Fighting The Patent Trolls

from the recognizing-the-problem dept

It looks like tech companies are finally recognizing just how much patent trolls harm innovation. However, the opinion piece, by an (obviously biased) IP VP from HP (say that six times fast), doesn't really do a very good job of coming up with an answer to the problem. He says we need to "define patent trolls" in order to stop them, but that can become a slippery slope very quickly. Patent trolls, clearly, are not in the game to promote innovation, but to hold up those who are innovating -- in order to get money out of them. However, it's difficult to prove intent, and you could make a case where an inventor who actually did invent something would do the same actions as a patent troll in going up against a company who really did take his or her idea. The real answer isn't in separating out the patent trolls, but in drastically narrowing down the definition of what's patentable. In almost every case, the costly patent litigation suits aren't cases of one company "taking" the idea of some inventor, but where the idea was the natural progression of the space. In other words, it shouldn't have been patented in the first place. So, what's really needed is, first, a recognition that granting a patent is granting a very powerful monopoly and should only be given in the rarest of cases -- and, second, a much better test for obviousness, to make sure that patents aren't granted for the natural progression in a market, but only for truly breakthrough ideas that are non-obvious to the skilled practitioner.
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  • identicon
    Bill, 12 Oct 2005 @ 10:07am

    How about this

    How about you have to demonstrate a working model to get a patent.

    reply to this | link to this | view in chronology ]

    • identicon
      Miranda, 18 Oct 2005 @ 11:41am

      Re: How about this

      That won't help against patented prior-art, which is unfortunately common. Or against patented ideas that are very simple. For instance, IBM has a patent on the idea that there is an area of your screen, such that if you move your cursor into that area, it changes colour.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Oct 2005 @ 12:26pm

        Re: How about this

        Er, that last posting of mine was meant to be a reply to Bill's idea that you have to demonstrate a working model to get a patent. Sorry if that wasn't clear.
        Mike, I disagree that monopolies are always bad for the economy or for innovation. In some industries (eg. steel processes, pharma) the costs of R&D are so enormous that it takes decades of monopoly returns to recoup them. So without a chance of the limited monopoly given by patents there might be no innovation at all in those industries.
        However in the software industry most of what you'll ever earn on a product is earned in the first 6 months, so you might argue that after the first 6 months a software patent hinders rather than helps innovation.

        reply to this | link to this | view in chronology ]

  • identicon
    Scott Taggart, 12 Oct 2005 @ 10:28am

    Patent Trolls

    Well said and right on the money. Patenting s/w has made no sense since it started with unix 30 years ago.

    Scott

    reply to this | link to this | view in chronology ]

  • identicon
    rightnumberone, 12 Oct 2005 @ 10:47am

    No Subject Given

    How exactly has "innovation" been deterred when a patent application has been filed and a patent awarded?

    You routinely confuse "innovation" with "marketing."

    The innovation has already occurred. Marketing and production may not have occurred, but innovation certainly has occurred.

    Patents keep big companies from stealing ideas from little companies.

    If big companies want to market and sell other people's ideas, they must pay royalties.

    Big companies don't want to pay royalties because it's much easier to just stroll through all the patent applications, find an idea by an underfunded inventor, and steal the idea. That way, the big company can make millions (if not billions) off the invention, and then fight the inevitable patent infringement suit later with the profits, ultimately settling for much less than it would have cost them to come up with the idea in the first place.

    That's why RIM and other companies are losing their patent battles. They are intellectual property thieves, and courts rightly recognize this.

    reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 12 Oct 2005 @ 11:19am

      Re: No Subject Given

      No, it seems that you may be confusing "inventing" with "innovation." Innovation is in creating a product that people actually want, and, yes, that involves marketing.

      And, the number of times that patent trolls have sat back and waited for a company to actually introduce the next obvious iteration of a product... and then sued, are too numerous to mention. That's not "stealing" an idea. It's innovating and giving the market what they wanted.

      So, fine, if there's a clear case of a company actually "taking" an innovative idea that was patented -- and using that info to create a product, I might agree with you. But, the situation I'm discussing happens way too often. People aren't patenting new ideas. They're patenting obvious ones, and then suing whoever they can, because they also came up with the same obvious idea and actually brought it to market.

      Do you see why that's harming innovation? Do you see why that's harming the market? It's making it incredibly costly to actually innovate -- and the only people getting rich are the lawyers.

      As for RIM... you're way off base there. Have you looked at that case? RIM didn't "steal" any idea. They just got caught by doing something right, and someone who did NOTHING with an idea jumped up to sue them. That's bad for innovation and it's bad for the market.

      reply to this | link to this | view in chronology ]

      • identicon
        Chip Venters, 13 Oct 2005 @ 5:27am

        List of future "obvious" inventions

        Mike,

        I renew my challenge to you and your readers to list all of the "obvious" innovations that will take place in software and the Internet for the next five years. After listing these obvious innovations, provide a short explanation on how they will work, key technologies and processes involved and new markets created. This can be techdirt's material contribution to the patent problem since hindsight regarding "obviousness" is too easy, and would not hold up in patent court.

        reply to this | link to this | view in chronology ]

        • icon
          Mike (profile), 13 Oct 2005 @ 7:56am

          Re: List of future

          Chip,

          Do you simply ignore every time we respond to this and point out why that's not the point?

          It's not about the general audience predicting everything or anything. It's about those who are in the space taking the *next* (not 5 years worth) of logical steps and being able to successfully bring them to market.

          Let the market compete, not have someone patent something, sit on it, wait until a company actually does the real innovation and brings it to market -- and then sue them.

          That's not innovation.

          Your "challenge" is pointless and distracting from the real issue.

          reply to this | link to this | view in chronology ]

  • identicon
    General Paten, 12 Oct 2005 @ 5:57pm

    The Paten Brigade

    I think I'm going to paten paragraphs, and sentences. I could make bizillions in just a matter of hours!

    ooh! And what about letters arranged in specific sequences so that they can be interpreted as things like names and actions!

    reply to this | link to this | view in chronology ]

  • identicon
    patent troll, 17 Oct 2005 @ 5:47pm

    There are no patent trolls, just some bad patents

    Hey, Mike, whoever you are...
    (I hope you are not on those big infringer's payroll)

    There are no patent trolls, just people defending
    their intellectual property.
    Occasionally, PTO issues some bad patents.
    It happens. and then everybody starts screaming
    when those patents get enforced by private
    individuals and call them "patent trolls"
    Just relax.
    It will all sort out by itself throigh the courts.

    There is no need to change any laws.
    This can do more harm than good for real innovation (which has nothing to do with profits
    of those mega-corps like HP ...)

    reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 17 Oct 2005 @ 10:37pm

      Re: There are no patent trolls, just some bad pate

      Hmm. It's pretty clear who I work for. I work for Techdirt. So, no, I'm not on the "big infringer's payroll." We're a small company ourselves.

      And, sorry, yes, there are patent trolls. There are LOTS of companies these days that have no interest in innovating. They have no interest in anything other than suing companies that do innovate, because they happen to hold a patent that might, in some way, in some vague language cover REAL innovation that some other company (big or small) is doing.

      And that HARMS innovation. Big time.

      "Sorting itself out through the courts" is A HUGE WASTE OF MONEY. That's the PROBLEM. It means that the companies who actually do innovate are wasting millions in legal fees fighting off patent trolls and bogus patents when that money could go to new innovation. It's a big problem, and it risks serious harm to the US economy.

      reply to this | link to this | view in chronology ]

      • identicon
        patent troll, 18 Oct 2005 @ 6:23am

        Re: There are no patent trolls, just some bad pate

        You seem to confuse innovation with manufacturing
        and invention with actual products.
        Those are different animals and should be treated
        differently.
        The Founding Fathers were not
        so stupid after all when they wrote in the
        Constitution "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
        Just where does it mention actual products or profits of large companies like HP ?
        Most modern high-tech products include dozens if
        not hundreds of patented inventions.
        If you are an independent inventor or a small
        startup with just one or two patents you simply
        cannot produce any products without infringing
        on other patents.
        Patent is not a right to produce something,
        it is a right to exclude others from producing
        patented invention.
        Thus, so called patent trolls do the right thing - they just make those companies respect patent
        system and level playing field for everybody.
        The only problem is when PTO mistakenly
        grants some obvious or overbroad patent and it subsequently gets enforced.
        But, hey, every system has its own types of abuses. Ever heard of ambulance-chasing lawyers or insurance fraud ?

        reply to this | link to this | view in chronology ]

        • icon
          Mike (profile), 18 Oct 2005 @ 6:41am

          Re: There are no patent trolls, just some bad pate

          Ok. This is just silly. You actually believe that "excluding" others from producing something is good for our economy?

          That's the problem. It's granting monopolies, and monopolies are inefficient, and inefficiency is bad for the economy.

          reply to this | link to this | view in chronology ]

          • identicon
            patent troll, 18 Oct 2005 @ 7:20am

            Re: There are no patent trolls, just some bad pate

            Mike, can you read ?
            Read it again:
            "To promote the Progress of Science and useful Arts,
            by securing for limited Times to Authors and Inventors
            the exclusive Right to their respective Writings and Discoveries"
            Just where does it say about economy ?
            Scientific progress is not the same as economy.
            Patent is a time-limited monopoly granted by
            the government in exchange for open publication
            of the patented idea, process, etc.
            Otherwise it would stay a trade secret, thus
            resulting in slowing down of scientific progress
            in the long term perspective.
            You should educate yourself a little better about
            these issues before discussing anything.

            reply to this | link to this | view in chronology ]

            • icon
              Mike (profile), 18 Oct 2005 @ 12:35pm

              Re: There are no patent trolls, just some bad pate

              Heh. Patent troll, not sure why you're getting so angry, but the entire point of the patent/intellectual property system is clear: to promote innovation for the sake of the economy. That's what it was about from the very beginning (yes, I know my history). I also know that Thomas Jefferson made it very clear that patents should only be given out in the *RAREST* of circumstances for exactly the reason I've been discussing. In creating a monopoly, it SLOWS down innovation.

              Let the products compete in the market where the MARKET can decide what they're worth. Not some patent attorney.

              reply to this | link to this | view in chronology ]

              • identicon
                patent troll, 18 Oct 2005 @ 1:23pm

                Re: There are no patent trolls, just some bad pate

                What do you have against patent attorneys?
                They are just helping their clients and they are
                smart for the most part, I would say
                much smarter than people currently running this
                country.
                Monopolies can be created without patents.
                Microsoft is a perfect example of how a mediocre
                company making third-rate products became a huge
                monopoly, without contributing anything important
                to e.g. computer science.
                At least with patents, I mean with *good patents*,
                limited-time monopoly is justified by the
                open publication of new and important discoveries
                or technical advances.
                Individuals and companies need some sort of
                incentive to openly publish their discoveries,
                at least in a capitalistic society.
                So patents are for here to stay (patent trolls too)

                reply to this | link to this | view in chronology ]

                • icon
                  Mike (profile), 19 Oct 2005 @ 12:23am

                  Re: There are no patent trolls, just some bad pate

                  The thing is, patents seem to be about the least capitalistic tool I can think of. It involves a government granted monopoly on something. That doesn't sound like capitalism. It sounds like something else entirely.... Capitalism is about markets.

                  Since you're so big on "history" and saying that patents are important, take a look at the history of the Netherlands and Switzerland. When did they see a ton of innovation? During the period when both countries did away with patents.

                  Seems like pretty good evidence that patents aren't necessary and they don't need to stay.

                  reply to this | link to this | view in chronology ]


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