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The Patent Mafia and What You Can Do To Break It Up

Soulskill posted more than 2 years ago | from the he-sends-one-of-yours-to-east-texas-you-send-one-of-his-to-norcal dept.

Google 205

colinneagle sends this quote from an article about the ever-growing patent racket in the tech industry: "The lawsuits are raging all across the tech world. Oracle sues Google, Yahoo sues Facebook, they counter-sue. Others threaten, others buy more patents and the circle goes round and round. Don't be fooled by the lawsuits between these tech titans though. The real cost that the patent mafia extracts from the tech world is on the smaller companies who can't afford to battle the Apples and Microsofts of the world. Their choices are far simpler. They can abandon their innovations or they can choose to pay and allow the Mafiosos to wet their beaks. Also, don't be fooled about who the real losers are here. The the real losers are you and me. ... So what do do? Here is my opinion. I would make it just as expensive for the offensive patent prosecutors. Just as the government put in the RICO act to combat organized crime, I would put a similar law in place on patents. RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant. Three times what the defendant paid to defend."

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Damages (0)

Anonymous Coward | more than 2 years ago | (#39934955)

Just paying the defendant's legal expenses is horrible enough.

Re:Damages (5, Insightful)

ZeroSumHappiness (1710320) | more than 2 years ago | (#39935059)

No, it's not. If I'm a small business with 25k in debt to start up and another 50k in debt to finance my new patent on my new product and then Microsoft sues me for violating their patent I can either capitulate and be out a minimum of 75k as my business disappears or fight with nearly no money to finance my operation.

Microsoft, on the other hand, can pay 5M to its lawyers to crush me.

If, somehow, I win my legal fees back I get to wait through round after round of appeals, have lost months if not years of product sales due to the injunction in place on me and have, in the meantime, defaulted on all my debts, losing my business. Yeah, not quite fair.

Re:Damages (5, Insightful)

RenderSeven (938535) | more than 2 years ago | (#39935417)

Its worse. Microsoft steals your work, you sue them, they spend 1M to crush you, and under Submitter's plan you would pay treble damages.

No, the only plan I can come up with is to sell your patent to a troll with cash reserves in exchange for something like 10% of their winnings if they successfully sue MS. Lunacy like that is where we are headed, the blood sucking lawyers will make sure of it.

Re:Damages (3, Interesting)

gatesstillborg (2633899) | more than 2 years ago | (#39935659)

I believe you misinterpreted this. I believe TFA is saying that only the plaintiff, NOT the defendant, would face this liability, which would greatly reduce the volume of frivolous and downright extortionist suits. I have felt this to be the correct approach for a good while now, though was unaware and interested to know about its previous application to organized crime.

Re:Damages (3, Insightful)

NormalVisual (565491) | more than 2 years ago | (#39935817)

I believe TFA is saying that only the plaintiff, NOT the defendant, would face this liability

Okay, lets say you (an individual or small company) sue Microsoft for stealing your patent. What will then happen is that Microsoft ties you up in court long enough to force you to drop the suit (or they just win outright), and then *you* might find yourself on the hook for triple damages when they counter-sue to recover their costs. It's still the same basic tort reform idea that has been proposed for years, and won't work for the same reason. It doesn't address the fundamental problem that in the U.S., you often get as much justice as you can afford and no more, regardless of which table you sit at in the courtroom.

Re:Damages (1)

gatesstillborg (2633899) | more than 2 years ago | (#39936283)

The purpose of this is to prevent the bringing of groundless suits (by patent trolls). Presumably, the legitimate small business owner has not motivation to do that.

Of course, the huge patent troller can bring to bear all kinds of legal muscle to defeat a legitimate patent suit brought by a small entity, though that does not change the fact that the protection (ie. treble penalties for groundless suits) is still worthwhile. It is just a failure in a separate (though still problematic) area.

Re:Damages (2, Interesting)

Anonymous Coward | more than 2 years ago | (#39936055)

Patent reform:

1) Each patent owned by a company requires an annual fee of $50,000 starting five years after the patent is valid
        - Fees are waived for the first 50 patents owned
        - Fee proceeds are used to hire additional patent clerks and improve patent processing
        - Fee is indexed to inflation

2) Transfer of a patent to another company incurs a one-time $50,000 transfer fee
        - Fee is pro-rated based on length of time remaining on the patent
        - Fee is indexed to inflation

3) A company may choose to donate a patent to the public domain and receive a tax break
        - Fee is pro-rated based on length of time remaining on the patent
        - Capped annually at $1 Million
        - Cap is indexed to inflation

4) Patent licensing requires public disclosure of full license costs, terms, and conditions

5) Any company whose patent related gross revenue exceeds its non-patent related gross revenue will incur an additional tax
        - Additional tax is a flat 15% of all patent related gross revenue
        - To increase the cost of running patent shell companies

Re:Damages (1)

ZeroSumHappiness (1710320) | more than 2 years ago | (#39936081)

Fees are waived for the first 50 patents owned

Fees aren't that high. Paying lawyers and technical experts to make sure you're not infringing anyone else's patents and that your patent is sufficiently described, however, cost a lot.

Re:Damages (1)

serbanp (139486) | more than 2 years ago | (#39936141)

AC is talking about the 50k/y fee to maintain a patent, per his/her proposal, not the filing fees.

Re:Damages (3, Informative)

crafty.munchkin (1220528) | more than 2 years ago | (#39935873)

Which is what happens in Australia - to stop frivolous lawsuits. A very recent example - AFACT vs iiNet, costs were awarded to iiNet [] meaning the MAFIAA had to pay their (multimillion dollar) legal bill.

Re:Damages (2)

rtb61 (674572) | more than 2 years ago | (#39936301)

Most importantly this prevents mass law suits. If one defendant wins, then all other defendants can use that case as precedent and the punitive law suit group, companies who use the civil actions themselves as extortion and penalty, would be up for everyone's costs. So lose one case to a person who can afford a defence and all of a sudden they have lost every case and have a massive bill to pay. This allows groups of defendants to pool their resources to fight one particular case and then use that victory as precedence in their own, it allows all the defence lawyers to soak up costs for a bit knowing the other side will be paying every ones court costs.

Treble? (4, Funny)

amicusNYCL (1538833) | more than 2 years ago | (#39934959)

RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant.

I think that something far more bassic would work.

Re:Treble? (3, Insightful)

Qwertie (797303) | more than 2 years ago | (#39935605)

Something far more basic would work. Ban software patents.

Okay, not every tech lawsuit is about software. Or even about patents. But it would do a lot to reduce these risks and it's an easy change.

P.S. Treble damages [] is a real legal term, believe it or not. Because "triple" would sound too ordinary?

Re:Treble? (5, Funny)

Anonymous Coward | more than 2 years ago | (#39935791)

I guess he didn't pitch it in a way that you'd get the joke.

Re:Treble? (5, Funny)

Anonymous Coward | more than 2 years ago | (#39936085)

Sounds like you're settling an old score

Re:Treble? (3, Insightful)

penix1 (722987) | more than 2 years ago | (#39935905)

I'd go further than just software patents. Ban all method patents. That includes business methods, which is in just as bad a shape as software patents are.

So that's what you'd do . . . (0)

Anonymous Coward | more than 2 years ago | (#39934973)

Ok, I'll let you do that. That's what I'll do!

sounds reasonable to me (1)

Anonymous Coward | more than 2 years ago | (#39934975)

I think the same should hold true for medical malpractice suites. I think that it's absurd that the physician (or his malpractice carrier) has to pay his legal fees regardless of whether he prevails or not.

Re:sounds reasonable to me (4, Interesting)

Miamicanes (730264) | more than 2 years ago | (#39935629)

It sounds like a great idea, but here's the problem: if there were one or more bona-fide legal issues that required a jury trial to decide, and losers had to pay the defendant's legal fees if they lost, the doctor's lawyers would move for summary judgment to dismiss without prejudice for lack of demonstrating the means to pay the doctor's legal fees if you were to lose. ("Without prejudice" means you could come back and file a new lawsuit someday if you manage to scrape up the money to post a bond sufficient to cover the doctor's potential legal expenses before the statute of limitations runs out).

If you were lucky, you might be able to obtain the services of someone whose newly-invented role fell somewhere between bail bondsman and investor, who'd agree to underwrite your liability for the doctor's legal expenses in return for $10,000 up front and 70% of anything you were awarded.

Patent-wise, it's even worse. Let's suppose you're sued for infringement by EvilMegacorp. The first thing they do is seek an injunction to make you stop allegedly infringing. The next thing they do is move for summary judgment to make the injunction permanent until you can demonstrate that you have the means to pay their legal fees if they win. Or, let's suppose you're an inventor who patents something, and EvilMegacorp blatantly infringes upon it. You file a lawsuit against them, and they pull the same stunt -- they certify to the judge that they've put $20 million in escrow to cover your legal fees if you win, and move for summary judgment to dismiss unless you can do the same.

Put another way, lobbying for a change to make the loser pay is a dangerous strategy, because it ultimately gives large corporations with deep pockets yet another weapon to use against everyone else.

A far better strategy would be to reform the way licensing itself works and come up with a fair framework for low-ceremony compulsory licensing at statutory rates that are high enough to encourage both the patent's owner and potential licensor to negotiate directly, but are ALSO aggregate among the holders of all patents. In other words, if you invent something and someone says you're infringing their patent, you could pay something like 70% of your gross revenue into escrow, then walk away and let everyone who thinks they have a patent stake in it fight over the funds among themselves at their own expense without involving YOU... and any funds that are unclaimed after 18 years would automatically revert to you. If your product allegedly makes use of 490 patents, the owners of those 490 patents can duke it out against each other to claim their share.

What happened to innocent ? (5, Interesting)

morbingoodkid (562128) | more than 2 years ago | (#39934981)

Very good idea. Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

Do not really make sense to me. How about you ?

Re:What happened to innocent ? (-1, Troll)

Anonymous Coward | more than 2 years ago | (#39935101)

Do you not understand the difference between civil and criminal law? Or are you just trolling those who do?

Re:What happened to innocent ? (0)

Anonymous Coward | more than 2 years ago | (#39936143)

Do you not understand the difference between civil and criminal law? Or are you just trolling those who do?

I think that's criminal to bankrupt a small inventor only because you have enough power withstand a patent suit. And this simple possibility doesn't help a bit to encourage innovation.

Re:What happened to innocent ? (1)

gmhowell (26755) | more than 2 years ago | (#39936193)

What you may 'think' and 'feel' is irrelevant to what laws are on which set of books. This isn't a question of guilt or innocence, it is a question of infringing or not. AC above you made a valid, if slightly trollish, point.

Re:What happened to innocent ? (3, Informative)

Grond (15515) | more than 2 years ago | (#39935877)

The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).

Rah Rah! (0)

Anonymous Coward | more than 2 years ago | (#39934983)

Let's rush to implement a half-baked scheme which will probably create as many problems as it solves as soon as possible.
Yes the patent system is broken, but with results like paying some bootlegger in China three times their court costs is just adding insult to injury.

Re:Rah Rah! (1)

Iniamyen (2440798) | more than 2 years ago | (#39935163)

The bootlegger in China would probably lose a court case... 1/10

Nice idea... Won't happen. (4, Insightful)

Antony T Curtis (89990) | more than 2 years ago | (#39934989)

FWIW, this is my personal opinion:

It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.

The aforementioned incumbents would fight tooth and nail, with large campaign contributions and gifts, to prevent such a law from ever passing.

Re:Nice idea... Won't happen. (4, Insightful)

UltimaBuddy (2566017) | more than 2 years ago | (#39935117)

The end result is that the innovators move elsewhere.

Re:Nice idea... Won't happen. (3, Interesting)

Peristaltic (650487) | more than 2 years ago | (#39935165)

The end result is that the innovators move elsewhere.


Re:Nice idea... Won't happen. (0)

Anonymous Coward | more than 2 years ago | (#39935285)

The software & mobile phone industry is going to pick up and move to Elbonia any day now, I just know it!

Re:Nice idea... Won't happen. (1)

UltimaBuddy (2566017) | more than 2 years ago | (#39935377)

To where they can easily evade the restrictive patents owned by others and still profit from their 'ingenuity'.

Why do you think the majority of the movie industry is located in Hollywood?
Because they wanted to put as much distance as possible between them and the Motion Picture Patents Company / Edison Trust, located in New Jersey.

Re:Nice idea... Won't happen. (1)

NormalVisual (565491) | more than 2 years ago | (#39935903)

Thanks for the info re: the MPPC. I find it more than a little ironic that the modern film industry, who does everything in their power to prevent copyright infringement, has its genesis (in part) in the desire to commit patent infringement.

Re:Nice idea... Won't happen. (5, Insightful)

the eric conspiracy (20178) | more than 2 years ago | (#39935133)

Many patent trolls are in fact nimble upstarts.

The answer is much simpler. Get rid of business process and software patents. They are proving to be a detriment to the software industry.

Re:Nice idea... Won't happen. (1)

jmorris42 (1458) | more than 2 years ago | (#39935359)

> Many patent trolls are in fact nimble upstarts.

Yea. That is the problem with my idea.

I was thinking that if Party A sues Party B alleging 1B in damages and loses then a countersuit by B for the same Billion should be considered reasonable and what a court should default to unless some pretty unusual circumstances are involved. It would at least make people stop shooting for the moon and asking for insane amounts if they thought that if they lose that number would come back and bite em.

But you are right, patent trolls don't have anything to countersue for and if such a system were setup it would become commonplace to spin out a paper entity to hold the patent being used in lawfare. Even another idea spotted here to punish by shortening or even voiding a patent used for ill purpose wouldn't really do much. All most patents are aquired for is either defense (and thus never used in a court) or to attack with and if you lose one you have (or buy up) another ten and keep milking it.

We have to stop issuing so many patents. Not just stop issuing them for software, for the obvious, etc. That is low hanging fruit. We have to stop handing out so many period. So how about limit it to say a thousand a year? This way there would be fierce competition for the limited resource, perhaps even bid some or all of em out and raise revenue! With such a small number any professional could be legally expected to know about ones reading on their field so while few in number they could actually be enforced.

Re:Nice idea... Won't happen. (1)

Duhavid (677874) | more than 2 years ago | (#39935587)

..."countersuit by B for the same Billion should be considered reasonable and what a court should default to unless some pretty unusual circumstances are involved..."

They would then just spin up a small business, sell the patent to them, fund them with just enough to make it thru the trial. Lose? Nothing lost, small company defaults. Win? Small business merges/is squired by original company.

Re:Nice idea... Won't happen. (0)

Anonymous Coward | more than 2 years ago | (#39935665)

just means startups have to fight on two fronts; the patent trolls trying to make a buck, and the elephants trying to protect their business

Re:Nice idea... Won't happen. (1)

hacksoncode (239847) | more than 2 years ago | (#39935983)

So, in this day of actuators and microcontrollers, how would you actually do this without getting rid of *all* patents?

It's become trivially easy to implement *any* part of any mechanism in software.

It's easy to make platitudes about this stuff... actually coming up with a rigorous legal definition that would rule out the things you like while still allowing the "good" patents is really hard, if not impossible.

Of course, perhaps all patents have outlived their usefulness... but that's a different discussion.

Re:Nice idea... Won't happen. (1)

whisper_jeff (680366) | more than 2 years ago | (#39936189)

Get rid of business process and software patents. They are proving to be a detriment to the software industry.

Get rid of automotive patents. They are proving to be a detriment to the auto industry.
Shall I continue or was that car analogy sufficient to communicate the point already? The patents exist in all industries and they manage to function just fine. The solution is simple - license the patent or innovate around the patent. Other industries do it so why should the software industry be different?

Re:Nice idea... Won't happen. (0)

Anonymous Coward | more than 2 years ago | (#39935223)

It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.

You are very much romanticizing the past. The use of patents to consolidate monopoly power goes back hundreds of years. Today software engineers are complaining about trivial patents, a hundred years ago it was electrical/radio engineers, and a hundred years before that it was mechanical engineers.

Does not reduce exposure to patent litigation (3, Interesting)

Morgaine (4316) | more than 2 years ago | (#39935843)

You're right for more than just the reason you give. TFA also fails to understand that the patent system is structured to encourage litigation and to benefit the legal profession on both sides of a patent conflict. TFA's suggestion would do nothing to change this.

Ideally software and business method patents should disappear altogether, but if one is seeking alternatives then the first goal should be to limit the audience exposed to patent litigation.

That can be done in a number of ways, one being to exclude private citizens and corporations below a certain turnover from patent liability altogether.

This would encourage the creation of many small competing businesses and would be hard for megacorps to argue against, because all politicians pay lip service to supporting small businesses. Also, the turnover cap automatically ensures that competing corps cannot grow to the size of the patent holder, so arguments against it are really quite weak.

As you point out, the incumbents would still fight tooth and nail against it, but they would be on much weaker ground than today, and most importantly, lawyers would be presented with a much reduced population of potential victims.

Note also that the many calls to limit patent duration drastically, eg. to 5 years, would have exactly the same effect of reducing the number of people exposed to patent litigation. That idea is good too, but it doesn't level the playing field as well as a turnover cap would do. Perhaps both approaches should be used together.

Bravo!! (1)

CPNABEND (742114) | more than 2 years ago | (#39935001)

This is all not only out of control, but INSANE! This needs to be fixed somehow, but I have little faith in the American government to even understand the problem.

Re:Bravo!! (1)

Hatta (162192) | more than 2 years ago | (#39935331)

They understand it all too well. It's just that from their perspective it's not a problem.

Yes (1)

jroyale (969238) | more than 2 years ago | (#39935027)

make them pay damages... but also, reduce the length of their patent. Whhoooppps, bogus law suit, that's move the termination of your patent from 2017 to 2014.

God is just (-1)

Anonymous Coward | more than 2 years ago | (#39935067)

Pray. The power of prayer is huge.

God says...
insane Moses Austria meh Ivory_Coast Shalom it_figures when_hell_freezes_over
I_am_not_amused jealousy Dean_scream okay job be_happy
I'm_in_suspense I_forgot North_Korea Iran Spain thats_just_wrong
wonderful beam_me_up ridiculous Poland Zzzzzzzz Kazakhstan
hobnob Belgium hate bad but_of_course little_buddy have_fun
I'm_God_who_the_hell_are_you little_fish Somalia Ivory_Coast
yep segway wife joking energy kick_back comedy Costa_Rica
could_it_be___Satan a_likely_story I'm_the_boss basically
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dance strip incoming I_can't_believe_it white_trash kick_back
Dean_scream how_do_I_put_this Ethiopia Great_Britain sloth
Paraguay hurts_my_head in_other_words petty test_pilot
Netherlands Tunisia Oh_Hell_No vice hurts_my_head Guinea
phasors_on_stun nope you_never_know awful Philippines
what_luck Ivy_league BRB This_is_confusing fancy

Small patent holders (4, Insightful)

Anonymous Coward | more than 2 years ago | (#39935081)

Just thinking about this, it might feed the patent trolls and mostly hurt small to medium sized companies.

If I'm a little guy and hold a patent that, say, Apple violates. I sue Apple and they simply say they spent a few million. It's a small amount for them but if I lose, I am bankrupt. So, it doesn't help the little guy.

So, my approach would be to "sell" my patent to a company I just formed for a couple of hundred bucks onllne and that corporate entity sues the big guy. If I win, that company has some scheme to pay me back the award. If I lose, I fold the temporary company and I'm out of pocket a few hundred bucks. Pretty close to the model used by patent trolls.

So, I can't see how this might be different...

moove (1)

ozduo (2043408) | more than 2 years ago | (#39935089)

Transfer your entities to my Planet where lawyers are shot on sight, all digital media is free, monogomy is outlawed and drinking to excess is mandatory. Bring cash!

Re:moove (1)

nschubach (922175) | more than 2 years ago | (#39935433)

Bring cash!

Are you trying to artificially inflate your monetary system with foreign money? Don't accept it. Make your own.

Won't work. (5, Insightful)

Caerdwyn (829058) | more than 2 years ago | (#39935125)

Scenario: a "little guy" gets a patent. A "big guy" violates it. The little guy takes the big guy to court, and the big guy throws an entire legal department at the little guy, and essentially buys the result. The little guy then has to pay treble damages of the expenses of that great big huge legal department, and goes out of business because of the punitive award. As part of the punitive award as the little guy goes under, the ownership of the little guy's patent then goes to the big guy.

Want a patent held by a little guy? Willfully violate it, then bleed the little guy dry with protracted court proceedings. You'll get the patent through bankruptcy. And if the little guy doesn't defend his patent... free IP!

Think it through. "Automatic" damages means you create a system that can easily be gamed by armies of lawyers far better at manipulating the system they crafted than you, and ties the hands of the judge to prevent it.

Re:Won't work. (0)

Anonymous Coward | more than 2 years ago | (#39935389)

I disagree. If you are a little guy, under the current system, you can still be bled dry. If the little guy loses, it pays treble damages, and goes bankrupt (the corporation, not the person/small corporation owner). That's really not different from the current system. The big guy, on the other hand, won't just go bankrupt. They have to actually pay out.

Re:Won't work. (0)

Anonymous Coward | more than 2 years ago | (#39935545)

Scenario A: It discourages patent suits. I'm okay with that result.
Scenario B:If the little guy's suit has merit, he can probably find a lawyer who'll take a slightly larger fee based off of the winnings.
In truth, the suggested solution is really a workaround to the fact that patents in their current form are given too easily, too numerous, and too long-lasting. The problem isn't just a corrupted patent office, but that politicians brag about how much intellectual property contributes to the economy rather than how much money it sucks from everyone's wallets. Money that could be used to buy -- and encourage the creation of -- things that take productive work to make, rather than are the result of a couple of people spending a lot of time figuring out how to game the USPTO into giving them rights that have no value to anyone outside of this artificial construct of patents.
A large part of the problem is that politicians, and most people, do not question the legitimacy of patents at all. If the question of whether patents are spurring innovation ever came up -- and I doubt it does -- they wouldn't actually contemplate the question and instead respond 'Yes.' in knee-jerk fashion.
From another side of it, I have a very smart software engineer friend who hears me complain about patents and thinks they don't really matter since (according to her) most software innovation is done in academic circles. She must assume that somehow that makes it so that all these unnecessary patents cannot affect people's lives, even though I've told her that they're a huge risk to me professionally. She is, of course, an academic, and if this is how other talented people in academia think, then they're helping continue this terrible system through their inaction (because they are, in fact, responsible for much of the genuine innovation in software, and so they have a fair amount of power).

Re:Won't work. (1)

gutnor (872759) | more than 2 years ago | (#39935973)

They would probably try to settle, and normally the amount should not be too miserable. As much as big companies can be evil, at the end of the day, they run a business - what they can buy for 1M they won't sue for 2M.

That works in the other direction aswell. Except for patent troll, there is very little to make buy shutting down a small business when it is cheaper to buy it. Again, that does not work with patent troll.

That is not good of course, that is a travesti of the original goal of patents in the first place, at best, the patent fail to protect the inventor, at worse they scare them off. Patents have jumped the shark - the cheapest way would be to ditch them for 50/100 years and see if trade secrets are really still a problem.

Re:Won't work. (0)

Anonymous Coward | more than 2 years ago | (#39936371)

I think trade secrets would still be a problem in specific areas where the means of production are what are patented and are controlled by the owner/inventor (i.e. pharmaceuticals and chemical processing/refining). They are unlikely to still be a problem where the consumer good (or part of it) is the patented object.

However that was never the major reason for patents, they were meant as a motivation for investment in research and development. That's still a valid reason in sectors where the barriers to entry from research costs are high compared to capital costs of production and marketing (i.e. pharmaceuticals), but software isn't one of those areas (and neither are most areas with business patents). Honestly, we know more about economics now than they did in the 1780s so we should be able to write patent criteria that reflect current economic understanding.

Re:Won't work. (2)

w_dragon (1802458) | more than 2 years ago | (#39936077)

Actual court cases prove you incorrect. If you were right patent trolls wouldn't be an issue. See NTP vs RIM or i4i vs Microsoft. Simply having more money isn't going to win you any trial where a layer could retire on 1% of the potential payout.

The little guy. (4, Insightful)

Hatta (162192) | more than 2 years ago | (#39935129)

Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent. I only have kilobucks to spend on a lawyer, while Conglom-O has megabucks. Predictably, their expensive lawyers beat my bargain basement representation. Now I'm on the hook for 3 times what they paid for their defense? How is that any better for me than the abolition of patents?

Re:The little guy. (1)

tomhath (637240) | more than 2 years ago | (#39935381)

Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent.

Well, that's basically the opposite of this article (which is patent trolls crushing you for misappropriating their patent). But I kind of agree, maybe it's time to abolish all patents, not just software. Then the little guy who wants to start a company can go head-to-head with the likes of Oracle - whether he's the inventor with a new idea or a start-up with a better implementation of an API.

Re:The little guy. (1)

NormalVisual (565491) | more than 2 years ago | (#39936033)

Then the little guy who wants to start a company can go head-to-head with the likes of Oracle

But then there's the problem of having no protection at all. Let's say you develop a spiffy new widget that solves a need in a genuinely novel way, but don't really have the capital to manufacture/distribute it. You talk to a manufacturer who passes on the idea, and then the next thing you know, your widget is available to the masses at Wal-Mart, made by an arm's-length affiliate of the original manufacturer, and soon after that by a multitude of manufacturers. It'll be impossible to prove breach of contract, and you get to sit by and watch as the widget sells by the million. After that experience you won't be nearly as eager to create something else novel that might benefit society, and this is the specific concern that copyrights/patents are supposed to address. I don't know that there's a good answer to the problem.

Re:The little guy. (3, Interesting)

Overzeetop (214511) | more than 2 years ago | (#39935397)

This is where the lawyers win. There will be law firms who will examine your case and, if it looks 80-90% winnable, will take it on commission - say 60% of the final award. You'll probably be on the hook for fixed percentage of the costs plus expenses in the case of a loss. The lawyers either cover their costs or win big, the little guy comes out even in the best scenario, and the megabucks write it off on the balance sheet and design around your patent.

Re:The little guy. (1)

w_dragon (1802458) | more than 2 years ago | (#39936091)

Explain i4i vs Microsoft then.

Fix... (1)

maz2331 (1104901) | more than 2 years ago | (#39935183)

We REALLY need to set up single-payer legal representation, even before looking at it for medical care.

Re:Fix... (1)

slew (2918) | more than 2 years ago | (#39935595)

Single payer legal is probably even worse than single payer medical. The biggest problems with single payer medical is manyfold, but mostly over-use/fraud and rationing.

Even though perhaps some wacko wants every diagnostic test known for imaginary conditions or perhaps someone helps a doctor friend (or some friendly doctor that is giving kickbacks) to overuse (or just overbill) some unneeded or fictitious medical procedure, there is a quantifiable physical upper limit on the amount of overuse/fraud one individual patient can abuse and ways to limit this (although perhaps unpopular). This make it easy to apply statistical law-of-large numbers to the problem of wacko patients and money grubbing doctors (assume there is some distribution) and at least come of with a workable solution as many countries have. On the legal front, there is probably no practical upper limit (lawyer can sue other lawyers, but perhaps there is some universal physics limit of physical paper and motions that can be field per nanosecond).

Then there's the rationing side. Although it may not seem like it, there's probably a limit of legal resources and just like doctors, not all lawyers are interchangeable. Who gets the good lawyers? Who decided what cases are not worth defending? With medical at least there are scientific boards that are supposed to look at medical outcomes. Who would do the lawyer rationing?

Perhaps we can make legal coverage somewhat like worker's comp insurance. You pay into the system depending on your rating, and you are somewhat covered for legal expenses to address some of the short comings of the current system (people object to this type of price based rationing scheme in the general individual medical insurance premium world, but apparently tolerate this in the business world). But those that are dig down in that area tend to see that most worker's comp insurance schemes are full of fraud and waste and are sink-holes of money as well that mostly serves to enrich the "tool-makers" the worker's comp medical provider organizations and the shady businesses that contract with them, and not as much for the workers.

Maybe there's some way to do all this, but it isn't apparent in any of the institutions that we currently have set up to date.

How about this solution. (0)

Anonymous Coward | more than 2 years ago | (#39935187)

All "software" patents are null and void, everyone who owns one can shove it back into the math-book from whence it came.

Simple and cheap.

Treble fees isn't quite right (0)

Anonymous Coward | more than 2 years ago | (#39935205)

So that is an interesting idea, but treble the defense costs isn't quite enough. They need to determine upfront how much they are suing for. Then, if they lose - they pay the legal costs, plus what they were suing for (as recompense for the annoyance they caused and any possible injunctions, loss of business etc.). Oracle sues Google for a billion dollars? Then many of the patents get thrown out and the copyright part of the case is incredibly dubious (patenting the structure and sequence of an API, LOL)? Well, they may just owe that billion to Google - plus the legal fees.

Writing laws is like writing software (2, Insightful)

Anonymous Coward | more than 2 years ago | (#39935225)

It's easy to write something that works correctly for the situation you have in mind; the challenge is to make sure that it also works correctly in all the other situations that may arise in practice. Whoever suggested the law described in the summary is, I'm sure, not a good lawyer or a good software engineer,

wait what? (0)

Anonymous Coward | more than 2 years ago | (#39935231)

This has to be the dumbest solution I have ever heard.You just said the companies are small, so how will the fight the case to begin with? It reminds me of the cost to become a minister in the church of subgenius, if you don't get eternal salvation after death you get TRIPLE your money back. Just like how in this scenario this if you win you get so much more than you put in, the problem lies in how will you win if you have no resources.

I propose 10000x your legal costs after winning surely that will give you the INITIAL capitol to defend yourself. /sarcasm

Too complicated (4, Insightful)

king neckbeard (1801738) | more than 2 years ago | (#39935235)

Why not just get rid of patents altogether, or at least software and business method patents?

problems are caused by the patents on mathematics (0)

Anonymous Coward | more than 2 years ago | (#39935245)

As any undergrad learns, all software is mathematics.

Patents on software should be explicitly prohibited, as they are a branch of Mathematics which is already prohibited from patents.

Re:problems are caused by the patents on mathemati (1)

NormalVisual (565491) | more than 2 years ago | (#39936059)

I agree that software patents are ridiculous, but this is an issue that extends to patents outside the software world.

So basically make it suicide (3, Insightful)

nedlohs (1335013) | more than 2 years ago | (#39935249)

for the little guy who invented something, say a more efficient engine, to sue the huge corporation that just copies their invention.

Since if he loses he gets hit with 3x the costs of the defendant's super expensive lawyers if he happens to get an idiot jury or made some technical error somewhere.

I have a simpler solution - only grant patents for things that are actually inventions. "A button which when clicked buys the product for the user using the credit card they entered previously and the shipping address they entered previously" is not an invention, for eample.

The FIX (5, Interesting)

andydread (758754) | more than 2 years ago | (#39935261)

- Limit all patents to 5 years
- Abolish UI/Gesture and all software patents
- Abolish lifeform and seed patents.

Re:The FIX (0)

Anonymous Coward | more than 2 years ago | (#39935431)

Or just abolish patents in general... The real innovative stuff is kept secret anyways.

Re:The FIX (0)

Anonymous Coward | more than 2 years ago | (#39936103)

Robert Kearns [] might disagree.

Re:The FIX (1)

Anonymous Coward | more than 2 years ago | (#39935449)

- Limit all patents to 1 to 15 years. Based on peer review of degree of innovation and level of research required.
- Place restrictions on licensing fees. Also based on patent's degree of innovation and amount of research.

Re:The FIX (1)

Grond (15515) | more than 2 years ago | (#39935555)

- Limit all patents to 5 years

Startups often take at least that long to get going, whereas established companies already have the funding and infrastructure in place to move products to market. If the patent term is too short then patents have no value for startups but retain value for established companies.

And what about patents for things like pharmaceuticals and other products that have long regulatory lead times? What if the patent covers a technology that needs a breakthrough in another area in order to be commercially viable?

Abolish UI/Gesture and all software patents

First, come up with a definition of "software patent" that is neither overinclusive nor underinclusive, unambiguous, and cannot easily be gamed. Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment.

Abolish lifeform and seed patents.

This seems like a bit of a non sequitur. Anyway, you have the same Fifth Amendment problem.

Re:The FIX (1)

mark-t (151149) | more than 2 years ago | (#39935735)

Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment

It's worth pointing out that slave owners received no compensation when slavery was no longer legal. Why should patent holders?

Re:The FIX (1)

Grond (15515) | more than 2 years ago | (#39935811)

Because slavery was abolished at the constitutional level. Prior laws abolishing slavery typically did so gradually in ways that avoided takings claims. When Congress abolished slavery outright in the District of Columbia in 1862, it compensated slaveowners loyal to the Union. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment [] , 94 Va. L. Rev. 1367, 1373 (2008).

I suppose a takings claim could be avoided if software patents were abolished by constitutional amendment, but that's incredibly unlikely.

Re:The FIX (0)

Anonymous Coward | more than 2 years ago | (#39936243)

Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment

Allocate $100 million from state funds to be split by interested parties. All interested parties are responsible (together) for figuring out how the money should be split up. The split should occur within 5 years. No litigation allowed. Should be fun to watch.

I have patented a method for delivering a horse's (1)

Ranger (1783) | more than 2 years ago | (#39935271)

head into the bed of each member of the patent mafia. Just license the technology and I'll make them an offer they can't refuse.

An ass backwards solution (4, Insightful)

wbr1 (2538558) | more than 2 years ago | (#39935273)

What you are proposing is simply putting a band-aid on a bullet wound.
You have (ineffectively) treated a symptom of a broken system, and as others have pointed out, left the system ripe for abuse from the privileged still.
The system needs to be rewritten from the ground up. Unfortunately this will never happen. The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations. That concentration is little different than the robber barons, or lords over feudal serfs abusing their position. Until the people put down their bread, and turn off their circuses, these abuses will continue.
Spread the word, proclaim intelligently the injustice of the current system to all who can and will hear, write your congress critters, bitch and moan if you have to as well, but stand up too, and encourage all you know to stand up as well. Otherwise eventually you will have no legs to stand on, because those have been patented or outsourced too.

The problem of Civil Disobedience (0)

Anonymous Coward | more than 2 years ago | (#39935319)

The first thought to enter my mind was "civil disobedience". However this is one of many problems in our current society where CD is ineffective.

In the classic case of CD, the barrier is low. Black? Sit on the bus. Yes, you'll get beaten by cops and KKK, maybe even killed; but all you have to do is make the decision and you can participate.

CD against ummm... CDs isn't too hard either. The music industry knows this. People keep downloading, they keep losing money, and so on and so forth. The problem will eventually solve itself. Once again, the barrier to entry is low.

This brings us to patents. In most cases, long before you are marketing a product, you have taken VC money. You're part of the system and even if you tried to disobey they'd have you off the board of directors in no time flat.

In short, the "mafia" does not derive much revenue from people in a position to disobey. If you manage to commercialize something, or even just use something, they can crush you with a patent and they have nothing to lose and everything to gain from said crushing.

End all patents & copyrights (0)

Anonymous Coward | more than 2 years ago | (#39935337)

And you will see these scumbag companies face real competition.

Bottom line, that is what needs to be done. Abolish the IP cartel so we can have real markets, not restricted ones.

Re:End all patents & copyrights (0)

Anonymous Coward | more than 2 years ago | (#39936025)

Eliminate all IP, and the IP market devolves into the skilled labor market. If you can't eliminate trade secrecy (and you probably can't) then many software packages would only be available to thosse capable of hiring the skilled labor to produce them. A firm isn't going to release their source simply because you abolished IP. If you're suggesting that they should be required to do that, then you're Libertarianism is just as Statist as our copyright regime.

In other words, your solution is "simple and wrong".

Oracle & Google over Java (1)

bmullan (1425023) | more than 2 years ago | (#39935349)

Oracle can't innovate into the future so they are going to be Patent Trolls.. how pitiful Ellison.

Doing it wrong (0)

Anonymous Coward | more than 2 years ago | (#39935405)

You're doing it wrong if you lose a patent suit. Either your patent was wrong in the first place (no research done for prior art?) or you sued the wrong target who didn't use your patented device thing. Unlike copyright, patents are almost black and white in decision. Given you have a company big enough to even apply for patents (which in itself costs a fair amount), you should be able to afford lawyers for defending your patents, and if your patents are correct, you should be damn well winning. There's nothing even big companies can do.

Problem is trying to figure out if they really did violate your patent; easy enough when you have a physical device in your hands to dissect it to your wishes, but software is protected in all sorts of ways (try to prove a big company's violating your patent when it's running only on their servers, and where reverse engineering attempts can be called "hacking" which is criminal offense around here) that makes this next to impossible. THAT is why software patents are a bad idea, it just doesn't work in that world.

Otherwise, we absolutely need patents. It works, and it'll continue to work for all the things patents work for, which is most anything except software.

This leaves the little guy just as vulnerable (2)

TheObruniSpeaks (808463) | more than 2 years ago | (#39935457)

In your world the big guys are even more free to abuse the little guy; now the big guys are instead free to infringe on the little guy's patents without compunction, because the little guy dare not sue for infringement. God knows the big guy will spend a lot to defeat your infringement claim...and now not only is your case hard to win, if you lose, you are completely screwed. Almost everything I see on slashdot about fixing the patent system would actually make it worse, particularly for the little guy people here so love to defend. There are certainly problems, but they take a hell of a lot more thought than you're putting in to fix them.

Standard Reaction Form Letter (1)

Anonymous Coward | more than 2 years ago | (#39935497)

You appear to be proposing a
  [ ] Technical
  [X] Legislative
  [ ] Vigilante

approach to patent reform.

Sorry, but your ideas won't work.
One or more of the following may apply: ...

Ok, I don't have the patience for this anymore. Someone else fill out the standard form.

This idea is worse than the status quo (1)

Balial (39889) | more than 2 years ago | (#39935517)

If the little guy sues he's liable for triple damages? Which is probably a drop in the ocean for the big guy? This is meant to improve the situation how?

There is no problem with the patent system (0)

Anonymous Coward | more than 2 years ago | (#39935541)

For those that can afford to buy the legislators, the patent system is working perfectly. Unless you have hundreds of millions to lobby and support the legislators, you will never change the patent system - it is working just as the incumbents require.

Congratulations (2)

taustin (171655) | more than 2 years ago | (#39935551)

You've just made it profitable for big companies with on-staff lawyers to completely stop innovating. Instead, they can just see what other, smaller companies are doing, and copy it, patent or not. Because no small company will ever dare sue for patent infringement again.

what about this? (1)

znrt (2424692) | more than 2 years ago | (#39935557)

1. WE declare patents null.
2. we refuse to pay for patented stuf
3. we exercise our natural right to use any stuff available for free happily disregarding any patent.
3.1. a simple citizen doing 3 should have nothing or little to fear
3.2. a startup doing 3 is surely screwed, but screw them. get a job, invest in something else, whatever but just stop whining, this is war.
3.3. a corporation doing 3 will enoy big time litigating with other corporations for the monopoly of products nobody will buy as result of 2. be my guest.

An alternative (1)

Anonymous Coward | more than 2 years ago | (#39935567)

... is simply to abolish the entire patent system.

So, to get money from your 'great idea', you publish the plans/theory/math/computer code/whatever in a technical magazine, get paid for the article, and move on to your next great idea.

USMegacorp will scan the magazines, see your article, and perhaps start manufacturing your WonderWigets, but so will ForeignCorpClonersInc.

The end result is that since anybody can use your idea, no one company is going to make obscene profits, because any other company can make the same thing and under-price them (to the limits of costs-of-production).

USMegaCorp could try traditional anti-competitive techniques -- sending out physically-large individuals with metal pipes to various competing factories and saying (with an appropriate East Coast accent), "Say, Mister. That's a real nice factory you got there. Be a shame if anything was to happen to it."

But that method doesn't work well with innumerable ideas and innumerable factories -- China has a lot of real estate to cover.

The speed of innovation would increase, due to low-cost/free access to other peoples' ideas ("standing on the shoulders of giants"), and due to inventors quickly moving on to develop their next idea.

The dis-advantage of this is that rampant technological advance is not always good -- humans' power usually outstrips their wisdom and morality.

Hmmm. Okay, never mind, just leave the patent system the way it is now.

How about simply enforcing the existing law? (1)

Anonymous Coward | more than 2 years ago | (#39935583)

How about simply enforcing the existing law?

Namely, that patents must not be granted for ideas that are obvious to a practitioner with ordinary skill in the field.

The utter abandonment of that standard is a leading cause (although not the sole cause) of our patent mess.

The obviousness test is still the law of the land in the US. The US judicial branch has been derelict in their duty to uphold this law.

That $500 Billion Figure (1)

Grond (15515) | more than 2 years ago | (#39935619)

The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book Patent Failure).

RICO could have never been passed in 21st century (1)

k6mfw (1182893) | more than 2 years ago | (#39935627)

It seems to me back in 20th century there were people in positions of power that put service above self that passed RICO, and also other laws and programs which helped the little guy. And some them little guys used some of these benefits to become big guys. Now I don't think such could ever be passed, and what does exists is being torn down or when new laws passed it helps only the big guys. Though I was thinking back then the "big guys" would shoot it out with each other (i.e. mob battles with tommy guns), and at times little guys get caught in crossfire. Nowadays the big guys "slug it out" in the courts, and the little guys indirectly either pay more for products or earn less from their work.

Treble? (0)

Anonymous Coward | more than 2 years ago | (#39935795)

WTF is a "treble reward"?

If can't be erased, force it only to small amounts (1)

cribera (2560179) | more than 2 years ago | (#39935809)

That way youd prevent huge companies to abuse small players. The patent trial could have a max amount of payment for the losing side. Lets say only 50 k U$. That way, huge corporations would be discouraged to hire an army of lawyers. Apart from bringing more fairness, that way software money wont go to lawyers. Lawyers are getting wealth as parasytes, from other people's work, and that must be stopped, if you want the society to keep evolving. Money should go to the guys who produce, not to the guys who litigate.

abolish patents and copywrong (1)

johnwerneken (74428) | more than 2 years ago | (#39935871)

How about abolish the whole idea of intellectual property? Got an idea and can commercialize it first, good for you. If not to either, you lose. Most law is to avoid private violence; I don't see that as a problem here.

viral anti-patent foundation (1)

Richard_J_N (631241) | more than 2 years ago | (#39935889)

What we need is a viral anti-patent system, designed to be stronger than the GPL with the intention of destroying the patent system together. Like OIN (the open invention network), but with real teeth. Here's how it would work:

0. Philosophy: intellectual monopolies are completely wrong, opposed to the scientific method, economically evil, and morally unjustified. Nobody can own an idea, and everyone stands on the shoulders of giants.

1. Create a "public patent foundation" (PPF) similar to the FSF.

2. Anyone with an invention can grant their idea (or patent) to the PPF. Anyone may license a PPF patent, royalty free, provided they are not involved in offensive patent litigation.

3. The PPF makes its patents available to anyone for the purposes of counter-suit.
No matter who you are, if you are the victim of a patent lawsuit, then (unless you fired first), the PPF will lend any of its patents to you for you to counter-sue the aggressor..

4. If the PPF wins a lawsuit, the settlement terms would include all patents of the loser being shared with the PPF.

5. The result is that the PPF would eventually hold a large majority of the patents worldwide. It would allow anyone to use these, royalty free, but would demand that users of PPF patents covenant never to sue in a patent lawsuit.

6. As a pragmatic (but non principled exception), we might exclude pharma-patents from this.

What Exactly Can I Do Again? (0)

Anonymous Coward | more than 2 years ago | (#39936089)

The title of this post suggests there's something specific *I* can do to break up the "Patent Mafia", then goes on to say "Simple, you just implement this new law" (the content of which I don't particularly agree with, btw) and presto! Maybe you have the Elder Wand or something but I don't know how to just enact laws. Point me to a petition and maybe I'd sign it or an initiative and I'd vote for it (actually, probably not because I don't like your idea). Or just retitle your article. Here are some ideas:

I Am High

How To Kill Small Business

A Brand New Way For Your Startup To Fail

Perjury penalties for filing w/o good prior art (0)

Anonymous Coward | more than 2 years ago | (#39936139)

Yes, I agree that software/process patents are a bad idea. But getting rid of them ain't gonna happen any time soon.

To even the scales a bit, I would also like to see that the original patent filer (attorney or corporate officer) swear under penalty of perjury that they've carefully sought out prior art. This would mean that someone who hasn't done a good job looking for examples of prior art could go to court/jail.

Nothing focuses the mind so much...

I'll take a stab at this game... (2)

CrazyDuke (529195) | more than 2 years ago | (#39936205)

How about: the amount one party spends in legal fees must be matched at some ratio and paid to the other party, regardless of guilt, to be itemized and balanced by the end of every month.

For a 1:1 example:
Joe Blow, owner of Joe's Cups of Joe of Skid Row, OK gets sued by Joe Mamma, Inc., where Joe Mamma dumps $200K every month into lawyer fees, legal research, expert witnesses, court filings, etc... and Joe only spends $5K to retain Jimmy Shyster of Shyster, Benedict, and Arnold. Joe Blow would end up having to match 5K to Joe Mamma, Inc and Joe Mamma, Inc. would have to reimburse Joe Blow for $200K.

That fraking lawsuit had better be worth it to Joe Mamma, Inc.

Stopping the inevitable Hollywood accounting would be a major issue, of course. Would anyone like to pull that idea apart any further?

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