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It would not be a problem if lawyers wouldn't take the case.

So the question is, how do we make sure lawyers don't want to? (without going to jail).

So the question is, how do we make sure lawyers don't want to? (without going to jail).

Don’t get caught. ;-)

But seriously, there only seems to be one answer that is likely to work in practice: change the risk/reward structure so that patent trolling isn’t profitable any more.

One obvious approach would be making fewer things subject to patent protection in the first place. You could explicitly exclude whole categories like software or business method parents, assuming you could define them clearly enough. You could raise the general bar for granting/defending patents in terms of originality and non-obviousness. You could leave the standards the same in principle but apply more robust checking for prior art and/or a more thorough consultation to determine obviousness before awarding a patent. Each of these has costs in different places: principally, the legislature, the courts, and the patent office, respectively.

Another approach would be to look at the types and magnitudes of consequences that result if you lose a patent case, either by being found to infringe someone else’s patent or by claiming that someone infringes your patent and failing to win the case. For example, what if the remedies available to someone who owned a patent but who was not actively working to exploit that patent in some reasonable way themselves were made dramatically less than the remedies available to someone who was using the patent system “properly” to secure exclusive rights while they worked hard to exploit a real invention? What if there were a meaningful cost to bringing a patent case and losing not just because the court invalidated your original patent but also because the court actively determined that the original patent had been [some legal specification of “obviously abusing the system”], a kind of patent case analogy for dismissing with prejudice?

The simplest solution is to abolish patents, the government has no business going around handing out monopolies.

So you spend millions (or billions, even) on research, then someone can just come along and copy that work? Where's my incentive to do all that R&D?

Who said you have to release your method? If what you found through 'R&D' can be quickly reproduced through reverse engineering it's highly unlikely it was complex to figure out. On the other hand if your development is complex, and requires a great deal of time and effort to reverse engineer then your R&D has paid for itself by giving you a dramatic lead in time to market. If a company can't win the market with such a lead they don't really deserve protection. Lets also not forget copyright still exists to protect exact copies of the ultimate product.

Drugs are very easy to reverse engineer and it would kind of defeat the point if you created them and then didn't release them.

You have drugs at one end of the spectrum and software and business processes at the other. There is a huge cost associated with medical research due to the inherit complexity of the human body and the requirements governments put on proper testing. Any patent solution has to address that problem as well.

(And, yes, drug companies are doing a horrible job at doing real research, but that doesn't alter the substance of the argument.)

Fine. Make patents a side effect of the FDA's requirements rather than infecting every other industry with it as well.

What's wrong with copyrighting work so someone can't just steal your entire source-code and call it their own? Just like you can copyright a book so nobody can steal that exact instance of your thought process but people can still write very similar books.

JRR did not patent 'the application of height-challenged individuals manually transported to a heated device for the purpose of destroying small amounts of jewelery', but the work is copyrighted so you cannot just find/replace the story so it reads Shrodo and Hamwise going to Mt Foomp with their trusty sidekick Bandalf.

That's an interesting read, and I just found this on reddit: http://www.moongadget.com/origins/dune.html

To take a quote from your source: "Every writer owes a similar debt to those who have come before." - this is something I believe speaks more to the core of software development than the patent system we use today.

Terry Brooks' supposed imitation of The Lord of The Rings didn't stop it from generating hundreds of millions of dollars in revenue.

I actually support the idea that Terry Brooks should be able to reskin The Lord of the Rings if he feels like it. I bridle a bit at the label "supposed imitation", though. Read them both -- they're exact copies. Even those parts of LotR that are utterly irrelevant to anything are faithfully duplicated in Sword of Shannara.

If you spent billions comming up with a linked list where old records are automatically removed on traversal, then you got so big troubles that not even a goverment can save you.

And yeah, that is the level on innovation in software patents.

Why don't you ask Apple? They sold 100 million iPhones before they ever set foot in a courtroom. Were they not adequately rewarded?

Where's my incentive to do all that R&D?

Curiosity, love, boredom, responsibility, etc... There are a lot of incentives other than profit and billions already gets spent in R&D for reasons other than profit.

But if profit is your motive, and patents don't exist, you have several options. One of the interesting ones is that of monetising expertise. People will copy you, but you are also known globally as the expert, for the simple reason that you can prove you developed it. So you not only have a market made of the people who will buy the stuff, but also of those who want to learn off the expert how to build the stuff. To make the most of this requires good marketing, and an acceptance that you should be developing your next thing for when the money slows down from the current one as the market saturates, but that is the same as today anyway.

Well that's good and well for an individual or a small group, but the classic case for patents is in things like pharmaceuticals. A patent protects someone from reverse-engineering something that a company may have spent years perfecting for hundred of millions of dollars.

> but the classic case for patents is in things like pharmaceuticals

That is also the classic case for patent abuse. Take a drug that works, tack on some non-active atoms somewhere, change the name, patent it, jack up the prices on the old drug when the patent is about to expire to push buyers to your new monopoly.

Please explain how customers are locked into the "new monopoly." If Screwitall-A can now be made generically and works just as well as the newly made and patented Screwitall-B, customers are totally free to switch to -A if they care about the cost.

(Customers usually don't care about cost, which is certainly a problem for holding down prices, but this doesn't seem anything like "patent abuse.")

All the money is in prescription drugs which isn't a 'free market' (speaking about the US here). I can't just order my generic prescription from whomever I want nor do I have unilateral control over what my doctor prescribes. The doctor may well have his/her own agenda.

newly made and patented Screwitall-B

I assume this is the new trade name for a variation on Viagra.

Pharmaceuticals are also the classic case for an existing massive public and charity funded research and development network for absolutely vital medicine, that the industry is not willing to do because the existing model is completely and utterly broken from a public health perspective.

This has nothing to do with lawyers. If you talked every criminal lawyer in the country out of prosecuting murders, it wouldn't make murder legal. The system needs to be reformed through legislation, which has everything to do with politicians.

>This has nothing to do with lawyers

>which has everything to do with politicians

Most of them start out as lawyers. Coincidence?

Is possibly just thermodynamics.

I think the problem is patents without any implementation, or commercial use.

Make a condition of patent defence to actually have brought to market a product that uses the patent. Licensing the technology to someone would also be a valid defence, but it should be within a reasonable timeframe. Patent protection could then be limited to the actual use made of the technology, overly wide patents would be more clearly identifiable, and the patent could be legally reduced in scope without losing all cover.

That would stop patent trolls, but it wouldn't stop big corporation from patenting entirely obvious things and then suing the shit out of your startup.

I think the big problem is juries. A group of random individuals isn't going to wade through the technical details well.

However there's a right to a jury trial. So I propose the following.

Juries for patent trials should be paid dramatically more (in the neighbourhood of what lawyers get) and selected from a list of volunteers according to criteria that the two sides argue over.

The idea being that we want competent people to fight to get on juries rather than come up with an excuse not too.

Unfortunately, the flies in the face of the principles of trial law. The goal,in a trial, is that the jury is a blank slate, which exists only to judge what the counsels say. The only facts they can consider are those they hear in the trial from witnesses, and exhibits introduced. To have a jury of experts completely defeats this point; a lot of people argue the recent Apple v. Samsung ruling was invalid precisely because the foreman was an 'expert'.

There is already legislation coming into effect in the US which will give parties 9 months to contest any patent, through the patent office. This should help solve the problem of lay juries deciding the validity of recent patents.


>a lot of people argue the recent Apple v. Samsung ruling was invalid precisely because the foreman was an 'expert'.

Not so much that he was an expert, but he thought he had relevant expertise, made a false presumption about the nature of the law based on that misunderstanding (namely, that because object files would not run without recompilation between the iPhone and instances of prior art produced by Samsung, it didn't count as "real" prior art), and convinced the rest of the jury to deliver a guilty verdict based on whether the processor could execute the same object code or not, not whether the presented evidence actually was sufficient "prior art", meaning a demonstration that the invention was not unique enough at the time to warrant protection, to invalidate Apple's patent.


The point is, he brought his 'prior knowledge', which is expressly forbidden in the jury instructions. The parent basically proposed that every jury be made up of people like this.

Not "people like this" (i.e. self-appointed "experts"), but actual experts from industry and academia.

I can't reply to the child comment, for some reason, but to expand on this idea: a jury's role is to basically decide if the facts as presented apply according to the law. The frustration technical people express is mostly that they want to decide what the law should be as part of the jury. This defeats the point of the legislative branch: if you want laws that make sense in a technical way, devote your life yo becoming a senator or congress person. Don't expect juries to suddenly gain the power to overturn laws because they "know better".

The goal,in a trial, is that the jury is a blank slate, which exists only to judge what the counsels say.

This seems like an archaic goal that could safely be discarded if the legal system were changed from adversarial to inquisitorial to compensate for the fact that differences in wealth allow the wealthier side to hire more convincing counsel.

What would an inquisitional legal system look like? No litigants, just aimless fact finding?

That's interesting, and I'm very grateful you didn't just LMGTFY (I was on my phone!). It sounds like it's only really employed in criminal proceedings, and even then only a small number, because the expense of employing an investigating judge is very high. As far as I know, patent litigation is moving to a 'loser pays' model in the US, which seems much more economically sound.

LMGTFY is definitely considered bad form here on HN.

Even loser pays can be problematic, though, because the troll or bigcorp can fund a war of attrition for far longer than a startup or small business. I saw a variant of this happen to a company. An adaptation of the inquisitorial system to civil cases seems like the most sensible approach, if the goal is to provide equitable outcomes regardless of the financial resources of the litigants.

An alternative idea is a shared pool of legal funds. Both parties contribute to the pool and the pool is divided equally. If an aggressor wants to hire the best lawyers in the business, they have to provide the equivalent to the defendant.

Take away the financial incentive: high fees.

Good luck with that.

The only way to stop this troll problem is to stop these patents from being issued. Nip it in the bud. There will always be someone willing to pay for an exclusive license to the patent (i.e. buy junk patents) with the sole intent of using it to sue startups. Sad but true.

Even if the junk patent was filed for and obtained by a person who was intending to build a product or see that products get built using the technology, what we all know can happen is the product never gets developed, the patent is never practiced, and it gets sold or traded for something or acquired through bankruptcy or some other means. And... eventually... it can wind up in the hands of a troll.

Having these junk patents "floating around out there" (or maybe we should say lurking in the depths, like dormant but functional submarines ready to take out any ships who have set off on a journey to build products and made it far enough... it puts every startup at risk.

The essence of a patent is a government-granted right to sue. That is really all it is for the grantee. Nothing more and nothing less. The often cited language from the US Constituion only relates to the creation of a patent office and the purpose behind it, not what the patent office grants you. The USPTO does not give you a free ticket to a monopoly (modern US patents are not "letters patent") nor does it even ensure a successful business. You have to accomplish that on your own. Being able to sue infringers or having rights to sue as a bargaining chip in negotiation _might_ help. But it won't ensure your success. (Unless your "business" is pure patent trolling.)

Ideally (as the Constitution suggests) the patent is intended to spur innovation and (we would assume) protect a growing business of sharing those innovations (e.g. as products) with others, but that doesn't always happen. Businesses fail for a variety of reasons. But a patent, no matter how poor in quality, remains a right to sue, as long as the maintenance fees are paid. Thus even a long forgotten junk patent with no associated product or innovations is still a "live" right to sue, a potential threat, laying dormant until a. the owner gets bitter enough to adopt an extortionist mindset (e.g. look at what the co-founder of Microsoft, one of the wealthiest men in the world tried a number of years ago- no one is immune from this mindset) or b. the patent falls into the hands of a natural born extortionist, e.g. someone who actively looks to buy junk patents in order to sue people for a windfall. The patent troll.

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