
Large patent holders hate this reform proposal. That’s a good sign - tareqak
http://www.washingtonpost.com/blogs/the-switch/wp/2013/09/24/large-patent-holders-hate-this-reform-proposal-thats-a-good-sign/
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fab13n
The first thing to fix is the economic incentive: when you lose a trial due to
invalid or non-infringed patent, you have to be the one footing the bill.

It probably means that you have to escrow a provision to start such a
litigation, to avoid organized bankruptcies of empty shells. If you don't have
this money and nobody's willing to lend it to you, it probably means that your
case has little merit.

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JumpCrisscross
" _If you don 't have this money and nobody's willing to lend it to you, it
probably means that your case has little merit._"

Or you're a start-up or small business that can't afford the contingent
liability of a deep-pocketed infringer's legal team. Uncapped "loser pays"
clauses also have an unintended consequence of encouraging the infringer to
beef up their legal team to intimidate the patent holder.

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fab13n
In France, this is left the the judge's appreciation. "Condamnation aux
dépens", literally "penalty of the costs", is a complementary, optional
penalty which forces to foot part or all of the winning party's legal costs.

The merits of the case and the proportionality of the winning party's legal
expenses are taken into account. In practice, it works, together with a couple
of anti-ambulance-chasing provisions (e.g. "no gain no fee" contracts are
illegal).

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rayiner
Loser-pays and a ban on contingency cases is basically a guarantee that
consumers will never be able to sue a large corporation to vindicate their
rights. It's basically carte blanche for a big corporation to respond to any
litigation by hiring the biggest most expensive legal team, adopting a
scorched earth litigation policy, and threatening the plaintiff with the
resulting bill.

Now, that doesn't make it a bad policy per se. It works fine in France, where
the government is much more willing to enforce consumer rights using
regulatory means. It wouldn't work so well in the U.S. where the government
leaves a lot of that kind of enforcement to private litigation.

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fab13n
Again, in France it's not "_loser pays_". It's "_judge determines who pays,
and does so in such a way as to deter financial bullying_".

The very reason why we have judges, rather than only cops, is that
mechanically applying rules doesn't work. In most non-trivial cases, we need a
human being who defends the sometimes subtle spirit of the law. That's one of
those cases.

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didgeoridoo
"Doctors HATE this one weird trick for weight loss!"

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dan1234
I'm glad I'm not the only one to see that!

OT, but does anyone know if these adverts actually make money?

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richardjs
Also related to the ads, does anyone have some marketing distillation of why
they always use the words "weird trick"? Weird trick for weight loss, weird
trick for language learning, etc.

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pilsetnieks
There's an article on Slate about those ads:
[http://www.slate.com/articles/business/moneybox/2013/07/how_...](http://www.slate.com/articles/business/moneybox/2013/07/how_one_weird_trick_conquered_the_internet_what_happens_when_you_click_on.single.html)

Basically, the trick is "weird" because it's not too positive, so as not to
make it sound false and unbelievable, not negative either, and uncommon enough
to attract attention and pique interest. Of course, overuse of the technique
desensitizes the viewers and it will eventually fall out of favor.

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richardjs
Exactly what I was hoping for. Thanks!

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pasbesoin
Ownership, when it extends beyond individual brute force, is always a social
convention.

More than a "right" to such, society inevitably examines and challenges its
social conventions. (There are some long term patterns, but even these are not
steady-state.)

Society is going to look for what works _for society_. If and as (over-)
concentrated "ownership" increasingly holds society back...

In other words, ownership at a societal level is a useful tool, but it is not
an absolute.

As just one small example, even within our "ownership" society in the U.S., we
increasingly have law enforcement confiscating assets without due process
whether upon real or convenient suspicion of wrongdoing (asset "forfeiture").

You own it... as long as society says you own it. One reason to use it to help
promote a healthy and reasonably fair society -- it's in your own long-term
interest.

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devx
Microsoft is not seriously expecting the billions they're getting from Android
OEM's by charging them for using open source software with trivial and broad
patents is going to last forever, is it? If they're basing their mobile
business strategy on that, they're doing it wrong.

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mikegioia
I think MS will make over $3B in 2013 on Android. Even if they have to spend
1/10th of that on legal fees it's worth protecting I guess.

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Kluny
Sorry this is unrelated to the article, but I've noticed a sharp increase in
sites breaking the "Back" button, including this one. Salon.com is another bad
offender. Is it just me or has anyone else noticed it? And is there an
extension to prevent it? (Chrome)

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DenisM
Yep, it just happened a few days ago. Maybe it's Chrome, that's broken?

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SeanDav
Considering that 99% of USA politics is driven by lobbying and big business
this legislation has a snowballs chance in hell of actually passing without a
lot of watering down.

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pessimizer
This is big business vs. big business.

Dinosaurs: Adobe, IBM, Microsoft, Qualcomm and Xerox.

vs

The New Hot Shit: Google, Facebook, Samsung, Red Hat and Yahoo.

I'm not sure who's holding the most cash, but it's certainly not an easy call.

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bdcravens
I wouldn't call Yahoo new. It IPO'ed 17 years ago, barely 10 years after
Microsoft and Adobe.

Red Hat IPO'ed 14 years ago. Even so, it only has a market cap of less than
$9B, less than 1/3 of companies like Yahoo (and 1/30th of Google's). They do
some neat things in open source and virtualization, but I wouldn't call them
"hot".

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pessimizer
I would. They're web and Linux companies - technologies that are completely
pervasive now, and didn't even exist when Microsoft and Adobe were already big
companies.

Innovators vs. Squatters. Isn't that the expected way this argument would
shake out? Patents encumber innovation, not royalty checks.

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tehwalrus
Those with lots of resources will use force to defend them. Conflicts of
interest need to be declared up front - if we think people with patents need
to be taken down a peg or two, we shouldn't take objections/arguments coming
only from companies with thousands of patents seriously.

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beagle3
The underlying problem with patents is basically that the upside of owning a
patent is essentially unlimited, where as the cost is finite (and large for an
individual, but peanuts for an established corporation).

What needs to be done is make those two things related: For example, require
patent holders to declare the value of a patent on their tax filings (say, in
April for the previous year), pay a 1% tax on that value, and limit any
infringements damages to that value (per defendant, per year). Perhaps also
make a forced "imminent domain" seizure possible by any sued part for 10x of
the value.

We do not want anyone to have a patent economically worth $100K or less being
able to assert it to stop production of something worth $100M or more -- and
yet, the current system facilitates that (see e.g. eolas vs. ms, the xml case
against microsoft, creative vs. carmack).

Once you have a "cost of carry" for patents, carrying offensive patents will
become expensive enough that patent holders assign value (thus,
enforceability) to patents they dim worthy.

(And no, this does not push a "small inventor" or "small patent holder" out of
the game. If you have a patent worth $100M but do not have much more than $1M
to enforce it, you do NOT have a patent worth $100M - litigation is going to
cost you much more than that; They are already out of the patent game - so
let's fix other aspects first)

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jessaustin
Investors have been given a powerful tool here. A litmus test, if you will.
The management of those tech companies that do not expect to innovate and
succeed in future, have signed this letter opposing CBM expansion. Those that
do expect to do so, have not.

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transfire
Three laws for a fair patent system, would help a lot:

1\. Acquiring a patent must cost $0. -- There should be no distinction between
applications, such as expedited service (which we have now). The USPTO is not
a business!

2\. A refundable sincerity bond is used to ensure the system is not abused.
--The bond is 100% refundable, regardless of outcome. It can only be
confiscated if willful negligence or fraud can be proven.

3\. There should be no distinction in time frames. All patents are good for a
fixed period of time and no longer. They is no renewal period or fee for such.

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cheald
> Acquiring a patent must cost $0.

Can you elaborate on this? Granting a patent doesn't cost $0.

(I do like the bond idea, but even today's bad patents are generally
invalidated on prior art, not on willful negligence or fraud -- I'm not sure a
bond would necessarily change anything)

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dllthomas
The bond could perhaps let you offload some part of the work of locating prior
art to the applicants. I think actual fraud should be punished as actual
fraud, but "I attest that I am confident there is no relevant prior art"
coupled with a quick google search turning up mountains of prior art should
cost them the bond, and that might help reduce the number of junk patent
applications, allowing us to process non-junk applications better and faster.

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twiceaday
I hate this "x hates y" template for titles.

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jeremiep
Not nearly as bad as this template used on ads. It always makes me wonder who
is actually dumb enough to click on these..

