EFF Defends Public’s Right to Access Court Records About Patent Ownership

https://www.eff.org/deeplinks/2020/08/victory-eff-defends-publics-right-access-court-records-about-patent-ownership

by DiabloD3 • 6 years ago

274 26 6 years ago

"a prolific patent litigant" that should be urban dict definition for a patent troll. And with addition of "losing majority of actual trials" a regular dictionary.

I think it's becoming if not already became apparent that IP law is deeply flawed. The sole existence of legitimate business model of patent trolls is an indication as well as solutions hurting public designed to avoid corporate litigations such as you tube content infrifiment marking. Its biased against individuals.

But, oh well,bills and laws are not sponsored by public, so it's hard to expect they work in their favour.

ikeboy6• 6 years ago

And don't forget trademark and copyright bullies. There's a whole bunch of brands that try to restrict distribution of their authentic products using trademark law - see e.g. https://www.polygon.com/2018/8/11/17661254/bethesda-sell-use..., or my previous comment at https://news.ycombinator.com/item?id=22079904.

As I've mentioned several times on HN, I'm currently suing TP-Link for asserting false IP claims against me. We actually just amended to add new antitrust claims, which might work, being that TP-link is the largest manufacturer in the WiFi router market by far.

MaxBarraclough2• 6 years ago

As I've mentioned several times on HN

Please provide links when referring to old discussions.

https://news.ycombinator.com/item?id=23285174

https://news.ycombinator.com/item?id=23278177

https://news.ycombinator.com/item?id=22697693

ajmurmann• 6 years ago

It's particularly unfortunate that trademark law in essence forces trademark holders to be bullies. Hard to come up with a law structured to cause more litigation.

kiba• 6 years ago

I think it's becoming if not already became apparent that IP law is deeply flawed.

Unfortunately, it's a problem for a long time. This isn't something that happened in the last few decades.

Hollywood was in California to avoid Edison's patents.

The Wright brothers spent their time and energy suing people and engaging in feud instead of spending their time improving their inventions.

3D printing didn't really emerge as a hobby market until the 2000s after the expiration of patents.

Makerbot Inc apparently patented inventions that belonged to the 3D printing community at large, and then get bought up by Stratasys.

So you get intellectual common theft, inventors suing people instead of further innovating, patent trolling, etc.

derf_• 6 years ago

Unfortunately, it's a problem for a long time. This isn't something that happened in the last few decades.

Yes, all of those things have been problems for a long time. However, the application of patent law to software and business methods is relatively recent (in legal terms). In the US, the Court of Appeals for the Federal Circuit has been largely responsible for growing the scope of software patents since its creation in 1982 (e.g., holding that use of an analog to digital converter or a memory storage device were all that is needed to meet the Supreme Court's 1981 Diamond v. Diehr test that a software patent has to actually do something, rather than just being a conventional implementation of inherently unpatentable math). This culminated in the 1998 State Street decision (again, of the CAFC, not the Supreme Court) that opened the floodgates for business method patents.

Despite Supreme Court decisions like In re Bilski (2009) and CLS Bank International v Alice Corp (2014) that attempted to limit the scope of these patents, and that were hoped (of Alice in particular) to be able to be used to invalidate large swaths of such patents, the CAFC continues to erode the force of these decisions (see, e.g., the 2020 Uniloc decision) and carve out new ways to patent mathematical algorithms implemented on general purpose computers. The allowance of these patents by the USPTO has also been on the rise in recent years.

yummypaint2• 6 years ago

Part of the problem is that there are no criminal penalties for making false copyright claims as far as i know. A troll could be sued in civil court, but it's a long expensive process with non-negligible risk, and in practice individuals rarely attempt it because of the same asymmetries that enable patent trolls in the first place. What we need is an actual law that levies meaningful penalties for abuse. Maybe $100+ fine per invalid DMCA request, or 2x the demanded damages in lawsuits. That would at least help put a stop to shotgun blast automated takedowns, and inflated multimillion dollar claims designed to fleece teenagers and college students.

yummypaint2• 6 years ago

I wonder if it would be possible to make a youtube competitor supported entirely by issuing fines for invalid copyright claims.

qppo• 6 years ago

The exact problem is that it puts the burden of proof on the accused, who has to fight the claim under penalty of perjury (while there is no reciprocal requirement for the accuser).

The simple fix is to make false DMCA claims tantamount to perjury.

ikeboy6• 6 years ago

DMCA notices are submitted under penalty of perjury, which means someone submitting false ones could be prosecuted criminally. We need an ambitious DA somewhere to enforce this, though.

I've been tracking lawsuits for false DMCA or trademark/patent claims, there's been a rising number, but any litigation takes time and money. I would support a law with punitive damages for such offenses, as well as a law making clear that such conduct is not legally protected (IP abusers have argued they have 1st amendment rights to say whatever they want, or similar argument.)

Note that it's sometimes possible to sue for antitrust violations, which carries a triple damages provision. I'm also currently attempting to get a RICO claim to work with an underlying wire fraud predicate, which would also lead to triple damages.

amelius• 6 years ago

The patent application process should at least allow the public to come up with counterclaims. Far from perfect, but imho it would solve a lot. For example: Amazon files a patent application for one-click buying; the public however responds with a small script showing how to implement it, nullifying the patent.

I'd also like to see an official public database where people can post inventions, source code, etc., or an official way to timestamp/sign them. Such services exist right now of course, but afaik they're not official.

This is the absolute minimum that the government can do to make patent law future-proof. A law will only work if people think it's fair.

8note• 6 years ago

Another failure: IP as it is today allows for all the tax havens

rudolph92• 6 years ago

Related note: anyone with a qualifying engineering degree can [become a patent practitioner][1].

I stumbled across this while looking into law school and was surprised to see my Computer Science degree was all I needed to qualify for the exam. The exam is difficult from the sense that each question has a good amount of information you need to process and 100 questions is mentally straining. However, the exam is open book and you basically have everything you need to figure out all the questions during the exam.

The exam is also relatively cheap, somewhere around $500 total (not including any additional learning materials, I use [OmniPrep][2]), and allows you to practice as a patent practitioner nationally.

[1] https://www.uspto.gov/learning-and-resources/patent-and-trad...

[2] https://www.omnipreppatent.com/

cgb223• 6 years ago

What does a patent practitioner do?

Do you enjoy it?

rudolph92• 6 years ago

Basically a patent practitioner can file patents on someone else’s behalf (file, contest decisions, transfer ownership, etc.)

I’m not a patent practitioner yet. I failed the exam the first time I took it and studying for my second attempt.

I do not enjoy it! Patent law is dry and boring and I can’t believe more this isn’t automated. Patents are powerful though and I hope to build software to empower individuals to file with a business model that encourages support for open source solutions (github for patents? but given the nature of patents that doesn’t really make sense) It’s a WIP.

1vuio0pswjnm72• 6 years ago

USPTO used to have a limitation on Computer Science degree as a qualifier. It had to be from an approved Computer Science program. There were only a handful of approved programs; most were not sufficient to qualify. Have they changed the rules?

SpicyLemonZest• 6 years ago

Unfortunately they have not. (And you may be aware of this, but I should note that the required ABET accreditation doesn't have much to do with adequacy; many of the best CS programs specifically choose not to seek it because they don't agree with ABET's requirements.)

phkahler• 6 years ago

> that’s because private parties keep asking publicly-funded courts to resolve their disputes in secret.

Lovely phrasing for such a practice. Glad to see Alsup still fighting the good fight

EFF Defends Public’s Right to Access Court Records About Patent Ownership

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