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Here's something I don't quite understand, and where some of this feels a little hypocritical: Apple, the most valuable company in the world, could be working t

Here's something I don't quite understand, and where some of this feels a little hypocritical: Apple, the most valuable company in the world, could be working to reform patent law in order to make this a non-issue. Everyone talks about US politics as pay-to-play, it should be possible for Apple, Google, MS, Amazon, etc., to lobby for Software Patents, for example, to be reclassified as "math" and therefor not patentable. If they're actively doing that, then I'm not aware of it. If US policy can be bought and sold as we are led to believe (maybe this is actually a false premise) then you'd think the most valuable companies in the world would be able to change it. What this implies to me, is that they want the existing patent system to work in their favor, i.e. to protect their monopolies against new competitors, but they don't want to deal with the downside of the patent troll abuse. Don't get me wrong, I'm aware of the documented corruption of the court in Texas, and I think it's abhorrent, along with all the trolls, but this feels like a situation where Apple wants it's cake and to eat it too. Shouldn't we just do away with software patents all together and instead rely on copyright law?

smsm42 8y ago
> Everyone talks about US politics as pay-to-play, it should be possible You are assuming that if "everybody talks" about something, it must be true. Unfortunately, it is not often the case.
mrguyorama 8y ago
They don't want to re-define how patent law works because they sometimes use it to their advantage.
- ABCLAW 8y ago
  I think it's more that their legal department is busy with enabling their business. Which is doing well. Typically industry lobbying is performed through industry associations, not by companies themselves. Why would Apple shoulder the burden of the lobbying effort when all of the other tech companies would be happy to ride their coat-tails? Additionally, the political climate re IP lobbying in the past 5 years has been non-optimal to push for changes. Apple has been involved in several very large IP disputes, which makes their involvement look self serving, the AIA was relatively new and some people wanted to wait to see if it would be effective, a new USPTO director came in only a year ago* (prior to which the previous director was very unlikely to make large changes at the end of their mandate), and the current administration is very hostile towards coastal IP-centric business. *Oh, and he's fucking horrible: https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-patent-troll-narrative-orwellian-doublespeak/id=102474/ https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-pate...
  - alkibiades 8y ago
    all oil companies and wall street lobby for their interests. don’t think it would just be apple shouldering it
btilly 8y ago
The challenge is that the issue is created in the courts, and direct lobbying of judges is a lot less acceptable than lobbying politicians. And even if you solved that, tech would find itself lobbying against big pharma, and they are a lot better at lobbying the government than tech has historically been. US rules on patents are created by a combination of laws and precedents. Of the two, precedent is in practice more important because courts are bound to interpret new cases in accord with how higher courts have interpreted old ones, no matter what they think of the interpretation. And now consider the structure of US courts. An insane fraction of patent lawsuits start in Texas. Thanks to a special legal arrangement, all patent cases from anywhere next go to a special court known as the Federal Circuit. And only after that to the Supreme Court. It is a general rule of bureaucracy that people will consistently interpret their jobs in a way that makes their role more important. All patent cases go to the Federal Circuit. The more powerful patents are, the more important that court is. Would you guess that their precedents are generally going to increase or decrease the importance of patents? Now the Supreme Court does overturn them occasionally. But the Supreme Court is busy and only does this so often. And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. And since there is no easy way to remove those judges, there is no consequence for them in doing so. Around the country lawyers who specialize in patents, whose livelihood also depends on patents being important, cynically applaud. And the escalator continues. Now here is the truth. US law already says that abstract ideas (like math) are not patentable. The decision that software is more like machines than math doesn't come from Congress, it comes from the courts. Congress could pass more laws. But they would get interpreted by the same court. Would you care to wager on how that will work out? The real solution is to recognize that creating the Federal Circuit in 1980 was a bad idea and reverse it. However remember what I said at the beginning about big pharma liking patents? Exactly...
- ABCLAW 8y ago
  > And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. I get what you're trying to say, but I think your point at the end regarding the Federal Court trying to go behind the Supreme Court's back is false. The Federal Court's decisions often propose a framework for patentability, then the Supreme Court rejects the framework without then building one of their own. When the next big patentability case comes up, the Federal Court tries again with something new, then the Supreme Court says "No, try again". The Federal Court frameworks are often pretty mediocre, but if the Supreme Court had an actual policy direction in mind, it is fully competent to just develop and state the test and put this area to rest. They haven't because they can't. Every framework sucks, because the patentability concept is way too broad to be addressed in a single test. So then the USPTO puts out their internal instruction, and after we've had a 4 link chain of broken telephone, we hit the point where 'stupid patent x got in under the new "Case X" framework and the Supreme Court feels the need to tell everyone they're stupid, without proposing a solution. Functionally, all this game of framework tennis does is make the field absurdly complicated, but lets not blame that on the Federal Court alone. There's plenty of other things we can blame them for. Like how the fuck did the former chemist judges on the court not know what covalent bonds were? !@#$!#%$@#$%
elefanten 8y ago
1. I think your assumption of pay-to-play is too strong. It's true to some degree but it's not as simple as having the right budget. For one, there are always factions working against you. There are always multiple jurisdictions and branches to consider, with different incentives. Add currents of public opinion and how they impact electoral and business interests on top of it all... it's a complex puzzle. So even the biggest budget is no guarantee. 2. Your broader point about Apple and patents presumes that all software patents are always bad. That may be popular on HN, but I sincerely doubt it's that black and white. Yes, patent trolling trivial components or processes feels and probably is overtly 'wrong'. But there's a more nuanced debate about creating the right incentives to do difficult intellectual work that benefits everyone. There's probably a 'correct' granularity of patentable idea even in software.
- bluejekyll 8y ago
  1) agreed, though I would think that the combined companies could have larger sway than others. 2) I mostly disagree. Where software is so specialized and valuable, I anticipate that it would be held privately and not necessarily made public. This seems to me to be better protected by copyright and not patent law. IANAL, but copyright feels more appropriate, and while you might be right that there is some majestic software that is so unique, but yet so easily duplicated (without the source) that it deserves monopoly protection, I don't believe that exists, but if there are some pure examples that can be held up, I'd be happy to change my opinion. A less aggressive option than getting rid of software patents entirely, might be changing the way that we apply for them. What if the source code itself was required to be submitted with the patent application, and not just the design. Part of the reason patents exist is to encourage the disclosure of the design, so that when the monopoly ends, society benefits from the advancement. What if the patented software was always required to be open-sourced? Would this be a means for easily fending off trolls? They'd have to show a working program, for one thing (it's not clear to me that they do now), and failure to do that could be an easy way to get a summary judgement against them.
  - elefanten 8y ago
    Fair points and I like your suggestions. Definitely no lawyer, but I see the theoretical value in IP broadly. Whether patents and software are the right configuration.. I hold very loose opinions there. To bring it back to Apple, I have a hard time casting strong moral judgment on their stance when they're not patent trolling others, even if they're not leading the righteous revolution. Their Samsung lawsuit feels more along the lines of what you describe in the copyright realm -- it's a defense of their design / expression of the ideas.
chiefalchemist 8y ago
re: "What this implies to me, is that they want the existing patent system to work in their favor, i.e. to protect their monopolies against new competitors, but they don't want to deal with the downside of the patent troll abuse." Mind if I rephrase a slight bit (for clarity)? The existing system works in their favor. Having stores in that geographic area exposes them to unnecessary risk. They'll keep the upside (as it stands), and mitigate the risk. That's what every biz does. While I'm not one to defend Big Inc, that hardly sounds like having their cake and eating it as well.
ehsankia 8y ago
Honestly, historically tech companies have had a very hard time lobbying in my experience, both in the US and in EU. See FOSTA-SESTA, net neutrality, rule 11 and 13 in EU, GDPR, etc. Maybe they just don't want to stoop as low as other lobbying groups, or maybe lobbying isn't as powerful as people make it.
- deleted 8y ago
  [deleted]
harryh 8y ago
Everyone talks about US politics as pay-to-play Only people who don't know what that are talking about talk this way. Or also, I suppose, people who are lying to you in order to sell you something.
tylerl 8y ago
Nobody gets to just "do away with software patents," because that'd be a legislative procedure, and an uphill battle in a snowstorm even understand the best of circumstances. Take a quick glance at what the US legislative process is up to at the moment, and will be up to at least through 2020. There will be no progress. On anything.

smsm42 8y ago

> Everyone talks about US politics as pay-to-play, it should be possible You are assuming that if "everybody talks" about something, it must be true. Unfortunately, it is not often the case.

mrguyorama 8y ago

They don't want to re-define how patent law works because they sometimes use it to their advantage.

ABCLAW 8y ago
I think it's more that their legal department is busy with enabling their business. Which is doing well. Typically industry lobbying is performed through industry associations, not by companies themselves. Why would Apple shoulder the burden of the lobbying effort when all of the other tech companies would be happy to ride their coat-tails? Additionally, the political climate re IP lobbying in the past 5 years has been non-optimal to push for changes. Apple has been involved in several very large IP disputes, which makes their involvement look self serving, the AIA was relatively new and some people wanted to wait to see if it would be effective, a new USPTO director came in only a year ago* (prior to which the previous director was very unlikely to make large changes at the end of their mandate), and the current administration is very hostile towards coastal IP-centric business. *Oh, and he's fucking horrible: https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-patent-troll-narrative-orwellian-doublespeak/id=102474/ https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-pate...
- alkibiades 8y ago
  all oil companies and wall street lobby for their interests. don’t think it would just be apple shouldering it

btilly 8y ago

The challenge is that the issue is created in the courts, and direct lobbying of judges is a lot less acceptable than lobbying politicians. And even if you solved that, tech would find itself lobbying against big pharma, and they are a lot better at lobbying the government than tech has historically been. US rules on patents are created by a combination of laws and precedents. Of the two, precedent is in practice more important because courts are bound to interpret new cases in accord with how higher courts have interpreted old ones, no matter what they think of the interpretation. And now consider the structure of US courts. An insane fraction of patent lawsuits start in Texas. Thanks to a special legal arrangement, all patent cases from anywhere next go to a special court known as the Federal Circuit. And only after that to the Supreme Court. It is a general rule of bureaucracy that people will consistently interpret their jobs in a way that makes their role more important. All patent cases go to the Federal Circuit. The more powerful patents are, the more important that court is. Would you guess that their precedents are generally going to increase or decrease the importance of patents? Now the Supreme Court does overturn them occasionally. But the Supreme Court is busy and only does this so often. And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. And since there is no easy way to remove those judges, there is no consequence for them in doing so. Around the country lawyers who specialize in patents, whose livelihood also depends on patents being important, cynically applaud. And the escalator continues. Now here is the truth. US law already says that abstract ideas (like math) are not patentable. The decision that software is more like machines than math doesn't come from Congress, it comes from the courts. Congress could pass more laws. But they would get interpreted by the same court. Would you care to wager on how that will work out? The real solution is to recognize that creating the Federal Circuit in 1980 was a bad idea and reverse it. However remember what I said at the beginning about big pharma liking patents? Exactly...

ABCLAW 8y ago
> And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. I get what you're trying to say, but I think your point at the end regarding the Federal Court trying to go behind the Supreme Court's back is false. The Federal Court's decisions often propose a framework for patentability, then the Supreme Court rejects the framework without then building one of their own. When the next big patentability case comes up, the Federal Court tries again with something new, then the Supreme Court says "No, try again". The Federal Court frameworks are often pretty mediocre, but if the Supreme Court had an actual policy direction in mind, it is fully competent to just develop and state the test and put this area to rest. They haven't because they can't. Every framework sucks, because the patentability concept is way too broad to be addressed in a single test. So then the USPTO puts out their internal instruction, and after we've had a 4 link chain of broken telephone, we hit the point where 'stupid patent x got in under the new "Case X" framework and the Supreme Court feels the need to tell everyone they're stupid, without proposing a solution. Functionally, all this game of framework tennis does is make the field absurdly complicated, but lets not blame that on the Federal Court alone. There's plenty of other things we can blame them for. Like how the fuck did the former chemist judges on the court not know what covalent bonds were? !@#$!#%$@#$%

elefanten 8y ago

1. I think your assumption of pay-to-play is too strong. It's true to some degree but it's not as simple as having the right budget. For one, there are always factions working against you. There are always multiple jurisdictions and branches to consider, with different incentives. Add currents of public opinion and how they impact electoral and business interests on top of it all... it's a complex puzzle. So even the biggest budget is no guarantee. 2. Your broader point about Apple and patents presumes that all software patents are always bad. That may be popular on HN, but I sincerely doubt it's that black and white. Yes, patent trolling trivial components or processes feels and probably is overtly 'wrong'. But there's a more nuanced debate about creating the right incentives to do difficult intellectual work that benefits everyone. There's probably a 'correct' granularity of patentable idea even in software.

bluejekyll 8y ago
1) agreed, though I would think that the combined companies could have larger sway than others. 2) I mostly disagree. Where software is so specialized and valuable, I anticipate that it would be held privately and not necessarily made public. This seems to me to be better protected by copyright and not patent law. IANAL, but copyright feels more appropriate, and while you might be right that there is some majestic software that is so unique, but yet so easily duplicated (without the source) that it deserves monopoly protection, I don't believe that exists, but if there are some pure examples that can be held up, I'd be happy to change my opinion. A less aggressive option than getting rid of software patents entirely, might be changing the way that we apply for them. What if the source code itself was required to be submitted with the patent application, and not just the design. Part of the reason patents exist is to encourage the disclosure of the design, so that when the monopoly ends, society benefits from the advancement. What if the patented software was always required to be open-sourced? Would this be a means for easily fending off trolls? They'd have to show a working program, for one thing (it's not clear to me that they do now), and failure to do that could be an easy way to get a summary judgement against them.
- elefanten 8y ago
  Fair points and I like your suggestions. Definitely no lawyer, but I see the theoretical value in IP broadly. Whether patents and software are the right configuration.. I hold very loose opinions there. To bring it back to Apple, I have a hard time casting strong moral judgment on their stance when they're not patent trolling others, even if they're not leading the righteous revolution. Their Samsung lawsuit feels more along the lines of what you describe in the copyright realm -- it's a defense of their design / expression of the ideas.

chiefalchemist 8y ago

re: "What this implies to me, is that they want the existing patent system to work in their favor, i.e. to protect their monopolies against new competitors, but they don't want to deal with the downside of the patent troll abuse." Mind if I rephrase a slight bit (for clarity)? The existing system works in their favor. Having stores in that geographic area exposes them to unnecessary risk. They'll keep the upside (as it stands), and mitigate the risk. That's what every biz does. While I'm not one to defend Big Inc, that hardly sounds like having their cake and eating it as well.

ehsankia 8y ago

Honestly, historically tech companies have had a very hard time lobbying in my experience, both in the US and in EU. See FOSTA-SESTA, net neutrality, rule 11 and 13 in EU, GDPR, etc. Maybe they just don't want to stoop as low as other lobbying groups, or maybe lobbying isn't as powerful as people make it.

deleted 8y ago
[deleted]

harryh 8y ago

Everyone talks about US politics as pay-to-play Only people who don't know what that are talking about talk this way. Or also, I suppose, people who are lying to you in order to sell you something.

tylerl 8y ago

Nobody gets to just "do away with software patents," because that'd be a legislative procedure, and an uphill battle in a snowstorm even understand the best of circumstances. Take a quick glance at what the US legislative process is up to at the moment, and will be up to at least through 2020. There will be no progress. On anything.