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Finally, a Bill To End Patent Trolling

timothy posted about 9 months ago | from the who-will-find-the-loopholes? dept.

Patents 162

First time accepted submitter jellie writes "According to Ars Technica, a new bill introduced by Rep. Bob Goodlatte (R-VA), the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing. In a press call, lawyers from the CCIA, EFF, and Public Knowledge had universal praise for the bill, which is called the Innovation Act of 2013. The EFF has a short summary of the good and bad parts of an earlier draft of the bill. The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed, require the loser in a suit to pay attorney's fees and costs, and force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages."

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Still Bad Patents (4, Insightful)

cob666 (656740) | about 9 months ago | (#45222967)

As long as there are patents on software and processes, the patent trolling will never really end.

Re:Still Bad Patents (4, Insightful)

MachineShedFred (621896) | about 9 months ago | (#45222989)

At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

I'm sure it will still be ineffective, or just not pass both houses of Congress.

Re:Still Bad Patents (5, Interesting)

Suki I (1546431) | about 9 months ago | (#45223245)

At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

I'm sure it will still be ineffective, or just not pass both houses of Congress.

What about getting the patent office to do their job to begin with? Washington keeps asking for, and getting all this power, then they never get around to doing anything with that power they said they needed.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45223531)

They are doing exactly what they are told to do by the successive governments. Their mandate is to put through as many patents as possible and let the court system subsequently handle disputes, which basically means the biggest corp will win out or cross sue a smaller company using their patent arsenal. Government is not about the people of the country, it's about looking after the extremely rich who use their wealth and corporations to "donate" to parties to ensure legislation moves further away from them.

Re:Still Bad Patents (4, Insightful)

quetwo (1203948) | about 9 months ago | (#45223537)

The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

Of course that basically fails when a large company like Apple files a patent for something I invented 10 years ago. They will lawyer you into the ground instead of giving you a chance to negotiate a fair licensing model.

But, that is how the system was setup and how the office is charged in running.

Re:Still Bad Patents (4, Insightful)

Dachannien (617929) | about 9 months ago | (#45223641)

In a lot of cases, the applicants/attorneys don't actually do a search, because doing a search means that if they fail to tell the Office about something they find, they could be on the hook for it later. So it's safer to be willfully blind.

As for the USPTO, we do what we can in the time given. There's only so much searching we can do, and if we can't find and present evidence that something was already known publicly, we can't just send out rejections based on how many Slashdotters think it's obvious. Issued patents aren't perfect, but when you compare the claims that get issued with what was originally filed, you'll see just how much worse the system could be if we actually did just rubber stamp everything.

Re:Still Bad Patents (1)

Anonymous Coward | about 9 months ago | (#45225349)

"In a lot of cases, the applicants/attorneys don't actually do a search, because doing a search means that if they fail to tell the Office about something they find, they could be on the hook for it later. So it's safer to be willfully blind."

This is no longer accurate AFAIK - the AIA changed this very critical aspect of patent filing. You can no longer avoid "knowing" by just not looking. That said, the standards for filing changed as well in terms of prior art (we are now "first to file" more than "first to invent" as a patent system going forward).

Your comments RE: USPTO are quite accurate - one note that most people miss - when you file a patent you get to "be your own lexiographer" meaning - you get to make shit up (since you invented something, it makes sense there aren't words to describe it properly currently in common use, right?). The result is that patents can describe existing functionality in a fashion that seems novel, pass a burdened examiner (even one with reasonable acumen and good faith effort - you should see these claims!) and then be impossible to construe either when performing a search prior to filing, or when being sued.

It's fucked, Call Bob & Chuck and support them!

Re:Still Bad Patents (3, Informative)

Theaetetus (590071) | about 9 months ago | (#45223753)

The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

But, that is how the system was setup and how the office is charged in running.

I believe you may be confused, or may be referring to another country, such as Hong Kong. Basically, there are two systems for patents. The first is a registration-only system in which the patent office does nothing other than "record and maintain records". Hong Kong has this. Australia also has invention registrations that are separate from patents, and are merely recorded.
The second is an examination system in which the patent office does a full search and examination of the patent application, typically (around 90% of the time in the US) rejecting the patent application initially, and leaving it to the inventor to amend and narrow the claims in response before the patent is finally allowed. The "government bureaucrats sitting in an office" in these systems are scientists and engineers. Frequently in these systems, the patent attorney does not do prior art searches, because the patent examiner is going to do his or her own search anyway and why would he or she accept ours?

This is not to say that the examination systems are perfect, but just that the office is doing more than just recording and maintaining records.

Re:Still Bad Patents (2)

Jason Levine (196982) | about 9 months ago | (#45225249)

Not to mention that a lot of these patents are written extremely vaguely so that it can apply to Case A when approved and then can be turned around and applied to Case B when that becomes popular and/or when the patent is sold to a patent troll.

Re:Still Bad Patents (1)

Anonymous Coward | about 9 months ago | (#45223881)

The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

The fact that multiple conflicting patents exist for the same invention means either:

1: The patent lawyers who "honestly" did the patent search are incompetent, or,

2: The patent lawyers who did the patent search did not do it honestly, but instead, took their client's financial interest into primary consideration.

It's impossible for a lawyer to do an "honest" (or more precisely: "fair and impartial") search for patents and still at the same time take the best financial interests of their client into consideration. The two are a total conflict of interest. The lawyers know that they must take the best financial interests of their client into primary consideration, otherwise they will be liable for malpractice. Therefore, no patent lawyer ever performs an "honest" patent search, unless their paycheck comes from a disinterested party, which is extraordinarily rare.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45224295)

Picking nits, but I'm pretty sure what was meant by

The people who file patents honestly do patent searches

is that part of attempting to file a patent in an honest manner is to perform your own search before the attempt.

or, it's hard to read and understand every patent (1)

raymorris (2726007) | about 9 months ago | (#45225491)

> The fact that multiple conflicting patents exist for the same invention means either:
>
> 1: The patent lawyers who "honestly" did the patent search are incompetent, or,
>
> 2: The patent lawyers who did the patent search did not do it honestly

or
3: They missed one. It's kind of hard to read and fully understand every patent ever issued and how it might relate to your client's invention.

Re:Still Bad Patents (2)

pepty (1976012) | about 9 months ago | (#45223853)

or just not pass both houses of Congress.

There's always the chance that one house would nix it just to spite the other, but I'd think something like this would primarily move or stop based on the total lobbying $. The deepest pockets in tech sometimes use patent troll outfits as cutouts so they might fight the sections that cut into their privacy, but overall wouldn't Apple, Intel, Google, etc. benefit from this bill?

Re:Still Bad Patents (1)

pepty (1976012) | about 9 months ago | (#45223899)

oops: "Post-grant review: The bill expands an important avenue to challenge a patent's validity at the Patent Office " There's another part the deepest pockets might decide needs to be cut out of the bill.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45223065)

Exactly, trolling is a misnomer. Major companies acquire large war chests of patents for the purpose of killing competition. If that does not work, they strike a deal with them and try not to get killed by the enemies larger war chest.

The only thing "trolls" change in this game is that they are immune to patent attacks since they don't build anything. The patent system is still doing it's worst to prevent competition from small actors against the incumbents. Going after "trolls" exclusively will surely hurt the small time inventor with a really good idea and no means to implement it.

The problem is not with "trolling", but extremely lax patentability standards so that normal day to day product development becomes a minefield of "reinventing" some arsehole's data structure or method, obvious to anyone "skilled in the art".

Re:Still Bad Patents (1)

tepples (727027) | about 9 months ago | (#45223107)

The industry where patentability standards are currently overly lax is precisely the industry where a small-time inventor has means to produce at least the reference implementation of an invention. Namely: software.

Re:Still Bad Patents (2)

Dcnjoe60 (682885) | about 9 months ago | (#45223187)

The industry where patentability standards are currently overly lax is precisely the industry where a small-time inventor has means to produce at least the reference implementation of an invention. Namely: software.

And also to be in violation of somebody else's patent. Namely: software.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45223373)

Tell that to the guy trying to build a rectangular black thingy with rounded corners. As an electronic design patent holder (needed to meet my "innovation" performance quota), I can assure you patents are overly lax in hardware design too.

Also, I don't think you understand how it goes in practice: the small time inventor has a genius idea that massively improves a certain aspect of a certain application, say, the power consumption of a mobile sandbox. In and of itself, that is useless because you need a full phone or tablet to realize the gains. Should he create his own company to create mobile phones, he will be quickly crushed by the incumbents because you need much more than a sandbox to create a mobile phone, and you will break a large number of patents. So you can either sell to whatever the incumbents will give you, or wait for them to rediscover your technology then troll them.

Re:Still Bad Patents (5, Insightful)

mi (197448) | about 9 months ago | (#45223079)

Never then... Because smart people, who think stuff up, ought to be able to get paid for their ideas. And it should not matter, whether one decided to implement the idea himself, or to sell it to the highest bidder.

The patent trolls with their vague (yet costly) claims are abusing the system, but there is nothing wrong with the basic premise behind the patents.

Re:Still Bad Patents (1)

kelemvor4 (1980226) | about 9 months ago | (#45223241)

Never then... Because smart people, who think stuff up, ought to be able to get paid for their ideas. And it should not matter, whether one decided to implement the idea himself, or to sell it to the highest bidder.

The patent trolls with their vague (yet costly) claims are abusing the system, but there is nothing wrong with the basic premise behind the patents.

Sure, but not paid over and over again for years. They should get paid one time if they sell their idea, or many times if they sell a product based on that idea. There should be some rather short limits on the patent timeframes.. say 5 years. That way patents would not stifle innovation like they do today.

Re:Still Bad Patents (1)

pepty (1976012) | about 9 months ago | (#45223761)

We'd need to take into account that not all tech sectors move at the speed of software or Intel's tick tock. The average development time for drugs is about 8 years, with many taking up to 12.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45225019)

Patents might be part of the problem in the drug manufacturing business, but the major problem is the same as in the entertainment business. The big companies which pay for the manufacturing want to charge 5 or 6 arms and 3 or 4 legs for something that only costs them $0.05 to produce. They get away with it simply because they are big enough to stifle competition before it becomes competition.

Point in fact: If there was a new drug for curing all sorts of cancer, would you want a name brand or generic version?

Re:Still Bad Patents (1)

gnupun (752725) | about 9 months ago | (#45223767)

Sure, but not paid over and over again for years. They should get paid one time if they sell their idea, or many times if they sell a product based on that idea.

But you (the consumer) reap the benefits of the idea over and over for infinity years, yet want to pay only once. That's like paying once at a restaurant, and eating there for the rest of year without paying.

There should be some rather short limits on the patent timeframes.. say 5 years.

20 years is already very short. In 5 years after grant, the product may have just hit the market and people are just starting be become aware of its benefits. If it expires at that point, the inventor might as well send a copy of his ideas to his competitors instead of patenting them.

Re:Still Bad Patents (2)

scottme (584888) | about 9 months ago | (#45224219)

But you (the consumer) reap the benefits of the idea over and over for infinity years, yet want to pay only once. That's like paying once at a restaurant, and eating there for the rest of year without paying.

But the inventor, who had the idea once, should get paid each time anything that uses the idea is manufactured, sold, or consumed? That's like cooking a meal once, and expecting to eat it every day for as long as you live.

Re:Still Bad Patents (1)

gnupun (752725) | about 9 months ago | (#45224737)

But the inventor, who had the idea once, should get paid each time anything that uses the idea is manufactured, sold, or consumed?

Well, yes. The manufacturer uses the idea to build a product that he sells for a profit. The consumer shells out his hard earned cash for the product because it benefits (profits) him in some way. If everyone else profits, why shouldn't the inventor profit from each copy of a product sold?

Product/service prices are based not just on creation cost, but also benefit cost. That's why a smartphone costs almost the same a laptop or PC, even though the smartphone has slower cpu, lesser RAM.

That's like cooking a meal once, and expecting to eat it every day for as long as you live.

Is there anything wrong with that? Authors/painters/song writers/movie makers/tv show makers just create the recipe once and use machines/employees to make the meal everyday. More generally, most big and small businesses operate the same way. They create a recipe that dictates how a business is created (real estate, product ideas, machinery, employees etc.). Once established, the business more or less runs on its own, with the business owner(s) occasionally making key decisions to steer it in the right direction. Granted, running a business is not as automatic as creating a product, but quite similar.

Re:Still Bad Patents (2)

gnupun (752725) | about 9 months ago | (#45224993)

But the inventor, who had the idea once, should get paid each time anything that uses the idea is manufactured, sold, or consumed?

Replying to my own post for another analogy. Imagine a mechanic repairs 5 cars having problem X in an 8 hour day. Let's say he gets paid around $25 - $50/hr ($400 / day max). Now let's say an inventor invents a device that once installed in each car eliminates or greatly reduces occurrence of problem X. Should the inventor get paid a fixed amount for solving problem X, (similar to the fixed pay of the mechanic), or should be paid per car the device is installed? It should be the latter, as he invention does the work of thousands of mechanics.

Re:Still Bad Patents (1)

kelemvor4 (1980226) | about 9 months ago | (#45224437)

Sure, but not paid over and over again for years. They should get paid one time if they sell their idea, or many times if they sell a product based on that idea.

But you (the consumer) reap the benefits of the idea over and over for infinity years, yet want to pay only once. That's like paying once at a restaurant, and eating there for the rest of year without paying.

If you must use an analogy I don't think that's a good one. I think it's more like a restaurant deciding that peanut butter is good on a hamburger and that no other restaurant should be able to put peanut butter on their hamburgers. How about if the inventor of the wheel had been allowed to patent it? We might be driving around on stone wheels today. Patents stifle innovation.

Re:Still Bad Patents (0)

Anonymous Coward | about 9 months ago | (#45225931)

Imagin you are the instruction decoder on a cpu chip. Your
job is to read instructions in cpu memory and direct the
instructions you read to a function unit that does some
mathematical operation with them. It does a mathemitical
operation because that is the only thing a computer
is capable of doing. It goes something like this:
Read an istruction - say add the number a location x to the number at location y
fetch the number at location x
fetch the number at location y
send these numbers to the "add" instruction functional unit
fetch the resultant number
set the location y to the new number
go back and read the next instruction

now as you can see software patents conflict with the "no patents on Mathematics"
rule. You can argue that the sum of the parts are now a different "machine" but
the real expert math wizards who figured out this stuff in the first place, would disagree. Lawyers on
the other hand prefer ignorance and case law!
Not every process should be patentable. Perhaps no non tangable "process" should be patentable.

Re:Still Bad Patents (1)

Anonymous Coward | about 9 months ago | (#45223283)

All their ideas are just rehashes of previous ideas. Nothing innovative about that. Show me one patent filed in the last ten years that isn't obvious if you simplify the language for people.

Re:Still Bad Patents (3, Insightful)

pepty (1976012) | about 9 months ago | (#45223683)

Patents on cancer drugs that unmask cancer cells hiding from the immune system, thus allowing T-cells to recognize the cancer cells and mount an immune response.

Re:Still Bad Patents (1)

sI4shd0rk (3402769) | about 9 months ago | (#45223449)

Because smart people, who think stuff up, ought to be able to get paid for their ideas.

Only if they can find out a way to profit from them fairly; that's part of what the free market is about. Government-enforced monopolies over methods are not acceptable.

Re:Still Bad Patents (4, Interesting)

CauseBy (3029989) | about 9 months ago | (#45223127)

Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

For instance:

"Mr Programmer, if you wanted to make it really easy to buy a product on a webpage, what is the easiest you could possibly make it?"
"Well, you could have a button and if you click it, then that's it, you've bought it."
"Thank you, Mr Programmer, you just invalidated the 1-click patent. Amazon pays costs."

The conceptual underpinning of patents is theoretically workable, but the actual real-world implementation of patents in our legal system is a travishamockery.

Re:Still Bad Patents (5, Interesting)

gnasher719 (869701) | about 9 months ago | (#45223367)

Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

It's not just the obviousness. Patents should be on _how_ something is achieved, not _what_ is achieved. So there _might_ be a patent on _how_ a single click is transformed into a complete order, but I should be able to transform a single click into a complete order using a different method, without infringing on the patent.

If I invent a method that makes the brakes in your car more effective and reduces your stopping time, I should get a patent on that method, but not a patent on making cars stop quicker. Anyone else should be free to use a different method.

I think quite some progress has actually made in the non-obviousness department. The hypothetical person of ordinary skill in the art is only ordinarily inventive, but has an unlimited knowledge of absolutely everything that has ever been published in the field. So none of your twenty developers might figure out that something can be achieved by combining totally obscure method A with totally obscure method B, since they have never heard of either. But combining them is still not patent worthy.

Re:Still Bad Patents (1)

Talderas (1212466) | about 9 months ago | (#45224027)

If I invent a method that makes the brakes in your car more effective and reduces your stopping time, I should get a patent on that method, but not a patent on making cars stop quicker. Anyone else should be free to use a different method.

I have a patent on quickly stopping your car by ramming semi trucks into it.

Re:Still Bad Patents (1)

Theaetetus (590071) | about 9 months ago | (#45224821)

Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid.

And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?

Re:Still Bad Patents (1)

gnasher719 (869701) | about 9 months ago | (#45225649)

And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?

There are things that are obvious in hindsight - they are obvious once you see the invention. There are other things that are obvious because of the progress of things around us. I'd say a TiVo would be pretty obvious today, even if we never had seen one.

Re:Still Bad Patents (2)

91degrees (207121) | about 9 months ago | (#45223577)

True. I think that's a separate issue though.

A troll could patent a semi-obvious modification to a car engine for example, and use the same business model against various engineering firms. I think there's something about the culture of software development that makes us more susceptible to patent trolling, which would explain why trolls mostly use software patents, but other industries aren't immune.

Re:Still Bad Patents (1)

SCHecklerX (229973) | about 9 months ago | (#45223959)

Exactly. You are treating the effects, not the disease itself.

Re:Still Bad Patents (1)

slashmydots (2189826) | about 9 months ago | (#45225511)

I own a patent on the process of posting a first post about software and process patents. You now owe me $0.10.

Re:Still Bad Patents (1)

niftymitch (1625721) | about 9 months ago | (#45225839)

As long as there are patents on software and processes, the patent trolling will never really end.

Yes,
One should note that the patent office may be sitting on a partial solution that is
in effect in the bio/ medical community.

It is obvious to try some things i.e. paperclip out of steel wire, copper wire, plastic...
while a paperclip might be an invention making one out of a long list of things
obvious to try is not an invention to justify an additional patent.

Most interestingly many of the process patents are trouble because there is no
way to know how the internals of a system work without breaching a company
firewall or going on a fishing expedition perhaps to expose trade secrets and
thus eliminate competitive advantage that the secrets imply/ bestow.

By making a clear declaration of violation at the outset some of the fishing
can go away. However letters threatening legal action need to be called
what they are.... extortion. Extortion is a criminal act and needs prosecution
in contrast to civil court proceedings.

Many tolls mail dozens perhaps hundreds of letters demanding fees with
FISA like gag clauses. Gag order clauses making invisible the abuses some trolls
engage in should be illegal. Fees collected via coercion should be refundable
when a patent is found to be invalid. The refund risk makes no-contest decision
payments an ideal court filing.

Many here recall the FUD of running a Linux system when the SCO–Linux controversies
were flying. Many paid what feels like extortion to me. These individuals and
companies should not be anonymous and should be able to stand up as a
class demanding repayment.

Well this is still an improvement if only because it opens the discussion.

Trolling will end only when the patent system ends (1, Insightful)

oo_00 (2595337) | about 9 months ago | (#45222977)

Trolling will end only when the patent system ends

Re:Trolling will end only when the patent system e (1)

Mitchell314 (1576581) | about 9 months ago | (#45223049)

Doesn't mean there can't be steps taken to help the victims or impede the belligerent parties. If it becomes more expensive or less profitable for the trolls then: there's less incentive for newcomers to enter the business, less incentive to stay in business, lower margins, less incentive to go after the same volume of litigation, and thus activity should lower.

Re:Trolling will end only when the patent system e (1)

Talderas (1212466) | about 9 months ago | (#45223315)

I think importantly this law is going to protect the end consumers of products. Slashdot had an article a while back where a troll was essentially carpet bombing small businesses looking for licensing fees if they used X and Y types of products and connected them with a Z network to perform A task. Since the troll can't actually identify a specific infringing product any lawsuit would fall flat on its face.

Good start, but... (0)

bradgoodman (964302) | about 9 months ago | (#45222981)

>> The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

It's a good start - in the "trolls" who hold patents but don't have any actual products wouldn't be able to meet this bar. However, it still would not prevent a troll from selling said patents to someone who HAS such an infringing product - to whom violation of such a patent would be valuable, and valid for suit.

Like ARM (4, Insightful)

tepples (727027) | about 9 months ago | (#45223075)

NPEs selling their patents to practicing entities is exactly the behavior I'd want to encourage. It would at least draw a line between legit tech companies like ARM, which produce know-how in addition to patents, and companies like Lodsys, which exist solely to rest on laurels.

Re:Good start, but... (2)

jmauro (32523) | about 9 months ago | (#45223275)

I think you have it backwards. The "trolls" need to identify what product of yours is infringing and how, not the other way around. You still don't need an actual product to file a suit with the new bill.

Re:Good start, but... (4, Informative)

Talderas (1212466) | about 9 months ago | (#45223351)

A NPE can still file suit. It's just they have to bring suit over a specific infringing product and be capable of identifying said product. Do you recall a slashdot story not too long ago about a patent troll that carpet bombed small businesses with letters asking if they used a printer with a scanning feature that would use a network to send a PDF file to be email out? That would not be a valid lawsuit under the law as the troll would not be able to identify a specific product in use by the businesses they are writing letters to.

Re:Good start, but... (0)

Anonymous Coward | about 9 months ago | (#45224205)

I'm sure they'd just add a few more pages and append a list of all of the printer models supported by a default install of Windows and/or OS X.

Business owner liability (1)

phorm (591458) | about 9 months ago | (#45225737)

I don't understand what logic makes the "business owner" liable at all. Obviously the patent itself is crap, but if anyone should be a target it would be those that made the printers with the "infringing" feature.

Re:Good start, but... (1)

fast turtle (1118037) | about 9 months ago | (#45223363)

If you're being sued for a patent/copyright infringement, you sure as hell want to know what product you're selling is infringing or do you like the way the "MPAA/RIAA" sues everyone and their grandmother? Sorry but if I'm on the Receiving end of a lawsuit then I damn well want to know what I'm being sued for instead of fuxing Pixie Dust and Unicorn Farts.

Re:Good start, but... (1)

CCarrot (1562079) | about 9 months ago | (#45223667)

>> The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

It's a good start - in the "trolls" who hold patents but don't have any actual products wouldn't be able to meet this bar. However, it still would not prevent a troll from selling said patents to someone who HAS such an infringing product - to whom violation of such a patent would be valuable, and valid for suit.

Ah, but then it's the manufacturing company that takes the heat and gets the press, and they have a public image to maintain.

I particularly like the "and force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages" bit. Basically companies can't hide in the wings anymore while their paid goons trash their competition with trollish nuisance claims.

Re:Good start, but... (0)

Anonymous Coward | about 9 months ago | (#45223957)

I agree that this bill won't do much against patent trolling. But considering that new bill was introduced by Rep. Bob Goodlatte, I expect the coffee to improve.

"and has a real chance of passing" (0)

Anonymous Coward | about 9 months ago | (#45222995)

Wake me when it's done then.

Why should not the loser always pay? (4, Interesting)

mi (197448) | about 9 months ago | (#45222999)

require the loser in a suit to pay attorney's fees and costs

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

Re:Why should not the loser always pay? (1)

gr8_phk (621180) | about 9 months ago | (#45223105)

I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win. Violate a patent - be bankrupted by someones lawyer fees. OTOH this means individual inventors might be able to defend their patents against large companies easier. It really seems like a windfall for patent lawyers though. Not sure if it's good or bad.

Re:Why should not the loser always pay? (1)

mi (197448) | about 9 months ago | (#45223259)

That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

The "arbitrary" part can be checked by the judge. They already do that, when the winner asks for their fees to be paid by the loser. My proposal would simply eliminate the asking part (which is often costly in itself).

Violate a patent - be bankrupted by someones lawyer fees.

That would be a good thing. A fairly large part of humanity thinks, theft not only should bankrupt the thief, but cost them an actual limb!

It really seems like a windfall for patent lawyers though.

Not particularly — only if the case is a sure bet and only if the judge does not think, the fees are inflated...

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45223659)

It still fucks the small guy trying to defend his patent against a large infringing company; if he loses through a lack of means to pay for a huge legal team to fight, say microsoft, infringing on his patent, he's now lost not just his patent, but his entire livelihood.

Re:Why should not the loser always pay? (1)

geekoid (135745) | about 9 months ago | (#45223393)

It assumes the both side can affors equal representation, and that the patnet is reviewed and deterimned by equal parties.

Neither of which is true.
  this will hurt inventors.

If they want to do that; then they should have to have a panel of 13 the reviews the patent and give an opinion on who is right. At which point the parties can decide if they want to move on, before lawyers need to be involved.

Re:Why should not the loser always pay? (4, Informative)

gnasher719 (869701) | about 9 months ago | (#45223493)

I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

German method: Plaintiff asks for money, defendant offers money (less or possibly zero). Court sets cost according the the value that is in argument (the difference). That's the fees that the lawyers get! Then if defendant is ordered to pay what he offered to pay anyway, he has won the case. If its more, the percentage he is ordered to pay is the percentage of the lawyers that he pays.

Example: You ask for $2.1 million. I offer $100,000. The court orders me to pay $120,000. We argued about two million. I was ordered to pay $20,000 = one percent beyond what I offered to pay anyway. I pay one percent of my lawyers and your lawyers, you pay 99%. And the lawyers get paid at the fixed "$2,000,000 rate" which is some small percentage of these two million.

Re:Why should not the loser always pay? (1)

91degrees (207121) | about 9 months ago | (#45223681)

Most countries have a loser pays system. They usually have mechanisms to prevent one side inflating their own costs. It's really a solved problem, but for some reason people always think that legal issues are unique to their own country.

Re:Why should not the loser always pay? (1)

rmstar (114746) | about 9 months ago | (#45224107)

I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

What happens in places where 'loser pays' is the law (I think that's most places in Europe) is that lawyer's fees are regulated, and the loser only pays according to the regulations.

The effect of this is that the big massive company suing the little guy may have to pay all the legal expenses of the little guy if the corp loses, but if the little guy loses he does not pay all of the expenses of the corp, only a reasonable ammount, computed in terms of what was at stake, and the regulated price list.

This way, the balance is tipped in favor of the little guy, who wouldn't have paid a super expensive lawyer to begin with.

Re:Why should not the loser always pay? (3, Insightful)

Dcnjoe60 (682885) | about 9 months ago | (#45223307)

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

Accept that sometimes, there really are legitimate things to be decided by the courts, where both sides have compelling positions as to why they are right. Take a dispute over breach of contract, where a court is needed to determine a vague interpretation. Are you saying that the loser should pay the winner's cost there? Or take a civil rights or harassment case? Are you saying that if you bring such a suit and you lose, you should have to pay the employer's costs, too? That would pretty much eliminate all of those suits out of fear of the plaintiff going bankrupt, would it not.

No, it seems best, to let the court determine what is an equitable allocation of the costs based on the facts and nature of the case instead of mandating it by law. Doing that usually guarantees whoever has the most money to throw into lawyers while the case is going on will win and they will recoup those costs after the verdict is rendered. That hardly sounds like a real justice system.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45224927)

The summary is plain wrong on the question of who pays. There is no "require the loser to pay". From the article


The bill would require patent holders to lay out details about their infringement case early in a lawsuit, and would require the loser of a patent suit to pay legal fees unless they could show that the case was "substantially justified."

Re:Why should not the loser always pay? (1)

Theaetetus (590071) | about 9 months ago | (#45223319)

require the loser in a suit to pay attorney's fees and costs

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

Of course, this also means that if a small inventor sues a giant company for patent infringement, all the company has to do is hire the most expensive legal team around and run up costs as much as possible, to make the possibility of a loss so terrifying for the inventor that they'll settle.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45224757)

Agreed. They should make it so that you pay the lesser legal fees of the two sides. If you're on a shoe-string budget, then you only double your costs for losing. If the other side chooses to run up a huge legal bill, that's their business. If you win, then you get your legal fees reimbursed. If two behemoths clash, then they'll probably be talking numbers in the ball park of each other.

But if I'm a small guy who is getting trampled by a corporation neglecting to honor my patent, I don't want to have to face the possibility of paying many millions because their clever lawyers found a loophole.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45223341)

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

Why? Is your goal to discourage lawsuits because you believe frivolous ones are an issue? But would that not have the peril of leading to only those who can afford to lose being able to risk going to court?

The current system does indeed let the court allow charging costs, but with specific terms to it. For a reason. And attorneys themselves are required by the standards of their profession to have a good faith belief in the suits they file, when it comes up.

But your way? All you would do is put the individual at risk for exploitation by the larger entities who can afford to take the steps necessary to win cases by doubt and uncertainty, rather than actual justice. A preponderance of evidence can be easy to shift with a large mountain of it.

No, no thank you, I'd rather have it left to the judge's discretion. You may have been convinced by the media brainwashing that tort lawsuits are a serious issue, that lawyers are scumbags, but the reality is not quite what you think it is.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45223355)

require the loser in a suit to pay attorney's fees and costs

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

I'd be more for judicial discretion on whether the loser pays rather than making it a requirement. The bigger guy can always afford more and better lawyers and frequently it is they who win instead of justice. Although you will have some corrupt judges, most are quick to see where a complaint was legitimate and whether justice would prevail if the loser was made to pay.

Re:Why should not the loser always pay? (1)

Russ1642 (1087959) | about 9 months ago | (#45223455)

I'm for more judicial discretion across the board.

Re:Why should not the loser always pay? (1)

fast turtle (1118037) | about 9 months ago | (#45223429)

In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

So a criminal case that fails means the government needs to pay the accused Lawyers? Oh Save me from idiots as that's what already happens with the public defender. All that would happen is that their wouldn't be any Defense lawyers for you and me as the Wealthy sure as hell can afford them. How many more people do we need behind bars? Hell I guess all American's should be tried in the fucking "World Court" in Geneva for war crimes.

Huuymans: Can't live with them and they bring the universal Inteligence level down.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45223435)

I thought about this before and I think that forcing the other party to pay up would end up really bad in cases like MPAA/RIAA suing people and then winning. You could imagine the fees of 7 lawyers attacking you in court for months at a time.

Re:Why should not the loser always pay? (0)

Anonymous Coward | about 9 months ago | (#45223453)

Terrific. You're already on the hook to pay your own lawyer the value of your house when you get sued by Oracle in a trial lasting fifteen minutes. You lose, and now you're now on the hook for more than you, your children and your grandchildren are likely to make in your collective lifetimes, but which Larry Ellison left as a tip over a light lunch.

Re:Why should not the loser always pay? (1)

Impy the Impiuos Imp (442658) | about 9 months ago | (#45223551)

Hopefully the judges woll be able to see the difference between a troll who loses and a real, small inventor who loses.

Mostly these cases are about spuriously-granted patents, though. Does this help that?

Re:Why should not the loser always pay? (1)

Alomex (148003) | about 9 months ago | (#45223831)

I'd argue, the loser should be on the hook for the winner's expenses by default.

There is a middle ground which comes from the Scottish system. The judge rules at the same time whether the case was reasonable, even if not proven. So the verdicts available are not guilty, not proven, and guilty.

We could then make that, by default, "not guilty" for the other side means you have to pay their expenses and not proven means each pays their own way.

Still will not stop shit like... (2, Insightful)

harvestsun (2948641) | about 9 months ago | (#45223181)

"We made a device with curved corners first, now you can't make one, na-na-na-na-na-na!"

Although patent trolls are bad, there are a lot bigger entities to fear with the current definitions of patentability.

Cease and Desist (4, Funny)

wbr1 (2538558) | about 9 months ago | (#45223231)

Herewith, the law firm of WBR1 et. al., and its controlling interests issues a cease and desist letter to Bob Goodlatte, the EFF, and all pertaining parties.

It is our contention that we hold a patent on the process of bill writing pertaining to patent reform, and also on the process of reviewing and lauding it online

WBR1 would be happy to settle now for a to be determined sum before trying this case. Checks can be made payable to Shell Account #13837888 Cayman Islands Bank

As usual it doesn't go far enough (0)

Anonymous Coward | about 9 months ago | (#45223235)

Microsoft is among the notables crippling the bill by prohibiting new buisness method patents from being challenged for review.

NO it won't stop anytng (1)

geekoid (135745) | about 9 months ago | (#45223267)

but it will mka eit harder for smally time inventors to get protestion.

" require the loser in a suit to pay attorney's fees and costs"
These fucking groups should get some input form the people this impacts the most: Hint: Not large corporations.

Loser doesn't not mean they where wrong or not infringe against. It could just mean they could afford an attorney.

Re:NO it won't stop anytng (1)

robot256 (1635039) | about 9 months ago | (#45223545)

First of all, your argument is flawed because if a small inventor tried to sue a big company, if there was no cost shifting he would go bankrupt even if he won--which is why they almost never even try. Their only way to monetize a patent is by selling it.

Second, the point of this provision is to destroy the patent troll business model. Right now, when someone receives a patent troll extortion letter, they pay it because even if they know the claim is bullshit it will cost them more to prove it in court than to settle. With this provision in place, folks will be more comfortable blowing off wildly off-base infringement accusations because they know if they go to court they will get their fees paid. The trolls have no intention of taking those cases to court, and rely on fear to keep people paying, so this means there will be no more cases on the docket than before, but the trolls will get less money and society wins.

Re:NO it won't stop anytng (1)

irving47 (73147) | about 9 months ago | (#45225591)

Yeah, but a business owner that receives one of those letters is still going to fear going to court... If it were me, I'd fear the size and integrity of the trolls in question. What if the suit takes MANY months or years? I still have to pay lawyers in the meantime... When I DO come out victorious, how long will it be before a patent troll is on the up-and-up and pays the fees in question? Or will they just disappear into the night via some fakey bankruptcy or dissolution by a parent company?

Fuck you, Myhrvold. (-1)

Anonymous Coward | about 9 months ago | (#45223333)

Die in a fire.

It's a good start (2)

wjcofkc (964165) | about 9 months ago | (#45223511)

Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners. I don't remember the exact details, but back in the 19th century, the individual that first put an eraser on the end of a pencil had his patent application denied because all he did was put an eraser on the end of a pencil. We need a patent process that is sensible to begin with. Unfortunately, I suspect a lot of what is being submitted for patents is technologically over the heads of those issuing the patents, which is where a lot of bad patents come from. I also believe technology related patents are being intentionally written in an excessively complex and obfuscated manner to try and sneak them through. In a nutshell, we need an army of nerds in the patent office... now.

Re:It's a good start (1)

gnasher719 (869701) | about 9 months ago | (#45225553)

Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners.

You're probably talking about Samsung. I know they have this rounded corner patent for the Galaxy S3, but they are not first to the market, and their previous products copied someone else.

Give the devil his due (1)

MikeRT (947531) | about 9 months ago | (#45223517)

Goodlatte is a very mixed bag. Very pro strong encryption when that was highly controversial for politicians back in the 1990s. However, he also played a key role in giving us the DMCA and wrote the NET Act (No Electronic Theft Act) which made mass file sharing for no profit even between friends a felony. It'll be interesting to see how this plays out because he's like a compromise between the Republican leadership and the Tea Party. He may in fact be the only Republican who can force a majority of both sides in the party to hear reason.

This part has always been absurd ... (5, Insightful)

gstoddart (321705) | about 9 months ago | (#45223529)

The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

I've never understood how you can file suit without explicitly listing this.

We've heard about far too many lawsuits which vaguely reference a "set of infringing patents", and I seem to recall that (despite asserting Linux infringes) Microsoft has never actually enumerated the patents Linux is supposed to violate.

Forcing them to disclose who has financial interest in it is a good idea, because one gets the impression a lot of these have a behind-the-scenes actor which doesn't get revealed.

Re:This part has always been absurd ... (1)

Theaetetus (590071) | about 9 months ago | (#45224893)

The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

I've never understood how you can file suit without explicitly listing this.

They currently do list the patents, but not necessarily the claims or products. For example, a complaint may say that the defendant is "infringing one or more claims of US Patent No. blahblahblah through manufacture of products related to blahblahblah, including at least product name, product name, and product name." The reason for such ambiguity is because this is all pre-discovery, and if you need to examine the source code to determine if something infringes claim 2 but not claim 3, you need access to the code.

By the time anything gets to trial, it's very much fixed to certain patents, certain claims, and certain product models.

Good start, could be better though (5, Interesting)

jonwil (467024) | about 9 months ago | (#45223717)

1.Require anyone who is saying "xyz is violating my patents" to disclose exactly which patents are being violated and exactly which products are violating those patents and how, regardless of whether a lawsuit is being filed or not.
This would, for example, mean if Microsoft wants to say "Linux violates our patents" they would have to show exactly which patents they are claiming Linux is violating and which parts of Linux are violating which patents.

2,Make it illegal to sue customers and users if the manufacturer has a license for the patents. So, for example, if a company makes a video camera that records H.264 compressed video and purchases a patent license from the patent holders of H.264, those same patent holders can't sue someone who buys that video camera and uses it. Or a patent troll suing the developer of an app because that app uses a feature that is provided by the OS (in that case they would be required to sue the operating system vendor instead)

3.Introduce an "enforce it or loose it" rule for patents that requires patent holders to vigorously defend (either via licensing or via lawsuits) their patent or risk loosing the ability to sue those entities in the future. This would prevent the situation where patent holders go after small fish that they know they can beat, then using those wins as precedent and leverage against the big boys. This would also prevent the situation where someone holding a patent sits on the patent until the technology is more wide spread and then files lawsuits (remember what happened with LZW and GIF?)

4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.

Due to the costs incurred if the prior art is not genuine, there is a dis-incentive to submit frivolous or bogus prior art requests. If the fees paid are structured correctly then there would also be an incentive to properly review all prior art requests.

and 5.Require that anyone who claims to have a patent over any part of a standard, where that standard has been mandated by the government for use in certain situations, MUST license that patent for use in implementing the standard to anyone who wishes to acquire a license (including open source software) and must license under fair terms (with a suitable legal definition of whats "fair" that is not open to influence from either party)

Re:Good start, could be better though (1)

Theaetetus (590071) | about 9 months ago | (#45224217)

4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.

I like this idea, but just to avoid confusion, I don't think the word you're looking for is "genuine", but rather "invalidating". The Model T Ford is certainly "genuine" prior art for the Tesla Model S - it's prior, it's in the art, and it's certainly real. But it wouldn't show that a patent on the electric drive train or charging system was anticipated or obvious. People frequently use the term "prior art" - as in "this patent is stupid, look, I found prior art" - but what they really mean is "anticipatory prior art" or prior art that discloses every limitation of the claims. That's just a subset of all prior art out there, which is literally everything in the relevant industry that was published or produced.

Re:Good start, could be better though (1)

MozeeToby (1163751) | about 9 months ago | (#45225345)

1. The bill requires you to specify which products are infringing and which claims they are infringing upon. That's actually higher resolution than what you are asking for because it is down to the specific claim in the patent, rather than the patent as a whole.

2. This is already the case, that's what those licensing agreements are for. Unless you're saying the license the producer has doesn't allow them to sell... which would just be silly. What we see now are cases where the producer doesn't have a license because the patent is, quite frankly, stupid. I agree with you that consumers shouldn't be valid targets, but what you're asking for specifically already exists.

4. This was part of the America Invents Act and went into effect last September

But does it remain "first to file?" (0)

Anonymous Coward | about 9 months ago | (#45223841)

As long as it is "first to file," rather than "first to invent," patent trolls will have the upper hand.

One bill to end the trolling, in the land of (1)

Anonymous Coward | about 9 months ago | (#45224029)

Mordor where the shadows lie.

Customers should be immune (1)

ebno-10db (1459097) | about 9 months ago | (#45224669)

Customer-suit exception. There's no question that one of the practices that has been seen by Congress as abusive is the tendency to use patents to go after end users of a technology rather than the company that created it. Under the Goodlatte bill as drafted, if a manufacturer and customer agree, litigation against a customer can be stayed while the patent holder and the manufacturer battle it out.

That's a good start, but needs to go further. AFAIK this is a recent practice (some idiot judge said it was ok), but it's absurd to expect a customer to be responsible for whether or not any product they buy infringes on a patent. That's the manufacturer's responsibility. How many products do you own that could, according to some troll, infringe on "their" patents. Of course they won't go after John Doe, but it's another issue when the customer has deep pockets. This happened to a company my friend works for. They lost, or at least had put on indefinite hold, sale of a lot of equipment to a very large customer, because a patent troll threatened to sue the customer. The manufacturer might take them on, but do you think any customer, no matter how large, is willing to deal with that? Talk about restraint of trade.

Good Start, But a Long Way to Go (1)

organgtool (966989) | about 9 months ago | (#45224743)

The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

That will prevent the most egregious parts of patent racketeering, but there are still many cases where the patent(s) are disclosed and the real problem is that the patent was so broad that it should never have been granted in the first place.

require the loser in a suit to pay attorney's fees and costs

This could easily backfire, especially when patent trolls have an army of high-paid lawyers. Just the threat of having to pay millions of dollars for the plaintiff's legal fees means that you had better have some really good representation as well. And if you lose, you end up paying all of your own legal fees as well as the army of lawyers working for the patent troll. In most cases, it would just be cheaper to settle which actually strengthens the capabilities of patent troll racketeering.

has received bipartisan support and has a real chance of passing

That's what I thought about the bill that would have enabled stricter gun control laws since that had bipartisan support and overwhelming public support and yet that bill failed to get passed. Let's not count our chickens before they hatch.

Re:Good Start, But a Long Way to Go (1)

ebno-10db (1459097) | about 9 months ago | (#45224849)

Let's not count our chickens before they hatch.

Agreed. Legislatures rarely pass laws that restrict the games that lawyers can play, because so many legislators are lawyers. It's nice to have your union reps running the government.

Let's see how far this gets (1)

Chas (5144) | about 9 months ago | (#45224833)

It'll either get killed off immediately, or loaded down with so much pork that whenever people mention the bill, everyone in earshot busts out with "It's BACOOOOOOON!"

Stand by for unintended consequences.... (2)

SlaveToTheGrind (546262) | about 9 months ago | (#45225083)

Every single one of these proposed bills sounds great as long as you start by thinking about [insert outrageous patent troll story here] and think about how the provisions of the bill would have [made that situation better | kept it from happening].

As the saying goes, "hard cases make bad law."

Picture yourself as a stereotypical garage inventor. You had an amazing idea. You get a patent. You don't have the money to commercialize the idea.

Unintended consequence #1: You try to find a partner to commercialize it. BigCo looks at your idea, flirts with you a bit, then turns you down. Next year, something suspiciously like your idea (but not 100% identical to it) floods the market. Now nobody will talk to you about partnerships because there's no real market opportunity left. You want to sue BigCo for a royalty, but you now can't find anyone to take your case because of the fee-shifting provisions. Even a slam-dunk case has a 15-20% chance of going the other way, and this isn't a slam-dunk case. BigCo's legal fees are likely to run in the $3-5MM range, and they're likely to make sure you understand how much they're spending just to make it more likely that you'll settle or go away. Feeling lucky?

Unintended consequence #2: You need money. You have a patent for a great idea, but now you can't easily monetize it. You can't readily enforce it for the reasons stated above. Companies are less likely to license it [for as much] given the reduced odds of litigation. You can't sell it [for as much], because the fee-shifting calculus has significantly impaired the potential value a buyer might experience.

Now, if your world-view is that patents are evil and should be eradicated, you may be OK with all this. But be honest about what's really happening as a result of legislation like this. Patents aren't really being eradicated -- they're being consolidated. The CCIA wants this passed? Of course they do. They're already well-positioned for patents to become a rich man's game.

This is an absolutely awful idea (1)

EmagGeek (574360) | about 9 months ago | (#45225121)

First, loser-pays only incentivize businesses and people who are not rich to settle out of court and admit defeat without a trial. That is not justice.

Second, small-time inventors don't always productize their inventions, either because they don't have the money, don't have the time, or for other reason. This shouldn't stand in the way of them profiting from their hard work and inventiveness.

This is just another pro-corporate bill churned out of our for-profit, insider-trading Congress.

From an inventor perspective, awful bill. (1)

Animats (122034) | about 9 months ago | (#45225433)

This is an awful bill from the inventor perspective. With the "loser pays" rule, trying to enforce a patent, which costs about $1 million and up, becomes even more expensive. Now, suing a big company means you may have to pay for their lawyers. Patent cases are won by patent holders about 40%to 50% of the time, so you have to risk bankruptcy to enforce a patent.

This is worse than the previous "SHIELD act" from earlier this year. That exempted three groups from the "loser pays" scheme - the original patent holder, anyone manufacturing the patented thing, and universities. This new bill doesn't have those exemptions.

Who's pushing this? The American Association of Advertising Agencies. The Consumer Electronics Association, which by now mostly represents Chinese manufacturers.

Congress has been making it harder to make money as an inventor for over two decades now. First came the Bayh-Dole Act, which allowed universities to patent inventions made with Government funding. So now you have to compete with big Government funded universities.

Then Congress took away the possibility of triple damages for willful infringement, by redefining "willful infringement" as requiring "recklessness". So worst case for the infringer is to pay what they would have paid if they licensed.

Then there was a court decision that restricted injunctions in patent cases. A patent is supposed to be the right to exclude others from doing something. But in the US, it's hard to do that. Back when injunctions were available, Kodak tried copying Polaroid's instant-film technology. Kodak lost a patent lawsuit and had to stop making the film and buy all the cameras for it back.

Then, with the "America Invents Act", Congress added more "post-grant opposition" proceedings. So now, if you try to enforce a patent, infringers can stall and harass you through those proceedings.

Most of the whining about "patent trolls" comes from people who want to copy a good idea, instead of coming up with their own.

Good start (1)

TheSpoom (715771) | about 9 months ago | (#45225435)

Next issue: Making software patents entirely illegal. Math is a public good.

Re:Good start (1)

gnasher719 (869701) | about 9 months ago | (#45225483)

Next issue: Making software patents entirely illegal. Math is a public good.

Software isn't maths.

Unless you agree that everything other than software is quantum physics.

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