Nice to see Cloudflare fighting the good fight, but patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. It doesn’t even matter if they win - when a company with billions in the bank sues a company with millions in the bank, the small company is basically just screwed no matter what because they can’t afford the legal fees. It’s a cheap way for big, bloated, slow moving companies to eliminate fast moving, lean, disruptive competition.
A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things!
The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.
Worth mentioning: Newegg is another company that doesn't blink and goes after patent trolls with a vengeance, at least they used to: https://www.newegg.com/insider/newegg-vs-patent-trolls-when-...
I don't believe they still do this & not sure their culture is the same. They were purchased by a company based out of China years ago. Lee Cheng I believe is responsible for a lot of that effort. He no longer works there.
> One of our outstanding engineers described what it’s like to create a new product
This is a good reminder to enthusiastically help out your legal team if your company is the target of trolls!
I had the opportunity to do it once. Our legal team was helpful, patient, and curious. The work was pretty annoying because you have to try to help them work out whether some bizarrely worded unrelated thing could possibly be construed to be part of our product.
In our case the troll went away as soon as we made it clear we were serious about taking it to court.
I cannot tell you how thankful I am for Cloudflare taking it as far as they can. The cost and risk must be considerable to them.
No mention of Cloudflare’s own large portfolio of software patents.
Wonder when they’ll start enforcing their patent on CNAME flattening, for example:
https://patents.justia.com/patent/11159479
Edit; clarity
It's a defensive patent portfolio. They use it to counter sue if a competitor sues them.
Have they made any commitments, binding or non-binding, to this effect?
That might reduce the effectiveness of this strategy.
There is precedent for this kindof thing: https://en.wikipedia.org/wiki/Open_Invention_Network
For the commitment to be meaningful at all, it has to be partially binding, which could be exploited. And a totally nonbinding one could just as easily be given by a patent troll.
Edit: Removed a bone-headed hypothetical.
> My understanding is a patent holder must defend their rights, if they are aware of the infringement, at the peril of losing them.
Pretty sure that's just for trademarks.
And that's why Stallman is so firm that there is no such thing as "intellectual property". As soon as you start using that term, you start believing there is something more general and meaningful to it and start muddying the concepts. But it is just a mirage.
You lose a trademark if you don't defend it. I don't believe the same is true of patents.
My face is red. Thanks. I didn't stop and think long enough before I posted.
I recognize my position is far from airtight, but I'm honestly way, way less bothered by the fact that companies like Cloudflare have a large patent portfolio simply because they actually build useful stuff related to their patents.
There is a robust debate to be had on the validity of obvious or generic software patents that only questionably constitute legitimate "invention", but that's almost entirely separate from the problem of the bottom feeding pond scum that collect patents for no other reason than to attempt to enrich themselves via parasitic extraction from people who had similar ideas but actually used them to create something useful. The former might be trying to get exclusivity from something that anyone could have come up with, but at least their idea is useful to someone. The latter brings nothing of value to anyone except maybe themselves, and arguably negative value to everyone else.
The real danger is if Cloudflare is threatened and on life support - does their culture maintain or what if it changes hands or fails completely and it's patent portfolio is acquired by litigious trolls.
As happened to Caspian Networks in the current case.
There is no resolution to the troll problem if you just keep playing the same game. So I’m not sure why we congratulate companies for “taking down trolls” when their own patent portfolio will (just as likely as not) add to the troll problem of the future.
Would Project Jengo pay me if I could show prior art for CNAAME flattening? No, because it’s their patent.
All major tech companies are building up a portfolio of patents, as a deterrent as much as anything else.
So that when competitors come knocking on the door, they can use the portfolio to say, "Well okay, but then you owe me license money for $x, $y, $z from my portfolio, how about we just not bother with this, agreed?"
Why should there be a mention about their patents?
So that one can begin to judge how duplicitous their claims in defence of another's 'invalid' patent my be.
If Cloudflare starts trying to sue or shake down folks with their patents, this will be a very valid point. Until then it's a little silly; everybody holds patents for (at least) defensive reasons.
Sure, but what's the solution (if you're Cloudflare)? You can patent CNAME flattening, only use it defensively, and maybe you eventually go bankrupt and someone scoops it up (not great). Or you can NOT patent it...and some troll probably will, and can now use it offensively.
The solution is patent reform on this kind of obvious bullshit, but that's not something Cloudflare can solve.
Exactly. As long as that's how the game is played you must play it or you will be sued out of existence.
There is no evidence patents increase innovation. I suggest reading 'The Case Against Patents':
https://files.stlouisfed.org/files/htdocs/wp/2012/2012-035.p...
Awesome job! Thank you cloudflare.
maybe this is the path to kill the trolls. tech companies could fund an insurance-like mutual scheme to defend instead of pay off the trolls and then drive them out of business. it can also research and invalidate their ridiculous patents.
Just make sure the patent trolls don’t find a way to own their own patent troll insurance company.
ha! i think we need to patent the method and practice of patent troll insurance...
At the end of the day, this is a deep legislation issue, patents should not exist at all.
They are supposed to promote innovation, in practice, it's more about protecting guys who sitting and waiting for passive cash.
Once we give exclusive rights to all AI stuff to Nvidia, is the world going to be a better place ?
What would be with ChatGPT if Google actually had enforced (or enforces) patents on Transformers.
Is the world better since we have to pay a license to use the word "Smiley" and not "Emoji" ? (a >500M USD per year business btw).
I second the abolishment of patents.
The reasons people are for/against patents are political. A rightist view would be that patents allow first-to-the-finish-line inventors to reap financial awards that lead to success and freedom. A leftist view would be that the opportunity cost of patents is an increased cost (analogous to a tax) on everyone else in the form of licensing fees and barred entry to markets as improvements in science and technology make patents more obvious than innovative.
If we don't reform the system by at least reducing patent durations to something reasonable like 3-5 years, then that will create an incentive to operate outside the market. People will just use open source and 3D printing to build their own stuff, rather than purchasing it from someone else. In other words, more patents = bigger black market and smaller market/profits for those operating legally.
It's not a good look anymore to favor policies which encourage corruption. Other examples of unintended consequences include the War on Drugs, the Citizens United decision, NAFTA, etc etc etc. We know better now and we can do better, rather than letting special interests dictate the manner in which we do business.
> A rightist view would be that patents allow first-to-the-finish-line inventors to reap financial awards that lead to success and freedom. A leftist view would be that the opportunity cost of patents is an increased cost
Patents as originally formulated were to incentivize public disclosure of new techniques for building things. Portland cement is a great example: the company could have kept the formula secret and profited significantly, but instead a patent was filed, they got a short monopoly, and for over a century we have enjoyed the benefits of a publicly known formula. Pure ideas (like math and physics) were considered non-patentable.
If we can reform patents to disallow patenting software (and all other pure "ideas" with no physical realization), I think that will continue to help encourage public disclosure of helpful techniques (like Portland cement) without all the stupid baggage of software patents.
For example -- in my opinion, it would be great if SpaceX were to file for and receive one or more patents for their new Raptor engine, but not for any of the software used to run it. The patent(s) ought to read like their internal documentation for building one. Perhaps the new law could require all internal documents supporting the manufacture of the item be disclosed, unredacted, along with the patent application. Maybe also include stipulations that would prevent disclosure online or to countries the USA doesn't share intelligence with.
They'd get a monopoly for 18 years, then anyone with enough money could build and sell a full-flow staged methane combustion engine -- something no one but SpaceX has yet achieved.
So you spend billions($2.5 billion being average) inventing a new drug and anyone should be allowed to copy and sell it? That would foster innovation and not kill pharmaceutical market?
2.3 billion of that being marketing expenses?
This is a very unhelpful pseudo question, that adds nothing to the conversation but can easily derail it. Do you have at least a source for that "claim"?
The marketing is critical because they have a limited window of time within which to recoup most of the development costs. If adoption ramps up too slowly, the company will not make enough money to offset the investment. Marketing improves time to revenue for a product where exclusivity will be short-lived. If they didn't spend on marketing, the R&D wouldn't exist, so it is kind of weird to act like this is a waste of money.
It is like saying solar panels are bad for the climate because manufacturing them requires CO2 production.
It shouldn't need to be said that no one would do marketing if it didn't more than pay for itself and offset the costs of the thing being marketed.
We need a pharmaceutical library, not a pharmaceutical market. Research doesn't cost $2.5 billion, lobbying does.
> Research doesn't cost $2.5 billion, lobbying does.
It... actually does. The utter majority of pharmaceutical cost are the clinical trials, and the cost of "failed" compounds has to be absorbed by the few that eventually pass.
It used to be the case that the development part would be done by universities and government grants, but universities these days prefer to hoard their inheritances instead of spending it, and governments lack the ideas and auditing capability, so everything has gotten privatized and with it, control transferred from democratically elected institutions to quarterly-focused boards accountable only to shareholders not society.
Spending 10 seconds to do a search yields a wiki page.
Let's make a bet then, shall we?
I'll wire you 2.6billion (the extra 0.1 for your trouble) in exchange for a cure for alzheimers deliverable 5 years from now against 5 billion if you can't deliver. Should be an easy 100million+ for you.
Lmk once you have your side in escrow.
BioNTech and Moderna have entered the chat.
That's pretty much precisely what happened in the COVID-19 vaccine race.
Though to be fair, basic research into mRNA vaccines dates to 1989, clinical trials to 2001, though quite obviously not for COVID-19 vaccines themselves.
The Covid vaccines were actually formulated within days of widespread public awareness of the disease. What took months were clinical trials (begun April 2020, Phase III by November of the same year), and emergency use authorisation by December 2020, and ramping up production and distribution, the first less than 12 months after the WHO had first announced the disease, the second (widespread availability) within 18 months.
Different conditions and treatments are of course widely divergent. Vaccines against viruses are reasonably well understood and simple in principle (trigger an immune-system response without triggering the disease), though even here some viruses can prove difficult to vaccinate against (rhinoviruses, forms of viral hepatitis, HIV). Pharmaceutical treatments against cardivascular, neurological, oncological, psychological, and other conditions are quite different. And in the case of infectious bacterial pathogens, I've been hearing and reading about the lack of effective novel antibiotic agents for nearly 50 years. In the case of some ancient scourges (totally drug-resistant tuberculosis is at or near the top of my list) this is truly terrifying.
The other challenge is that what the pharmaceutical industry focuses on --- chronic conditions facing wealthy populations with high-payout insurance --- often fails to match the true personal and public health concerns of humans at large. Much of the pharmaceutical industry's concentration is on relabeling or recertifying existing drugs, either to a new condition or with mildly tweaked formulations or delivery which serve to extend patent protection. Neither greatly advances the pharmaceutical formulary, and many at-risk populations go unserved.
I'm not so convinced of your argument yet. You point out some cases in which granting a patent will lead to reduced innovation, which I agree is bad. But how about innovations which might never have happened without the patent system in place?
I agree with you that patents a probably a net negative for innovation, but we need to come up with a stronger argument than monopolies are bad.
Can you provide some recent examples of where patents likely played a positive role in innovation?
Probably every pharmaceutical patent.
In software? Um... <crickets>. (But you asked "where patents" and not "where software patents", so...)
No massive amount come from the private sector. Almost all the money used to get a hypothetically effective drug through the approval and trial process is private.
Yes, but they probably wouldn't be without patents to ensure income for the government's partners.
Having ~zero new drugs introduced does not seem like a great thing?
Unless you completely revamp how drug discovery and research is funded and driven, anyway.
To the degree that patents have led to the creation of new pharmaceuticals, you're ready to stop doing that? You're ready for progress in pharmaceuticals to stop where we are, because you don't want patents to exist any longer? I strongly disagree.
Fifty years ago they paid for Xerox's PARC where WYSIWYG and GUI interfaces were first developed targeting a mass audience.
Specifically the Laser printer patents paid for PARC, and then some. As mentioned a few days ago by another commenter.
By that logic if anything bad has ever resulted in anything good we have to keep doing the bad thing in magical hopes that it will keep causing good to happen.
Iirc Apple paid (in Apple stock perhaps) but Microsoft didn't :)
ARM CPUs
There is a general problem with excessive rent seeking in our entire economy and society. But I don't think having zero patent protection is the answer. Like most problems with society, there is no easy answer, just a continual fight against corruption, rent-seeking, nepotism, collusion, price fixing and all the other crappy human behaviors.
> Is the world better since we have to pay a license to use the word "Smiley" and not "Emoji" ? (a >500M USD per year business btw).
If this is true it would fall under copyright or trademark protections, not patents.
You are absolutely right, just a side & +/- related topic that made me upset and wanted to rant about :)
> the jury went further and found that Sable’s old and broadly-written patent claim was invalid and never should have been granted in the first place–meaning they can no longer assert the claim against anyone else
Perhaps people/institutions that grant overly broad patents should be held responsible in a scenario like this?
I don’t think it’s possible to hold the patent office responsible for these cases without making it impossible to run it.
Lots of patent hate in the first few comments.
If we take the position that an inventor should be able to try and get profit from their invention how can we protect that without patent system?
The myth of patents is that some inventor working in their garage comes up with a genius invention, patents it, and then can leverage that patent-granted period of exclusivity into a thriving business. Hard work and smarts translating directly into rewards!
This is, of course, a myth.
It's not impossible for that to happen, theoretically, but the way the patent system actually works these days is that large companies patent anything they ever think of regardless of actual novelty, holding on to vast piles of patents as weapons of strategic deterrence. The megacorps exist in a state of patent detente -- unless someone is particularly blatant about a violation, it's better not to sue another corp because they'll just countersue with their own patent hoard. Then you'll both be stuck in years of litigation, working to get each other's patents invalidated, unsure of who is going to come out of it with a remaining claim.
When the tiny independent inventor appears, however, they don't have any of that patent-hoard protection. So it's easy for a big company in a vaguely related industry to squash them if they want to. Or wait until there's enough money being made that it's worth showing up and demanding fees. Sure, the company's patents may well be bogus and unrelated, but the tiny inventor can't afford to spend the next five years litigating that.
Board game rules fall under patents. It has an example of the garage process, patent, infringement, and win.
https://www.insurancejournal.com/news/west/2012/11/26/271633...
> A company headed by a Colorado professor who invented a strategy board game has won a $1.6 million patent infringement verdict.
> ...
> Innovention prevailed in a patent infringement against MGA, Wal-Mart Stores and Toys R Us. A federal court in New Orleans found that MGA’s Laser Battle game, sold through the two retailers, infringed on Innovention’s patent for Khet.
https://boardgamegeek.com/boardgame/16991/khet-laser-game
https://patents.google.com/patent/US7264242
---
Note the rarity of this happening that it makes the news compared to how often patents are thrown around in courts.
> Board game rules fall under patents
Please supply evidence. All links in your comment relate to a patent to an invention where lasers are an essential part of the claims. I'm not convinced that rules alone would be patentable subject matter.
> https://patents.google.com/patent/US5662332A/en (Magic The Gathering)
Thank you. I concede, this one is proof that an application that's essentially board game rules can be accepted. Whether rules not tied to a particular machine should be accepted is debatable. https://en.wikipedia.org/wiki/Machine-or-transformation_test...?
But Board Games are not software and there are other aspects of a game that can be IP protected (trademarks, etc)
The example was not given to argue about the types of patents granted, but rather that the patent system does have the occasional win by the little guy against large companies...
... and that this is so infrequent that it is news.
It's not a myth!
My uncle is such a garage inventor, and has made a comfortable living for himself by licensing a number of different inventions.
One of the things he invented was the Zipit drain cleaner. It's a long piece of plastic with barbs on it. You shove it down your drain, pull it back out, and it pulls out a gigantic disgusting hairball that you had no idea was down there!
It's really quite remarkable, it works so much better than what people were using to unclog their drains before. It seems obvious in retrospect, so why weren't such products already on the market?
Unfortunately after seeing the success a competitor decided to copy it and, when my uncle tried to sue, the competitor got the patent invalided. Meanwhile my uncle lost much of his savings in legal fees.
https://usinventor.org/portfolio-items/34660/
In my (biased) opinion, this was a case of a legitimate, deserving patent. But all the junk patents and patent trolls, and the arms race you describe, have shifted expectations so much that the patent review board now tends to invalidate everything brought before them. So now the patent system doesn't even work for the people it's supposed to work for, since when a small inventor makes something actually worth patenting, a big company can just invalidate the patent.
With all that said, I do agree that software patents are pretty broken. If nothing else, the 20-year time limit is way too long, as technology moves much faster than that. We are constantly building the next layer on top of whatever was invented last decade, so last decade's inventions have either become foundational or have been discarded. Patenting an idea means it has to end up in the later category, as a proprietary idea cannot be made foundational; the industry must work around it. Meanwhile, the upfront investment cost in software ideas is much lower than other kinds of inventions, so there's no need for 20 years of royalties to incentivize it. I think software patents could make a lot more sense with something like a 3-year time limit. But I'm not really sure it's needed at all, as first-mover advantage seems sufficient to reward many software inventions.
(Disclosure/disclaimer: I work for Cloudflare, but obviously the above is personal opinions. I am proud of what Cloudflare has done with Project Jengo -- which I had no personal role in, I'm just an enigneer.)
Lawyers are expensive. If your business model required suing someone to enforce your claim, you better hope you have money, and you better hope you win your case fast.
Otherwise, you will spend more time and energy on that lawsuit than your work on invention. It's what economists termed "deadweight loss".
It has at time proven to be a business mirage, especially if inventors start suing other inventors and pioneers rather than getting on with copying and improving upon each other's work. Invention and engineering is a collaborative process, even if at time, adversarial. Can't really let a few folks has their monopolies at the expense of everyone else.
I think you just confirmed that even the exception leads to another myth.
> If we take the position that an inventor
But most software patents aren't inventions; they're just brain farts with money behind them. They might not be trolls, but they went to the toilet, had some random idea I had 20000 times in my life already, but they patent it genuinely thinking it's anything original.
There are many none trolls, like the famous Amazon one-click buy one; everyone in web dev invented that in the 90s by themselves; they patented it. How is it worth protecting?
If you did invent and put the time and effort, how about selling your products; if someone else does it better, that's life. Especially in software; the pain is in the development and finishing, not the invention. The idea is absolutely worthless, outside this broken patent system.
>had some random idea I had 20000 times in my life already,
Aren't patent systems already supposed to reject "inventions" that are common sense? Perhaps the problem is not the system itself but rather the humans who are approving these.
That’s definitely part of it: in the 90s you saw a ton of “on the internet” patents which looked a lot like the examiners not having had enough experience to say that something was either an obvious adaptation of an existing concept to the web or that the two systems had almost nothing in common other than using a computer (I remember a patent troll hitting a customer with a 1980s patent for cash registers connected to a minicomputer using a phone line, claiming it covered their web store). A younger generation of patent clerks hired with more experience seems to have helped there.
The other problem is funding: look at the patent examiner listings right now and think about how many people they’re going to be able to get with the federal pay scale having been prevented from keeping pace with the market for years:
https://www.usajobs.gov/Search/Results?l=&l=&a=CM56&hp=publi...
It is not reasonable to expect humans to assess the novelty or obviousness of software "inventions". Too many of them can be created too fast for any conceivable patent office to handle. The only solution is for Congress to write a law saying algorithms can't be patented. SCOTUS tentatively said it already, but nobody listens to them.
The parent system will accept pretty much anything if your lawyers ask them enough times. I've seen algorithms from the 80s patented today, with no real changes. The patent examiners have no idea what's novel or common sense, and just accept everything.
> If we take the position that an inventor should be able to try and get profit from their invention
The premise is flawed, the conclusion can only be wrong.
Patents are an invention by the bourgeoisie to extend their control of the production of anything and extract as much money from it, but to make it acceptable they have the play the image of the "lone inventor in their garage". This inventor doesn't exist. No invention ever came out of nowhere, based on nothing more than hard work and selfless involvement. Nothing would be achievable without the help of society, past and present, without cooperation, and to close that off is to go against the very reason we as a species survive. We need shared creation of art, of technologies, of ideas, because this helps everyone. Look at Volvo giving away their rights on the 3-point security belt, or the penicillin being openly distributed; to favor individual wealth over collective well-being is borderline criminal.
Patents do not serve individuals, the individuals are not business people. Patents only serve companies which by definition steal the production of its workers for private profits.
Patents do not allow creation; patents prevent creation. Look at the history of steam machines and how many people were involved in all the subtle, incremental improvements. It's not just one guy suddenly finding out everything from scratch. One of them put a patent on his invention and froze the development of the steam machine for decades before allowing it to continue.
To continue your point, here is my proposal to replace intellectual property: Pay the inventor for their work, not the result of that work.
This has several advantages:
1. Inventors get paid to fail. Failure is a critical step in the process of invention.
2. Inventors get paid immediately. How can an inventor be expected to have time to invent something if their only means of income happens after the work of invention? Any person who is working should earn a living.
3. An inventor can quit. If you aren't getting anywhere on a project, then you can go do something else!
4. Another inventor can pick up where they left off. Fresh eyes bring new perspective.
You're proposing that the state pay a good wage to anyone who chooses to be a full time inventor, regardless of the results? Does that include paying for whatever facilities might be required?
>Who said anything about the state?
By implication, you:
>here is my proposal to replace intellectual property
Property rights, intellectual or otherwise, are granted and enforced by the state. So too, it would seem, might be their replacements. But it sounds like you're actually proposing simply eliminating all current IP law rather than replacing it with anything.
>The premise is flawed, the conclusion can only be wrong.
That's the fallacy fallacy.
They went on to support their point. To ignore that is...the fallacy fallacy fallacy?
No, they went on to make specific claims essentially unrelated to that initial general claim.
This is a lot of evidence-less claims and opinions masquerading as fact. Looks like someone has an irrational grudge.
> No invention ever came out of nowhere, based on nothing more than hard work and selfless involvement
Straw man. No-one has suggested that the inventor invented something in a complete vacuum without support from society.
And yet that's exactly what the patent model claims: The invention is the fruit of a single mind who must get the entirety of money ever produced by the commercialization of the product. It is a glorification of individualism
Clearly not. At the trite level, you can have a patent with multiple authors. But more generally, many patents are small incremental improvements on existing device. In this case, the patent only covers that incremental improvements. Overly broad claims in patents tend to lead to them getting invalidated.
The Patent model doesn't claim that at all, it assumes the opposite. That's one reason why patents are public.
Industrial secrets. WD40 was not patented, they did good anyway.
Wright brothers or James Watt were notoriously hard defending their patents, hindering progress and getting next to no significant profits. 3D printers only took off after key patents expired.
I have an invention that I think could change the world (a better toilet). I went to a patent attorney.
His advice: File a submarine patent, wait til someone else has the idea but is stupid enough to manufacture, sue him for low enough that he wants to settle.
Why not manufacture? He explained that the patent system is designed to help the incumbents. If you manufacture, the big players will make some minor change, file for a patent as an improvement to the original, and ignore you. If you go to court - who has more lawyers on call?
At some point, you may iterate on your original product. At that point they will sue you with the patent they have obtained for their improvement. It doesn't matter if you infringe, it doesn't matter anything. Guess who has more lawyers? If you are lucky, you can settle for just giving them your IP plus your legal fees.
Many many inventions and improvements have been created by small guys, but they don't go to market. Because if it will disrupt an existing big player they will be sued. For any reason under the sun. Because the legal system favors the side with the funds.
And that is even without considering the companies in China et all that will just copy your idea wholesale, at a fraction of the price, and are untouchable.
The patent system helps the incumbents, but does nothing for the little guy.
A better system would be to use the money currently spent on the patent system to give grants to anyone who comes up with a new idea. [And you can even perhaps have some way for the general public to weigh in.] The smaller the company, the more the grant available. With funds, you could actually try to develop a brand, and the competition across the board would help everyone.
I'm not an expert on patetnts, but that seems backwards to me. If I get a patent for something, someone else can make a trivial change they call an improvement, admit their work is derivative, and get a patent for that without any cooperation or licensing from me?
And then if I iterate and get sued, even though I can show I hold the original patent it's not a slam dunk win for me in court?
I like this as a direction to push, even if there may be some details that are later discovered to require correction. Is any org pushing for this?
Limiting the time of the protection would go a long way towards its acceptance. With the speed of technology today, 3-5 years seems reasonable. Anything beyond this is an overkill. This also discourages early filing (which now causes to mostly stifle related exploration) and encourages filing when the technology is ready for commercialization.
I also view the goal of the patent system as benefiting a society by encouraging the people to innovate. While somewhat similar to the current goals (rewarding the inventors) it is subtly different because its success and failure is determined not by the fairness to each inventor but by its statistical impact on innovation. If it tends to encourage innovation, even if in a few corner cases the time limits are too short for the inventor to reap the full reward, so be it. If it tends to stifle innovation by focusing on fully defending every inventor it needs to be repealed. My 2c.
Software authors, like other authors, can protect their creations through copyright. That's as it should be.
Allowing patents on software is about as sensible as allowing JK Rowling to patent the concept of a storyline about a boy who was cursed at birth by an evil wizard, and must defeat said wizard in order to fulfil his destiny.
I'm not sure how much is current system effective today when biggest world producer's just can decide they are not going to respect that.
> an inventor should be able to try and get profit from their invention
Well then, let the inventor try and get profit from their invention. An idea is never enough: it's the execution that matters, so let the inventor go forth and execute.
> If we take the position that an inventor should be able to try and get profit from their invention how can we protect that without patent system?
What about: inventors should be able to try and get profit from their invention like anyone else.
Software patents are bogus. Under the law, algorithms cannot be patented but clever lawyers figured out ways of getting the USPTO to issue software patents despite the intent of the law.
patents were intended to protect the little-guy, the inventor (meaning a person), with an artificial monopoly so he could make money.
they weren't intended to be used by huge companies to help further their already impressive monopolistic empires. they collect them and use them as a kind of insurance or mutual-assued-destruction policy. microsoft won't sue ibm (and so on) because both have such a vast portfolio of garbage patents that they know they could tie each other up in litigation for 100 years, and they don't feel like paying for it.
then you get to the trolls. our government is actually enabling and encouraging a semi-legal form of extortion. the big companies can pay or pay to fight. it's a tax on everyone in the business though, even when winning. only the attorneys really win here.
it's obvious that the time and place for patents has come and gone.
- they don't do what they are intended, do much more harm than good.
- other comments are 100% correct, "software" (algorithms) and other similar areas like the one in TFA should never have existed in the first place.
- the pursuit of patent portfolios has created a surge of really bad patents. it's really been the entire life of the internet and modern computing. "one-click-patent", etc. and far worse. so why actually encourage more and lower quality patents?
- it does no good for an inventor to go get a patent, because even if the spiffy device is successful at market, the chinese will steal it with or without the little patent number engraving on the bottom. hell, they'll copy that too. if you find out who they are and sue them, they'll pop up as another company. if that's who you are competing against, why waste time and energy on anachronistic non-functioning armor.
- better option for an advantage from a unique software algorithm is to: be to market first and, if desired, keep it a trade secret.
- i think it'd be relatively easy to fix. first, allow the patent-holder to pick or easily challenge the venue (to kill east-texas) and second, allow awarding of attorney costs for the defendant, and force the plaintif to post a bond to prove they can pay them.
- but why bother? just abandon the whole system. it literally helps nobody.
patents were intended to protect the little-guy, the inventor (meaning a person), with an artificial monopoly so he could make money.
Did that actually broadly happened over the history of patents? It sounds intuitive enough that patent protect the little guys, it's another if it actually happened for any period of time.
I remember reading that the Wright brothers spending time and money suing other inventors and pioneers over their patents. Ultimately, they weren't very successful at building a business and fell behind. That capital spent on a lawyer could be spent on their business or improving their machines.
As I recall, the entire US aviation industry was locked up for decades in patent conflicts, and were as a result way behind the rest of the world (where US patents were not valid). The only thing which could fix this quagmire was a miracle, which actually did occur in the form of WW2, causing the US government to nationalize the entire thing, allowing people to actually innovate again, which the US air force desperately needed.
i think it did in the US in the 18th and 19th centuries. Colt for example. many old-west certainly had lots of individual or small companies patent gadgets. i think by the 20th century, it was already a big-business only thing. or was that just the economy in general? doesn't matter.
the Wrights are kind of a sad story, but one that HN readers should be familiar with. technical excellence and just flopped at the business side. they got far too wrapped up in secrecy, almost paranoia, and like you pointed out, it just delayed and eventually ruined them. strain from fighting basically killed Wilbur at 45 years old.
> it's obvious that the time and place for patents has come and gone
This is a ridiculous (and incorrect) opinion being presented as fact, coupled with a lot of strawman arguments.
The fact that the implementation of the patent system has been massively abused over the past few decades does in no way imply that the theory is flawed and that
> just abandon the whole system. it literally helps nobody
This entire comment is as ridiculous as claiming that "kids keep graduating from high school with barely any education, we might as well abandon the public school model and have every parent teach their kid".
[flagged]
This comment is absurd.
> it's obvious that the time and place for patents has come and gone
This, is an opinion. It is not a fact. You cannot prove it, nor does it have any grounding in reality.
Factually, your statement is an opinion, and claiming that
> you argue that my statement is a falacy using the same falacy
...is objectively false. Your complete lack of logic throughout your entire post shows that it doesn't deserve an answer, because there's nothing to answer to.
Granting intention over centuries-old institutions is a fools errand.
Whatever the people that created them intended, they were used at first to grant favors to well connected people (some times for good reasons, other times not), and then to enable industrial monopolies on planned economies.
That last one is the format that the modern version is based on.
kinda prickly? when i think we agree.
i brought up intention because it's a) historically true and b) to contrast with the complete opposite that they developed into. you get rid of something without acknowledging what it was intended for and looking at whether it's still helping or not. i don't think any of that is foolish.
Is that how patents are used today?
The easiest way to understand the issue is to consider cooking.
A chef can’t sit around and think up recipes and file thousands of patents. We explicitly agree in the law that it would be incredibly backwards negatively affect society if chefs got exclusivity on recipes and could sue home cooks for being creative. And chefs are still thinking up new recipes and using them in their restaurants because unique meals and flavors offer a competitive advantage. The reward is that you can keep your profits in our capitalist society. See Coca Cola and KFC. You have to use your knowledge in a novel invention to benefit.
In the same spirit, it’s not wanted to have people sit around and ideate about which instructions, and in what order, when fed to a processor machine, make it do useful things. Thousands of people program processors every day and we don’t want them getting sued because someone else figure out an efficient way to reverse a linked list. You have to run a software service that provides value and get people’s money that way.
Even if we concede that patents are useful in their intended purpose to protect actual manifest inventions, not just ideas (patent office is supposed to require a prototype invention to be registered with your patent), that’s certainly not what patent trolls are doing and that’s not how the majority of software patents work.
For the purpose of discussion, to get close conceptually to some sane type of sane SW patent scheme you’d have to 1. make a linked list reversing library, 2. register the complete prototype source code with the patent office, and 3. be actively maintaining and selling your linked list reversing library for your patent to even start to hold water. But even then you’re running up against problem that software is purely algorithms (just like recipes) and those aren’t even originally patent-able.
Apple can’t patent an “object oriented operating system” unless they’re offering that system in isolation and as a whole to consumers for use, which they’re not, but someone at the patent office got tricked into granting them a patent. Patents are supposed protect the inventors of complete products, not tiny building blocks of knowledge (algorithms). The “patent hate” is because despite the arguably good initial conditions, the patent system has been abused by greedy people who are not benefiting society in any way whatsoever. And you should be infuriated by that.
There needs to be a "use it or lose it" doctrine/law around technological IP. I get all the arguments around creating a market for the patent rights, but it just leads to these bottom feeders creating no value and increasing costs for the industry and consumers.
Patents are property and we need taxes/fee on it. $500/year per patent, will ensure use it (if you think it is valuable) or lose it. This is no different from domain names, most people pay $10 - $100/year just to keep a domain name. Some domain names are used, most aren't. These taxes can fund free education or healthcare or defense.
> $500/year per patent, will ensure use it (if you think it is valuable) or lose it.
Not really.
Some patents are fantastically valuable to patent trolls. Some are not. A $500/year fee isn't going to deter a "company" of lawyers who are making millions soaking businesses with patents that should never have been granted.
If you want a scheme that actually does what you want, you'd need something like:
The owner of the patent chooses the fee that they pay per year. And anyone can pay that fee * the remaining years on the patent * some multiplier (probably in the 2-10 range) to prematurely end the patent.
So, if someone's got a patent on a hamster powered submarine, they can keep it for $1 per year (or whatever the minimum should be). And that's fine... because it isn't harming any one since no one wants to build such a thing.
But a patent that a troll is using to milk the industry with will need to have a pretty stiff fee or people won't play ball, they'll just buy out the troll.
> The owner of the patent chooses the fee that they pay per year. And anyone can pay that fee * the remaining years on the patent * some multiplier (probably in the 2-10 range) to prematurely end the patent.
So basically ending patents? If you invent something fantastic, say a way for a self driving car to perfectly sense its surroundings, Ford could just come in and pay whatever amount to invalidate your patent and prevent you from bringing your invention to market?
Doesnt sounds constructed to me.
The "you" in that case could very easily be a startup
Patents are vital to bringing things to market. It lessens the risk associated with investors getting returns, which allows funding for development.
I get that people don't like patents because they sometimes get abused, but on the whole I think we wouldn't have a lot of the things we take for granted if they didn't exist.
I agree that patents serve a purpose, but taxing intellectual property similarly to other property doesn't seem like it would end patents.
A slightly different approach would be for patent owners to declare an estimated value and pay property taxes on that value to enforce their monopoly. (They may also wish to update the estimated value periodically as circumstances change, perhaps every few months or years.)
To keep owners honest, anyone is allowed to pay the owner a multiple (1.5x? 2x? 10x?) of the patent's current estimated value to invalidate it.
If the patent owner wishes to hang onto the patent but cannot afford the taxes then perhaps banks would be willing to offer a patent equity line of credit, like using any other income-generating property as collateral.
To use your example, if you estimate that your self-driving patent is a ten million dollar asset and Ford pays you twenty million dollars to invalidate it that seems like you come out ahead because you have more than the patent was worth and can still build your product.
I don't think that the patent should be allowed to be ended early; the fee is paid to keep the patent protection in place.
> Some patents are fantastically valuable to patent trolls. Some are not. A $500/year fee
Part of the problem is having a huge number of BS patents driving up the cost of going through all of them to figure out what's what.
Its not the only problem with patents, but i think a "property tax" solution would solve some of the issues. I'd like it to be incrementing each year - like first year $0/year, and increasing each year so the longer you keep things out of the public domain the more you need to be able to self-jystify its value.
Maybe when you file the patent, you have to submit an anticipated value statement and you are taxed some % / year on that anticipated value. If somebody violates the patent, you can sue them for up to the amount you anticipated, but not more.
In the future you can amend the value claim, but you can only adjust it down.
If you invented and patented something in the US in 1989, you'd have protections until 2009 at the latest. If it wasn't usable until 2013, then that sucks for you, but it is what it is. Your invention doesn't get 20 guaranteed years of profitability. You get 20 years to figure out how to make it profitable.
The two are very different concepts.
edit: this is why you don't patent every damned thing, just the things that you believe will be profitable over the next 20 years. Otherwise, the cost of researching and filing the patent, as well as maintaining it, may well exceed whatever profit you actually get from the thing.
Yeah, that’s roughly how it would work, except 30 years feels way too long.
If other people are better than you at seeing what some technology could be used for it, then maybe we should lower the barriers for those people. The whole point of the patent system should be to provide the greatest benefit to the greatest number of people.
That's awful for protecting innovation. You don't know the market value of each individual invention with that level of granularity.
Companies and researchers should be free to patent to protect themselves, but patent trolls with no clear technological development (no lab, no product, no licensing+developing) should be stopped.
It seems easy to me to draw a bounding box around these behaviors with a simple test. Perhaps like a Howey test [1], but for patent trolling.
>a scheme that actually does what you want
This seems like a pretty bad attempt at such a scheme.
>making millions soaking businesses with patents that should never have been granted.
Invalidity arguments and IPRs suddenly aren't things?
> Presumption of validity
It's just an evidentiary presumption that is trivially rebutted with any evidence.
The vast majority of these decisions are against the patent owners, which I'm sure you are aware of. Also, I wasn't the one who characterized something as a patent that "should never have been granted."
I offer as an alternative:
IP is property, and it's taxed at the value you declare that it's worth.
However, if you swear to the IRS that it's worth $500/yr, then you can't claim in court that a violation of it is costing you $10,000,000/yr in losses. That would be perjury.
Your patent is worth $10,000,000? Awesome! I bet your local school district will love to hear how much you'll be paying in taxes on it.
I offer one more alternative. Double the tax every year, and once the ip holder decides not to pay the tax, IP is released to public domain. No compnay has money to keep IP indefinitely in such a scheme.
I've proposed this alternative on message forums like this for probably 20 years now, but specifically for copyright. I think it'd be a great way to let Disney and co. have the long copyright terms they want for extremely valuable properties, but get other stuff into the public domain much, much faster.
Instead of doubling every year, my proposal is 5-year terms: the first is free, then $1000 for the next 5, $10k for the next 5, $100k for the next 5, etc. Feel free to adjust the actual dollar amounts, but you get the idea. Most stuff would be in the public domain after 10 years, if not 5.
Music is coveredby copyright , an entirely different law
A lot of patent trolls are very small companies though
Music compositions get covered by copyright. Patents are another section of law.
It'll only be impossible to hold for long periods of time. We can start the tax at $1, it hits $1mil after 20 years - and for 99.9999% of IP by year 20 it's either clearly worth zero or clearly worth >$1mil so it'll be an easy choice. It'll force things into the public domain faster and make it expensive to hold a big bullshit patent catalog, but for actively used properties it'll be fine.
Companies are going to want to sell in one of the richest markets in the world; they can either pay for IP protection or not be granted it.
edit: I'm not suggesting these exact $ values as clearly being the correct ones, it's just an example.
You do not seem to understand how patents work because of other comments thinking that you can patent something without publicly disclosing the invention. In and of itself, this comment is silly because the answer to your question "What do you think will happen if IP becomes impossible to afford, as it surely will under such a policy?" is "exactly what happens when patents expire currently." It appears you are unaware that companies still invest in R&D knowing they at most get a few decades of exclusive rights.
in the software ip case, they can invest in building competitive products in an open market. If your software IP is a secret then don’t publish!
Something like this genuinely does hurt very small businesses or inventors who invent something actually valuable but don't have time to quickly scale up.
What I like for IP laws is as follows:
When you create a protected work, you pay a very small fee. Say, $1 for copyright, maybe $500 for a patent.
Each year thereafter, if you wish to maintain your IP protection, you must pay double what was paid the previous year. Otherwise the property reverts to the public domain.
This ensures a period of protection if it's genuinely needed, but ensures that everything will eventually enter the public domain, especially in the case where no one is making any economic use of the material.
Even if we halve the patent protection period, that is still ten years during which a patent troll can scoop up a BS patent and then simply send threat letters and rake in money, while chilling any actual advancement.
Currently, there's an incentive to disallow progress. If someone does not want to make use of their own patent, they are currently incentivized to sit on it and keep the ability to create that thing out of the hands of anyone else, "just in case". If we shorten the period as you suggest, to half (for example), then that freezes that progress for a decade.
If an incentive is created to put inventions into the public domain if one is not using them, then that is better for everyone.
And by doubling the fee each year, it becomes financially infeasible for even large companies to keep things out of the public domain forever. A fee of $500 that doubles annually would, at the 20 year mark that is the current patent lifespan, cost a half a billion dollars to renew for that year.
Something I've wondered about - you specify a value and pay a tax accordingly. Anyone is then able to buy it from you for that price. Have some short term part for free, then fees scale over time.
That is fiendishly clever.
The value to me would be the replacement plus hassle value.
There's clearly values I'd easily accept, you offer me a hundred grand for my car and you can take it whenever you want.
Now for regular items like a car this would be hard. How do I value it and how do I not get caught out when second hand sales spike and I don't follow the markets?
But we're not talking about everyone's car. We're talking about asking the state to forbid others to make or build certain things (yes I know it's more detailed but you get the meaning).
alternative: anyone is able to make it public domain for that price
Ok? It results in them paying taxes while they hold it, to the value they ascribe to it. If they say it's higher than the original buyer, we get more in tax revenue
Or have I misunderstood your point?
That would effectively kill software patents. Which is a fine outcome.
This is better than what I proposed.
Doesn’t work.
Lots of people don’t know what their IP is worth, and it can change with market and tech trends.
And the damages aren’t based on the harm to the IP owner, but on the benefit to the infringer.
I could have a patent that I think is worthless, but in 10 years I discover that a multinational flat out stole the IP after an NDA meeting. What is the value that I should have declared?
But property usually isn't taxed. Trading is. If you license a patent to someone else for $500/year, you'd pay tax on that $500. But if it's actually worth more, of course you wouldn't charge such a low fee.
Real property is an exception but we're talking about other kinds of property. I don't know of any other kind that's commonly taxed.
To my knowledge, all US states have property tax.
That's the point up thread.
It isn't now, but we could make it so.
> Patents are property and we need taxes/fee on it. $500/year per patent
Those 'taxes' already exist (at least in the US system). They are called "maintenance fees".
See https://www.fr.com/insights/ip-law-essentials/everything-abo...
Failing to pay the fee causes the patent to expire, and be unable to be used to sue someone. So these troll firms must also be paying these fees to be able to sue based on the patent.
This is interesting. So Oracle holding around 52000 patents pays around 23.000.000 USD a year in maintenance?
Yeah, so add a couple of millions on top oof the 23.000.000 a year for lawyers and other staff.
I would be in favor of a fee that is 1024 * 2^n USD where n is the nth year you want to keep the patent.
1st year = 2000 USD
10th year = 1m USD per year
20th year = 1bn USD per year
It becomes prohibitively expensive if you don't use it. After 23 years it would make only sense for the most insane blockbuster drugs to keep going for another year.
Never used a fixed number for anything. Just tie it to a percentage of yearly revenue of the entity. This way you can ensure:
- small companies and private people can afford patents
- big corps do not get an advantage, in fact the bigger they get, the more expensive holding a patent becomes, ensuring they have to use those patents and not patent everything just because
- number of patents any single entity can hold is limited, unless they want to go in debt for holding patents
- there could still be a minimum yearly amount as proposed by you
That just means patent trolls would split their patent portfolios into hundreds of holding companies. Also people would start filing bigger and bigger patents, stuffing more and more claims into a single patent.
Well this is a problem we need to tackle anyways. Splitting things into a thousand holding companies should be with considerable cost as well for those involved with a thousand holding companies.
There is literally no case in which society profits from a corp being split up into a thousand holdings.
Tie it to the expected value of the IP? If you think your idea is worth $1 billion, pay $10 million (1%) every year.
How often are you allowed to change this? Could just undervalue it until you suddenly don't. If you are not allowed to change it that is not an uninteresting idea.
Domain names pay per year because there's an ongoing service attached. There's no such thing for patent (besides fee to file)
Why punish patent holders because of patent trolls or garbage patents ?
Make it unprofitable to be a troll, and they will go away. Trolls need to be tagged , like pirates. There should be rules to make hunting for trolls profitable. For that, you need a "bounty". Here's my take:
In any patent dispute[1], the loser will pay as punitive damages (this is the "bounty") to the winner, the lower of (i) the winner's legal costs, OR the loser's legal costs x 2, plus (ii) loser must disclose the ultimate name of the beneficial owners (or material, if public) of the loser. EINs not allowed. The "trolls" are thus, branded.
The next lawsuit ensues. During research, it is found that one of the parties is a known troll that has lost 1 prior case. Now the damages, should troll lose, are 2X of any settlement OR punitive amount.
Should troll lose again, an extra 2x (total, 4x) gets applied on the punitive damage[1] to the troll and so on. If troll wins, his x is halved.
This does 3 things:
1- Incentivize public to seek out weak patents, or trolls, for a payout.
2- Makes Trolling much harder at scale.
3- Ensures huge companies face risks if they throw their weight around. Bigco can afford $$ penalties vs small fish, but cannot afford to be tagged a 2-4x troll. It makes them an attractive target for bigger fish looking for the 2X or 4X reward challenge of Bigco patent portfolio.
> Domain names pay per year because there's an ongoing service attached. There's no such thing for patent
Erm, what service? A record in a database? How's that different from a patent office? I guess there's fancy registrar website...to do what...help me pay my recurring bill?
I do not think you know the domain business, which I happen to work in (I own a small registrar and know people at registries). The reason domain costs money is to make it more expensive to hoard, not to pay for any service. There is a service but it just costs a tiny fraction of the registry fee the rest they often use for funding various non-profit initiatives to improve the internet not related at all the providing any service. The fee is set where it is to discourage hoarding.
Edit: It is also there to make it slightly more expensive to create scam sites, but mostly for the anti-hoarding.
> Domain names pay per year because there's an ongoing service attached. There's no such thing for patent (besides fee to file)
I work for a registrar and know people working at registries so I know that is not the case. The reason they charge more than like 1-2 dollars per year is to make it expensive to hoard domains.
Sadly though, not expensive enough to actually prevent anyone other than the very low end of consumers from hoarding domains.
I worked for a registrar for a decade+ and worked with a lot of hoarders. Very early on in my career I actually dobbed one in to our local registry authority (because I was naive, and he was CLEARLY breaching the requirements for our ccTLD and so I thought 'Well this is wrong and I should report it') and is how I discovered nobody actually cares about hoarding and just wants to maximise revenue. (Well duh I suppose.)
> loser must disclose the ultimate name of the beneficial owners (or material, if public) of the loser. EINs not allowed. The "trolls" are thus, branded.
So TrollCo will just pay a different homeless person $100 to be the owner on paper for each of their patents?
Sure. Let them deal with getting the homeless persons to sign up. Open a bank account, pay taxes, get credit cards, run payroll, process permits, etc.
I don't think you fully appreciate how tough is to run a business with someone's name on top of every document. Not to say its not possible for a determined actor, but its going to eliminate a lot of options from the get go.
Then, let a judge find out!
Another valuation/taxation scheme I've read about is: you can value your patent however you want, and it's taxed based on that value.
The kicker is: the values are public, and if anybody wants to buy it for something higher than the assigned value (or maybe some fixed percentage above the assigned value), you HAVE to sell. Of course, the buyer is then taxed at the higher value.
That seems like a terrible idea! If you underestimate the value of your invention, some big company can own it for $n+$.01. Or if you have invented something valuable but it takes years to get to market with it, you can go bankrupt in the mean time, or have your ownership eaten away by investors who suddenly have a ton of extra leverage over you.
>>These taxes can fund free education or healthcare or defense.
is it is always a bad idea to ear mark a tax for a specific purpose. Especially if you desire to use the tax as a punitive measure to reduce that which you deem bad for society, if it works now you need to come up with the money for the thing you funded elsewhere because all government programs are permanent
Look at smoking, all kind of things were funded on the back of smoking taxes, and when those punitive taxes worked to reduce smoking the revenue dried up but the budgets for for those programs did not so now the money had to come from somewhere else....
Using the tax code to punish or reward behavior is always bad
Using tax to punish or reward is called correcting externalities. More formally these taxes are called Pigovian taxes and they are supported by economists from all the schools, in similar vein to a land-value tax, because Pigovian taxes do not hamper economic producitivity.
You seem to misunderstand the entire concept of taxation, in its entirety, also. Taxes can either be used to raise revenue, or to correct for externalities. A tax that corrects an externality is valid on its own, EVEN IF, the revenue from that tax is burned or otherwise destroyed. It corrects for market failure, which leads to greater surplus.
> Using the tax code to punish or reward behavior is always bad
Isn't that pretty much the entire purpose of the tax code and why it's so complicated?
It's one of the tools the government has to shape behavior.
Actual tax revenue doesn't really matter since a permanent deficit and ever-growing debt is apparently fine.
While you are correct given the government debt levels and printing of money, on principle taxation should only be used to raise money for public purposes. Not to incentivize or punish behavior.
Allowing the government to use taxation for purposes other than public finance has been and will continue to be an avenue for abuse, and authoritarian control ultimately leading to tyranny
I generally think the principal of taxing property is fundamentally flawed (especially as it relates to property that has a market value that can be quite volatile or hard to value and even more so if the property generates no current income).
My rationale is that it means that only people that are rich can own property as they can afford the taxes, and especially if the property has increased in value over time and has no or small associated cash flows. By all means tax gains on realization (though I’d argue there should be a CPI adjustment to the basis but that’s another conversation)
This is an interesting point of view. Reminds me in some sense of some of the ethical justifications behind land value tax or property taxes.
The intention of legally enforced ownership is primarily to encourage development - and not to incentivize speculation as we seem to be doing in many situations. It seems reasonable to tax such speculation.
I'm inclined to agree with you.
We need a fair-valuation tax; patents taxed yearly on their declared value and mandatory sale of the patent to anyone willing to pay the declared value. Some kind of deferred tax schedule (maybe 5-10 years?) for R&D.
Why would we tax that property (at the federal level) and not others?
What would this do to people who file their own patents to protect their own inventions? Historically, that's been the vast bulk of all useful inventions in this country.
No, the fee should be exponential, to keep people from keeping technology out of the public domain longer than necessary.
For example, maybe the fee is $10000 for the first year. This doesn't come close to recouping the cost of a single enforcement action, but it makes sure that someone has some skin in the game. Then every year the cost gets 10x more expensive. Of course you are free to choose your own base and multiplier.
For someone to keep a patent for 5 years, the total cost would be $10k + $100k + $1M + $10M + $100M = $111110000. Maybe it's worth it for a patent like the light bulb. Probably not worth it for a drinking bird toy. But either way, the value decision is up to the patent holder, and the cost of the patent incentivizes rapid monetization rather than squatting.
Just curious: what about this comment made it worthy of downvoting?
I think a better model would just be something like adverse possession, where if the owner of the patent hasn't developed it, or done certain things it can be nullified.
patent maintenance fees are already higher than that.
amusing opinions that remind me not to trust them
> These taxes can fund free education or healthcare or defense
Why only those things?
Appeal to emotion. Taxes go towards all publicly funded projects, but it’s easier to convince people that a new tax is a good thing when it goes towards these things that benefit everyone.
There are research companies who only do research and get money by licencing their patents. I mean, I really would like to live in a world without patents, but currently those companies do provide value, but cannot exist, without guarding their IP. Yet they would cease to exist, with your proposal.
Issuing a license is a form of "using it" in a use it or lose it scenario.
Those are not patent troll companies. Patent troll companies file patents and then sit on the patent until they can sue another party for infringement, and never make an attempt to commercialize their patent.
Another example of not using it in the use it or lose it scenario is Pfizer's acquisition of Esperion Therapeutics in 2004. Esperion was developing a competitor to Lipitor, so Pfizer purchased Esperion for $1.3BB and shelved the technology to prevent competition with their best selling drug. Had Pfizer "lost" their patent for failing to commercial Esperion's drug, that drug could have entered the market as a generic to compete with Lipitor and severely reduced the cost of statin drugs for consumers.
> Issuing a license is a form of "using it" in a use it or lose it scenario.
Patent trolls will point to their prior victims as current licensees, proving successful commercialization.
> Patent troll companies file patents and then sit on the patent until they can sue another party for infringement
Many of the patents asserted by trolls were not actually filed by the trolls. Most often the troll company simply purchased the patent from the original owner (or, often, a bankruptcy court) and then they proceed to go about suing others using their newly acquired weapon.
Worse yet, the troll company was often created for the purpose of owning that specific group of patents. That limits the damage from a lawsuit gone wrong to just that group of patents, and not the many other patents owned by the hundreds of other similar troll companies that the same lawyer runs.
We really need a patent troll version of anti-SLAPP laws. To go past the shell company, and hit the people who run them.
What's your bargaining position when you lose a patent that might be useful for only a few companies if you don't issue a license?
If it's only useful to a few companies then it must be niche IP and therefore valuable.
That is hard I think, as there are patents that are not licenced because no one wants to - but I think every holder of a patent must licence it to any party interested. So just "sitting on patents" is not really possible to my knowledge. (but I am really not an expert here)
Only for patents used in standards - where the standard enforces FRAND/RAND/other licensing schemes to insure that 'standards-required' patents are available to all. https://en.wikipedia.org/wiki/Reasonable_and_non-discriminat...
This is Qualcomm's big business (and others), getting their patents into standards like 5G and then charging people a fair amount to use it - and they have to license it to everyone, even their arch nemesis. Or you just buy their chips.
For a patent of something you invented, but did not submit to become part of a standards-body, you absolutely can choose not to license it for any amount of money.
"Patent holders are not required to license their patents last time I checked."
That is apparently right and I learned it wrong (but it does seems wrong to me).
edit: after reading the siblings answer, I apparently wrongly overgeneralized the way it works with patents in standards
Why wouldn't they be able to exist?
If you invent something, there's a work product. There is documentation, notes, blueprints, CAD files, software, etc. You can sell this and license it however you want. You can sue people that use it without a license. More importantly, you as the original author can use the IP as you see fit.
All of that is what I would put under the category of "use it." If you stop licensing it, then you "lose it."
Personally I don't think you should be able to sell the invention as an idea to another company that only relicenses it, but I get that there needs to be a market for IP itself.
> If you invent something, there's a work product. There is documentation, notes, blueprints, CAD files, software, etc. You can sell this and license it however you want.
These would only be protected by copyright. So if you invent something but do not have the resources to create the implementation yourself (and therefore cannot patent the invention under the scheme proposed by GGP), but you licence the work products (documentation, software) to one or more companies who can then implement it, a larger, well-resourced competitor can just reimplement it without paying you as long as they did not need to use any of your documentation or software. So that reduces the value of your work products.
But if the converse happened, e.g., your customer reimplements something invented by the large competitor, they can get sued, because the large company, being able to implement their invention, can therefore file a patent. So it amplifies the effect of having more resources.
It would be fairer to treat the large company the same way, and only let them copyright the work products rather than patent the invention, putting them on the same level as a smaller inventor.
Could you give examples of such companies (I am really curious)?
> Could you give examples of such companies
One example is ARM, which licenses the processor designs they create, and do not build or sell the chips themselves.
I am aware of a few orgs that license interesting software R&D often with engineering support, sometimes with an equity component. Another variant is the R&D holding company that creates separate companies to commercially exploit the R&D in different parts of the public or private sector. Most such R&D orgs are very low-profile, they usually don't have an internet presence. Many use few or no patents these days, those economics don't make sense unless the business is largely owned by lawyers, which creates a different kind of company (much closer to patent trolls).
It is a bespoke kind of business, tailored to the specific technology and investment network of the people involved.
Great point. And then if one of those companies sold a patent that wasn't immediately licensable to an IP firm for an immediate infusion of funds should the IP firm be considered a patent troll?
Maybe the patent system could work, without the possibility of selling patents at all? Have not thought it out, but I know musicians also seldom profit of selling their IP to the major labels. But they are pushed into it.
It means the right is exclusively granted with them. I.e. no one besides the author gets to control the exclusive rights of a patent. By your logic, they can't even license it because "it's an exclusive right".
ARM for example.
Whilst good intentioned, it might well work the other way:
Dedicated patent trolls will trivially overcome any hurdles by cheaply doing just enough to legally demonstrate they are working on future commercial applications blah blah honest.
Meanwhile, it likely puts up a prohibitive cost that will prevent the smallest genuine inventors from inventing?
That's the big problem with societies based on the letter of the law vs. the spirit of the law. Human nature has repeatedly demonstrated that if the letter of the law is what matters, people will work night and day to technically comply with the letter of the law, so they can continue to do the bad thing legally. Whole cottage industries will spring up to guide businesses right up to that legal line and sell them the tools and techniques to ensure they barely don't cross it.
In such a society, the rules need to be enormous and complex, much more than a 2 sentence HN post, to eliminate all the edge cases and loopholes everyone will naturally want to take advantage of.
just abolish the patent system entirely. at minimum, for software
I'm on board with this. It shouldn't exist for software, I'd be happy to see it go for hardware too.
I'd be more on-board with the idea if non-software patents only had say a 5 year lifespan
compare and contrast to industry practices today
fantastic article
100% agree.
Pretty sure the original idea of patents was to protect the inventor while they brought a product to market or licensed the patent to others to improve their products.
Holding a patent without even attempting to bring the idea to market should invalidate the patent after some reasonable amount of time.
The whole system as it is today needs a hard sanity check.
>Pretty sure the original idea of patents was to protect the inventor while they brought a product to market or licensed the patent to others to improve their products.
It was to protect the inventor so that when they did take it to market, or license it, someone else couldn't just make a copy of the same thing and sell it for cheaper not having to recoup r&d costs.
>Holding a patent without even attempting to bring the idea to market should invalidate the patent after some reasonable amount of time.
Patents are already invalid after a certain amount of time. I'm not sure what you think a reasonable time to bring a new invention to market is, but it's not far off from what the limits on patents are already today anyway.
By the way, where do you think these patents come from? They belong to companies that couldn't succeed in the market for various reasons. They go under and they sell their assets, which in these cases include any claims that could accrue to them by the short period of exclusivity granted to them for their invention.
While appealing to me as an entrepreneur, if I step back, I don't see how this law could work. Patent Law is the regulation of intellectual property, as such, the way property is regulated, informs the way intellectual property should be regulated.
Would it be possible to pass a law that says you can't own a patch of land unless you develop it sufficiently for some public utility? You can't own it unless you build a house on it, or an office? What about all the rough land, that isn't close to a development yet, but is anticipated to be? If someone can tell me how a law like this has been shown to work, perhaps even in a limited case like densely populated zones, then I might be persuaded.
> Would it be possible to pass a law that says you can't own a patch of land unless you develop it sufficiently for some public utility?
This is exactly how mineral rights work. The federal law says you need to do $100 worth of development on every claim every year to maintain it [1]. This is not something new.
[1] - https://www.ecfr.gov/current/title-43/subtitle-B/chapter-II/...
Ah okay, thanks. This is what I was looking for.
Intellectual property is not property. It's a misnomer. Property is inherently scarce and exclusive. IP is not exclusive. If I have an idea, and you have an idea, and we share those ideas -- we both have two ideas. What IP is, is an economic rent, a protectionist measure to a class of individuals. It's a tax on the productive economy and it reduces competition and thus inflates prices. It is enforced by the monopoly of violence that the state holds. The burden of proof for justifying this violence for this end is on the proponents, not the opponents.
>You can't own it unless you build a house on it, or an office? What about all the rough land, that isn't close to a development yet, but is anticipated to be? If someone can tell me how a law like this has been shown to work, perhaps even in a limited case like densely populated zones, then I might be persuaded.
And as for this, we already have this. It's called a land value tax. A tax that discourages unproductive land use.
They will fake usage. Software parents should not exist
Would work even better if patents were non-transferable and only assignable to actual people, not companies or other entities.
What if Bob and Alice and Charlie all had a hand in developing invention X... suddenly we would find ourselves just redefining companies.
Then you assign the patent to them collectively by listing them all as inventors. It's not redefining companies because it's still assigned to people, not an abstract entity that can arbitrarily change hands in the future.
law of unintended consequences
the moment you put an expiration date on patents due to lack of use, watch moneyed competitors sitting around waiting for your patent to expire instead of using yours to bring it to market
You mean it would bring the price of licensing the patent down? I don't see the downside.
I'm not sure how small inventors could benefit from their creativity.
What is at the core of this need to steal other people's ideas? HN is supposed to respect the rule of law and western respect for innovation and collecting the fruits of your labor.
If someone won't give you a decent price, reverse engineer their work and come up with a creative alternative.
I'm not arguing that its OK to patent code or abstract ideas that are the basis for BS "catch all" patent infringement lawsuits or amazon 1-click buy nonsense. I'm talking is about real inventions. Television, radio, wheeled luggage, etc.
I also think that code should be copyrighted, but cannot be patented.
then you shouldn’t form the patent then as you would still just be increasing costs for the industry by existing and delaying things
you could have just written about it on your blog and been the same place and been a net positive for society
I'm not arguing that its OK to patent code or abstract ideas that are the basis for BS "catch all" patent infringement lawsuits or amazon 1-click buy nonsense.
I'm talking is about real inventions. Television, radio, wheeled luggage, etc.
I also think that code should be copyrighted, not patented.
Patents use to mean something else, and I can see we are talking about different things.
So if I invent something but don’t have the capital to manufacture it myself, I shouldn’t be able to make money from licensing it to companies?
> but don’t have the capital to manufacture it myself
You're looking at 10k to file it, and then all it gives you is the ability to sue. If [insert company] violates it, you could easily be looking at 100k+ for litigation that you may or may not win.
> So if I invent something
My problem is you don't need to "invent" anything. You just need to be the first to file the paperwork (and have the cash to do so).
"[sensor] on [smartwatch, glasses, goggles, belts, chairs, whatever]" and now nobody else can do it for 20 years. Even if it's blatantly obvious that an chair can sense if you're sitting in it to turn on the tv automatically.
Wouldn't that be a "use it" situation?
How are patent trolls not "using it" then? If licensing the patent is using it, this suggestion does nothing to prevent trolling.
Love this extract: "Cloudflare’s hard fought victory, the culmination of three years of litigation, is a strong warning to all patent trolls–we will not be intimidated into playing your game."
Thank you CloudFlare for doing your part!
Cloudflare is like Google early days. They could spend resources on things for the good of the all. In this case they’re spending millions when they could have settled for much cheaper. Thanks Cloudflare.
I think this is just basic game theory.
If they settled the trolls would just keep coming.
If they fight the patent extortion then trolls are going to think twice before suing them, for fear of losing .
The company that I used to work for, had a vast patent portfolio.
They were also getting sued regularly, by patent trolls.
They had really good lawyers, and had a basic policy, to never settle with trolls. It wasn't altruistic. They just didn't want to get bullied. I'm sure that they also went after other companies, and there was probably a lot of wheeling and dealing. That's one of the reasons that corporations like to hoard patents.
They used to require their engineers to file a couple of patents a year. I am on a patent. I got a dollar for it.
Sure it might well be in Cloudflare's self-interest, but it's still good they're doing it this way. If it was very obviously the best thing to do, other companies would do likewise. The fact that Cloudflare's approach appears novel suggests it's not just simple self-interest.
Hope they wouldn't end like google. But you are right. Thank you Cloudflare.
You either die a hero or you live long enough to become a villain.
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> it took a mass shooting to get them to stop protecting 8Chan
While I agree with moving against bad actors on the internet, it's not CloudFlares role to play the censor. Let's be real, legislators and law enforcement already have the tools available to move against these type of platforms and pushing corporations into censorship gives me the same kind of vibes like when politicians ask for ever increasing (and useless) surveillance and empowerment in law enforcement capabilities.
Since when were internet companies part of law enforcement?
CloudFlare will be much scarier than Google as a villain
May their future noble side quests be successful.
Newegg was famous for doing this as well. Glad to see Cloudflare keeping the "Don't be evil" concept alive.
Newegg's fall was so sad to see. From an top-notch seller of tech with an admirable legal team that made headlines, to yet another no-name online flea market.
So true. Thank goodness for Microcenter and B&H. Especially the latter still has a hand-curated product selection.
It probably wouldn't have been cheaper. The settlement would likely look like a fixed fee for previous use + yearly fee for X years before renegotiation, renegotiated y times before the patent expired.
It's likely that over the lifetime of the patent, the total cost would have been more than the cost to fight it, and as the a sibling pointed out, settling begets more suits + settlements. It adds up fast.
This isn't Cloudflare being "good," it's in their best interest to fight frivolous suits.
Why did none of the other companies listed in the article fight it, if this is the case?
Maybe Sable saw Cloudflare as a juicier target, since the other companies listed are all hardware manufactures and don't operate a large consumer business like Cloudflare (leading to very, very different usage numbers). Or maybe Cloudflare thought that they had a better chance at trial against hardware patents, since they don't make router hardware themselves.
I am still like a 10% sure cloudflare is a government run honeypot.
If a patent officer denies a patent, the patentee can resubmit the patent. Then by procedure other patent officer needs to review the application. They do this ad infinitum until they get their patent granted. It's a denial of service attack. The service here being "skilled employees" and the denial being "we annoyed the organization into submission". This is how most ridiculous, say Red Digital Camera's, patents get granted.
This was a great write-up and getting a win like that in West Texas is no mean feat. Thanks for fighting for it Cloudflare.
>The patents relied on by Sable were filed around the turn of the century, and they addressed the hardware-based router technology of the day.
At first I was wondering what routers existed back in 1900, then realized it was not that turn of the century. I think this is the first time I have see 'turn of the century' refer to 1999->2000.
Chicago Manual of Style has some good usage suggestions on this...
https://www.chicagomanualofstyle.org/qanda/data/faq/topics/U...
>A: Instead, write “at the beginning of the twentieth century,” or “at the end of the nineteenth century,” or “in the years around 1900.” “The turn of the century” is useful only when the context makes it obvious which turn you’re talking about.
Of course when talking routers I guess the context was clear.
FWIW I also defaulted to 1900 and think mentioning the millennium is far less ambiguous than the century.
What would be required to get a court to order Sable pay the legal fees Cloudflare incurred?
Quite a bit.
https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...
Versus https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee... in much of the rest of the world.
Is this still true, considering how the Supreme Court has decided a similar case against patent trolls[1][2] in the past?
[1]: https://en.wikipedia.org/wiki/Octane_Fitness,_LLC_v._ICON_He....
[2]: https://www.forbes.com/sites/danielfisher/2014/04/29/patent-...
As the second link notes, that helps only in "the most egregious cases of misconduct".
In the opinion it says that it merely has to be "exceptional", I would think Cloudflare has a good chance at winning their case.
They ought to do so, if only to discourage patent trolls.
Link: https://web.archive.org/web/20140429231129/http://www.suprem...
Relevant part on page 10.
That alone likely wouldn't help, because often patent trolls are relatively small entities built around the patents they're trolling with. Once those patents evaporate, there isn't much value to be gained, so the limited liability company now owing millions in damages simply goes bankrupt and the people behind it start trolling anew with new patents and a new company.
We should hold the lawyers accountable. If you as a lawyer bring egregiously bullshit cases, you should be on the hook for the costs.
Courts only order that in cases the lawsuit is in bad faith by one party.
There's obviously inefficiency in the system - a big cost every time a decision involves lawyers and even more if there are juries.
So we should understand that we don't have a way to be perfect and think about where to balance the trade-offs.
We want to give people a chance to make money before they are wiped out by those that copy them but I don't think we have an interest in someone "cornering the market" indefinitely.
We could reduce their lifetime - that would cut a lot of decisions.
We could limit the amount of money a patent is allowed to return based on an estimate of what it cost to create plus a reasonable profit rather like a kickstarter campaign.
We could cancel software patents altogether.
Doesn’t this just mean trolls will sue everyone except CF going forward?
Seems like a valiant stance but still short of what is needed something industry wide - something to invalidates this “business model” entirely
If you don’t enforce a patent as soon as you become aware of it, it becomes much harder to sue (similar to trademark I believe). I could be wrong, IANAL
Serious question: What if you run a small blog with a newsletter and some troll comes along and sues you - how do you defend yourself?
Even if the troll's claims are completely ridiculous, if you don't have a few $100k lying around for legal fees, you might not even have the option of going to trial. What do you do in such a case?
I’m not in the US so, YMMV, but in France, I subscribed a "legal insurance".
It will cover enough fees to at least give you enough insight about what is happening, if you should defend your case, if you are faulty or if you should just ignore the threat.
Also, even if our judiciary system isn’t perfect, I doubt you will find a judge that wouldn’t be comprehensive of a random being attacked by a corporation. Especially if there is no obvious malicious intent or personal benefit, you only risk some symbolic fine and the order to stop.
So, I would probably ask for judiciary advice and either ignore or comply to the troll.
You bend the knee. The legal system exists to serve the rich.
Imagine I'm a small software company, and I can't fight a patent troll, and I don't want to pay them or go bankrupt in legal costs.
Can't I short-circuit that by just selling services elsewhere?
Aren't there companies that just refuse to abide or negotiate with patent trolls, out of spite, what happens then? Can a patent troll shut down a company? At some point, wouldn't that make the news? What are the risks? What allows patent trolls to have legitimacy?
I can understand that it's mostly a scam operation to extort money to those who want them to go away, but that can't always work.
I've heard it's mostly a few courts in Texas or elsewhere. Isn't it possible to just not interact with the states where those patent trolls are?
This is great. It’s very expensive to take these cases to trial. Cloudflare could have just settled and spent less.
How can it be, that the US legal system derailed so much that such trolls can exist? A regular person or small business >>can't afford<< to go to trail and is therefore willing to settle... and patent trolls are living on this situation like parasites...
On the basis of prior blog posts written by Cloudflare on this topic, our firm hired Charhon Callahan Robson & Garza PLLC. I can personally recommend Steven Callahan for this sort of patent defense, their work product and results for us have been excellent.
@CloduFlare Sell Movie rights to this story to cover legal fees please! That would be so funny.
It would be an interesting idea to fund a company (probably best as a non-profit) that takes patent trolls to court selecting cases based on what trolls are suing and where we can find prior art. Troll the trolls.
Wasn't one of the key purposes of Patents to catalog inventions (not just to encourage their creation)?
Today we have Wikipedia and other free open databases for that.
It should go beyond invalidating patents. Patent abusers should be persecuted for racketeering. Because it's exactly what they are doing.
Patent trolls are a wart on the tumor that is software patents.
"stop the trolls through prior art"
Use Alice instead.
Using prior art is a waste of time.
Reminds me of the patent troll from Silicon Valley
Software patents should not exist.
Ok I'll bite, why stop at software?
Software patents do not provide the benefits other patents do. Name a piece of software that would likely not have been written if it wasn't able to be patent protected. Now compare that with other industries like pharmaceuticals, textiles, chemical processes, etc. Software is different because it's more straight forward engineering than explorative science. If an implementation is obvious to anyone with the prerequisite knowledge, it's not patentable and there's really not much, if anything, in the software realm that meets that criteria.
Software R&D has mostly not been patented for many years because algorithm patents are effectively unenforceable outside of narrow contexts, so it is largely futile. Computer science R&D is almost universally treated as trade secrets now, which have proven to be effective and defensible in many more cases.
The consequence of this is that the state-of-the-art in many areas of software are not in the public literature and there is no trivial way to learn it. Ubiquitous deployment in the cloud greatly limits the ability to reverse-engineer the underlying architectures, data structures, and algorithms. This is notionally the situation patents sought to avoid, but the practical unenforceability of algorithm patents has made it the default outcome regardless of whether there are patents on software.
> Name a piece of software that would likely not have been written if it wasn't able to be patent protected.
That’s a fantastic argument against software patents. I can’t believe I’ve never thought about it in that way.
If someone invents something truly novel I think they deserve the first right to make money off it. The extra bonus of having them file a patent is that when it expires it becomes free public knowledge for everyone. The problem for software is that the duration of the patent is way too long for the pace of innovation in the world of software, to the point that a reasonable duration patent probably wouldn't even be worth filing for after the time it takes to process. In other fields it's not the existence of patents but the games and loopholes e.g. pharma companies coming up with a slight reformulation they can patent again and again. It's not novel at that point and should not be granted a patent.
What would be an example? Like you invent a new compression algorithm and nobody else should be able to use it for a year or two?
Well patents are supposed to be more "you have to pay me if you want to use it before the term expires". Maybe a requirement to offer patent licenses for a reasonable price could help there, but it's tricky. I think at a minimum though software patents should have a shorter term than physical inventions.
Patents fundamentally operate to allow the owner of protection to extract value from research and development investment. If you cannot protect your research and development, then competitor may extend upon your invention without the necessary capital or time investment — effectively making any kind of innovation risky and unattractive to business. There is no model where abolishing patents still grants protection for R&D.
The complaint is that software patents have been awarded and interpreted far too broadly, and coupled with the relatively low cost of R&D for software, have begun to stymied innovation in the same way patents intended to prevent.
Inventor profits by being ahead of competition. VisiCalc (first spreadsheet) was a killer app.
But they didn't innovate and were taken over by Lotus 1-2-3 four years later.
Lotus was great, graphs and all.
Same thing happened to the Lotus, Excel was just better. Lotus didn't innovate (e.g. IBM had first ever pivot tables and they made separate spreadsheet program for it instead off improving Lotus).
Inventors only profit if and when they release — Patents allow you to cover the cost of research and development even if a profitable product does not materialise or is not profitable at the time of release. R&D is essential for economic growth, so the promise/higher-chance of a successful return at some point in the future, I think, this is a reasonable trade-off.
Having a time limited monopoly on new drugs seems required considering the costs involved in getting drugs through the regulatory framework.
Considering how much more is spent on marketing and executive salaries, maybe we don't?
Or the patent protection is contingent on limits to marketing and admin overhead
Software is just fancy math being executed. Math can't or at least shouldn't be patentable e.g. imagine the absurdity that would ensue if you could patent a number not that that hasn't happened (HD DVD encryption). I'm aware every piece of IP or Copyright can be represented with a really big number (a mp4 file is really just a big number) but it's not the number that's the patentable aspect.
Hardware is just fancy physics. Medicine is just fancy chemistry.
Math, however, is uniquely identified in the law as non-patentable.
Words are just fancy phonemes.
The point of the parent system is to prevent knowledge from being lost to humanity. It encourages disclosure on how unique and novel things work in return for a limited monopoly. If inventions were not patented then we can lose the ability to make them, which isn’t as insane sounding as you might expect.
Preserving this knowledge for the future of humanity is critical.
If you ever do a patent survey, you'll quickly discover that patents aren't written to preserve knowledge or disclose inventions. They're written to disclose as little as possible (or disclose everything except the thing that matters) as fodder for a legal defense.
Science journals exist.
OTOH, I’ve never, not once, ever, heard of someone reading through the patent database to learn how to do a thing. I’m sure someone has done such a thing, but that’s not the norm. The patent database is where you record that you were the first to claim to have done a thing. It’s not where you meaningfully explain how.
That may have been the point hundreds of years ago. Today, it no longer serves that purpose, and is doing more harm than good.
This is absolutely not the point of the patent system, otherwise there would be no provision for a monopoly over the commercial manufacturing of the invention.
Don't be deluded, the patent system serves as a weapon for bigger companies to block competition. That is their only goal.
> The argument from patent proponents is that without the legal monopoly, they would rely on trade secret law instead, so they would do their best to ensure no one else understood what they do.
Look at China, and the argument of "maybe it will be bad" turns out to be wrong. I'm not saying the system is perfect, far from it, but the idea that patents are a life-saving measure is utterly false. Companies live and die in both systems, but at least in China they get to share their improvements.
The premise is that a patent is necessary to have funds for continuing innovation, but that's just not understanding what capitalism is and how pervasive it is in our society. The reason individuals need money is precisely because of capitalism redistributing money to those who have the most already, not to the ones who need it the most, not to the ones making the most progress, or not to everyone in a fair manner allowing all of us to live without worrying about that aspect (yes, there is more than enough resources creation for all of us). The patent system only furthers this uneven distribution. Innovators do not calculate the amount they might be getting from their invention before setting about and coming up with something new; that is a lie that needs to disappear.
Patents are not making the society better.
I agree with you, patents in general shouldn't exist
... and copyrights should last no longer than software patents.
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this is an excellent summary of how the system works.
Every month HN has a thread like this, and every month the usual suspects rant about how patents are fucked up, and there needs to be this, that, or the other. And nothing changes.
Ask your local candidates for Congress if they'll support removing patentability for software. That's how you solve this problem.
> Ask your local candidates for Congress if they'll support removing patentability for software. That's how you solve this problem.
That's not how any of this works. You don't think some people have already "asked their local candidates for Congress" about this? Surely you have personally done that? If you have, then how come the problem still exists? Clearly your action of "asking your local candidate for Congress" did not solve the problem...
> You don't think some people have already "asked their local candidates for Congress" about this?
Actually, no, I don't think they have. Judging by the lack of ANY bills in Congress, even bills that get shitcanned by the leadership -- no, no one has.
I was going to quote the rest of your post, but it's all ignorant.
I know how the lobbying in Congress goes; I personally helped hire one of Google's DC political representatives. Do you know anything?
The way it goes is, the big pharma companies block any patent reforms. The way to get them out of the picture is to remove software from the patent system.
As for "Clearly your action of "asking your local candidate for Congress" did not solve the problem" you have some warped idea of how representative politics works. You don't just talk to someone and your wishes get magically carried out. Rather it's a sustained struggle where the enemy gets to have their say, too.
You seemed to have entirely missed my point so I'll just reiterate it with different words: simple actions that one person can choose to do - such as sending letters, calling representatives, or signing online petitions - have no effect. None whatsoever. The world is exactly the same place if I take action, compared to if I take no action.
You claim that an ordinary person, such as myself, could affect real change by "calling my representative" or something silly like that. No, I can't.
> it's a sustained struggle
Sure. This I can agree with. The changing-things part, not so much.
> Get well soon.
Just imagine the things you can achieve in politics with that level of sincerity!
They won't.
The reason patents (and copyright) have gotten so bad is a mixture of corrupt lobbying activity and a quagmire of questionable international treaties.
Politics happen. Things that were previously unthinkable suddenly become thinkable.
It only seems "suddenly" because all the behind-the-scenes activity was going on when no one was looking.
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Somehow Sable reminds me of a wart. A big ugly wart with a few hairs and just as useless. It's not much of a problem but you would be better without it.
> company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence
By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I can't see any situation where individual patent clerks would be held accountable. First, it goes against established case law regarding civil cases against federal employees [1, 2]. Second, if you amend the law so that patent clerks are an exception and can be held individually liable for potentially tens of millions of dollars, only absolute idiots would agree to take that job.
[1] https://www.justice.gov/jm/civil-resource-manual-33-immunity...
[2] https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal...
The idea would be for the patent office to get $I dollars funding from tax payers, from which they payouts are made when errors are made. If they flub it year after year they'd be forced into process improvements or a huge fight with Congress. Basically, as soon as control becomes separated from accountability, one organizationally hit into these problems.
Another analogy: I'm sort of against housing brokers passing the mortgage onto Fannie Mae. By the time the government finds out something is wrong, it may be too late to "untake" the property. Brokers have short-term control goals and short term risk profile. They stick somebody else with the long term disk, while they're still paid. It's a misalignment.
A further analogy: the beatings will continue until morale improves.
> By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government.
I think they meant the patent office should cover that from fees, not from taxpayers.
That doesn't really help because money is fungible.
In a city near me the taxpayers recently rejected a tax increase to pay for a bond because they were grumpy that the government took out the bond without asking them first. The city was still on the hook for the bond, so they just siphoned money from the roads fund.
The same thing would happen here—you can say that the judgment must come from fees, but then the patent office will have to either raise fees to crazy levels in order to cover the risk (thus making patents even more of a large company advantage) or they'll siphon money from things that were being covered by fees and use taxpayer dollars to cover those things.
Then the fees would be so high only the biggest companies could afford to file patents.
I believe that patent office budget is mostly fees.
> By "the patent office" you mean taxpayers, right?
Now THAT would be a use of my tax dollars I could actually get behind.
I think this is the main problem, rather than companies owning patents they do not implement, and suing the ones that do without a licence.
There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts.
There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable.
It needs to be easier and cheaper to challenge bad patents and false claims of infringement.
> patent clerks aren’t actually subject matter experts in the field
This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information.
The patent office needs a lot more funding if you want it to be effective.
> The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information.
As a former USPTO patent examiner, I can confirm that this is the main reason for low patent quality.
> This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
I never found the contract search help to be useful. ("STIC search" is what I'm thinking of. Your friend may have been on a different contract as I'm not familiar with specific contract subject matter experts providing search help.) I'd guess that the problem is that those folks get even less time than I did!
> patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground
Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.
There are two important differences. 1 Patent trolls are non practicing entities, ie they don’t produce anything other than lawsuits(pure rent seeking), big companies may not be producing on all of their patents, but they typically provide at least some societal value. 2 big companies aren’t typically making direct revenue from their patents, but rather use them as a moat to prevent challengers (which seems more similar to what patents are intended for even if it is often abused by being overly broad)
> Patent trolls are non practicing entities
That's not a part of any commonly accepted definition of "patent troll" that I'm aware of, but of course NPEs can also be patent trolls.
> use them as a moat to prevent challengers
This is what makes one a patent troll.
>That's not a part of any commonly accepted definition of "patent troll" that I'm aware of
It's exactly the definition I've heard of for the past 20+ years.
>This is what makes one a patent troll.
No, it isn't.
Think about what a troll does: it hides under a publicly-owned bridge, and then forces anyone who wants to cross the bridge to pay a toll.
This is exactly what the NPEs do with their BS patents: they get a patent on some obvious BS, and then charge people money to use "their IP".
Big companies don't do this: they use patents to prevent competitors from operating. They don't grant licenses to their competitors at all. Trolls in mythology didn't refuse bridge access to anyone, they just forced them to pay a toll.
The entire point of being an NPE is to get money from licensing (and lawsuits).
I work at a large company. A colleague of mine filed a patent for a thing we were working on, and included me in the list of inventors.
I spent that summer trading emails with lawyers trying to get the application to even resemble what we were actually doing. The patent was for computer animation, and the application had fucking clip art of printers and pagers and 50 pages of "and this is novel because computers are shiny" and "if you figure out how to do this with a toaster, we've called dibs."
I'm proud of the work I was doing; we were legitimately working at the frontier of motion design. It's cool that my name is in the historical record for that, but it's also embarrassing that it's in the form of a software patent - particularly one that looked like it had been copy/pasted from decades of bullshit patents and barely adapted to cover what we were actually proposing.
Whatever little faith you have in the patent system will be even further eroded if you ever find yourself on the filing side of the patent. It shocked me how much of the application was broad and hand-wavey, citing irrelevant and obsolete technology to pad out the pages. Even worse, they didn't seem to care to understand the actual "invention." If I didn't fight back, they would have filed (and probably won) something that could have been generated with the prompt "please write me a generic patent application to pad out a tech company's portfolio."
I think the most fatal flaw is, and in all other fields too, that money correlates with court victory. If we somehow able to erase just that, lots of laws suddenly becomes much fairer and closer to its original intent.
If companies are found to have filed bad faith patents, there should be a rapidly escalating cost increase for future patents, ending in penalties including their existing patents being legally released into the public domain.
There is, of course, the usual problems of companies spinning up shell companies to mitigate the risk, but that's a different problem that needs fixing for a whole bunch of reasons.
The company that filed the patent didn't sue anyone. It died almost 2 decades ago. The entity that acquired the assets is the one doing the suing.
Sounds like a problem AI could solve filtering patent applications before they make it to a person.
Former patent examiner here. Current AI patent search isn't that useful in my experience. The USPTO had multiple AI patent search tools circa 2022 (when I quit), most of which were of comparable quality to the similar documents listed at the bottom of a patent document on Google Patents.
I've posted before about some of the issues here: https://news.ycombinator.com/item?id=33506286
> A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground.
Do you have any examples?
Simple solution: Abolish patents. All the rhetoric about incentivizing innovation is bullshit. They stifle innovation, and they stifle competition. They're designed to protect slow, inefficient established corporations. That's all they ever did and that's all they'll ever do.
I think it's a bit more nuanced than that, because in some industries patents may make sense.
I would say "Simple solution: abolish patents on software".
Patents and copyrights are dangled like winning lottery tickets in front of the average citizen. Maybe you can invent something or write a book and sell it for millions! Which does happen... about as often as people win the lottery.
More often a patent or copyright is one of thousands a giant company procures. But all the intellectual property profiteers need is that 1 in 300,000,000 chance dangling in front of a voter and they'll never agree to do away with IP, in fact, the opposite will happen. They'll actively fight to keep them in place.
Somehow the winning ticket in popular discourse is to be a patent troll: at best, "sell my idea" to some big company (troll); at worst convince a court to give you a pile of money because someone "stole" your idea (in advance). It is a rare person who dreams of coming up with a good idea and then working hard for years to make it a reality.
As a software developer, I'm not exactly representative, nor are you. The point was about ambition/popular perception, not the reality. If your "maybe someday" dream prominently features being issued a patent, it's not because you'll use the patent responsibily to defend the idea that you're actively developing and marketing. If your "maybe someday" plan involves developing and marketing an idea, patents might be a factor somewhere way down the list of how to get there, but that's a very different ambition.
(That's not to say that the reality isn't also broken, just that popular perception is even more broken.)
Hmmmm, I mostly know people who worked for big companies who got BS patents for bragging rights and one from a small startup with one obvious idea but they wanted to try and protect themselves since the idea was essential to their core business. The former don't seem much different from trolls while the latter should not have been granted a patent since it was so obvious IMO.
I reckon simple solutions are often simple because they ignore important complexities. I'd love to abolish patents, but I don't see how our society could before figuring out stuff like how else to support the people that do important knowledge work, and incentivizing creating new things when it's a hell of a lot more profitable to just wait until someone else does it first. The software industry is already compatible enough that many companies open source their code voluntarily, but I don't see how we can generalize that. What incentive would companies have to pour all of those resources into complex chip design, intricate novel medical devices, or new medicine? You might be able to have open source insulin pump controllers, but how about a lifesaving new linear accelerator or chemotherapy drug when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process and hit the market at nearly the same time? I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good, but it's not, and that seems like a prerequisite you simply can't ignore.
I'd love to be proven wrong, but I think the "well if you wanna make an omelet..." kind of attitude I usually see accompany sentiments like this seem more edge-lordy than anything else.
Have you actually read any patents? Just knowing the bare basics of how something works isn't enough to make a successful business out of it. Even with mechanical manufactured stuff, a few diagrams isn't going to tell you all the stuff you really need to know to properly manufacture it, and patents have famously left out lots of important trade secrets, not to mention stuff that people just didn't bother writing down.
>into complex chip design
Do you have any idea all the technology and tools that go into chip design? They aren't all nicely documented in some patent applications.
>when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process
Good luck with that. No single engineer knows enough to replicate any truly complex process.
>I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good
If you could pay a single engineer to do anything so substantial as you claim, then all this work would be done by universities. It isn't, for a reason.
The incentive that companies have to pour resources into this stuff is to make money, and they do this by building their technology base and market share. Not having patents isn't going to make much difference; it'll just prevent them from keeping new competitors out of the market so easily.
Ok: I'll chalk this set of nitpicks and amorphous opposition up to "nuh-uh".
Agreed. I shouldn't be banned from inventing something just because somebody else already invented it. Patents suck.
I don't think they're designed to project established corporations, but lawyers move faster than congress. So much like the Tax code, they've already figured out how to take advantage of the existing system.
In fact, I would say the ultimate realization of that is the existence of patent-trolls. The patent-holder which exists solely for the purpose of possessing the patent rather than creating it, or utilizing it to make their own product.
Hear hear.
But how?
> Abolish patents. All the rhetoric about incentivizing innovation is bullshit.
Oh, I would immediately start a fund that looks for good ideas at the germinating phase and then superfunds a competitor.
Chat gpt destroy this patent with prior art