

Patent Troll Myths - kconor
http://www.patentlyo.com/patent/2011/09/guest-post-patent-troll-myths.html
[A]bout 26% of the patents [in the study] were inventor owned, and a comparison with the percentage of individual inventors represented in litigation generally shows that trolls serve an important role in enforcing individual inventor patents.
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SomeCallMeTim
While I hate patent trolls as much as the next small technology business
owner, the trolls themselves aren't the problem.

Completely non-novel patents being awarded by the thousands is the real
problem. If the "trolls" were really just enforcing interesting and valid
patents on behalf of individual inventors, that's one thing. But they're
instead finding the most broad patents they can and using them to extort money
from companies who are successful, sometimes regardless of applicability of
the patent to the companies in question.

The fact that software can be patented at all is questionable in my opinion --
anything sufficiently complicated to be worthy of a software patent would be
copyrightable. Anything less complicated should be held to an extremely high
standard of novelty before being allowed a patent -- and even then I would put
the time limit on such a patent at 5 years or less.

Just having an "idea" that no one has happened to already patent yet and
sitting on until someone else thinks of it and implements it doesn't "promote
the Progress of Science and useful Arts", which is the underlying mission of
all IP protections in the US at least.

The patent database is full of so much noise that no one is mining it for
ideas and creating software based on it at this point; instead everyone is
coming up with similar ideas, and pretty much BY DEFINITION those patents
shouldn't be valid.

~~~
joe_the_user
Patent trolls personally are a significant part of the problem in the sense
that for every dollar won in a troll lawsuit, some high fraction will go
lobbying the state for more patent laws allowing them to sue for more dollars.

The "don't blame the player, blame the game" argument appears here regularly.
I think it's valid in those places where the players don't make the rules. But
in a variety of concentrated industries in the US, big players, rule-enforcer
and rule-makes are so closely tied that it is crucial that we aim at all of
them if we're going to address a given problem in a given industry.

~~~
SomeCallMeTim
I must not have been clear. I DO blame the player, and think that the lawyers
at (e.g.) LodSys don't have the slightest clue about ethics or morality among
them (I also think things about them that are not printable in an HN comment).
I just think the proper strategy is to defeat ALL of the players at once by
changing the rules, both from a cost AND a risk perspective.

If you want to fight trolls mano-a-mano in lawsuits to either invalidate
patents or at least knock them down in relation to a particular product or
company, then more power to you, but I personally would find it terrifying to
fight such a lawsuit myself if my company DEPENDS on the victory of the
lawsuit.

I'd gladly (once my company is profitable, anyway) donate to the cause to help
take a troll down, however. :)

~~~
bobthebee
I don't think it is productive to blame "the players". In fact, it obscures
the issue.

Look at it from the perspective of the patents (in a Dawkins sense). Patents
want to make money. Patents grant exclusivity to something valuable. In a
capitalist society they will naturally be acquired by whoever can make the
most money. Maybe not initially but over time they will find the right (value
maximizing) host. There is an inevitability to this. The value maximizing host
seem to be so called patent trolls.

The role of government is to set the rules/bounds for capitalism. With patents
you could argue that there is a problem with the rules. But I don't think you
can blame the players once the rules are set. Capitalism is not about
morality, but profit maximizing and resource allocation. The solution is
simple. Change the rules of the game.

As a side note Paul Graham's patent pledge attacks the wrong side of the
problem and will therefore not be effective. Instead create a pledge for
companies that want to change the game and let them be vocal about it.

~~~
SomeCallMeTim
Seeing capitalism as amoral discounts the fact that capitalism a system used
by humans. It's humans who are being amoral to attempt to enforce obviously
bad patents. A rational and moral human shouldn't enforce (or consider there
to be any value in) a patent that is obviously overly broad -- any more than a
rational and moral human shouldn't attempt to steal someone's house because of
an error made by the government in recording the deed.

I vehemently disagree that you can "blame" the patents. It's humans all the
way down.

I agree with you on the STRATEGY -- the best way to fix the problems is to
change the rules. But I will continue to call people amoral/unethical and lob
lots of hate in their direction when their behavior justifies it, regardless
of whether they are technically breaking the law. A parasite is a parasite.

------
ZeroGravitas
The term _patent troll_ was invented by someone working for IBM to describe
firms they couldn't dominate purely by flexing their own absurd patents.

These trolls are waging asymmetric war. If they met IBM or Apple on their
preferred battlefield (i.e. formed a company and made products, which is
considered "the right thing to do") then they'd be wiped out instantly by
superior firepower. So instead they fight the only way they can, forming
terrorist cells or shell corporations that consist of two layers and a handful
of patents (often with shadowy funding coming from larger players).

Note a further parallel. The term "asymmetric warfare" means to fight like a
terrorist. What's the term for having a force so overwhelming that you get to
order smaller companies/nations about? That situation seems just as
asymmetric, and just as troublesome for the weaker companies/nations, yet it
doesn't have a catchy term for us in the stronger countries to worry about.

Just to be clear, I don't think terrorism or patent trolling are noble
pursuits or good for the planet, but I am saying that the conditions that lead
to them can in basically all cases be laid at the feet of the big players and
if you want to solve these problems, it's the big players you'd need to
change.

~~~
dctoedt
> _The term patent troll was invented by someone working for IBM ..._

The term is widely regarded as having been coined by Peter Detkin, then a
senior in-house attorney for _Intel_ [1] and now a managing partner for
Intellectual Ventures [2].

[1] <http://en.wikipedia.org/wiki/Patent_troll>

[2] <http://en.wikipedia.org/wiki/Peter_Detkin>; see also
[http://www.intellectualventures.com/WhoWeAre/OurTeam/Bio/Pet...](http://www.intellectualventures.com/WhoWeAre/OurTeam/Bio/Peter_N_Detkin.aspx)

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joe_the_user
I'm always suspicious when an article starts talking about "myths"

 _Another area of surprise was patent quality. While trolls almost never won
their cases if they went to judgment (only three cases led to an infringement
finding on the merits), the percentage of patents invalidated on the merits
was lower than I expected. A total of 43 patents had validity adjudicated on
the merits. Only 4 were found completely valid. Another 23 were held
completely invalid, and the rest were partially valid._

I would assert that the number of patents found invalid is not a measure of
"quality" in itself (if "quality" even exists in software patents). Lack of
invalidation could just as much be a measure of the courts brokenness or
defendants desire to settle or any number of things.

Just as much, the number of patents created by small operations is not a
measure of their quality, validity or innovativeness.

One could look at the patents themselves and we've seen a number of egregious
patents here. However, our "myth busting" patent-specializing law professor
somehow does get around to that.

~~~
morisy
He addresses a number of your points, briefly in the article and more in-depth
in his full paper, which is downloadable free of charge:

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442>

To summarize poorly, he admits that there might be some selection bias in
which patents are defended but generally finds that Patent Trolls are just
about as effective (or ineffective) in court cases as the general patent-owner
population. You suggest (and I agree!) that the courts and current patent
systems are ill-equipped to handle software patents effectively, but his
systematic look at the evidence, compared to the excellent anecdotal look TAL
provided, suggests that for the largest, most systematic trolls, the patents
asserted aren't much worse than non-troll patents.

I highly suggest the full-paper, or at least the final conclusions section.

~~~
smashing
If he can't get his point across using 887 words, then what is the point in
reading him further? Does he provide charts and graphs?

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kconor
Much of the news/hand wringing about trolls focuses on their targeting
startups and smaller companies, so I found the following quote to be
interesting.

"[A]bout 26% of the patents [in the study] were inventor owned, and a
comparison with the percentage of individual inventors represented in
litigation generally shows that trolls serve an important role in enforcing
individual inventor patents."

------
morisy
His full paper is available here:

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442>

------
EGreg
I think this patent law professor is an important voice, but once again my
point is simple. Patents are NOT needed in the software industry to promote
what is already a very fast moving environment. I prove this by showing
something that is plain to everyone who is familiar with how tech companies
work: they base their technology on incremental innovations, internal
research, or open source. They do NOT read patent disclosures. We do not need
to give out 20 year monopolies to incentivize patent disclosures by
"inventors" to the public, because no one cares about these disclosures!!

The relevant numbers would be the proportion of companies that public patent
disclosures have helped. For example, how many people were helped by Google
publishing their PageRank algorithm (in its "best form")? Probably some were
helped, but not a lot. And this is one of the BIGGEST and most HELPFUL
examples of patents. How many were helped by amazon's 1-click patent
disclosure? I am willing to bet maybe ZERO people were actually helped because
by the time it was asserted, it was OBVIOUS to everyone who made the
technology.

