76 ms·

Firstly, your implication that patents are only supposed to protect the weak from the strong is incorrect. That is a common ex post-facto rationalization of pat

Firstly, your implication that patents are only supposed to protect the weak from the strong is incorrect. That is a common ex post-facto rationalization of patents, but not the only one. Simply preventing copying by a competitor, regardless of size, is perfectly fine. Even then, empirical evidence suggests that the use of patents by small firms against large ones is not as "extremely rare" as you think it is. From http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319: "... public and large private companies initiated 42% of all lawsuits studied, 28% of the time against other large companies... 4% of the suits were initiated by individual inventors (David v. Goliath), 18% of the suits were brought by small private companies against public or large private ones (small v. large), 16% pit one small- or medium-sized company against another (limited stakes), and in 8% a large firm sued a small one (predation profile)." So at least 22% of lawsuits involve a "small guy vs big guy" scenario. But considering that trolls (who, surprisingly, file a relative minority of suits, the study finds) often buy patents from individual inventors / small companies who cannot litigate themselves, that number may likely be higher. Now this says nothing about the merits of the lawsuits, but there certainly are a lot of small firms taking on bigger firms. Now setting aside your strawman that the intended use is only small vs big, at least two-thirds of the time patents are used by operating firms against a comparably sized or larger firm. That indicates that the majority of the time the system is not being abused, even if you make the questionable assumption that all big vs small and troll suits are completely meritless. > I feel like China and India are doing quite alright without overburdensome strong patent protection. Really? I don't see many notable technical innovations come out of those countries, and I say this as a citizen of one of them. They are very good at reproducing technology, no doubt, but invention is rare. > And Europe seems fine with a hamstrung software patent system. If there's one thing the smartphone wars showed us, it's that other countries have software patents of similar quality as the US. The litigation environment is very different, though. Also, citation on the Fish & Richardson lawyer? IANAL, but that sounds like shenanigans that could lead to disbarment.

AnthonyMouse 12y ago
Small entities filing lawsuits is good because it means small entities are using patents. Large entities filing lawsuits is good because it means large entities are using patents. The underlying assumption is that patent litigation is a good thing for the plaintiffs involved. It's like trying to use the number of patents issued to measure the innovation attributable to patents. Litigation isn't a sign of success, it's a systemic failure leading to an enormous waste of resources. Meanwhile the notion that trolls don't comprise a large percentage of the actual litigation is entirely unsurprising since their business model is to offer an out of court settlement in an amount that compares favorably with the cost of successfully defending a lawsuit.
- throwawaykf05 12y ago
  Strawman. Those statistics were to refute grandparents assumptions about how patents are used in the real world, not to assert that litigation is a "success". Litigation is a failure, but a failure of negotiation, not of the system. On mobile, so can't find the Lemley study now, but something like 1% of issued patents are ever litigated, and a big fraction of even those settle out of court. The large majority are typically licensed without involving litigation -- thousands of practicing entities, including well-known firms like Qualcomm, ARM, Microsoft, etc. routinely license patents as part of their business without suing others, because lawsuits are as expensive to practicing licensors as to potential infringers. It's only when parties cannot agree on the validity or value of patents that lawsuits occur, and statistics indicate this is rare. There's no evidence of "systemic failure" of patent litigation, unless you uncritically accept media reports without evidence or are simply biased against patents.
  - AnthonyMouse 12y ago
    > Those statistics were to refute grandparents assumptions about how patents are used in the real world, not to assert that litigation is a "success". Except that they can show no such thing if by your own assertion the way they are used in the real world is primarily outside of litigation. > Litigation is a failure, but a failure of negotiation, not of the system. The reason negotiation fails is that the system is broken. Patents were issued that should not have been issued which makes defendants reluctant to license them but makes plaintiffs feel no less entitled to assert them. > There's no evidence of "systemic failure" of patent litigation This is a systemic failure: http://www.theguardian.com/technology/blog/2010/nov/01/smartphone-patent-lawsuits-diagram http://www.theguardian.com/technology/blog/2010/nov/01/smart... That is not how the landscape looks in e.g. the pharmaceutical industry.
    - throwawaykf05 12y ago
      Yes, the vast, vast majority of patents licensing and disputes are settled out of court. This is almost always confidential and there is no data about what really goes on. We can draw few conclusions from this lack of data. However what we can determine is that expensive and time-wasting lawsuits, which you hold to be the symptoms of a "broken system" are extremely rare, and so this arguably is a good thing. Also, when litigation does occur, small companies are initiating it significantly often. This sheds little light on how small companies use patents outside litigation -- there are surveys showing startups in different industries use patents differently -- but it certainly shows that the small guy vs big guy scenario is much more common than grandparent assumed. There is no evidence at all that the vast majority of regular, non-litigation activity is problematic. The only major complaint was trolls, but when the GAO investigated the problem they put out a report that essentially said, "meh". Admittedly the requisite data about mass-mailed demand letters is not available, but there is legislation in the works on that front. > That is not how the landscape looks in e.g. the pharmaceutical industry. Just because somebody doesn't make a pithy infographic about it does not mean it doesn't happen: http://www.fiercepharma.com/tags/patent-lawsuits http://www.fiercepharma.com/tags/patent-lawsuits Note that this link only lists articles from 2008. If you google a bit with a custom time range, you'll find tons more patent lawsuit articles from before 2008 too. The reasons you don't hear about it is because any combination of: a) it's been this way forever, so whenever a new drug suit happens it's just the usual; b) pharma lawsuits don't generate rageviews which end up posted on HN; and c) you probably are not in the pharma industry. Just parroting the "patent system is broken" line the media puts out does not make it so.

AnthonyMouse 12y ago

Small entities filing lawsuits is good because it means small entities are using patents. Large entities filing lawsuits is good because it means large entities are using patents. The underlying assumption is that patent litigation is a good thing for the plaintiffs involved. It's like trying to use the number of patents issued to measure the innovation attributable to patents. Litigation isn't a sign of success, it's a systemic failure leading to an enormous waste of resources. Meanwhile the notion that trolls don't comprise a large percentage of the actual litigation is entirely unsurprising since their business model is to offer an out of court settlement in an amount that compares favorably with the cost of successfully defending a lawsuit.

throwawaykf05 12y ago
Strawman. Those statistics were to refute grandparents assumptions about how patents are used in the real world, not to assert that litigation is a "success". Litigation is a failure, but a failure of negotiation, not of the system. On mobile, so can't find the Lemley study now, but something like 1% of issued patents are ever litigated, and a big fraction of even those settle out of court. The large majority are typically licensed without involving litigation -- thousands of practicing entities, including well-known firms like Qualcomm, ARM, Microsoft, etc. routinely license patents as part of their business without suing others, because lawsuits are as expensive to practicing licensors as to potential infringers. It's only when parties cannot agree on the validity or value of patents that lawsuits occur, and statistics indicate this is rare. There's no evidence of "systemic failure" of patent litigation, unless you uncritically accept media reports without evidence or are simply biased against patents.
- AnthonyMouse 12y ago
  > Those statistics were to refute grandparents assumptions about how patents are used in the real world, not to assert that litigation is a "success". Except that they can show no such thing if by your own assertion the way they are used in the real world is primarily outside of litigation. > Litigation is a failure, but a failure of negotiation, not of the system. The reason negotiation fails is that the system is broken. Patents were issued that should not have been issued which makes defendants reluctant to license them but makes plaintiffs feel no less entitled to assert them. > There's no evidence of "systemic failure" of patent litigation This is a systemic failure: http://www.theguardian.com/technology/blog/2010/nov/01/smartphone-patent-lawsuits-diagram http://www.theguardian.com/technology/blog/2010/nov/01/smart... That is not how the landscape looks in e.g. the pharmaceutical industry.
  - throwawaykf05 12y ago
    Yes, the vast, vast majority of patents licensing and disputes are settled out of court. This is almost always confidential and there is no data about what really goes on. We can draw few conclusions from this lack of data. However what we can determine is that expensive and time-wasting lawsuits, which you hold to be the symptoms of a "broken system" are extremely rare, and so this arguably is a good thing. Also, when litigation does occur, small companies are initiating it significantly often. This sheds little light on how small companies use patents outside litigation -- there are surveys showing startups in different industries use patents differently -- but it certainly shows that the small guy vs big guy scenario is much more common than grandparent assumed. There is no evidence at all that the vast majority of regular, non-litigation activity is problematic. The only major complaint was trolls, but when the GAO investigated the problem they put out a report that essentially said, "meh". Admittedly the requisite data about mass-mailed demand letters is not available, but there is legislation in the works on that front. > That is not how the landscape looks in e.g. the pharmaceutical industry. Just because somebody doesn't make a pithy infographic about it does not mean it doesn't happen: http://www.fiercepharma.com/tags/patent-lawsuits http://www.fiercepharma.com/tags/patent-lawsuits Note that this link only lists articles from 2008. If you google a bit with a custom time range, you'll find tons more patent lawsuit articles from before 2008 too. The reasons you don't hear about it is because any combination of: a) it's been this way forever, so whenever a new drug suit happens it's just the usual; b) pharma lawsuits don't generate rageviews which end up posted on HN; and c) you probably are not in the pharma industry. Just parroting the "patent system is broken" line the media puts out does not make it so.