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Congress Proposes Strategy For Fighting Patent Trolls

samzenpus posted about a year ago | from the use-fire-or-acid-to-stop-the-regeneration dept.

Patents 96

phantomfive writes "Congressman Charles Schumer has written a piece decrying the evils of patent trolls. 'Because of the high cost of patent litigation—the average litigation defense costs a small or midsize company $1.75 million—it is often marginally cheaper for a defendant to pay up front to make the case go away. The average settlement for the same group of companies is $1.33 million....Patent trolls cost U.S. companies $29 billion in 2011 alone.' His solution? Make it easier for low quality patents to be re-examined and rejected by the patent office."

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Oh, So now only the big boys (0, Troll)

hsmith (818216) | about a year ago | (#44005693)

Can afford the endless rexaninations of their patents? Chuck is bought and paid for, so this won't help the little guy.

Re:Oh, So now only the big boys (0)

fizzer06 (1500649) | about a year ago | (#44005743)

Even scum refers to Shmucky as "scum".

Re:Oh, So now only the big boys (4, Insightful)

MickyTheIdiot (1032226) | about a year ago | (#44005845)

Who is paying him to say this?

I'm sorry.. the last 2 years especially have left me with nothing but cynicism. Congresscritters are ALL paid spokesman. Who is paying him to say this?

I don't care if I agree or not... every one of these idiots is a shill in one way or another and regardless of party.

Re:Oh, So now only the big boys (3, Funny)

jkflying (2190798) | about a year ago | (#44006005)

Samsung?

Re:Oh, So now only the big boys (4, Informative)

Bearhouse (1034238) | about a year ago | (#44006623)

Agree it's hard to believe these days, but he actually, he seems to be one of the good guys.

He previously co-sponsored legislation to help fight bullshit "business methods" patents,

https://www.eff.org/deeplinks/2013/05/another-bill-fix-patent-troll-problem-well-part-it [eff.org]

And now simply wants to extend that to other areas. Text of proposed bill here.

http://thomas.loc.gov/cgi-bin/query/z?c113:S.866 [loc.gov] :

Hat tip to EPP for article.

Re:Oh, So now only the big boys (1)

Immerman (2627577) | about a year ago | (#44007739)

Don't let idealism stand in the way of progress. Politics is a dirty game, and yes you can be fairly certain that just about everyone playing is corrupt, especially at a national level. That doesn't mean they can't be good allies in specific battles. There's lots of conflicting ideas about what an "ideal" government would look like - that's one of the main reasons why we have representatives rather than just an elected king - the idea is to force compromise between conflicting ideas. So support congressman X's position when it moves things in a direction that helps your own cause, just don't get caught up in the idea of "loyalty", because if they're loyal to anyone or anything besides themselves it certainly isn't you or your ideals.

Still, your quite right that it's good to know who's paying them - it'll likely give you at least some idea as to what sort of loopholes and legal back doors to be on the lookout for. But don't limit yourself to who's paying them for just this legislative position - it's perfectly possible they're advancing Group A's agenda in the large print, while simultaneously advancing independent or even conflicting groups agendas in the loopholes.

Re:Oh, So now only the big boys (1)

Beeftopia (1846720) | about a year ago | (#44011105)

Who is paying him to say this?

OpenSecrets.org takes a lot of the mystery out of who is paying whom in politics. [opensecrets.org]

As far as Chuck Schumer goes, the information is here. [opensecrets.org]

I'm sorry.. the last 2 years especially have left me with nothing but cynicism.

It's not cynicism, it's realism. It's a simple understanding of normal, rational human nature, and how the system works. The Founders instituted a system of checks and balances because they understood it would be self-interested, normal, rational humans who would be leading the country. They weren't cynical in doing this, merely taking into account reality and trying to reach the best outcome.

I hear politicians always say, to the effect, "Trust us, or else you're cynical." It's stupid and naive to believe their words. Look at their actions, and who is paying them to get a clearer picture of what they're trying to accomplish. They are normal, rational, self-interested people and will do things to help their current financial position, their future financial position, help their friends and contributors, and punish their enemies.

Be skeptical of politicians. The Founders were.

Re:Oh, So now only the big boys (1)

psithurism (1642461) | about a year ago | (#44011239)

"Who is paying him to say this?"
Any of a dozen U.S. companies?
"Patent trolls cost U.S. companies $29 billion in 2011 alone"

Of course even the summery points out: "low quality patents to be re-examined," so probably only mega-corps are immune from this.

Re:Oh, So now only the big boys (2)

gmuslera (3436) | about a year ago | (#44006919)

This is for protecting the big boys, not the small ones. Is not that patents cost everyone 29 billons, is that cost to big companies, they are free to do their share of the trolling, do innovation or not (i.e. MS requiring android device makers to pay them for their FAT patent). Of course, also go to some of the ones that only troll. But is not a solution, just another way to give even more leverage to the big companies.

Fire & Pitchforks (0)

Anonymous Coward | about a year ago | (#44005719)

It's the only way (except for sharks in space with lasers).

Low Quality (4, Insightful)

SJHillman (1966756) | about a year ago | (#44005737)

"Make it easier for low quality patents to be re-examined and rejected by the patent office."

Who determines if a patent is "low quality"? A certain low quality congress critter?

Re:Low Quality (4, Insightful)

cheekyjohnson (1873388) | about a year ago | (#44005769)

Easy: All patents are low quality.

Re:Low Quality (3, Informative)

MickyTheIdiot (1032226) | about a year ago | (#44005891)

I *hate* the idea of "Intellectual Property" in general. If you want a governmental power that has overreached its constitutional intent you can't find a better example. However I don't think EVERY patent is low quality. We need *limited* patents and limited copyrights with curbs that make them difficult to use as offensive weapons. They need to be inventor and artist focused instead of corporation focused. And we need patent examiners that have the knowledge and the time to say that patent is B.S.

Of course we aren't going to get that in a corporate dominated government.

Re:Low Quality (0)

progician (2451300) | about a year ago | (#44006895)

The whole idea of Intellectual Property comes in to play because companies wanted to assume monopoly over tech/entertainment markets. The current legislation behind patents and copyrights is a result of this effort via lobby, and on the public relation front of it is this crusade for IP.

Re:Low Quality (4, Insightful)

tlhIngan (30335) | about a year ago | (#44008127)

The whole idea of Intellectual Property comes in to play because companies wanted to assume monopoly over tech/entertainment markets. The current legislation behind patents and copyrights is a result of this effort via lobby, and on the public relation front of it is this crusade for IP.

Except patent wars are old - they date back to the 19th century. Likewise copyright wars. It's really a case of everything old is new again - we've been repeating history for ages now.

Anyhow, the main problem is software shouldn't be protected at all - at least not by traditional copyright NOR patents. The thing is, software is kind of strange. Before software, people wrote stuff for consumption - books, musics, movies, plays, etc, which clearly fell under copyright law. And people made "stuff" to do things - machines, tools, etc., which clearly fell under patent laws.

But now software (which is really just tech's turn at the patent wars - everyone else has gone through it years ago - automobiles has had patent wars rage on since the late 19th century) is really quite different. Very rarely is it written for purely human consumption (the source code, that is), and the compiled/transformed form isn't usable to anything but a computer. Even worse, you write software to do useful things, which also make it fall under patents.

And that's the problem - patents and copyrights are meant to cover things that don't overlap - pretty much mutually exclusive. Software isn't - you write it, compile it (which can make it come under copyright law) but which can do things of utility (e.g., do stuff), which falls under patent protection. Neither is right, and neither is wrong. (And to confuse things further, software can be hardware, when it's written and compiled to RTL and silicon). After all, given something can be both patented AND copyrighted (which never happened before...), that should be a red flag that the laws are inadequate.

What needs to happen is recognition of this - the special state of software that you write, but not necessarily for purely human consumption (you can consume the *output* - e.g., games, but rarely is source or binary code appreciated as-is).

It would offer protection, but of a different form adapted to the qualities it possesses - do you protect the algorithm (patent), or the implementation (copyright)? Why not a modified form of that protects both, respects that sometimes things can only be done one way and thus have mandatory licensing, appreciate that multiple implementations can exist and be protected as one unit, etc.?

You still get the protections and restrictions that make open and free software possible, but you eliminate trying to bend patent and copyright laws to handle software.

Re:Low Quality (1)

Immerman (2627577) | about a year ago | (#44007907)

Indeed. I'd be wiling to bet that just one tiny reversion in the patent process would drastically improve the quality of issued patents: Go back to requiring the president to personally sign each granted patent. If we were only granting a few thousand patents a year as we originally did that would be a non-issue, just a few more signatures per paperwork-filled day. But there's no way he could hope to sign the thousands of patents per day that are currently being granted. Limit the process to only a few patents per day granted and the patent office starts to look *really* incompetent to the big players when they try to waste the presidents's time with patents on a slightly different flavor of fizzy sugar water or similarly useless dreck. Patents were supposed to help promote the advancement of the human condition, not just grant businesses private market fiefdoms for the heck of it.

Re:Low Quality (1)

computererds (1613487) | about a year ago | (#44009293)

Article One, Section 8(8) of the U.S. Constitution:

"The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Patents are very constitutional-- however this whole "corporations are people" thing is a complete perversion of the 14th amendment.

Re:Low Quality (1)

cheekyjohnson (1873388) | about a year ago | (#44018553)

I think that's what he was pointing out: copyrights and patents don't seem to be promoting the progress of science and useful arts any longer (putting aside that there's no real evidence that they ever did so in this day and age), and since that's the entire reason they exist, the laws could be considered unconstitutional.

Re:Low Quality (1)

chrismcb (983081) | about a year ago | (#44013963)

If you make it difficult to use patents and copyrights as "offensive" weapons, then how do you protect your patent or copyright? And how are the more corporation focused than inventor/artist focused?

Re:Low Quality (0)

Anonymous Coward | about a year ago | (#44005777)

Who determines if a patent is "low quality"? A certain low quality congress critter?

Easy, do it by date. If it's been approved in the last 20 years it needs to be re-examined.

Re:Low Quality (2, Funny)

Anonymous Coward | about a year ago | (#44006181)

Easy Chuck Schumer is a democrat. So if the patent is owned by a GOP supporter it is low quality, if the owner supports the DNC it is high-quality.

Why should the patent office run different than the IRS.

Re:Low Quality (-1)

Anonymous Coward | about a year ago | (#44006447)

You're a fucking idiot if you really think there is really a distinction.

On an side note, if the IRS sent hired thugs to the headquarters of every tea party group in the nation, to forcibly sodomize (although some of it wouldn't have to be so forcible) all of their leaders, I still wouldn't care and it still wouldn't be as bad as what they really deserve.

Re:Low Quality (1)

Onos (1103517) | about a year ago | (#44007155)

I shouldn't answer an AC troll but, you really are fine with the government in power using one of it's departments to make life hard for it's opponents while giving passes to it's supporters? You do realize that democrats will not be forever in power, and if it is fine now well I imagine it will be fine for a republican government to look into the tax exempt status of media matters and moveon and planned parenthood, right?

Re:Low Quality (5, Interesting)

gtbritishskull (1435843) | about a year ago | (#44008155)

I would just like to point out that the only thing that the IRS did was to take a long time and ask a lot of questions. 501(c)4 organisations can self-designate themselves, so they can go ahead and act like they are a 501(c)4 until the IRS actually denies them. And if they are denied, they would just have to pay back taxes and declare their donors. But, the election is over now, so if they were denied now no one cares anymore who donated to who.

And, if their consciences were clear and their motives were pure, then they wouldn't need to worry about eventually being denied because they wouldn't be. The problem is that most of them were planning on, and did, spend money on politics. I think the whole lot of them should be put in jail (my tax money subsidized their politicking), instead of being lauded on Faux News as "victims". This whole "scandal" is just political manipulation by the Republicans (who do you know of any political affiliation who doesn't like to hate on the IRS) and all of the sheeple like you are falling for it. The real problem is that during this time period the number of 501(c)4 applications doubled (and that doesn't even count the organizations who self-designated) while the IRS budget and workforce was cut.

So, basically, the Republicans have this political philosophy of "starve the beast" (keep government responsibilities the same but cut its budget) but scream when the lack of funds results in government being less effective (at least to their constituents - they are fine when it just affects poor people). And they want to try to project it as some grand conspiracy instead of recognizing it as some overworked government employees trying to be more efficient (god forbid the government actually try to be efficient - then Repubs couldn't get up on their soapbox and preach about how much better the private sector is).

Re:Low Quality (0)

Anonymous Coward | about a year ago | (#44008945)

I used to wonder why it was so difficult to pass the Civil Rights bill of 1964. Obviously the government was illegally oppressing blacks at the time and everyone knew it. I wondered how people were so unethical that they supported this governmnet oppression.

Then I read comments like the above. Its perfectly acceptable to the above poster for the government to illegally opporess people he doesn't like. I guess history does repeat itself.

Re:Low Quality (0)

Anonymous Coward | about a year ago | (#44009779)

I love how that is considered informative, when in fact quite a bit of it is complete and utter BS.

The problem is that most of them were planning on, and did, spend money on politics.

Of course 501(c)4 are allowed and do actually provide money in politics. From wiki:

501(c)(4) organizations may inform the public on controversial subjects and attempt to influence legislation relevant to its program and, unlike 501(c)(3) organizations, they may also participate in political campaigns and elections, as long as its primary activity is the promotion of social welfare. The tax exemption for 501(c)(4) organizations applies to most of their operations, but contributions may be subject to gift tax, and income spent on political activities - generally the advocacy of a particular candidate in an election - is taxable.

I think the whole lot of them should be put in jail (my tax money subsidized their politicking)

But your money going and subsidizing the democratic supporters is fine, Moveon.org, MediaMatters, all of George Soros' little groups:

David Brock established Media Matters Action Network to track conservative politicians and organizations. Organized as a 501(c)(4) nonprofit group, the organization can lobby and engage in political campaign work. The New York Times reports that it is "set to take on an expanded role in the 2012 elections, including potentially running television ads".

This whole "scandal" is just political manipulation by the Republicans

I guess the inspector general is in bed with the Republicans, because his report said that tea party groups were being targeted. We're not talking here about the same scrutiny being put on both sides. Just on one of them, which happens to be the one which is not in power, the one which the majority of the IRS union does not donate to.

And they want to try to project it as some grand conspiracy instead of recognizing it as some overworked government employees trying to be more efficient

Yah, I'm sure it was just some low level people, which decided that tea party, patriot, etc. are bad words

Re:Low Quality (1)

Hotawa Hawk-eye (976755) | about a year ago | (#44010413)

I love how that is considered informative, when in fact quite a bit of it is complete and utter BS.

The problem is that most of them were planning on, and did, spend money on politics.

Of course 501(c)4 are allowed and do actually provide money in politics. From wiki:

In my opinion, if you're not allowed to vote for a candidate you should NOT be able to provide money, goods, or services to the candidate's campaign (other than at normal prices; I'm okay with the supermarket selling a candidate's campaign steaks for an $N per plate dinner as long as he or she pays the same price the supermarket would charge me or anyone else buying the same quantity of food, for example.) I'd make an exception for people too young to vote who are doing it as some sort of citizenship/scholastic activity (for a Boy Scout merit badge or as part of a class project, for example.)

Re:Low Quality (0)

Anonymous Coward | about a year ago | (#44011447)

I don't get drug dealers.
Why don't they just have someone set up a 501(c)4, and then just filter all their money through it.
No need for money laundering. It's all legal. (the filtering money through it, not the selling drugs part)
You donate the money, and whoever is in control of the 501(c)4 can do whatever he wants.
You wouldn't even have to worry about the IRS checks, since you're not spending money on the election.

Re:Low Quality (0)

Anonymous Coward | about a year ago | (#44007345)

to forcibly sodomize (although some of it wouldn't have to be so forcible) all of their leaders

Nice, so now you're comparing innocent gay people to the Tea Party. Homophobia rears its ugly head!

Congressman? (4, Informative)

mooingyak (720677) | about a year ago | (#44005757)

Congressman, while generic, usually refers to members of the House. Schumer is a senator.

Re:Congressman? (2, Informative)

Anonymous Coward | about a year ago | (#44005815)

http://en.wikipedia.org/wiki/United_States_Congress

Lower house = The "House".

Upper house = The Senate.

It refers to both.

Re:Congressman? (0)

Anonymous Coward | about a year ago | (#44006029)

While it technically refers to both, in common speech it typically is used only for members of the House of Representatives.

Re:Congressman? (0)

Anonymous Coward | about a year ago | (#44006031)

Yes, you managed to reiterate the point of the original poster, while providing less information.

Re: Congressman? (1)

AvitarX (172628) | about a year ago | (#44006045)

House, though generic, usually refers to the lower house.

Re:Congressman? (1)

headhot (137860) | about a year ago | (#44006087)

He said usually. While it is technically correct, the common use or Congressman for the house Senator for the senate.

Re:Congressman? (1)

Impy the Impiuos Imp (442658) | about a year ago | (#44006159)

Hence what he said: "While generic..."

Re:Congressman? (0)

Anonymous Coward | about a year ago | (#44006173)

So... he used the term correctly. Thank you. Technically "congressman" refers to the male members, but you were close. Good try.

Re:Congressman? (0)

Anonymous Coward | about a year ago | (#44006839)

That is incorrect. "Congressman" refers to both male and female representatives. Use of other terms is only insisted upon by PC idiots.

Re:Congressman? (1)

HornWumpus (783565) | about a year ago | (#44008237)

Female senators prefer to be called 'Ma'am'.

Re:Congressman? (0)

Anonymous Coward | about a year ago | (#44006371)

[Citation needed]

Re:Congressman? (1)

mooingyak (720677) | about a year ago | (#44007137)

What metric defines quality? (0)

Anonymous Coward | about a year ago | (#44005763)

The TFA is behind a paywall so I can't read the article. Which only leaves me with a number of questions as to what he proposes and whether or not it will make things better or worse.

License against patent (0)

Anonymous Coward | about a year ago | (#44005767)

Could there be BSD like license, which was slightly less open.

It would forbid using any software where it is part of the code in any aggressive software patent law suits, it would allow use in passive/protective law suits.

Desired outcome would be, that as every is always running BSD code everywhere no one could enforce software patents anymore, as we're too late in the game to do everything in-house without 'free' software. If someone would be silly enough to attempt, they could be counter-suit using their own software against them.

WSJ Paywall? (2)

Amezick (102131) | about a year ago | (#44005779)

No one else has this story?

Re:WSJ Paywall? (4, Funny)

TaoPhoenix (980487) | about a year ago | (#44005933)

Submission trolls cost U.S. Slashdot readers 29 billion minutes in 2013 alone. My solution? Make it easier for low quality submissions to be re-examined and rejected by the Slashdot Firehose! : )

Surtax on patent licensing fees (1)

Anonymous Coward | about a year ago | (#44005799)

A 25 percent Federal surtax on patent licensing fees, excluding IP barter and deals where patent licenses are bundled with de facto goods and services, would make it tougher for patent boutiques to collect.

Ignorance is the problem (4, Interesting)

Errol backfiring (1280012) | about a year ago | (#44005801)

There is an interesting line of thought in the (thank goodness overruled) patenting of natural DNA (taken from this article [nytimes.com] ):

"The isolated DNA molecules before us are not found in nature," Judge Alan D. Lourie wrote. "They are obtained in the laboratory and are man-made, the product of human ingenuity."

Sounds reasonable? Until you realize that DNA is just a chain of information blocks. Then it reads: "While these words do occur in sentences in nature, they do not appear by themselves. Therefore they are man-made, therefore patentable." Off course, once the patent has been granted, it is used to attack all other sentences that contain that word. As long as patent judges utter those patently stupid verdicts, no patent system in the world can ever do good.

Re:Ignorance is the problem (0)

Anonymous Coward | about a year ago | (#44006983)

Sounds reasonable? Until you realize that DNA is just a chain of information blocks. Then it reads: "While these words do occur in sentences in nature, they do not appear by themselves.

That's simply the result of ignorance. If you're going to call it "information", then you need to play by the rules of information.

Once you admit that it's chain of information blocks, then you've stripped it of its physical context and it becomes purely a mathematical construction. At that point, it makes no difference where that information is located. Information can indeed "appear by itself" as a result of being embedded in nature -- in the same way that the pattern 10101 can "appear by itself" anywhere you encounter it.

The judge's error was in calling it "information", but then not applying the rules of information to it. The root cause is ignorance.

Re:Ignorance is the problem (1)

Darinbob (1142669) | about a year ago | (#44010919)

Patent the methods used to get the DNA information, but the information itself should not be patentable. That should be somewhat obvious and not worth the effort to get it through a long sequence of court decisions.

Why re-examine? (5, Interesting)

SirGarlon (845873) | about a year ago | (#44005821)

Can't read TFA due to paywall, but does he suggest a reason why re-examining "low quality" patents is a better approach than establishing stricter eligibility criteria and a more rigorous process to weed out "low quality" patents before they're granted?

Re:Why re-examine? (1)

pr0fessor (1940368) | about a year ago | (#44005899)

I imagine he is thinking there are already to many low quality patents in existence. Stricter eligibility would not take care of those you would need both stricter eligibility and re-examination. Since the article is behind a paywall I can't say if this is the case.

Re:Why re-examine? (0)

Anonymous Coward | about a year ago | (#44009977)

Well, over the long haul stricter requirements would work (20 years from now all the low-quality patents exit the system). However, no one that needs to re-apply for his job in the next 6 years will suggest a solution that takes 20 years to complete.

Pitch for more funding? (0)

Anonymous Coward | about a year ago | (#44005835)

Sounds like they want more bribes, ehrm sorry, I mean "campagin contributions". Apparently the patent trolls didn't pay enough protection money...

Trolls are not the problem (1)

Anonymous Coward | about a year ago | (#44005859)

Trivial patents, and a poor trial system are. The companies are stuffing their patent portfolios with trivial stuff like status bars, hyperlinks and swipe guestures. By cross patenting agreements they keep the small companies out of the market. If a small company has a "real" patent, it may just be that they cannot enforce it against a big player without beeing sued into the ground for violations of the trivial patents of that player. Now that people have found a way to force the big players to play by the rules by selling the patents to "non practicing enitities" aka trolls, we get a lot of propaganda against this practice. If the trials were less expensive, companies wouldn't need to yield to bogus claims, and if the patents wouldn't be handed out for uninventive shit, software developers could finally work in peace.

Re:Trolls are not the problem (1)

Impy the Impiuos Imp (442658) | about a year ago | (#44006413)

Most tech companies build portfolios as defensive mechanisms. It's not just trolls messing things up -- the exact same trolling techniques are used to get in each other's way.

My old company, after getting burned over something stupid, sat us engineers down with the head company lawyer, and told us to think of things we could patent so we could put roadblocks in their way instead. It was war. "Here's a simple form. Write the ideas and our lawyers will buff it up and submit it."

Re:Trolls are not the problem (1)

MightyMartian (840721) | about a year ago | (#44006719)

So the real solution is to start killing lawyers...

Re:Trolls are not the problem (2)

HornWumpus (783565) | about a year ago | (#44008279)

No, that's only a start. The real solution is to finish killing all the lawyers.

better idea (1)

eWarz (610883) | about a year ago | (#44005907)

I have a better idea. 1) Require the patent troll to pay the defendant's legal fees up front. If the troll wins (valid patent) then the defendant pays the patent troll back. 2) Instead of damages going to the troll, make them go to the patent office. This removes the profit incentive.

Re:better idea (1)

Anonymous Coward | about a year ago | (#44005977)

I have a better idea.

1) Require the patent troll to pay the defendant's legal fees up front. If the troll wins (valid patent) then the defendant pays the patent troll back.

2) Instead of damages going to the troll, make them go to the patent office. This removes the profit incentive.

You are assuming anyone that enters a patent lawsuit is a troll. This idea totally screws an honest lawsuit (even though they rarely ever happen).
There may actually be a case where, a company patents some part of their product, and then another company steals it.
Damages should go to the original company, representative of sales lost due to the false product.

Re:better idea (1)

Immerman (2627577) | about a year ago | (#44008111)

>This idea totally screws an honest lawsuit (even though they rarely ever happen)

I suspect they are as common as ever in absolute terms, it's only the ratio that has changed with the massive influx of trolling. It's not like the internet where everyone eventually goes elsewhere when the troll density gets too high - if you have a legitimate grievance you have to go to the same courts as the trolls, they're the only game in town.

Though I suppose there is a chance that in such a litigation-happy environment a lot of corporations would might be more inclined to settle in the face of legitimate complaints and keep their lawyers focussed on keeping the trolls at bay "Fight only when you have already won" and all that. So the number of honest lawsuits *might* be falling.

A concientiously designed "loser pays" system would probably be far more effective anyway. At first glance it puts a big onus on the little guy going up against a large corporation, but if he has a strong case there's likely to be a line of high-dollar lawyers willing to take up the case on commision.

Re:better idea (4, Interesting)

indeterminator (1829904) | about a year ago | (#44006985)

Here's my idea: require the company to define the value of the patent (i.e. how much inventing it cost) with the patent application. And the patent application processing fee is 10% of that value. The patent owner can only sue for damages up to the patent value.

If you actually used a billion to make that invention, then 10% of that is a small price to pay for protection of the investment. If you're a troll, you need to be a troll with very deep pockets. And hopefully some part of that 10% fee can be used to properly review patent applications and establish a court that specializes in handling patent disputes so that lawsuits can be streamlined.

Won't help with already issued patents though.

Re:better idea (1)

rsborg (111459) | about a year ago | (#44009955)

Won't help with already issued patents though.

So instead of just having the application fee proportional to the "value" of the patent, make it a yearly tax. If it's a small inventor, they can pay tax on that property that's so valuable - as long as they're pulling in massive licensing fees, they get taxed on that (additional to normal taxation) to support the patent office. If the property isn't making money, then the taxes are lower, but not nonexistant. If it's a big company maintaining a large warchest of intellectual property, they can pay yearly for the right to monopolize those inventions. This will keep them from hoarding useless patents.

Real property is taxed, and so we should treat imaginary property the same.

sounds like good ideas, and bipartisan, with tweak (1)

raymorris (2726007) | about a year ago | (#44013823)

You two should suggest these ideas to your congressman. Something along those lines could work. It might actually get passed because the dems have never seen a tax they didn't like, and the repubs like ideas that could help businesses operate more efficiently, spending time providing products and services instead of fighting lawsuits. Both parties might like this.

As a small inventor myself, doing R&D and rendering those inventions as software, I wouldn't mind a system where I could declare the value at "no more than $500,000" and the fee would be proportional.

Re:sounds like good ideas, and bipartisan, with tw (1)

rsborg (111459) | about a year ago | (#44033747)

You two should suggest these ideas to your congressman. Something along those lines could work. It might actually get passed because the dems have never seen a tax they didn't like, and the repubs like ideas that could help businesses operate more efficiently, spending time providing products and services instead of fighting lawsuits. Both parties might like this.

As a small inventor myself, doing R&D and rendering those inventions as software, I wouldn't mind a system where I could declare the value at "no more than $500,000" and the fee would be proportional.

Sadly those two bolded statements you mention are pretty far from the truth. Both parties are corrupted by megacorporations (mainly owned/run by the very wealthy) to the degree that only what benefits the megacorps gets passed (whether it benefits/harms small business or individuals seems to be a minor factor). Whether it's dems passing/continuing a tax cut for the wealthy, or the repubs passing big-brother legislation that makes everyone's life more bureacratic, both parties are are not representative of small business or individuals unless they get lobbied by hard cash.

Two decades ago, I might have agreed with both your idea and the parties' signatures. Now I don't think that's the case anymore. Consequently, I don't think any of these kind of ideas will go anywhere. Our "representatives" ... aren't.

Re:better idea (2)

sjames (1099) | about a year ago | (#44009925)

One idea is to requitre that if a patent is EVER found invalid, the holder must refund anyone who already paid them with interest.

It won't stop the trolls entirely, but the more success they have, the stronger their incentive is to quit while they're ahead.

Hmmmmm.... (0)

Anonymous Coward | about a year ago | (#44005951)

Congress Proposes Strategy For Fighting Patent Trolls

And of course the term "patent trolls" as defined by congress also covers Apple, Samsung, Motorola, IBM, Google, Facebook, Intel, etc... and their favorite strategy of using crappy patents that should never have been granted or patents they are not practicing to extort smaller competitors that can't afford spend years in court fighting a patent war (hey, I'm an optimist).

The definition of madness (0)

Anonymous Coward | about a year ago | (#44006043)

Why would re-examining a patent make things better?
Either the examination (and by inference the re-examination) process is broken or it's not - the oft miss-attributed definition of madness and all that.

Surely if we accept that there are bad patents, then the solution is to change the process that grants them in the first place?

too many patents (1)

Virtex (2914) | about a year ago | (#44006157)

It would be nice if there were a way to limit the number of patents a company or individual was allowed to own. If companies couldn't stockpile their patents then they would be forced to limit their patents to the higher quality ones. Of course any such law would have to be written carefully to avoid the obvious loopholes companies would surely exploit.

Human ownership (2)

bussdriver (620565) | about a year ago | (#44006453)

Only humans can own patents (not legal persons which are now corporations.) The rights should be non transferable (as most rights should be.)

This would require employees who do the actual invention get properly taken care of instead of fired for getting too old. Sure, this would result in plenty of ass kissing of SMART people (I know that sounds too unusual, but bare with me.)

We couldn't afford to be paying CEOs so much, they'd have to give some of that up or employee #14325 (who would then be known by their first name) will go to the competition with their patent. "News" magazines would have stories of SMART people trading to other corporations for better deals, possibly akin to the stories we get on sports players and CEOs today. Maybe children would grow up wanting.... now I'm getting too hopeful.

Why shouldn't the "IP" that costs the existing system so much be tied to people instead of corporations? At least trolls would have a name and a face.

Re:Human ownership (1)

Errol backfiring (1280012) | about a year ago | (#44007419)

Only humans can own patents (not legal persons which are now corporations.) The rights should be non transferable (as most rights should be.)

You are so right. "Intellectual Property" rights in the current system rarely rest with the people they naturally belong to. If you are to claim ownership of an idea, it should be obvious that it had to be your idea to begin with. You cannot transfer the fact that you invented something (patent), nor the fact that you wrote something (author's right), nor the fact that you designed something (trademark, design patent, etc).

(I know that sounds too unusual, but bare with me.)

I am not a nudist, but thank you for the invitation.

Tying IP rights to people will not stop the corporations from taking the profits. Patents, for example, are way to expensive for mere mortals, so the corporations will want to "help", but off course under their conditions (agreement to stay with the company, part of the profits, etc). A right is a right that you should simply have because of the situation are in. Not something you have to buy.

Re:Human ownership (1)

bussdriver (620565) | about a year ago | (#44016225)

LOL. Bear with me.
Didn't even think of it. god english is so stupid.

Curiously, a real 'Soviet Union' point (2)

waterbear (190559) | about a year ago | (#44011055)

One of the oddities of the former Soviet Union was the arrangements they had (at least on paper) for inventors.

The default position more or less was that exploitation rights went to the state, but if the inventor got an 'inventor's certificate', it meant that s/he had a few useful rights. One of them was the right to be employed in connection with exploitation of the invention (that is, only if any use was made of it). They were eligible for housing preference and there was even an award title of 'Honored Inventor of the Soviet Union'.

Sure, whether any of that worked in reality is another question, but the concept seems interesting.

so in other words (0)

Anonymous Coward | about a year ago | (#44006177)

the crony capitalism will now be codified.

DOA (1)

backslashdot (95548) | about a year ago | (#44006419)

This is dead on arrival because Schumer proposed it, and Schumer isn't exactly liked by Republicans in the House. I would be surprised if this thing makes it to law.
And even if it does, it's so full of loopholes.

What about trolls like MS and Apple? (0)

Anonymous Coward | about a year ago | (#44006421)

The problem is not just with non-practicing entities. Apple - the rounded corners company - is probably a bigger problem than all the patent trolls put together.

Mandatory Buyout (0)

Anonymous Coward | about a year ago | (#44006533)

1. Require that all patent applications must include an itemized list of research and development costs.
2. Require that all research and development costs be verified by evidence (receipts, invoices, etc.)
3. All patents are issued with a "cost to create this invention" value, verified and set by the patent office (per #1 and #2)
4. Allow ANY party in the world to buy out the patent (for the public domain) at ten times the listed cost to create.
5. In case it wasn't clear, a buy out immediately puts the patent in the public domain, for anyone to use.

- Pharma companies that spend millions of dollars to invent a drug can recoup their costs and make a profit.
- Patent troll with ridiculous obvious-activity-but-on-a-computer patent can be permanently bought out for $10

What are the drawbacks of this scheme?

Enforce the existing standard (0)

Anonymous Coward | about a year ago | (#44006657)

Make it easier for low quality patents to be re-examined and rejected by the patent office.

How about simply enforcing the existing standard?

Patents must not be for inventions that are obvious to a person having ordinary skill in the art.

Summary execution? (0)

Anonymous Coward | about a year ago | (#44006973)

For any employees of companies that do nothing but go to court and sue other people for supposed patent violations?

Lousy Idea (2)

the eric conspiracy (20178) | about a year ago | (#44007061)

The problem is that lots of small companies are running on shoestrings. Any requirement to hire a law firm to defend against a lawsuit = death. It doesn't matter if the patent gets rejected on re-examination, the small company is toast.

My last two jobs ended abruptly due to someone bringing a lawsuit. Boom see ya it's been real.

What has to happen is ending lawsuits from non-practicing entities. These companies have no skin in the game. They can't be countersued because they make nothing.

Re:Lousy Idea (1)

Immerman (2627577) | about a year ago | (#44008415)

>What has to happen is ending lawsuits from non-practicing entities

That has it's own problems in that the "back yard inventor" or "ivory tower intellectual" is typically a NPE, and if she can't bring lawsuits then it makes selling her invention to someone with the means to produce it very difficult - they could simply steal the idea and the inventor would have no recourse. Granted such inventors are fairly minor players in terms of numbers of patents granted, but I'd be willing to bet that they're the source of most truly game-changing inventions, and hence the ones *most* deserving of patent protection. The days of blue-sky corporate research that may need years or decades of development before it can be brought to market seem to be over in favor of minor optimizations that will show profit in the near term. The patent equivalent to Hollywood's love of relatively safe investment in sequels that give us a never ending stream of crap like Iron Man 27: The Zombie Cyborg.

The proper solution is to just stop issuing crappy patents, maybe impose a hard limit of a few dozen a day with no long-term backlogging permitted - that should get us to only the best 1% of the current dreck. Of course we also have to presume that all patents issued during "the patent flood" are invalid until proven otherwise - if someone tries to troll you with a suspect patent it should be trivially cheap and easy to have all legal proceedings stayed until the the patent has been re-examined under the new standards (though in fairness liability should continue to accumulate if the patent does prove valid)

Re:Lousy Idea (1)

the eric conspiracy (20178) | about a year ago | (#44008931)

I don't consider the inventor, or the company he works for to be an NPE.

> it should be trivially cheap and easy to have all legal proceedings

Cheap and easy, and legal proceedings are two mutually incompatible phrases.

Another step in the right direction would be to ban software and business process patents. That's where 90% of the bullshit is anyway. Nothing of value would be lost.

Re:Lousy Idea (1)

Immerman (2627577) | about a year ago | (#44009889)

>the company he works for
First off - as I explicitly mentioned netiher of the classes of inventors I'm discussing works for a company (or at least their inventing is not so funded, I'm sure the back-yard inventor has a day job) . As a rule companies no longer invest in developing ground-breaking technology with only long-term payoffs, though they may buy up such inventions and refine them.

As for not being NPEs, how do you define a NPE? Researchers and hobbyists almost by definition don't have the resources to actually do anything substantial with their inventions, instead they have to license or sell them to someone who does, whether that be a production company or a patent-holding company (which I assume you mean by NPE) that does the legwork of getting a production company interested

Again the real problem is that a tuly astounding mass of bad patents are being issued - if my invention is truly non-obvious (and hence patent-eligible) then the fact that you're infringing almost guarantees that you got your idea directly or indirectly from me, which makes patent-trolling essentially impossible.

Re:Lousy Idea (1)

Immerman (2627577) | about a year ago | (#44009981)

Oh, as for the rest - I said a cheap and easy *stay* of legal proceedings - i.e. nothing can happen and nobody gets paid until the validity question is settled. Make it a standard form you can file as soon as the case is brought to court, don't even need a lawyer to fill in the blanks for you, and BOOM, all legal proceedings (and expenses) halted until patent validity is established.

And no argument on software and method patents, they seem to be an area that should be presumed unpatentable at *least* until the PTO proves itself competent in the area. In fact since both areas are by their very nature treading dangerously close to the "math and ideas" exclusion on patents I should think *any* patent application in those areas should be presumed invalid and require a *much* higher standard to be granted. Or better yet leave them protected only as trade secrets, which should provide more than enough profit to justify their "invention" as is.

Re:Lousy Idea (1)

the eric conspiracy (20178) | about a year ago | (#44011709)

NPEs have one or more of the following characteristics.

  1. Not the original patent assignee
  2. Not one of the inve ntors
  3. Doesn't sell a product of technology using the patent
  4. Doesn't sell a product that competes with a product that uses the patent
  5. Doesn't sell a product using a patent cited by or otherwise related to the patent
  6. Engages in no activities that would to commercialization of the patent
  7. Avoids all activities that could result in countersuits from patent holders
  8. Gets major share of revenues from patent infringement claims

I agree that there are a massive number of bad patents being issued. A lot of that has to due with broken processes in the patent system - including the specialized court of appeals that was originally established to eliminate venue shopping but turned into a fount of radical ideas as to what a patent should cover.

Until the fundamentals of what a valid patent is are made robust, re-examination isn't going to help. There will still be crap patents considered valid. Also the idea that re-examination is going to cure the costs of legal machinations is unrealistic. The whole re-examination thing is already a playground for legal abuse.

Re:Lousy Idea (1)

Immerman (2627577) | about a year ago | (#44012119)

Seems like a backyard inventor has *all* of those characteristics except the first two and maybe the last.

And yes, I'd say "stop issuing bad patents" is step one. So long as we keep flooding the system with dreck, refinements in appealing its abuse are unlikely to be significant. Once we stop the flow of new dreck then it's trivial to make the existing dreck have to be requalified under the new rules/implementation before it can be exploited.

My Idea is ok let people buy patents (1)

Stan92057 (737634) | about a year ago | (#44007441)

My Idea is OK let people buy patents BUT they dont get to charge but a 1/3 of what they are getting now because they do nothing, they make nothing, they provide society nothing. They get 1/3 or even less, if they are not actively using the patents ie making stuff the patent is in full force. As far as what should be and shouldn't be patented i really dont have a clue some thing that get patent make no since whatsoever like a way of doing something the something should be patented the way i dont think so much. But when its all said and done the haves will ALWAYS have more then the havenots.

Wouldn't it be nice IF... (0)

Anonymous Coward | about a year ago | (#44008115)

Wouldn't it be nice IF we could just take a dozen recent college grads, put them in a room for a day, give them the problem, and if any of them replicate what's patented then the patent is tossed out as "obvious".... Try again as often as you like... It's only a couple of grand a day.

Dirt Cheap. Employs grads desperate for work. Focuses on voiding trivial patents.

Obviously it'll never pass congress, but...

I have a better idea (1)

sir lox elroy (735636) | about a year ago | (#44008403)

Make it so that someone must be actively using the patent in a product, device, software, etc... If they are not they have a year to start using it in a product, device, software etc... If after the year they are not their patent should be voided. Maybe make it 2 years. But theis would make it hard for the patent only companies to operate as they don't generally make anything.

Re:I have a better idea (1)

Capt.DrumkenBum (1173011) | about a year ago | (#44009725)

Proving active use of a patent would be difficult.
How about acknowledging that the world moves faster than it used to and simply adjust the duration of patents.
I suggest:
5 years for a physical device.
2 years for software.
No patents for process.

It is simple and solves most of the problems. Plus it still allows people to have a great idea and make some money off it, which was the point of the original system.
I bet I get modded into oblivion, since I don't adhere to the party line of "Patents are bad".

just two changes needed (1)

stenvar (2789879) | about a year ago | (#44008637)

If a patent is declared invalid, the owner of the invalid patent should be obligated to pay back all royalties with interest. In addition, penalties proportional to the total revenue should be payable to the person having the patent invalidated. That way, as a patent becomes more and more significant, there is more and more incentive and reward for challenging it.

In addition, a strong presumption of validity should be dropped. The PTO should merely register the patent and it should only be nominally considered valid unless it actually survives court challenges. That way, the people interested in maintaining or challenging the patent would pay for its examination, small inventors could easily register their patents, and we wouldn't need a bloated and slow PTO.

Actual Solutions (1)

ProfessorDork (2755655) | about a year ago | (#44008717)

This "solution" is not a solution at all, but a gift to large companies that can afford a full time staff to ceaselessly defend challenges to their patent portfolio from competitors. If this approach were implemented, there would be no effective means by which to discern "high quality" from "low quality" patents. Any legit inventor would need an army of lawyers to keep his/her patent. What a joke!

REAL SOLUTION:

1. Require a heighten pleading standard for patent cases. As it stands, one need only allege it has some plausible (Iqbal/Twombley) basis to believe a patent is being infringed. By heightening the pleading standard to require the specific time, date, manner and instance of infringement, essentially the same standard applicable to pleading fraud, it will be next to impossible to file formulaic boilerplate lawsuits across the country. The cost of formulating the complaints will be extremely high as some actual evidence of a particular incident of infringement will have to be alleged against each defendant in each case, and the practice will be deterred.

2. REQUIRE RIGHT TO DISPOSE/EXHAUST. In our copyright law, one cannot simply grant another the "right to sue," because such is not a right under copyright. You can only sue if you have a real ownership interest in a copyright (i.e., the substantively free ability to sell or exhaust the copyright yourself, etc.)
    By simply imposing this simple rule on patents, trolls would be unable to hide behind the myriad of shell companies that make this practice profitable and possible. The "industry" would likely collapse overnight, while the interest of legit patent holders would never be harmed.

3. Looser Pays. This is simple - in a looser pay system, incentives run against bringing specious claims.

4. Direct Appeal to the Federal Circuit of all Discovery and Merits Orders of the Justices of the US Dist. Court for the Texarkana District/Divisiona. They make these cases possible. The Federal Circuit should have direct supervisory control of this court to reign it in.

5. Dual Verified Complaint Requirement. Require two (2) attorneys to sign and verify each complaint. Require one (1) of those attorneys to be admitted to practice before the USPTO, and at least one (1) of those attorneys to be admitted to the bar in the state in which at least one defendant is legally deemed to reside (no matter where suit is actually filed). In the law, this means the attorney states under oath that he has personally investigated the facts alleged and believes the available evidence constitutes probably cause to file the suit. By requiring this dual verification, no matter where suit is filed (typically in the Texarkana patent hell hole), there will have to be at least two bar associations who can now review the conduct of the lawyers responsible for the suit. The USPTO patent bar, and the bar of the home state of the defendant, have all the correct know-how and incentives to enforce rules of ethics against these attorneys and pressure the bar from other states to take reciprocal action against other attorneys involved who do not sign the complaint.

Re:Actual Solutions (1)

speedplane (552872) | about a year ago | (#44009989)

While somewhat creative, I don't think any of your ideas would work:
1. Heightened pleading standards would require about two or three hours of attorney-time per defendant. It could conceivably help, but only marginally. Most plaintiffs would find what they need on the internet.
2. This already is the rule. To sue on a patent, you must own the patent. If you want someone else to sue, you create shell company, assign the patent to the shell company and get them to sue. Your specific suggestion wouldn't change a thing.
3. Looser pays would help fix the troll problem, but it's also a pretty intense fix and could end up hurting lots of IP holders with valid infringement claims.
4. You can already directly appeal most non-final orders. It's called a mandamus and is only allowed in relatively egregious cases. Allowing a mandamus in more routine cases would likely increase the cost of defense, not decrease it.
5. This would have no effect. The complaint must already be verified by an attorney, many complaints are already signed by multiple attorneys, and many of the attorneys are admitted by the USPTO.

they should crowd source it (1)

josepha48 (13953) | about a year ago | (#44009041)

The patents in question should be crowd sourced. Basically people could sign up and say I know about technology X and then when a patent in that area comes into question the group is notified by email or rss feed or something and then those outside of the USPTO can help find prior art to discount the patent.

Ideas to help make the patent system better (1)

jonwil (467024) | about a year ago | (#44013125)

1.Make it illegal under libel laws to claim that someone is violating a patent without providing details of the actual patents (i.e. if someone claims you are violating their patents and wont say which ones, you get to sue them for libel). This will stop the kind of thing companies like Microsoft have been doing where they make nebulous patent claims without actually providing details.
2.Ban any and all patents on any part of the human genome regardless of what form the information is in (including banning patenting of any proteins that are produced by any gene found in the human body).
3.Require that any patent holder who holds a patent covering a standard that is mandated by the federal government MUST license their patents under FRAND terms to anyone wishing to implement that mandated standard. So if the government requires that all TV sets support ATSC digital TV or that TV channels must transmit ATSC digital TV signals, then holders of any patents covering ATSC digital TV must license those patents to anyone who wishes to implement ATSC digital TV in order to comply with the government regulations. (whether that be for the purpose of a receiver that can receive ATSC digital TV or for the purpose of a TV network wishing to transmit ATSC digital TV)
Or if the government mandates that cars feature airbags, then anyone holding relavent airbag patents must license them to any automaker under FRAND terms and cant use the patents to lock out competitors.

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