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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 nec

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.
- jimmydddd 3y ago
  I'm in the patent biz. While they did not forbid software patents, it's currently the hardest it's ever been to get a new software patent. It's also easier than ever to invalidate a software patent. Even if something like this proposed rule came into effect, it would still be historically easy (quick and cheap) to challenge a software patent.
  - shmerl 3y ago
    It's good, but not good enough. So any movement in the opposite (bad) direction should be seen with strong suspicion.
jjoonathan 3y ago
That's good context, thanks for sharing! It makes sense, but I'm leery of trusting the USPTO because they have been saddled with (intentionally?) godawful incentives: they must pay for all their operations using patent fees. The more trolling they enable, the more money they get. Based on these incentives, I would expect the USPTO to oppose rule changes that effectively reduce trolling.
- semiquaver 3y ago
  That’s a great point. I didn’t know the patent office was _entirely_ funded by fees but that does indeed appear to be the case. https://www.uspto.gov/about-us/performance-and-planning/budget-and-financial-information https://www.uspto.gov/about-us/performance-and-planning/budg... > With full access to the fee collection estimate to offset total spending, the USPTO will use $32 million (net) from the combined operating reserves (ORs) in FY 2024, resulting in a net appropriation of $0.
- bdowling 3y ago
  > The more trolling they enable, the more money they get. How do trolls pay anything to the USPTO? Usually the patents a troll tries to assert against others are purchased from others, often failed tech startups. (Note: People often forget that every “bad” patent was once someone’s startup dream. Edit: OK, maybe not every "bad" patent was once someone's startup dream.)
  - cshimmin 3y ago
    I think your Note at the end betrays your misunderstanding of the situation. There are people who make it essentially their full time job to fill out junk patents and see what they can get approved. They are paying USPTO fees to make this happen. They then use the portfolio so built to extort actual practitioners, or they sell/trade portfolio items to other trolls. There was never any startup dream involved
    - skrtskrt 3y ago
      Often involves buying otherwise-worthless IP from defunct companies with the sole purpose of using it to sue others
fatfingerd 3y ago
I don't really get it, anyone who is a neutral party in any kind of legal matter and takes money from an involved party for a specific action is guilty of criminal conspiracy, no? I mean can I citizen arrest people for other thefts in the US and offer to split them?
- semiquaver 3y ago
  Offering to settle is usually fine for involved parties (as far as I understand, I’m not a lawyer). The “problem” (from the USPTO’s perspective) is that congress set up this process so any outside party can bring an IPR case, making it potentially profitable to pose as a public interest group when you might actually have intended all along to settle without invalidating the patent.
  - freejazz 3y ago
    Yeah but people are missing the point that congress did that in order to make it trivially easy to attack small-time patent owners.
paddw 3y ago
The only way to fix situations like this is to make it possible to extract heavy penalties for frivolous patent litigation. The cost benefit analysis will always fall too much in favor of patent trolls otherwise.
- Zigurd 3y ago
  That is a fine idea in the abstract. But there are a lot of high-value patents that are, for example, very badly written, or they have other attributes that make them vulnerable. This makes them vulnerable to a shakedown. Discerning if a badly written patent deserves to stand would give me a bigger headache than the already soul crushing task of reading such patents.
  - paddw 3y ago
    I am not sure if I understand your point. Are you saying that poorly written patents should be litigated, and that such a law would make this much harder to do? I can see how something like this could be an issue. Ultimately, I don't think there is a perfect solution, but I feel the current way the system works is very far from optimal in its costs and benefits.
    - Zigurd 3y ago
      I do not think there is a clear answer to this. I can understand some people taking the position that a poorly written, hard to understand patent does not deserve to survive, especially if if the people who wrote it are trying to be clever by having it mean what they say it means if it gets litigated. OTOH it can also be argued that trolls posing as public interest groups are operating in bad faith and the fact a patent is hard to understand has been par for the course for so long, that making patent holders review their patents for clearly defensible language is unfair.
      - freejazz 3y ago
        EFF is an industry group posing as a public interest group, operating in bad faith in order to dissolve copyright and patent law.
unyttigfjelltol 3y ago
It sounds like a class action in a normal court, where a lead plaintiff legitimately can get better treatment to a point. Viewed from that perspective, it's a wonder IPR has been so noncontroversial for so long, because the rules around class actions are extremely contentious.
autoexec 3y ago
> 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. Both things can be true. I'm sure there is a need for changes to IPR, but that doesn't mean they didn't know what they were doing when this was proposed. It's hard to imagine a good faith effort to end abuse of the system that also just happens to protect bad actors. Is it really likely that they had no idea that this would drastically weaken the ability to challenge bad patents? I suspect they knew exactly what the proposed rules would mean, that there are other options that would help prevent abuses like the one you pointed out without making it needlessly difficult for legitimate challenges.
- semiquaver 3y ago
  Sure. It certainly seems that this is being proposed for reasons more aligned with the interests of patent holders than patent challengers. I’m just pointing out that without a discussion of the recent events which clearly motivate this rule change, the narrative is missing important context that makes the USPTO look like mustache-twirling villains for proposing this. They may in fact be villainous, but readers still deserve the full backstory to come to that conclusion themselves.
freejazz 3y ago
> Inter Partes Review process in ways that look very much like an abuse of the system That's rich considering that IPRs were basically invented to give big companies the upper hand. For a while, they ran in parallel to actual district court litigations over the subject patents! Even now, they'll stay litigations! The same exact defendant, instituting a parallel challenge of the same exact patent, but in a pseudo court! IPRs are abuses of the system!
nikitaga 3y ago
> But this article is missing the context about _why_ the Patent Office claims to think this is necessary in the first place. Their claimed rationale for these changes is simply dishonest. Hundreds of patent trolls have been abusing pro-patent-holder rules for years and they never blinked an eye. USPTO only cares about "abuse" when they can use it as an excuse to gut a mechanism designed to (and working well to) combat patent troll abuse. They are an organization entirely captive to patent holders with zero interest to benefit innovation or society at large.

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.

jimmydddd 3y ago
I'm in the patent biz. While they did not forbid software patents, it's currently the hardest it's ever been to get a new software patent. It's also easier than ever to invalidate a software patent. Even if something like this proposed rule came into effect, it would still be historically easy (quick and cheap) to challenge a software patent.
- shmerl 3y ago
  It's good, but not good enough. So any movement in the opposite (bad) direction should be seen with strong suspicion.

jjoonathan 3y ago

That's good context, thanks for sharing! It makes sense, but I'm leery of trusting the USPTO because they have been saddled with (intentionally?) godawful incentives: they must pay for all their operations using patent fees. The more trolling they enable, the more money they get. Based on these incentives, I would expect the USPTO to oppose rule changes that effectively reduce trolling.

semiquaver 3y ago
That’s a great point. I didn’t know the patent office was _entirely_ funded by fees but that does indeed appear to be the case. https://www.uspto.gov/about-us/performance-and-planning/budget-and-financial-information https://www.uspto.gov/about-us/performance-and-planning/budg... > With full access to the fee collection estimate to offset total spending, the USPTO will use $32 million (net) from the combined operating reserves (ORs) in FY 2024, resulting in a net appropriation of $0.
bdowling 3y ago
> The more trolling they enable, the more money they get. How do trolls pay anything to the USPTO? Usually the patents a troll tries to assert against others are purchased from others, often failed tech startups. (Note: People often forget that every “bad” patent was once someone’s startup dream. Edit: OK, maybe not every "bad" patent was once someone's startup dream.)
- cshimmin 3y ago
  I think your Note at the end betrays your misunderstanding of the situation. There are people who make it essentially their full time job to fill out junk patents and see what they can get approved. They are paying USPTO fees to make this happen. They then use the portfolio so built to extort actual practitioners, or they sell/trade portfolio items to other trolls. There was never any startup dream involved
  - skrtskrt 3y ago
    Often involves buying otherwise-worthless IP from defunct companies with the sole purpose of using it to sue others

fatfingerd 3y ago

I don't really get it, anyone who is a neutral party in any kind of legal matter and takes money from an involved party for a specific action is guilty of criminal conspiracy, no? I mean can I citizen arrest people for other thefts in the US and offer to split them?

semiquaver 3y ago
Offering to settle is usually fine for involved parties (as far as I understand, I’m not a lawyer). The “problem” (from the USPTO’s perspective) is that congress set up this process so any outside party can bring an IPR case, making it potentially profitable to pose as a public interest group when you might actually have intended all along to settle without invalidating the patent.
- freejazz 3y ago
  Yeah but people are missing the point that congress did that in order to make it trivially easy to attack small-time patent owners.

paddw 3y ago

The only way to fix situations like this is to make it possible to extract heavy penalties for frivolous patent litigation. The cost benefit analysis will always fall too much in favor of patent trolls otherwise.

Zigurd 3y ago
That is a fine idea in the abstract. But there are a lot of high-value patents that are, for example, very badly written, or they have other attributes that make them vulnerable. This makes them vulnerable to a shakedown. Discerning if a badly written patent deserves to stand would give me a bigger headache than the already soul crushing task of reading such patents.
- paddw 3y ago
  I am not sure if I understand your point. Are you saying that poorly written patents should be litigated, and that such a law would make this much harder to do? I can see how something like this could be an issue. Ultimately, I don't think there is a perfect solution, but I feel the current way the system works is very far from optimal in its costs and benefits.
  - Zigurd 3y ago
    I do not think there is a clear answer to this. I can understand some people taking the position that a poorly written, hard to understand patent does not deserve to survive, especially if if the people who wrote it are trying to be clever by having it mean what they say it means if it gets litigated. OTOH it can also be argued that trolls posing as public interest groups are operating in bad faith and the fact a patent is hard to understand has been par for the course for so long, that making patent holders review their patents for clearly defensible language is unfair.
    - freejazz 3y ago
      EFF is an industry group posing as a public interest group, operating in bad faith in order to dissolve copyright and patent law.

unyttigfjelltol 3y ago

It sounds like a class action in a normal court, where a lead plaintiff legitimately can get better treatment to a point. Viewed from that perspective, it's a wonder IPR has been so noncontroversial for so long, because the rules around class actions are extremely contentious.

autoexec 3y ago

> 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. Both things can be true. I'm sure there is a need for changes to IPR, but that doesn't mean they didn't know what they were doing when this was proposed. It's hard to imagine a good faith effort to end abuse of the system that also just happens to protect bad actors. Is it really likely that they had no idea that this would drastically weaken the ability to challenge bad patents? I suspect they knew exactly what the proposed rules would mean, that there are other options that would help prevent abuses like the one you pointed out without making it needlessly difficult for legitimate challenges.

semiquaver 3y ago
Sure. It certainly seems that this is being proposed for reasons more aligned with the interests of patent holders than patent challengers. I’m just pointing out that without a discussion of the recent events which clearly motivate this rule change, the narrative is missing important context that makes the USPTO look like mustache-twirling villains for proposing this. They may in fact be villainous, but readers still deserve the full backstory to come to that conclusion themselves.

freejazz 3y ago

> Inter Partes Review process in ways that look very much like an abuse of the system That's rich considering that IPRs were basically invented to give big companies the upper hand. For a while, they ran in parallel to actual district court litigations over the subject patents! Even now, they'll stay litigations! The same exact defendant, instituting a parallel challenge of the same exact patent, but in a pseudo court! IPRs are abuses of the system!

nikitaga 3y ago

> But this article is missing the context about _why_ the Patent Office claims to think this is necessary in the first place. Their claimed rationale for these changes is simply dishonest. Hundreds of patent trolls have been abusing pro-patent-holder rules for years and they never blinked an eye. USPTO only cares about "abuse" when they can use it as an excuse to gut a mechanism designed to (and working well to) combat patent troll abuse. They are an organization entirely captive to patent holders with zero interest to benefit innovation or society at large.