[HN Gopher] Unified Patent Court is more expensive and an SME ki...
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Unified Patent Court is more expensive and an SME killer
Author : zoobab
Score : 99 points
Date : 2021-10-31 11:50 UTC (11 hours ago)
(HTM) web link (ffii.org)
(TXT) w3m dump (ffii.org)
| mark_l_watson wrote:
| I think this bias against small companies and individuals is
| easily explained, at least in the USA where I live. This probably
| applies to the EU also:
|
| Large corporations buy influence via lobbying, revolving door
| policies, etc. so expect governments to set in place policies to
| protect large incumbents from smaller rivals. So many modern
| problems would be reduced if we could get rid of the deep
| systemic corruption.
| zoobab wrote:
| Court fee to invalidate a patent in Belgium is 165EUR,
| Netherlands 667EUR, France around 400EUR, Italy around 500EUR,
| Czech Republic 80EUR, Sweden 160EUR.
|
| We are very far from those 20.000EUR.
| _0ffh wrote:
| > FFII says the proposed Unified Patent Court is an SME killer
| with its super-expensive court fees of 20.000EUR. No small
| company will be able to defend itself if it is accused of
| violating a patent, the proposed UPC court fees will deny access
| to justice for small companies, the cost being 100X more
| expensive than the current situation in the different countries.
|
| I can't help but wonder if this is really just an honest mistake
| by the EU.
| brezelgoring wrote:
| >just an honest mistake
|
| I wouldn't think so, these are legislations that have every
| word and number fought for by the legislators, this is likely a
| concession to some legislator that stands to gain from this.
| jopsen wrote:
| > I can't help but wonder if this is really just an honest
| mistake by the EU.
|
| Unlike software patents, it's less clear to me that this is
| worse than the alternative.
| mchusma wrote:
| Not sure what to make of this.
|
| Patents should be much more expensive. They are government
| granted monopolies.
|
| Most patents are also not really original too, so I'd expect the
| world would be better off with 1/10th the number of patents.
|
| They probably should ongoing gradually escalating fees (for
| example maybe getting a patent for the first 5 years can be
| $100k, next 5 years $1M, next 5 years $10M, last 5 years $100M).
|
| But the fees for resolving disputes should come down (mostly
| lawyers fees, not court fees). Probably the best way is to
| eliminate the government granted Monopoly on attorneys (and
| related restrictions on law).
| emn13 wrote:
| All of these suggestions are a right step. The fundamental
| issue is that the current system is designed to issue when in
| doubt; without considering the cost to society from inhibiting
| progress by pointlessly throwing everything through the legal
| grinder with extra sand (in the form of a patent minefield).
|
| Ideally we'd start looking for an entirely different way to
| encourage innovation, and just cease issuing patents entirely.
| For example, patent-like systems with a more restrictive scope
| (not exlusive access to pretty much "any idea", but exclusive
| access to e.g. "medical approval"), so we don't accidentally
| hit every future sector with this junk. And perhaps we'd look
| for some system that's more self-regulating; i.e. where abuse
| exists rather in the form of ripping of the taxpayer, and less
| in the form of court cases. The justice system is so terribly
| inefficient and _everything_ it touches, yet is just keeps on
| growing until everything is some kind of zero-sum game.
| patentatt wrote:
| Luckily the UPC is a complete pipe dream and may never see the
| light of day. It's been 'around the corner' for nearly a decade.
| etothepii wrote:
| It's not clear from this press release that there's a fee to
| defend oneself. A 11k fee to file would surely make it less
| likely there would be trolls?
| newaccount74 wrote:
| If someone attacks you with a bogus patent, then it would cost
| 20.000EUR to request invalidation of the bogus patent.
|
| From a quote near the bottom of the article:
|
| > Typically, in response the sued company could be advised to
| demand cancellation of the Unitary Patent by means of a
| counterclaim but in that case, it will be required to pay a
| court fee of EUR 20,000.
| stepbeek wrote:
| 11k is nothing to a patent troll like a FAANG (MAANG now?) but
| quite a lot to the kind of SME that - afaik - doesn't engage in
| this behavior to the same extent.
| ByteJockey wrote:
| > MAANG now?
|
| I keep hearing MANGA
| stepbeek wrote:
| If we substitute Netflix for Microsoft (I'm never sure why
| Netflix was chosen instead), we can have GAMMA which is my
| personal favorite.
| ectopod wrote:
| Why not have both? "The GAMMAN companies" has a nice ring
| to it.
| fortran77 wrote:
| I think it was originally for "Silicon Valley" companies,
| and Microsoft was up in Seattle.
| dlgeek wrote:
| So's Amazon.
|
| It was "high-growth large-cap tech stocks" at a specific
| point (where MSFT was flat) - it was a Wall Street thing,
| not a tech thing.
| plumeria wrote:
| It is being referred to as MANGA in other places
| PeterisP wrote:
| > (MAANG now?) FAANG still has G for Google, not A for
| Alphabet. In a similar vein, we can (and perhaps should?)
| simply ignore Facebook's rebranding attempt - names are a
| social constrict, you don't get to unilaterally decide how
| others will call you.
| fortran77 wrote:
| If only this were true! People wouldn't be kicked off open
| source projects.
| bryanrasmussen wrote:
| >names are a social constrict,
|
| typo as truth.
| VBprogrammer wrote:
| We can perhaps now just shorten it to "the man". I think
| at one point it was generally used to refer to exciting
| tech companies where people got paid really well and had
| an almost unreasonable standard of employment (meals
| provided for them etc).
|
| For the most part those companies have grown up and stuff
| like free coffee and fruit has become the standard across
| most offices.
| gruturo wrote:
| Trolls have a reasonably large amount of money to burn if
| necessary, and they normally try to get their victims to settle
| _before_ things reach any court.
|
| So no, this won't stop trolls, it will only deter a lot of
| legitimate cases from SMEs.
| [deleted]
| JackFr wrote:
| What is an SME?
|
| Subject matter expert? Small and medium enterprise? Article could
| do better.
| [deleted]
| wereHamster wrote:
| https://en.wikipedia.org/wiki/Small_and_medium-sized_enterpr...
| uberswe wrote:
| Small to medium Enterprise (business)
| whoopdedo wrote:
| I've come to believe there's a rule similar to Betteridge's
| Law of Headlines along the lines of: When an article says
| "small-business" it can be substituted with "big-business" to
| make the article more accurate.
|
| Except in rare cases, policies that help smaller businesses
| will also help larger ones proportionally. To hide the big-
| business benefit, promoters of the bill will spotlight how it
| helps the "little guy". Because SME/SMB have become
| politically untouchable. Being accused of hurting small
| business owners will get a congressperson out of a job. It's
| a think-of-the-children argument. So when I see something
| being touted as good for small business business, it sets off
| warnings that a spin doctor is at work.
| nceqs3 wrote:
| The EU patent office is horribly unfair to individual inventors.
| There are not even fee differences for a kid in their bedroom vs
| Apple when filing a patent.
|
| Take data also, EPO will charge you hundreds of thousands of
| dollars for patent data. USPTO gives it to everybody for free.
| iechoz6H wrote:
| "Take data also, EPO will charge you hundreds of thousands of
| dollars for patent data."
|
| This appears to be wrong, the full dataset is available as a
| free download: https://data.epo.org/linked-data/download/
|
| There is also a freely available API, with documentation at:
| https://data.epo.org/linked-data/documentation/api-overview....
| nceqs3 wrote:
| I am not talking about the patent images. That's not the data
| that most people are interested in. I am talking about
| ESpacenet, OPS, etc. which are the ones that people care
| about.
| iechoz6H wrote:
| OPS data can be downloaded with a free account (up to 4GB
| per week): https://www.epo.org/searching-for-
| patents/data/web-services/...
|
| ESpacenet appears to be available as at the very least a
| completely free online search:
| https://worldwide.espacenet.com/patent/
|
| Am I missing something?
| nceqs3 wrote:
| 4GB is nothing for a dataset of that size and Espacenet
| is certainly available online, but it is heavily rate
| limited and they do not just allow you to download the
| full thing.
|
| The data was only a side point. My main frustration with
| the EPO is the fee structure.
| pclmulqdq wrote:
| The 20k and 11k fees here are for invalidating and proving
| infringement respectively. The second one should dissuade trolls
| who want to target small users. The 20k fee is not to defend
| yourself from an infringement claim, it is to invalidate a
| patent. That is very different than defending yourself.
|
| The equivalent filing in the US is about the same price, and the
| process of invalidating a patent is long and complicated, so in
| any jurisdiction you should expect to pay hundreds of thousands
| in legal fees for that process. On top of those fees, 20k isn't
| that much.
| indymike wrote:
| > On top of those fees, 20k isn't that much.
|
| If we are comparing apples to apples, the actual court filing
| fees and such in the US are pretty small ($350 to sue in
| Federal court + $400 to file documentation), and if you cannot
| afford these fees the court has the power to waive them. For a
| small business with a clear case,this means your $20K is
| _possibly_ enough to pay the lawyer and see the case though.
| Just recently, on this site, we had an article about SparkFun
| rebuffing a patent troll in US Federal Court for less than (or
| close to, as I recall) the EU filing fee.
|
| > On top of those fees, 20k isn't that much.
|
| Yes, the issue is when the fees are charged. A filing fee
| prevents discovery from ever happening. It is basically saying,
| you are too small, too poor to dispute a patent. That is not
| justice.
| marcinzm wrote:
| Isn't invalidating the patent one of the defenses you have
| against a patent troll? If they don't back off you may cost
| them all future business for that patent. This makes that
| potentially much more expensive to do.
| pclmulqdq wrote:
| It is, but it's a VERY aggressive line of defense. The OP was
| saying that this is an "SME killer" and that "No small
| company will be able to defend itself" against a patent suit.
| This is far from the case. A small company was never going to
| try to invalidate a patent to defend itself either way.
| rwmj wrote:
| Shouldn't invalidation of a patent simply be a matter of
| presenting evidence of prior art? I can imagine that you'd want
| to mandate that the evidence is presented in a certain format
| and possibly charge a very nominal fee (both to avoid time-
| wasters) but nothing more. The bias should always be towards
| invalidating patents, given the damage they do to competition.
| pclmulqdq wrote:
| There are a lot of different ways of invalidating a patent,
| and that is the simplest. However, that is also nominally
| what the examiner did during the issuance of the patent, so
| unless there was gross incompetence (eg the "shopping cart"
| patents), it's not that simple.
| rwmj wrote:
| I've filed several patents and never seen any evidence that
| the examiner did anything apart from stamping paperwork.
| AlbertCory wrote:
| Echo the other answer to this. If you know where to look,
| you can find what they searched.
|
| I'm not saying it was a _thorough_ search, but it was a
| search.
| btrettel wrote:
| Type the application number into Global Dossier if it's
| published, and take a look at the "file wrapper" (term
| for all the documents listed). You'll get a better idea
| of what the examiner did.
| https://globaldossier.uspto.gov/
|
| In the US at least, they typically put time stamped
| search logs in the patent file wrapper, so you can get a
| fairly good idea of what was searched and how long that
| took. It seems to me, however, that few patent attorneys
| will look at anything other than the "office actions",
| and they will look only at parts of those. Other
| jurisdictions don't seem to put anywhere near as many
| documents in patent file wrappers as the US does.
| rwmj wrote:
| Here's the first patent I filed (and wrote(!)) which was
| in the UK. Can I search what the examiner did on this?
| https://patents.google.com/patent/WO1998024208A2
|
| The latest one I coauthored is a US patent which might
| easier to research:
| https://uspto.report/patent/app/20210034401
| btrettel wrote:
| On Google Patents you can get a shortcut to the USPTO
| Global Dossier if you search for "External Links". Looks
| like the USPTO Global Dossier is down for WIPO documents
| right now but the Espacenet Global Dossier is up: https:/
| /register.epo.org/ipfwretrieve?apn=GB.9703212.W&lng=e...
|
| You can see the search report for the WIPO document you
| linked to there. Often the descriptions are inaccurate,
| so in this case even though it just says "Published
| International Application" for all 3 documents, it's not
| necessarily that. The one dated 05.11.1998 is the search
| report. This one is not very detailed.
|
| The EPO version has a lot more: https://register.epo.org/
| application?tab=doclist&number=EP97...
|
| For the second one you mention, the USPTO Global Dossier
| lists a bunch of documents: https://globaldossier.uspto.g
| ov/#/details/US/16530248/A/7839...
|
| You can get there by changing the "Type" drop-down menu
| to "Pre-grant Publication" and typing in 20210034401. You
| can look at a lot of search logs for this one. You can
| also read the "Notice of Allowance and Fees Due
| (PTOL-85)" to see why the examiner issued this patent.
| VBprogrammer wrote:
| Invalidating a patent to me is an admission that the patent
| shouldn't have been granted in the first place. I appreciate
| that there is a long legal battle to get there but the patent
| authority then charging a fee feels like them getting money for
| their own failings. If anything they should be paying those
| people who's business was in legal limbo compensation for their
| error.
| pbhjpbhj wrote:
| So then, instead of accepting that patent offices can't find
| all relevant prior art/prior use (disclosed anywhere in the
| World) you require perfection in the discovery of relevant
| 'art' (closely related technical documents).
|
| That shifts the problem from "occasionally a patent is
| granted that isn't valid" to "it will cost $billions for even
| a single patent just to do a complete search" (more
| realistically this isn't possible you'd have to exhaustively
| search all prior publications).
|
| IMO if you want a patent system you have to make it work
| without expecting perfection from patent offices.
| AlbertCory wrote:
| > "occasionally a patent is granted that isn't valid"
|
| ROTFL. It's more like "with software, the patent is
| virtually _always_ invalid. "
|
| I'm sure there are people better than I am, but I can
| invalidate practically any software patent. And I did it
| for Google, including in Germany in the Google Maps case of
| 2014.
|
| The average time an examiner is given for a patent is a day
| and a half (old data). That is not nearly enough time to
| find the "relevant prior art." So what the patent offices
| are doing is handing out worthless government "monopolies"
| and making tons of money in fees while they're doing it.
| pbhjpbhj wrote:
| >ROTFL. It's more like "with software, the patent is
| virtually always invalid." //
|
| Yes, the establishment of prior art is particularly hard
| for software IMO, but that's mainly not an EPO issue (per
| the OP) as software patents in Europe are much more
| restricted compared to before the USPTO.
|
| Your timing is broadly right IME, probably a bit generous
| for less complex areas (though it varies and EPO spend a
| bit longer).
|
| Note that in part it's an industry issue - if software
| companies wanted to help them they can point out prior
| art before parents are granted (it's part of the process
| in EPO and USPTO jurisdictions).
|
| >I'm sure there are people better than I am, but I can
| invalidate practically any software patent. //
|
| EPO _granted_ patents? I'm highly doubtful you can do
| that in the normal search period (0.5-1.5 days).
|
| If you want to argue that far more resources should be
| devoted to patent examination; that's possible but in EPO
| countries the balance seems about right -- countries have
| a hard job arguing for thousands more civil servants to
| save only a few (!?) court cases. In USPTO you need an
| overhaul of the court system, massive increase in
| examining staff I don't think we'll fix it.
|
| All just my opinion of course.
| AlbertCory wrote:
| > "EPO _granted_ patents? I'm highly doubtful you can do
| that in the normal search period (0.5-1.5 days)."
|
| "In the normal search period" is the key phrase here. If
| you're granting a government monopoly which is extremely
| costly to challenge (as the article demonstrates), then
| you owe us more than a cursory look at the prior art.
|
| In any case, this is probably an argument for just making
| software nearly impossible to patent, even more than the
| EPO already does. As (I think) Joel Spolsky said, no more
| than 5 or 6 per year sounds about right.
| VBprogrammer wrote:
| The remark about paying compensation was slightly in jest.
| I do think it's unreasonable for there to be a fee for
| issuing a patent as well as invalidated one though.
| Expecting perfection is a long way from expecting their
| incentives to be aligned with the desired outcomes.
| AlbertCory wrote:
| Correct. The PTO (speaking of the US here) takes in way more
| money in fees than it spends, and doesn't even get to keep
| that money to improve its searching.
| ATsch wrote:
| If there's one thing I've learned from the world of think tanks
| it's that you have to be extremely critical when someone starts
| arguing about the woes of SMEs.
| civilized wrote:
| Annoying that politicians feel entitled to set enormous fees for
| government services as a form of social engineering or
| profiteering, rather than simply providing the services at cost.
| mannykannot wrote:
| This is a problematic proposal, but, unfortunately perhaps, I do
| not think one can plausibly say that it raises the specter of "EU
| economic suicide". I would characterize it more along the lines
| of being a step in the refeudalization of the developed world.
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