7 ms·

Every patent should be automatically granted and the courts can sort out the winners if there is a dispute. That is the system we have moved to.

by brador 4y ago

pxmpxm 4y ago
Agreed, though then the cost of litigation or patentability-discovery need to be orders of magnitude lower. Blow away USPTO filing/examination process and replace it with straight arbitration.
yumraj 4y ago
> the courts can sort out the winners if there is a dispute. This will skew the issue towards deeper pockets. whoever has more money for court battles will win the patent case. Is that what we want?
- cycomanic 4y ago
  That's already the reality.
  - tracker1 4y ago
    So, the answer is to make it significantly worse?
PeterisP 4y ago
The purpose of the patent system is to facilitate the progress of the "useful arts". The existence of large quantities of bogus patents that need to be challenged in courts acts as a severe barrier of entry, hampering this progress - if we have a system where truly everything is automatically granted without review and has to be disputed in court, then arguably a patent system like that is a net negative, only hampering the progress, and thus has no right to exist.
kmeisthax 4y ago
No, it absolutely shouldn't work like that. When a patent is granted, you can sue over it, and challenging a patent at that stage means spending lots of time and money defending against an infringement lawsuit. The entire patent troll business model relies on people paying to not be sued. The patent system was designed with the assumption that USPTO would do its job, and switching to an adversarial model for patentability would just make it easier to get obvious patents.
- whoopdedo 4y ago
  > spending lots of time and money defending against an infringement lawsuit It works unfavorably the other way as well. If you have your patent infringed you have to spend lots of time and money advancing the lawsuit. More, in fact, since the burden of proof is on you to claim infringement. No matter how you slice it the end result will be the biggest organizations with the beefiest legal teams will win all the spoils of patents while independent inventors can only survive by attaching themselves to those behemoths. That's the situation that open patents were designed to prevent. Ideally patents should exist to empower inventors to be able to live off their ingenuity; not for the sake of rent-seekers to bully creators into entering a protection racket.
  - account42 4y ago
    You make it sound like these concerns are even remotely symmetrical. GP is describing how (non-obvious) patents have a significant negative effect on everyone creating something potentially patented whereas your example is of patents not perfectly protecting everyone that chooses to participate in the system.
toss1 4y ago
Right, so the players with money can simply massively burden the minor players, often to bankruptcy. A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless. That is the opposite of the way it is supposed to work. Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive. If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).
- kelseyfrog 4y ago
  Make fees means tested and scaled to income or wealth. Make fees scale according to a power law. There are numerous ways to level the playing field. We have only to improve upon the current system and cannot let perfect be the enemy of good.
  - toss1 4y ago
    What? What you are proposing has nothing to do with the perfect vs the good, it is a massive fantasy completely ignorant of how things actually work. Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error. Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense. I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade. Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs? Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors). Sheesh [0] https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule https://www.uspto.gov/learning-and-resources/fees-and-paymen...
davidgay 4y ago
I think we need a name for the fallacy that a process which accepts nearly every application is the same as no process (the same comment repeatedly shows up for warrants). With the former, you only get things which are designed to pass the process. With the latter, you get everything.
- MereInterest 4y ago
  Selection bias?
skeeter2020 4y ago
That's the opposite of how patents are used, amd where their value lies. They're no the defense your idea presents; they are weaponized offense, to which the only response is increase your own arsenal. What you're basically saying is "every country in the world should have nuclear weapons and then let their respective god(s) sort out the winners if there is a dispute"
iand 4y ago
Automatically grant every patent application but equally allow every granted patent to be challenged at no cost causing the patent rights to be suspended. The patent owner then has 5 years to prove the claims in court at their own cost.

Every patent should be automatically granted and the courts can sort out the winners if there is a dispute. That is the system we have moved to.

by brador 4y ago

Every patent should be automatically granted and the courts can sort out the winners if there is a dispute. That is the system we have moved to.

pxmpxm 4y ago

Agreed, though then the cost of litigation or patentability-discovery need to be orders of magnitude lower. Blow away USPTO filing/examination process and replace it with straight arbitration.

yumraj 4y ago

> the courts can sort out the winners if there is a dispute. This will skew the issue towards deeper pockets. whoever has more money for court battles will win the patent case. Is that what we want?

cycomanic 4y ago
That's already the reality.
- tracker1 4y ago
  So, the answer is to make it significantly worse?

PeterisP 4y ago

The purpose of the patent system is to facilitate the progress of the "useful arts". The existence of large quantities of bogus patents that need to be challenged in courts acts as a severe barrier of entry, hampering this progress - if we have a system where truly everything is automatically granted without review and has to be disputed in court, then arguably a patent system like that is a net negative, only hampering the progress, and thus has no right to exist.

kmeisthax 4y ago

No, it absolutely shouldn't work like that. When a patent is granted, you can sue over it, and challenging a patent at that stage means spending lots of time and money defending against an infringement lawsuit. The entire patent troll business model relies on people paying to not be sued. The patent system was designed with the assumption that USPTO would do its job, and switching to an adversarial model for patentability would just make it easier to get obvious patents.

whoopdedo 4y ago
> spending lots of time and money defending against an infringement lawsuit It works unfavorably the other way as well. If you have your patent infringed you have to spend lots of time and money advancing the lawsuit. More, in fact, since the burden of proof is on you to claim infringement. No matter how you slice it the end result will be the biggest organizations with the beefiest legal teams will win all the spoils of patents while independent inventors can only survive by attaching themselves to those behemoths. That's the situation that open patents were designed to prevent. Ideally patents should exist to empower inventors to be able to live off their ingenuity; not for the sake of rent-seekers to bully creators into entering a protection racket.
- account42 4y ago
  You make it sound like these concerns are even remotely symmetrical. GP is describing how (non-obvious) patents have a significant negative effect on everyone creating something potentially patented whereas your example is of patents not perfectly protecting everyone that chooses to participate in the system.

toss1 4y ago

Right, so the players with money can simply massively burden the minor players, often to bankruptcy. A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless. That is the opposite of the way it is supposed to work. Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive. If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).

kelseyfrog 4y ago
Make fees means tested and scaled to income or wealth. Make fees scale according to a power law. There are numerous ways to level the playing field. We have only to improve upon the current system and cannot let perfect be the enemy of good.
- toss1 4y ago
  What? What you are proposing has nothing to do with the perfect vs the good, it is a massive fantasy completely ignorant of how things actually work. Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error. Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense. I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade. Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs? Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors). Sheesh [0] https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule https://www.uspto.gov/learning-and-resources/fees-and-paymen...

davidgay 4y ago

I think we need a name for the fallacy that a process which accepts nearly every application is the same as no process (the same comment repeatedly shows up for warrants). With the former, you only get things which are designed to pass the process. With the latter, you get everything.

MereInterest 4y ago
Selection bias?

skeeter2020 4y ago

That's the opposite of how patents are used, amd where their value lies. They're no the defense your idea presents; they are weaponized offense, to which the only response is increase your own arsenal. What you're basically saying is "every country in the world should have nuclear weapons and then let their respective god(s) sort out the winners if there is a dispute"

iand 4y ago

Automatically grant every patent application but equally allow every granted patent to be challenged at no cost causing the patent rights to be suspended. The patent owner then has 5 years to prove the claims in court at their own cost.