9 ms·

US Patent Office proposes rule to make it much harder to kill bad patents

541 points by berkeleyjunk 3y ago

noodles_nomore 3y ago
The legal system is a game that is played for profit. Being able to sue anyone for anything is advantageous for the big dogs. So it's imperative that as many laws as possible cover as much seemingly innocuous human conduct as possible with the highest stakes possible. Unrestricted expansion of intellectual property, the ability to lay claim to arbitrary regions of the ideosphere, makes perfect sense.
- zdragnar 3y ago
  > Being able to sue anyone for anything is advantageous for the big dogs Unless they can justify very high damages, they are predisposed to settling out of court. When you hire top lawyers, or have a massive legal department, you're paying a lot of money. Going to court is at best a gamble unless you have an obvious and solid case. What this means is they use threats of going to court wrapped up in legalese in the hopes of getting their way out of court. Unfortunately, the degree to which various districts earn reputations around being pro or anti patent means they're also advantaged in "shopping around", so to speak, to get any case they bring moved to a favorable court. This is the biggest thing that they can do that your average "small dogs" have a harder time with. The worst has changed in the last year: https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scrambling-after-texas-court-cools-hotspot https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scram... but it'd be nice to see ways to make it more difficult to game the system by "judge shopping".
hodgesrm 3y ago
> Basically, if a patent holder is designated as an “individual inventor, startup” or “under-resourced innovator” then their patents are protected from the IPR process. Just curious...is there a good faith argument why this change would be good?
- jcranmer 3y ago
  The good faith argument is that the people who are predating on the poor, beleaguered genius inventor would be unable to avail themselves of a low-cost-for-the-challenger-high-cost-for-the-inventor mechanism for challenging patents. What makes it bad faith is that the reason the mechanism exists is because the predators in the patent system are the inventors, not the challengers.
- tomtheelder 3y ago
  They did leave something extremely important out here that helps to explain the good faith argument. From the source: > Petitions challenging under-resourced patent owner patents where the patentee has or is attempting to bring products to market; So I’d say the good faith argument is that it’s designed to protect larger orgs from bullying actual inventors/startups by attempting to threaten the legitimacy of their patents. The bit about bringing products to market is supposed to exclude trolls. More from the source: > Such limited resources may impact the perceived fairness of post-grant reviews. For example, some stakeholders in response to the RFC expressed concern that under-resourced inventors are unable to afford the costs involved in defending patents in post-grant review. Some stakeholders advocating for small businesses and individual inventors urged the Office to take into account the financial resources of a patent owner, and to limit reviews of patents owned by under-resourced entities who lack funding to defend challenges to their patents but who have sought to bring their inventions to market either themselves or through a licensee. So yeah basically the argument is that defending themselves in this proceeds is too onerous for small entities. So I think that’s the good faith argument. I’m skeptical, though I will happily admit that I don’t know much about the uses and abuses of the patent system.
- Zigurd 3y ago
  On the face of it, it is good. The problem is trolls masquerading as individual/small-business inventors.
semiquaver 3y ago
This is a bad proposed rule that should be killed, to be sure. But this article is missing the context about _why_ the Patent Office claims to think this is necessary in the first place. Patent trolls of a sort are setting up shop on the other side of where you would normally expect them in litigation, attempting to use the Inter Partes Review process in ways that look very much like an abuse of the system. For example, one company opened an IPR against a valuable patent and then offered to withdraw it for money. It was rightly called out as a shakedown. https://www.jdsupra.com/legalnews/director-vidal-removes-opensky-and-pqa-1476016/ https://www.jdsupra.com/legalnews/director-vidal-removes-ope... https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions-add-new-weapons-in-patent-challenges https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions... The US legal system generally requires parties to have standing before they can make use of courts or pseudo-courts like the PTAB. Situations like this make it clear why: when lots of money is on the line people will try to “hack” the system in ways that its designers didn’t expect. Uniquely open processes like IPR are vulnerable to exploitation in a way that is annoying to lawyers compared with what they’re used to, so they reflexively reach to reimpose standing requirements. That’s basically what is being proposed here. Again, the above doesn’t mean I think this rule change should go forward: the IPR process and its openness are incredibly valuable and should be retained. but it’s misleading to portray this proposed rule as arbitrary or corrupt.
- Wistar 3y ago
  Yours is a great comment.
- shmerl 3y ago
  Since patent trolls already "hack" the system to essentially run a legalized protection racket, it only makes sense there should be some counter balance to their abuse. Fewer barriers to invalidate bad patents is such example. And in this case, this new proposed rule is simply pushing the balance in patent abusers' favor, so it is corrupt because they are pushing it for their racketeering profits. A better solution would be to prevent more bad patents in the first place (like forbid software patents for example) instead of making such kind of workarounds. But they aren't doing it either.
tcbawo 3y ago
It seems that bad patents would hurt less if they didn’t persist for so long. Why can’t we come up with some sort of earlier phase-out, where patents must be re-litigated or justified to remain in effect?
- mr_toad 3y ago
  Because the foxes are in charge of the hen house. The lobbyists, the congressmen, the patent trolls, the patent office - none of them would benefit from weakening patents.
  - semiquaver 3y ago
    I tend to agree, but the introduction of the Inter Partes Review process at issue in this rule is itself an important counter example. https://en.m.wikipedia.org/wiki/Leahy–Smith_America_Invents_Act https://en.m.wikipedia.org/wiki/Leahy–Smith_America_Invents_... It was introduced not that long ago as part of bipartisan legislation that meaningfully reformed the existing patent system, including by introducing systems like IPR which clearly weaken the rights of patent holders (who have been fighting ever since to overturn it). If the system were utterly irredeemable, reforms like this should never survive.
amelius 3y ago
Can't we let the free market solve the problems with patents? Like, if the government (or anybody, really) wants an invention to be open, they can offer the inventor/company some sum of money, and if they accept then they will have to explain how it works. Otherwise, it will remain a trade secret until someone else figures it out.
- spywaregorilla 3y ago
  Patents already explain how things work. The problem is limiting other people's ability to do something that someone claimed as their own with basically no effort.
- hodgesrm 3y ago
  That's effectively what the patent system already does. The "sum of money" you refer to is the market value of the monopoly on the idea embodied in the patent. This solves the problem of what the price should be.
  - amelius 3y ago
    It's not the same because a patent is a time-limited monopoly on a technology. This means that patents can be used to block the progress of other companies. E.g. if A patents X and some large company B wants to use X and A refuses, then B cannot use X even if they offer millions.
    - hodgesrm 3y ago
      You are also right. I was responding to this. (Italics mine) > Like, if the government (or anybody, really) wants an invention to be open, The government literally does want inventions to be open. It's in Article 1, Section 8, Clause 8 of the constitution. [0] [The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [0] https://constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/ https://constitution.congress.gov/browse/essay/artI-S8-C8-1/...
shmerl 3y ago
Such an obviously corrupt idea.
mlinksva 3y ago
There was a big discussion of the EFF post this one riffs on last week https://news.ycombinator.com/item?id=36198329 https://news.ycombinator.com/item?id=36198329 Also see https://www.linuxfoundation.org/blog/stand-up-for-open-source-software-patent-defense https://www.linuxfoundation.org/blog/stand-up-for-open-sourc... which didn't get much discussion https://news.ycombinator.com/item?id=36154988 https://news.ycombinator.com/item?id=36154988
henry2023 3y ago
The US is still making itself less competitive while China is closing the tech gap at a breaking speed. I really don’t understand what they think this will accomplish.
AlbertCory 3y ago
This comes up at least once a month on HN. Drug and medical patents have at least some moral claim to virtue (don't come at me on that one). Whenever you see an op-ed about how patents are so valuable, those are always the poster children. It's never software patents, because absolutely no one but lawyers thinks those are a good thing. But they're subject to the same laws as the "good" patents (whatever you think those are). So the solution is clear: Congress must legislate that software is not patentable subject matter. We can do this.
- pclmulqdq 3y ago
  I don't know any lawyers who think dumb software patents are good, including my own patent lawyers.
  - AlbertCory 3y ago
    > dumb software patents their definition of "dumb" is probably quite different from yours (or most software engineers).
    - pclmulqdq 3y ago
      To clarify, I think both of us agree that things like weird data structures, compression/encryption algorithms, and a few other things that are actually non-obvious hard tech probably should be patentable (although it's usually a shitty business strategy to patent these things), but that most other software (including things like Amazon's one click ordering patent) shouldn't be. I will admit that I don't know where his moral line on this is exactly, and I know he is very happy to draft patents beyond it for strategic reasons. I think many smart patent lawyers are ultimately legal realists here - they have their own philosophical views, but their job involves working in the real system.
      - plank 3y ago
        >To clarify, … Not the parent, but: in that case you and I agree to disagree: any weird encryption algorithm is the usage of mathematics which should not be patentable in my opinion. The simplest solution in my mind is simply abolishing patents. Just as e.g. the COVID vaccines were developed using public funds, there is enough ‘protection’ in things like trade secrets (‘recipe of coca cola’) or copyright/-left (‘GPL’ or ‘iOS’) to keep us innovative enough.
ThinkBeat 3y ago
The patent system is flawed enough that I think a rewriting from scratch is required. It was created or a different time, and its governing rules reflect it. How to rewrite it is no simple task to figure out and is well beyond what I am able to do. I do think the bar for applying ought to be higher and the categories that can be patented significantly lowered. I am not sure, but it seems that the time it takes to grant A patent requires changes as well. Nearly everything new has "pending patents" A good thing would be changing the ethics of how people think about patents and applying for them. A better, quicker and easier way to prove prior art should be developed. (and if it is not already the case, the entity that applied for a patent with prior art should be made to cover all legal and paperwork etc. for doing so.
entropicgravity 3y ago
Looks like yet another attempt at regulatory capture.
neilwilson 3y ago
I don't even know why they bother at this point. Why not just cut to the chase and say if you give us enough money we'll give you the power to stop whoever you want doing whatever they are doing right now. There's not even a pretence this is helping innovation any more.
- ImHereToVote 3y ago
  Because if they did that, then you would get corporate white knights pretending that any of this makes sense in a healthy society. The pretense of a rules based order is what holds the sharade together.
smeagull 3y ago
The existence of the patent system makes me never want to invent anything ever. Having to deal with that thing? That would be like working in Academia. Wouldn't wish it on anyone.
cashsterling 3y ago
Our entire patent system in the US is designed to benefit lawyers (keep them employed) and large corporations. Fostering innovation and supporting inventors is now completely secondary (or not a goal at all)... probably been that way for a long time but it is only getting worse.

541 points by berkeleyjunk 3y ago

The legal system is a game that is played for profit. Being able to sue anyone for anything is advantageous for the big dogs. So it's imperative that as many laws as possible cover as much seemingly innocuous human conduct as possible with the highest stakes possible. Unrestricted expansion of intellectual property, the ability to lay claim to arbitrary regions of the ideosphere, makes perfect sense.

zdragnar 3y ago
> Being able to sue anyone for anything is advantageous for the big dogs Unless they can justify very high damages, they are predisposed to settling out of court. When you hire top lawyers, or have a massive legal department, you're paying a lot of money. Going to court is at best a gamble unless you have an obvious and solid case. What this means is they use threats of going to court wrapped up in legalese in the hopes of getting their way out of court. Unfortunately, the degree to which various districts earn reputations around being pro or anti patent means they're also advantaged in "shopping around", so to speak, to get any case they bring moved to a favorable court. This is the biggest thing that they can do that your average "small dogs" have a harder time with. The worst has changed in the last year: https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scrambling-after-texas-court-cools-hotspot https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scram... but it'd be nice to see ways to make it more difficult to game the system by "judge shopping".

hodgesrm 3y ago

> Basically, if a patent holder is designated as an “individual inventor, startup” or “under-resourced innovator” then their patents are protected from the IPR process. Just curious...is there a good faith argument why this change would be good?

jcranmer 3y ago
The good faith argument is that the people who are predating on the poor, beleaguered genius inventor would be unable to avail themselves of a low-cost-for-the-challenger-high-cost-for-the-inventor mechanism for challenging patents. What makes it bad faith is that the reason the mechanism exists is because the predators in the patent system are the inventors, not the challengers.
tomtheelder 3y ago
They did leave something extremely important out here that helps to explain the good faith argument. From the source: > Petitions challenging under-resourced patent owner patents where the patentee has or is attempting to bring products to market; So I’d say the good faith argument is that it’s designed to protect larger orgs from bullying actual inventors/startups by attempting to threaten the legitimacy of their patents. The bit about bringing products to market is supposed to exclude trolls. More from the source: > Such limited resources may impact the perceived fairness of post-grant reviews. For example, some stakeholders in response to the RFC expressed concern that under-resourced inventors are unable to afford the costs involved in defending patents in post-grant review. Some stakeholders advocating for small businesses and individual inventors urged the Office to take into account the financial resources of a patent owner, and to limit reviews of patents owned by under-resourced entities who lack funding to defend challenges to their patents but who have sought to bring their inventions to market either themselves or through a licensee. So yeah basically the argument is that defending themselves in this proceeds is too onerous for small entities. So I think that’s the good faith argument. I’m skeptical, though I will happily admit that I don’t know much about the uses and abuses of the patent system.
Zigurd 3y ago
On the face of it, it is good. The problem is trolls masquerading as individual/small-business inventors.

semiquaver 3y ago

This is a bad proposed rule that should be killed, to be sure. But this article is missing the context about _why_ the Patent Office claims to think this is necessary in the first place. Patent trolls of a sort are setting up shop on the other side of where you would normally expect them in litigation, attempting to use the Inter Partes Review process in ways that look very much like an abuse of the system. For example, one company opened an IPR against a valuable patent and then offered to withdraw it for money. It was rightly called out as a shakedown. https://www.jdsupra.com/legalnews/director-vidal-removes-opensky-and-pqa-1476016/ https://www.jdsupra.com/legalnews/director-vidal-removes-ope... https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions-add-new-weapons-in-patent-challenges https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions... The US legal system generally requires parties to have standing before they can make use of courts or pseudo-courts like the PTAB. Situations like this make it clear why: when lots of money is on the line people will try to “hack” the system in ways that its designers didn’t expect. Uniquely open processes like IPR are vulnerable to exploitation in a way that is annoying to lawyers compared with what they’re used to, so they reflexively reach to reimpose standing requirements. That’s basically what is being proposed here. Again, the above doesn’t mean I think this rule change should go forward: the IPR process and its openness are incredibly valuable and should be retained. but it’s misleading to portray this proposed rule as arbitrary or corrupt.

Wistar 3y ago
Yours is a great comment.
shmerl 3y ago
Since patent trolls already "hack" the system to essentially run a legalized protection racket, it only makes sense there should be some counter balance to their abuse. Fewer barriers to invalidate bad patents is such example. And in this case, this new proposed rule is simply pushing the balance in patent abusers' favor, so it is corrupt because they are pushing it for their racketeering profits. A better solution would be to prevent more bad patents in the first place (like forbid software patents for example) instead of making such kind of workarounds. But they aren't doing it either.

tcbawo 3y ago

It seems that bad patents would hurt less if they didn’t persist for so long. Why can’t we come up with some sort of earlier phase-out, where patents must be re-litigated or justified to remain in effect?

mr_toad 3y ago
Because the foxes are in charge of the hen house. The lobbyists, the congressmen, the patent trolls, the patent office - none of them would benefit from weakening patents.
- semiquaver 3y ago
  I tend to agree, but the introduction of the Inter Partes Review process at issue in this rule is itself an important counter example. https://en.m.wikipedia.org/wiki/Leahy–Smith_America_Invents_Act https://en.m.wikipedia.org/wiki/Leahy–Smith_America_Invents_... It was introduced not that long ago as part of bipartisan legislation that meaningfully reformed the existing patent system, including by introducing systems like IPR which clearly weaken the rights of patent holders (who have been fighting ever since to overturn it). If the system were utterly irredeemable, reforms like this should never survive.

amelius 3y ago

Can't we let the free market solve the problems with patents? Like, if the government (or anybody, really) wants an invention to be open, they can offer the inventor/company some sum of money, and if they accept then they will have to explain how it works. Otherwise, it will remain a trade secret until someone else figures it out.

spywaregorilla 3y ago
Patents already explain how things work. The problem is limiting other people's ability to do something that someone claimed as their own with basically no effort.
hodgesrm 3y ago
That's effectively what the patent system already does. The "sum of money" you refer to is the market value of the monopoly on the idea embodied in the patent. This solves the problem of what the price should be.
- amelius 3y ago
  It's not the same because a patent is a time-limited monopoly on a technology. This means that patents can be used to block the progress of other companies. E.g. if A patents X and some large company B wants to use X and A refuses, then B cannot use X even if they offer millions.
  - hodgesrm 3y ago
    You are also right. I was responding to this. (Italics mine) > Like, if the government (or anybody, really) wants an invention to be open, The government literally does want inventions to be open. It's in Article 1, Section 8, Clause 8 of the constitution. [0] [The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [0] https://constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/ https://constitution.congress.gov/browse/essay/artI-S8-C8-1/...

shmerl 3y ago

Such an obviously corrupt idea.

mlinksva 3y ago

There was a big discussion of the EFF post this one riffs on last week https://news.ycombinator.com/item?id=36198329 https://news.ycombinator.com/item?id=36198329 Also see https://www.linuxfoundation.org/blog/stand-up-for-open-source-software-patent-defense https://www.linuxfoundation.org/blog/stand-up-for-open-sourc... which didn't get much discussion https://news.ycombinator.com/item?id=36154988 https://news.ycombinator.com/item?id=36154988

henry2023 3y ago

The US is still making itself less competitive while China is closing the tech gap at a breaking speed. I really don’t understand what they think this will accomplish.

AlbertCory 3y ago

This comes up at least once a month on HN. Drug and medical patents have at least some moral claim to virtue (don't come at me on that one). Whenever you see an op-ed about how patents are so valuable, those are always the poster children. It's never software patents, because absolutely no one but lawyers thinks those are a good thing. But they're subject to the same laws as the "good" patents (whatever you think those are). So the solution is clear: Congress must legislate that software is not patentable subject matter. We can do this.

pclmulqdq 3y ago
I don't know any lawyers who think dumb software patents are good, including my own patent lawyers.
- AlbertCory 3y ago
  > dumb software patents their definition of "dumb" is probably quite different from yours (or most software engineers).
  - pclmulqdq 3y ago
    To clarify, I think both of us agree that things like weird data structures, compression/encryption algorithms, and a few other things that are actually non-obvious hard tech probably should be patentable (although it's usually a shitty business strategy to patent these things), but that most other software (including things like Amazon's one click ordering patent) shouldn't be. I will admit that I don't know where his moral line on this is exactly, and I know he is very happy to draft patents beyond it for strategic reasons. I think many smart patent lawyers are ultimately legal realists here - they have their own philosophical views, but their job involves working in the real system.
    - plank 3y ago
      >To clarify, … Not the parent, but: in that case you and I agree to disagree: any weird encryption algorithm is the usage of mathematics which should not be patentable in my opinion. The simplest solution in my mind is simply abolishing patents. Just as e.g. the COVID vaccines were developed using public funds, there is enough ‘protection’ in things like trade secrets (‘recipe of coca cola’) or copyright/-left (‘GPL’ or ‘iOS’) to keep us innovative enough.

ThinkBeat 3y ago

The patent system is flawed enough that I think a rewriting from scratch is required. It was created or a different time, and its governing rules reflect it. How to rewrite it is no simple task to figure out and is well beyond what I am able to do. I do think the bar for applying ought to be higher and the categories that can be patented significantly lowered. I am not sure, but it seems that the time it takes to grant A patent requires changes as well. Nearly everything new has "pending patents" A good thing would be changing the ethics of how people think about patents and applying for them. A better, quicker and easier way to prove prior art should be developed. (and if it is not already the case, the entity that applied for a patent with prior art should be made to cover all legal and paperwork etc. for doing so.

entropicgravity 3y ago

Looks like yet another attempt at regulatory capture.

neilwilson 3y ago

I don't even know why they bother at this point. Why not just cut to the chase and say if you give us enough money we'll give you the power to stop whoever you want doing whatever they are doing right now. There's not even a pretence this is helping innovation any more.

ImHereToVote 3y ago
Because if they did that, then you would get corporate white knights pretending that any of this makes sense in a healthy society. The pretense of a rules based order is what holds the sharade together.

smeagull 3y ago

The existence of the patent system makes me never want to invent anything ever. Having to deal with that thing? That would be like working in Academia. Wouldn't wish it on anyone.

cashsterling 3y ago

Our entire patent system in the US is designed to benefit lawyers (keep them employed) and large corporations. Fostering innovation and supporting inventors is now completely secondary (or not a goal at all)... probably been that way for a long time but it is only getting worse.