Standing Up to a Dangerous New Breed of Patent Troll
Patent Troll Battle Update: Doubling Down on Project Jengo
Don't the lawyers have opportunity costs?
The Patent scam intro by Austin Meyer
Encourage everyone to check with your firm's General Counsel about this. If you use Latham, or Kirkland or Weil, encourage your GC to reach out and make your views heard. It's despicable that these lawyers are harassing their firms' former and potential clients.
Obviously these firms don't have much power over their ex-attorneys, but a culture that opposed this sort of thing might be a disincentive to strike out as a troll (what if you want to go back to respectable practice some day?). And, more dramatically, a firm that wanted to clear its name could easily volunteer some hours to fighting trolls - that's the sort of thing that could make an immediate difference.
It's not, by itself, necessarily unethical. But it smells fishy and deserves to be dug into.
can you explain this line? I was shocked to read it after your first paragraph and I can't imagine why you wrote it.
But it's deeply alarming, because it's very possible (and hard to confirm) that they do have secret knowledge, so that practice is generally illegal even when it's not unethical.
(it seemed unlikely due to the word "having".)
Then the grind of law school, where they all obsess over class rank, who gets the best internship, who gets the best job. It's a very reputation based industry, where even trying to switch to another firm could get you blackballed if done improperly and without tact.
If a lot of tech people make a big stink about this to the partners, it will quickly make this path dangerous for employees and it will stop fast.
Newegg has showed what happens when these cases actually get fought, and that's something a firm could offer to build popularity and support.
For instance, yelling at the average american for Donald Trump colluding with Russia is both pointless, and detrimental to the average person.
Long time ago certain Philadelphia area law firms decided to represent vegan protesters that created a major mess in a couple of high end restaurants.
A certain flamboyant owner of one the restaurants targeted decided to have a good time applying his version of asymmetric warfare. The next partners from those law firm showed up to wine and dine their clients in the establishment, the establishment(s) politely refused the service to the utter horror of the lawyers.
Needless to say, the foie gras won...
I'm sure a lawyer can "understand" how lawsuits aren't actually
something personal at all, but lawyers really seem to be the _only_
people who "understand" that.
-- Linus Torvalds 
― Richard K. Morgan, Altered Carbon
"When they ask how I died, tell them: still angry."
They fought in massed formations because it actually was the most effective way of fighting with the technology of the time. Infantry troops that strayed too far from their formations were extremely vulnerable to attack by more mobile cavalry troops. It was only in massed formations that they were able to effectively repel cavalry attacks.
See Napoleon's excursion into Russia. See Suvorov's crossing of the Alps.
Wars that happened around the US civil war were suddenly and unexpected deadly which caused all generals (who watch wars between insignificant countries which the US was at the time) to be horrified and come up with new tactics without regard for previous ideas of what was sporting.
1. still represent their client (the vegan protestors) with the same utmost care that one would expect in hiring any legal team?
2. politely close the contractual obligation to represent and refund some or all of their fees?
3. just did a poor job of representation after this incident , but still bill the same hours and other fees?
Edited to correct formatting
To me it sounds like the exact thing that should be happening. I want every lawyer to ask himself or herself "is this cause worth it?". That is how we would know if the lawyers actually believe in their client or if they are there just to make a buck or make a name for themselves.
How would murderers and rapists get a lawyer then? You misunderstand what the profession of lawyer is about.
I know exactly what a profession of lawyer is about. I simply want them to have a skin in the game.
Let me assure you, I have no misunderstanding of what being a lawyer entails. I also have no illusion that it is not an advocacy system.
> Someone must stand and advocate for the murderer, even if guilty.
That's your view. My view is that only those that believe the defendant should advocate on defendants behalf. It is also my view that lawyers need to have skin in the game. Laywers having no skin in the game is the reason why we have bad lawyering.
Let software work under trade secrets, but not patents. Anyone can implement something they think through. It's usually a clear example of a need. That said, I think the types of patent trolling law firms such as this deserve every bit of backlash against them that they get.
The kind the patent trolls use are not innovative in the same way. We need a stricter definition of obvious to one versed in the art, not a ban throughout the field.
Copyright of literary characters is one of the harder ones to define, and perhaps a system more like patents would be more appropriate for them, but that's neither here nor there.
Let's stick to computer science for a while. Imagine I have come up with a sorting algorithm for integers with significantly better time complexity than existing options. I can describe that in any number of programming languages, in natural language, in pictographs, etc. It's a skill that people can learn, or a tool that could be embedded in silicon and used for financial gain. Doesn't that sound more like an invention than a creative work? Shouldn't patents be the best fit?
Don't get me wrong, copyright and patent systems the world over hace significant class, but for us as software engineers to declare that patents shouldn't apply to our work because it is somehow fundamentally different to the other science and engineering disciplines is just arrogance.
The patent office has simply done a lousy job when it comes to software patents.
So, for example, if I came up with a better sorting algorithm, I couldn't patent Luca Sort, but I could patent using a computer to run the Luca Sort algorithm? Or am I misunderstanding?
I'm a bit out of the loop but whilst USA started letting pretty much anything in there seem to have tightened up over the years.
There's a parallel with business methods too. In both cases there been a move towards a middleground - harmonisation. Personally I feel the USA position is far worse and this harmonisation is not good; liberalisation of soft-pat and business method patents on Europe would be a big loss IMO.
That was how the law was until recently. But the supreme court found that "just do it on a computer" no longer counts.
An algorithm isn't math, it's a series of instructions. That is something that is patentable, as long as it involves an inventive step.
A more efficient sorting algorithm that is non-obvious would almost certainly be patentable.
"In mathematics and computer science, an algorithm is a self-contained sequence of actions to be performed. Algorithms can perform calculation, data processing and automated reasoning tasks. "
An algorithm is a mathematical construct that happens to be useful with computers. See the first volume of The Art of Computer Programming for a nice formal definition of algorithm.
Additionally, the algorithm has to be non-trivial, which I take to mean multi-step, for it to be patentable when it's transformed into an operation performed on a general-purpose computer. Simply multiplying by a constant, even when done on a general purpose computer, is not patentable.
Of course consult a lawyer if the 10% figure above it important to your copy - there are lots of details that I don't know.
So if you scrupulously avoided character names and quotes from the original work, you can indeed rewrite the same plot and story arcs in your own words, and not be in conflict with the law.
That will be of no solace when lawyers for the Harry Potter media empire pursue you anyway. Just as you did not break the law in a technical, letter-of-the-law sense, so is it also possible for an entity with great wealth to make someone with lesser wealth miserable, without breaking the law.
It is far easier to rip off a nobody, or someone who is dead. For instance, rewrite Amber without Corwin or Merlin in it; make superficial modifications to all named characters and locations. Maybe you get some fans that never read the original; maybe you get some that did read it, and like your version better.
> [Cars was] Pixar's final independently-produced motion picture before its purchase by Disney in May 2006
Republishing single sentences has previously been found to be a copyright violation, and copyright has been granted on as few as three notes. On the other hand (to pick a recent example), 50 Shades of Grey, originally written as a Twilight fan-fiction (derivative by definition) was never pursued for copyright violation (AFAIK).
It isn't clear to me whether that only covers works in a foreign language that claim to be translations of some other work, or whether it would apply to any foreign-language work that duplicates the plot of an earlier copyrighted work.
If I describe at an abstracted level the working of a C++ program to you and you implement it in Java then you have not copied the work, nor even created a derivative, ergo clean-room implementation being a thing.
We need better understanding of existing definitions so that we don't rehash the same arguments over and over again.
Thus, a new product that's never been made before can infringe an existing patent. The implementation is new but the _idea_ is not.
So no, patents (and their claims) are not "ideas". They are disclosures of how the invention works and they're supposed to be damned specific!
Claim drafting is a specific broadening process - overly broad claims (I'm coming primarily from a UK perspective [ex-professional]; I can't cite chapter and verse of EU/US but consider myself a well informed layman in those areas). Yes claims must be supported by the description (UKPA S.14, EPC Art.84, no idea for USC) and not cover a plurality of inventions but multiple independent claims specifically cover a multitude of implementations of the same invention.
The claims shouldn't cover multiple inventive concepts (called "plurality" in UK terms), as you intimate, but covering multiple _implementations_ of a single inventive concept is kinda the whole point. An example being drug patents [not my former area] where the functional chemical groups will be claimed when paired with many other standard chemical forms. Another example would be for an allowed compression algorithm that could be implemented in silicon as part of a co-processor, or which could be implemented purely in software [to gain a real technical contribution in the inventive part of course].
FWIW your cited case (discussion here is useful https://www.law.cornell.edu/supct/cert/13-298; I only get an abstract at your link; cf. https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...) concerns a different issue entirely, that of claims being made to a financial concept rather than an invention per se, basically the contention upheld is that the claims were to a financial fact that falls within excluded subject matter. It's nothing to do with breadth or multiplicity of implementation.
And, for anyone who believes that algorithms can't be patented, I have a collection of GIF's and MP3's to sell you.
Patents cover implementations, not ideas. Copyright covers "artistic works" like text (files), audio, and video.
To further clarify: The purpose of copyright is to grant control over who can copy it to the creator/owner so that it can't be reproduced or embellished/modified without their permission (which was a big problem at the time serious copyright laws started being written in the US). Exceptions such as fair use exist but that's the gist of it.
Profit was a secondary concern to control believe it or not. The fear being someone would publish a copy of your work with a few damning sentences changed or added here and there with your name attached. Ruining your reputation/career which was much more important to the controlling elite (land owners) at the time than the pittance one might make from sales of their writings/art.
The purpose of patents is disclosure. Don't let anyone state otherwise because the founding fathers were pretty damned clear about it. In exchange for disclosing your invention to the world you're granted a monopoly over who can use or manufacture it.
Patents never have and never will be about something as ambiguous as, "ideas".
Considering that software can only exist as ether it should never have been considered patent-eligible. Sure, you can implement software in an FPGA and claim, "it's hardware now!" Go ahead and patent that particular configuration of an FPGA... Which would be a tangible, physical thing. You should have no right whatsoever to claim a monopoly on the mere concept of such software which is exactly what software patents are.
Scorched earth doesn’t allow for half measures, plus leaving them with any patents would leave them with hope and we can’t have that.
It shouldn't be the next iterative step in the field, that comes naturally in the context, after looking at the latest few interesting papers. It should be a leap, an invention to change the world.
Innovation, research/development/engineering, the process of understanding problems and (partially) solving them itself become a lot better understood as we see fundamental sciences, theoretical limits, progress over time, as we have a better mental toolkit, full of amazingly powerful concepts (information, data, power consumption, space-time trade offs, threat model, probability/statistics/risk/incentives/microeconomics).
Or, of course, make the term shorter and field based (based on the speed of adaptation and change of ideas/technologies/methods in fields), and/or mandate reasonable licencing fees (and licensing frameworks).
Matthew Prince knew what was coming.
The CEO of Cloudflare, an internet security
company and content delivery network
in San Francisco, was behind his desk
when the emails began to trickle in ...
Hesitated a little before posting - am I trying to self-assert by deriding others? But this "novel" article style is some new fashion / cliche which might be interesting to discuss. Let's see what others think.
This is one of the worst scourges of online "journalism" and frankly, I'm tired of having to skip the first few paragraphs of every article because I don't want to read some fucking stupid little story over and over again and want to get to the content. What ever happened to traditional journalism, where the facts are laid out at the top and the details come in later? It seems that "journalism" nowadays can't even get that right. If they want to put a stupid story, at least put it at the end where it belongs, where few or none will read it.
You could say this is a little pet peeve of mine. Thanks for asking.
My rule of thumb is simple: I look at a service and ask myself, is what I see a good, efficient way to deliver the value the service says it delivers? If the answer is no, I know that they don't give a shit about delivering value, they're only there to extract it.
In the concrete example of journalism: inverted pyramid, TL;DR of the facts at the top, no useless prose - those are signs of trying to deliver value. Prose, multi-page articles, ads, auto-playing videos (be it ads or "content") - those are signs they don't give a shit about you.
And yes, some may say that companies seek balance between profitability and value. Sure, maybe companies think they do that. But the choices they make matter. If they're making money literally on wasting my time, the most precious resource any human being has, then I don't want to have anything to do with them.
Which is why I don't read the news. The state of the journalism is so bad here, that casual browsing of comment sections of Reddit and HN is a more efficient way to stay up-to-date on the world events than actually reading the articles.
Sitting behind the desk when the email came in is a harmless exaggeration. It doesn't matter if he was really in bed or at dinner. The dramatic embellishment does little or nothing to change the facts or perceptions in a meaningful way.
If it's ok, we can point to NYT's article on Trump and his aides from some time ago. Aides stumbling in the darkness unable to find light switches type line. Something like that is damaging and deserves proof before writing. Doesn't matter which way you lean, that's dangerous waters since that's been written with an intent to alter perceptions in a meaningful way. To cast a group of people as confused and befuddled.
If this article (the TC cloudflare one) was to write about the patent trolls in a dramatic style that vilified them, that too would be wrong. Something like
"In the photo, Freeman can be seen standing on a bridge with a wry smile as if imagining the future in which the lawyers control the game."
Would be very dangerous and should not be encouraged.
Thankfully this article seems to follow a simple expositional style (somewhat third person narrative of cloudflare's perspective) with a little droplet of drama that just enhances the story rather than manipulating perceptions or reality.
The fact is that most patents for things that are "invented" but entirely virtually don't really deserve patent protection. Rarely is there significant research, expense or tooling to implement. Patents on software, processes and most extension patents are ridiculous in premise. That's what trade secrets are for.
But I agree that it probably sounds cheaper to settle. The same is true with terrorists when it involves hostages, or kidnapping, though. These patent trolls are just corporate terrorists.
Patents (and land mines) are a lot less useful to society.
It seems disingenuous to assume that the way it happened is the only way it could have happened. MAD exchanged the near-certainty of world war for a coin-flip between mostly-peace and total annihilation. We can certainly be happy that we lucked out on the coin-flip, but I don't think it follows that MAD was a policy of pure wisdom and sanity.
The real concern is the ascendance of leaders who don't care if they die, or whose religion assures them that they'll come out on the winning side of Armageddon. But the analogies with patent law run out of steam well before reaching that point.
Global trade back then was like our modern dot-com boom, but with real money and merchandise. People were sure it would change everything. Turned out not so much. As long as the lives of the old men who ran the world weren't personally at risk, they had no reason not to go to war with each other. Nukes, not trade, were what finally changed that calculation.
It is, in fact, the poster child for survivorship bias!
We have also come extremely close to having nuclear war, on multiple occasions.
We have less armed conflicts and their victims now than during the MAD years of the cold war---perhaps that's a better piece of evidence that something other than nuclear weapons is helping us keep the peace?
...Or at least, not yet.
No, we have not.
These lawyers are doing great work by creating a market that allows innovators to profit from their work even if they don't have the capital to commercialize their innovations themselves.
The incumbents can cry about this but even if they have never sued anyone for infringement their valuations are still based on their portfolios and they still use the threat to suppress competition and when they are over a barrel for cash they will monetize those patents either themselves or by selling to another "troll."
Individual software engineers who invent new technologies deserve to get compensated the same as anyone else for their inventions.
Why on earth aren't non-practicing entity patent lawsuits outlawed? Seems like a no-brainer, and I can't imagine these firms being big enough to have any seriously lobbying power.
The NPE category includes universities and researchers. Many inventions can't be brought to market without significant capital, and not all inventors are interested in commercializing their inventions themselves. Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.
I completely disagree. You're now squatting on a useful technique and preventing someone else from using it even if they invented it in parallel without your help. That is extremely unethical.
Why should the manufacturer have the incentive to fund parallel invention efforts to avoid paying such licensing fees? What if the upfront capital availability for such R&D funds created differential overhead profiles across industries, such that massive up-front R&D costs were now required in order to keep an acceptable op-ex profile?
This is a bit more nuanced than 'you aren't using your patent, you're clearly a vampire'.
I agree btw
Good point. Aren't they more likely to develop patents rather than buy them, though? Or are there more edge cases missing?
Or another idea, make patents non transferrable.
There are two major classes of problems as I see it:
(1) Many patents are granted but can be invalidated ("weak patents") if someone is willing to invest in the time in taking the patent holder to court.
(2) Patent fights are / can be extremely expensive, so the threat of litigation makes for great extortion material. If patent threat victims could petition the US PTO with evidence of prior art that the PTO missed during the original grant (bypassing the court), this would put a significant dent in the threat that NPEs use and would benefit both the industry that the victim is in and avoids paying 2x attorney fees in litigation.
Most custom-written software is actually licensed, not sold (since the contractor is not an employee). It makes no real difference.
That seems utterly stupid. Universities and researchers by definition are constantly practicing, what's what academia is all about.
The problem is when patents last too long or thing are patented that are obvious and should have failed that criteria.
This. Particularly in software, if someone who doesn't know about the patent comes up with the idea independently, that should be prima facie evidence that the patent doesn't meet the criteria of not being obvious.
Of course, the lack of knowledge of the patent may be subject to challenge, but this would eliminate a lot of ridiculous patents.
For example after 5 years the renewal fees could relate to gross revenue from any device including that patent, or actual licensing fees. I like the former as it seems harder to work around [though you'll get components sold as products to companies residing in the same factory, I guess] and means that patents that don't contribute considerably to revenue will be dropped. This means people can still profit from useful inventions.
You could also underpin renewal fees with an exponentially growing base cost.
If you have, standard patent rules
However, if a university invents something, it can sell that patent. It won't itself commercialise it. Therefore they are a non-practising entity, but you can see how that encourages innovation.
If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.
A better solution would be to
* do better examination of patents so that BS ones don't get issued
* allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee
* punish patent applicants who know about, or should have known about prior art
* if a patent is invalidated, force them to return all of the money they were paid for licenses and/or fees
See the lawsuits around the "Happy Birthday" song for similar problems:
IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof.
How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions.
i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees.
When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.
I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.
I feel that this effectively says that nobody should be able to license their patent: they would need to hold all of their license fees in reserve against a lawsuit that could happen at any time between the patent grant and the end of the legal system.
That or buy insurance which will, no doubt be priced well above what a sole inventor could afford.
The net effect would be to accelerate the concentration of patent portfolios.
But the invalidation chance will not be uniform, and the risk assessment done by insurance companies will bring the right kind of market forces to bear against frivolous patents.
And even aside from the economic impact, it's quite simply the right thing to do. If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.
Because, under the proposal, those license fees can be recovered at any time. Forever. You will never be able to go uninsured for any patent you ever granted. As your life wears on, regardless of whether you need the insurance or not, your net value is wound down.
Again, this means that only large companies will be willing to take the chance, because they can spread that risk across a portfolio and afford to defend it. A sole inventor cannot. They might obtain a patent, but under this scheme, they won't license it -- they'll just sell it. And it's just going to be to a large company, a patent broker or a patent troll.
> If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.
I agree, and courts may be prepared to grant remedies in some cases.
But my point is that it is also problematic to tilt the field still further against sole inventors. That increases the proportion of giant companies and patent trolls, which makes the net situation worse, not better.
Forever is too long. It should only be for the life of the patent. That might be a nice incentive to open up the conversation to reducing the life of some patents.
The patent in this case is 18 years old. Some claim things are stricter now, others don't.
> allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee
This is possible and the article mentions cloudflare is doing it.
President Obama tried to reform patent trolls but Mitch McConell stopped that. Most of the patent troll shell corp are in Eastern Texas.
If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.
Or you could sell the patent to an existing supplier of airline parts (and I'm sure there are plenty) which can then commercialize it. Or as a last resort if none of the existing players are interested in buying your patent, you could raise funding and open up a shop that manufacturers and sells nosecones, and then sue everyone for lost sales.
Ultimately I think it's much more useful to protect entities that actually make products and give them incentives to bring innovative products to market than it is to protect entities that simply want to invent things and extract fees from others. To me it would be a perfectly acceptable compromise.
>Ultimately I think it's much more useful to protect entities that actually make products
I've said this before but it keeps ringing true. Entrepreneurial types in software are against patents because its not what they're good at. There's never any more substance behind the opposition than that.
But the counter is that if you're offering the technology for sale, then lack of sales is an actual loss. The thieves could have paid your price, but instead chose to steal it.
At that point, penalties, etc. apply,
I am not a lawyer, of course, but I dropped out of law school late enough to realise that you should always consult one before forming opinions about what is and isn't legally plausible.
Thanks for the insight either way, great thought.
Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.
My solution is to cap the number of patents granted every year to, say, 1000. Patents would be ranked from least to most obvious and actual prior art investigation would take place (because the number is manageable). The ones below the cap would be unpatentable.
Say Johnny Evilguy digs up your widget from the USPTO database from a Tor connection and then re-implements it. Poof, your patent is dead, and you can't prove he read it.
Beyond that, over time things that were novel are no longer novel as the direction of technical development changes, so the timing would be important as well.
Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.
The easiest way to prove obviousness is to find printed publications that describe the claimed invention. For obviousness, multiple printed publications can be combined as long as they are in a related field and there would be some kind of motivation for one of ordinary skill in the art to combine what they disclose.
That's the incentive given to the inventor. In exchange society is supposed to eventually get access to an idea that anyone can make use of.
There's a huge breakdown with this system though--the majority of software patents aren't written in a way that would allow someone to reproduce them. Or as you've pointed out they're so obvious that they would have existed without the patent monopoly grant.
If society isn't benefiting, there's no point.
The obvious next steps you are talking about are usually only obvious in hindsight.
Innovation is also driven by people trying to work around patents or otherwise discover alternative ways to solve problems.
I didn't notice the Amazon One-Click patent slowing innovation down while it was still valid.
The law patch that shuts down patent trolls will have no effect on software patents, and vice-versa.
Software is great because it has no cost to copy, so when someone creates a new algorithm it can be put in use everywhere applicable rapidly. This pace of advancement is so awesomely powerful that many do not appreciate how much positive change it can bring or how different the world was just a few years ago. An advancement in algorithms becomes and advancement for humanity pretty quickly.
Software patents are the exact opposite of this.
I will take it one step further and claim that patents on the whole are bad. I don't think they do what most Americans think they do in terms of incentivizing inventors or protecting small business.
EDIT - Also software is already covered by copyright, why does this IP deserve two kinds of protection and most other IP gets 1 or 0 kinds of protection.
The usual argument for this separation is that "software patents are just math", but then aren't hardware patents are just physics (which, ultimately, is also just math)?
It feels like there's no clear line here, and whatever benefits, if any, are to be derived from patents, they apply equally to either side of it. Basically, either it's a net benefit to society, and then both kinds are valid; or it's a net drain on society, and then we should just get rid of them altogether. Or maybe set the bar for what is patentable much higher wrt to novelty and value (but, again whether it's hardware or software feels irrelevant).
Some people feel that since there is no copying cost, software favors the little guy more than with physical goods, so normal patent protection doesn't provide an benefit. These people claim that a big big evil corporation could start making a million of their widget per month and out compete them, but with software this cannot happen per their arguments. I think these people acknowledge that both physical and software patents get abused and are imperfect but feel that physical patents provide enough gain to offset their downsides.
I disagree with those people completely. I am unaware of ANY actual evidence that patents help.
I am aware of actual evidence that patents help, if enabling small companies to withstand pressure from behemoth companies is considered help.
An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.
As long as they remain secret they have protection, but the very act of outing them makes them not secret. I am aware of very few successful suits defending trade secrets.
Trade secrets cases are lost when the owner is claiming something is a trade secret when it doesn't meet the legal definition of a trade secret.
Trade secrets are useful for long-lived secrets like the formula for Coca-cola. But if someone independently develops the same thing you are trying to keep secret too bad.
Also, if the secret accidentally gets out (w/o theft) the trade secret enters the public domain.
It probably doesn't matter at all.
You copyright your source code. You patent your engineering innovations.
The ease of duplicating software based inventions is an argument why patents are important for such inventions.
Many tech startup companies that would have been steam rolled by IBM, and friends, have been protected by their patent portfolios.
You want to patent sticky scrolling? Then put the entire source code required for it into the patent.
You want to patent your AI tech? Then put the entire code into the patent.
Additionally, we should make sure that trade secrets are not protected in any way, and decompiling code to find out what it does, and replicate it, is legal, as long as it doesn’t violate patents.
These measures would provide reasonable measures for companies wanting to protect their secret sauce, but also ensure that this technology is all public and available for research, and that after a few years it becomes available to competitors.
Otherwise we’ll end up with Google, Amazon, etc piling up knowledge and patents, without ever giving anything back to society.
And if you now try to argue with Google being "good", please take a look at ReCaptcha, where they take captcha associations given by users, but never publish the resulting recognition data (which then could be used by open source projects or researchers), or look at Android, where Google has now closed everything they could.
That's a little extreme. Trade secrets still need protection from outright theft (e.g. Waymo's allegations against Lewandowski) by those that get them as a part of their job. Similarly, trade secrets acquired through any other illegal act (breaking and entering, hacking, corporate espionage, etc) should also be protected. I agree that trade secrets arrived at through reverse engineering should be okay, but that's very different from saying that they should receive protection in any way.
If you protect trade secrets, companies will never release them to the public – as in the Waymo case.
Keeping something important as a trade secret has enough risk already.
That’s what should be provided with patents, as I said in the original comment.
Patents are about telling you how to do the work, not about doing it for you.
Some do. But patents already have an enablement requirement. This means that they must teach in sufficient detail for a person skilled in the art to carry out the claimed invention. That's what the whole Detailed description of the invention section is. Skip the claims and read the description. You might want the code; me, I want the design doc. That section should be clear and if it isn't, chances are it isn't enabling.
If you don't enable, you'll probably get an office action (rejection) and if you don't (lazy examiner), you'll definitely lose when the patent gets challenged.
Seaborg patented element 95. That's pretty broad. However, people aren't saying get rid of manufacturing utility patents because folks are patenting elements.
For SW patents, if your invention uses machine learning but is not inventing a new kind of machine learning, there is no need to describe how the ML package works. It is a black box.
Similarly, a gadget patent does not need to describe the metallurgy necessary to make aluminum sheet metal or how to make plastic.
The same standard applies to biotech patents. Though, some biotech patents require proof or disclosure of experimental results (e.g., gene sequence listings, etc.) this is because some bio inventions would be very difficult to reproduce without the extra information.
Trade secrets are not protected from independent discovery. Reverse engineering is generally fine, though it may violate your license or the DCMA depending on the details.
Software patents are pointless and the only reason we still have them is it takes Congress forever to catch up with innovation. Patent trolls know this and are capitalizing on the period where they can shake down others while they still can.
Aggressive Woman: You need to watch your step, my husband is a criminal lawyer
Woman she was trying to intimidate: (deadpans) Aren't they all ?
Welcome to Massachusetts.
They should take it a step further and apply the Thiel strategy of finding people with grievances against the founders of the patent troll and support individual lawsuits against them.
At least half of the problem is the "American Rule" of rarely shifting legal fees, which if you dig a bit you will find is of recent vintage. Back in time, for example in Massachusetts, there actually is a law for shifting legal fees as costs as a matter of course; the catch is that the fee is very low (even at the time it was enacted) of about $2.50 per case, which partly reflects inflation and partly antagonism toward legal fees.
I wonder whether a compromise solution would be to require a deposit for costs of a percentage of the demand for recovery like 2.5% of $34mm, which post-suit you could figure how to divvy up. That would make the demand more meaningful, and provide a tangible incentive to the plaintiff to think a little harder about pricing low-probability lottery-ticket-type litigation.
That's not new. It's exactly what Intellectual Ventures was (or is?) doing.
Also, the patent applies the same way to almost any proxy server (ICAP and similar https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Pr...)
Certainly, experienced patent litigators are very unlikely to file a case that would be considered in bad faith.
I've wondered if one way to chip away at them, would be to make Patents non-transferable. This would preserve the intent, to protect the inventors R&D costs, but not allow the patents to be exploited by trolls. This would have the effect of devaluing patents themselves, but it's not clear that patents were ever intended to carry direct value rather they exist to grant temporary monopolies for the inventor to earn back the investment.
Patents are basically assets, and they are transferable.
Making then non-transferable is not a solution at all. Basically law firms can represent patent owners.
System needs different validity for patents, which should be set after an evaluation, and can be challenged at the courts.
Putting all patents in the same basket is plain stupid.
I think it would be more accurate to say that they are fighting back more creatively than you might think they could at first glance.
Good point. Cloudflare should patent them!