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Congress: Stop Trying to Limit EFF’s Ability to Challenge Patents (eff.org)
264 points by DiabloD3 on Apr 24, 2015 | hide | past | web | favorite | 64 comments

Cost. Cost is the biggest issue with post-grant proceedings. I don't know how many times I've seen people that have air-tight cases but they, understandably, won't, or can't, pay hundreds of thousands of dollars (filing fees and attorney's fees) to pull the trigger. The cost for these things is truly astronomical compared to quite literally every other aspect of the patent office. Even more astounding is that there is no reduction in fees for entity size (like almost every other fee). So a solo inventor and a Fortune 500 company pay exactly the same amount in filing fees, which is absurd and makes zero sense (even the older, reexamination route has fees based on entity size. e.g., large companies pay 12k, while "micro entities" pay 3k). I'm hoping, but not holding my breath, that eventually the fee structure will change; but given the popularity of post-grant proceedings, I can't imagine the PTO pulling the plug on a solid money maker for them. Here's a quick scatter plot of fees for micro entities, try and guess which are post-grant filing fees: http://i.imgur.com/F1Q2E1l.png

The attorney's fees aren't the PTO's fault, that is just what good talent costs.

The fees are large but an post grant proceeding isn't just a patent reexam. It's a mini-trial. There is a lot of manhours required on the USPTOs side of things.

In an ideal world, the patent system and the legal system in general would be substantially simpler, and premium talent wouldn't be required. For really clear cut cases you wouldn't need an attorney at all.

Same thing with the mini-trial. In an ideal world the system would be a lot more efficient and cheaper for everybody.


No matter how you feel about this issue, a quick phone call to your senator can help have your voice heard much louder than any HN comment. If you have not already, put your senators' and representative's phone number in your contacts list for easy access to democracy.

I don't like calling, but I have always gotten a nice response to the emails I have sent to both my national and state level representatives.

Every little bit helps! Just make sure to keep it up and keep emailing. Good job.

The new post-grant patent challenge scheme has made it a lot harder to enforce patents. Now, an accused infringer can file a post-grant review request and tie things up for a year or two, even if they lose. During that period, it's almost impossible to license the patent. The patent holder has to defend against the post-grant review, which is expensive.

There are few real "patent trolls". The EFF's list is very short.[1] Only one law firm, Farney Daniels, is listed as having sent out more than 3 demand letters. This isn't a big problem.

You need to own intellectual property if, for example, you're writing for Apple's platform. If your idea is a success, Apple copies it and then turns off your platform access. Look what just happened to Pebble.

[1] https://trollingeffects.org/lawfirms

> a few people have publicly challenged some important patents with the intent of making a quick buck by shorting the patent owner’s stock

This is exactly the type of thing we should encourage. It gives companies a strong incentive to avoid filing frivolous patents.

> We say “perceived” because, if a patent is bad, should it really matter who is challenging it?

The problem with this premise, of course, is that these patents are not being challenged because they are "bad", they're challenged because somebody wants to make a quick buck. They may be bad patents, because to get an IPR approved you must show that you have a fair chance of invalidating at least one claim. And statistically claims are very likely to be invalidated when IPRs are granted.

But these IPRs are filed in bad faith, so it is an abuse of the USPTO's already limited resources. So far most IPRs have been filed by parties that are actually involved in litigation and hence have strong motivation to see claims invalidated. It is yet to be seen whether the same statistics will apply for cases like these.

There does need to be a way for the EFFs of this world to challenge patents that are actively being asserted because small entities cannot afford to do so. I'd say that representing the targeted parties should be enough to give standing to file IPRs.

This is a legitimate discussion.

Another story on the front page right now talks about a class-action lawsuit against Google for age discrimination. The person that's put up to it has a pretty flimsy case, it appears ("they didn't like me after my phone screen! Age discrimination!"), but the class action may uncover something more real. Finding somebody who has a real complaint seems before starting litigation seems like a good solution, because it ensures that at least one person was harmed. On the other hand, the EFF has a good point here: most of the people harmed by this aren't going to spend the money to deal with it.

I like the idea of EFF pushing back against unfair patents, but I don't like the idea of ambitious lawyers building spurious class-action lawsuits. I'll admit that I'm not fully informed about either of these cases, but there is real value in putting up barriers to spurious cases that cost real money.

I think you need to understand the situation a little better. EFF is not suing the patent holder; the patent holder has nothing to lose in these actions except a valid patent, and EFF has nothing to gain except insofar as invalidating the patent is in the public interest. The analogy to a class action lawsuit is not a good one.

Chris Coons is a Democrat. The article didn't mention that fact.

Also, I'm not sure if this is an example of crony capitalism or not; I don't fully understand the stated motivation for the legislation. The motivation seems fishy at first blush.

>Specifically, a few people have publicly challenged some important patents with the intent of making a quick buck by shorting the patent owner’s stock.

Shouldn't that be against insider trading laws somehow?

Why would an external entity to a company be subject to insider trading allegations on that company's stock?

[0] https://en.wikipedia.org/wiki/Insider_trading#Definition_of_...

I would find it relevant since insider trading laws are intended to catch individuals with access to nonpublic information about a company and that then uses that information in a unfair way on the stock market.

Even in countries that don't use civil law, intentions should still be relevant in discussing the law or its enforcement.

It's not insider trading, because the person challenging the patent is not an insider. It is, however, market manipulation and it is illegal in the US. http://en.wikipedia.org/wiki/Market_manipulation

It's funny that page lists "bear raid" as an example. That's basically how shorting is done. You short a stock, then you tell the world why as loudly as possible.

Not insider trading laws, but yes, this is covered by existing legislation. If that's really a concern, they should fund the SEC better.

I am sometimes wondering why we should not have software patents. Programming, mechanical engineering and medicine, etc. are all done behind a computer, so we should allow patents in all of these fields, or none of them.

Also, more generally, of the two following people, who would you rather see having the biggest probability of making more money?

1. The person who has the most money.

2. The person who has the best ideas.

Without (software) patents, it seems that 1 is more likely.

I completely disagree that patents protect "the little guy" with the best ideas from those with the most money.

Patents make it illegal to implement ideas. So if you come up with the best ideas, you are the one that is the most restricted by patents.

The notion that the patent system exists to protect inventors is a fairy tale that they used to sell the idea of such a ludicrous system of thought policing. Its origins go back centuries to when the King of England wanted to create a way for his cronies to get rich by monopolizing a certain color of dye that was profitable at the time, IIRC.

And the "all or none" idea is not logical at all to me as well.

People seem to buy this idea of patents on FUD: "No one will invent things if they can't have a monopoly on their invention." But is that the case in reality? I'd like to see some empirical evidence that the amount of inventions goes down critically without patents.

Even if the number of inventions went down, there are always upsides. Less time and money wasted on litigation and better products for consumers.

Pharmaceuticals are the classic example of why patents are necessary. Billions of R&D to develop a product that can be produced by a competitor for pennies.

But things like complex circuits would see drastic reduction in R&D if competitors could just make a copy.

You'd save money on litigation, but it's not that much considering the size of the industries at play.

And you'd probably see worse products after the short term.

Pharmaceuticals are the classic example of why patents are necessary. Billions of R&D to develop a product that can be produced by a competitor for pennies.

If you took more than a cursory glance at the pharmaceutical industry, you'd see this oft-repeated claim is bullshit. Pharmaceutical companies spend billions on marketing (as well as lobbying politicians and doctors) and attempting to re-patent old drugs as their patents expire. They spend very little on blue sky, highly innovative drug development. That is mainly the province of publicly funded research labs and universities.

The one thing pharmaceutical companies actually do is cover the high cost of clinical trials. I see no reason we couldn't replace that with a publicly funded mechanism, do you?

Industry-specific concerns like that could easily be addressed privately by trade associations that have incentive to prevent the sort of mutually assured destruction that you describe.

You mean by creating an agreement to not compete? That is illegal.

It effects all industries that have R&D, those are just good examples.

We're discussing overhauls to the legal system - the fact that it's illegal now doesn't enter into it.

I'll put it another way, it would be stupid to let entire industries write their own non-competition agreements. That is monopolist behavior. Unless the repeal of the Patent Act coincides with the repeal of the Sherman Act, it would be illegal still.

There are tons of empirical studies showing the effects, good and bad, of patent systems using historical as well as more recent data. For instance studies of historical fairs have shown that the introduction of a patent system greatly increased the rate of innovation in fields where other protection was not previously available. On the other hand there are studies showing that patent tickets in some industries caused slowdowns in progress. There is significant evidence of various benefits and costs. The problem is, these pros and cons are not directly comparable so nobody can say one outweighs the other.

The same FUD applies to copyright - the sheer amount of free (as in speech) artwork out there handily disproves the "no one will do things" argument.

Some types of work would definitely survive in a copyright free universe. But many wouldn't. You wouldn't have full time authors. Musicians would mercilessly rip off each others songs.

Forget about tv, high budget video games, movies, etc. That stuff takes serious investment to make.

>Musicians would mercilessly rip off each others songs.

This is a ridiculous claim. DIY and free music culture has made a lot of unique stuff. Have you heard of the band "Bomb the Music Industry!"? That was their whole thing. Musicians already copy each other in general, but the problem would not get worse.

There is already a lot of ripping off going on in music, having no consequences would exacerbate the situation.

IIRC without patents you have trade secrets, patents ensure the details are more widely known (in theory).

Software differs from other fields in two important regards:

1. Software is math. Not "does" math, but "is" math. See Google and HNsearch for references to the endless discussions of this fact.

2. A patent on a device covers an implementation. Patents on software have been used to block entire ideas, regardless of implementation.

Based on these factors, plus many more that have been argued to death, software should be ineligible for patents, and software on a computer of any kind should not be capable of infringing any patent. Failing that, independent invention needs to be a 100% defense against infringement, and evidence of obviousness, especially with software, to release the silent stranglehold that the threat of litigation has on software innovation.

Software is math. Not "does" math, but "is" math. See Google and HNsearch for references to the endless discussions of this fact.

The laws of physics for macroscopic scales are very well understood. You car is as much "math" as any reasonably complex end-user software package is.

If you want to go down that route, then I would agree with the final conclusion that nothing should be patentable that can be described in any way using known physics and chemistry. But I think it will be necessary to draw a distinction between mathematical descriptions of physical processes (which don't make the processes themselves mathematical), and mathematical implementations, namely software. In other words, math describes physics, but math is the same as software.

"Failing that, independent invention needs to be a 100% defense against infringement"

Won't work. That's a state-of-mind issue. Infringers will claim "independent infringement", when in fact they got the idea from the patented work.

Sure, and then it would be up to the patent holder to prove intentional infringement. Otherwise, they don't get anything. That's how the legal system works in many other situations, the accuser has to prove their accusations, which is perfectly reasonable to me.

Patent infringement doesn't require intent. An "independent invention" defense rewards infringers who keep their technology secret. If the technology is publicly disclosed by an independent party prior to the patent application date, it's not patentable anyway. But secret independent invention is not prior art. Part of the idea behind patents is to reward public disclosure. After the 20 years are up, anybody can do it.

> Patent infringement doesn't require intent.

I know, but that's the whole point: maybe it should (in a lawsuit at least).

Git histories and lab notebooks can demonstrate independent invention by showing the process leading to independent discovery.

The Supreme Court essentially agrees with this in Alice vs. CLS Bank

Alice hasn't destroyed all software patents, only the egregious ones.

To be sure, the ruling only destroyed one patent. It did however create a precedent that can be used to defend from (or more ideally, will prevent) litigation over abstract subject matter.

What did Bob say? Did he get Alice's message?

I bet Mallory would know.

That's really the catch22, isn't it? Without a regulatory system, the people with money (power) can utilize all of it to nearly any extent directly for the purpose of exploiting that resource.

With regulation, they still have the money (power), it's just utilized to tailor regulation via lobbying in such a way that they _still_ get a better chance at exploiting the resource.

As sister posts suggest, it's the implementation more than a black/white "get rid of it" approach that I'd like to see examined, but I also have doubts that given the aformentioned lobbying and political climate, regulation can be done effectively and without corporate influence. So with that said; it's a matter of tradeoffs, which outcome is going to cause the most harm in the long run?

(I don't have any great answers, just mulling over the two options. I'm mostly erring towards "no patents" because even given all the cards, I've seen big companies fail to execute on excellent ideas that small players have then locked down; where in a regulated environment, this introduces significant and often unavoidable barriers to entry. (see the home automation/3d printing patent tieup that slowed down those respective spaces for such a long time))

I think it's wrong to look at patents as protecting "ideas." Economically, the purpose of patents is to prevent free-riding on cost-intensive R&D. Practically, their value is allowing R&D to be decoupled from production.

Samsung's Exynos is a good example. ARM is a small entity that does the hard R&D. Samsung has the manufacturing capability, but has to buy ARM's IP. Each company specializes in what they're good at, and patents mediate the transaction between them.

Completely devoid of the patent discussion, Person 1 is more likely to make more money anyway.

An idea without execution (either due to lack of motivation or lack of resources) doesn't make any money. Period, paragraph, full stop. "Idea people" are a dime a dozen.

However, if you possess capital, you execute on your own ideas, and you can invest in others' good ideas, in exchange for a return on your investment.

Patents for software are fine as long as they're complex and specific. But if you file a patent on some generic functionality that is already widly used and then go after users, there is something very wrong with this system.

I would argue that neither the person with the most money nor best ideas has the best probability of making more money in this climate. It seems that the person with the most patents now has the greatest probability of making money.

While I agree that patents do enable "the little guy" to succeed in some cases, they also enable the current powers that be to maintain that power.

Patents do nothing to address this concern.

I am a programmer. Two ideas I had were patented. The patents are owned by Comcast, my employer at the time.

Who says that?

We need software patent reform and sufficient funding and training within the patent office so that patent reviewers can do their job well, not obliteration of the concept. Actually, we need an overhaul and streamlining of the entire framework of legal intellectual property in the US, and in the EU, the situation is even more complex.

Software is abstract right down to the core. It's ineligible.

Software cannot execute without hardware. It literally needs the electrons to exist. Executing software is used to achieve practically useful results. It is not abstract in the legal sense of the word. You're thinking, like most people here do, of "abstraction", which is a key aspect of software engineering. But in patent terms "abstract" has a meaning more along the lines of "not a practical application".

Abstract means non-concrete. I wasn't using it in a special software-engineering sense. In patent terms, it also means non-concrete, it doesn't mean impractical.

How is it non-concrete if it requires physical hardware and achieves practical results?

Software patents as an idea aren't terrible. It's the implementation which often permits trivial things that aren't new enough, other than the on-a-computer element of them, to earn a patent. I hear the US PTO is underfunded.

I dislike patents, especially software patents, but those are simply my opinions, and your comment is a valid and supportive contribution to the discussion. This should not be downvoted.

With patents, 1 is ensured.

It should be easier to get attorney's fees paid by the loser. That would cut down on a lot of these kinds of cases.

And further deter small plaintiffs or defendants from having their day in court, because a loss will inevitably result in bankruptcy. All sorts of solutions have great upside, but that's not the only thing you need to consider.

"Okay, were sorry about that." - congress

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