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(EFF)   New bill should (hopefully) make patent trolls a thing of the past. Marshall, Texas expected to be a ghost town within five years   (eff.org) divider line 102
    More: Hero, non-practicing entity, Peter DeFazio, startup company, Jason Chaffetz  
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4634 clicks; posted to Business » on 01 Mar 2013 at 10:40 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-03-01 09:37:25 AM
Eh, Marshall was already a thing of the past thanks to the AIA and its rules on joinder and forum selection. But this certainly seems to be a good step forward... it'd be nice if the bill was online anywhere, rather than just the EFF's 404 page.
 
2013-03-01 09:38:02 AM
 
2013-03-01 09:40:11 AM

Theaetetus: Ah, found it.


Scratch that... That's last year's attempt, which failed. At least one major change in this year's version is that it's not specific to computer-related inventions, but applies across all technologies. Which it should, both from a logical standpoint and because otherwise we'd violate a few treaties.
 
2013-03-01 10:17:16 AM
That took longer than it should've... It's up at Scribd.
 
2013-03-01 10:55:10 AM
In reality, loser pays wil just allow huge companies to walk over others patents.

The real answer is to just get rid of patents
 
2013-03-01 10:55:33 AM
I haven't looked at the bill, but as someone who represent giant generic manufacturers, i for one support a bill that would allow fee shifting in cases where invalidity is found . . . .
 
2013-03-01 11:00:16 AM

MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.


In reality, it likely doesn't even apply to huge companies since they're probably making and selling product.
 
2013-03-01 11:22:54 AM

MugzyBrown: The real answer is to just get rid of patents


You've obviously put a lot of thought into this.
 
2013-03-01 11:25:52 AM
As with most things, this could be fixed if the government simply enforced the laws currently on the books. Specifically, prior art restrictions.
 
2013-03-01 11:27:49 AM

MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.

The real answer is to just get rid of patents


For algorithms, anyway.  A patent should only be granted to an invention that you can see and feel.  Hell, IBM has even patented a process for obtaining patents.  They've gone meta.
 
2013-03-01 11:28:48 AM

Lost Thought 00: As with most things, this could be fixed if the government simply enforced the laws currently on the books. Specifically, prior art restrictions.


But just think of all the billable hours patent lawyers would lose if the patent office actually did its job.
 
2013-03-01 11:37:56 AM
I thought Drew laid out how to fight patent trolls?

1: Don't fight the patent, fight the infringement claim

2: Make clear that you either don't have the money or that you intend to spend the money making it as long and drawn out as possible in court

3: Never negotiate with terrorists
 
2013-03-01 11:41:02 AM

Theaetetus: MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.

In reality, it likely doesn't even apply to huge companies since they're probably making and selling product.


This.  Their use of a patent is to sell products or services employing the patented item, not sitting on the patent and litigating people who may have anything remotely similar to the probably vaguely defined patented item.
 
2013-03-01 11:41:42 AM

GoldSpider: You've obviously put a lot of thought into this.


The St. Louis Fed certainly did: The Case Against Patents (.pdf)
 
2013-03-01 11:44:12 AM

Marcus Aurelius: MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.

The real answer is to just get rid of patents

For algorithms, anyway.  A patent should only be granted to an invention that you can see and feel.


Why? The current patent act allows patenting of processes... why do you think that should be removed?

Hell, IBM has even patented a process for obtaining patents.  They've gone meta.

No, they haven't. They patented a method for granting varying privileges to a dynamic pool of assets. If anything, it's a process for collecting revenue from patents.
 
2013-03-01 11:46:39 AM

MadCat221: Theaetetus: MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.

In reality, it likely doesn't even apply to huge companies since they're probably making and selling product.

This.  Their use of a patent is to sell products or services employing the patented item, not sitting on the patent and litigating people who may have anything remotely similar to the probably vaguely defined patented item.


Well, except for Apple
 
2013-03-01 12:09:32 PM
I already patented subby's headline
 
2013-03-01 12:16:03 PM
It's an interesting idea, but they have to be careful with "loser pays".

What happens with "loser pays" lawsuits is that both sides are motivated to spend *whatever they have to* in order to win. Basically, with "loser pays", EVERY patent lawsuit is going to be like the SCO fiasco. Neither side is going to give up, ever, until every possible legal avenue is exhausted, and a judge finally says "Okay, this is over."

I see there is a provision that if the plaintiff is declared a "patent troll", they have to post a bond for the defendants legal fees. Which is a good idea. But how much is the bond for? It would have to be for tens of millions of dollars if the "patent troll" has deep pockets, or the "patent troll" will just outspend the defendant and win the case.

Still, it's a good first step. I hope it passes.
The real solution, however, is to end software patents entirely, and all "business process" patents.
 
2013-03-01 12:23:01 PM

realmolo: The real solution, however, is to end software patents entirely, and all "business process" patents.


Why should one or two areas of technology be singled out?
 
2013-03-01 12:31:22 PM

realmolo: It's an interesting idea, but they have to be careful with "loser pays".

What happens with "loser pays" lawsuits is that both sides are motivated to spend *whatever they have to* in order to win. Basically, with "loser pays", EVERY patent lawsuit is going to be like the SCO fiasco. Neither side is going to give up, ever, until every possible legal avenue is exhausted, and a judge finally says "Okay, this is over."

I see there is a provision that if the plaintiff is declared a "patent troll", they have to post a bond for the defendants legal fees. Which is a good idea. But how much is the bond for? It would have to be for tens of millions of dollars if the "patent troll" has deep pockets, or the "patent troll" will just outspend the defendant and win the case.

Still, it's a good first step. I hope it passes.
The real solution, however, is to end software patents entirely, and all "business process" patents.


What the bill really needs is "the patent troll pays if they brought the suit in bad faith." Obviously it would be subjective, but despite all the trolls out there, crazily enough there are also legitimate inventors/businessmen that have their patents infringed upon that wouldn't be able to fight large companies.
 
2013-03-01 12:35:33 PM
How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.
 
2013-03-01 12:38:30 PM

Theaetetus: Why should one or two areas of technology be singled out?


I'm sorry you feel your way of life is threatened, but patents do nothing but harm the economy
 
2013-03-01 12:50:32 PM

MugzyBrown: Theaetetus: Why should one or two areas of technology be singled out?

I'm sorry you feel your way of life is threatened, but patents do nothing but harm the economy


You didn't answer the question. My point is about a lack of consistency -  if you believe that "patents do nothing but harm the economy," then why aren't you suggesting that  all patents be abolished? Instead, you're only suggesting that that should happen in an area of technology important to you... which in fact raises the same bias issue you brought up.
Basically, it's hypocrisy.
 
2013-03-01 12:53:02 PM

stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.


That would tend to devalue small companies and make it tough for indies to exit.
 
2013-03-01 12:55:21 PM

MugzyBrown: Theaetetus: Why should one or two areas of technology be singled out?

I'm sorry you feel your way of life is threatened, but patents do nothing but harm the economy


Can't be serious, either trolling or that statement is broader than you intended it to be.
 
2013-03-01 01:06:10 PM

stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.


And how would small start ups ever attract venture capital?
 
2013-03-01 01:09:48 PM

sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?


By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?
 
2013-03-01 01:10:29 PM

Theaetetus: Marcus Aurelius: MugzyBrown: In reality, loser pays wil just allow huge companies to walk over others patents.

The real answer is to just get rid of patents

For algorithms, anyway.  A patent should only be granted to an invention that you can see and feel.

Why? The current patent act allows patenting of processes... why do you think that should be removed?

Hell, IBM has even patented a process for obtaining patents.  They've gone meta.

No, they haven't. They patented a method for granting varying privileges to a dynamic pool of assets. If anything, it's a process for collecting revenue from patents.


The patenting of processes has led to an explosion of silly assed patents is why.  If the patent office had the slightest conception of what "obvious" is, it would be one thing.

But they do obvious about as well as they do prior art.  If in doubt, let the lawyers fight it out.

/bill baby bill
 
2013-03-01 01:18:14 PM

stonicus: By having a product that can make money. Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone. That alone isn't enough to attract investors? Part of my business plan has to be "sell it all off to someone else"?


Well the trick with a lot of start ups, they tend to be brilliant at inventing the thing, but often are absolute shiat at production, marketing, distribution, management, human resources, scaling, and all the other things that make a business successful.  So if you are an investor, you wanna back a couple of nobodies who may have a cool thing, or a big extant company that has proven it can work?

This is not to say small start ups cannot become huge successes - the modern world is a testament to that, but VC money will get even flightier if it knows that the brilliant idea is locked into only one company, and if that company farks it up, the tech is dead.
 
2013-03-01 01:20:04 PM

stonicus: sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?

By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?


Unless you intend to raise enough money to build several factories in China and manage the material distribution chain, all built from scratch, then yes. Doing all of that is a waste of your creative talents. Leave those details to megacorp, while you go off to create several more great inventions over your life instead of struggling to put a single one into production.
 
2013-03-01 01:24:15 PM

sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?


By having a business plan that includes long-term stability and giving investors an operating profit that returns dividends and buying back whatever pieces of paper were issued? I'm not taking the "do away with patents" approach but I am sick to death of "start-ups" whose only viable business plan is to be bought by someone else. If you can't turn a profit you don't deserve to be in business.

Though I do think that patents should be transferrable. They have value and have a sunset provision. If they do away with the expiration like they did with copyright then I'll say eliminate patents.
 
2013-03-01 01:27:20 PM

BolloxReader: Though I do think that patents should be transferrable. They have value and have a sunset provision. If they do away with the expiration like they did with copyright then I'll say eliminate patents.


I should note that technically they haven't done away with the expiration.  as a de facto matter, on the other hand . . . .

theinfosphere.org
 
2013-03-01 01:29:33 PM

BolloxReader: By having a business plan that includes long-term stability and giving investors an operating profit that returns dividends and buying back whatever pieces of paper were issued? I'm not taking the "do away with patents" approach but I am sick to death of "start-ups" whose only viable business plan is to be bought by someone else. If you can't turn a profit you don't deserve to be in business.


As noted above, that is a heck of a lot of work.  So you have a couple kids out of MIT who could invent 50 honest to goodness new awesome things during their creative lifetime.  But instead, they invent 2 and spend the rest of their life managing a business (something they have no interest in).  Why would this be a good idea?

If you are an inventor and want it such that the sale of your company does not come with the IP you own, or voids that IP, you can make that happen through the magic of contracts.  Why make it a default rule?
 
2013-03-01 01:31:57 PM

Lost Thought 00: stonicus: sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?

By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?

Unless you intend to raise enough money to build several factories in China and manage the material distribution chain, all built from scratch, then yes. Doing all of that is a waste of your creative talents. Leave those details to megacorp, while you go off to create several more great inventions over your life instead of struggling to put a single one into production.


Can't there be a middle ground?  Instead of me having to sell off my shoe-phone-charger, can't I just contract out the manufacturing work to these large factories and megacorps without having to outright sell my idea to them?  I'm not in any way shape or form a businessman, so my view may be horribly naive.
 
2013-03-01 01:34:22 PM
Damn. I own the patent on the wheel and was planning on suing Ford, GM, Toyota, and others for billions of dollars.
 
2013-03-01 01:47:25 PM

stonicus: Can't there be a middle ground? Instead of me having to sell off my shoe-phone-charger, can't I just contract out the manufacturing work to these large factories and megacorps without having to outright sell my idea to them? I'm not in any way shape or form a businessman, so my view may be horribly naive.


Of course you can.  Think of it like any other potentially money generating property.  Say, a horse.  You own a horse.  You inherited it from a relative, and know very little about horse upkeep.  However, its a nice horse, from a long lineage of kiddie ponies.  You want to make money off this horse somehow.  you can either:

1) figure out (a) how to take care of the horse which includes, but is not limited to, feeding, stabling, grooming, training the animal, knowing what are the warning signs for various horsey diseases, etc (b) what permits are required and what laws/codes affect the business of horse rides (c) what is necessary for paying for staff, accepting money, setting up a business bank account etc (d) what insurance you need for having an animal that you rent out.  And that is just what i could think of off the top of my head.

2) Sell the damn horse.
 
2013-03-01 01:47:47 PM
This sounds to me like it's just trading one can of worms for another.

At the very least, shouldn't the "loser pays court costs" principle apply both ways?
 
2013-03-01 01:53:41 PM

stonicus: sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?

By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?



Assume for the moment- Small startup company has let's say three possible products to bring to market, but only has funds to bring two of them to market. Another company has the resources to bring the remaining product to market. Why would they do so if they could not have the exclusive time period the patents related to that product provides? Why would a V.C. invest in either company?
 
2013-03-01 01:56:17 PM
I understand that people dislike trolls, but some of the proposed solutions are unrelated to the trolling behavior that you dislike. Like, the fact that a troll doesn't make product isn't actually something you're peeved above, because there are tons of other patent owners that don't make products that you have no problem with, like research universities and patent pools. So, proposed solutions that target everyone who doesn't make product hit the trolls, but they also hit a bunch of unrelated folks.

Now, this piece of legislation is focused on a specific behavior - that a troll can sue someone and they can spend a lot of money defending themselves, but the defendant can't make any good counterclaims to collect damages or costs back. Basically, by not making product, trolls are immune to defensive patents. This addresses that by making a way for money to flow back.

Other annoying troll behaviors are suing Microsoft in Washington and Joe Blow in Florida in the same suit, even though they're unrelated, so that they can claim that Texas is a proper compromise venue halfway between. But they don't really care about Joe Blow - they just want to stay out of Washington. The AIA fixed that by saying that you can only include multiple defendants if they actually worked together to infringe the patent.

Another one is that trolls can threaten companies with injunctions, and so extort giant settlements out of them. That's going away, though - courts won't give out injunctions anymore unless there's going to be irreparable harm that can't be compensated by money, so trolls aren't going to have that be possible.

Personally, I think the real area to target is damages.
 
2013-03-01 01:56:38 PM

Teiritzamna: stonicus: Can't there be a middle ground? Instead of me having to sell off my shoe-phone-charger, can't I just contract out the manufacturing work to these large factories and megacorps without having to outright sell my idea to them? I'm not in any way shape or form a businessman, so my view may be horribly naive.

Of course you can.  Think of it like any other potentially money generating property.  Say, a horse.  You own a horse.  You inherited it from a relative, and know very little about horse upkeep.  However, its a nice horse, from a long lineage of kiddie ponies.  You want to make money off this horse somehow.  you can either:

1) figure out (a) how to take care of the horse which includes, but is not limited to, feeding, stabling, grooming, training the animal, knowing what are the warning signs for various horsey diseases, etc (b) what permits are required and what laws/codes affect the business of horse rides (c) what is necessary for paying for staff, accepting money, setting up a business bank account etc (d) what insurance you need for having an animal that you rent out.  And that is just what i could think of off the top of my head.

2) Sell the damn horse.


what about:

3) go partners with someone who knows everything in #1 for agreed upon percentage of profits and let them deal with it all and still keep legal rights to the horse.
 
2013-03-01 01:57:51 PM
Marcus Aurelius:
The patenting of processes has led to an explosion of silly assed patents is why.  If the patent office had the slightest conception of what "obvious" is, it would be one thing.

But they do obvious about as well as they do prior art.  If in doubt, let the lawyers fight it out.


But the test for obviousness is the same for processes and for machines... but you only want patents on processes to be abolished, so do you think the PTO does a fine job with obviousness on machines?
 
2013-03-01 01:59:43 PM

sdd2000: stonicus: sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?

By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?


Assume for the moment- Small startup company has let's say three possible products to bring to market, but only has funds to bring two of them to market. Another company has the resources to bring the remaining product to market. Why would they do so if they could not have the exclusive time period the patents related to that product provides? Why would a V.C. invest in either company?


But if a VC invested in the first company, couldn't they then have the resources to bring all 3 to market?

/appreciate your responses BTW..
//business idiot here who wants to learn
 
2013-03-01 02:03:37 PM

BolloxReader: If they do away with the expiration like they did with copyright then I'll say eliminate patents.


Won't happen. With copyright, the wealthy copyright owners all want longer terms, and they're not copying each other's works so they're all on the same side, and their lobbying money is unified.
But with patents, every patent owner wants  their patents to have a long term, but wants everyone else's patents to have shorter terms, because they  are copying each other's works. They're all opposed to each other, so you don't get a giant lobbying push.

Basically, Sony Pictures doesn't want to use Mickey Mouse, and Disney doesn't want to use James Bond. But Samsung does want to use Siri, and Apple does want to use Samsung's radio inventions.
 
2013-03-01 02:04:45 PM

stonicus: sdd2000: stonicus: sdd2000: stonicus: How about making patents non-transferable?  If I own company X, and we have a patent on product Y, when company Z buys me out, patent Y is now null and void.

And how would small start ups ever attract venture capital?

By having a product that can make money.  Selling your company to someone else isn't the only way to make a profit.
Say I invent something new and innovative, like shoes that use kinetic energy of walking to recharge your cell phone.  That alone isn't enough to attract investors?  Part of my business plan has to be "sell it all off to someone else"?


Assume for the moment- Small startup company has let's say three possible products to bring to market, but only has funds to bring two of them to market. Another company has the resources to bring the remaining product to market. Why would they do so if they could not have the exclusive time period the patents related to that product provides? Why would a V.C. invest in either company?

But if a VC invested in the first company, couldn't they then have the resources to bring all 3 to market?

/appreciate your responses BTW..
//business idiot here who wants to learn


VC resources are not unlimited. They may also feel that the ROI of the third product is not high enough to justify the investment. They may not want the innovative people at the first company diverting attention from the other two products.
 
2013-03-01 02:06:06 PM
I hate that shiathole.  I've gotten 3 speeding tickets over the years crossing through that damn speedtrap on my way to NOLA/Miss. None of which has anything whatsoever to do with anything in this article which also has nothing to do with the headline, which makes perfect sense if you try not to think about it too hard.
 
2013-03-01 02:06:43 PM

stonicus: what about:

3) go partners with someone who knows everything in #1 for agreed upon percentage of profits and let them deal with it all and still keep legal rights to the horse.


... and then when little Billy falls and breaks his neck, you find yourself being a defendant in a lawsuit, even though you haven't set foot in a stable or even seen that horse in years.
 
2013-03-01 02:07:33 PM

Theaetetus: BolloxReader: If they do away with the expiration like they did with copyright then I'll say eliminate patents.

Won't happen. With copyright, the wealthy copyright owners all want longer terms, and they're not copying each other's works so they're all on the same side, and their lobbying money is unified.
But with patents, every patent owner wants  their patents to have a long term, but wants everyone else's patents to have shorter terms, because they  are copying each other's works. They're all opposed to each other, so you don't get a giant lobbying push.

Basically, Sony Pictures doesn't want to use Mickey Mouse, and Disney doesn't want to use James Bond. But Samsung does want to use Siri, and Apple does want to use Samsung's radio inventions.



Repeat after me- Patents are not copyrights and patents that where filed after 1995 all have a life of twenty years from initial filing (plus a small extension based upon the amount of dalay either from patent office delays or in the case of drugs FDA time to approve a drug for market) THEY ARE NOT RENEWABLE!
 
2013-03-01 02:09:19 PM

sdd2000: Theaetetus: BolloxReader: If they do away with the expiration like they did with copyright then I'll say eliminate patents.

Won't happen. With copyright, the wealthy copyright owners all want longer terms, and they're not copying each other's works so they're all on the same side, and their lobbying money is unified.
But with patents, every patent owner wants  their patents to have a long term, but wants everyone else's patents to have shorter terms, because they  are copying each other's works. They're all opposed to each other, so you don't get a giant lobbying push.

Basically, Sony Pictures doesn't want to use Mickey Mouse, and Disney doesn't want to use James Bond. But Samsung does want to use Siri, and Apple does want to use Samsung's radio inventions.


Repeat after me-"I didn't read the post I'm replying to."


Uh, okay.You didn't read the post you were replying to.
 
2013-03-01 02:13:39 PM

stonicus: 3) go partners with someone who knows everything in #1 for agreed upon percentage of profits and let them deal with it all and still keep legal rights to the horse.


Oh, of course you can.  Note of course that this would be the end run around your proposed "sell the company, IP dies law" What you would have would be licenses, where the patent inventor would sign away all use of the invention exclusively to one party, but still nominally maintain ownership.

Given that in some cases exclusive licenses are treated under the law as if they were a sale, it is likely that potential licensees would want to structure the license to avoid this.

Thus in the end, the results you are seeking to prevent would in fact remain exactly the same, except that now even more lawyers must get involved (i.e. instead of a simple sale, we have to negotiate a license and make sure that it complies with the new law on patent transfers).
 
2013-03-01 02:13:56 PM

Theaetetus: You didn't answer the question. My point is about a lack of consistency - if you believe that "patents do nothing but harm the economy," then why aren't you suggesting that all patents be abolished? Instead, you're only suggesting that that should happen in an area of technology important to you... which in fact raises the same bias issue you brought up.
Basically, it's hypocrisy.


I did suggest all patents be abolished.
 
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