7 ms·

Obama moves to curb software patent lawsuits

171 points by cperry 13y ago

ryandvm 13y ago
I really enjoyed the most recent This American Life podcast as they revisited the topic of patent trolls (specifically Nathan Myhrvold's Intellectual Ventures). Fascinating and terrifying. http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two http://www.thisamericanlife.org/radio-archives/episode/496/w...
- rscale 13y ago
  The most recent Planet Money podcast is also about patent trolls, and goes into a bit more depth about the guy who declared himself a co-inventor of podcasting. http://www.npr.org/blogs/money/2013/05/31/187374157/episode-462-when-patents-hit-the-podcast http://www.npr.org/blogs/money/2013/05/31/187374157/episode-... EFF's effort to find prior art and raise money to fight this particular troll can be found here: https://www.eff.org/deeplinks/2013/05/help-save-podcasting https://www.eff.org/deeplinks/2013/05/help-save-podcasting
- rexreed 13y ago
  Yeah - my first thought was: Is it possible that the 2-part series by This American Life ("When Patents Attack") had a tangible effect here?
  - skwirl 13y ago
    I doubt it. It seems to me that this American Life was responding to the fact that patent trolling was already very much on the radar, not putting it there themselves.
    - rexreed 13y ago
      But given this has been an issue for so long, why the action now? Did TAL raise something as an issue that motivated folks to call their congressmen, petition their representatives more than if TAL had not aired the episode? If it's just timing on the part of TAL, it's well timed.
      - skwirl 13y ago
        Don't get me wrong, I love This American Life, but a week before the more recent episode aired the State of Vermont passed a law to clamp down on patent trolls and its attorney general started suing patent trolls. See: http://abovethelaw.com/2013/05/vermont-declares-war-on-patent-trolls-passes-new-law-and-sues-notorious-patent-troll/ http://abovethelaw.com/2013/05/vermont-declares-war-on-paten... Obama made statements in February regarding the harm imposed by patent trolls: "On a Google Hangout in February, Obama said patent trolls abuse a system that was designed to protect inventions and foster innovation. "They don't actually produce anything themselves," Obama said. "They're just trying to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them." (http://money.cnn.com/2013/06/04/technology/innovation/obama-patent-trolls/?source=cnn_bin http://money.cnn.com/2013/06/04/technology/innovation/obama-...) Also, the This American Life episode just aired last weekend. I highly doubt the executive orders were written in one business day.
        scott_s 13y ago
        Last weekend's episode was a followup to one from two years ago, so there is possibility that their work has affected public discourse.
  - pionar 13y ago
    I'd say it's just coincidence. The White House doesn't decide to take a policy position like this "over the weekend". I'd bet it's been in the works for a couple months, they've just been nailing down the plan and the wording.
- snorkel 13y ago
  So many mind-blowing revelations in that TAL episode: * The original filer of the patent featured in the story was not the inventor of the idea but rather a partner in a failed startup around the idea, which was never realized, he then later patented his former partner's ideas, and made a lot of money from that patent since * Two defendants fought the patent infringement suit and won on a technicality: the patent was filed improperly due to random mention of another contributor to the idea who was not listed as a co-inventor * ... BUT any of the other 16 infringements defendants who had already agreed to settle their infringement claims out of court are still bound to the terms of their license agreements forever because the language of the license agreement basically asserts that they have to pay the license fees no matter if the patent in question is still valid or not. So anyone that settled out of court are trapped anyway. * There is an entire economy and market around reselling patents to the point of the current self-proclaimed owners of a given patent can not describe its origins. After listening to this episode I couldn't help but think that patents can be fixed if: 1. You should not be allowed to sell a patent. The intent of a patent is to give the inventor(s) enough lead time to develop the idea, not to create a market for ideas. 2. A patent should not be valid unless you can demonstrate it. You shouldn't be allowed to own ideas that are beyond your means to execute. 3. There should be very low limits on patent infringement damage claims thereby removing the financial incentive of using patents and anti-competitive and extortion weapons.
  - anigbrowl 13y ago
    The patent system badly needs fixing, but hasty solutions lead to new problems. 1. If you can't sell a patent, but lack capital or the desire to exploit it (perhaps you have invented something more interesting in the meantime, or alternatively you've developed a serious health condition that prevents you from working), the there's a net economic loss to society because the invention languishes undeveloped for 20 years. 2. You are already required to be able to demonstrate as far as I know. Enforcing this more strictly would allow a different kind of patent trolling by large firms that wanted to grab the inventions of smaller firms/individuals for cheap or nothing by arguing that they weren't sufficiently well resourced to develop the product. 3. If you make patent infringement into an affordable cost of doing business then you're just encouraging people to infringe and pass the minimal costs along to the consumer.
- spodek 13y ago
  Also covered in the New Yorker yesterday: "How to Make War on Patent Trolls" -- an informative, thoughtful article, listing resources the government already has to defeat trolls but isn't much using, though it describes how Vermont is acting in at least one case. http://www.newyorker.com/online/blogs/elements/2013/06/how-to-make-war-on-patent-trolls.html http://www.newyorker.com/online/blogs/elements/2013/06/how-t... From the article: "It is time to declare total war on patent trolls. The federal government, and the states, should do everything they can to exterminate them and to make anyone regret getting into such crooked work. The existence of trolls is entirely a product of government: they abuse a government program (the patent law), and continue to exist only thanks to government inaction." It later continues... "The one exception to the pattern of government inaction is Bill Sorrell, the Attorney General of Vermont, who, two weeks ago, filed lawsuits against MPHJ for exploiting Vermont businesses and nonprofits. He explained to me that Vermont is trying to attract new businesses to the state, and that scaring off trolls might help. “This is not anti-patent,” Sorrell said. “This is anti-abuse of patent rights. We don’t want people preying on Vermont’s small business.” The Vermont story may help create a race to the top. If Vermont succeeds in scaring trolls away, it will give companies there an advantage. And as more states act, it will be relatively worse to do business in those that don’t." It covers more than just Vermont and links to other informative resources. On another note... A major problem infrequently mentioned is that a lot of people, especially in parts of business far from R&D, see patents solely as a way to recoup private investment, not supposed to be balanced with public interest after limited times, and they use number of patents as a proxy for amount of innovation. They honestly see the system as it is now as functioning great. Many see objections to patents as objections to capitalism and business. Many of these people aren't stupid, malevolent, or self-serving. They believe in a model that no longer functions, but haven't realized that model no longer applies.
  - rayiner 13y ago
    > A major problem infrequently mentioned is that a lot of people, especially in parts of business far from R&D, see patents solely as a way to recoup private investment, not supposed to be balanced with public interest after limited times, and they use number of patents as a proxy for amount of innovation. Lots of people in R&D see things this way. My friends in "Big Engineering" are proud of the number of patents they have to their name.
- georgebonnr 13y ago
  this.
javajosh 13y ago
Too bad they ended this article with such a weak quote from Sen. Leahy "Unfortunately, misuse of low-quality patents through patent trolling has tarnished the system's image." This implies that "the system's image" is the thing he's trying to protect, rather than the livelihoods of people just trying to make a living in a free-market economy. When small businesses are sued for scanning a document and emailing it[1], there's more at stake than "the system's image". [1]http://arstechnica.com/tech-policy/2013/01/patent-trolls-want-1000-for-using-scanners/ http://arstechnica.com/tech-policy/2013/01/patent-trolls-wan...
- Pxtl 13y ago
  That demonstrates a problem not just with the patent system, but the legal system itself. There will always be a number of people who will cave to a legal threat if they have enough money to pay off the threat and not enough money to fight it... unless the legal threat has some sort of risk associated with the one making the threat, there will be people who take advantage of it. As horrifying as it is, I'm actually kinda happy this nasty crap is going on. The best way to get a problem fixed is to exploit it relentlessly.
  - rayiner 13y ago
    Fundamentally, the legal system is a way for individuals to invoke the state's monopoly on force to resolve disputes. That's the point. As long as there is law, there is the possibility for abuse, and that possibility is a cross-cutting concern. Now, you say that the issue is associating some sort of risk with people invoking the legal system, but that's a very tricky path to walk down. What if you think someone breached a contract with you, but a court disagrees? Does losing a case inexorably mean you were in the wrong for having brought it? I personally don't think that penalizing people for invoking the legal system is the way to go. The best solution is to make it cheap to reject meritless cases. After all, anybody could file suit claiming you trespassed on their land, and they could do so maliciously or mistakenly. We don't worry about frivolous suits for trespass because the underlying property right is clear and well-defined, so that if you do get sued it's really easy to show that you did not violate that right. The ease with which a case like that can be dismissed automatically disincentives people from bringing nuisance cases.
YokoZar 13y ago
The most obvious reform to me would be triggering an automatic review of any patent asserted in a legal case. That way we wouldn't have to worry too much about all the existing bad patents, since whenever they became an issue the patent office (under whatever the new standards are) would take a closer look and maybe stop the case before it started. Yet I haven't seen it in any of the proposals/orders coming about over the years mention this sort of feature. Is there something I'm missing?
- nissimk 13y ago
  Doesn't this already happen automatically by default because the first defense is to demand re-examination?
  - belorn 13y ago
    Only if the defense will pay for it. However, given that only 1 out of 10 patents will go through a re-examination with all claims intact, paying for re-examination is a working tactic. That is, if one can wait the many years it take for a re-examination to finish. A better approach would of course be that the PTO did not 9 out of 10 times create a patent that they later will find to be incorrectly issued. That the state has an 88% error rate when issuing 20 years patents should really not be allowed in 2013.
    - foobarbazqux 13y ago
      Even if the PTO doesn't get involved, all patents get a pretty thorough pre-trial examination by the judge in the form of a Markman hearing to determine what the claims mean.
      - DannyBee 13y ago
        This is not an examination, in the sense that they are not determining the validity, just the meaning of the claims.
        13y ago
ColinWright 13y ago
Also being discussed here: https://news.ycombinator.com/item?id=5819222 https://news.ycombinator.com/item?id=5819222 Split discussion, both on the front page.
mullingitover 13y ago
From what I understand of the patent office, the problem with their methodology is the test for obviousness: has this already been patented? No? Then it's non-obvious. Which of course ignores the possibility that a typical engineer working in this area would assume that the idea is obvious and therefore ineligible for patent. So the ethical engineer doesn't apply, but giganticorp's legal staff pesters their engineering team to patent every possible idea, obvious or not. Which they dutifully do. Of course, how would the patent office know that the idea is non-obvious to an engineer trained in the state of the art, unless they employ engineers who are trained in the state of the art in every engineering discipline?
- greenyoda 13y ago
  There aren't all that many engineering disciplines, and hiring a hundred well-qualified people to review patents might actually save the government a lot of money that currently goes toward running the legal system (they could hire fewer federal judges). Being a part-time patent examiner might be a great job for a retired engineer who remembers all the "new ideas" from the last several decades.
  - bobwaycott 13y ago
    > Being a part-time patent examiner might be a great job for a retired engineer who remembers all the "new ideas" from the last several decades. Shit, that is a damn fine idea, friend.
- vilya 13y ago
  > Of course, how would the patent office know that the idea is non-obvious to an engineer trained in the state of the art, unless they employ engineers who are trained in the state of the art in every engineering discipline? By using a roster of consultants, presumably. (I agree with the rest of your points, by the way.)
elclingman 13y ago
crazy.
stormbrew 13y ago
Killing patent trolls is just a bandaid. Companies that aren't technically trolls can (and do) still engage in troll-like behaviour. There need to be ground-up changes in how patents, especially in technology, work.
mortdeus 13y ago
"But some big software companies, including Microsoft, expressed dismay at some of the proposals, saying they could themselves stifle innovation." And what exactly has Microsoft been innovating lately?
- nanidin 13y ago
  It's hard to say since they don't expose the internals of their OS or other products, but one must assume that something interesting happened below in the surface in Windows 8 and in Windows Phone. They also manufacture the xbox360 and are probably working on a next-gen console in addition to that. They run a cloud platform (Azure) that again, probably has interesting things going on under the surface. Etc etc.
kelnos 13y ago
Found this interesting: "Vermont has one of the highest per-capita rates of issued patents in the country." What could explain that?
mc-lovin 13y ago
Why is this a matter for the executive branch? Can someone with more knowledge of US politics explain?

171 points by cperry 13y ago

I really enjoyed the most recent This American Life podcast as they revisited the topic of patent trolls (specifically Nathan Myhrvold's Intellectual Ventures). Fascinating and terrifying. http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two http://www.thisamericanlife.org/radio-archives/episode/496/w...

rscale 13y ago
The most recent Planet Money podcast is also about patent trolls, and goes into a bit more depth about the guy who declared himself a co-inventor of podcasting. http://www.npr.org/blogs/money/2013/05/31/187374157/episode-462-when-patents-hit-the-podcast http://www.npr.org/blogs/money/2013/05/31/187374157/episode-... EFF's effort to find prior art and raise money to fight this particular troll can be found here: https://www.eff.org/deeplinks/2013/05/help-save-podcasting https://www.eff.org/deeplinks/2013/05/help-save-podcasting
rexreed 13y ago
Yeah - my first thought was: Is it possible that the 2-part series by This American Life ("When Patents Attack") had a tangible effect here?
- skwirl 13y ago
  I doubt it. It seems to me that this American Life was responding to the fact that patent trolling was already very much on the radar, not putting it there themselves.
  - rexreed 13y ago
    But given this has been an issue for so long, why the action now? Did TAL raise something as an issue that motivated folks to call their congressmen, petition their representatives more than if TAL had not aired the episode? If it's just timing on the part of TAL, it's well timed.
    - skwirl 13y ago
      Don't get me wrong, I love This American Life, but a week before the more recent episode aired the State of Vermont passed a law to clamp down on patent trolls and its attorney general started suing patent trolls. See: http://abovethelaw.com/2013/05/vermont-declares-war-on-patent-trolls-passes-new-law-and-sues-notorious-patent-troll/ http://abovethelaw.com/2013/05/vermont-declares-war-on-paten... Obama made statements in February regarding the harm imposed by patent trolls: "On a Google Hangout in February, Obama said patent trolls abuse a system that was designed to protect inventions and foster innovation. "They don't actually produce anything themselves," Obama said. "They're just trying to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them." (http://money.cnn.com/2013/06/04/technology/innovation/obama-patent-trolls/?source=cnn_bin http://money.cnn.com/2013/06/04/technology/innovation/obama-...) Also, the This American Life episode just aired last weekend. I highly doubt the executive orders were written in one business day.
      - scott_s 13y ago
        Last weekend's episode was a followup to one from two years ago, so there is possibility that their work has affected public discourse.
- pionar 13y ago
  I'd say it's just coincidence. The White House doesn't decide to take a policy position like this "over the weekend". I'd bet it's been in the works for a couple months, they've just been nailing down the plan and the wording.
snorkel 13y ago
So many mind-blowing revelations in that TAL episode: * The original filer of the patent featured in the story was not the inventor of the idea but rather a partner in a failed startup around the idea, which was never realized, he then later patented his former partner's ideas, and made a lot of money from that patent since * Two defendants fought the patent infringement suit and won on a technicality: the patent was filed improperly due to random mention of another contributor to the idea who was not listed as a co-inventor * ... BUT any of the other 16 infringements defendants who had already agreed to settle their infringement claims out of court are still bound to the terms of their license agreements forever because the language of the license agreement basically asserts that they have to pay the license fees no matter if the patent in question is still valid or not. So anyone that settled out of court are trapped anyway. * There is an entire economy and market around reselling patents to the point of the current self-proclaimed owners of a given patent can not describe its origins. After listening to this episode I couldn't help but think that patents can be fixed if: 1. You should not be allowed to sell a patent. The intent of a patent is to give the inventor(s) enough lead time to develop the idea, not to create a market for ideas. 2. A patent should not be valid unless you can demonstrate it. You shouldn't be allowed to own ideas that are beyond your means to execute. 3. There should be very low limits on patent infringement damage claims thereby removing the financial incentive of using patents and anti-competitive and extortion weapons.
- anigbrowl 13y ago
  The patent system badly needs fixing, but hasty solutions lead to new problems. 1. If you can't sell a patent, but lack capital or the desire to exploit it (perhaps you have invented something more interesting in the meantime, or alternatively you've developed a serious health condition that prevents you from working), the there's a net economic loss to society because the invention languishes undeveloped for 20 years. 2. You are already required to be able to demonstrate as far as I know. Enforcing this more strictly would allow a different kind of patent trolling by large firms that wanted to grab the inventions of smaller firms/individuals for cheap or nothing by arguing that they weren't sufficiently well resourced to develop the product. 3. If you make patent infringement into an affordable cost of doing business then you're just encouraging people to infringe and pass the minimal costs along to the consumer.
spodek 13y ago
Also covered in the New Yorker yesterday: "How to Make War on Patent Trolls" -- an informative, thoughtful article, listing resources the government already has to defeat trolls but isn't much using, though it describes how Vermont is acting in at least one case. http://www.newyorker.com/online/blogs/elements/2013/06/how-to-make-war-on-patent-trolls.html http://www.newyorker.com/online/blogs/elements/2013/06/how-t... From the article: "It is time to declare total war on patent trolls. The federal government, and the states, should do everything they can to exterminate them and to make anyone regret getting into such crooked work. The existence of trolls is entirely a product of government: they abuse a government program (the patent law), and continue to exist only thanks to government inaction." It later continues... "The one exception to the pattern of government inaction is Bill Sorrell, the Attorney General of Vermont, who, two weeks ago, filed lawsuits against MPHJ for exploiting Vermont businesses and nonprofits. He explained to me that Vermont is trying to attract new businesses to the state, and that scaring off trolls might help. “This is not anti-patent,” Sorrell said. “This is anti-abuse of patent rights. We don’t want people preying on Vermont’s small business.” The Vermont story may help create a race to the top. If Vermont succeeds in scaring trolls away, it will give companies there an advantage. And as more states act, it will be relatively worse to do business in those that don’t." It covers more than just Vermont and links to other informative resources. On another note... A major problem infrequently mentioned is that a lot of people, especially in parts of business far from R&D, see patents solely as a way to recoup private investment, not supposed to be balanced with public interest after limited times, and they use number of patents as a proxy for amount of innovation. They honestly see the system as it is now as functioning great. Many see objections to patents as objections to capitalism and business. Many of these people aren't stupid, malevolent, or self-serving. They believe in a model that no longer functions, but haven't realized that model no longer applies.
- rayiner 13y ago
  > A major problem infrequently mentioned is that a lot of people, especially in parts of business far from R&D, see patents solely as a way to recoup private investment, not supposed to be balanced with public interest after limited times, and they use number of patents as a proxy for amount of innovation. Lots of people in R&D see things this way. My friends in "Big Engineering" are proud of the number of patents they have to their name.
georgebonnr 13y ago
this.

javajosh 13y ago

Too bad they ended this article with such a weak quote from Sen. Leahy "Unfortunately, misuse of low-quality patents through patent trolling has tarnished the system's image." This implies that "the system's image" is the thing he's trying to protect, rather than the livelihoods of people just trying to make a living in a free-market economy. When small businesses are sued for scanning a document and emailing it[1], there's more at stake than "the system's image". [1]http://arstechnica.com/tech-policy/2013/01/patent-trolls-want-1000-for-using-scanners/ http://arstechnica.com/tech-policy/2013/01/patent-trolls-wan...

Pxtl 13y ago
That demonstrates a problem not just with the patent system, but the legal system itself. There will always be a number of people who will cave to a legal threat if they have enough money to pay off the threat and not enough money to fight it... unless the legal threat has some sort of risk associated with the one making the threat, there will be people who take advantage of it. As horrifying as it is, I'm actually kinda happy this nasty crap is going on. The best way to get a problem fixed is to exploit it relentlessly.
- rayiner 13y ago
  Fundamentally, the legal system is a way for individuals to invoke the state's monopoly on force to resolve disputes. That's the point. As long as there is law, there is the possibility for abuse, and that possibility is a cross-cutting concern. Now, you say that the issue is associating some sort of risk with people invoking the legal system, but that's a very tricky path to walk down. What if you think someone breached a contract with you, but a court disagrees? Does losing a case inexorably mean you were in the wrong for having brought it? I personally don't think that penalizing people for invoking the legal system is the way to go. The best solution is to make it cheap to reject meritless cases. After all, anybody could file suit claiming you trespassed on their land, and they could do so maliciously or mistakenly. We don't worry about frivolous suits for trespass because the underlying property right is clear and well-defined, so that if you do get sued it's really easy to show that you did not violate that right. The ease with which a case like that can be dismissed automatically disincentives people from bringing nuisance cases.

YokoZar 13y ago

The most obvious reform to me would be triggering an automatic review of any patent asserted in a legal case. That way we wouldn't have to worry too much about all the existing bad patents, since whenever they became an issue the patent office (under whatever the new standards are) would take a closer look and maybe stop the case before it started. Yet I haven't seen it in any of the proposals/orders coming about over the years mention this sort of feature. Is there something I'm missing?

nissimk 13y ago
Doesn't this already happen automatically by default because the first defense is to demand re-examination?
- belorn 13y ago
  Only if the defense will pay for it. However, given that only 1 out of 10 patents will go through a re-examination with all claims intact, paying for re-examination is a working tactic. That is, if one can wait the many years it take for a re-examination to finish. A better approach would of course be that the PTO did not 9 out of 10 times create a patent that they later will find to be incorrectly issued. That the state has an 88% error rate when issuing 20 years patents should really not be allowed in 2013.
  - foobarbazqux 13y ago
    Even if the PTO doesn't get involved, all patents get a pretty thorough pre-trial examination by the judge in the form of a Markman hearing to determine what the claims mean.
    - DannyBee 13y ago
      This is not an examination, in the sense that they are not determining the validity, just the meaning of the claims.
      - 13y ago

ColinWright 13y ago

Also being discussed here: https://news.ycombinator.com/item?id=5819222 https://news.ycombinator.com/item?id=5819222 Split discussion, both on the front page.

mullingitover 13y ago

From what I understand of the patent office, the problem with their methodology is the test for obviousness: has this already been patented? No? Then it's non-obvious. Which of course ignores the possibility that a typical engineer working in this area would assume that the idea is obvious and therefore ineligible for patent. So the ethical engineer doesn't apply, but giganticorp's legal staff pesters their engineering team to patent every possible idea, obvious or not. Which they dutifully do. Of course, how would the patent office know that the idea is non-obvious to an engineer trained in the state of the art, unless they employ engineers who are trained in the state of the art in every engineering discipline?

greenyoda 13y ago
There aren't all that many engineering disciplines, and hiring a hundred well-qualified people to review patents might actually save the government a lot of money that currently goes toward running the legal system (they could hire fewer federal judges). Being a part-time patent examiner might be a great job for a retired engineer who remembers all the "new ideas" from the last several decades.
- bobwaycott 13y ago
  > Being a part-time patent examiner might be a great job for a retired engineer who remembers all the "new ideas" from the last several decades. Shit, that is a damn fine idea, friend.
vilya 13y ago
> Of course, how would the patent office know that the idea is non-obvious to an engineer trained in the state of the art, unless they employ engineers who are trained in the state of the art in every engineering discipline? By using a roster of consultants, presumably. (I agree with the rest of your points, by the way.)

elclingman 13y ago

crazy.

stormbrew 13y ago

Killing patent trolls is just a bandaid. Companies that aren't technically trolls can (and do) still engage in troll-like behaviour. There need to be ground-up changes in how patents, especially in technology, work.

mortdeus 13y ago

"But some big software companies, including Microsoft, expressed dismay at some of the proposals, saying they could themselves stifle innovation." And what exactly has Microsoft been innovating lately?

nanidin 13y ago
It's hard to say since they don't expose the internals of their OS or other products, but one must assume that something interesting happened below in the surface in Windows 8 and in Windows Phone. They also manufacture the xbox360 and are probably working on a next-gen console in addition to that. They run a cloud platform (Azure) that again, probably has interesting things going on under the surface. Etc etc.

kelnos 13y ago

Found this interesting: "Vermont has one of the highest per-capita rates of issued patents in the country." What could explain that?

mc-lovin 13y ago

Why is this a matter for the executive branch? Can someone with more knowledge of US politics explain?