
Patent trolls have a surprising ally: universities - RougeFemme
http://www.washingtonpost.com/blogs/the-switch/wp/2013/11/30/patent-trolls-have-a-surprising-ally-universities/
======
alexeisadeski3
Look. The 'problem' with patent trolls is two fold: (1) The legal system
permits them to shake down companies in ridiculous ways, and (2) The patent
system grants obscene patents.

The solution is to attack those two problems. Not to attack the concept of
patents themselves nor NPEs.

If the anti-patent-troll efforts were focused upon those two points
specifically, meaningful reform would be much easier to achieve; fewer special
interests would be aligned against the changes.

~~~
tolmasky
It's not realistic to expect patents to be granted more intelligently. We are
by definition, in the hypothetical best case (all honest actors), talking
about the absolute bleeding edge of technology, where you are going to need
real experts to be able to discern what is "real innovation" and what isn't. I
don't even consider myself capable of analyzing patents except for in an
incredibly narrow slice of computer science where I've worked for 10 years, so
I'm not sure where you expect to find these generalists who will one day be
looking at AI algorithms and the next day be judging graphics code. The only
alternative would be to literally have an expert from every subfield. Even if
you had infinite funds to fill this magical patent office, why would such
experts take this boring job (unless their goal is to work on physics on the
side ;) )? As it stand today btw, most patent clerks being hired are engineers
straight out of college, and I imagine they aren't exactly the top of their
class. No one dreams of being a patent clerk.

This is all exacerbated by the fact that the patent agency is a government
agency, where there really isn't anything incentivizing them to get better.
And yet on the other side you have lawyers who are 100% incentivized to create
the most convoluted patents to actively confuse (the already ill-equipped)
patent clerks and juries.

I also agree with the statement "if we could just grant the right patents then
this wouldn't be a problem". I just don't see any reasonable way to increase
the fidelity of patent grants, nor a reasonable fallback system for when a bad
patent DOES inevitably get granted (trial by jury for discerning innovation is
probably the worst method).

1000 years ago you could be a mathematician, poet, and biologist. Today, you
have to go to school for 5 years to get a PhD in an incredibly focused
subfield. 100 years ago the patents you were dealing with were "machine that
makes light". Now its methods of improving graphics performance when running
on this super specific kind of computer architecture. It might have been
reasonable for an outsider to make a judgement call before, but I seriously
don't think it is anymore.

~~~
rlpb
> Even if you had infinite funds to fill this magical patent office

As an aside, I think that the funds should come from the patent applicants
themselves, and should cover the level of examination required. If examination
is insufficiently deep, then the depth should be increased and the fees
increased to cover the cost for this.

IME, patent office fees are tiny compared to the amount that applicants
generally spend on their patent attorneys, so there should be no hardship
there.

~~~
hamax
With your suggestion only the largest companies would be able to apply for
patents. For Apple, Google or MS a couple of million dollars means nothing for
a patent. But it infeasible for a startup or smaller research groups.

~~~
rlpb
Instead, only the largest companies can defend patents, which is just as bad,
or worse.

Patent application fees should reflect the real cost of processing the
application. If improving patent quality requires an increased processing
cost, then this should happen, since not doing so unreasonably increases
future litigation costs for everyone. Subsidizing small companies'
applications might then be reasonable if we want to promote startups and
smaller research groups, but there's no reason to subsidize the largest
companies' applications.

------
jedbrown
Let's take the intent of patents at face value, ignoring the perverse
incentives and broken review process that may jeopardize their utility even in
the private sector. Patents claim to benefit the public by providing incentive
to (a) invest in research that may be easily "scooped" by competitors and (b)
disseminate information about inventions so that others can benefit. I do not
find either compelling in the case of universities. The vast majority of
research at universities occurs regardless of possible royalties because it is
externally-funded and researchers compete for grant funding and prestige.
Publishing a significant result first garners citations and prestige (and
likely helps fund future proposals), directly benefitting both the researcher
and their institution. Similarly, researchers publish important innovations
because publications are literally the currency of academia.

~~~
amirmc
You're assuming too much about academia and the people in it. We're not all
automatons driven by the need to write papers. Plenty of people (eg grad
students) are willing to commercialise research work given the opportunity.

Also, please don't assume that whatever can get published in a Nature paper is
ready for mainstream use. It can take years of further R&D (that's _not_
paper-worthy) to actually create something for the market. Dis-incentivising
that process would be detrimental in the long term.

Note: my comments relate to science-based patents, not software ones (I don't
really understand those).

Edit: If the problem is with the Patent system, that's where a solution must
be found. Identify and deal with the _actual_ problem, _not_ the symptoms.

~~~
jedbrown
Grad students are primarily motivated to graduate so that they can be treated
well and paid commensurate with their expertise. That is accomplished via the
usual academic channels. Grad students that want to found companies are better
off doing that. Yes, there is a huge gap between research papers and
marketable products, but universities usually are not funding that conversion.
Spinoff companies might, but universities want to get IP rights _before_ the
spinoff happens so that they can get royalties. Where is the risky investment
in research that patents are supposed to be making possible?

~~~
jjoonathan
> universities usually are not funding that conversion

Yes, they are. Universities are essentially a combination of a hackerspace
with a startup accelerator, they have just grown to the point that you don't
recognize them as such. The services they provide are essential to starting
companies requiring more infrastructure than a laptop computer. They provide
the multi-million dollar cleanrooms required to do nanoscale fabrication, the
multi-million dollar spectrometers and chromatography setups required for
chemical and biological engineering, seats on even the most expensive
mathematical and physical simulation software, and mechanical prototyping
facilities. They house a collection of experts, technicians, and cheap skilled
labor (grad students) the likes of which cannot be found anywhere else or
bought for less than a small fortune. They have industry connections that span
many different market sectors and they have respect from society at large that
gives them special dispensation to perform certain kinds of risky experiments
(medical trials, chemical synthesis with reagents that could be re-purposed to
produce drugs/explosives/nerve gas, and nuclear reactions). They even provide
small stipends for their tinkerers.

These things cost money, yet many of them are advantageous or essential for
starting a company, depending on the field (do you really think you can
develop a next-gen neural interface, MEMS sensor, or drug delivery mechanism
in your garage?). The arrangement is simple: a spun-out company can repurpose
research done using these facilities if they promise to give the university IP
revenue (the specifics of which are negotiated on a case-by-case basis). The
nice thing about using patents to carry out this process is that they can be
negotiated retroactively. Startup accelerators require equity up front, but
that's not a workable arrangement if you won't know how commercializable your
product will be until _after_ you have spent your research budget.

I would hate to see this side of patent law disappear. Such "reformation"
might just succeed in turning the university into the sterile ivory tower of
arcane, pointless tinkering you seem to think it is. We need to fix patent
law, not eliminate it.

------
anaphor
I'm not sure if this is surprising to people who are familiar with how
universities often take the work of graduate students and make it closed and
try to profit off of it. It is a huge problem that universities are forcing
software in particular to be closed source just so they can profit off of
their researchers/grad students.

~~~
eshvk
I was a grad. student for three years. I am not sure it is a "take the work of
graduate students and make it closed" kind of deal. It is more like you are an
employee of the University and your work belongs to your employer. Also, at
least at UT, the grant system was designed to be protective of the rights of
the Grad. student/researcher so that his/her work could be monetized later if
need be.

~~~
thomasahle
Universities I've attended have had similar rules for undergraduates, even
though those cam hardly be considered "employees" with the fees they pay for
courses...

------
baldfat
being a former College Librarian I totally agree with the statement. it was so
frustrating to hear the aggression and fear of Open Source. when it came to
copyright librarians are the biggest defenders. I never understood why.

also these academia patents probably had public money funding then also.

~~~
eshvk
> also these academia patents probably had public money funding then also.

Yes, but does that mean that all things that made from public funding should
not be monetized? Is it a requirement that a road constructed out of taxpayer
money should not have a toll?

~~~
AnthonyMouse
Road tolls are quite undesirable. Tolls require some toll collecting apparatus
which wastes that portion of the collected funds and may have negative
externalities (e.g. increased surveillance, increased air pollution or reduced
road capacity due to slowing for toll booths). Moreover, it discourages
productive use of the road. If a toll discourages use of a road at any point
in time when the road is being used at less than its full capacity then you're
"wasting" the road and creating secondary inefficiencies, e.g. fewer people in
the office park on one side of the toll road will travel the road to visit a
coffee house on the other side which causes the coffee house to lose business,
and allows a different coffee house that happens to be in the opposite
direction from the office park to raise prices and gouge the workers in the
office park.

You can see the obvious analogies with patents on publicly funded research.

This is to be distinguished from congestion pricing which has nothing to do
with paying for the road and should only apply at the times when the road
would otherwise have insufficient capacity for the traffic volume, with the
explicit intent of reducing usage. Note however that congestion pricing can be
inefficient for many of the same reasons and is also undesirable unless the
alternatives of expanding road capacity or improving mass transit to reduce
traffic volume are both impractical.

~~~
enjo
I disagree with that entire premise.

Yes it requires technology to collect the tolls. We have that down to a pretty
efficient science these days thanks to cameras. They don't even slow down
traffic to collect tolls.

I've never encountered a toll road that wasn't a major expressway. The coffee
house argument is non-sensical.

Toll roads have a very attractive benefit to me. I don't drive. I'm kind of
happy to have the people who make the decision to live far away from their
work to actually pay for the cost of their commute.

~~~
AnthonyMouse
> Yes it requires technology to collect the tolls. We have that down to a
> pretty efficient science these days thanks to cameras. They don't even slow
> down traffic to collect tolls.

The technology costs money, it creates bureaucracy, and it wastes time. You
get an EZ-Pass, you now have more charges to reconcile on your credit card
which wastes time (multiply by XX million people this turns out to be a lot of
wasted time), some people have to be hired to work in a call center to answer
calls, maintain webservers, repair road sensors, do enforcement against people
who don't pay, etc. etc. Then it's the government, so they're going to get
some private company to do it, which is going to hire a bunch of lobbyists
(more wasted resources), which are then going to lobby hard to keep as much of
the collected money in their own pockets as bureaucratically possible.

Also, the automated systems make the surveillance problem worse by an order of
magnitude or more.

> I've never encountered a toll road that wasn't a major expressway. The
> coffee house argument is non-sensical.

How is it that someone can't work near an onramp to a major expressway and the
nearest coffee house be at the next exit or just across a toll bridge?

To get to the point, are you questioning the premise that increasing the price
of something can discourage productive uses of that thing?

> Toll roads have a very attractive benefit to me. I don't drive.

Do you also grow everything you eat in your back yard, never buy anything in a
local store or have it delivered by UPS and will never require any emergency
vehicles to come to your home or work for any reason?

~~~
saryant
> How is it that someone can't work near an onramp to a major expressway and
> the nearest coffee house be at the next exit or just across a toll bridge?

Solve it the way Houston does: frontage roads.

~~~
AnthonyMouse
You want to have a toll road and a parallel non-toll frontage road? Won't all
the traffic end up on the frontage road to avoid the toll?

Also, "frontage bridge" is probably not cost effective.

~~~
saryant
No, the frontage road is slower and has traffic lights, not to mention cars
moving on and off since the frontage roads are lined with commercial
businesses. The toll roads can go up to 85mph (theoretically, not sure any
allow that yet) while frontage roads rarely go above 55.

I lived in Houston for quite some time, plenty of people out in the suburbs
are willing to pay the toll to avoid traffic and get downtown faster. Houston
is also getting rid of its cash lanes and moving towards EZ-Tag only which
doesn't require drivers to slow down at all.

In Texas it's quite standard to have a highway (toll or not) with a frontage
road. Land isn't exactly scarce here, it's not uncommon to have a highway with
3-6 lanes on either side _and_ a frontage road with another 2-4 lanes on
either side again.

~~~
AnthonyMouse
Oh, I get it now. I looked up the toll amounts in Houston. Compare:

[http://www.panynj.gov/bridges-
tunnels/tolls.html](http://www.panynj.gov/bridges-tunnels/tolls.html)

Also, if you want to see a Bing Maps bug, tell it to give you directions from
Newark, NJ to New York, NY and check the "avoid tolls" box. It spins for a few
seconds and then says "Driving directions are temporarily unavailable." Most
of the other map websites when you check the avoid tolls box it just says it
couldn't avoid the tolls. I had a GPS at one point that would actually plot
the route but it makes a trip that would take less than a half hour instead
take more than 6 hours because to avoid a toll you have to cross the Hudson
River in Albany. Obviously they've had to remove that route from the maps lest
the tolls be raised a little bit more and it become cost effective.

~~~
saryant
Reminds me of the tolls on the Bay Area bridges from when I lived in
California. Definitely don't miss that, or the backup trying to get across the
Carquinez.

------
TallGuyShort
Entirely anecdotal, but I once had a professor invite a person from our
University's patent office to come and explain some things about intellectual
property to us. I was disgusted by how he bragged about the number of law
suits the university had prosecuted, rather than the number of successful
innovations that had been brought to the industry. I think it's great for
university's to drive innovation and adoption, but I must question the motives
of some of the individuals.

~~~
chrismcb
What is there to question? Either their motive is to make money, or it is to
do as much research as possible. But it takes money to do research. One way to
get money is to patent and license what you have so you can continue to
innovate (which is the main reason why we have patents in the first place)

~~~
georgemcbay
Actually the real "main reason" we have patents (in the US) is to avoid people
not sharing trade secrets, which was a real problem with industry in the 1700s
but is not one now.

The justification for them being a way to ensure the "inventor" is compensated
came much later and Thomas Jefferson would likely be spinning in his grave if
he knew how they were used now.

------
eshvk
I find that the article is conflating the interests of the general public with
those of a private company. A lot of money investment goes into research by a
University. It is not clear to me why they shouldn't attempt to monetize it.
At the extreme, yes, this may turn out to become patent trolling. Surely,
there is a middle path where the university gets compensated for the amount of
investment that goes in.

~~~
anaphor
Do you agree or disagree that all software/technology produced by publicly
funded universities should be free (as in freedom)?

~~~
CJefferson
Another (better in my opinion) way of phrasing this question is:

Do you agree/disagree that the government should give more money to
universities, so all research can be free (as in freedom).

I agree with your principle, but tgere is no free lunch. This will lead to
either higher taxes, or less publicly funded research.

~~~
ChuckMcM
Rather than higher taxes I would prefer simply to reallocate the budget.
Rather than giving a billion dollars to the NSA to build a data center in
Utah, give it to Universities to do research and publish it for free.

------
Rizz
What exactly is the problem with patent trolls? Someone made an invention and
wants to profit from it, and not every inventor is good at starting and
running a business. Besides in quite a few business sectors the barriers of
entry are too high to be able to monetize an invention from scratch. You see
the exact same with lawyers, accountants, etc. Companies specialize in those
specific tasks so they can be good at what they do, and other businesses hire
them to simplify their own.

As I see it the problems are that patents are granted on ridiculous things,
every new type of digital device comes with a slew of patents that basically
replicate everything that can be done with a computer, and in biology patents
are granted on DNA simply for finding it in a creature, not for actually
designing it. That is one thing that should be solved, the other thing that
should be fixed are the damages awarded by courts. For a phone or software
product with 10000 features any single one shouldn't be worth much more than a
ten thousandth of the price.

~~~
emiliobumachar
Your second paragraph seems to answer the question posed in the first one. If
patent trolls actually produced nonobvious inventions and infringers were
mostly copiers instead of independent inventors, then patent trolls would not
be much of a problem.

------
throwawaykf
Here I go citing another Lemley paper. I'm afraid I may end up giving the
impression that I agree wih him on things!

"Are Universities Patent Trolls?", Mark Lemley,
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980776](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980776)

