[HN Gopher] US Patent Office proposes rule to make it much harde...
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US Patent Office proposes rule to make it much harder to kill bad
patents
Author : berkeleyjunk
Score : 209 points
Date : 2023-06-12 20:55 UTC (2 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| hodgesrm wrote:
| > Basically, if a patent holder is designated as an "individual
| inventor, startup" or "under-resourced innovator" then their
| patents are protected from the IPR process.
|
| Just curious...is there a good faith argument why this change
| would be good?
| jcranmer wrote:
| The good faith argument is that the people who are predating on
| the poor, beleaguered genius inventor would be unable to avail
| themselves of a low-cost-for-the-challenger-high-cost-for-the-
| inventor mechanism for challenging patents.
|
| What makes it bad faith is that the reason the mechanism exists
| is because the predators in the patent system are the
| inventors, not the challengers.
| tomtheelder wrote:
| They did leave something _extremely_ important out here that
| helps to explain the good faith argument. From the source:
|
| > Petitions challenging under-resourced patent owner patents
| where the patentee has or is attempting to bring products to
| market;
|
| So I'd say the good faith argument is that it's designed to
| protect larger orgs from bullying actual inventors/startups by
| attempting to threaten the legitimacy of their patents. The bit
| about bringing products to market is supposed to exclude
| trolls. More from the source:
|
| > Such limited resources may impact the perceived fairness of
| post-grant reviews. For example, some stakeholders in response
| to the RFC expressed concern that under-resourced inventors are
| unable to afford the costs involved in defending patents in
| post-grant review. Some stakeholders advocating for small
| businesses and individual inventors urged the Office to take
| into account the financial resources of a patent owner, and to
| limit reviews of patents owned by under-resourced entities who
| lack funding to defend challenges to their patents but who have
| sought to bring their inventions to market either themselves or
| through a licensee.
|
| So yeah basically the argument is that defending themselves in
| this proceeds is too onerous for small entities.
|
| So I think that's the good faith argument. I'm skeptical,
| though I will happily admit that I don't know much about the
| uses and abuses of the patent system.
| shmerl wrote:
| Such an obviously corrupt idea.
| semiquaver wrote:
| This is a bad proposed rule that should be killed, to be sure.
| But this article is missing the context about _why_ the Patent
| Office claims to think this is necessary in the first place.
| Patent trolls of a sort are setting up shop on the other side of
| where you would normally expect them in litigation, attempting to
| use the Inter Partes Review process in ways that look very much
| like an abuse of the system. For example, one company opened an
| IPR against a valuable patent and then offered to withdraw it for
| money. It was rightly called out as a shakedown.
|
| https://www.jdsupra.com/legalnews/director-vidal-removes-ope...
|
| https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions...
|
| The US legal system generally requires parties to have standing
| before they can make use of courts or pseudo-courts like the
| PTAB. Situations like this make it clear why: when lots of money
| is on the line people will try to "hack" the system in ways that
| its designers didn't expect. Uniquely open processes like IPR are
| vulnerable to exploitation in a way that is annoying to lawyers
| compared with what they're used to, so they reflexively reach to
| reimpose standing requirements. That's basically what is being
| proposed here.
|
| Again, the above doesn't mean I think this rule change should go
| forward: the IPR process and its openness are incredibly valuable
| and should be retained. but it's misleading to portray this
| proposed rule as arbitrary or corrupt.
| Wistar wrote:
| Yours is a great comment.
| shmerl wrote:
| Since patent trolls already "hack" the system to essentially
| run a legalized protection racket, it only makes sense there
| should be some counter balance to their abuse. Fewer barriers
| to invalidate bad patents is such example.
|
| And in this case, this new proposed rule is simply pushing the
| balance in patent abusers' favor, so it is corrupt because they
| are pushing it for their racketeering profits.
|
| A better solution would be to prevent more bad patents in the
| first place (like forbid software patents for example) instead
| of making such kind of workarounds. But they aren't doing it
| either.
| paddw wrote:
| The only way to fix situations like this is to make it possible
| to extract heavy penalties for frivolous patent litigation. The
| cost benefit analysis will always fall too much in favor of
| patent trolls otherwise.
| fatfingerd wrote:
| I don't really get it, anyone who is a neutral party in any
| kind of legal matter and takes money from an involved party for
| a specific action is guilty of criminal conspiracy, no? I mean
| can I citizen arrest people for other thefts in the US and
| offer to split them?
| semiquaver wrote:
| Offering to settle is usually fine for involved parties (as
| far as I understand, I'm not a lawyer). The "problem" (from
| the USPTO's perspective) is that congress set up this process
| so any outside party can bring an IPR case, making it
| potentially profitable to pose as a public interest group
| when you might actually intend to settle without invalidating
| the patent.
| unyttigfjelltol wrote:
| It sounds like a class action in a normal court, where a lead
| plaintiff legitimately can get better treatment _to a point_.
| Viewed from that perspective, it 's a wonder IPR has been so
| _noncontroversial_ for so long, because the rules around class
| actions are extremely contentious.
| jjoonathan wrote:
| That's good context, thanks for sharing!
|
| It makes sense, but I'm leery of trusting the USPTO because
| they have been saddled with (intentionally?) godawful
| incentives: they must pay for all their operations using patent
| fees. The more trolling they enable, the more money they get.
| Based on these incentives, I would expect the USPTO to oppose
| rule changes that effectively reduce trolling.
| semiquaver wrote:
| That's a great point. I didn't know the patent office was
| _entirely_ funded by fees but that does indeed appear to be
| the case.
|
| https://www.uspto.gov/about-us/performance-and-
| planning/budg... > With full access to the
| fee collection estimate to offset total spending, the USPTO
| will use $32 million (net) from the combined operating
| reserves (ORs) in FY 2024, resulting in a net appropriation
| of $0.
| bdowling wrote:
| > The more trolling they enable, the more money they get.
|
| How do trolls pay anything to the USPTO? Usually the patents
| a troll tries to assert against others are purchased from
| others, often failed tech startups. (Note: People often
| forget that every "bad" patent was once someone's startup
| dream.)
| tcbawo wrote:
| It seems that bad patents would hurt less if they didn't persist
| for so long. Why can't we come up with some sort of earlier
| phase-out, where patents must be re-litigated or justified to
| remain in effect?
| henry2023 wrote:
| The US is still making itself less competitive while China is
| closing the tech gap at a breaking speed. I really don't
| understand what they think this will accomplish.
| mlinksva wrote:
| There was a big discussion of the EFF post this one riffs on last
| week https://news.ycombinator.com/item?id=36198329
|
| Also see https://www.linuxfoundation.org/blog/stand-up-for-open-
| sourc... which didn't get much discussion
| https://news.ycombinator.com/item?id=36154988
| noodles_nomore wrote:
| The legal system is a game that is played for profit. The ability
| to sue anyone for anything is advantageous for the big dogs. So
| it's imperative that as many laws as possible cover as much
| seemingly innocuous human conduct as possible with the highest
| stakes possible. Unrestricted expansion of intellectual property,
| the ability to lay claim to arbitrary regions of the ideosphere,
| makes perfect sense.
| zdragnar wrote:
| > Being able to sue anyone for anything is advantageous for the
| big dogs
|
| Unless they can justify very high damages, they are predisposed
| to settling out of court. When you hire top lawyers, or have a
| massive legal department, you're paying _a lot_ of money. Going
| to court is at best a gamble unless you have an obvious and
| solid case.
|
| What this means is they use _threats of going to court_ wrapped
| up in legalese in the hopes of getting their way out of court.
|
| Unfortunately, the degree to which various districts earn
| reputations around being pro or anti patent means they're also
| advantaged in "shopping around", so to speak, to get any case
| they bring moved to a favorable court. This is the biggest
| thing that they can do that your average "small dogs" have a
| harder time with.
|
| The worst has changed in the last year:
|
| https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scram...
|
| but it'd be nice to see ways to make it more difficult to game
| the system by "judge shopping".
| amelius wrote:
| Can't we let the free market solve the problems with patents?
|
| Like, if the government (or anybody, really) wants an invention
| to be open, they can offer the inventor/company some sum of
| money, and if they accept then they will have to explain how it
| works. Otherwise, it will remain a trade secret until someone
| else figures it out.
| bloppe wrote:
| This is how trade secrets work, not patents. The main point of
| a patent is to encourage inventors to divulge their secrets, by
| promising them temporary exclusive rights to control their tech
| in exchange for a public, detailed description of how it works.
| Eventually, the patent will expire and the technology will
| enter the public domain for the good of society. Without
| something like patents, technology would be much more
| secretive.
| amelius wrote:
| My point is that there is more than one way to make someone
| give up their secrets. Giving someone a monopoly seems wrong,
| because they will use it to block progress.
|
| Governments already provide funding for scientific research.
| Why can't the same principle be used to "fund" the disclosure
| of technological secrets?
| spywaregorilla wrote:
| Patents already explain how things work. The problem is
| limiting other people's ability to do something that someone
| claimed as their own with basically no effort.
| hodgesrm wrote:
| That's effectively what the patent system already does. The
| "sum of money" you refer to is the market value of the monopoly
| on the idea embodied in the patent. This solves the problem of
| what the price should be.
| amelius wrote:
| It's not the same because a patent is a time-limited monopoly
| on a technology. This means that patents can be used to block
| the progress of other companies.
|
| E.g. if A patents X and some large company B wants to use X
| and A refuses, then B cannot use X even if they offer
| millions.
| AlotOfReading wrote:
| Patents exist specifically to avoid a fully free market. The
| trade-off is that in return for a time-limited legal monopoly
| on certain ideas and obvious derivatives, you have to publicly
| disclose what it is that you own. This also serves the
| practical purpose of allowing you to determine if you're
| potentially infringing anyone else because you can look at the
| patents. The free market approach would be no patents at all.
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