
Congress: Stop Trying to Limit EFF’s Ability to Challenge Patents - DiabloD3
https://www.eff.org/deeplinks/2015/04/congress-stop-trying-limit-effs-ability-challenge-patents
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lostinpoetics
Cost. Cost is the biggest issue with post-grant proceedings. I don't know how
many times I've seen people that have air-tight cases but they,
understandably, won't, or can't, pay hundreds of thousands of dollars (filing
fees and attorney's fees) to pull the trigger. The cost for these things is
truly astronomical compared to quite literally every other aspect of the
patent office. Even more astounding is that there is no reduction in fees for
entity size (like almost every other fee). So a solo inventor and a Fortune
500 company pay exactly the same amount in filing fees, which is absurd and
makes zero sense (even the older, reexamination route has fees based on entity
size. e.g., large companies pay 12k, while "micro entities" pay 3k). I'm
hoping, but not holding my breath, that eventually the fee structure will
change; but given the popularity of post-grant proceedings, I can't imagine
the PTO pulling the plug on a solid money maker for them. Here's a quick
scatter plot of fees for micro entities, try and guess which are post-grant
filing fees: [http://i.imgur.com/F1Q2E1l.png](http://i.imgur.com/F1Q2E1l.png)

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rhino369
The attorney's fees aren't the PTO's fault, that is just what good talent
costs.

The fees are large but an post grant proceeding isn't just a patent reexam.
It's a mini-trial. There is a lot of manhours required on the USPTOs side of
things.

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Taek
In an ideal world, the patent system and the legal system in general would be
substantially simpler, and premium talent wouldn't be required. For really
clear cut cases you wouldn't need an attorney at all.

Same thing with the mini-trial. In an ideal world the system would be a lot
more efficient and cheaper for everybody.

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Balgair
[https://www.opencongress.org/people/zipcodelookup](https://www.opencongress.org/people/zipcodelookup)

No matter how you feel about this issue, a quick phone call to your senator
can help have your voice heard much louder than any HN comment. If you have
not already, put your senators' and representative's phone number in your
contacts list for easy access to democracy.

~~~
chrisBob
I don't like calling, but I have always gotten a nice response to the emails I
have sent to both my national and state level representatives.

~~~
Balgair
Every little bit helps! Just make sure to keep it up and keep emailing. Good
job.

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Animats
The new post-grant patent challenge scheme has made it a lot harder to enforce
patents. Now, an accused infringer can file a post-grant review request and
tie things up for a year or two, even if they lose. During that period, it's
almost impossible to license the patent. The patent holder has to defend
against the post-grant review, which is expensive.

There are few real "patent trolls". The EFF's list is very short.[1] Only one
law firm, Farney Daniels, is listed as having sent out more than 3 demand
letters. This isn't a big problem.

You need to own intellectual property if, for example, you're writing for
Apple's platform. If your idea is a success, Apple copies it and then turns
off your platform access. Look what just happened to Pebble.

[1]
[https://trollingeffects.org/lawfirms](https://trollingeffects.org/lawfirms)

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driverdan
> a few people have publicly challenged some important patents with the intent
> of making a quick buck by shorting the patent owner’s stock

This is exactly the type of thing we should _encourage_. It gives companies a
strong incentive to avoid filing frivolous patents.

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throwawaykf05
_> We say “perceived” because, if a patent is bad, should it really matter who
is challenging it?_

The problem with this premise, of course, is that these patents are not being
challenged because they are "bad", they're challenged because somebody wants
to make a quick buck. They _may_ be bad patents, because to get an IPR
approved you must show that you have a fair chance of invalidating at least
one claim. And statistically claims are very likely to be invalidated when
IPRs are granted.

But these IPRs are filed in bad faith, so it is an abuse of the USPTO's
already limited resources. So far most IPRs have been filed by parties that
are actually involved in litigation and hence have strong motivation to see
claims invalidated. It is yet to be seen whether the same statistics will
apply for cases like these.

There does need to be a way for the EFFs of this world to challenge patents
that are actively being asserted because small entities cannot afford to do
so. I'd say that representing the targeted parties should be enough to give
standing to file IPRs.

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trjordan
This is a legitimate discussion.

Another story on the front page right now talks about a class-action lawsuit
against Google for age discrimination. The person that's put up to it has a
pretty flimsy case, it appears ("they didn't like me after my phone screen!
Age discrimination!"), but the class action may uncover something more real.
Finding somebody who has a real complaint seems before starting litigation
seems like a good solution, because it ensures that at least one person was
harmed. On the other hand, the EFF has a good point here: most of the people
harmed by this aren't going to spend the money to deal with it.

I like the idea of EFF pushing back against unfair patents, but I don't like
the idea of ambitious lawyers building spurious class-action lawsuits. I'll
admit that I'm not fully informed about either of these cases, but there is
real value in putting up barriers to spurious cases that cost real money.

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ScottBurson
I think you need to understand the situation a little better. EFF is not suing
the patent holder; the patent holder has nothing to lose in these actions
except a valid patent, and EFF has nothing to gain except insofar as
invalidating the patent is in the public interest. The analogy to a class
action lawsuit is not a good one.

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EdSharkey
Chris Coons is a Democrat. The article didn't mention that fact.

Also, I'm not sure if this is an example of crony capitalism or not; I don't
fully understand the stated motivation for the legislation. The motivation
seems fishy at first blush.

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im3w1l
>Specifically, a few people have publicly challenged some important patents
with the intent of making a quick buck by shorting the patent owner’s stock.

Shouldn't that be against insider trading laws somehow?

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Someone1234
Why would an external entity to a company be subject to insider trading
allegations on that company's stock?

[0]
[https://en.wikipedia.org/wiki/Insider_trading#Definition_of_...](https://en.wikipedia.org/wiki/Insider_trading#Definition_of_.22insider.22)

~~~
belorn
I would find it relevant since insider trading laws are intended to catch
individuals with access to nonpublic information about a company and that then
uses that information in a unfair way on the stock market.

Even in countries that don't use civil law, intentions should still be
relevant in discussing the law or its enforcement.

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amelius
I am sometimes wondering why we should _not_ have software patents.
Programming, mechanical engineering and medicine, etc. are all done behind a
computer, so we should allow patents in all of these fields, or none of them.

Also, more generally, of the two following people, who would you rather see
having the biggest probability of making more money?

1\. The person who has the most money.

2\. The person who has the best ideas.

Without (software) patents, it seems that 1 is more likely.

~~~
nitrogen
Software differs from other fields in two important regards:

1\. Software is math. Not "does" math, but "is" math. See Google and HNsearch
for references to the endless discussions of this fact.

2\. A patent on a device covers an implementation. Patents on software have
been used to block entire ideas, regardless of implementation.

Based on these factors, plus many more that have been argued to death,
software should be ineligible for patents, and software on a computer of any
kind should not be capable of infringing any patent. Failing that, independent
invention needs to be a 100% defense against infringement, and evidence of
obviousness, especially with software, to release the silent stranglehold that
the threat of litigation has on software innovation.

~~~
Animats
_" Failing that, independent invention needs to be a 100% defense against
infringement"_

Won't work. That's a state-of-mind issue. Infringers will claim "independent
infringement", when in fact they got the idea from the patented work.

~~~
ahomescu1
Sure, and then it would be up to the patent holder to prove intentional
infringement. Otherwise, they don't get anything. That's how the legal system
works in many other situations, the accuser has to prove their accusations,
which is perfectly reasonable to me.

~~~
Animats
Patent infringement doesn't require intent. An "independent invention" defense
rewards infringers who keep their technology secret. If the technology is
publicly disclosed by an independent party prior to the patent application
date, it's not patentable anyway. But secret independent invention is not
prior art. Part of the idea behind patents is to reward public disclosure.
After the 20 years are up, anybody can do it.

~~~
ahomescu1
> Patent infringement doesn't require intent.

I know, but that's the whole point: maybe it should (in a lawsuit at least).

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bougiefever
It should be easier to get attorney's fees paid by the loser. That would cut
down on a lot of these kinds of cases.

~~~
anigbrowl
And further deter small plaintiffs or defendants from having their day in
court, because a loss will inevitably result in bankruptcy. All sorts of
solutions have great upside, but that's not the only thing you need to
consider.

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Lord_Zero
"Okay, were sorry about that." \- congress

