7 ms·

This is about the triple-damages rule, which says that if you're found to infringe on a patent willingly then the damages are increased, while if you didn't kno

This is about the triple-damages rule, which says that if you're found to infringe on a patent willingly then the damages are increased, while if you didn't know about it, they aren't. This, combined with a large number of very-low-quality ambiguous patents and the fact that the patent office's screening only creates a legal presumption of validity but not a practical one, means that everyone is strongly incentivized to avoid ever looking at anything the patent office publishes. Which makes things even worse, because the problem is hidden and the patent office can't draw on public knowledge to shoot down bad patents.

eganist 11y ago
I appreciate your explanation, though I can also appreciate why the rule was introduced. It would seem the consequences of it were entirely unforeseen. A devil's advocate argument: should the rule be tossed, might there not suddenly be a bottleneck imposed on new projects where legal teams would now have to research whether a particular feature duplicates an existing patent? I'd say it's an unwinnable game since doing away with software patents might also harm any commercial motivation to produce a service with even a hint of transparency into how that service does what it does. I almost feel like the Treble damages rule is the least-bad of all of them, but that's just a gut feeling. Any armchair-lawyers (or actual ones!) want to weigh in? I'm not anywhere near qualified to actually express an opinion on this.
- kevingadd 11y ago
  The current state of affairs as described in the brief (accurately, in my experience) is catastrophically bad. Even if you completely abolished software patents I don't think it could be worse than this.
- jeswin 11y ago
  > doing away with software patents might also harm any commercial motivation to produce a service with even a hint of transparency into how that service does what it does Do you have examples of FOSS or other projects benefiting from companies revealing information through patent filing? To rephrase, what exactly do we lose out if patents didn't exist? Even if there is some marginal value in the knowledge sharing that happens in patent filings, not allowing software patents would be a much bigger benefit. To support this point, we can look at the prevalence and utility of Open Source software projects; which work without patent protection.
  - forgotpwtomain 11y ago
    > To rephrase, what exactly do we lose out if patents didn't exist? If you're talking about mundane things like a slider on a phone lock-screen - than obviously nearly nothing. On the otherhand if you are talking about a result of research that might have taken 5-10 years - than patent protection is a big deal and very few private companies would be incentivized to engage in such research without a patent system.
    - nothrabannosir 11y ago
      Yes, that is, indeed, the point if patents. That's what the OP asked: what 5-10y software research, which we currently benefit from, would not have happened were it not for patents? In medicine, this is extremely easy to answer. Hence why the vast majority of software patents opponents are fine with those.
      - forgotpwtomain 11y ago
        > That's what the OP asked: what 5-10y software research, which we currently benefit from, would not have happened were it not for patents? First of all that is explicitly not what OP asked - he asked: >> To rephrase, what exactly do we lose out if patents didn't exist? > In medicine, this is extremely easy to answer. Hence why the vast majority of software patents opponents are fine with those. Then it seems you've answered your own question? Obviously the patent being in software as opposed to being in medicine doesn't make any distinction -- since there is no logical way to qualify that criteria into a rule that can be unequivocally applied; that the patent system is greatly beneficial in other major areas of research (and supposing you admit the net benefit to be greater than the net harm) makes it inevitable in software - whether you like it or not.
        AnthonyMouse 11y ago
        > there is no logical way to qualify that criteria into a rule that can be unequivocally applied Software patent: A patent that can be infringed using only computer software and a prior art computer. That clearly, unequivocally does not apply to patents on drugs or the like.
- belorn 11y ago
  I would like to see a study that compare the commercial incentive vs the deincentives cause by the chilling effects from patents. It should be a standard cost-benefit analyzes with no emotional/political bias that could give a final scientific answer if patents are beneficial for software or not.
  - throwawaykf05 11y ago
    There are tons of studies around patents and the economics thereof, but you will not find such a convenient answer to your question. The reason is that it's very hard to measure the costs and benefits to quantify these incentives and dis-incentives. Furthermore the benefits and costs of patent systems are often orthogonal. If you want to get an idea of the depth of the field, look at all the studies cited by this paper, and look at all the various methods, metrics and datasets that have been considered so far: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139260 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139260
WildUtah 11y ago
"the triple-damages rule, which says that if you're found to infringe on a patent willingly then the damages are increased, while if you didn't know about it, they aren't." That's the triple damages rule as invented from whole cloth by the Circuit Court of Appeals for the Federal Circuit (CAFC), the patent court. The actual law is that "the court may increase the damages up to three times the amount found or assessed" (35 USC §284). There is no special rule about knowing infringement or willful infringement. The CAFC has been limiting triple damages because having no standards in a free for all of triple damages based only on judges' feelings would be terrible. So the CAFC picked out one egregious behavior by rich infringers -- willful infringement -- and limited the triple damages to that offense. It was a reasonable compromise but has no support in the text of the law. The Supreme Court looks askance at such compromises outside the statute and may decide to overturn this one. That will lead to more shopping for district judges inclined to cheat and abuse the defendants in patent lawsuits now that there will be no limits on tripling. And that points to -- you guessed it -- the Eastern District of Texas. There is another case before the CAFC -- not the Supremes -- TC Heartland scheduled for oral argument on 11 March, where the CAFC could simply abolish Eastern Texas patent litigation with the stroke of a pen. The law (28 USC §1400) says that you can be sued over patents only in your home jurisdiction and not in East Texas (since tech companies don't start up in Texarkana). The CAFC abolished that law by simply choosing to contradict it a couple decades ago and created the troll jurisdictions. But now the CAFC is considering bringing it back and obeying the law as written. It's interesting to see the CAFC in both cases being the sane ones. For the most part historically the CAFC has been loony and corrupt in promoting maximum damage to innovation for the benefit of patent lawyers with no respect to the law or reason. Some of the new Obama appointees and the resignation of the Chief Judge Rader under federal investigation for corruption last year may have reduced the lunacy temporarily.

eganist 11y ago

I appreciate your explanation, though I can also appreciate why the rule was introduced. It would seem the consequences of it were entirely unforeseen. A devil's advocate argument: should the rule be tossed, might there not suddenly be a bottleneck imposed on new projects where legal teams would now have to research whether a particular feature duplicates an existing patent? I'd say it's an unwinnable game since doing away with software patents might also harm any commercial motivation to produce a service with even a hint of transparency into how that service does what it does. I almost feel like the Treble damages rule is the least-bad of all of them, but that's just a gut feeling. Any armchair-lawyers (or actual ones!) want to weigh in? I'm not anywhere near qualified to actually express an opinion on this.

kevingadd 11y ago
The current state of affairs as described in the brief (accurately, in my experience) is catastrophically bad. Even if you completely abolished software patents I don't think it could be worse than this.
jeswin 11y ago
> doing away with software patents might also harm any commercial motivation to produce a service with even a hint of transparency into how that service does what it does Do you have examples of FOSS or other projects benefiting from companies revealing information through patent filing? To rephrase, what exactly do we lose out if patents didn't exist? Even if there is some marginal value in the knowledge sharing that happens in patent filings, not allowing software patents would be a much bigger benefit. To support this point, we can look at the prevalence and utility of Open Source software projects; which work without patent protection.
- forgotpwtomain 11y ago
  > To rephrase, what exactly do we lose out if patents didn't exist? If you're talking about mundane things like a slider on a phone lock-screen - than obviously nearly nothing. On the otherhand if you are talking about a result of research that might have taken 5-10 years - than patent protection is a big deal and very few private companies would be incentivized to engage in such research without a patent system.
  - nothrabannosir 11y ago
    Yes, that is, indeed, the point if patents. That's what the OP asked: what 5-10y software research, which we currently benefit from, would not have happened were it not for patents? In medicine, this is extremely easy to answer. Hence why the vast majority of software patents opponents are fine with those.
    - forgotpwtomain 11y ago
      > That's what the OP asked: what 5-10y software research, which we currently benefit from, would not have happened were it not for patents? First of all that is explicitly not what OP asked - he asked: >> To rephrase, what exactly do we lose out if patents didn't exist? > In medicine, this is extremely easy to answer. Hence why the vast majority of software patents opponents are fine with those. Then it seems you've answered your own question? Obviously the patent being in software as opposed to being in medicine doesn't make any distinction -- since there is no logical way to qualify that criteria into a rule that can be unequivocally applied; that the patent system is greatly beneficial in other major areas of research (and supposing you admit the net benefit to be greater than the net harm) makes it inevitable in software - whether you like it or not.
      - AnthonyMouse 11y ago
        > there is no logical way to qualify that criteria into a rule that can be unequivocally applied Software patent: A patent that can be infringed using only computer software and a prior art computer. That clearly, unequivocally does not apply to patents on drugs or the like.
belorn 11y ago
I would like to see a study that compare the commercial incentive vs the deincentives cause by the chilling effects from patents. It should be a standard cost-benefit analyzes with no emotional/political bias that could give a final scientific answer if patents are beneficial for software or not.
- throwawaykf05 11y ago
  There are tons of studies around patents and the economics thereof, but you will not find such a convenient answer to your question. The reason is that it's very hard to measure the costs and benefits to quantify these incentives and dis-incentives. Furthermore the benefits and costs of patent systems are often orthogonal. If you want to get an idea of the depth of the field, look at all the studies cited by this paper, and look at all the various methods, metrics and datasets that have been considered so far: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139260 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139260

WildUtah 11y ago

"the triple-damages rule, which says that if you're found to infringe on a patent willingly then the damages are increased, while if you didn't know about it, they aren't." That's the triple damages rule as invented from whole cloth by the Circuit Court of Appeals for the Federal Circuit (CAFC), the patent court. The actual law is that "the court may increase the damages up to three times the amount found or assessed" (35 USC §284). There is no special rule about knowing infringement or willful infringement. The CAFC has been limiting triple damages because having no standards in a free for all of triple damages based only on judges' feelings would be terrible. So the CAFC picked out one egregious behavior by rich infringers -- willful infringement -- and limited the triple damages to that offense. It was a reasonable compromise but has no support in the text of the law. The Supreme Court looks askance at such compromises outside the statute and may decide to overturn this one. That will lead to more shopping for district judges inclined to cheat and abuse the defendants in patent lawsuits now that there will be no limits on tripling. And that points to -- you guessed it -- the Eastern District of Texas. There is another case before the CAFC -- not the Supremes -- TC Heartland scheduled for oral argument on 11 March, where the CAFC could simply abolish Eastern Texas patent litigation with the stroke of a pen. The law (28 USC §1400) says that you can be sued over patents only in your home jurisdiction and not in East Texas (since tech companies don't start up in Texarkana). The CAFC abolished that law by simply choosing to contradict it a couple decades ago and created the troll jurisdictions. But now the CAFC is considering bringing it back and obeying the law as written. It's interesting to see the CAFC in both cases being the sane ones. For the most part historically the CAFC has been loony and corrupt in promoting maximum damage to innovation for the benefit of patent lawyers with no respect to the law or reason. Some of the new Obama appointees and the resignation of the Chief Judge Rader under federal investigation for corruption last year may have reduced the lunacy temporarily.