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Trolls Are Real (eff.org)
306 points by lelf 56 days ago | hide | past | web | favorite | 93 comments



We've been targeted by a patent troll and as a small business (less than 5 employees) it absolutely shook us to our core. Thankfully a lawyer took us up pro bono and the trolls backed off. I'm saddened to think of all the businesses that weren't as lucky. This needs to be fixed.


why not provide some details? at least how you got in touch with the nice lawyer, that might help others.


Sure. All I can recommend is to contact the EFF. They had some lawyers willing to work with us. The lawyer who did end up working with us was from California and specialized in patent trolls. I'm outside the office right now so I can't tell you specifically who it was

You may also be able to strike a deal with the patent trolls. We were able to take them down to 40k from 100k. That was still ridiculous for us but if you're paying a lawyer or paying the troll it's all the same to a business working on thin margins. We heard stories that they would accept as little as 10k.

For what it's worth the patent troll that targeted us is no longer operating under their original name. They were taken down by the EFF representing a vape company if I remember right.


> but if you're paying a lawyer or paying the troll it's all the same to a business working on thin margins

and this is why patent trolls exist


Reference: Speech given by USPTO Director Andre Iancu to the Eastern District of Texas Bar Association https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-pate...


Yikes, thats pretty bad.

In a single brush he dismisses those small business horror stories as “fairy tails”. Not to get to political, but the with the current us political environment it’s not entirely surprising.

Also using last century examples ( IBM and 3com ) is a little strange.


It is political. Andrei Iancu did not appear from thin air (nor did Ajit Pai), they are political appointees.

Maybe we don't discuss the proximate cause of the problem for some strategic reason, I don't know. But when we don't, we spiral into unproductive discussions about the innate morality of all patents. Maybe that's good but isn't going to solve anything in the foreseeable future.

And for the record, my biggest worry too is a fatal patent shakedown for my unlaunched startup. Actually I'm surprised the trolls haven't started selling "insurance" given the climate of fear they've created.


Yes it's amazing that "Intellectual Ventures" and "Myhrvold" don't appear at all in that speech.


That Iancu would travel to the Eastern District of Texas to deliver that speech amounts to trolling of a different variety.


Related: Apple closing physical stores to avoid litigation in the district, thread below. https://news.ycombinator.com/item?id=19226355


I guess that he's playing to the audience.

Maybe some of those attorneys are major Trump supporters.

Or maybe it's just generic hate for plaintiffs' firms. Which primarily support Democrats.


Edit: OK, I'm wrong about plaintiffs' firms. I see that it's trial lawyers, who have traditionally supported Democrats, who have pressed Senate Democrats to oppose legislation to control patent trolls. And that it's Republicans who have spearheaded such legislation.

So why, then, is a Trump appointee playing to patent trolls in the audience in East Texas?


The thing about plaintiffs’ firms is over simplistic. Republicans oppose plaintiffs firms that file consumer lawsuits. Patents by contrast are B2B litigation, and the factions there are different. The anti-patent folks are largely Internet tech companies, who usually support Democrats. Many more “establishment” companies, by contrast, are not so strongly Democrat aligned, are relatively pro-patent. Apple, DuPont, Ford, General Electric, IBM, Microsoft, and Pfizer all opposed further watering down of the patent system after the AIA was passed in 2013.


Thanks. I'm mostly familiar with plaintiffs firms doing public-interest class tort and antitrust. And there, memorial photos with Clinton and Obama were the norm.


Patent trolling has been around well before trump came into office. Id argue the two have very little to do with each other.

It's not like America just went bad suddenly when trump got elected. We've had issues like this for a very long time. It's just easier to see the corruption now when the guy in charge isn't pretending to be nice like all the other ones.


I agree.

Upon reflection, it's more that Andrei Iancu is being quoted out of context. The featured quote is:

> "Remarkably, in what I believe amounts to Orwellian ‘doublespeak,’ those who’ve been advancing the patent troll narrative argue that they do so because they are actually pro-innovation. That by their highlighting, relentlessly, the dangers in the patent system, they actually encourage innovation. Right!"


The patent system was broken from the start. The incentives are all wrong, as USPTO officers get paid more, the more patents they approve. It's like paying fishermen for the fish they didn't catch.


The are paid on the GS salary scale. Examiners have a quota of "counts" where each count corresponds to some action they take during examination.

It doesn't make any difference to them if they allow or reject patents. The more rounds of prosecution it takes means more counts for the examiner. Each round after the first requires additional fees from the applicant.


Each additional round only requires additional fees if the examiner’s actions were proper. If the applicant can argue they weren’t, then they don’t pay.


This isn't how it works in the UK (or elsewhere AFAIK), so do you consider it's only the USPTO that's broken?

If it were differently administered would you be fine with it?

If the UKIPO is granting invalid patents the checks are that anyone can petition the comptroller to check the validity of a patent, anyone can submit prior art for the examiner's consideration. Then, a patent that's invalid should be useless in court and just accrue the holder their own, and the defendants costs.

In practice companies go for invalid patents because they can lawyer their way out, but that's the court system that's broken then.


> paying fishermen for the fish they didn't catch.

TBH that doesn't sound like an awful bad idea.


What do you mean? Why?


Ocean fish are a well-known example of the tragedy of the commons, where too many independent fishermen will wipe out the local fish population, leading to less fish for everybody. This is traditionally dealt with by

(1) Informal norms among the fishermen as to how much fishing you should do. This system is not resilient to immigrants, who don't know the local norms (and may, not unreasonably, feel that the local norms already allot all of the fish to established fishermen), so fishing communities are often fiercely resistant to newcomers.

(2) Legal limits on how much fish you can catch. The idea is that an authority will determine the total quantity of fish to be harvested, and then allot rights to harvest smaller quantities than that piecemeal. Under this system, taking fish without an appropriate license is a crime.

You could move to a system more like our agricultural subsidies (paying people for the pigs they didn't raise), by giving money to anyone who owns a fishing trawler but didn't bring in any fish. But that seems obviously insane compared to the permitting system.


(1) Informal norms among the fishermen as to how much fishing you should do. This system is not resilient to immigrants, who don't know the local norms (and may, not unreasonably, feel that the local norms already allot all of the fish to established fishermen), so fishing communities are often fiercely resistant to newcomers.

"Informal" cultural norms operate as laws on a small scale, maybe a pre-industrial community and a lake (or grazing commons, like various feudal Europe examples). Any scale that implies depleting oceanic fish is a way to big for this. I would be surprised if any modern era conventions applied to ocean fishing for migrants to have any influence at all.


The ocean is all connected, but fish don't magically equalize their distribution by the law of fish gravity. If you double the number of ocean fishermen working out of Galveston, the supply of fish near Galveston will suffer.

Cultural norms generally operate on a small group of people. In the modern day, it doesn't take very many people to catch a ridiculous number of fish. So depleting ocean fish is better handled by cultural norms now than it was 500 years ago, when catching a lot of fish meant fielding a lot of boats.


> If you double the number of ocean fishermen working out of Galveston, the supply of fish near Galveston will suffer.

That greatly depends on the type of fish and is not generally true. Many species of fish spend different parts of their lives at different locations. Tuna, salmon and many other pelagic fish travel pretty big distances.


Interesting, but this whole digression is patently off-topic.


The parent might be refering to the overfishing that happens in many parts of the world. That leads to destruction of the local ecosystem, and also the future livelihoods of the fishermen themselves.

The US government already does something similar for corn. Farmers are paid to not plant it to control market price.


Okay, it makes sense to say we should prevent overfishing. That doesn’t mean it makes any sense to pay fishermen for the fish they don’t catch. That’s a gibberish sentence. Why should a professional fisherman get paid for the fish he doesn’t catch? Shouldn’t I also get paid for all the fish I don’t catch (which is every fish that has ever existed)? And who is doing the paying?


That’s not true. Examiners are in a GS scale, with overtime pay and a small bonus, none of which are based on how many patents they approve.


True, but whether the examiners or the USPTO get that money is totally beside the point.


Incentives to make yourself more money are much stronger than incentives to make the government more money. And as others have mentioned, USPTO gets more money the more filings they require.


Incentives for employee (examiner) and employer (USPTO) are mostly aligned. I see no point in arguing against that.


Well, to be fair they also get paid for each patent they reject... so like a fisherman who gets paid each time he casts a line, they get paid for office actions.

Of course there are complexities to both the approvals and rejections (office actions), which have to be justified and potential reviews by other examiners. So it may be broken, but not the way you imply.


After a patent is approved, there will be more fees down the line, such as for amending or maintaining the patent. Therefore, the USPTO will make more money from an approved patent than a rejected patent.


But the examiner doesn’t get that money, like you implied.


Post issuance maintenance fees are a good thing.

They encourage patent owners to abandon patents earlier than their maximum term (20 years after filing) if they don't want them any more.


But that doesn't change the fact that the original incentives for the USPTO are wrong.


1- Why?

2- Isn’t having to pay troll deterrent?

3- How would you fix it?


Do you have a source for what the incentives are and how patent examiners are being paid? Do you know for a fact that it's per-approval, rather than per-application, or salaried with small commissions, or plain salaried?

Assuming you're right, how would you fix the incentives?


Not even close to how it works.


Thanks, that’s kinda what I figured.


That’s not even close to true.


Haven’t been affected by this issue but I’m dreading the future where a lot of hard work building my company is wiped out by people like this. Fairly demotivating as an individual and terrible for innovation based economies.


100% this. It’s exactly one of the biggest of my concerns at the idea of starting a software company.


Of course lobbyists are behind the weakening of patent laws. Something really has to be done about the lobbying problem we have in this country.


Patents are meant to protect you from bigger companies muscling you out. They have however found a loophole by acquiring as many patents as possible hoping that will scare you. That strategy however doesnt help against trolls. So they lobby to weaken the patent system to make it easier to steal ideas from small startups.


Patents aren't "meant to protect you from bigger companies muscling you out".

That's a common story told to justify them, but US patents are meant to do what the US Constitution says about them: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Many people who do small startups think patents are a net negative for small startups.


Their investors sure like them though.

Patents are business assets that can be very important for valuation during exits or funding rounds.

In most cases, due diligence auditors are going to want to see a company's patent portfolio. A bad or weak portfolio may not tank the deal, but it certainly impacts valuation.

I have seen this first hand, if BigCo is choosing between two or more companies to acquire, they are more likely to select the one with the stronger patent portfolio.

edit-to-add: trademarks are very important too -- and often overlooked by startups until it is too late. Trademark trolls are real too.


Investors like patents and trademarks in the "better to have some than have none" sense. That can be still be true even when the patent system is a net minus for small startups.

Source: filed a lot of patents and trademarks in my small startups, they were useful at exit, still hate patents with a passion.


This may mean it's a good time to re-read the history of SCO and their patent claims on Linux:

https://en.wikipedia.org/wiki/SCO%E2%80%93Linux_disputes


That was copyright not patents.


Thanks for the correction! I'll likely leave the comment to stand as-is, since perhaps it's still vaguely relevant, but I appreciate the note.


Re Patents (Just get rid of them entirely!)

Please prove me wrong that they aren't effective and are a myth.

Processes of how to do things often come down to engineering and math; if given the same goal a solution is likely to be similar at it's core as for any given problem there is probably an ideal bound and variations of effort will produce similar results or results optimized slightly to different circumstances.

(Yes, this is copied from a different post I made last night with respect to all sorts of intellectual property issues.)


How would you incentivize drug research without patents?


Government funded. Drug research is an obvious benefit to every single person.


Without patents, there's zero incentive to innovate. Let someone else spend the money innovating, and then copy them exactly when their done. You don't get rewarded for innovation. You get rewarded for execution.


Patents going back to 7 years instead of multi generational would fix most everything.


True. I recently got an email from someone claiming they had reason to believe I was infringing on... I wrote back "I believe you have no reason"


Can't even access the article with javascript turned off.


Turn JavaScript on.


> ... patent number 10 million and celebrated that milestone with a signing ceremony at the White House with President Trump ...

Aha! Now we know why it was extra-important to pluck #10,000,000 out of normal order.

https://patentlyo.com/patent/2018/06/patent-no-10000000.html

https://patentlyo.com/patent/2018/06/patent-no-10000000.html...


Patent trolls would be OK if they couldn’t go after small companies. What’s worse is they prioritize small companies. In fact, buying patents and then suing makes IP from fundamentally valuable. I am generally OK with that, but not when it discourages startup ecosystems which are a huge source of real innovation.

What I’d love to see would be the democrat party to refocus their policies to shift towards small business against large corporations. Re-invent the American Dream. This could tie in well with the green new deal. Rather than talk about jobs, talk about the tens of thousands of small businesses.


[flagged]


Note that “Democrat Party” is a slur created by Republicans. The name of the party is the Democratic Party.


[flagged]


Come on dude, try to write things that might be believed. Limbaugh has been bragging for decades about inventing this clever phrase that annoys Democratics.


[flagged]


I'm an anarchist who listens to both, albeit not exclusively. They both have their helpings of BS, but they both entertain me. I don't particularly care whether you've ever listened to Limbaugh, but I know which way I'd bet...

"Conservatives" complaining about "stereotyping" somehow seem more pathetic than liberals doing the same. Don't assume anyone cares about your feelings. Weren't you broadly opining about "sticks and stones" in the immediately preceding post?


“Slur” is a matter of intent by the user. It fits.


No, it doesn't.

Saying that somebody is "a rude boy" doesn't make "rude" a slur.


“an insulting or disparaging remark or innuendo”

Pretty sure it does!


Words have meaning not captured in one line of a dictionary definition.

If you're compiling a list of slurs, do "rude" and "Democrat" come to mind first? Or is it words that you might put asterisks in?


You're thinking of the more specific terms "racial slur" or "ethnic slur" and not the generic word "slur".


[flagged]


As someone who seemed to be trying to make a point independent of either party, I thought you might appreciate knowing that you were, presumably inadvertently, using a term coined by one of them to attack the other.

I guess not. Use whatever words you like, just be aware of what they’ll convey.


No one is saying you have to remove slurs from your vocabulary. You should just limit the use of insulting language to when you intend to insult people.

Feel free to use "Democrat party" when your intention is to be insulting. When you aren't trying to be insulting, that phrase is poor communication.


[flagged]


The meaning of the word has nothing to do with successfully offending the target, and I’m pretty sure the FCC doesn’t have any general rule against slurs.

And yes, it sees a lot of use. A testament to the effectiveness of the Republican propaganda machine.


Socialist? I've never seen the Democratic Party advocate seizure of the means of production by workers. Medicare expansion or state-funded education is by comparison more properly called "social democracy" or even "state capitalism."


Not equal apparently : https://youtu.be/mICxKmCjF-4


[flagged]


> We are all responsible for breaking our country. Every. Single. One. Of. Us.

That's not how it works. Unless all Americans are responsible for an American barn catching fire because the American owner tossed an American cigarette butt inside.

No, politics get ruined by politicians. And politicians are put there by some of the people. Not all of the people. I know you'd like to lessen the burden on your shoulders and try to spread the blame also towards the people who voted against them. But if you voted for the current crop of politicians ruling your country you (and all others casting the same vote) are directly responsible for the state it's in.

Being ashamed of that and diverting the blame just implies you accept you voted for the wrong people.


[flagged]


No, I'm saying that every issue caused by the current administration has its voters at the root of it. Not all voters.

And you have to admit that the heavy-handed way the current administration had been conducting its business is a new low. Or at least a local minimum.


Republicans and Democrats most of all. If voters would stop voting for them, we'd have better people in office.


We have a first past the post plurality voting system. In this system the stable state is 2 parties. Any more create a spoiler effect [1].

Fix that and 3rd parties would bloom.

Any wishing for 3rd party+ saving the people without a change to the rules is fantasy.

[1] https://en.wikipedia.org/wiki/Spoiler_effect


This is the most rational thing I’ve read on this thread. Agree 1000%.


Trolls are definitely real, and we need reforms, particularly at the PTO, to cut down on the number of bad patents. At the same time, there are companies who make lots of money free riding on other peoples’ IP. And that’s also a huge problem. For example, YouTube became a multi-billion business ripping off content companies. YouTube doesn’t create a product-it’s just a middle man for content produced by other people. YouTube makes more money by weakening the protections available to content producers (and unsurprisingly Google is at the forefront for watering down copyright law). Huawei built a business ripping off the designs of Cisco and Juniper, and now are using their leverage to try and compete with those companies in the US.

That problem becomes particularly acute as the US switches more to producing IP. The EFF’s myopia is to fail to realize that a balance needs to be struck. A world where you can release a chip or a drug or a jet engine and have a Chinese company immediately copy it and sell a competitor at a fraction of the price with no consequences is one that’s not good for Silicon Valley in the long run. Our competitors overseas can recreate YouTube much more easily than they can recreate Hollywood. India still hasn’t been able to create a jet engine domestically, even though HUL has been able to design and manufacture most of the rest of a jet fighter.


> A world where you can release a chip or a drug or a jet engine and have a Chinese company immediately copy it and sell a competitor at a fraction of the price with no consequences is one that’s not good for Silicon Valley in the long run.

I have no problem living in a world where the government is unable to exact violence against people for copying data.

This seems to me to be an entirely artificial crime whose existence has been important for humanity so far, but which is now a human rights affront.


I genuinely do not understand your position.

Let's say a U.S. company spends a billion dollars creating a chip design. You think that it should not be illegal for other companies to steal said chip design and manufacture it because it is just "copying data?" So the company that invested to design has to compete with a company that stole it, and therefore can price it lower because they don't have to recoup that investment?

Just because something can be copied more easily now than when it required a bunch of photocopying doesn't mean it isn't (or shouldn't be) a crime.


Let's say I spend $300 and countless hours growing an amazing garden of especially fragrant plants. Do you honestly think it should not be illegal for some random guy on the street to walk by and steal my lovely-smelling air by literally 'taking' a sniff? He put absolutely no effort into making that air as fragrant as it is, but gets to reap all the benefit, while I'm stuck paying the fertilizer and gardening bills.

I can understand (though I disagree with) the pragmatic arguments you could make for copyright and patents for incentivizing creation. I cannot understand your insistence on pretending that copying information is actually stealing. You can't even plead technical legal truth, as they are absolutely not conflated legally. But when push comes to shove, this argument seems to reach for some 'moral' truth that one 'deserves' to be compensated for one's labor proportionately to one's investment, which is ultimately applied no where else in our society, since it's just the labor theory of value in a funny wig.

Let's say a mother spends tens of thousands and countless hours raising a child who never calls or supports her in her old age. Is this illegal? Our society depends much more crucially on the free labor of mothers and fathers than on the R&D of any chip company, even in purely economic terms. Pragmatically, one could say that people just don't seem to need as many guarantees/incentives to have kids as they do to innovate, so it's more important to have state incentives for the latter, and a temporary monopoly on usage is a sufficiently time-tested incentive. I can sort-of understand that argument. What I can't do, is somehow pretend that anyone should care more about the efforts of innovation going unrewarded than of any of the other crucial efforts essential to our society, for which no one is ever guaranteed a dime.


Your garden analogy is poor for several reasons.

the primary reason is that it is not remotely comparable to the theft of trade secrets in my example. If the gardener put their garden in a greenhouse and put a padlock on the door, then the scenario would be more comparable, but then it wouldn't make a lot of sense to say it should "obviously" be legal for someone to break in and take a sniff, because it's just a sniff, right?

Your parent/child analogy is poor because you are just describing an investment that doesn't pay off for any number of reasons, not that somebody stole the value from you. Perhaps more comparable would be if a parent raised a child until adulthood, at which point someone stole the young adult, brainwashed them to think they were the parents, and the child visited the fake parents in their old age.

That sounds far fetched, but it is far more comparable to the scenario I introduced of someone stealing a company's intellectual property and profiting off of it.


That’s the tail wagging the dog. People point to restrictions on individuals, like preventing people from copying songs for friends, but the dog here is business models like Youtube’s or Huawei’s built on free riding. The human rights angle doesn’t have the same weight when you’re talking about profit-seeking business practices.


What changed it from being important to being a human rights affront?


The evolution of the internet and remix culture.

Things are different now with respect to IP than they were when Tesla was filing patents. Don't you think?


EFF advocates for civil liberties, not for Silicon Valley or the US.

But for Silicon Valley and US, it's debatable whether trying to maintain continued dominance through stronger IP is a good bet. China and elsewhere are switching to producing more IP faster, even if starting far behind. It's not a simple or binary choice, but consider whether over the next decades it will be more advantageous to make it easier for US firms to copy Chinese firms, or to make it harder for Chinese firms to copy US firms? I'm in favor of whatever lessens potential for non-digital catastrophic conflict.


> EFF advocates for civil liberties, not for Silicon Valley or the US.

Patents are business regulation. There is a civil liberties element to business regulation, but it’s well accepted that civil liberties concerns are attenuated when you’re talking about business conduct.

There are lots of regulations that hurt small businesses and have a civil liberties angle, such as overly burdensome occupational licensing. But you don’t see ACLU spending a lot of effort on those as a top priority. EFF spends time on patent far disproportionate to the civil liberties impact.

As to your second point. Copying is bad and destroys innovation. Look at what’s happened to PCs. The vast majority of PC makers, Lenovo, Asus, etc., produce no innovation. They release fungible machines at cut rate margins that leave no room for R&D. The only companies innovating are companies like Apple, who have huge IP moats. Copyright protecting iOS and MacOS. Patents protecting things like MacBook touch pads. Trademark protecting the brand. Trade secrets protecting their vertically integrated manufacturing process.


I'm curious what makes you think EFF spends time on patent far disproportionate to the civil liberties impact? Out of their https://www.eff.org/about/staff of 80+ it looks like they have 2 attorneys and one analyst that might be mostly working on patent. How much time would be proportionate? Assuming the current time spent is disproportionate, why do you think they've allocated time in that way?

I haven't followed closely, but on why ACLU might spend less time on business regulations that have a civil liberties angle than they might: they don't ignore completely, but they likely have mixed opinions on extent to which such regulation protects workers or consumers, and being relatively liberal, are skeptical of deregulation. So market libertarian civil liberties entities like IJ are the ones dedicating lots of their time to business regulation with a civil liberties angle...and as far as I know ignore IP altogether, perhaps because to them all property is sacrosanct.

On "copying is bad and destroys innovation", I'd really love to read your take on the ideal set of innovation policies stemming from this assertion!


I don't think copying is bad. Copying is what's beautiful about Capitalism, it reduces everything to competition around the margins in cut-throat markets, with tons of choice.

Personally, I feel like if we want to foster research and innovation, subsidizing them directly is easier than creating eminently abusable rights and monopolies.




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