
Obama moves to curb software patent lawsuits - cperry
http://www.nytimes.com/2013/06/05/business/president-moves-to-curb-patent-suits.html
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YokoZar
The most obvious reform to me would be triggering an automatic review of any
patent asserted in a legal case. That way we wouldn't have to worry too much
about all the existing bad patents, since whenever they became an issue the
patent office (under whatever the new standards are) would take a closer look
and maybe stop the case before it started.

Yet I haven't seen it in any of the proposals/orders coming about over the
years mention this sort of feature. Is there something I'm missing?

~~~
nissimk
Doesn't this already happen automatically by default because the first defense
is to demand re-examination?

~~~
belorn
Only if the defense will pay for it. However, given that only 1 out of 10
patents will go through a re-examination with all claims intact, paying for
re-examination is a working tactic. That is, if one can wait the many years it
take for a re-examination to finish.

A better approach would of course be that the PTO did not 9 out of 10 times
create a patent that they later will find to be incorrectly issued. That the
state has an 88% error rate when issuing 20 years patents should really not be
allowed in 2013.

~~~
dsrguru
I haven't seen the data, but I assume you mean 88% of the patents _that are
challenged_ are found to be flawed?

~~~
belorn
Corrected, 88% of the patents grant made by PTO that has been tested through
an ex parte reexamination has been found to been incorrectly issued by the
PTO.

The data is PTO's own yearly statistics, and is under the heading of issued
certificate of reexamination, and one need to compare the period of 2011/09/30
-> 2012/09/30 to get the latest data. A certificate is the concluded decision
after all the appeals are done. The statistics cover all types of patents, and
all types of industries. Statistics for specific markets (say software)
doesn't seem to exist.

The reason I don't bring up unchallenged patents, is that they are of
indeterminate quality. The market values them less, and they shares many of
the attributes of untested code. It might be good, it might be bad, but until
the code is actually run and tested, nothing much can be said. Discussing the
quality of untested code seems to me at least as exercise in futility. If we
were to try asses the average quality of developed code, would we include
untested code too, and if so, how?

On the positive side, patents that are used by entities that try to extract
money from patent licensing do tend to get their patent contested. So the
patents that are challenged, are also the patents that are in-use at patent
suits and patent agreements.

~~~
jhonovich
I found this document -
[http://www.uspto.gov/patents/stats/ex_parte_historical_stats...](http://www.uspto.gov/patents/stats/ex_parte_historical_stats_roll_up_EOY2012.pdf)

Is that what you are referring to? I don't see it saying 88%

Can you clarify or provide an alternate link?

~~~
belorn
That gives the data point for 2012, and the sum from 1981. one need to compare
that data point to the previous year of the 2011 report, found at an archive
like: [http://ptolitigationcenter.com/2010/02/historical-uspto-
reex...](http://ptolitigationcenter.com/2010/02/historical-uspto-
reexamination-statistics-and-milestones-for-calculating-pendency/)

It would be interesting to make a graph of the issued certificates, and see if
for the last ~5 years, the error rate have been improving or worsening.

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ryandvm
I really enjoyed the most recent This American Life podcast as they revisited
the topic of patent trolls (specifically Nathan Myhrvold's Intellectual
Ventures). Fascinating and terrifying.

[http://www.thisamericanlife.org/radio-
archives/episode/496/w...](http://www.thisamericanlife.org/radio-
archives/episode/496/when-patents-attack-part-two)

~~~
snorkel
So many mind-blowing revelations in that TAL episode:

* The original filer of the patent featured in the story was not the inventor of the idea but rather a partner in a failed startup around the idea, which was never realized, he then later patented his former partner's ideas, and made a lot of money from that patent since

* Two defendants fought the patent infringement suit and won on a technicality: the patent was filed improperly due to random mention of another contributor to the idea who was not listed as a co-inventor

* ... BUT any of the other 16 infringements defendants who had already agreed to settle their infringement claims out of court are still bound to the terms of their license agreements forever because the language of the license agreement basically asserts that they have to pay the license fees no matter if the patent in question is still valid or not. So anyone that settled out of court are trapped anyway.

* There is an entire economy and market around reselling patents to the point of the current self-proclaimed owners of a given patent can not describe its origins.

After listening to this episode I couldn't help but think that patents can be
fixed if:

1\. You should not be allowed to sell a patent. The intent of a patent is to
give the inventor(s) enough lead time to develop the idea, not to create a
market for ideas.

2\. A patent should not be valid unless you can demonstrate it. You shouldn't
be allowed to own ideas that are beyond your means to execute.

3\. There should be very low limits on patent infringement damage claims
thereby removing the financial incentive of using patents and anti-competitive
and extortion weapons.

~~~
anigbrowl
The patent system badly needs fixing, but hasty solutions lead to new
problems.

1\. If you can't sell a patent, but lack capital or the desire to exploit it
(perhaps you have invented something more interesting in the meantime, or
alternatively you've developed a serious health condition that prevents you
from working), the there's a net economic loss to society because the
invention languishes undeveloped for 20 years.

2\. You are already required to be able to demonstrate as far as I know.
Enforcing this more strictly would allow a different kind of patent trolling
by large firms that wanted to grab the inventions of smaller firms/individuals
for cheap or nothing by arguing that they weren't sufficiently well resourced
to develop the product.

3\. If you make patent infringement into an affordable cost of doing business
then you're just encouraging people to infringe and pass the minimal costs
along to the consumer.

~~~
saidajigumi
> because the invention languishes undeveloped for 20 years.

This could be fixed. One approach that comes to mind is to require a
sub-20-year renewal process that, if not followed, terminates the patent. This
might be due to simple non-execution (e.g. patents held by a defunct company,
or entities otherwise unable/unwilling to pursue development), failure to pay
renewal fees (e.g. you must pay an ongoing lease on your monopoly right), etc.

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mullingitover
From what I understand of the patent office, the problem with their
methodology is the test for obviousness: has this already been patented? No?
_Then it's non-obvious._

Which of course ignores the possibility that a typical engineer working in
this area would assume that the idea is obvious and therefore ineligible for
patent. So the ethical engineer doesn't apply, but giganticorp's legal staff
pesters their engineering team to patent every possible idea, obvious or not.
Which they dutifully do.

Of course, how would the patent office know that the idea is non-obvious to an
engineer trained in the state of the art, unless they employ engineers who are
trained in the state of the art in _every engineering discipline_?

~~~
greenyoda
There aren't all that many engineering disciplines, and hiring a hundred well-
qualified people to review patents might actually save the government a lot of
money that currently goes toward running the legal system (they could hire
fewer federal judges).

Being a part-time patent examiner might be a great job for a retired engineer
who remembers all the "new ideas" from the last several decades.

~~~
bobwaycott
> _Being a part-time patent examiner might be a great job for a retired
> engineer who remembers all the "new ideas" from the last several decades._

Shit, that is a damn fine idea, friend.

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javajosh
Too bad they ended this article with such a weak quote from Sen. Leahy
"Unfortunately, misuse of low-quality patents through patent trolling has
tarnished the system's image."

This implies that "the system's image" is the thing he's trying to protect,
rather than the livelihoods of people just trying to make a living in a free-
market economy. When small businesses are sued for scanning a document and
emailing it[1], there's more at stake than "the system's image".

[1][http://arstechnica.com/tech-policy/2013/01/patent-trolls-
wan...](http://arstechnica.com/tech-policy/2013/01/patent-trolls-
want-1000-for-using-scanners/)

~~~
snowwrestler
The "system's image" is important because the end to all patents or IP would
be absolutely devastating to the U.S. economy, killing way more jobs than
patent trolls do. The public needs to trust the patent system.

~~~
JoshTriplett
Citation needed; eliminating patents in general or software patents in
particular would hurt some companies (notably patent trolls and other
companies who make most of their money on patent licensing) and help others
(notably those who regularly get sued by those companies, and those who spend
time and money writing and filing patents and creating cross-licensing
arrangements for defensive purposes).

The question of which of those will have a larger impact on the economy, and
for that matter which behavior we would prefer to see encouraged, remains open
and does not have a well-known or accepted answer as you've implied.

~~~
snowwrestler
In your example, companies who get sued over patents today, would instead just
see their products copied wholesale and sold for much lower prices, since the
copying companies have no investment to recoup. Without the possibility of
recouping investment, new product development would slow, stifling innovation
across the economy. Which in turn would harm companies that exist solely to
copy other products, since there would be fewer new products to copy.

~~~
JoshTriplett
> In your example, companies who get sued over patents today, would instead
> just see their products copied wholesale and sold for much lower prices

I think you mean "companies who sue over patents", not "companies who get sued
over patents"; the latter are not the ones looking to prevent copying.

I'd also point out that that issue doesn't apply to software patents, since
copyright already handles that issue quite effectively for software.

> Without the possibility of recouping investment, new product development
> would slow

Standard patent rhetoric. The corresponding anti-patent rhetoric would be that
without the issue of spurious patent lawsuits and workarounds, product
development would accelerate. Both claims require evidence, not just
assertion.

> Which in turn would harm companies that exist solely to copy other products

Because of course the world is divided solely into companies that love patents
and companies that exist solely to copy other products.

There's a large ecosystem of innovative companies that treat patents as
overhead and cost rather than value.

~~~
snowwrestler
So any company that gets sued over a patent today doesn't care if its own
products get copied? Really?

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stormbrew
Killing patent trolls is just a bandaid. Companies that aren't technically
trolls can (and do) still engage in troll-like behaviour. There need to be
ground-up changes in how patents, especially in technology, work.

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ColinWright
Also being discussed here: <https://news.ycombinator.com/item?id=5819222>

Split discussion, both on the front page.

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mortdeus
"But some big software companies, including Microsoft, expressed dismay at
some of the proposals, saying they could themselves stifle innovation."

And what exactly has Microsoft been innovating lately?

~~~
nanidin
It's hard to say since they don't expose the internals of their OS or other
products, but one must assume that something interesting happened below in the
surface in Windows 8 and in Windows Phone. They also manufacture the xbox360
and are probably working on a next-gen console in addition to that. They run a
cloud platform (Azure) that again, probably has interesting things going on
under the surface. Etc etc.

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kelnos
Found this interesting:

"Vermont has one of the highest per-capita rates of issued patents in the
country."

What could explain that?

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mc-lovin
Why is this a matter for the executive branch?

Can someone with more knowledge of US politics explain?

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elclingman
crazy.

