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The Patent Mafia and What You Can Do To Break It Up 205

Posted by Soulskill
from the he-sends-one-of-yours-to-east-texas-you-send-one-of-his-to-norcal dept.
colinneagle sends this quote from an article about the ever-growing patent racket in the tech industry: "The lawsuits are raging all across the tech world. Oracle sues Google, Yahoo sues Facebook, they counter-sue. Others threaten, others buy more patents and the circle goes round and round. Don't be fooled by the lawsuits between these tech titans though. The real cost that the patent mafia extracts from the tech world is on the smaller companies who can't afford to battle the Apples and Microsofts of the world. Their choices are far simpler. They can abandon their innovations or they can choose to pay and allow the Mafiosos to wet their beaks. Also, don't be fooled about who the real losers are here. The the real losers are you and me. ... So what do do? Here is my opinion. I would make it just as expensive for the offensive patent prosecutors. Just as the government put in the RICO act to combat organized crime, I would put a similar law in place on patents. RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant. Three times what the defendant paid to defend."
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The Patent Mafia and What You Can Do To Break It Up

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  • Treble? (Score:5, Funny)

    by amicusNYCL (1538833) on Tuesday May 08, 2012 @06:19PM (#39934959)

    RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant.

    I think that something far more bassic would work.

  • by morbingoodkid (562128) on Tuesday May 08, 2012 @06:20PM (#39934981) Homepage

    Very good idea. Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

    The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

    Do not really make sense to me. How about you ?

    • by Grond (15515) on Tuesday May 08, 2012 @07:48PM (#39935877) Homepage

      The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

      That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).

    • by N7DR (536428) on Tuesday May 08, 2012 @09:22PM (#39936811) Homepage

      Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

      The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

      That is simply incorrect. The plaintiff has to convince the jury that every limitation in the claim(s) in question is infringed by the defendant. In a typical claim this means that perhaps half a dozen requirements must be shown to be met, and the burden of proof is on the plaintiff to show that every one of those limitations is met. The standard by which the jury decides the case is the "preponderance of the evidence".

      And each individual limitation will typically have several debatable words in it, so the plaintiff also has to convince the judge and/or the jury that those words mean what they say they mean (usually, but not always, that is decided by a judge).

      If the plaintiff fails to make a convincing case at any point in this sequence, then the patent is not infringed.

      (Invalidity is another matter entirely. It's a different standard -- clear and convincing evidence -- and so it's less common for a patent is judged invalid, although it certainly does happen.)

    • by Geof (153857) on Tuesday May 08, 2012 @10:43PM (#39937297) Homepage

      This is absolutely correct for process patents. This is a requirements of the 1994 TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty. Here is the text of Article 34 [wto.org]:

      1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

      (a) if the product obtained by the patented process is new;

      (b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

      2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

      3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

      Whether this applies to software patents I am not sure (IANAL). As business process [nuvocom.com] patents, it may, though it's not clear to me what the "product" would be. In any case, this is clearly the direction in which the law has been moving.

      Ironically, by the way, negotiation that resulted in TRIPs was initiated by developing countries who found their economic development was being retarded by patents held by developed countries. Once the process started, however, it was hijacked by an unholy alliance of the pharmaceutical and entertainment industries. Poor countries were then effectively forced to join by developed countries, who withdrew from GATT leaving a choice between losing access to western markets and enacting onerous patent and copyright laws. Because of the impact on the cost of drugs for poor people, patents are a life-and-death issue. IP regulations, meanwhile, are expensive to implement, particularly in countries that lack the legal expertise:

      the US Agency for International Development (USAID) now spends around a quarter of its annual budget on legal and regulatory training, including technical assistance from the US Patent and Trademark Office (USPTO), to help bring domestic legislation into compliance with TRIPs, including assessments of draft laws and recommendations regarding existing laws. (Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History, 2006

  • by Antony T Curtis (89990) on Tuesday May 08, 2012 @06:21PM (#39934989) Homepage Journal

    FWIW, this is my personal opinion:

    It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.

    The aforementioned incumbents would fight tooth and nail, with large campaign contributions and gifts, to prevent such a law from ever passing.

    • by UltimaBuddy (2566017) on Tuesday May 08, 2012 @06:28PM (#39935117)
      The end result is that the innovators move elsewhere.
    • by the eric conspiracy (20178) on Tuesday May 08, 2012 @06:30PM (#39935133)

      Many patent trolls are in fact nimble upstarts.

      The answer is much simpler. Get rid of business process and software patents. They are proving to be a detriment to the software industry.

      • by hacksoncode (239847) on Tuesday May 08, 2012 @08:00PM (#39935983)
        So, in this day of actuators and microcontrollers, how would you actually do this without getting rid of *all* patents?

        It's become trivially easy to implement *any* part of any mechanism in software.

        It's easy to make platitudes about this stuff... actually coming up with a rigorous legal definition that would rule out the things you like while still allowing the "good" patents is really hard, if not impossible.

        Of course, perhaps all patents have outlived their usefulness... but that's a different discussion.

      • by whisper_jeff (680366) on Tuesday May 08, 2012 @08:20PM (#39936189)

        Get rid of business process and software patents. They are proving to be a detriment to the software industry.

        Get rid of automotive patents. They are proving to be a detriment to the auto industry.
        Shall I continue or was that car analogy sufficient to communicate the point already? The patents exist in all industries and they manage to function just fine. The solution is simple - license the patent or innovate around the patent. Other industries do it so why should the software industry be different?

    • by Morgaine (4316) on Tuesday May 08, 2012 @07:43PM (#39935843)

      You're right for more than just the reason you give. TFA also fails to understand that the patent system is structured to encourage litigation and to benefit the legal profession on both sides of a patent conflict. TFA's suggestion would do nothing to change this.

      Ideally software and business method patents should disappear altogether, but if one is seeking alternatives then the first goal should be to limit the audience exposed to patent litigation.

      That can be done in a number of ways, one being to exclude private citizens and corporations below a certain turnover from patent liability altogether.

      This would encourage the creation of many small competing businesses and would be hard for megacorps to argue against, because all politicians pay lip service to supporting small businesses. Also, the turnover cap automatically ensures that competing corps cannot grow to the size of the patent holder, so arguments against it are really quite weak.

      As you point out, the incumbents would still fight tooth and nail against it, but they would be on much weaker ground than today, and most importantly, lawyers would be presented with a much reduced population of potential victims.

      Note also that the many calls to limit patent duration drastically, eg. to 5 years, would have exactly the same effect of reducing the number of people exposed to patent litigation. That idea is good too, but it doesn't level the playing field as well as a turnover cap would do. Perhaps both approaches should be used together.

      • Limiting patent duration is a great idea (as is having a turnover cap), but there are plenty of cases where patents of a longer duration should be granted. I'd be in favour of a system where patent applications are examined for "triviality", i.e. how hard/expensive was it to come up with the invention being patented. Trivial crap like 1-click shopping then gets 3 years; the inventions that actually took some effort or thinking get perhaps 6 or 10 years, while stuff that takes hundreds of millions of dollars to develop (like medicine) would get 20.

        One of the main issues with the patent system is that a lot of stuff that should not be patentable passes muster at the patent office anyway. Unfortunately that is not an easy issue to fix, but having such patents be assigned to the lowest tier in a variable-duration scheme instead would at least mitigate the effects.
    • by rufty_tufty (888596) on Wednesday May 09, 2012 @05:39AM (#39939105) Homepage

      I find it interesting - given you mention the history of patents - that one of the first outcomes of a rigorous patent system was to break up the guilds. Knowledge that had been held secret for centuries was suddenly in the public domain. Give it twenty years or so and everyone could use the secrets of the guild.
      Now you have the reverse situation where patents are protecting the technology guilds - but at least what they are doing is not secret, and never will be. is that perhaps enough, patents have now become a system to turn trade secrets into public knowledge and they still do that job well. Is that enough and maybe we now need to invent a new system to break up the new guilds?

      I do wonder if the simplest fix to the system is to say that a company cannot own a patent, only a person.
      A company can license a patent from a person, but that is the limit.
      Now you'd have to also have some law that prevented the company from putting into the employment contract a set of default license terms that screwed the person over.
      I think you'd also want to limit the number of patents any one person can hold - that would get rid of the frivolous patents if you could only hold 100 patents over the course of your life you really would only submit the really good ones. Again that would be open to abuse when I claim by 12 year old child has 50 patents to his name, but you get the idea...

  • by CPNABEND (742114) on Tuesday May 08, 2012 @06:22PM (#39935001) Homepage
    This is all not only out of control, but INSANE! This needs to be fixed somehow, but I have little faith in the American government to even understand the problem.
  • by Anonymous Coward on Tuesday May 08, 2012 @06:26PM (#39935081)

    Just thinking about this, it might feed the patent trolls and mostly hurt small to medium sized companies.

    If I'm a little guy and hold a patent that, say, Apple violates. I sue Apple and they simply say they spent a few million. It's a small amount for them but if I lose, I am bankrupt. So, it doesn't help the little guy.

    So, my approach would be to "sell" my patent to a company I just formed for a couple of hundred bucks onllne and that corporate entity sues the big guy. If I win, that company has some scheme to pay me back the award. If I lose, I fold the temporary company and I'm out of pocket a few hundred bucks. Pretty close to the model used by patent trolls.

    So, I can't see how this might be different...

  • Won't work. (Score:5, Insightful)

    by Caerdwyn (829058) on Tuesday May 08, 2012 @06:29PM (#39935125) Journal

    Scenario: a "little guy" gets a patent. A "big guy" violates it. The little guy takes the big guy to court, and the big guy throws an entire legal department at the little guy, and essentially buys the result. The little guy then has to pay treble damages of the expenses of that great big huge legal department, and goes out of business because of the punitive award. As part of the punitive award as the little guy goes under, the ownership of the little guy's patent then goes to the big guy.

    Want a patent held by a little guy? Willfully violate it, then bleed the little guy dry with protracted court proceedings. You'll get the patent through bankruptcy. And if the little guy doesn't defend his patent... free IP!

    Think it through. "Automatic" damages means you create a system that can easily be gamed by armies of lawyers far better at manipulating the system they crafted than you, and ties the hands of the judge to prevent it.

    • by gutnor (872759) on Tuesday May 08, 2012 @07:58PM (#39935973)

      They would probably try to settle, and normally the amount should not be too miserable. As much as big companies can be evil, at the end of the day, they run a business - what they can buy for 1M they won't sue for 2M.

      That works in the other direction aswell. Except for patent troll, there is very little to make buy shutting down a small business when it is cheaper to buy it. Again, that does not work with patent troll.

      That is not good of course, that is a travesti of the original goal of patents in the first place, at best, the patent fail to protect the inventor, at worse they scare them off. Patents have jumped the shark - the cheapest way would be to ditch them for 50/100 years and see if trade secrets are really still a problem.

    • by w_dragon (1802458) on Tuesday May 08, 2012 @08:08PM (#39936077)
      Actual court cases prove you incorrect. If you were right patent trolls wouldn't be an issue. See NTP vs RIM or i4i vs Microsoft. Simply having more money isn't going to win you any trial where a layer could retire on 1% of the potential payout.
  • The little guy. (Score:5, Insightful)

    by Hatta (162192) on Tuesday May 08, 2012 @06:29PM (#39935129) Journal

    Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent. I only have kilobucks to spend on a lawyer, while Conglom-O has megabucks. Predictably, their expensive lawyers beat my bargain basement representation. Now I'm on the hook for 3 times what they paid for their defense? How is that any better for me than the abolition of patents?

    • by tomhath (637240) on Tuesday May 08, 2012 @06:51PM (#39935381)

      Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent.

      Well, that's basically the opposite of this article (which is patent trolls crushing you for misappropriating their patent). But I kind of agree, maybe it's time to abolish all patents, not just software. Then the little guy who wants to start a company can go head-to-head with the likes of Oracle - whether he's the inventor with a new idea or a start-up with a better implementation of an API.

      • by NormalVisual (565491) on Tuesday May 08, 2012 @08:04PM (#39936033)
        Then the little guy who wants to start a company can go head-to-head with the likes of Oracle

        But then there's the problem of having no protection at all. Let's say you develop a spiffy new widget that solves a need in a genuinely novel way, but don't really have the capital to manufacture/distribute it. You talk to a manufacturer who passes on the idea, and then the next thing you know, your widget is available to the masses at Wal-Mart, made by an arm's-length affiliate of the original manufacturer, and soon after that by a multitude of manufacturers. It'll be impossible to prove breach of contract, and you get to sit by and watch as the widget sells by the million. After that experience you won't be nearly as eager to create something else novel that might benefit society, and this is the specific concern that copyrights/patents are supposed to address. I don't know that there's a good answer to the problem.
    • Re:The little guy. (Score:4, Interesting)

      by Overzeetop (214511) on Tuesday May 08, 2012 @06:52PM (#39935397) Journal

      This is where the lawyers win. There will be law firms who will examine your case and, if it looks 80-90% winnable, will take it on commission - say 60% of the final award. You'll probably be on the hook for fixed percentage of the costs plus expenses in the case of a loss. The lawyers either cover their costs or win big, the little guy comes out even in the best scenario, and the megabucks write it off on the balance sheet and design around your patent.

      • by cpt kangarooski (3773) on Tuesday May 08, 2012 @09:08PM (#39936673) Homepage

        First, there are ethics rules as to the size of a contingency fee. Usually they top out at around 1/3d, more or less. However, if the case is lost, the client owes the attorney nothing. (Otherwise, what would be the point?)

        Second, you need to be the plaintiff, which may not be the case depending on how the matter is structured.

        Third, now you're just relying on the still-finite resources of the lawyers. A big enough opponent can still conduct the outspending strategy successfully. (Because while a lawyer handles a contingency case and awaits a possible big award, he still has bills to pay, and is not spending time on as many cases that can pay sooner). The book (and movie) 'A Civil Action' shows an example of plaintiff's attorneys going broke against a big opponent.

    • by w_dragon (1802458) on Tuesday May 08, 2012 @08:09PM (#39936091)
      Explain i4i vs Microsoft then.
    • by PSVMOrnot (885854) on Wednesday May 09, 2012 @03:42AM (#39938645)

      The big problem in lawsuits seems to be the big guys throwing money at the problem till they win. What about if there was some sort of requirement for equal representation funding?

      Perhaps the money from both sides is pooled, and then split evenly to provide representation for both.

  • by maz2331 (1104901) on Tuesday May 08, 2012 @06:34PM (#39935183)

    We REALLY need to set up single-payer legal representation, even before looking at it for medical care.

    • by slew (2918) on Tuesday May 08, 2012 @07:13PM (#39935595)

      Single payer legal is probably even worse than single payer medical. The biggest problems with single payer medical is manyfold, but mostly over-use/fraud and rationing.

      Even though perhaps some wacko wants every diagnostic test known for imaginary conditions or perhaps someone helps a doctor friend (or some friendly doctor that is giving kickbacks) to overuse (or just overbill) some unneeded or fictitious medical procedure, there is a quantifiable physical upper limit on the amount of overuse/fraud one individual patient can abuse and ways to limit this (although perhaps unpopular). This make it easy to apply statistical law-of-large numbers to the problem of wacko patients and money grubbing doctors (assume there is some distribution) and at least come of with a workable solution as many countries have. On the legal front, there is probably no practical upper limit (lawyer can sue other lawyers, but perhaps there is some universal physics limit of physical paper and motions that can be field per nanosecond).

      Then there's the rationing side. Although it may not seem like it, there's probably a limit of legal resources and just like doctors, not all lawyers are interchangeable. Who gets the good lawyers? Who decided what cases are not worth defending? With medical at least there are scientific boards that are supposed to look at medical outcomes. Who would do the lawyer rationing?

      Perhaps we can make legal coverage somewhat like worker's comp insurance. You pay into the system depending on your rating, and you are somewhat covered for legal expenses to address some of the short comings of the current system (people object to this type of price based rationing scheme in the general individual medical insurance premium world, but apparently tolerate this in the business world). But those that are dig down in that area tend to see that most worker's comp insurance schemes are full of fraud and waste and are sink-holes of money as well that mostly serves to enrich the "tool-makers" the worker's comp medical provider organizations and the shady businesses that contract with them, and not as much for the workers.

      Maybe there's some way to do all this, but it isn't apparent in any of the institutions that we currently have set up to date.

  • by Anonymous Coward on Tuesday May 08, 2012 @06:37PM (#39935225)

    It's easy to write something that works correctly for the situation you have in mind; the challenge is to make sure that it also works correctly in all the other situations that may arise in practice. Whoever suggested the law described in the summary is, I'm sure, not a good lawyer or a good software engineer,

  • Too complicated (Score:5, Insightful)

    by king neckbeard (1801738) on Tuesday May 08, 2012 @06:38PM (#39935235)
    Why not just get rid of patents altogether, or at least software and business method patents?
  • by nedlohs (1335013) on Tuesday May 08, 2012 @06:39PM (#39935249)

    for the little guy who invented something, say a more efficient engine, to sue the huge corporation that just copies their invention.

    Since if he loses he gets hit with 3x the costs of the defendant's super expensive lawyers if he happens to get an idiot jury or made some technical error somewhere.

    I have a simpler solution - only grant patents for things that are actually inventions. "A button which when clicked buys the product for the user using the credit card they entered previously and the shipping address they entered previously" is not an invention, for eample.

  • The FIX (Score:5, Interesting)

    by andydread (758754) on Tuesday May 08, 2012 @06:39PM (#39935261)
    - Limit all patents to 5 years
    - Abolish UI/Gesture and all software patents
    - Abolish lifeform and seed patents.
    • by Grond (15515) on Tuesday May 08, 2012 @07:08PM (#39935555) Homepage

      - Limit all patents to 5 years

      Startups often take at least that long to get going, whereas established companies already have the funding and infrastructure in place to move products to market. If the patent term is too short then patents have no value for startups but retain value for established companies.

      And what about patents for things like pharmaceuticals and other products that have long regulatory lead times? What if the patent covers a technology that needs a breakthrough in another area in order to be commercially viable?

      Abolish UI/Gesture and all software patents

      First, come up with a definition of "software patent" that is neither overinclusive nor underinclusive, unambiguous, and cannot easily be gamed. Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment.

      Abolish lifeform and seed patents.

      This seems like a bit of a non sequitur. Anyway, you have the same Fifth Amendment problem.

    • by scsirob (246572) on Wednesday May 09, 2012 @07:09AM (#39939461)

      And make sure patents are lifted as soon as ownership transfers to some other company or entity. Patents are meant to protect YOUR work, they are not meant as an object of trade or to be collected by Mafia-like organizations to be used as ammunition.

  • head into the bed of each member of the patent mafia. Just license the technology and I'll make them an offer they can't refuse.
  • by wbr1 (2538558) on Tuesday May 08, 2012 @06:40PM (#39935273)
    What you are proposing is simply putting a band-aid on a bullet wound.
    You have (ineffectively) treated a symptom of a broken system, and as others have pointed out, left the system ripe for abuse from the privileged still.
    The system needs to be rewritten from the ground up. Unfortunately this will never happen. The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations. That concentration is little different than the robber barons, or lords over feudal serfs abusing their position. Until the people put down their bread, and turn off their circuses, these abuses will continue.
    Spread the word, proclaim intelligently the injustice of the current system to all who can and will hear, write your congress critters, bitch and moan if you have to as well, but stand up too, and encourage all you know to stand up as well. Otherwise eventually you will have no legs to stand on, because those have been patented or outsourced too.
    • by hackingbear (988354) on Tuesday May 08, 2012 @08:40PM (#39936415)

      The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations.

      Agree but the continued concentration of wealth and power in corporations is just one symptom of a far larger disease, and that is the human greeds.

      Agree? But human greed is just one symptom of a far larger disease, and that is the built-in competitiveness of biological beings.

      You would likely agree with that too, but the built-in competitiveness of biological beings is just a symptom of a far larger disease, and that is shortage of resources.

      Now go fix those!

      Now, back to the broken patent system, consider the flip side. If you are a little inventor, you are most likely wishing some giant corps violate your patent because then armies of commission-based lawyer will help you sue the rich guys for free and you will more likely become another rich guy from suing the large corps than productizing your patent with probably little real market value. I'm not saying that's good, but that's another side of the story.

      • by wbr1 (2538558) on Tuesday May 08, 2012 @08:54PM (#39936575)

        Agree but the continued concentration of wealth and power in corporations is just one symptom of a far larger disease, and that is the human greeds.

        Agree? But human greed is just one symptom of a far larger disease, and that is the built-in competitiveness of biological beings.

        You would likely agree with that too, but the built-in competitiveness of biological beings is just a symptom of a far larger disease, and that is shortage of resources.

        Now go fix those!

        Now, back to the broken patent system, consider the flip side. If you are a little inventor, you are most likely wishing some giant corps violate your patent because then armies of commission-based lawyer will help you sue the rich guys for free and you will more likely become another rich guy from suing the large corps than productizing your patent with probably little real market value. I'm not saying that's good, but that's another side of the story.

        The shortage of resources is a bullcrap reason. In a truly global economy, we -should- be able to distribute resources to where everyone got what was needed and a share of excess not saveable for hard times. I do agree that human greed is at the root, because of our largely poor ability to judge true risk, and poor ability to make real long term plans (both intertwined). This results in the "this is mine, I'm going to get mine attitude", that drives huge parts of the problem.

  • In your world the big guys are even more free to abuse the little guy; now the big guys are instead free to infringe on the little guy's patents without compunction, because the little guy dare not sue for infringement. God knows the big guy will spend a lot to defeat your infringement claim...and now not only is your case hard to win, if you lose, you are completely screwed. Almost everything I see on slashdot about fixing the patent system would actually make it worse, particularly for the little guy people here so love to defend. There are certainly problems, but they take a hell of a lot more thought than you're putting in to fix them.
  • by taustin (171655) on Tuesday May 08, 2012 @07:07PM (#39935551) Homepage Journal

    You've just made it profitable for big companies with on-staff lawyers to completely stop innovating. Instead, they can just see what other, smaller companies are doing, and copy it, patent or not. Because no small company will ever dare sue for patent infringement again.

  • by Grond (15515) on Tuesday May 08, 2012 @07:15PM (#39935619) Homepage

    The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book Patent Failure).

  • by k6mfw (1182893) on Tuesday May 08, 2012 @07:16PM (#39935627)
    It seems to me back in 20th century there were people in positions of power that put service above self that passed RICO, and also other laws and programs which helped the little guy. And some them little guys used some of these benefits to become big guys. Now I don't think such could ever be passed, and what does exists is being torn down or when new laws passed it helps only the big guys. Though I was thinking back then the "big guys" would shoot it out with each other (i.e. mob battles with tommy guns), and at times little guys get caught in crossfire. Nowadays the big guys "slug it out" in the courts, and the little guys indirectly either pay more for products or earn less from their work.
  • by Richard_J_N (631241) on Tuesday May 08, 2012 @07:50PM (#39935889)

    What we need is a viral anti-patent system, designed to be stronger than the GPL with the intention of destroying the patent system together. Like OIN (the open invention network), but with real teeth. Here's how it would work:

    0. Philosophy: intellectual monopolies are completely wrong, opposed to the scientific method, economically evil, and morally unjustified. Nobody can own an idea, and everyone stands on the shoulders of giants.

    1. Create a "public patent foundation" (PPF) similar to the FSF.

    2. Anyone with an invention can grant their idea (or patent) to the PPF. Anyone may license a PPF patent, royalty free, provided they are not involved in offensive patent litigation.

    3. The PPF makes its patents available to anyone for the purposes of counter-suit.
    No matter who you are, if you are the victim of a patent lawsuit, then (unless you fired first), the PPF will lend any of its patents to you for you to counter-sue the aggressor..

    4. If the PPF wins a lawsuit, the settlement terms would include all patents of the loser being shared with the PPF.

    5. The result is that the PPF would eventually hold a large majority of the patents worldwide. It would allow anyone to use these, royalty free, but would demand that users of PPF patents covenant never to sue in a patent lawsuit.

    6. As a pragmatic (but non principled exception), we might exclude pharma-patents from this.

  • by CrazyDuke (529195) on Tuesday May 08, 2012 @08:22PM (#39936205)

    How about: the amount one party spends in legal fees must be matched at some ratio and paid to the other party, regardless of guilt, to be itemized and balanced by the end of every month.

    For a 1:1 example:
    Joe Blow, owner of Joe's Cups of Joe of Skid Row, OK gets sued by Joe Mamma, Inc., where Joe Mamma dumps $200K every month into lawyer fees, legal research, expert witnesses, court filings, etc... and Joe only spends $5K to retain Jimmy Shyster of Shyster, Benedict, and Arnold. Joe Blow would end up having to match 5K to Joe Mamma, Inc and Joe Mamma, Inc. would have to reimburse Joe Blow for $200K.

    That fraking lawsuit had better be worth it to Joe Mamma, Inc.

    Stopping the inevitable Hollywood accounting would be a major issue, of course. Would anyone like to pull that idea apart any further?

  • by Animats (122034) on Tuesday May 08, 2012 @08:44PM (#39936461) Homepage

    It's the COBOL conversion guy [wikipedia.org] and academic hanger-on, Vivek Wadhwa, mouthing off again. He just wants to see his name in print. [highbeam.com] It's sometimes claimed he was on the faculty at Harvard (he's not, he was just an RA) and now he has some vague affiliation with Stanford he's touting.

  • by dweller_below (136040) on Tuesday May 08, 2012 @08:45PM (#39936477)
    The patent debate has fallen victim to 2 big lies:
    • 1) Patents are good. More patents are more good.
    • 2) Patents belong to the patent holder.

    Patents are monopolies. Years ago, they were monopolies of action. Modern software and business method patents are monopolies of action, expression, and speech.

    Monopolies are expensive. They damage free markets. They always drive up the cost of goods and services. They are taxes on market places. We have forgotten that patents are monopolies. Somehow the patent lawyers have convinced us that patents are a measure of innovation. This great lie has blinded us to the fact that patents actually measure the decay and destruction of free markets.

    The second lie is actually more pernicious, since it blocks our pathway forward. Patents actually belong to society, not the patent holder. Patents are restrictions imposed on EVERYBODY BUT the patent holder. Patents are voluntarily imposed on a society, by that society, for the good of the society. If a patent was the property of the patent holder, it would be worthless, since no patent holder has the ability to enforce a patent. Only society has the ability to enforce a patent.

    Since patents belong to society, then they can (and ultimately must) be managed for the good of society.

    Once we dispel these 2 grand deceptions, the way forward is fairly clear:

    • First, we must stop the hemorrhaging. Our society can't tolerate a patent office that produces enormous numbers of crappy patents. The damage to our economy is literally in the trillions of dollars. A limited nuclear exchange on US soil would be less expensive. We must shutdown the patent office until we can figure out how to restructure it to produce limited numbers of high quality patents.
    • Second, we must produce a method to cheaply dispose all our toxic, crap patents. Litigating them would destroy us. We need a cheaper way to get rid of them. The best would be an executive order (or legislative act) disabling every patent granted (or in process) for the last 20 years.

    I suspect we can ultimately fix almost all our patent problems by returning the patent office to central funding. Funding the patent office from patent fees has got to be our greatest mistake.

    Miles

    • by labnet (457441) on Wednesday May 09, 2012 @12:08AM (#39937755)

      Some great points. Here are some more.
      - patent owners must be commercially utilizing their patent to keep it. (within 4 years of patent application)
      - software and business process should not be patentable (ie 1 click)
      - accidental infringement be not initially punishable (ie stop it, then you have the choice to stop unsing or litigate, but no backdated punitive action)
      - the bar for novelty to receive a patent be way higher than it is now.
      - patent application / renewal fees be based on number of patents held
      eg x = v * n(n+1)/2 where v = the base patent cost.
      Lets say v = $100
      1 Patent = $100/annum to maintain
      2 Patents = $300/annum to maintain
      10 Patents = $5.5k/annum to maintain
      100 Patents = $500k/annum to maintain
      1000 Patents = $50M/annum to maintain
      10k Patents = $5Billion/annum to maintain

      This would force very large companies / trolls to only keep their best patents and toss out the dross polluting the patent system.
      You would need rules to stop companies spawning sub related companies to get around the intent.

    • by speedplane (552872) on Wednesday May 09, 2012 @07:42AM (#39939613) Homepage
      Patents are not monopolies. If you patent light bulbs and then I patent halogen light bulbs, neither of us can make halogen light bulbs without the other's permission. Patents do not give you a right to do anything, they only give you the right to stop others from doing something.
  • by Jens Egon (947467) on Tuesday May 08, 2012 @10:36PM (#39937243)

    What about allowing either of the parties in a lawsuit to claim that the other is atempting to abuse it's monetary clout to 'buy' justice.

    If the court agrees, the big player gets to pay the little guys costs along with their own. Even if they win!

  • by mutewinter (688449) on Tuesday May 08, 2012 @10:41PM (#39937291)
    Here is my take on it, and this applies very specifically to the mobile area.

    Over a period of time the patent disputes between Google, Microsoft, Apple, Samsung, and the other big players will be settled. Whether through fees or you-use-ours-we-use-yours agreements, the battles will end. Then what we will have is a true cartel through which any outside party wishing to build and sell a legal mobile device must pass through. This could either mean very big per device license fees, obstructive licensing agreements, or outright market exclusion.

    What I fear most is not the death of outside innovation in mobile but the Frankenstein chimera of a law that bought off lawmakers and lobbyists create to "reform" this problem.
  • Wrong approach (Score:4, Insightful)

    by WOOFYGOOFY (1334993) on Tuesday May 08, 2012 @10:47PM (#39937329)
    The problem is that patents should not be applied to software. Software patents are actually patents on ideas... the patent covers some high level algorithm . Algorithms are not patentable in theory, but patent lawyers and the courts are ignoring that.

    Software is already fully protected by copyright. That's enough IP to motivate people to write software and to prevent people from ripping off your code..

    There is no "problem" except the will on the part of a certain court- the Court Of Appeals for the Federal Circuit (CAFC), IP lawyers, corporations and IP maximalists to subvert the patent system to their personal benefit .

    It's really nothing more than an agreed-upon defiance of the meaning of very clear law, society's best interests and the express wishes of the vast vast vast majority of software engineers who are allegedly the "beneficiaries" of the system.

    Software patents are bad law. IP lawyers are perfectly well aware of this fact which is why they expressly exclude legal arguments and algorithms for tax avoidance from being patentable- they're not going to have done to them what they've done to us.

    Either the law will change of the inevitable consequences of the law will collapse the entire system of software creation in the US and anywhere else software patents are permitted, and by collapse I mean monopolist prices accompanied by a lack of innovation, along with a defection of creative types from the field.

    If you want to get activist about things, then refuse to sell software in the US. Set up a company in France or the EU and sell only into non-software patent jurisdictions.

    If enough of us do that, it will be game over for the lawyers since it will then be completely indisputable that software patents are in fact retarding innovation and driving creators OUT of the US- something the US could not bear the thought of since it's so contrary to our idea of our country.

  • by dballanc (100332) on Tuesday May 08, 2012 @11:27PM (#39937545)

    Aside from the absurd patents, like software that need to go away completely, the fees and the total number of patents held by an organization should be linked to the number of full time, non-contract employees. The implementation would need appropriate loop holes checks, and heavy fines for trying to subvert the system.

    A huge company with many workers should be allowed an appropriately large number of patents. They should also have to pay top dollar to keep them, with the price per patent going up considerably each with each new patent. A smaller company can only hold a few (bye-bye patent holding troll companies), but the fees should be in line with what a smaller company that actually -needs- patent protection to get off the ground can actually afford.

    I'd also like to see published licensing rate formulas required in the patent where everyone pays using the same rate formulates when utilizing the holders patent, and the holder may not refuse to license a patent at those rates. The rate formula is part of the submitted patent application, and can be grounds for refusal of the patent.

    Now decrease protection time to something reasonable like 5 years I think things might get better.

  • by Shavano (2541114) on Wednesday May 09, 2012 @12:14AM (#39937789)

    Apple defends it by putting their expensive suits on it and soon racks up $100k in legal fees, so they threaten the little guy that if he doesn't drop the suit, he could lose $300k. He can't afford to lose $300k and Apple has better lawyers.

  • by Errol backfiring (1280012) on Wednesday May 09, 2012 @04:12AM (#39938799) Journal
    So if you are a lawyer, you could work for either side and always win? If you don't win the case, you can take a percentage of the damages? Off course your contract would state that you would never participate in the losses of the case. In countries where "no cure, no pay" is allowed for lawyers (which is totally insane), this only makes matters worse.
  • by alexo (9335) on Wednesday May 09, 2012 @11:28AM (#39941877) Journal

    The only way to have meaningful changes (be they patent reforms or anything else) is to ensure that those in the position to enact the changes have both the means and the will to do so.

    Until we reach that stage, all the ideas, suggestions and discussions amount to nothing more than intellectual masturbation.

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