully integrated into software practice.

I've been involved in quite a bit of hardcore algorithm R&D. In no case where
material advancements were made was it possible to really bring it to market
in five years from inception. Computer science has the same inertia for how
things are done as any other industry. Altering the way things are done and
getting uptake requires a surprising amount of time no matter how good the
advancement. Which roughly matches most other patentable subject matters.

I'm not saying algorithm patents need to be 20 years but most software
engineers have no idea how long it actually takes to commercialize material
algorithm advancements. It looks a lot more like industrial patents than most
programmers seem to assume. And many algorithm patents have millions of
dollars in R&D invested in them; I have been involved in several such
examples.

~~~
jonpeda
If an invention is useless (ahead of its time) for 10 years, then you may as
well keep it secret until the market is ready, and then publish.

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te_platt
The list of reforms linked to in the article is here
<https://defendinnovation.org/> Note - not Obama's list.

I think #4 (no liability for independent invention) would effectively
eliminate software patents by itself. I like what's there even if it seems
unlikely to ever be implemented.

~~~
monochromatic
Yeah, if independent invention is a defense, we're basically into something
that looks a lot like copyright.

~~~
comicjk
Which allows interesting strategies. If you put a smart person in the right
scenario with the right hints, he will reinvent whatever you want. You just
have to keep him in the dark until the flash of brilliance, and you have a
patented-idea farm. It might make a good movie.

~~~
rayiner
He's not going to invent a new cancer drug or a cooling mechanism for jet
turbine blades, unless you fund him with a few hundred million dollars while
he's at it. Or even something like MP3 that uses psycho-acoustic models built
on empirical testing.

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russell
#1 Software patents should be for no more than 5 years.

Perhaps that should be true of all trivial inventions. Drug companies, for
example, tweak best sellers coming off patent protection by adding another
compatible compound and getting another 20 years, although the original
compound looses protection.

~~~
homosaur
Software patents should not exist. Implementation is everything, ideas are
easy.

Copyright covers everything important.

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ilaksh
To me its obvious that software patents should actually be abolished entirely.

If I am going to build a system and try to sell it, I sell it as a service
with add-on support and make it open source. If I am buying a software system
I usually expect the same thing. Or hope that I can sell it for a small fee or
close source it and add copyright protection for a totally unique work.

But generally I feel that if someone invents a software concept or set of
concepts that works well enough, then everyone should adopt it. Patents are
just going to make that impractical. The idea of everyone licensing whatever
useful system gets invented isn't practical and doesn't work with open source.

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bborud
Patents cannot be reformed. The idea itself is dead. Let it go.

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fnordfnordfnord
There are so many problems with the patent system, it's hard to identify a
primary problem. I'd say the worst thing about it is that it is simply non-
functional for any individual or small business.

Got a patent? Someone infringing? Sue them! Cost? Astronomical.

Selling something? Patent Trolls trying to make a grab? Defend yourself in
court! Cost? Astronomical.

Those scenarios merely address outright abuse; but, the way patents are
granted guarantees that those situations will also arise between parties who
aren't trolls.

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datz
Unfortunately, "Troll" has turned into a political term to prevent
"undesirables" the government or society does not want to fund from starting
businesses from the "Trolls" intellectual property which the "Troll" spent
years of his or her life developing.

~~~
datz
By classifying people we do not like (mannerisms, personality, misfits) as
trolls, we can practice socialism and transfer their ideas and intellectual
property to people we like better, people who have nicer smiles.

~~~
datz
The socialists insist that everyone has a label, a "place in life" and will
transfer the "Troll's" ideas and intellectual property to people who are
better politically and socially well positioned. This is a ploy that will ruin
our society.

~~~
datz
People have to understand this is a career for many. Inventors spend months
even years developing their ideas into inventions. We need strong IP in this
country. Obama has forsaken us and has used false logic that non-inventors can
get behind to destroy the incentive system for innovation in this country. He
is taking baby steps, warming us up to pure socialism. Without strong IP, the
United States of America will crumble and Obama will get his way - utter
destruction of the potential for greatness we all strive for. Obama does not
have the capacity to invent and does not understand invention. Use empathy and
realize how important our inventors are and how important IP is to the future
of this nation. IP is all that sets us apart from Greece.

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npsimons
Good! Let's start with Intellectual Ventures.

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dakimov
Trolls? Like Apple Corp. that patented bounce back scrolling? The problem is
not trolls, the problem is the deep mental retardation of the current US
patent system.

And it's not just a reform. All the issued patents must be revised and a lot
of them must be revoked.

The solution seems to be simple, isn't it: don't patent trivial things, and
only patent the actual methods, not just ideas of them.

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dade_
Just wait for it, the Obama administration is going to be sued for infringing
a patent for a process that protects people from patent trolls.

