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back to article US regulators seek public input on plan to investigate patent trolls

The US Federal Trade Commission is moving ahead – slowly – with plans to investigate the ways and practices of so-called Patent Assertion Entities (PAEs): patent trolls, to you and me. On Friday, the FTC voted unanimously to seek public comments on a proposal to gather information from "approximately 25 companies that are in the …

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Silver badge

Hunting trolls? You're doing it wrong!

They're just taking advantage of flaws in the patent system.

You want to get rid of trolls, FIX THE FRIGGIN' SYSTEM!

Set a system/procedures in place to actually check validity of a claim, not just let the courts clean up the mess later.*

Here's a unique step: Only the inventor can hold a patent! Patents should be non-transferable, period! You want to use it, pay him/her/it for the right to use it.

And the death blow? No software/process patents! If copyright can cover it, it shouldn't be patented.

*"Oh, but where will we ever find the money for this?" I dunno, maybe a couple less Abrams Tanks for the Military? You know, the ones that they don't want, but Congress insists they buy to keep the pork flowing?

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Re: Hunting trolls? You're doing it wrong!

"Prevention" in the US is a socialist/commie idea.

There's far more money to be made cleaning a mess.

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Anonymous Coward

Re: Hunting trolls? You're doing it wrong!

Only the inventor can hold a patent! Patents should be non-transferable, period! You want to use it, pay him/her/it for the right to use it.

A problem to individuals and small companies who can't afford to fight legal battles. And even a bigger problem to companies that fell on hard-times and need to sell some of their patents to raise some cash.

Patents trolls abuse the system, but it doesn't change the fact that the system is there for a reason.

Either way, I do hope that they will address software patents and simple design patents.

Obligatory: English isn't my native language, for please forgive my EngRish.

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Bronze badge

Re: Hunting trolls? You're doing it wrong!

Forgive your "EngRish?"

Of course. Fair is fair. Since equity and justice is not our national objective, perhaps you'll forgive our legal system. Also remember ... a "plan to investigate" should not be confused with intent to take action. Hearings, committees, and additional studies are little more than icing on the cake of obfuscation and delay.

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Big Brother

Re: Hunting trolls? You're doing it wrong!

"Prevention" in the US is a socialist/commie idea.

There's far more money to be made By Lawyers (who often later become politicians) cleaning a mess.

There fixed it for you.

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Re: Hunting trolls? You're doing it wrong!

You want to get rid of trolls, FIX THE FRIGGIN' SYSTEM!

Far more fun would be to let the large USA gun lobby have a go!

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Silver badge

Re: Hunting trolls? You're doing it wrong!

"Set a system/procedures in place to actually check validity of a claim, not just let the courts clean up the mess later.*"

The reason for this is that Congress allocates such a measely budget for them. Investigating patents requires people and costs time and money. How will the USPTO handle this on a literal shoestring budget?

"Here's a unique step: Only the inventor can hold a patent! Patents should be non-transferable, period! You want to use it, pay him/her/it for the right to use it."

Sometimes, the inventor is not in a position to market an idea. Put it this way. Hoover didn't actually invent a vacuum cleaner, but he bought the patent of a gentleman not in a position to market the idea. Selling a patent should be allowed, but it should ONLY be for the purposes of actually implementing the patent.

"And the death blow? No software/process patents! If copyright can cover it, it shouldn't be patented."

The thing is, software TECHNIQUES that explain things IN BROAD cannot be covered by copyright because one can use an alternate language or method to get around copyright. Patents are the only way to cover ALL instances. THAT BEING SAID, what's needed is an adjustment on the period of patents based on their pertinent industry. A 20-year patent in a slow-moving industry like heavy machinery or medicine makes sense, but for the fast-moving world of computers, a term of about 3-4 years makes more sense (think two generations of development in an industry--long enough to get some skin out of it, but not long enough to really abuse it). Other industries may benefit from an adjustment to their patent lengths as well.

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Holmes

"Investigating patents requires ... money"

Then the claimants should bear the full cost of that investigation (burden of proof). Obviously.

If their claims are proven false, then that not only protects the rest of us from their fraudulent monopoly, but also serves as a financial punishment and disincentive to make similarly fraudulent claims in the future.

Frankly I'm perplexed why the patent system hasn't always been that way. If people are going to make claims, then surely they need to prove them before they're legally supported.

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Silver badge

Re: "Investigating patents requires ... money"

It's not as simple as that. Consider the conditions for a patent: utility, not obvious and novelty. Now consider how you go about proving those things. Utility is probably the easiest to prove and also filters out mere ideas since the invention actually has to exist or at least be capable of existing to be useful. Non-obvious is somewhat harder but if it isn't prohibitively expensive one would think that obvious things would already exist. The hardest is, how do you prove novelty? Seriously, how do you go about proving prior art doesn't exist? For that matter, how do you prove anything doesn't exist? The answer is, you can't, not for all the money in the world. If you could, there would be a lot less religious strife.

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Mushroom

Re: "Investigating patents requires ... money"

Sorry, but I have zero sympathy for those who have "difficulty" claiming exclusive ownership of something that's unavoidably derivative, as all so-called "creations" and "inventions" are, and thus should never rightfully be owned exclusively.

Naturally they find it "difficult", but it shouldn't be incumbent upon the rest of us to either disprove their dubious claims or be subjugated by them, rather they need to to prove them, regardless of "difficulty". If it's that "difficult" then maybe they ought to consider that their claims lack any real merit and substance in the first place.

And yes, I fully appreciate the irony of having to disprove the existence of something unknown in order to prove uniqueness, but in practice the assertion that such things are "unknown" is largely disingenuous, and typically an outright lie.

Does Apple seriously expect us to believe that they'd never heard of rectangles before they claimed to have "invented" them, for example?

That is what passes for "invention" in today's opportunistic patent regime, and the claimants' protestations of "difficulty" amount to little more than the idiot defence.

Maybe in an ideal world, not populated by opportunistic conmen and corporate tyrants, we could assume good faith and give claims to "invention" the benefit of the doubt, but as things stand I don't see that we have any choice but to insist all claims are unequivocally proven, at the claimant's full expense, before granting them these monopolistic privileges.

In reality little if anything is ever genuinely "invented", so frankly these monopolistic privileges shouldn't exists at all, but if they absolutely must then they should be proved to the same degree as any claim in academia, or be bluntly rejected.

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Re: Hunting trolls? You're doing it wrong!

Elmer Fudd voice, "Shhh. Be wery wery quiet. I hunting Patent Twolls you know."

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Silver badge

Re: "Investigating patents requires ... money"

Oh, I'm not arguing that a lot of patents aren't shite. Consider patent 6,368,227 which was ultimately reexamined and had all claims cancelled but it's illustrative in that the absolutely dumbest shite gets put up and passed through. I agree that even a design patent, which is supposed to be purely ornamental, when applied to a rectangle with softened corners is crap because the fact that it is rectangular isn't ornamental, it has functional utility for encasing a rectangular screen. Perhaps a start would be to require that patents be written in a language that is comprehensible to a normal person and not only lawyers similar to the reasonable person test in jurisprudence.

I also don't think the patent system helps the average inventor since I have a friend who has several patents that make some company bucket loads of cash but it doesn't do him much good other than a notch or two on his resume and I had several non-work related ideas that I feel might be patent or copyright worthy but I'll be damned if I was going to hand it to my corporate overlords considering the response I got when I made the mistake of asking about whether my contract allowed spending my own time working an open source project. As a result, prior to being self employed it was fuck that noise and now they aren't relevant to my business so why waste the money.

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Stop

Re: Hunting trolls? You're doing it wrong!

"You want to get rid of trolls, FIX THE FRIGGIN' SYSTEM!"

HAHAHAHAHAHAHAHAHAHAHAHA.....Have you SEEN the state of the US patent system? Let alone the state of the US patent laws? The day shit like this gets fixed is the day I look in the sky for flying swine and/or take the temperature of the ground to see how cold it is. Sadly it'll never happen.

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Re: Hunting trolls? You're doing it wrong!

Only if they are not American...

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Childcatcher

Re: "Investigating patents requires ... money"

Ah yes, the infamous "Method of swinging on a swing" patent:

"The US swing patent does not match an Australian patent on the wheel for sheer absurdity. However, in that case, an Australian lawyer was able to sneak the wheel patent through a fast-track application system. The US patent went through the full application procedure."

Patent offices are little more than mindless vending machines, spitting out monopolies on utter trivia in exchange for cash, without any due diligence whatsoever. Meanwhile the rest of us have to clean up the mess, where that "mess" includes, in some extreme examples, fines of up to a billion US dollars and a draconian restriction of consumer choice.

It's a racket, and it needs to be abolished.

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Re: Hunting trolls? You're doing it wrong!

The state of the USA right now is so pathetic that nothing can be done to fix them . Right wing extremists and Tea Party terrorists are trying their damnest to shut the government down. Fix the patent system ? Right now they got way larger troubles handling political terrorists in their midst. They have their terrorists at home too to take care of.

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Silver badge

Re: Hunting trolls? You're doing it wrong!

"Only the inventor can hold a patent! Patents should be non-transferable, period! You want to use it, pay him/her/it for the right to use it."

I agree that this would a problem because many things these days are 'invented' by teams not individuals, and typically employees are contracted that anything they invent is property of their employer. What could work is that a patent is awarded in 2 parts - inventor + entity. The 'inventor' part has to be a human or named list of humans and can never be transferred. The 'entity' could be a company, but could also be the same as the inventor, and can be transferred. Individual + entity split proceeds evenly.

This makes it fairer to the individual inventor and a lot less lucrative to patent trolls (who would have to share half any revenue), while still making it possible to have the model of researchers who are funded by big companies or government labs.

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Thumb Up

Re: let the large USA gun lobby have a go!

I'd pay to see that!

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Windows

One name missing.

Let's hope that the FTC include Microsoft in their study.

After all it is claimed that MS make more money from Android than Winphone, but have you ever seen any mention of the patents that have been allegedly infringed? If that doesn't make MS a PAE I don't know what does.

Balmer should have added another phrase to his rabble raising this week. "Stand and deliver!"

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Re: One name missing.

Yes, the patents in question are Exchange Activesync, long filename support for the FAT file system, and the exFAT file system.

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Trollface

Trolls used to be found *only* under bridges

That's where they should stay.

Seriously.

Commentards of America.

It's your patent system these people are f**king about with.

"Software patents" that stole prior art know within the community for decades have stifled innovation. This investigation of these trolls won't fix the system, but it's a start

Make your feelings know. Tell the FTC what a waste of time and effort these trolls cause and the FUD they bring. Let's not forget SCO "patent" BS and how much they were funded by MS

And BTW they still seem to be going. How the f**k is that possible?

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Boffin

Re: Trolls used to be found *only* under bridges

US Patent system is inherently screwed by the inbuilt incentives:

1) patent office gets very little funding from government

2) AFAIK costs / payments are related to award of patent, not only application

3) there is no penalty to be paid by applicants for 'stupid' patents

Therefore patent examiners have all the incentive to award as many patents possible in the shortest time (meaning less thorough examination), while companies have all the incentive to throw as many patents as they can as quickly as they can at the patent office, and if any is rejected just tweak and re-apply ad-infinitum till it IS accepted.

Way to solve this is to change the incentives:

1) To apply for patent you need small upfront fee + large deposit/guarantee for 'good faith' application, meaning the applicant sincerely believes their patent is useful, non-obvious and innovative

2) patents can be either accepted, declined or rejected. Accepted ones get their deposit back. Declined (for minor issues with the patent) have the deposit held while the patent is tweaked/re-applied. Can only re-apply a declined patent twice (total 3 submissions). Rejected patent (serious issue or 3 X minor issue) forfeits the deposit to patent office, and needs a new deposit to re-apply.

3) Patent officers who reject a patent get to keep a small %age of the forfeited deposit

This way inventors are incentivised to only apply for patents that are seriously good (also reduces workload on patent office), patent officers incentive is to reject as many as possible to pocket bonuses (of course need a mechanism to prevent automatic rejection of every single patent). Small inventors with big ideas can have some sort of loan + insurance pool mechanism to afford the deposits.

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Re: Trolls used to be found *only* under bridges

"3) Patent officers who reject a patent get to keep a small %age of the forfeited deposit"

It'll never work. They'll just reject out of hand and become (like Congress) masters of contriving excuses. And due to human nature, you can't force the fairness into the system because humans are inherently corruptible. Yet you can't have anything-goes either or inventors will never develop for fear of copycatting (that's the main reason modern patents exist--to stop copycatting for a reasonable period).

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Silver badge

Am I missing something?

"to seek public comments on a proposal to gather information from "approximately 25 companies that are in the business of buying and asserting patents,"

Isn't this kinda like asking the wolves on what should be done to stop them from taking the chickens?

I *must* be missing something, because it sounds like they have no plans whatsoever to stop or even slow down the trolls.

Ah, there I go, I've answered my own question.

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Anonymous Coward

One of the worst.....

Intellectual Ventures which Gates has a hand in. There is of course that other company Gates is involved in that abuses the patent system.

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Anonymous Coward

Americans can be counted on doing the right thing, after they've exhausted every other possibility.

W.Churchill

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Microsoft and Apple are fooked with this!

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Bronze badge

Just DO IT! Get started, then ask for refinement input later.

It's like asking us whether or not fb and the NSA should be audited for sniffing fb accounts with assistance from fb, but collecting non-criminal accounts, lying about not doing so, and then... Well, you get the idea...

This will probably be an article up on el reg's wall any minute now, but, since it ties in with regulators and investigations:

http://www.nytimes.com/2013/09/29/us/nsa-examines-social-networks-of-us-citizens.html?nl=todaysheadlines&emc=edit_th_20130929

....

This CERTAINLY can help explain spurious, mysterious crashes, sluggishness, delayed or never-seen messages intended for foreign friends, dual-overlay-like feeling of pages in the browser... Maybe fb should just die, and everyone should go back to snail mail for about 3 years.

No, wait-check that... Postage prices would go up 3x, postal workers would be spared of competing evenly against commercial deliverers, and the NSA would have to hire 20,000 to 100,000 manual mail inspectors, and all our letters would be marked "We Care! We apologize that your mail was damaged in our conveyor/sorting system.

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Fix the system

This whole mess has been caused by software patents. Stop patenting software and the entire issue of patents becomes much more manageable.

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Re: Fix the system

Techniques CAN be patented. After all, you could implement the technique on a chip or a mechanism, making it hardware instead of software and mooting the point. The problem is the LENGTH of the patent because the software industry moves so quickly that two decades is about ten software generations. Cut the length down to about 3 or 4 years (and adjust the lengths for each industry as well) and it becomes a lot fairer.

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