12 ms·

Big companies are stopping Congress from fixing the patent system

201 points by __Joker 11y ago

mhuffman 11y ago
Investors, as well, have been forcing startups to feed the patent beast. Gotta keep your tech "defensible" after all!
janvdberg 11y ago
This is also subject in this piece with John Oliver: https://www.youtube.com/watch?v=3bxcc3SM_KA https://www.youtube.com/watch?v=3bxcc3SM_KA
- throwawaykf05 11y ago
  I think that was more about trolls rather than big company shenanigans. In any case there are some errors in that video that I pointed out in a previous comment: https://news.ycombinator.com/item?id=9442161 https://news.ycombinator.com/item?id=9442161
fu9ar 11y ago
Honestly, if I was running a company that relied on IP, I'd be worried that Congress will probably fuck it up even worse.
- talmand 11y ago
  Well, one might say one of the goals of such a company is to get big enough to be able to pay, er influence, Congress to fuck it up for everybody else and leave you free to move forward.
  - fu9ar 11y ago
    If they are a publicly traded company it could be argued that lobbying Congress for beneficial legislation would be a part of their due diligence toward increasing stockholder value.
    - talmand 11y ago
      Yes, that could very well be true. As long as the lobbying is done in a legal manner, which sometimes it is not. But my comment was probably more correctly aimed at Congress than at companies.
fixxer 11y ago
Seems like the America Invents Act has created a great opportunity for a non-profit to organize lawyers/law students with engineers for purpose of filing briefs to dismantle the massive pile of software patents out there. I could see it as a grass roots/crowdsourcing effort. Does anyone know of any such org?
- TheDong 11y ago
  The 'patents' section of stack exchange was made to do something sorta like this. See the original blog post announcing it: http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack-exchange-to-prevent-bad-patents/ http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack...
nfc 11y ago
Wouldn't it make sense for small companies to commit their patents to a mutual "patent fund" that would protect them in case they are sued?, are there legal reasons why this has not been done? An ideal version of this mechanism would work like this: once you commit a patent to the fund you can not use it offensively in the future (to avoid worsening the problem), but you'll be protected by the "patent fund" when someone sues you. The sum of the patents of lots of small companies could quickly be enough to deter most suers that are not patent trolls. Disclaimer: I'm not american so my knowledge of the patent system is quite superficial, perhaps a similar mechanism already exists?
- thfuran 11y ago
  But there's really no point in a patent if it can't be used offensively - by which I assume you mean filing a suit on the grounds of infringement of the patent. If you waive that right, then everyone is free to infringe your patent with impunity.
  - icebraining 11y ago
    The point of the patent would be to counter-sue in case of a lawsuit being initiated against them. That said, I'm not sure it'd help much, since AFAIK patent trolls don't have much to get sued for.
    - nfc 11y ago
      It certainly wouldn't protect against patent trolls, more against the big companies the article is talking about. I don't know enough about the american patent system as to know whether such a system would help much with those.
- glesica 11y ago
  One problem with this is that most companies that are small today hope to be large tomorrow. "Small" is not an intrinsic characteristic of most companies (at least most companies that would have patents), so there is little incentive for them to band together based on that characteristic.
bnolsen 11y ago
The US congress was supposed to be made up of ordinary citizens who part of the time lived at home in their districts. ran their businesses and affairs and occasionally went to vote on federal government issues. What we have is a political class that only does law and politics. Most of them look down on those of us who have to actually work and produce to make a living. Small business individually have almost no revenue or clout compared to these larger entities even though collectively we are the ones who represent most of the economy (or should be representing almost all of the economy if it's healthy).
- frozenport 11y ago
  >>The US congress was supposed to be made up of ordinary citizens who part of the time lived at home in their districts. Consider the 1790s when it would take a few weeks to travel from DC to the Ohio valley.
- bpodgursky 11y ago
  There's actually a strong argument that the current congressional gridlock is due to representatives / senators flying into Washington Monday morning and flying back home thursday night, leaving very little time for casual conversations or backroom negotiations (which are vital to actually getting anything passed, as dirty as it sounds) The original pattern setup might have been better, where congressmen moved to Washington for 4-6 months a year along with their families, because there was no other option. But it's harder now to do that with working spouses, and also because they would be eviscerated by challengers locally as being permanent Washington elitists.
  - shit_parade2 11y ago
    Every member of congress fund raise every day, sometimes going to multiple fundraising events in a single day. Congress is bought and paid, believing otherwise is to ignore the obvious.
    - bpodgursky 11y ago
      How is this relevant?
throwawaykf05 11y ago
Oh, I see binarybits is at it again! Just a few corrections: 1. Android makers don't necessarily pay Microsoft for patents on things that were invented in Windows Phone. They pay licenses for patents that relate to either a) computers in general, or b) that you could do on mobile devices in general. Examples include the infamous FAT patent, patents on low-level concurrency primitives, and patents on synchronizing calendar clients. "Good" patents? I don't know. But it's disingenuous to compare Android to Windows Phone because a) it implies Android is licensing stuff that came later, and b) from a product that is inferior, insinuating these patents are low quality. If I were uncharitable, I'd say Google ordered a hit piece after all the love Microsoft has been getting the past couple of days! 2. The "billions of dollars spent on patents instead of hiring engineers" argument is a red herring. Firstly, these companies cannot find enough "good" engineers to hire, which is why they're lobbying for more H1s. Is their bar too high? Maybe. Or they may justly be concerned about allowing a "bozo explosion". And even if they did hire more engineers, they still have billions of dollars left over. Patents are designed to be a risk to those that would not reward inventions they practice, and reducing risk to the company is a fine way of spending that money, 3. Using these patents to crush future competition? These companies can more easily crush competition by buying them up rather than suing them. A 2009 study found only a small fraction of lawsuits involve large companies suing smaller ones: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 - and I would bet none of the large tech companies would risk the PR fallout. 4. There is no "patent litigation crisis", just increased media coverage of litigation that is more or less in line with historical rates. Less than 2% of active patents are ever asserted and only a fraction of a percent ever make it to trial. See studies by Mark Lemley, for instance. The "smartphone wars" were just a drop in the bucket of all other patent litigation that happens. In fact there were higher rates of litigation in history when major technical developments happened: http://papers.ssrn.com/sol3/papers.cfm?abstract_id= http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
- chrisbennet 11y ago
  Good info. I have a different take on #2. "2. The "billions of dollars spent on patents instead of hiring engineers" argument is a red herring. Firstly, these companies cannot find enough "good" engineers to hire, which is why they're lobbying for more H1s. " They can't find enough good engineers at below market price. If you could find a good engineer if you paid 1 million dollars, than the "market price" lies somewhere between what you are offering and 1 millions dollars i.e. the price at which you can purchase a commodity on the market. If I can't find enough gold at $1000 an ounce I wouldn't be correct in saying that "I can't find gold". (The market now is ~$1200 oz.)
pinaceae 11y ago
where is the problem? which startup has been killed by patents? given that the US has the most successful entrepreneurial system - what exactly makes this a huge problem?
- dadkins 11y ago
  http://www.businessinsider.com/the-story-of-the-greatest-shopping-technology-that-never-was-2011-4 http://www.businessinsider.com/the-story-of-the-greatest-sho...
- MCRed 11y ago
  You ask a good question. I've seen a lot of people express fear. I've seen a lot of claims about startup being killed by patents.... but I've never seen it happen. I've been involved in a bunch of startups over the past 30 years. I have a patent myself and was involved in several others. I'm not aware of any of these patents (Which are now owned by a large company) ever being asserted (I presume that if it were at some point I'd be contacted as the inventor? It's pretty fundamental.) I have, however, gotten cease and desists based on trade mark. I had a name that was of the type Adjective-Adverb. A company claimed it owned all use of the Adverb word because they'd registered some other two word name that included the same word. I Thought it was hilarious. They weren't even registered in the same business area as I was operating-- yet they sent me several 30-40 page threatening letters and "license agreement/settlement" contracts for me to sign via FedEx. I just tossed them and laughed.
  - jacquesm 11y ago
    Your assumption that people that start start-ups are stupid is wrong. People that start start-ups are in general smart enough to research the patent situation around their start-up idea and will look for greener pastures if they consider the patent situation too borked to try establishing a foot-hold or to navigate the patent minefield. It's not just the start-ups that you see that might be killed it's all those that you never get to see or hear about in the first place, killed before they ever left the drawing board. Start-up founders are savvy enough to take patents into consideration when they embark on a new venture, to do otherwise would be extremely foolish. As for whether or not patents can kill companies, I've been on the receiving side of these suits and were it not for the fact that I had a main office in a country that is a bit more down-to-earth when it comes to legislation it would have certainly killed the start-up I was CEO of.
CodeSheikh 11y ago
Either get rid of the patent system altogether. All innovations eventually do good to the mankind. Or we need to form a patent review committee primarily composed of people with great track records. Pick professors, company leaders (like Elon Musk, political leaders, graduate students and average consumers. This committee should be tasked to review all of the patents and purge the ones that are too generic in nature. Reduce the patent age from 100 years to a decade. Change this committee every year and their doings should be VERY transparent. A public facing website where they publish their reviews.
- joshuapants 11y ago
  > Reduce the patent age from 100 years to a decade. I think you have patents and copyright mixed up there. Might be a good idea to learn more about this topic before developing an opinion.
- ahomescu1 11y ago
  > Reduce the patent age from 100 years to a decade. The duration of a patent in the US is 17 years, AFAIK.
  - logfromblammo 11y ago
    That duration was measured by a legal clock rather than a natural clock. Because of that, since 1995, it has been 20 years from filing; prior to that it was 20 years from filing OR 17 years from issue. That enabled "submarine patents", wherein the applicant could intentionally delay consideration of the application to extent the period of market exclusivity. Design patents have a shorter term, but no one cares how long they last because they are largely worthless, and more like trademarks than actual patents.
josefresco 11y ago
I was under the impression (maybe it's wrong), that good deal of US company value is tied to patents, and IP in general. Reforming the patent system would effectively destroy, or reduce the value of these (in some cases very large and important) patents and therefore harm businesses in the short term. This doesn't seem like something Congress, or US lawmakers would be addressing with gusto.

201 points by __Joker 11y ago

Investors, as well, have been forcing startups to feed the patent beast. Gotta keep your tech "defensible" after all!

This is also subject in this piece with John Oliver: https://www.youtube.com/watch?v=3bxcc3SM_KA https://www.youtube.com/watch?v=3bxcc3SM_KA

throwawaykf05 11y ago
I think that was more about trolls rather than big company shenanigans. In any case there are some errors in that video that I pointed out in a previous comment: https://news.ycombinator.com/item?id=9442161 https://news.ycombinator.com/item?id=9442161

fu9ar 11y ago

Honestly, if I was running a company that relied on IP, I'd be worried that Congress will probably fuck it up even worse.

talmand 11y ago
Well, one might say one of the goals of such a company is to get big enough to be able to pay, er influence, Congress to fuck it up for everybody else and leave you free to move forward.
- fu9ar 11y ago
  If they are a publicly traded company it could be argued that lobbying Congress for beneficial legislation would be a part of their due diligence toward increasing stockholder value.
  - talmand 11y ago
    Yes, that could very well be true. As long as the lobbying is done in a legal manner, which sometimes it is not. But my comment was probably more correctly aimed at Congress than at companies.

fixxer 11y ago

Seems like the America Invents Act has created a great opportunity for a non-profit to organize lawyers/law students with engineers for purpose of filing briefs to dismantle the massive pile of software patents out there. I could see it as a grass roots/crowdsourcing effort. Does anyone know of any such org?

TheDong 11y ago
The 'patents' section of stack exchange was made to do something sorta like this. See the original blog post announcing it: http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack-exchange-to-prevent-bad-patents/ http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack...

nfc 11y ago

Wouldn't it make sense for small companies to commit their patents to a mutual "patent fund" that would protect them in case they are sued?, are there legal reasons why this has not been done? An ideal version of this mechanism would work like this: once you commit a patent to the fund you can not use it offensively in the future (to avoid worsening the problem), but you'll be protected by the "patent fund" when someone sues you. The sum of the patents of lots of small companies could quickly be enough to deter most suers that are not patent trolls. Disclaimer: I'm not american so my knowledge of the patent system is quite superficial, perhaps a similar mechanism already exists?

thfuran 11y ago
But there's really no point in a patent if it can't be used offensively - by which I assume you mean filing a suit on the grounds of infringement of the patent. If you waive that right, then everyone is free to infringe your patent with impunity.
- icebraining 11y ago
  The point of the patent would be to counter-sue in case of a lawsuit being initiated against them. That said, I'm not sure it'd help much, since AFAIK patent trolls don't have much to get sued for.
  - nfc 11y ago
    It certainly wouldn't protect against patent trolls, more against the big companies the article is talking about. I don't know enough about the american patent system as to know whether such a system would help much with those.
glesica 11y ago
One problem with this is that most companies that are small today hope to be large tomorrow. "Small" is not an intrinsic characteristic of most companies (at least most companies that would have patents), so there is little incentive for them to band together based on that characteristic.

bnolsen 11y ago

The US congress was supposed to be made up of ordinary citizens who part of the time lived at home in their districts. ran their businesses and affairs and occasionally went to vote on federal government issues. What we have is a political class that only does law and politics. Most of them look down on those of us who have to actually work and produce to make a living. Small business individually have almost no revenue or clout compared to these larger entities even though collectively we are the ones who represent most of the economy (or should be representing almost all of the economy if it's healthy).

frozenport 11y ago
>>The US congress was supposed to be made up of ordinary citizens who part of the time lived at home in their districts. Consider the 1790s when it would take a few weeks to travel from DC to the Ohio valley.
bpodgursky 11y ago
There's actually a strong argument that the current congressional gridlock is due to representatives / senators flying into Washington Monday morning and flying back home thursday night, leaving very little time for casual conversations or backroom negotiations (which are vital to actually getting anything passed, as dirty as it sounds) The original pattern setup might have been better, where congressmen moved to Washington for 4-6 months a year along with their families, because there was no other option. But it's harder now to do that with working spouses, and also because they would be eviscerated by challengers locally as being permanent Washington elitists.
- shit_parade2 11y ago
  Every member of congress fund raise every day, sometimes going to multiple fundraising events in a single day. Congress is bought and paid, believing otherwise is to ignore the obvious.
  - bpodgursky 11y ago
    How is this relevant?

throwawaykf05 11y ago

Oh, I see binarybits is at it again! Just a few corrections: 1. Android makers don't necessarily pay Microsoft for patents on things that were invented in Windows Phone. They pay licenses for patents that relate to either a) computers in general, or b) that you could do on mobile devices in general. Examples include the infamous FAT patent, patents on low-level concurrency primitives, and patents on synchronizing calendar clients. "Good" patents? I don't know. But it's disingenuous to compare Android to Windows Phone because a) it implies Android is licensing stuff that came later, and b) from a product that is inferior, insinuating these patents are low quality. If I were uncharitable, I'd say Google ordered a hit piece after all the love Microsoft has been getting the past couple of days! 2. The "billions of dollars spent on patents instead of hiring engineers" argument is a red herring. Firstly, these companies cannot find enough "good" engineers to hire, which is why they're lobbying for more H1s. Is their bar too high? Maybe. Or they may justly be concerned about allowing a "bozo explosion". And even if they did hire more engineers, they still have billions of dollars left over. Patents are designed to be a risk to those that would not reward inventions they practice, and reducing risk to the company is a fine way of spending that money, 3. Using these patents to crush future competition? These companies can more easily crush competition by buying them up rather than suing them. A 2009 study found only a small fraction of lawsuits involve large companies suing smaller ones: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 - and I would bet none of the large tech companies would risk the PR fallout. 4. There is no "patent litigation crisis", just increased media coverage of litigation that is more or less in line with historical rates. Less than 2% of active patents are ever asserted and only a fraction of a percent ever make it to trial. See studies by Mark Lemley, for instance. The "smartphone wars" were just a drop in the bucket of all other patent litigation that happens. In fact there were higher rates of litigation in history when major technical developments happened: http://papers.ssrn.com/sol3/papers.cfm?abstract_id= http://papers.ssrn.com/sol3/papers.cfm?abstract_id=

chrisbennet 11y ago
Good info. I have a different take on #2. "2. The "billions of dollars spent on patents instead of hiring engineers" argument is a red herring. Firstly, these companies cannot find enough "good" engineers to hire, which is why they're lobbying for more H1s. " They can't find enough good engineers at below market price. If you could find a good engineer if you paid 1 million dollars, than the "market price" lies somewhere between what you are offering and 1 millions dollars i.e. the price at which you can purchase a commodity on the market. If I can't find enough gold at $1000 an ounce I wouldn't be correct in saying that "I can't find gold". (The market now is ~$1200 oz.)

pinaceae 11y ago

where is the problem? which startup has been killed by patents? given that the US has the most successful entrepreneurial system - what exactly makes this a huge problem?

dadkins 11y ago
http://www.businessinsider.com/the-story-of-the-greatest-shopping-technology-that-never-was-2011-4 http://www.businessinsider.com/the-story-of-the-greatest-sho...
MCRed 11y ago
You ask a good question. I've seen a lot of people express fear. I've seen a lot of claims about startup being killed by patents.... but I've never seen it happen. I've been involved in a bunch of startups over the past 30 years. I have a patent myself and was involved in several others. I'm not aware of any of these patents (Which are now owned by a large company) ever being asserted (I presume that if it were at some point I'd be contacted as the inventor? It's pretty fundamental.) I have, however, gotten cease and desists based on trade mark. I had a name that was of the type Adjective-Adverb. A company claimed it owned all use of the Adverb word because they'd registered some other two word name that included the same word. I Thought it was hilarious. They weren't even registered in the same business area as I was operating-- yet they sent me several 30-40 page threatening letters and "license agreement/settlement" contracts for me to sign via FedEx. I just tossed them and laughed.
- jacquesm 11y ago
  Your assumption that people that start start-ups are stupid is wrong. People that start start-ups are in general smart enough to research the patent situation around their start-up idea and will look for greener pastures if they consider the patent situation too borked to try establishing a foot-hold or to navigate the patent minefield. It's not just the start-ups that you see that might be killed it's all those that you never get to see or hear about in the first place, killed before they ever left the drawing board. Start-up founders are savvy enough to take patents into consideration when they embark on a new venture, to do otherwise would be extremely foolish. As for whether or not patents can kill companies, I've been on the receiving side of these suits and were it not for the fact that I had a main office in a country that is a bit more down-to-earth when it comes to legislation it would have certainly killed the start-up I was CEO of.

CodeSheikh 11y ago

Either get rid of the patent system altogether. All innovations eventually do good to the mankind. Or we need to form a patent review committee primarily composed of people with great track records. Pick professors, company leaders (like Elon Musk, political leaders, graduate students and average consumers. This committee should be tasked to review all of the patents and purge the ones that are too generic in nature. Reduce the patent age from 100 years to a decade. Change this committee every year and their doings should be VERY transparent. A public facing website where they publish their reviews.

joshuapants 11y ago
> Reduce the patent age from 100 years to a decade. I think you have patents and copyright mixed up there. Might be a good idea to learn more about this topic before developing an opinion.
ahomescu1 11y ago
> Reduce the patent age from 100 years to a decade. The duration of a patent in the US is 17 years, AFAIK.
- logfromblammo 11y ago
  That duration was measured by a legal clock rather than a natural clock. Because of that, since 1995, it has been 20 years from filing; prior to that it was 20 years from filing OR 17 years from issue. That enabled "submarine patents", wherein the applicant could intentionally delay consideration of the application to extent the period of market exclusivity. Design patents have a shorter term, but no one cares how long they last because they are largely worthless, and more like trademarks than actual patents.

josefresco 11y ago

I was under the impression (maybe it's wrong), that good deal of US company value is tied to patents, and IP in general. Reforming the patent system would effectively destroy, or reduce the value of these (in some cases very large and important) patents and therefore harm businesses in the short term. This doesn't seem like something Congress, or US lawmakers would be addressing with gusto.