Trolls Are Real

https://www.eff.org/effector/32/3

by lelf • 7 years ago

306 75 7 years ago

amelius5• 7 years ago

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

skrebbel• 7 years ago

paying fishermen for the fish they didn't catch.

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

badfrog• 7 years ago

What do you mean? Why?

pbhjpbhj• 7 years ago

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

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

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

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

kurthr• 7 years ago

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

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

amelius5• 7 years ago

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

dahart3• 7 years ago

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

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

pnw_hazor5• 7 years ago

Not even close to how it works.

rayiner6• 7 years ago

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

amelius5• 7 years ago

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

pnw_hazor5• 7 years ago

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

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

bsbechtel• 7 years ago

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

monochromatic2• 7 years ago

That’s not even close to true.

nanokilo• 7 years ago

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

blazespin• 7 years ago

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

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

z3t4• 7 years ago

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

greglindahl2• 7 years ago

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

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

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

pnw_hazor5• 7 years ago

Their investors sure like them though.

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

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

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

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

hownottowrite• 7 years ago

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

acomjean• 7 years ago

Yikes, thats pretty bad.

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

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

jessaustin• 7 years ago

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

TomMckenny• 7 years ago

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

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

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

CalChris• 7 years ago

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

lostlogin• 7 years ago

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

mirimir4• 7 years ago

I guess that he's playing to the audience.

Maybe some of those attorneys are major Trump supporters.

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

mirimir4• 7 years ago

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

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

robdachshund• 7 years ago

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

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

ddspider2• 7 years ago

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

novaleaf• 7 years ago

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

ddspider2• 7 years ago

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

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

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

jka2• 7 years ago

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

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

pnw_hazor5• 7 years ago

That was copyright not patents.

jka2• 7 years ago

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

rayiner6• 7 years ago

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

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

jMyles2• 7 years ago

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

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

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

monochromatic2• 7 years ago

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

rayiner6• 7 years ago

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

twtw2• 7 years ago

I genuinely do not understand your position.

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

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

mlinksva2• 7 years ago

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

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

rayiner6• 7 years ago

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

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

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

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

mjevans• 7 years ago

Re Patents (Just get rid of them entirely!)

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

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

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

onlyrealcuzzo• 7 years ago

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

danaur• 7 years ago

How would you incentivize drug research without patents?

ndnxhs• 7 years ago

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

gviperrr• 7 years ago

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

bluejekyll• 7 years ago

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

edoo• 7 years ago

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

antpls• 7 years ago

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

wataruspeedo• 7 years ago

Turn JavaScript on.

eruci• 7 years ago

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

everybodyknows• 7 years ago

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

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

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

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

Trolls Are Real

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