back to article New US bill aims to zap patent trolls with transparency demands

The US Senate Judiciary Committee has recommended that the "Protecting American Talent and Entrepreneurship Act 6 of 2015" be accepted. The committee voted 16-4 in favour of the bill (Patent bill S.1137, PDF), which aims to reduce patent trolling and, it is said, uncover who is taking an action and why. The bill stipulates …

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Trollface

Or...

The US patent office could stop handing out stupid patents...

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WTF?

Re: Or...

You mean the world would be worse off without:

5443036 Method of exercising a cat

6505576 Pet Toy

6557495 Laser Pet Toy

6651591 Automatic laser pet toy and exerciser

6701872 Method and apparatus for automatically exercising a curious animal

all US patents on the idea of using a laser pointer spot as a toy for a cat to chase?

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Re: Or...

The problem is that the USPTO is funded by patent application fees. It's in their best interest to consider and award as many patents as possible.

Until the USPTO's funding system is changed they will continue to award patents for non-unique adaptations of prior works, and self-obvious uses on new technologies and screw us all with higher cost of goods and services.

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Re: Or...

"The problem is that the USPTO is funded by patent application fees. It's in their best interest to consider and award as many patents as possible."

Aren't the application fees nonrefundable, so they get the fees pass or fail? Meaning that's not really an incentive?

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Re: Or...

" It's in their best interest to consider and award as many patents as possible."

Try again. Having been through the patent process, I can assure you that there is a strong incentive in the patent office to deny patent applications (and, yes, the fees for application are non-refundable, so they get paid whether they grant or not).

The real problem is the rules the office operates under. The system has gone downhill ever since the idea that "business processes" could be patented was adopted.

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Re: Or...

"It's in their best interest to consider and award as many patents as possible."

Make them liable for the bad patents. That would change their interests.

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Re: Or...

Sorry, this should be:

AND!!!

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I'd hate to see some trolling venture capitalist lose his claim for "imaging technology"

A small company I worked for was absolutely freaked out when they got a formal notice saying they owed $$$ since they leased an HP multi-function capable of emailing faxes (or some such.)

When I looked up the troll's address it was a box in a mail room that also had hundreds of other businesses associated with it. I told the company to ignore it and it would go away - it did.

Stupid patents are one thing, Allowing shysters to bludgeon marks with stupid claims is another. I think any troll should need to put up a large sum of money (10 times demanded?) and be ready to forfeit if they lose the suit.

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Re: I'd hate to see some trolling venture capitalist lose his claim for "imaging technology"

I think any troll should need to put up a large sum of money (10 times demanded?) and be ready to forfeit if they lose the suit.

That won't work because it gives an unfair advantage to the megacorps - effectively saying Apple can sue me but I can't sue Apple because I can't afford the price of admission.

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Re: I'd hate to see some trolling venture capitalist lose his claim for "imaging technology"

I think any troll should need to put up a large sum of money (10 times demanded?) and be ready to forfeit if they lose the suit.

That would work except for one slight problem: not all infringement claims are trolling. It's already hard enough to wring money out of a major corporation that violates some independent inventor's patent because of legal fees. This idea would make it downright impossible for the little guys, the ones who need the patent protection the most, to enforce their patents. Sure, it'd stop trolls too, but at too high a price.

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Re: I'd hate to see some trolling venture capitalist lose his claim for "imaging technology"

Sure, it'd stop trolls too

I don't see how. The troll would just be a shell corporation, with no personal liability for the officers or employees (if any).

Yes, per the article, the PATEA6 proposes to prevent this by requiring all profiting parties be identified. That doesn't look airtight to me, and it would only help prevent profitable firms from creating shell corporations just for the purpose of suing for infringement - and even then, only if they wanted to profit directly from it.

Of course it's only a hypothetical point, since the mooted remedy would never be enacted.

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Geez, common sense legislation...

Whoda thunk it would come from a legislator>

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Linux

Bet it won't apply

To M$

The bill stipulates that claims must detail not just which patents are being infringed, but how.

I can't see them being forced to say which patents Linux infringes as how/why, it's much more profitable to just make threats when you know your legal budget it bigger than theirs.

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Re: Bet it won't apply

That was my thought as well. MS in particular has been using unknown patents for extortion. If they had declared the patents, then fine, that's their right since they have the patents (even if they're found invalid later). But not declaring them and threatening for a legal shakedown? Sounds to me like they could be prosecuted under RICO if any federal prosecutor wanted to. (hint - they won't)

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Re: Bet it won't apply

That was the first thing that occurred to me when I read this.

I can't wait for the end of Microsoft's income from Android. I can't believe that so many dumb companies fall in line and make ongoing blackmail payments to Microsoft, jsut for a vague promise that they won't sue at some unspecified time in the future for merely using some unspecified free/open source technology in Linux, that wasn't even written by Microsoft.

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Re: Bet it won't apply

"I can't believe that so many dumb companies fall in line and make ongoing blackmail payments to Microsoft..."

Why not? It's not really a problem, they just pass on the costs to the poor saps that actually foot the bill, i.e. us.

These characters don't want a long protracted fight, they just want to carry on squeezing all they can from their customers.

Remember it's all about the bottom line and having hordes of expensive lawyers eating away at the profits is not appealing to many businesses, though there are exceptions, like Newegg.

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Re: Bet it won't apply

> I can't wait for the end of Microsoft's income from Android.

That will come when their patents expire

> I can't believe that so many dumb companies fall in line and make ongoing blackmail payments to Microsoft ...

I can't believe someone would be so dumb as to believe that none of those companies had their own IP specialists and lawyers, and were actually paying valid licence fees for valid patents. The common one is the "long file names"* patent which IIRC has been examined quite closely - and I'm pretty sure that if there were any loopholes then some of the big boys would have quite happily squashed it.

* For the hard of remembering, under DOS (and it's FAT filesystem) files were originally limited to 8.3 characters (ie 8 characters for the name plus another 3 for the type). This was eventually considered "quite limiting", and longer file names were wanted. The problem is that it's easy to just do a new filesystem and add longer filenames, but that wouldn't be backward compatible with anything.

So MS came up with a clever mechanism that slotted longer filenames into the existing filesystem - so you could take your disk with "NICE KITTY PICTURE.JPG" and it would still be readable on older OSs (as something along the lines of NICE K~$.JPG").

The only way to do long filenames in a way that's compatible with DOS/Windows machines is to use the same encoding method MS came up with. Since that's patented, then that means if you produce anything that supports long file names on FAT disks then you are infringing on that patent unless you get a licence.

THAT is one of the patents which Android manufacturers are paying for, and legislation like this proposal will not change that.

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Re: Bet it won't apply

OK, we'll grant you that one, but given that the scheme was created for Windows 95 (so as to allow the system to compete on the LFN front with other systems like OS/2), the clock on that patent has got to be running out soon. And anything pertaining to LFN on NTFS is probably on a shorter clock if not already up because NTFS was developed with the original Windows NT, which is several years older than Windows 95.

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Childcatcher

Put the USPTO on the hook

The current patent system is geared to the lawyers to just mint money. I think the legislation proposed will help, but it doesn't address bogus patents being issued to start with.

They should make all the US claims have to get approved/disapproved by the USPTO before going to court proper. It would be cheaper on all sides that way (except for USPTO). If a patent is invalid, then make sure to dock the employee(s) that approved it. If they get X number of docks, then fire them. Then figure out how to give bonuses for approved patents which are valid. If the patent is validated and the USPTO thinks there is infringement, then let the lawsuits begin in earnest. Right now the courts are getting clogged with crap for months or years that the USPTO should be able to clarify within a week, since they are the ones that approved the patents to begin with...

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Re: Put the USPTO on the hook

The problems with your suggestion is eventually it would require hiring competent people at the USPTO which are not cheap and even though the USPTO generates income there is no way Republicans in Congress would boost the budget significantly of anything besides the Defense Department (and even that is no longer a sure thing). The only solution would be for patent applications to get a lot more expensive.

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nice idea but

Lets see it makes sense and reduces billable hours all around. No way it becomes law. The law exists these days so one set of lawyers can write it mostly for the benefit of all in the profession at the expense of all other professions.

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Has anyone noticed that it's another of those cheeky acronyms: the PATENT Act?

Anyway, in general I can see this as a few good steps, but perhaps more are needed.

One should be that patent terms vary by industry to account for fast-moving industries like electronics where product cycles rarely surpass a decade. Another should be that the plaintiff should only be allowed to sue if the patent they possess is in active use by them or by a contracted designee (like a licensee). IOW, you can't just sit on a patent. To sue on it, you have to be using it yourself.

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or, make the patent only apply to the original holder. They can license all day long, but make it so the patent cannot be sold. In the case of companies like Nortel that went bankrupt, they could choose to keep part of the business alive for patent revenue as part of restructuring, or all the patents would just expire. I'm sure there would be some unintended consequences for that, but at least patent trolls or groups of patent trolls wouldn't be buying patents off the carcasses of failed companies then.

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No, because what if the patent is the most valuable asset of a company under bankruptcy? Selling it could be the only way to emerge as a going concern rather than be liquidated (and it is in the interest of government to keep going concerns when possible--it's more stable that way). I think my idea's better. That way the patent can be sold if need be, but it's simply not enforceable unless it's actually implemented either directly or through a designee: much like that other thing the office regulates: the trademark.

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Pint

@Charles 9 ok, I will cede the point. :) If the patent is sold, but NOT applied, then it should not be enforceable. That would still allow for the assets of a major company whose only assets are patents (like Nortel), to have an orderly liquidation during a bankruptcy.

and since its Friday - here's a beer on me.

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"Another should be that the plaintiff should only be allowed to sue if the patent they possess is in active use by them or by a contracted designee (like a licensee)."

But if the inventor has a good patent and is trying but has not yet succeeded in finding a licensee then it's a free-for-all for anyone else to start exploiting the invention as neither of your conditions has been met.

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The actual inventor can produce a few prototypes. Since he has the patent with the intent to produce, he'd be motivated to do this. This can be taken into consideration. A troll would have to be pretty determined to put down for the costs needed to actually produce something, and the scale of the production run vs. the scale of the holder can be considered as well.

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If for example Nortel were to sell the patents along with the bit of the business that makes those inventions, would you be happy with that? People might be less willing to buy that bit of the business if they didn't get the associated patents.

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This I could see as a sensible proposition: both the patent and the means to implement it, on the condition they actually DO implement it.

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How will this impact MS going after Linux vendors?

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Microsoft's typical threat strategy is to simply say they're violating some of Microsoft's patents but never saying WHICH ones. Many of the Linux firms sues are hair-shirt and can't afford to take Microsoft to court over the matter which is right now the only way to force the patents out into daylight. There's a fair chance the patents are real and they'll lose, so it's too much of a gamble. If they're exposed BEFOREHAND, however, they can conduct their own research to see if the patent's worth fighting for BEFORE soliciting legal help.

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Holmes

Big step in the right direction

There's only one key thing I'd add to it, which is forbidding suing end-users EVER unless they continued using the technology AFTER the suit had been adjudicated in the plaintiff's favor and end users given notice. Otherwise, the end users should have no liability. I mean, is everyone expected to do weeks worth of patent research before they buy or lease a piece of equipment? What planet are these trolls from?

This reminds me of an old case. Back in the cameras-all-used-film days, Kodak came out with a camera that used self-developing film. It turned out that infringed on Polaroid's patents -- Polaroid sued and won. Nobody tried to sue end users. In fact, Kodak offered them some cash back or a new camera. That's how it should be.

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Re: Big step in the right direction

There's only one key thing I'd add to it, which is forbidding suing end-users EVER unless they continued using the technology AFTER the suit had been adjudicated in the plaintiff's favor and end users given notice.

If the case has been adjudicated in the plaintiff's favor, then the primary infringer is on the hook for paying the plaintiff for their loss. So the end-users should not owe anything, and since the infringing technology is now payed up, they should be able to continue using it.

The only situation in which it should be acceptable to sue an end-user for patent infringement is in that rare case where the end user is aware of the infringement as it happens and specifically chooses to start using the infringing technology.

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Anonymous Coward

Protecting American Talent and Entrepreneurship ... what's that, chopped liver?

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Anonymous Coward

Look at it this way:

Protecting American Talent and ENTrepeneurship Act.

Or the PATENT Act. Some in Congress can be very cheeky with their acronyms.

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