If the administration is able to concoct and pass a set of laws that can actually systematically identify and lock down patent trolls but not companies like ARM, it would be an amazing development. Yet this litigation dance is clearly the trolls' domain of expertise. I'm afraid that any rules passed would be adroitly evaded by the trolls and "evolved" shell companies that say, take to putting on a camoflage guise like that of Intellectual Ventures (IV).
In addition, the president plans to ask Congress to pass legislation that would allow sanctions on litigants who file lawsuits deemed abusive by courts, officials said.
I wonder if "litigants" actually points to "people" rather than entities.
The president has taken a dim view of certain patent-holding firms. In February, he said some firms "don't actually produce anything themselves. They're just trying to essentially leverage and hijack somebody else's idea to see if they can extort some money out of them."
As we all know, companies like ARM don't "make" anything. But they are a legitimate operation by all means. But on the surface, IV might look like a legitimate operation too, with their research staff and everything. And once legislation passes, the now simple shell companies will surely take on a new form that will be more difficult to discern from their legitimate counterparts.
The fact that the administration wants to make this change is amazing. I love it. Yet I have to be skeptical, not only for the aforementioned reasons but also due to our political gridlock. I'm afraid that any legislation that does pass will be laden with intentional loopholes for the trolls to exploit.
Most companies with a business model similar to ARM can rely on copyright law. There are a large number of software firms with a business model similar to ARM.
As far as I'm concerned, patent trolls are such a cost to society that if ARM was collateral damage, I'd be willing to sacrifice them.
If ARM lost their patent protections, it would neither destroy ARM as a company, nor would it destroy ARM as an architecture. In fact, ARM as an architecture would become strengthened. ARM as a company would still survive, although a huge hole would be blown in their earnings. You would still need a copyright license from ARM to produce chips containing A15 or any of the other cores designed by ARM; it's only cores that weren't designed by ARM (Krait for example), that would no longer have to pay ARM.
Even if the only outcome was to identify the root company and individuals profiting from the suit it would help. It would then be easier to craft ToS of that would exclude them from the internet entirely.
Gridlock generally occurs when one of the two parties is opposed to a bill, but here the President is following Republican initiatives - in the Senate, John Cornyn's 'Patent Abuse Reduction Act', and in the House, Jason Chaffetz's 'Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act'.
Since this issue seems to have some bipartisan support behind it, perhaps something will actually get done.
Notably though ARM could survive under a regime with dramatically shortened patent protection (5 years), which would be an unsatisfactory but necessary compromise until we can work out a system for prior art, examination, and code that doesn't destroy innovation.
ARM doesn't make anything physical--but neither do most software companies. ARM makes products that their customers actually want. Patent trolls don't.
Patent trolls aren't the problem. We don't need patent-holding firms to be restricted: there's nothing strictly wrong with them, if the patents they're holding are worthwhile. All they do is create a wider market for intellectual property. All restricting them does is stop one angle of oppression - large companies will still be free to bully small ones as they wish.
The real problem is that currently it's profitable to have an idea, patent it, and then sit on it until someone accidentally re-invents your idea. If an idea is sufficiently obvious that there's a reasonably high likelihood of reinvention (as opposed to copying), it should never have been patentable in the first place.
If it makes sense for companies to tell employees not to look at the knowledge distributed by patents, you have too many obvious patents. Looking at the information disseminated by patents should be a universal good: you should be seeing ideas that you'd be unlikely to come up with yourself - that will mostly only add to your options for creating your product, not subtract.
You don't need complicated, nuanced legislation to make this happen - you need instead to do a hell of a lot of patent reevaluation.
Perhaps every patent suit should trigger an automatic re-assesment of the patent in question. Right now, it seems the biggest weapon in a patent trolls arsenal is the über-general patent; patents so vague that they can literally apply to anything in the past, present and future. Triggering a re-evaluation of a patent every time it is used in litigation would, I think, serve as a huge deterrent.
With regard to companies like ARM, who's patents are of a very high quality and technically innovative and detailed, it would be hard for people to argue that they don't deserve the patent. But people who have essentially patented the internet without providing any worthwhile details would find it a lot more difficult to retain their patent once other interested parties are given the opportunity to call it out as bullshit.
I do think it is a little unfair to ask the patent offices to make the right call every time with regard to patent filings, simply because of the sheer volume they have to process. Giving them a second chance to evaluate a patent with the input of experts in the field that a particular patent relates to would be beneficial to everyone.
Going to an extreme: Maybe you could grant any and all patent filings automatically, and only the patents used in patent suits are evaluated. So all patents are worthless until tested. Or that might be a bad idea, I've not given it much thought beyond this.
Obviousness is actually an interesting issue because it's dependent on context and context is moving pretty fast now. A lot of web inventing/entrepreneurship is as much predicting as it is inventing.
Some of the great ideas will become obvious later. That doesn't mean they're not valid & creative ideas.
Generally describing patents as creative works is problematic. In some cases they are like literature or music. In lots of other cases they are more like scientific discoveries. Out there waiting to be uncovered.
If the president has taken such a dim view of patent-holding firms, maybe he should focus on the PTO first who is giving out incorrect patents left and right. Only one in ten patents, or 12% to be exact[1], are given out in compliance with patent law.
Imagine if a bank teller had a 88% error rate when giving out loans, thus handing out large sums of money to people who can't repay it. No bank in history would allow such personal to still be employed, or they would go out of businesses thanks to competition in the market. The PTO do not have any competition, so instead we are left dealing with the after effect with 9/10 patents being incorrectly issued for fully 20 years periods. Patent trolls and patent-holding firms would likely not exist, or would at least have extremely smaller effect on the market if PTO actually did their job correctly.
[1]In an effort to assert the quality of patent, one can look at the result from reexaminations. Like with code, if it is not tested, its quality is indeterminable. The PTO publish yearly a report for ex parte reexaminations, and during the latest period of 2011/09/30 -> 2012/09/30, the reexamination certificates only gave 12% of all examined patents a pass with all claims intact. This is averaged across all technical fields, as PTO do not have numbers for specific markets. I would guess that software patents will have slightly higher number of faulty patents (~95% of incorrect patents?), but statistics over the IT industry patents doesn't seem to exist.
This is fairly typical of government. Looking at how the government actually does its work is "bad". Passing a law to punish people in the courts or do some tax foolishness is considered ok. In this case, you are exactly right, looking at the input to the system and how it is dealt with there would be a better approach, but it goes against form.
Both sides do this a lot. Look at the whole focus of health care costs. No debate on why they are high and how to fix the inputs.
The patent troll debate is further hampered by reporters using the term willy-nilly instead of focusing on companies that actually have that business model.
So 88% of reexamined patents are modified or invalidated. But how does this lead to the conclusion that 88% of all patents would be modified or invalidated if they were reexamined?
An ex parte reexamination requires a fee. People don't randomly choose patents for reexamination, they only challenge the weakest ones.
> So 88% of reexamined patents are modified or invalidated. But how does this lead to the conclusion that 88% of all patents would be modified or invalidated if they were reexamined?
Untested patents is of undetermined quality similar to untested code. How do we know that untested code has bugs if most people don't write tests randomly? Well, because developer experience would argue that untested code is not a haven of bugfree or high quality software. Rather, code is seen as non-working until testing has proven otherwise. Why should we treat untested patents differently?
> People don't randomly choose patents for reexamination, they only challenge the weakest ones.
Got a source for that? Normally, people spend money on reexamination when other people try to extract money from licensing agreements. When companies tries to extract money from licensing agreements, don't they tend to use their strongest patents as the stick? In that sense, people don't randomly choose patents for reexamination, they only challenge the strongest ones which is the ones used in patent litigation and patent licensing agreements. But I don't have a source for that, so I guess the argument goes to the person with a source.
One of the difficulties of fixing the problem is going to be that you can't just pass a law that says poof "you must be the company that makes a thing in order to have a patent on a thing". There are many legitimate reasons for patents to be tradeable assets. Take for example the basement tinkerer who comes up with and patents a completely novel widget. They may not have the resources to build, market and sell that widget. But a Samsung might want to buy that patent for a couple million and make those widgets themselves.
Sure the basement tinkerer could license the patent to Samsung, even an exclusive perpetual license, which is almost as good as owning it, and might be the preferred path forward (though there can be some problems with that too as companies start to defensively buy exclusive perpetual licenses with no intention of making those widgets just to keep others out of that market).
But at this point, any law requiring such licenses would have to be for those going forward. Any retroactive law would require either handing back legally purchased patents (which destroys wealth) or require the originator to buy them back (which may be impossible in many cases if they've already spent the money on retirement homes).
The core reason patents become so valuable is because they last so damn long. If they didn't last until the next ice age it would take much of the value out of ownership and make licensing naturally make more sense anyway. The way to attack this is at the root and revert back the patent expiration to something far more reasonable.
"don't actually produce anything themselves. They're just trying to essentially leverage and hijack somebody else's idea to see if they can extort some money out of them."
Silly patent trolls, don't they know that is the job of the politician?
You're probably better off designing an alternative protection scheme for pharmaceuticals.
As far as I'm concerned, the only reason that pharmaceuticals really need patent protection is that the huge regulatory costs are borne by the patent holder; generics can free-ride. Fix this problem and a viable funding model for pharmaceuticals can emerge, even without patent protection.
I agree. But with an annoying wording correction: no one needs violent protection. People claim the need to be protected from some other people's actions via brutal means. I can also claim that I need some protection against a smile on your face. If I'm powerful and crazy enough I can even get a law passed "against cultural harassment" using which I may drag you to court and maybe prison.
If a pharmaceutical guy cannot figure out how to make a profitable business without violent protection, it's not mine or your problem. If we cannot figure out how to make efficient drugs peacefully without inventing "patents" and "licenses" (that basically allow bullying others), then it's our personal problem.
For a start, there are some fairly "simple" things that can/could happen in IP regulation. A reassessment of effective (versus stifling) term limits in copyright. The elimination of most "evergreening" of patents under the rubrik of "obviousness" (e.g. extended release where the extended release method/mechanism is not truly novel). The investigation and prosecution of business practices that seek to remove legitimate generics from the marketplace -- monopoly regulation might be a ready avenue.
I put "simple" in quotes, because I've left the political factor out.
If we can't do the above, I have to wonder what any process involving "political compromise" can or will achieve. My hopes are not too high.
"Those are among five executive actions and seven proposed legislative changes that Mr. Obama is expected to recommend"
Until these actions and changes are stated, it is really tough to have a good debate about the topic. The article is pretty general and can really be condensed into a tweet, maybe even less. There has to be more substance behind how they plan to determine the so-called trolls versus companies such as Arm.
Paywall politics aside however one feels about them, would be great if HN mods would just never put through a link to one... Waste of time for most of us.
Yeah the early internet really spoiled us. We're so used to "Free" being the default that anything else is instantly a disappointment. I'm kind of glad we're moving away from that though, from content to music to services, everything's being turned into a paid/stick-around model rather than a free-for-3-years/go-bankrupt one. Look at how much money it's made for app creators alone.
Yeah, we're not really moving away from that. And even if we were, it's hard to see why you'd be glad, unless you hate freedom.
Almost none of the money that online distributors pull in (music, video, content vendors) makes it back to the actual content producers. So I can't say I'm sad to see this particular iteration of the industry crashing and burning.
Thank you for opening my eyes. I just realized I hated freedom all this time. At first I though maybe I liked people getting paid for the things they made. I guess the millions of people selling their music/art/movies/games/scripts on codecanyon/steam/kickstarter/amazonmp3/bandcamp/gumroad are not getting paid at all. They're all being tricked. What suckers... Everyone should just live like you, a collage student without a job or bills yet who values the "free" in freedom and the ability to share and consume whatever you want without those evil corporate snobby rich people getting tons of free money.
I'd like more gumroad services where the author sees more of the profit. That's what I hope the future of the internet is like, just totally cutting out egregious middlemen and leaving services that take some small percentage.
>Everyone should just live like you, a collage student without a job or bills
You're awfully presumptuous for someone who can't spell "college" correctly.
The problem is there is still a giant gap between what makers and sellers earn. It is no longer the case that distribution costs are prohibitive, makers no longer need massive upfront investment to sell things. So why is it acceptable to you for such exploitation to continue?
Dude it's 2013, Gumroad & Kickstarter only take 5%, Steam and others take 30%, Amazon and ebay take 11% to 25%. Online distributers are not record labels.
Your argument that "Almost none of the money that online distributors pull in (music, video, content vendors) makes it back to the actual content producers." is complete nonsense. It's no excuse to want everything for free or hate paid content. You really are a young entitled college student that wants everything for free. We all were. I was. Money was tight and went towards noodles and living expenses and we pirated everything because we couldn't afford it. Life changed, we grew up, graduated, got jobs, appreciate an income and now pay for things. One day when you bust your ass making something you'll appreciate someone paying you for it.
You have no idea who I am, what I do, or my economic situation.
And further, even if I were a broke college kid that wouldn't itself invalidate my actual argument. It's a fallacy to discredit a point because of the social status of the point-maker.
Reading through your blog, I understand why you're so invested in the irrational position you hold.
After seeing that I've hit a soft spot with you, that you refuse to listen to common sense, that you assume distribution platforms operate like record companies in the 90s. I'm going to take the high road and apologize. I'm sorry if I made fun of your economic situation and I hope you find peace in whatever you are going through. The truth is, I am on the side of the reptilian shapeshifters and I really do hate freedom. We've been trying to destroy it for several decades. We've tried everything from wars to assassinations but in the end, the answer was right underneath our scaly noses. The paywalls.
The WSJ is doing quite well with a leaky paywall and online and print paid subscriptions. Last I checked, WSJ print and digital circulation were up every year for the last half-decade and ad revenue is increasing by double-digit rates y/y.
Their "new business model" is quite successful and the envy of the industry.
However, it seems like the paywall only works because it's so leaky in the first place.
I'd imagine before the internet, you may have sneaked a peak at a friend's issue of the WSJ or read one at a coffee shop. I suppose the leaky paywall is the modern equivalent.
In addition, the president plans to ask Congress to pass legislation that would allow sanctions on litigants who file lawsuits deemed abusive by courts, officials said.
I wonder if "litigants" actually points to "people" rather than entities.
The president has taken a dim view of certain patent-holding firms. In February, he said some firms "don't actually produce anything themselves. They're just trying to essentially leverage and hijack somebody else's idea to see if they can extort some money out of them."
As we all know, companies like ARM don't "make" anything. But they are a legitimate operation by all means. But on the surface, IV might look like a legitimate operation too, with their research staff and everything. And once legislation passes, the now simple shell companies will surely take on a new form that will be more difficult to discern from their legitimate counterparts.
The fact that the administration wants to make this change is amazing. I love it. Yet I have to be skeptical, not only for the aforementioned reasons but also due to our political gridlock. I'm afraid that any legislation that does pass will be laden with intentional loopholes for the trolls to exploit.
I am hopeful yet fearful.