
The Patent, Used as a Sword - loso
http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html
======
femto
Did anyone else get bugged by the following: "Patents are vitally important to
protecting intellectual property"? Reading along, and WHAM, there it is out of
nowhere.

It's not wrong, but it is also not true, since it is a tautology and so devoid
of meaning. Patents ARE intellectual property, so the statement is a
nonsensical "patents are vital to protect themselves". A circular argument.

I suspect the author is failing to distinguish between ideas and "intellectual
property", and is trying to say "Patents are vitally important to protecting
ideas". An idea is not intellectual property though. It is born naked and free
and has no inherent attributes of property, such as limitations on its use. It
is patents that attempt to convert ideas into property, and the onus should be
on the patent advocate to demonstrate benefits over unadorned ideas.

It bugs me that so many "software patents are bad" articles go like this:

1\. Example of why software patents are bad.

2\. Unsupported assertion that patents are essential.

3\. Unsupported assertion that pharmaceuticals will not be produced in the
absence of patents.

4\. Half-baked conclusion that something must change, but it's a scary thing
to do because it might kill innovation.

Why not do it this way?

1\. Start with the assumption that monopolies are bad for innovation and
innovation happens best in a free-wheeling environment.

2\. Example of why software patents are bad.

3\. Critical examination of whether patents might have any benefit in other
areas, such as pharmaceuticals.

4\. Unless shown to be generally good in step 3, conclusion that patents are
generally bad, with exceptions (possibly none) as identified in step 3.

------
linuxhansl
"The suit had cost $3 million, and the financial damage was done."

 _This_ is the problem. In all other countries (except Great Britain, AFAIK)
the loser pays all costs (including the public cost of the trial and the
opposing party's legal fees).

The loser-pays system has three effects:

1\. No frivolous lawsuits. Cost of losing is high.

2\. The defending party will defend vigorously if it believes itself to be in
the right.

3\. It is relatively cheap to get legal insurance (almost everybody in Germany
has it)

Overall this reduces lawsuits in general, stops or reduces the power of
threatening legal action, and it stops or reduces the practice of throwing the
equivalent of legal sh*t at the wall to see what sticks.

Edit: Spelling

~~~
tzs
The problem with doing loser pays in the US is that in the US we use private
civil litigation to handle things that would be dealt with by government
regulators and agencies in other countries. For instance, we rely on civil
litigation to enforce consumer protection and civil rights laws to a larger
extent than others do. Loser pays in the US would discourage a lot of
meritorious lawsuits from individuals against large companies, because there
is always a significant risk of losing even if you have a good case--a jury
can be a crapshoot.

~~~
mseebach2
As I understand the system, there are usually two mechanisms in place to
offset this:

First: The loser pays costs _as determined by the court_ , usually on a preset
schedule. It's not like the winner gets to send the loser an invoice for
infinity bajillions and they just have to pay up.

Second: You can apply for having the government pay if you loose. You have to
file a petition explaining how (a) there's a benefit to society in having the
case heard and (b) how you're not financially fit to bear the costs yourself.

------
zmmmmm
It strikes me that there's an extreme lack of accountability back towards the
patent office. In this article you have patent examiners saying "sure we get
it wrong all the time", with no real recognition of the disastrous real world
consequences of that for the companies who then later become victims of patent
litigation (or even conversely, companies who went ahead and invested their
future based on their patents being valid and now when it is overturned, have
their business destroyed by competitors).

Imagine if, when a patent is overturned as part of a patent infringement case,
the defendant could claim all costs and damages they had suffered due to the
faulty patent from the patent office? How fast would the system change?

~~~
shousper
That sounds like a Disney movie.

Seriously though, that would never happen and we all know why. The question
is: what can be done about it?

Honestly, what can we/I/you do?

------
numair
This article briefly touches upon first to file. I think it's clear that the
change to first to file will result in the greatest threat to open innovation
we have ever seen in our lives.

Think about it -- suddenly you will have swarms of lawyers and executives at
pharmaceutical companies paying visits to research labs, and you'll have
people from large software companies forwarding ideas posted on open source
developer mailing lists to their legal departments. It won't be safe to
suggest ideas openly anymore. It won't be safe to talk about "what if" or
"have you considered" or "someone should really." We are going to see a flood
of really bad patents based on other people's ideas -- and that's exactly what
our lawmakers have provided to their friends in large businesses.

Things are about to get a lot worse. But you know, maybe that's what it's
going to take -- maybe we have to suffer economically, suffer culturally,
before we as a society realize we are building ourselves an intellectual
prison for which there is no justification.

Yes, I know that patents are a temporary thing, only lasting 18 years or so;
but really, do you think people such as the guy cited in this article are
going to say to themselves, "oh, you know, maybe I'll just return to coming up
with innovative stuff in the voice recognition field in 18 years, after Nuance
can't come after me anymore" -- do you really think that will happen? No, of
course not. We're going to see a lot of brilliant people forced to abandon
brilliant projects and ideas, and we'll never know what might have been, what
could have been done.

I don't think anyone is fighting this in a particularly constructive way --
the whole "abolish all patents" camp is going to get about as much of a
serious audience as the "abolish the Fed" and "abolish the labor union" camps
-- and perhaps that is exactly what our large-scale adversaries want. We need
to be more incremental, more nuanced; that's what they've done, and that's why
they are getting everything they want. You think sneaking first to file was
something that happened over a chain of emails somewhere? No -- if anything, I
bet there is a protracted, multi-decade fight among a lot of very persistent
corporate attorneys and executives that has lead to this "win."

In any case, I really hope people in our industry can stop the useless
arguments of "end all patents!" for long enough to realize they should be
rallying together to fight this simple yet very destructive change that is
right over the horizon. You sure as hell won't hear/read my thoughts on future
technologies once this first to file thing goes into effect; and I am sure
that savvy legal counsels everywhere will be telling their star engineers and
employees to remain similarly silent. This is not going to be fun.

~~~
jacques_chester
First-to-file is basically meant to get rid of "interference" lawsuits.

And, in general, it's not the apocalypse you might expect because prior art
can still invalidate a patent.

The USA is basically on its own with first-to-invent. Everyone else is on
first-to-file. And generally speaking, it works pretty well. There are
absolutely anomalies, but there are mechanisms to deal with them. The payoff
is a simply abolishing a massively expensive and difficult field of
litigation.

It's a lot like how the Torrens land title system dramatically increased the
security of land title, while also driving out whole classes of litigation and
fraud. It changed real estate, land ownership and development for the better.

(IANAL, TINLA)

~~~
krichman
Other countries force the loser in a lawsuit to cover the costs. Perhaps
that's why they don't have so many companies using patents that shouldn't have
been issued in the first place.

~~~
jacques_chester
In Australia, depending on the case, it is usually at the judge's discretion
to "award costs". Not precisely the same, but it's a risk you run as litigant.

(IANAL, TINLA).

------
loup-vaillant
> _Patents are vitally important to protecting intellectual property._

More accurately, patents are vitally important to enforcing intellectual
monopoly.

Terms such as "protection" and "property" are so heavily biased in favour of
patents that they nearly block any useful discussion. As long as mainstream
journals use those terms, the only way forward will be nearly complete lock-
down. Now, "monopoly" is also biased. But at least it is technically correct.

Patents are supposed to foster innovation by granting monopolies. I can accept
the argument that while monopolies are mean, they're a lesser evil compared to
the technical innovation they enable. But replace "monopoly" by "property",
and soon we're saying that patents are unilaterally good (and not just a _net_
good). Which is obviously false given the huge legal costs they incur.

But even if patents are a net good, we rarely ask ourselves: can't we do even
better? Isn't there any other form of government intervention that would be
even more efficient? Could the money that currently goes to patent lawyers be
better spent? My current answer is "most probably". Of the top of my head, we
could fund another Manhattan project, set up more competitions and prizes like
the DARPA challenge for autonomous cars, or allocate more research grants.

~~~
rayiner
Yes, because we need even more of our researched funneled through the DoD.
That's much more efficient than patent litigstion...

I used to work on a DARPA project, and had some high school field trips funded
by the Naval Surface Warfare Lab. The military is a great source of
technology, but it's woefully inefficient and it's got a distinct military
bent. The DoD can piss away in waste and graft in one month what patent
litigation costs in the whole country for a whole year.

------
sologoub
If this is in fact accurate (that Apple & Google R&D spend is less than their
Patent spend), it's an incredible waste of time, money and talent:

"In the smartphone industry alone, according to a Stanford University
analysis, as much as $20 billion was spent on patent litigation and patent
purchases in the last two years — an amount equal to eight Mars rover
missions. Last year, for the first time, spending by Apple and Google on
patent lawsuits and unusually big-dollar patent purchases exceeded spending on
research and development of new products, according to public filings."

~~~
rayiner
If its from the same article I'm thinking about, it's including $12.5 billion
for Google's purchase of Motorola Mobility. He bulk of the number is money
spent purchasing other companies.

It's not like they're wasting billions of dollars on patent litigation instead
of R&D. They're buying companies, including their engineers and their IP,
instead of doing things in-house. Both companies are flush with cash-of course
they're buying up all the technology companies they can find.

------
htf
I understand that allowing patents for algorithms is bad for innovation. What
I don't understand is that people say that and then in the same breath claim
that allowing patents for chemical formulas is good for innovation. In both
cases, the patent holder gets a monopoly and everyone else is stuck with them
as their supplier. I feel a terrible cognitive dissonance trying to reconcile
these two positions.

~~~
tjmc
Developing an algorithm doesn't generally cost hundreds of millions.
Developing a drug and taking it all the way through clinical trials easily
can. I think patents make sense for some sectors. Software just isn't one of
them.

~~~
zabar
I think cost is just part of it.

There is also the fact that for lots of things, software are being part of an
ecosystem where people come to the same solutions naturally.

Think about the "swipe to unlock", when the only thing you have to interact is
a touch screen, it's not like there is lots of different possibilities.

At that point patents become harmfull because it blocks other people from
making progress and having competition in a given ecosystem.

Drugs just don't have the same collision of solutions problem.

~~~
lloeki
> Think about the "swipe to unlock", when the only thing you have to interact
> is a touch screen, it's not like there is lots of different possibilities.

And this gets even more ridiculous when all you have to do to work around this
is swipe inside a circle instead of on a straight line.

------
jacques_chester
I am currently applying for a software patent.

And I am of two minds. The system sucks. It shouldn't be patentable. In fact,
even if I get a patent, it won't be the determinant of success or failure;
it's mostly there to make the company more attractive to investors.

On the other hand, is/ought problem. There's what I'd like the world to be.
And there's what the world is.

(And yes: my lawyer is pushing me to come up with the broadest, vaguest
description of my invention possible).

~~~
femto
A question for you and anyone else:

In terms of making a company attractive to investors, is a block of resources
better spent in obtaining a patent or advancing product development? Is the
answer different between a start-up and not a start-up?

I'm genuinely interested in the answer, as it strikes me that the answer is
not clear cut.

~~~
jacques_chester
In my case, the patent application is a gamble.

It's based on work I did for my Honours project. I wrote a bunch of prototype
code and a pretty detailed description of its design and operation.

But in actual fact the invention is a miniscule part of the work that has to
be done to bring it to market.

If spending a few thousand dollars now can help me raise hundreds of thousands
of dollars later, I view that as a smart gamble to take.

~~~
femto
I'm actually torn on the issue. I can see that a patent has the advantage of
conferring exclusivity, but time and money consumed might increase time to
market and the "sunk cost" of a patent and might deter a much needed change of
direction or technology.

I've been touched by patents twice. The first time was as an employee of a
start-up based on a patent by a PhD student. In that case I think the company
got blinkered by need to "implement the patent" and got overtaken by others
who were more flexible.

The other was commercialisation of WiFi. CSIRO owned the patent. Radiata the
company did not own any patents (not sure if they licensed the CSIRO one).
Within 3 years, Radiata got acquired by Cisco for AUD 560 million. I was later
told by one of the founders that Cisco had decided to acquire whoever was
first to market, and Radiata got lucky and beat Atheros by 2 weeks. Investing
2 weeks into taking out patents could have been very costly!

CSIRO eventually made about AUD 1 billion off their patent, but it took 20
years, involving a 10 year legal battle that cost them AUD 15 million per
year.

Since then, my feelings have been that patents are fine if you are well
established with deep pockets, but a potential liability otherwise. I'm always
interested in data that challenges that view as I could well be wrong!

~~~
jacques_chester
I don't like them for software. But if it helps the business to get started, I
will go get one. That's the bottom line for me.

------
generj
I would argue this article only slightly missed it's mark: patents are not
swords. Patents are nuclear weapons, and all parties in tech have been slowly
amassing an arsenal of thousands of them. Some of these warheads are duds, but
it still costs money to deflect the bomb away from you to determine that.
Others have small tactical explosions. But there are some which are fusion
bombs, some are the Tsar Bomba of patents.

You don't argue with a man with numerous atomic weapons, even if some of them
might be duds. You fold to his demands. So large companies seek to shut down
or absorb threats to their empires, preventing any new superpowers from rising
through acquisitions and cross-licensing.

This leads to an interesting and uneasy detente, roughly comparable to the
posturing of countries during the cold war.

Between themselves, the superpowers have had to play a careful game of
balance. They know that to actually sue would mean a series of counterattacks.
Lobbing a single missile might mean that all silos will launch from the enemy
camp. The cost of defending and waging multiple simultaneous lawsuits against
multiple multi-billion lawsuits has meant that there is very much a state of
Mutual Assured Destruction (MAD) present in the industry.

When Steve Jobs said that he was "willing to go thermonuclear on this" he
wasn't being hyperbolic. Apple went from a Cold War to a hot war. Much like
the real Cold War, Apple isn't directly attacking Google yet. They are having
a war by proxy with Samsung and other Android device manufacturers first. But
they are also snubbing Google in a variety of ways with iOS 6. Time will tell
if Google and Apple will engage in a dazzling display that will embarrass my
WarGames inspired copy of Defcon.

The only winning move is not to play at a society level, by reforming patents.

~~~
saber_taylor
The "patent troll" companies are not participating in MAD, since they have no
products. However they want the min-max for squeezing the patent licensees
versus nobody using the innovation. I think the patent troll companies are
closer to the original envisioning of the patent system, more so than MAD
patents.

------
oelmekki
I really like the concept developed in one of the comments (I can reuse it
here, right ?) of evolutionary vs revolutionary.

Further than the "previous art" rule, that should be a criteria in accepting
new patents : is it revolutionary ? Yes ? Congrats, as a reward, you can
benefit of exclusive exploitation.

Of course, all the problem is to distinguish both. I suppose one way would be
this one : when you claim a patent, there is a six month freeze time when it's
not made public. If after six month nobody has used or mentioned any similar
idea (similar enough to make a patent violation claim), you can have the
patent.

This would encourage lot of technical writing that would produce lot of ideas
in order to avoid patent locking, and real revolutionary ideas would be
recognized as they are, instead of looking suspicious as all current patented
ideas are.

------
WildUtah
It's nice to see some articles pointing out that the way patents work,
especially in regard to software, is badly broken. The widespread uncritical
presumption in favor of patent protection among educated people is the biggest
barrier to reform. The Times is doing its part to make reform possible.

Of course, the specific details of the article don't have to be right to
accomplish the goal. Awareness of a perverse system will lead bureaucrats and
judges to be open minded to reform whether the facts in the article are right
or not.

It's worth mentioning, though, that Mike Phillips worked for Nuance, the
company that sued and destroyed his company, as CTO for years and years. He
left to do university research and later started a new company. Then, Nuance
sued his new company knowing they could force him to give up or come back by
suffocating him with litigation costs. It wasn't a simple matter of shutting
down an upstart competitor as it was portrayed.

------
davidwparker
Single page link, for convenience:
[http://www.nytimes.com/2012/10/08/technology/patent-wars-
amo...](http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-
giants-can-stifle-competition.html?_r=0&pagewanted=all)

------
dctoedt
A couple of interesting quotes:

" “When I get an application, I basically have two days to research and write
a 10- to 20-page term paper on why I think it should be approved or rejected,”
said Robert Budens, a 22-year patent examiner and president of the examiners’
labor union. “I’m not going to pretend like we get it right every time.” "

"... In an interview, Mr. Kappos said the lengthy back-and-forth between
examiners and Apple was evidence that the system worked. ... “It’s called the
patent office,” he said, noting that issuing patents is the agency’s job. In a
statement, the agency said it had spent the last three years strengthening
policies to improve patent quality. Besides, Mr. Kappos said, “we realize that
only a handful of these patents will be really important.” "

------
gleiva
So, if a person wants to start a company, how can he make sure it's not
breaking any patent that could cost him money and a legal mess later?, I
suppose a few hours of investigation previous starting up is not enough...

~~~
rayiner
This is in my opinion the biggest problem with the patent system. The bars for
obviousness and novelty are too low if startups need to start worrying about
whether they're accidentally coming up with the same designs as existing
companies. Provable independent invention needs to be a defense to patent
infringement.

------
guelo
The US government is corrupt through and through. There will be no change, on
this or any other issue, except for the change that the most powerful moneyed
interests want.

------
silentific
Much respect to the software engineers who "Decline to participate".

"The disclosure session had yielded more than a dozen potential patents when
an engineer, an Apple veteran, spoke up. “I would like to decline to
participate,” ... The engineer explained that he didn’t believe companies
should be allowed to own basic software concepts."

~~~
ecolak
Yea, the people who actually build this stuff should have a greater say in
whether it should be patented or not I think.

------
mtgx
Yeah, patents protect small businesses and the innovators. Except they don't,
and they're simply used by big companies to destroy the small ones. Too bad
Obama won't change the direction for this all, since he already has his mind
made up that what helps innovation is stronger IP enforcement, and more not
less of this.

------
wwwtyro
What if we all buy 7 copies of this:

[http://www.cafepress.com/cp/customize/product2.aspx?from=Cus...](http://www.cafepress.com/cp/customize/product2.aspx?from=CustomDesigner&number=704713622)

And wear it every day?

