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The issue I have with much of the patent trolling bashing is, that it somehow makes a distinction between practicing companies who make something and non practi

The issue I have with much of the patent trolling bashing is, that it somehow makes a distinction between practicing companies who make something and non practicing entities. I think this is a huge veil the industry pulled over people's eyes. Why is it OK for huge companies like apple, IBM, Google... to use the patent system to keep out any competitors or newcomers, but it is not ok for smaller inventors to sell their patents to some of these "trolls" who then sue the big companies for violating the patents? Don't get me wrong, many of the patents are absolutely bogus, but that's not exclusive to patent troll patents. In fact bogus patents help established companies even more, because the trolls at least have to defend those patents in court at times, a small new player who is threatened by a large established one over some bogus patent can't afford to defend themselves. The whole notion that patents are only legitimate if you build something is completely bogus. Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it. I'm firmly in the second camp, but it seems the big players want to have their cake and eat it too.

mrslave 6y ago
Agree. Everyone wants to have their cake and eat it too. Live by the patent, die by the patent.
choppaface 6y ago
Looking at the article, it looks like if the patent holder John Harvey had spent his post-Yale life simply resting and investing in the S&P 500, then the "infringing" technology in question would have happened just fine with out him. And Mr. Harvey would probably have been richer doing that, too.
hurril 6y ago
This is a false dichotomy if I ever saw one. The fight is not between the ones that legitimately use patents and those that've merely bought (or created) them to make money off of the IP itself. There are, in fact, four alternatives here and not two: 1. Producing company, legitimate patents; 2. Producing company, illegitimate patents; 3. Non-producing company, legitimate patents; 4. Non-producing company, illegitimate patents. What I think grinds most people's gears are #4 suing #1 (or #3, though I don't think _this_ is common.) So your attempt at making this out to be a (false) choice between #1+2 on the one hand and #3+4 on the other is disingenuous.
- cycomanic 6y ago
  There are several problems with your argument. 1. How do you distinguish legitimate and illegitimate patents. I guess you have to agree on some arbiter, like courts of law. So that's how we are in the current situation 2. Notwithstanding the issue around deciding between them, most larger patent holders have a huge portfolio of "clearly" legitimate and illegitimate patents, and they are using both (you don't need to sue to use the patent, just threats are enough) 3. If you ever spoken to a patent lawyer, the whole process is about making the patent as broad as possible without disclosing how to actually do it (at least if you are using the technology yourself). So one might argue it's about making the patent as illegitimate as possible, because then the patents are actually useful (otherwise they are just to easily worked around) .
  - hurril 6y ago
    Patents need to be discriminated based on some threshold of originality or something similar. My country even has a term for it "verkshöjd" that is applied in this context. That way you don't get trolls trying to sue Amazon for "Way to sell merchandise using a >>computer network>>." Of course there's no easy way to distinguish _all_ patent (applications) this way but that one would not be accepted. The issues you raise are certainly valid and reasonable but notwithstanding not the point of contention here. The trolling part is the one that comes from what is perceived as illegitimate claims/ patents.
- diegoperini 6y ago
  I believe most of the time 1 and 3 applies to the same company (if it is big enough) simultaneously because companies want to be one move ahead of their competitors.
vasco 6y ago
Patents are a monopoly on an idea. And ideas shouldn't be owned by anyone. One shouldn't be forced to share their ideas, but the concept of coming up with something, and then going to your community and saying: "Hey everyone, I thought of this and wrote it down, none of you wrote it down before so now it's my idea for the next 30 years" Is just ridiculous.
- OJFord 6y ago
  But "so now it's my idea" just means "now only I can produce this thing commercially, unless I give you permission". The alternative is "only I can produce this thing commercially, and you have no idea how I made it anyway".
  - mkl 6y ago
    Companies like this don't produce anything commercially, didn't actually invent anything, and their patents are so vague and general that no one is any more informed about how to make anything.
- mashpoe 6y ago
  People like to say that without patents there will be no incentive to advance technology, but if you're the one to come up with an idea then you already have a huge head start. If you don't make use of that head start, then you don't deserve it, and this applies to patents as well. Monopolies are bad, and competition is good. Everyone is already incentivized to come up with and implement ideas faster than their competitors. Giving one person a monopoly just restricts others from creating competing products and only gives the user a worse and more expensive product.
  - varjag 6y ago
    In practice you'll have a head start of maybe a year before a grifter in China replicates your three years of R&D and floods the market. And a copied product will always be cheaper as they don't have to amortise development costs. That's how technology worked before the patent systems, and the outcome was manufacturer secrecy - which generally sucked more than the patent system.
lelanthran 6y ago
> In fact bogus patents help established companies even more, because the trolls at least have to defend those patents in court at times, a small new player who is threatened by a large established one over some bogus patent can't afford to defend themselves. At one point when Microsoft was still in the phone business, I recall an article pointing out that Microsoft made more money off android in a single year (unspecified patents in a patent deal with google[1]) than they made out of their own mobile OS in its entire lifespan. [1] My memory may be inaccurate, but I seem to recall that they did the patent shakedown without ever specifying exactly which patents android were infringing. There was a lot of speculation that it was the FAT patents, butu I don't recall ever seeing it being disclosed.
- vesinisa 6y ago
  I think you might be referring to the patents from Nokia. These are licensed on FRAND terms. Nokia was one of the original inventors of GSM and owns a considerable patent portfolio especially on the network tech.
  - bubblethink 6y ago
    Well, MS also went after other rubbish like exfat from what I remember. Until last year, that is, when they discovered their love for linux.
  - cycomanic 6y ago
    I don't think MS ever owned the Nokia communication patents. They only took over the phone and devices business. Nokia the telecom and information technology company still lives and bought (merged with) Alcatel who had previously bought Lucent. Bell labs (who is doing a lot of telecom R&D) for example is owned by Nokia now (it's called Nokia Bell labs)
hutzlibu 6y ago
"Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it" I am very firmly in the second camp, too. But it still leaves the question: how do inventors get money? In the long run, I hope for more consciousness on a broader base - so people and organisation just directly support inventors with money, they think are worth supporting. Than we could skip all this waste of time and energy. And as far as I know, this is happening already today. Donated cancer research for example. Also lots (if not most) of academic research is state funded and when you define the state not as a stealing feudal opressive system, but as the self-organisation of people - you can say, that people are choosing today to give lots of their money into research. But for common tech? On a broader scale as of today? I am sceptical on how to make that transition. I guess people could do try to get crowdfunding campaigns for their new revolutionizing research - but the common inventor is not a PR and social media expert - and you need to be, if you want to have common peoples attention.
bananaface 6y ago
I would argue if you're not bringing your idea to market, that's not innovation. It's the opposite, you're blocking innovation. Patents stop other people from creating useful stuff. I think it's reasonable that you should have to fill the gap in order to retain the right to stop them. Although enforcing that is difficult.
epc 6y ago
Is it really innovative if you do not implement it? I don't mean market it and make it successful, I mean just implement it. Because if the "inventor" can't implement the process described in the patent, it's not really a useful invention, is it? I was part of litigation in the 1990s where some guy had a patent on an “electronic offertory box” for use in churches. It had been granted in the 1980s. The claims made no mention of computer networking let alone “The Internet”. Yet in 1996 he successfully sued my employer and related groups that had developed a "disaster relief" web site because it offered the ability to make electronic donations (i.e. GoFundme, but to the specific non–profit). He "won" because the parties involved found it was going to be too expensive to defend. Now, I didn't know about the patent. I had no way of knowing about the patent. There literally was no way for me to have found the patent, reviewed it, and decided "yeah, an electronic offertory box is absolutely the inspiration for accepting a credit card payment online directed to a charity, and I'm going to steal that sucker". Patents were abstract things that got filed away in a basement in Washington, they were not available online, only in Lexis/Nexis sorts of electronic services that peons were not granted access to. At my company, people like me were advised NEVER to review patents ourselves due to the jeopardy we could place ourselves in if we implemented something that might be found to infringe a patent, intentions being irrelevant. In the end the guy got paid off, and the disaster relief site got shut down less than a year later because once he got his pay off other "innovators" started filing cases and the non–profit we were working with decided it wasn't worth the effort if they were simply diverting charitable funds to anyone who could file a patent infringement claim. Software patents are completely useless to me as an implementor. The processes described are so vague as to be useless to solve the problems I encounter, and the claims are so broad as to cover anything related to the field of the invention. And the ever expanding pool of people who can be targeted for infringement (oh, I see you use a laser printer in your office? You're infringing these 11,000 patents. Please pay up) just means the whole enterprise is a scam.
- hctaw 6y ago
  ARM is a good example of innovation without implementation.
- appleflaxen 6y ago
  > There literally was no way for me to have found the patent If it is patented, there is a way to find it. It certainly isn't a useful way of spreading information, but it exists, and its existence makes your claim sound hyperbolic.
cm2187 6y ago
And Apple is no stranger to bogus patents (eg the infamous round corner patent)
- shagie 6y ago
  That is a design patent that falls in the same category as the shape of a coke bottle and are related to ornamental design on an object that has practical utility. They fall in a different subsection of patent law than the way to implement something. https://en.wikipedia.org/wiki/Design_patent https://en.wikipedia.org/wiki/Design_patent
murbard2 6y ago
The main difference is that those huge companies can potentially be kept at bay with defensive patents. They have at least some skin in the game in playing stupid games with stupid patents because they could find themselves on the receiving end of these frivolous lawsuits. There is no such defense against patent trolls, only court victory, legal reform, or extrajudicial penalties (e.g. reputational).
snarf21 6y ago
We need some serious patent reform, especially in the software sphere. I'd like to see: -- All software patents expire after 5 years -- All software patents must be actively used in a revenue producing product (yearly), if not the patent expires -- All software patents are NON-transferable only licensable -- All software patents must make their licensing rates public per patent with no special deals
cletus 6y ago
> Why is it OK for huge companies like apple, IBM, Google... to use the patent system to keep out any competitors or newcomers [citation needed] Specifically, Oracle notwithstanding, big tech companies have used patent portfolios defensively. Take Google as one example. When has Google filed a patent infringement lawsuit against any company (other than as a countersuit after getting sued eg Sonos)?
- joemullin 6y ago
  Many internet companies, including Google, have used patents only defensively (so far). However, there are plenty of tech companies that do assert patents offensively, including Apple, IBM, Qualcomm (famously), Oracle, and lots of others.
  - cletus 6y ago
    Qualcomm and Oracle are clearly bad actors. IBM? Probably. But I have no idea honestly. But Apple? The only patent suit I'm aware of that they initiated was against Samsung and this is a little more complicated. First, it was primarily a design patent suit. I'm a little more sympathetic to design patents than software patents (which I'm 100% against). And, let's face it, Samsung did pretty much just rip off the iPhone. There were some non-design patents thrown in there too, that's true. But the commenter I replied to suggested these tech companies were using patents to squash smaller competitors. And for most companies that isn't true. Even if you choose to include Apple in a list of companies that use patents offensively rather than defensively, Samsung isn't really a small competitor, so the point stands.
    - fomine3 6y ago
      Apple sued Samsung with scroll bounce back effect. Yes Samsung is a big player, but the lawsuit means other developers also avoid to implement same thing. https://arstechnica.com/tech-policy/2017/04/appeals-court-revives-apples-patented-rubber-banding-tech-because-of-one-small-tweak/ https://arstechnica.com/tech-policy/2017/04/appeals-court-re...
dwild 6y ago
> The whole notion that patents are only legitimate if you build something is completely bogus. Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it. That's a sophism, it's not either theses possibilities. For me patents protect someone building something innovative, to later on profit from what he builds. It's not to reward innovation, it's to protect your capacity to build that innovation and sell it. It's not how patent troll use it, thus I disagree with their use. > but it is not ok for smaller inventors to sell their patents to some of these "trolls" who then sue the big companies for violating the patents? Why would it be? How is that beneficial to innovation? Nobody here said either that it was right to use the patent system to keep out any competitors or newcomers either... it's right to keep competitors out while you build it/sell it at first, but it's not right to use it purely to keep competitors out.
joemullin 6y ago
I agree that patent abuse and IP abuse extends beyond trolls. That's one of the reasons I started Letters Patent -- and that's why I linked to Cory Doctorow's piece outlining Apple's long history of IP abuse.
matheusmoreira 6y ago
> The whole notion that patents are only legitimate if you build something is completely bogus. It's not bogus. It's actually the only thing that justifies the mere existence of patents. If it doesn't enable better products for us then what's the point? Deviations from this social contract should not be tolerared, especially net-negative activity such as rent seeking by trolling companies and individuals.

mrslave 6y ago

Agree. Everyone wants to have their cake and eat it too. Live by the patent, die by the patent.

choppaface 6y ago

Looking at the article, it looks like if the patent holder John Harvey had spent his post-Yale life simply resting and investing in the S&P 500, then the "infringing" technology in question would have happened just fine with out him. And Mr. Harvey would probably have been richer doing that, too.

hurril 6y ago

This is a false dichotomy if I ever saw one. The fight is not between the ones that legitimately use patents and those that've merely bought (or created) them to make money off of the IP itself. There are, in fact, four alternatives here and not two: 1. Producing company, legitimate patents; 2. Producing company, illegitimate patents; 3. Non-producing company, legitimate patents; 4. Non-producing company, illegitimate patents. What I think grinds most people's gears are #4 suing #1 (or #3, though I don't think _this_ is common.) So your attempt at making this out to be a (false) choice between #1+2 on the one hand and #3+4 on the other is disingenuous.

cycomanic 6y ago
There are several problems with your argument. 1. How do you distinguish legitimate and illegitimate patents. I guess you have to agree on some arbiter, like courts of law. So that's how we are in the current situation 2. Notwithstanding the issue around deciding between them, most larger patent holders have a huge portfolio of "clearly" legitimate and illegitimate patents, and they are using both (you don't need to sue to use the patent, just threats are enough) 3. If you ever spoken to a patent lawyer, the whole process is about making the patent as broad as possible without disclosing how to actually do it (at least if you are using the technology yourself). So one might argue it's about making the patent as illegitimate as possible, because then the patents are actually useful (otherwise they are just to easily worked around) .
- hurril 6y ago
  Patents need to be discriminated based on some threshold of originality or something similar. My country even has a term for it "verkshöjd" that is applied in this context. That way you don't get trolls trying to sue Amazon for "Way to sell merchandise using a >>computer network>>." Of course there's no easy way to distinguish _all_ patent (applications) this way but that one would not be accepted. The issues you raise are certainly valid and reasonable but notwithstanding not the point of contention here. The trolling part is the one that comes from what is perceived as illegitimate claims/ patents.
diegoperini 6y ago
I believe most of the time 1 and 3 applies to the same company (if it is big enough) simultaneously because companies want to be one move ahead of their competitors.

vasco 6y ago

Patents are a monopoly on an idea. And ideas shouldn't be owned by anyone. One shouldn't be forced to share their ideas, but the concept of coming up with something, and then going to your community and saying: "Hey everyone, I thought of this and wrote it down, none of you wrote it down before so now it's my idea for the next 30 years" Is just ridiculous.

OJFord 6y ago
But "so now it's my idea" just means "now only I can produce this thing commercially, unless I give you permission". The alternative is "only I can produce this thing commercially, and you have no idea how I made it anyway".
- mkl 6y ago
  Companies like this don't produce anything commercially, didn't actually invent anything, and their patents are so vague and general that no one is any more informed about how to make anything.
mashpoe 6y ago
People like to say that without patents there will be no incentive to advance technology, but if you're the one to come up with an idea then you already have a huge head start. If you don't make use of that head start, then you don't deserve it, and this applies to patents as well. Monopolies are bad, and competition is good. Everyone is already incentivized to come up with and implement ideas faster than their competitors. Giving one person a monopoly just restricts others from creating competing products and only gives the user a worse and more expensive product.
- varjag 6y ago
  In practice you'll have a head start of maybe a year before a grifter in China replicates your three years of R&D and floods the market. And a copied product will always be cheaper as they don't have to amortise development costs. That's how technology worked before the patent systems, and the outcome was manufacturer secrecy - which generally sucked more than the patent system.

lelanthran 6y ago

> In fact bogus patents help established companies even more, because the trolls at least have to defend those patents in court at times, a small new player who is threatened by a large established one over some bogus patent can't afford to defend themselves. At one point when Microsoft was still in the phone business, I recall an article pointing out that Microsoft made more money off android in a single year (unspecified patents in a patent deal with google[1]) than they made out of their own mobile OS in its entire lifespan. [1] My memory may be inaccurate, but I seem to recall that they did the patent shakedown without ever specifying exactly which patents android were infringing. There was a lot of speculation that it was the FAT patents, butu I don't recall ever seeing it being disclosed.

vesinisa 6y ago
I think you might be referring to the patents from Nokia. These are licensed on FRAND terms. Nokia was one of the original inventors of GSM and owns a considerable patent portfolio especially on the network tech.
- bubblethink 6y ago
  Well, MS also went after other rubbish like exfat from what I remember. Until last year, that is, when they discovered their love for linux.
- cycomanic 6y ago
  I don't think MS ever owned the Nokia communication patents. They only took over the phone and devices business. Nokia the telecom and information technology company still lives and bought (merged with) Alcatel who had previously bought Lucent. Bell labs (who is doing a lot of telecom R&D) for example is owned by Nokia now (it's called Nokia Bell labs)

hutzlibu 6y ago

"Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it" I am very firmly in the second camp, too. But it still leaves the question: how do inventors get money? In the long run, I hope for more consciousness on a broader base - so people and organisation just directly support inventors with money, they think are worth supporting. Than we could skip all this waste of time and energy. And as far as I know, this is happening already today. Donated cancer research for example. Also lots (if not most) of academic research is state funded and when you define the state not as a stealing feudal opressive system, but as the self-organisation of people - you can say, that people are choosing today to give lots of their money into research. But for common tech? On a broader scale as of today? I am sceptical on how to make that transition. I guess people could do try to get crowdfunding campaigns for their new revolutionizing research - but the common inventor is not a PR and social media expert - and you need to be, if you want to have common peoples attention.

bananaface 6y ago

I would argue if you're not bringing your idea to market, that's not innovation. It's the opposite, you're blocking innovation. Patents stop other people from creating useful stuff. I think it's reasonable that you should have to fill the gap in order to retain the right to stop them. Although enforcing that is difficult.

epc 6y ago

Is it really innovative if you do not implement it? I don't mean market it and make it successful, I mean just implement it. Because if the "inventor" can't implement the process described in the patent, it's not really a useful invention, is it? I was part of litigation in the 1990s where some guy had a patent on an “electronic offertory box” for use in churches. It had been granted in the 1980s. The claims made no mention of computer networking let alone “The Internet”. Yet in 1996 he successfully sued my employer and related groups that had developed a "disaster relief" web site because it offered the ability to make electronic donations (i.e. GoFundme, but to the specific non–profit). He "won" because the parties involved found it was going to be too expensive to defend. Now, I didn't know about the patent. I had no way of knowing about the patent. There literally was no way for me to have found the patent, reviewed it, and decided "yeah, an electronic offertory box is absolutely the inspiration for accepting a credit card payment online directed to a charity, and I'm going to steal that sucker". Patents were abstract things that got filed away in a basement in Washington, they were not available online, only in Lexis/Nexis sorts of electronic services that peons were not granted access to. At my company, people like me were advised NEVER to review patents ourselves due to the jeopardy we could place ourselves in if we implemented something that might be found to infringe a patent, intentions being irrelevant. In the end the guy got paid off, and the disaster relief site got shut down less than a year later because once he got his pay off other "innovators" started filing cases and the non–profit we were working with decided it wasn't worth the effort if they were simply diverting charitable funds to anyone who could file a patent infringement claim. Software patents are completely useless to me as an implementor. The processes described are so vague as to be useless to solve the problems I encounter, and the claims are so broad as to cover anything related to the field of the invention. And the ever expanding pool of people who can be targeted for infringement (oh, I see you use a laser printer in your office? You're infringing these 11,000 patents. Please pay up) just means the whole enterprise is a scam.

hctaw 6y ago
ARM is a good example of innovation without implementation.
appleflaxen 6y ago
> There literally was no way for me to have found the patent If it is patented, there is a way to find it. It certainly isn't a useful way of spreading information, but it exists, and its existence makes your claim sound hyperbolic.

cm2187 6y ago

And Apple is no stranger to bogus patents (eg the infamous round corner patent)

shagie 6y ago
That is a design patent that falls in the same category as the shape of a coke bottle and are related to ornamental design on an object that has practical utility. They fall in a different subsection of patent law than the way to implement something. https://en.wikipedia.org/wiki/Design_patent https://en.wikipedia.org/wiki/Design_patent

murbard2 6y ago

The main difference is that those huge companies can potentially be kept at bay with defensive patents. They have at least some skin in the game in playing stupid games with stupid patents because they could find themselves on the receiving end of these frivolous lawsuits. There is no such defense against patent trolls, only court victory, legal reform, or extrajudicial penalties (e.g. reputational).

snarf21 6y ago

We need some serious patent reform, especially in the software sphere. I'd like to see: -- All software patents expire after 5 years -- All software patents must be actively used in a revenue producing product (yearly), if not the patent expires -- All software patents are NON-transferable only licensable -- All software patents must make their licensing rates public per patent with no special deals

cletus 6y ago

> Why is it OK for huge companies like apple, IBM, Google... to use the patent system to keep out any competitors or newcomers [citation needed] Specifically, Oracle notwithstanding, big tech companies have used patent portfolios defensively. Take Google as one example. When has Google filed a patent infringement lawsuit against any company (other than as a countersuit after getting sued eg Sonos)?

joemullin 6y ago
Many internet companies, including Google, have used patents only defensively (so far). However, there are plenty of tech companies that do assert patents offensively, including Apple, IBM, Qualcomm (famously), Oracle, and lots of others.
- cletus 6y ago
  Qualcomm and Oracle are clearly bad actors. IBM? Probably. But I have no idea honestly. But Apple? The only patent suit I'm aware of that they initiated was against Samsung and this is a little more complicated. First, it was primarily a design patent suit. I'm a little more sympathetic to design patents than software patents (which I'm 100% against). And, let's face it, Samsung did pretty much just rip off the iPhone. There were some non-design patents thrown in there too, that's true. But the commenter I replied to suggested these tech companies were using patents to squash smaller competitors. And for most companies that isn't true. Even if you choose to include Apple in a list of companies that use patents offensively rather than defensively, Samsung isn't really a small competitor, so the point stands.
  - fomine3 6y ago
    Apple sued Samsung with scroll bounce back effect. Yes Samsung is a big player, but the lawsuit means other developers also avoid to implement same thing. https://arstechnica.com/tech-policy/2017/04/appeals-court-revives-apples-patented-rubber-banding-tech-because-of-one-small-tweak/ https://arstechnica.com/tech-policy/2017/04/appeals-court-re...

dwild 6y ago

> The whole notion that patents are only legitimate if you build something is completely bogus. Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it. That's a sophism, it's not either theses possibilities. For me patents protect someone building something innovative, to later on profit from what he builds. It's not to reward innovation, it's to protect your capacity to build that innovation and sell it. It's not how patent troll use it, thus I disagree with their use. > but it is not ok for smaller inventors to sell their patents to some of these "trolls" who then sue the big companies for violating the patents? Why would it be? How is that beneficial to innovation? Nobody here said either that it was right to use the patent system to keep out any competitors or newcomers either... it's right to keep competitors out while you build it/sell it at first, but it's not right to use it purely to keep competitors out.

joemullin 6y ago

I agree that patent abuse and IP abuse extends beyond trolls. That's one of the reasons I started Letters Patent -- and that's why I linked to Cory Doctorow's piece outlining Apple's long history of IP abuse.

matheusmoreira 6y ago

> The whole notion that patents are only legitimate if you build something is completely bogus. It's not bogus. It's actually the only thing that justifies the mere existence of patents. If it doesn't enable better products for us then what's the point? Deviations from this social contract should not be tolerared, especially net-negative activity such as rent seeking by trolling companies and individuals.