19 ms·

Our right to challenge junk patents is under threat

1291 points by prhrb 3y ago

jpollock 3y ago
Anyone have a link to the proposed rules? I couldn't see a reference to the text in the EFF release.
- gavinhoward 3y ago
  The "Take Action" buttons take you to a page with both the rules and a way to comment on them.
  - jpollock 3y ago
    Thanks! I assumed "Take Action" was a simple form, and I didn't want to do that until I read what I was taking action about.
    - gavinhoward 3y ago
      A valid assumption!
    - jpollock 3y ago
      When looking at the proposed rules, I think this is the problematic bit (search for "standing"): "The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3)."
      - pclmulqdq 3y ago
        Why does the EFF have a problem with a rule about for-profit entities? Aren't they a non-profit?
        strbean 3y ago
        These rules say that a company cannot preemptively challenge a bogus patent before developing something that would infringe that patent. This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
        pclmulqdq 3y ago
        You should read the rules. They only apply to patents that currently have ongoing litigation and parties that are not involved in the litigation or likely to produce a product. They are a lot more narrow than you think.
        strbean 3y ago
        > They only apply to patents that currently have ongoing litigation No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation. Contrived scenario: - My company makes spoons, but I'm toying with the idea of pivoting into making keyboards. - PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device." - My company files for a petition for PGR on the grounds that this is not novel. - The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1]. [1] https://news.ycombinator.com/item?id=36198908 https://news.ycombinator.com/item?id=36198908
        pclmulqdq 3y ago
        That comment is wrong. The rules clearly state that there has to be ongoing litigation on the patent. Otherwise, basically nobody could IPR anything until they get sued.
  - LordDragonfang 3y ago
    Someone should tell the UX/UI team at the EFF that banner blindness[1] (cf [2][3]) applies to bright, contrasting buttons in the middle of text content nowadays, in part because of websites like substack that way-overuse mid-article calls to action. [1] https://en.wikipedia.org/wiki/Banner_blindness https://en.wikipedia.org/wiki/Banner_blindness [2] https://ux.stackexchange.com/questions/120541/why-do-people-not-notice-our-enormous-prominent-clear-and-contrasting-purple-b https://ux.stackexchange.com/questions/120541/why-do-people-... [3] https://news.ycombinator.com/item?id=32012875 https://news.ycombinator.com/item?id=32012875
paddw 3y ago
I assume this change is related to the patent office wanting to reduce its workload? Funding probably should be increased. Patent nonsense ends up costing everyone a LOT more in the long run.
- jpollock 3y ago
  My reading is that it's probably related to an extortion attempt where a firm went after VLSI and Intel? https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-director-issues-2321909/ https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-dir...
  - pclmulqdq 3y ago
    After reading the proposed rule changes, I'm not so sure it's bad, and I'm also not sure it hits the EFF in any meaningful way (unless the EFF is hopelessly corrupt, which I guess is a possibility). The biggest thing at issue is that it protects small entities from spurious IPRs (ie IPRs from parties not being sued) from for-profit companies while litigation is ongoing, which seems kind of reasonable. IPRs are expensive, so this is an easy way to either drive a small entity bankrupt during a high-stakes lawsuit or extort a payout. The EFF isn't a for-profit entity, so if they have problems with this rule, it might mean that they are so closely connected to one or more for-profit companies that they are treated as for-profit. That honestly makes the EFF sound suspect. I am assuming this comes from their ideological anti-IP stance rather than corruption, but either way it doesn't come off as an honest take on the new rules.
    - dathinab 3y ago
      non-profit is a complicated topic and companies which are not corrupt and "in spirit" act as a non profit might very well count as a for-profit company in many legal situations AFIK
      - pclmulqdq 3y ago
        So you are okay with the EFF getting a very large donation from an organization involved in litigation with the purpose of harassing the plaintiff and draining their resources? That doesn't sound like "not corrupt in spirit." That sounds like "greenwashed extortion racket."
myshpa 3y ago
Why Software Patents are Bad, Period. https://caseymuratori.com/blog_0027 https://caseymuratori.com/blog_0027 Patents are out of control, and they’re hurting innovation https://www.learnliberty.org/blog/patents-are-out-of-control-and-theyre-hurting-innovation/ https://www.learnliberty.org/blog/patents-are-out-of-control... Economic and Game Theory Against Intellectual Monopoly https://web.archive.org/web/20120121014753/https://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm https://web.archive.org/web/20120121014753/https://levine.ss... PATENTS AND INNOVATION IN ECONOMIC HISTORY https://gwern.net/doc/economics/2016-moser.pdf https://gwern.net/doc/economics/2016-moser.pdf Historical record shows how intellectual property systematically slowed down innovation https://web.archive.org/web/20140306012646/http://blog.p2pfoundation.net/historical-record-shows-how-intellectual-property-systematically-slowed-down-innovation/2012/03/27 https://web.archive.org/web/20140306012646/http://blog.p2pfo... Criticism of patents https://en.wikipedia.org/wiki/Criticism_of_patents https://en.wikipedia.org/wiki/Criticism_of_patents
- gregman1 3y ago
  There are no software patents in EU (maybe even in the whole Europe) with exception for specially designed hardware. Idk how that works.
  - pclmulqdq 3y ago
    There are no software patents in the US either, as of 2014, except ones that have a physical effect on the world. Compression, encryption, and data structures are basically the only allowed software patents.
  - pbhjpbhj 3y ago
    There are software patents in EPC countries (which includes EU, UK), but not software patents as such. A sibling noted that USA now requires a real-world effect, that change apparently mirrors the situation under EPC: software here can be patented if it makes a technical contribution, ie it must do something outside of the computer (or something that simulates something outside of a computer! see Halliburton). What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess. It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom). Any opinions here are my own and do not relate to my employment. This is not legal advice.
BSEdlMMldESB 3y ago
so which is it? "patents" being used by trolls? or American Corporations protecting their investments? I remember when I realized why software patents are not going away any time soon; it was the same thought that I had when I tried to consider the quantity (amount) of dollars represented as 'valuable assets' in IBM's finances; assets which are just software patents.
- dathinab 3y ago
  fighting a patent is quite expensive and hard and in case of proper patents (and many less proper) unlikely to succeed else many patent trolls wouldn't be able to earn so much money This is the reason why most times patents are not fought until someone gets sued even through at that point more things are at risk, like temporary restricted sales, so normally a precaution patent invalidation should be preferred by the company starting to sell products where they know someone is patent trolling. But it isn't, as it's too expensive. There probably had been cases of big companies using a "try to drown small company in lawsuits even if they are spurious" approach, but IMHO this is the wrong way to limit such power abuse (the right way is painful panelties and reparation if they are found to do so and reasonable fast court actions to stop this abuse until courts are settled).
  - dathinab 3y ago
    I hope this pushes other platforms to provide some more memory channels, could be tricky for AMD due to them wanting to commit to AM5 and I'm not sure if you can retrofit it. Through then most consumer applications don't necessary need/profit much from the wider memory bandwidth as more bandwidth is harder to use then faster memory speed. And more channels in a "motherboard not on-die" setup is much more costly for everyone (motherboards + CPUs + end user) then for on die. So maybe new CPUs with some on-die memory with their own channels + 2 classical channels is more likely. But then more on-die L3 or L4 cache (e.g. X3D) is probably more useful then on-die RAM. Hm, it's fun how in some way apples CPUs mismatch most of the consumer marked, but then Apple PRO models don't sell to most of the consumer marked.
- freejazz 3y ago
dathinab 3y ago
If I where a US citicens I would want whoever is resposible for it to be fired and investigated for corruption. Because you need to either be severely incompetent to a point of by far not being qualified to do your job or corrupt to come up with that. If you do a bit research into the patent system it becomes clear that if anything challenging being to difficult and expensive is a problem not the other way around.
- GoblinSlayer 3y ago
  AIU USPTO is corrupt by design: its incentive is its own commercial interest.
freejazz 3y ago
Disingenuous at best.
jsdeveloper 3y ago
patent are necessary, but they must be only granted for 5 years of time span. 5 years of leverage to patent holder is more than enough for them to cover up there research cost
- throwaway485 3y ago
  I don't think you should be downvoted for suggesting this. I have wondered if it makes sense to adjust the amount of 'research hours' to how long it would take a competitor to produce the same result, and protect a patent for that length of time. To me 5 year seems arbitrary, and the rate at which people are innovating seems to get faster and faster. 5 years used to sound reasonable, but may be exceedingly unfair at today's technological pace. So then you look at things like, 'well has this patent protected the innovation to get it to market during its lifetime?' Maybe it should be re-evaluated every year to determine if the patent is serving its purpose, or simply protecting no marketable product. Maybe we should look at the value of the product being created and once that product has earned x-wealth the patent is ended? I will admit I'm in the camp of "patents are bad -> period", but I was surprised to see your submission at the bottom here. I don't think you're far off.
  - jsdeveloper 3y ago
    non-patent holder can use those 5 year to improve the product in parallel (in shadow, without commercialization), so once those 5 year completes they can compete with the patent holders evolved product after 5 year. it do not stops innovation, neither prolong human progression for too long.
joemullin 3y ago
I work for EFF and wrote the text of this blog post and action. On here I speak only for myself, but a couple points I want to add. 1) EFF has only filed one IPR ever, (linked in the post), against Personal Audio, to invalidate a patent asserted against podcasting. This was crowd-funded by hundreds of people. It required years of litigation beyond the IPR process itself. 2) Patent challenges should be open to all. There's nothing wrong with a "for profit" org challenging a government monopoly - it's a public benefit. A good patent will often hold up (many do), a wrongly granted one will usually go down. Please read the examples in the post of (very) small businesses, individuals, and nonprofits (Wikimedia) who were protected because another organization, often a for-profit, filed a successful IPR. It's truly upside down world when USPTO is concerned its very limited monopoly-challenging services are being overused by "for-profits" that file "serial" petitions. In my career I have analyzed hundreds of shell companies that have (each!) sent out dozens or hundreds of threat letters and lawsuits demanding patent royalty payments (patent trolls). Guess what? They're ALL for-profit. They ALL file serial petitions with the hopes of a fast payout. We have limited means to challenge this extortionate business model, and now USPTO is trying to drastically limit one of the best options. I hope they reconsider, and we ask for your support. Thanks to all and I appreciate the discussion here.
- pclmulqdq 3y ago
  IPRs are pretty useful for challenging bad patents and should be very broad. However, I found myself in favor of this change, and honestly questioning the EFF's motives given how strong and personal (speaking specifically to the EFF's ability to challenge patents, not a generic third party) your expressed opinions were in this piece. I am very sympathetic to the argument that Unified Patents and other folks who offer "IPR insurance" now can't fight bad patents, but hopefully if the rules pass they will be able to convert to either a non-profit or a financing model that allows them to sidestep this rule. Also, are you aware of the argument in favor of this change? In a recent case, a patent troll used an IPR claim to attempt to extort a patent owner when that patent was going through active litigation. Limiting IPRs from for-profit entities not practicing in the field (also a requirement in the rule change) when small companies are actively suing someone else honestly sounds reasonable in light of this. See: https://www.uspto.gov/sites/default/files/documents/ipr2021-01064_paper_108_20221017_director_order.pdf https://www.uspto.gov/sites/default/files/documents/ipr2021-...
deleted 3y ago
[deleted]
linuxhansl 3y ago
I have a challenge out to all my friends: "Show me one, just one, software patent that is not obvious to someone skilled the field, and I will stop my annoying diatribes about how bad software patents are." To this day I have yet to see to a useful software patent.
- d--b 3y ago
  Patents become obvious the second they're out. This is exactly why they exist. But coming up with the stuff in the first place is what's hard. I worked in video coding back in the day, I can assure you that there are stuff in the HEVC codec that are pretty far from obvious. AlphaGo is pretty high up there too if you ask me. Whether patenting software is useful or not is a different debate...
  - kevincox 3y ago
    I completely agree. Patents should be contrasted with trade secrets as that is their main "competitor". Is it useful to the general public to be shown the details of a new technology, but have it's use restricted for 20 years? Or is it more useful to prevent blocking of technology but these are going to be kept as trade secrets instead? From my point of view patents are probably harmful here. Having people be inspired and come up with alternative (or rediscover the same) implementations is probably going to lead to much better for the public than actually learning exactly how the original company did it in exchange for 20y of exclusivity (and all of the pain that enforcing the exclusivity brings). Remember that unlike copyright patents are not about encouraging the creation of work or innovation. They are a trade of information to the public for a period of exclusivity. For software that tradeoff seems far to far in the inventors favor.
    - quickthrower2 3y ago
      I think network effects are already so far in favour of software companies that the patents are not really needed. Look at how AWS resells free software via it’s services for example. And anyone can copy them! And they are. But they are still the biggest by a long shot.
Animats 3y ago
The effect of the anti-patent push has been to pivot the VC and startup industry from technology to buying market share. When patents were strong, you came up with an idea, got it working, got a patent, and then went to a VC for funding to deploy. Now, you come up with an idea, hype it, and go to a VC for funding to hype it more.
jmyeet 3y ago
Intellectual property demonstrably stifles innovation. It is the ultimate rent-seeking behaviour. It's not limited to software patents either. Hell, it's not even limited to patents. The Wright brothers had a patent on the flight control mechanism that they used to stifle innovation [1]. This problem was so bad that when the US entered the First World War, they were completely unable to produce any aircraft and had to buy them from the French. This ultimately led to Congress intervening to form a patent pool for aircraft patents, a system that persists til now. In the early days of the Internet (ie Napster and Limewire era) there was a lot of hand-wringing about "stealing" music and how it hurt artists. Almost no artist makes sufficient income from music royalties. Only the very top do. The rest make a living from perfrmances and music IP doesn't impact that. But it does help record companies to explit artists, which is the main point. The pharmaceutical industry claims patents are necessary for drugs. Thing is, most drug research is undertaken by government funding and then basically just handed over to Big Pharma, who spend most of their money on marketing not R&D. What R&D they do is largely to game the patent system to extend patents without minor but irrelevant changes. Copyright law is repeatedly extended (in the US) largely to stop Mickey Mouse entering the public domain. At this point I'd be happier with a carve-out specifically for the stupid mouse and let everything else fall into public domain We do not need intellectual property. For atistic works, 10 years. Max. [1]: https://en.wikipedia.org/wiki/Wright_brothers_patent_war https://en.wikipedia.org/wiki/Wright_brothers_patent_war
- api 3y ago
  Network effects are far more powerful than IP. Witness the fact that >50% of Twitter's users hate it and think everyone should leave but they are still using it because they are still using it. Without IP the owners of the core hubs of network effects could take all intellectual products, monopolize them, and rent them back to us. We would be unable to resist because network effects are more powerful than we are as individuals.
AlbertCory 3y ago
This seems to be an evergreen topic on HN. Everyone likes to rant, and nothing changes. Besides @myshpa's references below, I've published several things myself, and one of them made the front page of HN: https://albertcory50.substack.com/p/lets-vote-on-it https://albertcory50.substack.com/p/lets-vote-on-it https://albertcory50.substack.com/p/no-source-code-no-patent https://albertcory50.substack.com/p/no-source-code-no-patent (front page) It's not inconceivable that Congress, even one as dysfunctional as this one, could eventually agree that software is not patentable subject matter. That's Ripley's "nuke it from orbit" solution. Democrats: because software patents are a tool of rich tech companies to maintain their dominance. Republicans: because they hate the trial lawyers, and some R's are libertarian-leaning as well. And because they hate the tech giants, too. Write your congressman & senators. Or pick some other active form of political participation.
czhutch 3y ago
Please go to US Inventor, https://www.usinventor.org https://www.usinventor.org & learn about Josh Malone (Bunch of Balloons) and what the PTAB is doing to legitimate inventors who's hard fought and paid for patents are getting 'nullified' by companies who just don't want to pay a reasonable licensing fee to use their invention. This is a very legitimate organization doing a lot on Capital Hill to help. They have a lot of info and encourage people to reach out to your Congressmen and Senators; loud voices everywhere sometimes break through.
dedev5 3y ago
Let me play devils advocate here. Although there are examples in this article of clearly scam patents being thrown out, please remember that there are likely examples of the opposite where clearly valid patents get thrown out without a court case, and more where it was unclear which way the patent office should go. Overall, this alternative system to challenge patents weakens patents as it is indented to. Especially in software patents this is may be a good thing to many, but it is clear to see that this system has probably resulted in some valid patents not being filed as their inventors lack faith that a patent will prevent uncompensated ip theft, and it gets hidden instead.
manojlds 3y ago
Well, we just had Apple boast about 5000 patents.
telecuda 3y ago
The most useful thing about software patents IMO is what you uncover during the patent writing process. When you’re sitting there writing the equivalent of a 10-20 page college essay on the problem background, operating environment, then all the present and future uses of something novel (the provisional stage), it forces you to think in a way that no typical product management process does. There are few (any?) other forcing mechanisms I’ve seen that produce the same results.
- Spivak 3y ago
  And then the legal team runs it through the legalese obfuscator 9000 to make sure no one else will have any idea what it's even about. Seriously, Google needed insider information at Sonos to infringe on their multi-room audio patent. Go read it and see if you could implement a working system from it https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8e11944d/US9202509.pdf https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8...
  - telecuda 3y ago
    That’s true. The narrative can get lost or at least watered down in the process.
- nicce 3y ago
  If your design or method is new and unique, just a write scientific paper about it. It is about the same.
wiseleo 3y ago
Filed a comment. Please do the same. :)
zoobab 3y ago
The USPTO is still granting software patents despite Alice. Is there a way to make them stop?
xxxxx12345 3y ago
Patents are supposedly granted to inventors, yet the preamble of each patent independently lists 'inventor' and 'assignee'. So what part exactly does the assignee play other than to represent capital? And clearly capital is valued over innovation, as it is the assignee that actually 'owns' the patent, not the inventor.
silexia 3y ago
And of course the Federal Register site returns a 503 error when you try to leave a comment. Government hard at work as usual...

1291 points by prhrb 3y ago

jpollock 3y ago

Anyone have a link to the proposed rules? I couldn't see a reference to the text in the EFF release.

gavinhoward 3y ago
The "Take Action" buttons take you to a page with both the rules and a way to comment on them.
- jpollock 3y ago
  Thanks! I assumed "Take Action" was a simple form, and I didn't want to do that until I read what I was taking action about.
  - gavinhoward 3y ago
    A valid assumption!
  - jpollock 3y ago
    When looking at the proposed rules, I think this is the problematic bit (search for "standing"): "The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3)."
    - pclmulqdq 3y ago
      Why does the EFF have a problem with a rule about for-profit entities? Aren't they a non-profit?
      - strbean 3y ago
        These rules say that a company cannot preemptively challenge a bogus patent before developing something that would infringe that patent. This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
        pclmulqdq 3y ago
        You should read the rules. They only apply to patents that currently have ongoing litigation and parties that are not involved in the litigation or likely to produce a product. They are a lot more narrow than you think.
        strbean 3y ago
        > They only apply to patents that currently have ongoing litigation No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation. Contrived scenario: - My company makes spoons, but I'm toying with the idea of pivoting into making keyboards. - PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device." - My company files for a petition for PGR on the grounds that this is not novel. - The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1]. [1] https://news.ycombinator.com/item?id=36198908 https://news.ycombinator.com/item?id=36198908
        pclmulqdq 3y ago
        That comment is wrong. The rules clearly state that there has to be ongoing litigation on the patent. Otherwise, basically nobody could IPR anything until they get sued.
- LordDragonfang 3y ago
  Someone should tell the UX/UI team at the EFF that banner blindness[1] (cf [2][3]) applies to bright, contrasting buttons in the middle of text content nowadays, in part because of websites like substack that way-overuse mid-article calls to action. [1] https://en.wikipedia.org/wiki/Banner_blindness https://en.wikipedia.org/wiki/Banner_blindness [2] https://ux.stackexchange.com/questions/120541/why-do-people-not-notice-our-enormous-prominent-clear-and-contrasting-purple-b https://ux.stackexchange.com/questions/120541/why-do-people-... [3] https://news.ycombinator.com/item?id=32012875 https://news.ycombinator.com/item?id=32012875

paddw 3y ago

I assume this change is related to the patent office wanting to reduce its workload? Funding probably should be increased. Patent nonsense ends up costing everyone a LOT more in the long run.

jpollock 3y ago
My reading is that it's probably related to an extortion attempt where a firm went after VLSI and Intel? https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-director-issues-2321909/ https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-dir...
- pclmulqdq 3y ago
  After reading the proposed rule changes, I'm not so sure it's bad, and I'm also not sure it hits the EFF in any meaningful way (unless the EFF is hopelessly corrupt, which I guess is a possibility). The biggest thing at issue is that it protects small entities from spurious IPRs (ie IPRs from parties not being sued) from for-profit companies while litigation is ongoing, which seems kind of reasonable. IPRs are expensive, so this is an easy way to either drive a small entity bankrupt during a high-stakes lawsuit or extort a payout. The EFF isn't a for-profit entity, so if they have problems with this rule, it might mean that they are so closely connected to one or more for-profit companies that they are treated as for-profit. That honestly makes the EFF sound suspect. I am assuming this comes from their ideological anti-IP stance rather than corruption, but either way it doesn't come off as an honest take on the new rules.
  - dathinab 3y ago
    non-profit is a complicated topic and companies which are not corrupt and "in spirit" act as a non profit might very well count as a for-profit company in many legal situations AFIK
    - pclmulqdq 3y ago
      So you are okay with the EFF getting a very large donation from an organization involved in litigation with the purpose of harassing the plaintiff and draining their resources? That doesn't sound like "not corrupt in spirit." That sounds like "greenwashed extortion racket."

myshpa 3y ago

Why Software Patents are Bad, Period. https://caseymuratori.com/blog_0027 https://caseymuratori.com/blog_0027 Patents are out of control, and they’re hurting innovation https://www.learnliberty.org/blog/patents-are-out-of-control-and-theyre-hurting-innovation/ https://www.learnliberty.org/blog/patents-are-out-of-control... Economic and Game Theory Against Intellectual Monopoly https://web.archive.org/web/20120121014753/https://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm https://web.archive.org/web/20120121014753/https://levine.ss... PATENTS AND INNOVATION IN ECONOMIC HISTORY https://gwern.net/doc/economics/2016-moser.pdf https://gwern.net/doc/economics/2016-moser.pdf Historical record shows how intellectual property systematically slowed down innovation https://web.archive.org/web/20140306012646/http://blog.p2pfoundation.net/historical-record-shows-how-intellectual-property-systematically-slowed-down-innovation/2012/03/27 https://web.archive.org/web/20140306012646/http://blog.p2pfo... Criticism of patents https://en.wikipedia.org/wiki/Criticism_of_patents https://en.wikipedia.org/wiki/Criticism_of_patents

gregman1 3y ago
There are no software patents in EU (maybe even in the whole Europe) with exception for specially designed hardware. Idk how that works.
- pclmulqdq 3y ago
  There are no software patents in the US either, as of 2014, except ones that have a physical effect on the world. Compression, encryption, and data structures are basically the only allowed software patents.
- pbhjpbhj 3y ago
  There are software patents in EPC countries (which includes EU, UK), but not software patents as such. A sibling noted that USA now requires a real-world effect, that change apparently mirrors the situation under EPC: software here can be patented if it makes a technical contribution, ie it must do something outside of the computer (or something that simulates something outside of a computer! see Halliburton). What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess. It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom). Any opinions here are my own and do not relate to my employment. This is not legal advice.

BSEdlMMldESB 3y ago

so which is it? "patents" being used by trolls? or American Corporations protecting their investments? I remember when I realized why software patents are not going away any time soon; it was the same thought that I had when I tried to consider the quantity (amount) of dollars represented as 'valuable assets' in IBM's finances; assets which are just software patents.

dathinab 3y ago
fighting a patent is quite expensive and hard and in case of proper patents (and many less proper) unlikely to succeed else many patent trolls wouldn't be able to earn so much money This is the reason why most times patents are not fought until someone gets sued even through at that point more things are at risk, like temporary restricted sales, so normally a precaution patent invalidation should be preferred by the company starting to sell products where they know someone is patent trolling. But it isn't, as it's too expensive. There probably had been cases of big companies using a "try to drown small company in lawsuits even if they are spurious" approach, but IMHO this is the wrong way to limit such power abuse (the right way is painful panelties and reparation if they are found to do so and reasonable fast court actions to stop this abuse until courts are settled).
- dathinab 3y ago
  I hope this pushes other platforms to provide some more memory channels, could be tricky for AMD due to them wanting to commit to AM5 and I'm not sure if you can retrofit it. Through then most consumer applications don't necessary need/profit much from the wider memory bandwidth as more bandwidth is harder to use then faster memory speed. And more channels in a "motherboard not on-die" setup is much more costly for everyone (motherboards + CPUs + end user) then for on die. So maybe new CPUs with some on-die memory with their own channels + 2 classical channels is more likely. But then more on-die L3 or L4 cache (e.g. X3D) is probably more useful then on-die RAM. Hm, it's fun how in some way apples CPUs mismatch most of the consumer marked, but then Apple PRO models don't sell to most of the consumer marked.
freejazz 3y ago

dathinab 3y ago

If I where a US citicens I would want whoever is resposible for it to be fired and investigated for corruption. Because you need to either be severely incompetent to a point of by far not being qualified to do your job or corrupt to come up with that. If you do a bit research into the patent system it becomes clear that if anything challenging being to difficult and expensive is a problem not the other way around.

GoblinSlayer 3y ago
AIU USPTO is corrupt by design: its incentive is its own commercial interest.

freejazz 3y ago

Disingenuous at best.

jsdeveloper 3y ago

patent are necessary, but they must be only granted for 5 years of time span. 5 years of leverage to patent holder is more than enough for them to cover up there research cost

throwaway485 3y ago
I don't think you should be downvoted for suggesting this. I have wondered if it makes sense to adjust the amount of 'research hours' to how long it would take a competitor to produce the same result, and protect a patent for that length of time. To me 5 year seems arbitrary, and the rate at which people are innovating seems to get faster and faster. 5 years used to sound reasonable, but may be exceedingly unfair at today's technological pace. So then you look at things like, 'well has this patent protected the innovation to get it to market during its lifetime?' Maybe it should be re-evaluated every year to determine if the patent is serving its purpose, or simply protecting no marketable product. Maybe we should look at the value of the product being created and once that product has earned x-wealth the patent is ended? I will admit I'm in the camp of "patents are bad -> period", but I was surprised to see your submission at the bottom here. I don't think you're far off.
- jsdeveloper 3y ago
  non-patent holder can use those 5 year to improve the product in parallel (in shadow, without commercialization), so once those 5 year completes they can compete with the patent holders evolved product after 5 year. it do not stops innovation, neither prolong human progression for too long.

joemullin 3y ago

I work for EFF and wrote the text of this blog post and action. On here I speak only for myself, but a couple points I want to add. 1) EFF has only filed one IPR ever, (linked in the post), against Personal Audio, to invalidate a patent asserted against podcasting. This was crowd-funded by hundreds of people. It required years of litigation beyond the IPR process itself. 2) Patent challenges should be open to all. There's nothing wrong with a "for profit" org challenging a government monopoly - it's a public benefit. A good patent will often hold up (many do), a wrongly granted one will usually go down. Please read the examples in the post of (very) small businesses, individuals, and nonprofits (Wikimedia) who were protected because another organization, often a for-profit, filed a successful IPR. It's truly upside down world when USPTO is concerned its very limited monopoly-challenging services are being overused by "for-profits" that file "serial" petitions. In my career I have analyzed hundreds of shell companies that have (each!) sent out dozens or hundreds of threat letters and lawsuits demanding patent royalty payments (patent trolls). Guess what? They're ALL for-profit. They ALL file serial petitions with the hopes of a fast payout. We have limited means to challenge this extortionate business model, and now USPTO is trying to drastically limit one of the best options. I hope they reconsider, and we ask for your support. Thanks to all and I appreciate the discussion here.

pclmulqdq 3y ago
IPRs are pretty useful for challenging bad patents and should be very broad. However, I found myself in favor of this change, and honestly questioning the EFF's motives given how strong and personal (speaking specifically to the EFF's ability to challenge patents, not a generic third party) your expressed opinions were in this piece. I am very sympathetic to the argument that Unified Patents and other folks who offer "IPR insurance" now can't fight bad patents, but hopefully if the rules pass they will be able to convert to either a non-profit or a financing model that allows them to sidestep this rule. Also, are you aware of the argument in favor of this change? In a recent case, a patent troll used an IPR claim to attempt to extort a patent owner when that patent was going through active litigation. Limiting IPRs from for-profit entities not practicing in the field (also a requirement in the rule change) when small companies are actively suing someone else honestly sounds reasonable in light of this. See: https://www.uspto.gov/sites/default/files/documents/ipr2021-01064_paper_108_20221017_director_order.pdf https://www.uspto.gov/sites/default/files/documents/ipr2021-...

deleted 3y ago

[deleted]

linuxhansl 3y ago

I have a challenge out to all my friends: "Show me one, just one, software patent that is not obvious to someone skilled the field, and I will stop my annoying diatribes about how bad software patents are." To this day I have yet to see to a useful software patent.

d--b 3y ago
Patents become obvious the second they're out. This is exactly why they exist. But coming up with the stuff in the first place is what's hard. I worked in video coding back in the day, I can assure you that there are stuff in the HEVC codec that are pretty far from obvious. AlphaGo is pretty high up there too if you ask me. Whether patenting software is useful or not is a different debate...
- kevincox 3y ago
  I completely agree. Patents should be contrasted with trade secrets as that is their main "competitor". Is it useful to the general public to be shown the details of a new technology, but have it's use restricted for 20 years? Or is it more useful to prevent blocking of technology but these are going to be kept as trade secrets instead? From my point of view patents are probably harmful here. Having people be inspired and come up with alternative (or rediscover the same) implementations is probably going to lead to much better for the public than actually learning exactly how the original company did it in exchange for 20y of exclusivity (and all of the pain that enforcing the exclusivity brings). Remember that unlike copyright patents are not about encouraging the creation of work or innovation. They are a trade of information to the public for a period of exclusivity. For software that tradeoff seems far to far in the inventors favor.
  - quickthrower2 3y ago
    I think network effects are already so far in favour of software companies that the patents are not really needed. Look at how AWS resells free software via it’s services for example. And anyone can copy them! And they are. But they are still the biggest by a long shot.

Animats 3y ago

The effect of the anti-patent push has been to pivot the VC and startup industry from technology to buying market share. When patents were strong, you came up with an idea, got it working, got a patent, and then went to a VC for funding to deploy. Now, you come up with an idea, hype it, and go to a VC for funding to hype it more.

jmyeet 3y ago

Intellectual property demonstrably stifles innovation. It is the ultimate rent-seeking behaviour. It's not limited to software patents either. Hell, it's not even limited to patents. The Wright brothers had a patent on the flight control mechanism that they used to stifle innovation [1]. This problem was so bad that when the US entered the First World War, they were completely unable to produce any aircraft and had to buy them from the French. This ultimately led to Congress intervening to form a patent pool for aircraft patents, a system that persists til now. In the early days of the Internet (ie Napster and Limewire era) there was a lot of hand-wringing about "stealing" music and how it hurt artists. Almost no artist makes sufficient income from music royalties. Only the very top do. The rest make a living from perfrmances and music IP doesn't impact that. But it does help record companies to explit artists, which is the main point. The pharmaceutical industry claims patents are necessary for drugs. Thing is, most drug research is undertaken by government funding and then basically just handed over to Big Pharma, who spend most of their money on marketing not R&D. What R&D they do is largely to game the patent system to extend patents without minor but irrelevant changes. Copyright law is repeatedly extended (in the US) largely to stop Mickey Mouse entering the public domain. At this point I'd be happier with a carve-out specifically for the stupid mouse and let everything else fall into public domain We do not need intellectual property. For atistic works, 10 years. Max. [1]: https://en.wikipedia.org/wiki/Wright_brothers_patent_war https://en.wikipedia.org/wiki/Wright_brothers_patent_war

api 3y ago
Network effects are far more powerful than IP. Witness the fact that >50% of Twitter's users hate it and think everyone should leave but they are still using it because they are still using it. Without IP the owners of the core hubs of network effects could take all intellectual products, monopolize them, and rent them back to us. We would be unable to resist because network effects are more powerful than we are as individuals.

AlbertCory 3y ago

This seems to be an evergreen topic on HN. Everyone likes to rant, and nothing changes. Besides @myshpa's references below, I've published several things myself, and one of them made the front page of HN: https://albertcory50.substack.com/p/lets-vote-on-it https://albertcory50.substack.com/p/lets-vote-on-it https://albertcory50.substack.com/p/no-source-code-no-patent https://albertcory50.substack.com/p/no-source-code-no-patent (front page) It's not inconceivable that Congress, even one as dysfunctional as this one, could eventually agree that software is not patentable subject matter. That's Ripley's "nuke it from orbit" solution. Democrats: because software patents are a tool of rich tech companies to maintain their dominance. Republicans: because they hate the trial lawyers, and some R's are libertarian-leaning as well. And because they hate the tech giants, too. Write your congressman & senators. Or pick some other active form of political participation.

czhutch 3y ago

Please go to US Inventor, https://www.usinventor.org https://www.usinventor.org & learn about Josh Malone (Bunch of Balloons) and what the PTAB is doing to legitimate inventors who's hard fought and paid for patents are getting 'nullified' by companies who just don't want to pay a reasonable licensing fee to use their invention. This is a very legitimate organization doing a lot on Capital Hill to help. They have a lot of info and encourage people to reach out to your Congressmen and Senators; loud voices everywhere sometimes break through.

dedev5 3y ago

Let me play devils advocate here. Although there are examples in this article of clearly scam patents being thrown out, please remember that there are likely examples of the opposite where clearly valid patents get thrown out without a court case, and more where it was unclear which way the patent office should go. Overall, this alternative system to challenge patents weakens patents as it is indented to. Especially in software patents this is may be a good thing to many, but it is clear to see that this system has probably resulted in some valid patents not being filed as their inventors lack faith that a patent will prevent uncompensated ip theft, and it gets hidden instead.

manojlds 3y ago

Well, we just had Apple boast about 5000 patents.

telecuda 3y ago

The most useful thing about software patents IMO is what you uncover during the patent writing process. When you’re sitting there writing the equivalent of a 10-20 page college essay on the problem background, operating environment, then all the present and future uses of something novel (the provisional stage), it forces you to think in a way that no typical product management process does. There are few (any?) other forcing mechanisms I’ve seen that produce the same results.

Spivak 3y ago
And then the legal team runs it through the legalese obfuscator 9000 to make sure no one else will have any idea what it's even about. Seriously, Google needed insider information at Sonos to infringe on their multi-room audio patent. Go read it and see if you could implement a working system from it https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8e11944d/US9202509.pdf https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8...
- telecuda 3y ago
  That’s true. The narrative can get lost or at least watered down in the process.
nicce 3y ago
If your design or method is new and unique, just a write scientific paper about it. It is about the same.

wiseleo 3y ago

Filed a comment. Please do the same. :)

zoobab 3y ago

The USPTO is still granting software patents despite Alice. Is there a way to make them stop?

xxxxx12345 3y ago

Patents are supposedly granted to inventors, yet the preamble of each patent independently lists 'inventor' and 'assignee'. So what part exactly does the assignee play other than to represent capital? And clearly capital is valued over innovation, as it is the assignee that actually 'owns' the patent, not the inventor.

silexia 3y ago

And of course the Federal Register site returns a 503 error when you try to leave a comment. Government hard at work as usual...