[HN Gopher] New USPTO Memo Makes Fighting Patent Trolls Even Harder
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New USPTO Memo Makes Fighting Patent Trolls Even Harder
Author : healsdata
Score : 157 points
Date : 2025-03-21 18:55 UTC (4 hours ago)
(HTM) web link (www.eff.org)
(TXT) w3m dump (www.eff.org)
| buckle8017 wrote:
| Maybe it's time for a patent pool for non-trolls covering patent
| to behavior.
| yubiox wrote:
| I can't parse this sentence. I even tried reading out loud. I
| thought maybe to=troll but still I can't understand it.
| charleslmunger wrote:
| https://patents.google.com/patent/US20080270152
|
| https://patents.google.com/patent/US20070244837
| herniatedeel wrote:
| Defensive patent pools exist, if that's what you're saying:
| Unified Patents, LOT network, and RPX are a few.
| jerry1979 wrote:
| I'm confused. Do you mean a patent that patents 'patent
| trolling'?
| sejje wrote:
| Way too much prior art, no?
|
| And we want people using the patents, so you'd have to
| actively troll...
| ted_dunning wrote:
| Defensive patents don't really help against trolls since they
| don't actually make products. That means that they don't
| infringe on any patents and thus your defensive portfolio
| doesn't get to play.
| whatshisface wrote:
| The policymaking with regards to industry is functioning more
| like a clearinghouse, where every interest group gets to have
| their targeted policy, than a coalition, where the event that one
| interest group's target policy would hamstring another member
| would result in dealmaking and some sort of compromise. Certain
| industries like the steel industry receive steeply protectionist
| trade restraints, but they're also being de-prioritized in favor
| of non-producing vexatious litigators who stop them from
| innovating. In essence this is similar to how some industries are
| seeing major policy-driven price increases on their outputs _and_
| inputs. Multiply that by every lobby and that 's all I can
| interpret out of the big picture.
| amelius wrote:
| We should have notarized LLM models for this. Timestamp your
| LLMs, put them in a notarized database. Then, if you en up in a
| patent lawsuit, just fire up the relevant LLM, and ask it in
| simple terms to reproduce troll's claims.
| herniatedeel wrote:
| For what purpose? If it's for prior art, the prior at must have
| been publicly available, so a private LLM wouldn't work.
| Perhaps I'm missing your point, though.
| kam wrote:
| I think the idea is that if an LLM trained prior to the
| patent date can reproduce the invention, then either the idea
| is obvious or there was prior art in the training set; either
| way the patent is invalid.
| btrettel wrote:
| I had similar thoughts before. It's worth thinking about
| what attorneys will do in response to rejections based on
| LLMs reproducing ideas. I'm a former patent examiner, and
| attorneys frequently argue that the examiners showed
| "hindsight bias" when rejecting claims. The LLM needs to
| produce the idea without being led too much towards it.
|
| Something like clean-room reverse engineering could be
| applied. First ask a LLM to describe the problem in a way
| that avoids disclosing the solution, then ask an
| independent LLM how that problem could be solved. If LLMs
| can reliably produce the idea in response to the problem
| description, that is, after running a LLM 100 times over
| half show the idea (the fraction here is made up for
| illustration), the idea's obvious.
| simoncion wrote:
| > ...if an LLM trained prior to the patent date can
| reproduce the invention...
|
| Would we even be able to tell if the machine reproduced the
| invention covered by the claims in the patent?
|
| I (regrettably) have my name on some US software patents.
| I've read the patents, have intimate knowledge of the
| software they claim to cover, and see nearly zero relation
| between the patent and the covered software. If I set a
| skilled programmer to the task of reproducing the software
| components that are supposed to be covered by the patents,
| I guarantee that they'd fail, and fail hard.
|
| Back before I knew about the whole "treble damage thing"
| (and just how terrible many-to-most software patents are) I
| read many software patents. I found them to offer no hints
| to the programmer seeking to reproduce the covered software
| component or system.
| analog31 wrote:
| If it can't be reduced to practice, then it's a vanity
| patent, but also, impossible to violate.
| elevatedastalt wrote:
| Should it be put on the Blockchain too?
| ujkhsjkdhf234 wrote:
| > Congress Created IPR to Protect the Public--Not Just Patent
| Owners
|
| For this administration, this is a problem to be solved. Big
| business are the masters now and we need to make it easier for
| them to step on small business by any means.
| herniatedeel wrote:
| Big business isn't really monolithic when it comes to patents.
| Some large tech companies love patents (MSFT, e.g.), while
| others (Google, e.g.) seem to abhor them.
|
| Also, the troll problem is a _problem_ for big business, not a
| benefit to big business.
| zerkten wrote:
| Are tech companies really the ones lobbying hardest for
| policy changes? I suspect other industries are the ones
| pushing harder with fallout for tech.
| ujkhsjkdhf234 wrote:
| Tech companies aren't the only big businesses in the US.
| reverendsteveii wrote:
| Why do we keep moving toward a system where being ahead is the
| most viable way to get ahead?
| 01HNNWZ0MV43FF wrote:
| Power accumulates the same way rivers flow into the ocean
|
| If there is no continuous effort to tax rich people and split
| up political power, democracy will fall back into feudalism
| quantified wrote:
| "While" not "if"
| gosub100 wrote:
| Because "we" don't have a functioning democracy. Only the
| illusion of one.
| DrillShopper wrote:
| Because money controls things
| floatrock wrote:
| because r > g
| HPsquared wrote:
| Not sure what that is but it's more like the Lotka-Volterra
| equations (predator-prey model).
|
| https://en.m.wikipedia.org/wiki/Lotka%E2%80%93Volterra_equat.
| ..
| btrettel wrote:
| See https://en.wikipedia.org/wiki/Capital_in_the_Twenty-
| First_Ce... for an explanation of r > g.
| robocat wrote:
| I think systems grow by themselves - more like a biological
| ecosystem. Even powerful politicians seem to often be reduced
| to dealing with the outcomes of a system without seeming to
| understand how that system works. The idea that people are in
| charge leads to conspiratorial theories: imagined incentives of
| people behind the scenes.
|
| However I know I look at the world differently from most
| people: so it is just as likely my own views are warped.
| vkou wrote:
| Because of the golden rule.
|
| The people with all the gold make all the rules.
| niwtsol wrote:
| We dealt with some patent trolls back in the 2010-2020 era, for
| those who have not experienced it, it is absurd. In our case, the
| patent "troll" was an LLC w/ ~5 members - 2 lawyers, 1 person who
| owned the original patent, and some spouses. The only "asset" of
| the LLC was the patent. I think it was around scrollbars or some
| CSS overflow thing - they sent us a demand/cease-desist letter
| saying they will sue for $1M and asked for a call. Classic Lawyer
| call "well, we can make this all go away for $25k." We ended up
| fighting it a bit because of "principles" by our founder. - in
| discovery there was something like 1,000 of these exact demand
| letters they had sent.
|
| The kicker? If you fight back, it costs a ton in legal fees, and
| even if you win, you can't recover those fees -- because the
| LLC's only asset is the patent itself.
|
| Just insane to me we would take a step back like this.
| elevatedastalt wrote:
| Doesn't it cost a lot in legal fee to the troll too? How are
| they able to finance it given that they are basically a sham
| company?
| Someone1234 wrote:
| The troll is lawyers, so it only costs their own time.
| ziddoap wrote:
| It's like spam.
|
| Send out 1,000s of dubious demand letters which don't cost
| much. Some percent of those will settle with minimal effort
| on the troll's side. Profit.
|
| Drop the ones that look expensive and hope they don't counter
| sue.
| HeatrayEnjoyer wrote:
| What would they counter sue for?
| ziddoap wrote:
| I probably should have just written "counter" or "fight
| back". I was rushing out the office door when I pushed
| the reply button.
|
| In some countries you can sue for "unjustifiable threats
| to begin patent infringement proceedings", but I was also
| thinking things like filing complaints with the relevant
| Bar associations. That sort of thing.
| conartist6 wrote:
| Because they don't expect to win the lawsuit. Their odds of
| winning a lawsuit aren't that good, so their goal is to
| badger a founder into settling. A founder would likely be
| killing their creative endeavor to become their own lawyer
| and go to court for themselves, and the trolls choose targets
| for whom paying a lawyer for the length of one of these
| trials would be prohibitively costly.
|
| In other words, their real business model, the reason that
| they can be considered a "safe investment" is that they
| operate as an extortion racket at scale with the justice
| system itself as their (free) muscle.
| whatshisface wrote:
| How's this?
|
| 1. You buy "litigation insurance."
|
| 2. You state that you are insured on your website.
|
| 3. The insurance company is _required_ to defend in all
| patent cases that arise, so there is no doubt that you will
| be represented in court.
|
| 4. Nobody sues.
|
| 5. The insurance company makes a profit with no cost or
| risk.
| celestialcheese wrote:
| Is this a real thing for small companies?
|
| I have no experience with this, and the only time I've
| gone and tried to get quoted for things like cyber
| liability, etc, the costs are incredible relative to the
| value of the business and revenues.
| daemonologist wrote:
| You can buy IP insurance; the problem is that the
| proposed strategy _only_ works against patent trolls. If
| you infringed a legitimate patent the insurer would be
| screwed, so they 'd want to do an enormous (impossible?)
| amount of due diligence before writing the policy. As
| with most other insurance policies, insurers in practice
| are only willing to take on a portion of the risk.
| piker wrote:
| Adverse selection would be a big issue, but actually
| perhaps if the indemnity only covers defense, an insurer
| would be willing to take more risk (and have expertise in
| batting away these claims.)
| therein wrote:
| Couldn't some innovative insurance company create a
| policy that adds a clause like "policy kicks in if the
| litigant fits the criteria of a patent troll (as
| described above, lacking any assets besides the patent or
| a few patents that don't pass initial muster as
| legitimate, or has fewer than two physical locations with
| at least 4 non executive employees). Even saying
| something like "if the litigant has no health insurance
| for their employees" would actually easily preclude
| patent trolls as you'd have to be an actual decently
| sized company to be able to negotiate real health
| insurance for your employees.
| Teever wrote:
| The correct course of action in situations like this is to name
| and shame.
| rcxdude wrote:
| How does that help? A patent troll doesn't really have any
| reputation to protect.
| toasterlovin wrote:
| Would the bar association in the lawyer's state be
| interested?
| unyttigfjelltol wrote:
| Other than to commend the entrepreneurial sprit of its
| members?
| sejje wrote:
| Why, is it illegal?
|
| It's for sure scummy, but from what I've read about
| patent trolls, usually they get to continue until they
| eventually run into someone principled (and bankrolled)
| and then they lose their patent due to prior art in many
| cases.
|
| I've never heard of them getting in actual trouble.
| Teever wrote:
| If legal consequences aren't a possible avenue to prevent
| unacceptable behaviour from someone then a viable
| alternative is to make that person a pariah.
|
| The more people know that someone is doing unscrupulous
| things the more people can choose to not do business with
| that person or interact with them in a friendly matter.
|
| Ideally this would lead to a scenario where they lose the
| means to continue to do unacceptable things and they would
| be forced to stop.
| lofaszvanitt wrote:
| How come you can sue others and the court doesn't check whether
| you have the funds if you lose? I mean if you don't have funds
| allocated away in case you lose, then why start the
| proceedings?
| ddtaylor wrote:
| Because solving the answer to what is the correct legal
| interpretation is not concerned with if that interpretation
| yields economic identities.
| adgjlsfhk1 wrote:
| Because it's generally considered bad policy to make it
| illegal for poor people to sue.
| gist wrote:
| I think like so many things the idea of 'patent trolls' has
| taken on a meaning whereby anyone who has a patent but no
| operating actual company (as you are describing LLC with 5
| members and a lawyer) everyone automatically thinks 'sham'.
|
| On the surface by stories related that certainly appears to be
| the case.
|
| However we don't have any data (only anecdotes) on how many
| patents are pursued this way that are actually valid. And 'back
| in the old days' it used to be that you could have an actual
| patent and then get shafted by some large corporation simply
| because they could afford lawyers and you couldn't (meaning 'mr
| small inventor')
|
| What I am saying in no way means I don't think there is
| probably abuse (there are enough anecdotes to think 'something
| is wrong here') but really we need the entire picture and
| dataset to decide that (in all fairness).
| karaterobot wrote:
| It's not really a question of whether the patent troll has a
| legitimate patent or not--in the sense of having clear
| ownership over the IP, that is. They generally do. We
| consider someone a patent troll when they don't make use of
| the patent themselves, except to extract money from other
| people, typically through threats of legal action. They're
| exploiting the fear of being sued for a lot of money in order
| to get a comparatively small amount of money in exchange for
| agreeing to _not_ sue. "Troll" here is in the pre-internet
| sense of the word, not someone making up a fake story on a
| message board, but more like a troll living under a bridge,
| demanding money from people in order to cross it.
| ted_dunning wrote:
| Trolls often have clear title to a patent that covers
| _something_. Many of these patents should not have been
| granted, but they were. If you fight them to the end, you
| can often get the patent invalidated, but the trolls are
| smart enough to settle before that happens.
|
| But they generally don't have a patent that covers anything
| real. Even ignoring the situations where the patent is
| indefensible through defects in process or due to prior
| art, the claims in these patents often don't actually read
| against the businesses being sued.
|
| The problem is that it takes tens of thousands of dollars
| per patent to get an opinion from your own lawyers about
| whether the patents bear on your products or processes and
| you pretty much have to do that even if you never go to
| court.
| gist wrote:
| > We ended up fighting it a bit because of "principles" by our
| founder. - in discovery there was something like 1,000 of these
| exact demand letters they had sent.
|
| I am noting you have not said how this ended up. What does 'we
| ended up fighting it a bit because of "principles" of our
| founder.
| ddtaylor wrote:
| It means they pushed back then settled without any useful
| resolution. The troll didn't get a big payday, but they
| didn't get told to stop and it set precedent helping them
| shake down others.
| dctoedt wrote:
| See Blue Jeans Cable's _classic_ response to a patent cease-
| and-desist letter from Monster Cables: The Blue Jeans Cable CEO
| was a former litigator who pulled no punches in his response.
| [0]
|
| [0] See https://www.oncontracts.com/monster-cables-picked-the-
| wrong-... (self-cite).
| jnsie wrote:
| > Not only am I unintimidated by litigation; I sometimes
| rather miss it.
|
| Sumptuous!
| daedrdev wrote:
| IPR is a tool that weakens all patents. Saying it helps trolls at
| the expense of everyone else (which this article says) is a bad
| faith argument. Weakening IPR helps all patent holders fight for
| their rights, including trolls. Considering how the tech industry
| has bullied its way past numerous rightful patents, this seems
| like it could be reasonable or might not be.
|
| If you think we should have no patents be my guest, but this
| helps non troll patent holders and not just trolls.
| dctoedt wrote:
| (Inactive) patent litigator here (been doing other things for
| some years now): IPRs are _way_ better than jury trials for
| determining patentability.
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