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Nice to see Cloudflare fighting the good fight, but patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is

by yashap 3y ago

Nice to see Cloudflare fighting the good fight, but patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. It doesn’t even matter if they win - when a company with billions in the bank sues a company with millions in the bank, the small company is basically just screwed no matter what because they can’t afford the legal fees. It’s a cheap way for big, bloated, slow moving companies to eliminate fast moving, lean, disruptive competition. A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things! The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.

joshuaissac 3y ago
I think this is the main problem, rather than companies owning patents they do not implement, and suing the ones that do without a licence. There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts. There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable. It needs to be easier and cheaper to challenge bad patents and false claims of infringement.
froggertoaster 3y ago
> A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. Do you have any examples?
mike_hock 3y ago
Simple solution: Abolish patents. All the rhetoric about incentivizing innovation is bullshit. They stifle innovation, and they stifle competition. They're designed to protect slow, inefficient established corporations. That's all they ever did and that's all they'll ever do.
- jMyles 3y ago
  Hear hear. But how?
- ClassyJacket 3y ago
  Agreed. I shouldn't be banned from inventing something just because somebody else already invented it. Patents suck.
- palata 3y ago
  I think it's a bit more nuanced than that, because in some industries patents may make sense. I would say "Simple solution: abolish patents on software".
- sircastor 3y ago
  I don't think they're designed to project established corporations, but lawyers move faster than congress. So much like the Tax code, they've already figured out how to take advantage of the existing system. In fact, I would say the ultimate realization of that is the existence of patent-trolls. The patent-holder which exists solely for the purpose of possessing the patent rather than creating it, or utilizing it to make their own product.
- chefandy 3y ago
  I reckon simple solutions are often simple because they ignore important complexities. I'd love to abolish patents, but I don't see how our society could before figuring out stuff like how else to support the people that do important knowledge work, and incentivizing creating new things when it's a hell of a lot more profitable to just wait until someone else does it first. The software industry is already compatible enough that many companies open source their code voluntarily, but I don't see how we can generalize that. What incentive would companies have to pour all of those resources into complex chip design, intricate novel medical devices, or new medicine? You might be able to have open source insulin pump controllers, but how about a lifesaving new linear accelerator or chemotherapy drug when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process and hit the market at nearly the same time? I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good, but it's not, and that seems like a prerequisite you simply can't ignore. I'd love to be proven wrong, but I think the "well if you wanna make an omelet..." kind of attitude I usually see accompany sentiments like this seem more edge-lordy than anything else.
Calavar 3y ago
> company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I can't see any situation where individual patent clerks would be held accountable. First, it goes against established case law regarding civil cases against federal employees [1, 2]. Second, if you amend the law so that patent clerks are an exception and can be held individually liable for potentially tens of millions of dollars, only absolute idiots would agree to take that job. [1] https://www.justice.gov/jm/civil-resource-manual-33-immunity-government-officers-sued-individuals https://www.justice.gov/jm/civil-resource-manual-33-immunity... [2] https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal-liability-public-officials-under-federal-law-fourth https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal...
- dataflow 3y ago
  > By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I think they meant the patent office should cover that from fees, not from taxpayers.
  - jedberg 3y ago
    Then the fees would be so high only the biggest companies could afford to file patents.
  - lolinder 3y ago
    That doesn't really help because money is fungible. In a city near me the taxpayers recently rejected a tax increase to pay for a bond because they were grumpy that the government took out the bond without asking them first. The city was still on the hook for the bond, so they just siphoned money from the roads fund. The same thing would happen here—you can say that the judgment must come from fees, but then the patent office will have to either raise fees to crazy levels in order to cover the risk (thus making patents even more of a large company advantage) or they'll siphon money from things that were being covered by fees and use taxpayer dollars to cover those things.
zomgbbq 3y ago
Sounds like a problem AI could solve filtering patent applications before they make it to a person.
- btrettel 3y ago
  Former patent examiner here. Current AI patent search isn't that useful in my experience. The USPTO had multiple AI patent search tools circa 2022 (when I quit), most of which were of comparable quality to the similar documents listed at the bottom of a patent document on Google Patents. I've posted before about some of the issues here: https://news.ycombinator.com/item?id=33506286 https://news.ycombinator.com/item?id=33506286
jedberg 3y ago
> patent clerks aren’t actually subject matter experts in the field This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk. The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information. The patent office needs a lot more funding if you want it to be effective.
- btrettel 3y ago
  > The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information. As a former USPTO patent examiner, I can confirm that this is the main reason for low patent quality. > This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk. I never found the contract search help to be useful. ("STIC search" is what I'm thinking of. Your friend may have been on a different contract as I'm not familiar with specific contract subject matter experts providing search help.) I'd guess that the problem is that those folks get even less time than I did!
bhaney 3y ago
> patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.
- MobiusHorizons 3y ago
  There are two important differences. 1 Patent trolls are non practicing entities, ie they don’t produce anything other than lawsuits(pure rent seeking), big companies may not be producing on all of their patents, but they typically provide at least some societal value. 2 big companies aren’t typically making direct revenue from their patents, but rather use them as a moat to prevent challengers (which seems more similar to what patents are intended for even if it is often abused by being overly broad)
  - bhaney 3y ago
    > Patent trolls are non practicing entities That's not a part of any commonly accepted definition of "patent troll" that I'm aware of, but of course NPEs can also be patent trolls. > use them as a moat to prevent challengers This is what makes one a patent troll.
    - shiroiushi 3y ago
      >That's not a part of any commonly accepted definition of "patent troll" that I'm aware of It's exactly the definition I've heard of for the past 20+ years. >This is what makes one a patent troll. No, it isn't. Think about what a troll does: it hides under a publicly-owned bridge, and then forces anyone who wants to cross the bridge to pay a toll. This is exactly what the NPEs do with their BS patents: they get a patent on some obvious BS, and then charge people money to use "their IP". Big companies don't do this: they use patents to prevent competitors from operating. They don't grant licenses to their competitors at all. Trolls in mythology didn't refuse bridge access to anyone, they just forced them to pay a toll. The entire point of being an NPE is to get money from licensing (and lawsuits).
mcmoor 3y ago
I think the most fatal flaw is, and in all other fields too, that money correlates with court victory. If we somehow able to erase just that, lots of laws suddenly becomes much fairer and closer to its original intent.
bsimpson 3y ago
I work at a large company. A colleague of mine filed a patent for a thing we were working on, and included me in the list of inventors. I spent that summer trading emails with lawyers trying to get the application to even resemble what we were actually doing. The patent was for computer animation, and the application had fucking clip art of printers and pagers and 50 pages of "and this is novel because computers are shiny" and "if you figure out how to do this with a toaster, we've called dibs." I'm proud of the work I was doing; we were legitimately working at the frontier of motion design. It's cool that my name is in the historical record for that, but it's also embarrassing that it's in the form of a software patent - particularly one that looked like it had been copy/pasted from decades of bullshit patents and barely adapted to cover what we were actually proposing. Whatever little faith you have in the patent system will be even further eroded if you ever find yourself on the filing side of the patent. It shocked me how much of the application was broad and hand-wavey, citing irrelevant and obsolete technology to pad out the pages. Even worse, they didn't seem to care to understand the actual "invention." If I didn't fight back, they would have filed (and probably won) something that could have been generated with the prompt "please write me a generic patent application to pad out a tech company's portfolio."
Intermernet 3y ago
If companies are found to have filed bad faith patents, there should be a rapidly escalating cost increase for future patents, ending in penalties including their existing patents being legally released into the public domain. There is, of course, the usual problems of companies spinning up shell companies to mitigate the risk, but that's a different problem that needs fixing for a whole bunch of reasons.
- muzz 3y ago
  The company that filed the patent didn't sue anyone. It died almost 2 decades ago. The entity that acquired the assets is the one doing the suing.
Log_out_ 3y ago
Chat gpt destroy this patent with prior art

by yashap 3y ago

joshuaissac 3y ago

I think this is the main problem, rather than companies owning patents they do not implement, and suing the ones that do without a licence. There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts. There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable. It needs to be easier and cheaper to challenge bad patents and false claims of infringement.

froggertoaster 3y ago

> A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. Do you have any examples?

mike_hock 3y ago

Simple solution: Abolish patents. All the rhetoric about incentivizing innovation is bullshit. They stifle innovation, and they stifle competition. They're designed to protect slow, inefficient established corporations. That's all they ever did and that's all they'll ever do.

jMyles 3y ago
Hear hear. But how?
ClassyJacket 3y ago
Agreed. I shouldn't be banned from inventing something just because somebody else already invented it. Patents suck.
palata 3y ago
I think it's a bit more nuanced than that, because in some industries patents may make sense. I would say "Simple solution: abolish patents on software".
sircastor 3y ago
I don't think they're designed to project established corporations, but lawyers move faster than congress. So much like the Tax code, they've already figured out how to take advantage of the existing system. In fact, I would say the ultimate realization of that is the existence of patent-trolls. The patent-holder which exists solely for the purpose of possessing the patent rather than creating it, or utilizing it to make their own product.
chefandy 3y ago
I reckon simple solutions are often simple because they ignore important complexities. I'd love to abolish patents, but I don't see how our society could before figuring out stuff like how else to support the people that do important knowledge work, and incentivizing creating new things when it's a hell of a lot more profitable to just wait until someone else does it first. The software industry is already compatible enough that many companies open source their code voluntarily, but I don't see how we can generalize that. What incentive would companies have to pour all of those resources into complex chip design, intricate novel medical devices, or new medicine? You might be able to have open source insulin pump controllers, but how about a lifesaving new linear accelerator or chemotherapy drug when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process and hit the market at nearly the same time? I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good, but it's not, and that seems like a prerequisite you simply can't ignore. I'd love to be proven wrong, but I think the "well if you wanna make an omelet..." kind of attitude I usually see accompany sentiments like this seem more edge-lordy than anything else.

Calavar 3y ago

> company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I can't see any situation where individual patent clerks would be held accountable. First, it goes against established case law regarding civil cases against federal employees [1, 2]. Second, if you amend the law so that patent clerks are an exception and can be held individually liable for potentially tens of millions of dollars, only absolute idiots would agree to take that job. [1] https://www.justice.gov/jm/civil-resource-manual-33-immunity-government-officers-sued-individuals https://www.justice.gov/jm/civil-resource-manual-33-immunity... [2] https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal-liability-public-officials-under-federal-law-fourth https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal...

dataflow 3y ago
> By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I think they meant the patent office should cover that from fees, not from taxpayers.
- jedberg 3y ago
  Then the fees would be so high only the biggest companies could afford to file patents.
- lolinder 3y ago
  That doesn't really help because money is fungible. In a city near me the taxpayers recently rejected a tax increase to pay for a bond because they were grumpy that the government took out the bond without asking them first. The city was still on the hook for the bond, so they just siphoned money from the roads fund. The same thing would happen here—you can say that the judgment must come from fees, but then the patent office will have to either raise fees to crazy levels in order to cover the risk (thus making patents even more of a large company advantage) or they'll siphon money from things that were being covered by fees and use taxpayer dollars to cover those things.

zomgbbq 3y ago

Sounds like a problem AI could solve filtering patent applications before they make it to a person.

btrettel 3y ago
Former patent examiner here. Current AI patent search isn't that useful in my experience. The USPTO had multiple AI patent search tools circa 2022 (when I quit), most of which were of comparable quality to the similar documents listed at the bottom of a patent document on Google Patents. I've posted before about some of the issues here: https://news.ycombinator.com/item?id=33506286 https://news.ycombinator.com/item?id=33506286

jedberg 3y ago

> patent clerks aren’t actually subject matter experts in the field This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk. The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information. The patent office needs a lot more funding if you want it to be effective.

btrettel 3y ago
> The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information. As a former USPTO patent examiner, I can confirm that this is the main reason for low patent quality. > This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk. I never found the contract search help to be useful. ("STIC search" is what I'm thinking of. Your friend may have been on a different contract as I'm not familiar with specific contract subject matter experts providing search help.) I'd guess that the problem is that those folks get even less time than I did!

bhaney 3y ago

> patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.

MobiusHorizons 3y ago
There are two important differences. 1 Patent trolls are non practicing entities, ie they don’t produce anything other than lawsuits(pure rent seeking), big companies may not be producing on all of their patents, but they typically provide at least some societal value. 2 big companies aren’t typically making direct revenue from their patents, but rather use them as a moat to prevent challengers (which seems more similar to what patents are intended for even if it is often abused by being overly broad)
- bhaney 3y ago
  > Patent trolls are non practicing entities That's not a part of any commonly accepted definition of "patent troll" that I'm aware of, but of course NPEs can also be patent trolls. > use them as a moat to prevent challengers This is what makes one a patent troll.
  - shiroiushi 3y ago
    >That's not a part of any commonly accepted definition of "patent troll" that I'm aware of It's exactly the definition I've heard of for the past 20+ years. >This is what makes one a patent troll. No, it isn't. Think about what a troll does: it hides under a publicly-owned bridge, and then forces anyone who wants to cross the bridge to pay a toll. This is exactly what the NPEs do with their BS patents: they get a patent on some obvious BS, and then charge people money to use "their IP". Big companies don't do this: they use patents to prevent competitors from operating. They don't grant licenses to their competitors at all. Trolls in mythology didn't refuse bridge access to anyone, they just forced them to pay a toll. The entire point of being an NPE is to get money from licensing (and lawsuits).

mcmoor 3y ago

I think the most fatal flaw is, and in all other fields too, that money correlates with court victory. If we somehow able to erase just that, lots of laws suddenly becomes much fairer and closer to its original intent.

bsimpson 3y ago

I work at a large company. A colleague of mine filed a patent for a thing we were working on, and included me in the list of inventors. I spent that summer trading emails with lawyers trying to get the application to even resemble what we were actually doing. The patent was for computer animation, and the application had fucking clip art of printers and pagers and 50 pages of "and this is novel because computers are shiny" and "if you figure out how to do this with a toaster, we've called dibs." I'm proud of the work I was doing; we were legitimately working at the frontier of motion design. It's cool that my name is in the historical record for that, but it's also embarrassing that it's in the form of a software patent - particularly one that looked like it had been copy/pasted from decades of bullshit patents and barely adapted to cover what we were actually proposing. Whatever little faith you have in the patent system will be even further eroded if you ever find yourself on the filing side of the patent. It shocked me how much of the application was broad and hand-wavey, citing irrelevant and obsolete technology to pad out the pages. Even worse, they didn't seem to care to understand the actual "invention." If I didn't fight back, they would have filed (and probably won) something that could have been generated with the prompt "please write me a generic patent application to pad out a tech company's portfolio."

Intermernet 3y ago

If companies are found to have filed bad faith patents, there should be a rapidly escalating cost increase for future patents, ending in penalties including their existing patents being legally released into the public domain. There is, of course, the usual problems of companies spinning up shell companies to mitigate the risk, but that's a different problem that needs fixing for a whole bunch of reasons.

muzz 3y ago
The company that filed the patent didn't sue anyone. It died almost 2 decades ago. The entity that acquired the assets is the one doing the suing.

Log_out_ 3y ago

Chat gpt destroy this patent with prior art