Patent trolling surges, but righteous cavalry on the way Patent trolling is a "cancer" that poses an "existential threat" to US business – especially startups – according to a panel of experts at last week's CES 2013. But there are plans in the works to fight back. "There's a great quote from Scientific American," congressman Peter DeFazio told his audience at a CES 2013 panel. " …
I found a video the other day of a talk given by Nathan Siedle, founder and CEO of SparkFun electronics. It would have to have the BEST take on (in this case hardware but it will work just as well with software) patents I have seen. It's definitely worth a watch..
http://www.youtube.com/watch?v=xGhj_lLNtd0
Open source and rejection of IP protection might work for Siedle - he talks about needing to innovate within 12 weeks to stay ahead of the copycats, and having hundreds if not thousands of products in his company's portfolio. That's great, but it's only to say that his company isn't what the patent system is designed to help.
Traditional products that require big investment and have long-term ROI schedules are not helped by such a laisez-faire attitude. If you are investing 6 or 7 figures into new product R&D and then a quality production set-up that will need to generate revenue for the next decade to be a worthwhile investment, the risk of cheap copycats that you have no effective legal recourse against is huge.
I have been involved in 'traditional' manufacturing, small steel working products, and development and bringing-to-market of products in that area. Very traditional stuff but stuff that there is great need for. The idea of open-sourcing all design IP and embracing the cheap rip-offs is ridiculous. There is no benefit to either us the developers and manufacturers, or the end-user, only downsides. For the end-user there is either the consequence, whether directly felt or not, of a) poor quality rip-offs flooding the market, or b) [more likely] we don't bother in the first place and the innovation/development never happens. To the extent that patents are not practical or enforceable, I assure you that situation (b) is happening constantly the world over.
Crying "open source" and "free" is no solution except in a very limited band of examples like that of SparkFun. What we should be talking about is the modernizing and improving of the patent system and the legal processes of enforcement.
You won't say that if you invent something worthwhile and invest your life's savings in it only to see it rapidly copied and ripped off by the competition.
It's the trolls who sit on obscure patents and ambush legitimate and innovative start-ups with protection-racket style litigation that are the problem.
If said start-up is ripping off their more inventive competition down the road, then they deserve the book thrown at them by the lawyers...
You WOULD say that if you had an idea that you came up with on your own and invested your life savings in, only to be clobbered so far into bankruptcy that you'll spend the rest of your life stacking shelves...thanks to a company you've never heard of who makes nothing and owns patents so broad they could apply to a mobile phone or pushchair equally.
>You won't say that if you invent something worthwhile and invest your life's savings in it only to see it rapidly copied and ripped off by the competition.
In that case you wouldn't be a NPE (non practising entity). The steps outlined by the congressman, such as giving a bond against the defendants costs, are not intended for people who invent things and want to develop them. Did you miss the second page of the article?
In that case you wouldn't be a NPE (non practising entity).
Yes, that was badmonkey's point. He was arguing against Steven Roper, who implied that patent lawyers, not NPEs, are the real problem. Your reply to badmonkey is at best irrelevant, if it doesn't actually support his post.
And you've already been upvoted twice for it. But then we already knew that reading for comprehension is not a requirement when discussing patents in the Reg forums.
Look, here's the thread again:
Steven Roper: The real problem is lawyers, amiright? Look, coat icon, to show it's all in good fun. Because what's more fun, or novel, than complaining about lawyers? Also my mother-in-law gives me a lot of grief. I'm here all week!
badmonkey: You might want one of those lawyers if you ever invent something. Maybe there's a difference between representing a patent troll and representing someone who does actual work.
heyrick: But I'm incapable of making such fine distinctions! And the Internet is only for hating!
Dave 126: Did you read the article? Because it mentions a bunch of things that are irrelevant to this discussion.
Assorted readers: [have nothing to contribute so click furiously on various thumb buttons]
The litmus test should be... "Does the company bringing this lawsuit currently, or have in the past, produce technology that this patent covers?" If the answer is no, then the litigant pays double the defendants costs and this patent is invalidated and unenforceable in any future lawsuit.
The patent should go to the Open Innovation Network, thus protecting other organisations from future threats (e.g. from the successful defendant). Basically...you troll, you will be open sourced.
If the court finds a patent to be invalid (e.g. poorly written or whatever) then the patent office should face censure, up to and including the people responsible losing their jobs. And if they can't be identified, you go to the management level (gross incompetence). And if you can't identify the managers, go to the executive layer.
The litmus test should be... "Does the company bringing this lawsuit currently, or have in the past, produce technology that this patent covers?" If the answer is no, then the litigant pays double the defendants costs and this patent is invalidated and unenforceable in any future lawsuit.
Sigh. If IP can't be transferred to NPEs, then its market is hugely restricted, which reduces its liquidity and value. That, in turn, reduces the value of the firm that creates it, making it that much harder for them to get funding, stave off bankruptcy, be acquired, etc.
Your brilliant proposal also removes much of the defensive value of patent portfolios, and so encourages more litigation. And it removes incentives for FRAND cross-licensing.
There are also NPEs that acquire patents based on applied research and then license them to practitioners, such as just about every research university anywhere. Oh look, you've just made those non-viable, because they can't enforce their licenses.
Predatory NPEs are a huge problem, but as with most problems, they aren't going to be solved by any proposal that fits on a bumper sticker. Honestly, whenever patents come up in a Reg story, it's like entering a room full of high-school sophomores.
A couple of quotes from the article:
we have taken our collective creativity and placed it in a lockbox, where the main benefactors are lawyers and profiteers
The legal profession will not give up this cash cow too easily.
The cost of a typical patent suit for us is about two-and-a-half million dollars
That's a lot of money, and it is effectively siphoned out of the productive economy. I wonder what would happen if all that money was used to develop new ideas instead squashing existing ones.
Taking out lawyers with guns... Curious that you cite a weapon that has achieved infamy because it has been so cloned (because of its simplicity and reliability). I think you're jesting, but remember the film The Fisher King:
"Jack Lucas (Bridges), a cynical, arrogant talk radio host, becomes suicidally despondent after his insensitive on-air comments inadvertently prompt a depressed caller to commit a mass murder at a popular Manhattan bar."
""DeFazio, I don't know what this goddamn organic stuff is, but if these people will stop bothering me, I'll vote for your amendment."
Words fail me. Surely as an elected representative, your DUTY is to find out what your constituents are on about, not to say " I'll vote for it if they stop bothering me"...
Somebody in power who gets it. So many of these charters / laws etc they try to push through with overaching statements that clearly aren't possible despite good intentions behind them. America finally has somebody with half a brain to realize this and start out small, small changes if positive can lead to bigger changes. Big changes that will never happen lead to nothing.
And on the topic of patent trolls, I'd rather see a change in legislation such that any court case regarding patents, if its the first case involving said patent, the patents validity should be decided before any court action.
I'll agree that a court may be able to read the Patentese easier than a real live human as it's similar to lawyeresque, I don't believe that they will understand anything about the technology. Most attorneys (and judges are attorneys that failed in private practice) are "technically challenged".
So many things that are patented these days are so esoteric as to be unexplainable. How is it possible to patent a microbe? A bit of software code? If somebody snaffles the whole of Photoshop, files off the serial numbers and sells it as something else, that's a bit obvious. A microbe that eats polyethylene and craps out crude oil is much more difficult to put a number plate on as there may be a couple of different ways of doing that trick. How does a court decide who's telling the truth and what the truth is on a subject that only two or three researchers know anything about?
I say that if a company's business model is to buy up patents and litigate, that's a troll and the patent should be nullified. The same should also happen if a company buys up a patent to prevent the technology from being used elsewhere. Chevron did that with NiMH batteries to keep them out of electric cars. The spirit of a patent is to allow a company to recoup it's R&D and make some profit on an idea and to allow inventors to profit from their designs. It's not to allow a bunch parasites to feed off of people that do real work!
I'd humbly submit that patent suits brought with the purpose of harming a competitor's ability to compete in the same market as you would also be trolling of a particularly disingenuous form.
Yes apple, I'm looking at you.
And before the appleists (there's less of them these days, I understand, from recent news) shout 'Samsung' or whatever, don't forget Samsung et al launched COUNTER suits and RESPONDED to apple's attacks...
And as the article noted, Samsung -as is MS or Google etc- is big enough,old enough and ugly enough to look after itself. The human concern is for the smaller companies without their resources. Apple have infringed (and ripped off) upon the IP of individuals in the past- but I'll leave you to find out how, since you don't seem to need any further encouragement. Like the other big companies, it has also commissioned work from companies (such as Frog Design, whose Hartmut Esslinger has a book of retrospective work out) , and bought start-ups for their tech and thus rewarded those innovators for their effort.
BIlls, bills and yet more bills is effectively sticking a plaster over what is clearly an infected wound.
When will they realise that they operate on the cancer and remove it? Stop granting patents on ideas, and grant them on demonstrable inventions... and no, swiping your finger on a touchscreen is not an invention!
>and no, swiping your finger on a touchscreen is not an invention!
No, but the methods of achieving that are. Who would have thought something that is simple for a user to understand isn't simple to create? A list of Fingerworks patents:
http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=0&f=S&l=50&TERM1=Fingerworks&FIELD1=AS&co1=AND&TERM2=&FIELD2=&d=PG01
"In Congress," he said apologetically, "there are five thousand bills introduced ... so if you want to have a bill you come up with a catchy name.
Couple that with a miserably short congressional term of two years, and you no longer wonder why nothing gets done there. There's a lot to be said for a four year elected government chamber and a Prime Minister chosen from the same chamber.
I would stop companies holding IP directly, if an idea can be said to be owned then it should be only by an individual or group of people who researched the idea and can prove via their notes that they did indeed document the idea first. For a company to control the IP they must continue to employ the researchers and pay an ammount of any profits into further research and a country based research fund. This fund to be a return on the cost of training up the innovators and for funding further pure research at acedemic institutions.
This would increase general innovation, promote research as a good career choice and move the money away from people who create nothing but trouble to those that do the work to improve the quality of life for everyone.
The IP would only be protected for a limited time and assessments of infringement would not become a legal issue until it was scientifically proven that the original concept and methods had been used without permission.
For companies it would not change that much they would still be able to control the ideas they invested in, for the researchers and education it would recognise their value and for the legal system it would reduce their load to that which they are qualified to deal with, i.e. how much money the claiment lost.
The research fund would be availible to help pay for student's research at academic insistutions, after all ideas come from our environment and at least in the UK the tax payer funds the training for innovators so private companies can send the profits abroad. This way the inventor and the country that provided the environment for innovation would own the idea and it could never be sold.
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