Our right to challenge junk patents is under threat(eff.org)
eff.org
Our right to challenge junk patents is under threat
https://www.eff.org/deeplinks/2023/06/our-right-challenge-junk-patents-under-threat
216 comments
Please set up a petition with https://resist.bot as well!
Interesting. Are there other apps and services like Resistbot?
A less automated version is 5 Calls: https://5calls.org
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IPRs are pretty useful for challenging bad patents and should be very broad. However, I found myself in favor of this change, and honestly questioning the EFF's motives given how strong and personal (speaking specifically to the EFF's ability to challenge patents, not a generic third party) your expressed opinions were in this piece.
I am very sympathetic to the argument that Unified Patents and other folks who offer "IPR insurance" now can't fight bad patents, but hopefully if the rules pass they will be able to convert to either a non-profit or a financing model that allows them to sidestep this rule.
Also, are you aware of the argument in favor of this change? In a recent case, a patent troll used an IPR claim to attempt to extort a patent owner when that patent was going through active litigation. Limiting IPRs from for-profit entities not practicing in the field (also a requirement in the rule change) when small companies are actively suing someone else honestly sounds reasonable in light of this. See: https://www.uspto.gov/sites/default/files/documents/ipr2021-...
I am very sympathetic to the argument that Unified Patents and other folks who offer "IPR insurance" now can't fight bad patents, but hopefully if the rules pass they will be able to convert to either a non-profit or a financing model that allows them to sidestep this rule.
Also, are you aware of the argument in favor of this change? In a recent case, a patent troll used an IPR claim to attempt to extort a patent owner when that patent was going through active litigation. Limiting IPRs from for-profit entities not practicing in the field (also a requirement in the rule change) when small companies are actively suing someone else honestly sounds reasonable in light of this. See: https://www.uspto.gov/sites/default/files/documents/ipr2021-...
I'm aware that there are allegedly "bad" IPRs including the OpenSky case. The alleged "extortion" here is that VLSI, a non-practicing entity, I believe backed by a hedge fund, would lose their 20-year government monopoly and no longer be able to seek billions of dollars in court.
I have no idea who or what OpenSky is, and I don't weigh in on huge corporate cases like VLSI v. Intel where everyone has plenty of money for their own representation.
But it's really wild to me that this alleged "abuse" (that could lead to the loss of... a patent) immediately got the attention of officials, who are taking rapid action. Yet there are thousands of victims of patent troll extortion every year. These extortions are real, and documented, and hurt businesses that are much much smaller than VLSI. (and operate actual businesses, which AFAIK VLSI does not).
But here's the value proposition: It's just not wrong to challenge a government subsidy or monopoly. Period. Especially on computer software and hardware, because they're often wrongly granted.
Even if you accept that the OpenSky situation is the moral equivalent of patent trolling (I absolutely do not), it's happened to patent owners ONE time. (Maybe a few others, but it's a count-on-your-fingers thing). I wish people extorted by patent trolls for real money got 1/100th the attention of the tiny numbers of patent owners who lost (or almost lost) their patent monopolies.
I have no idea who or what OpenSky is, and I don't weigh in on huge corporate cases like VLSI v. Intel where everyone has plenty of money for their own representation.
But it's really wild to me that this alleged "abuse" (that could lead to the loss of... a patent) immediately got the attention of officials, who are taking rapid action. Yet there are thousands of victims of patent troll extortion every year. These extortions are real, and documented, and hurt businesses that are much much smaller than VLSI. (and operate actual businesses, which AFAIK VLSI does not).
But here's the value proposition: It's just not wrong to challenge a government subsidy or monopoly. Period. Especially on computer software and hardware, because they're often wrongly granted.
Even if you accept that the OpenSky situation is the moral equivalent of patent trolling (I absolutely do not), it's happened to patent owners ONE time. (Maybe a few others, but it's a count-on-your-fingers thing). I wish people extorted by patent trolls for real money got 1/100th the attention of the tiny numbers of patent owners who lost (or almost lost) their patent monopolies.
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> But it's really wild to me that this alleged "abuse" (that could lead to the loss of... a patent) immediately got the attention of officials, who are taking rapid action. Yet there are thousands of victims of patent troll extortion every year. These extortions are real, and documented, and hurt businesses that are much much smaller than VLSI. (and operate actual businesses, which AFAIK VLSI does not).
Of the lawyers, by the lawyers, for the lawyers.
Of the lawyers, by the lawyers, for the lawyers.
> But here's the value proposition: It's just not wrong to challenge a government subsidy or monopoly. Period. Especially on computer software and hardware, because they're often wrongly granted.
I see where you're coming from, but I would suggest that this is pretty much an extremist point of view on intellectual property protections. It's easy to say that the online shopping cart is a dumb patent (because it is, and the Supreme Court generally agrees with you), but I think you would be hard pressed to argue against the societal value of patents on integrated circuit technologies, which can take $billions to develop, provide tremendous societal value, and have strategic implications.
Still, that does clarify the viewpoint of the piece to some degree - it suggests that you and the EFF are in favor of "patent accelerationism": make the system so shitty for participants that they abandon it entirely. The system is definitely shitty now, but I don't really see anyone abandoning it.
By the way, VLSI is the remains of a real technology company that went out of business... because its IP was blatantly copied. They had no choice but to sell out to a patent troll.
I see where you're coming from, but I would suggest that this is pretty much an extremist point of view on intellectual property protections. It's easy to say that the online shopping cart is a dumb patent (because it is, and the Supreme Court generally agrees with you), but I think you would be hard pressed to argue against the societal value of patents on integrated circuit technologies, which can take $billions to develop, provide tremendous societal value, and have strategic implications.
Still, that does clarify the viewpoint of the piece to some degree - it suggests that you and the EFF are in favor of "patent accelerationism": make the system so shitty for participants that they abandon it entirely. The system is definitely shitty now, but I don't really see anyone abandoning it.
By the way, VLSI is the remains of a real technology company that went out of business... because its IP was blatantly copied. They had no choice but to sell out to a patent troll.
>By the way, VLSI is the remains of a real technology company that went out of business... because its IP was blatantly copied. They had no choice but to sell out to a patent troll.
Ding ding ding - people don't seem to understand how the business model actually works... real inventors have to sell out, because unless they sell their stake in a litigation to a financier, they outright cannot afford to litigate an infringement case against one of the big companies that infringed their products and then refused to license
Ding ding ding - people don't seem to understand how the business model actually works... real inventors have to sell out, because unless they sell their stake in a litigation to a financier, they outright cannot afford to litigate an infringement case against one of the big companies that infringed their products and then refused to license
This. A patent is a ticket to a court battle. If you can't afford the court battle then the patent is worthless.
All this talk of "small, inventor-led businesses" is bullcrap because no small business can afford to enforce a patent.
All this talk of "small, inventor-led businesses" is bullcrap because no small business can afford to enforce a patent.
Your arguments contradict each other. If the patent system actually protects innovation, why did VLSI's IP get successfully copied?
Well, Intel eventually paid for it (a $2.1 billion judgment settled for an undisclosed sum). Without a patent system, they would have just gotten away with ripping these guys off for free.
They aren't making a noticeable change to the system at all. This method challenges roughly 350 patents a year while roughly 300,000 patents are granted per year. That's in the area of 0.1% of all patents. I think these numbers are very consistent with the predominant use case being the challenging of bad patents and there are very few examples of people trying to overturn good patents.
The percentage of total patents is irrelevant as not all patents are actively abused by patent trolls.
> By the way, VLSI is the remains of a real technology company that went out of business... because its IP was blatantly copied. They had no choice but to sell out to a patent troll.
I'd like to hear more about this. Wikipedia seems to say that VLSI Technology was an original investor in ARM Ltd. (which seems like it should have been worth something), was acquired by Philips in 1999, and continues to operate as part of Philips spinoff NXP Semiconductors.
Is this VLSI a different company?
I'd like to hear more about this. Wikipedia seems to say that VLSI Technology was an original investor in ARM Ltd. (which seems like it should have been worth something), was acquired by Philips in 1999, and continues to operate as part of Philips spinoff NXP Semiconductors.
Is this VLSI a different company?
I've been convinced by your arguments about bad faith IPRs by for-profit entities! ... and therefore, I suggest the USPTO also prevent for-profits from filing patents.
I would also like a response from @joemullin on this
Why Software Patents are Bad, Period.
https://caseymuratori.com/blog_0027
Patents are out of control, and they’re hurting innovation
https://www.learnliberty.org/blog/patents-are-out-of-control...
Economic and Game Theory Against Intellectual Monopoly
https://web.archive.org/web/20120121014753/https://levine.ss...
PATENTS AND INNOVATION IN ECONOMIC HISTORY
https://gwern.net/doc/economics/2016-moser.pdf
Historical record shows how intellectual property systematically slowed down innovation
https://web.archive.org/web/20140306012646/http://blog.p2pfo...
Criticism of patents
https://en.wikipedia.org/wiki/Criticism_of_patents
https://caseymuratori.com/blog_0027
Patents are out of control, and they’re hurting innovation
https://www.learnliberty.org/blog/patents-are-out-of-control...
Economic and Game Theory Against Intellectual Monopoly
https://web.archive.org/web/20120121014753/https://levine.ss...
PATENTS AND INNOVATION IN ECONOMIC HISTORY
https://gwern.net/doc/economics/2016-moser.pdf
Historical record shows how intellectual property systematically slowed down innovation
https://web.archive.org/web/20140306012646/http://blog.p2pfo...
Criticism of patents
https://en.wikipedia.org/wiki/Criticism_of_patents
I'm starting to believe that all patents are at best ineffective, and at worse harmful in a globalized world, because it's not like airpods clones off aliexpress are actually being stopped at the port all too often.
I could imagine patents limited to physical designs, with a lifespan of say 5 years to actually be beneficial to innovation.
Perhaps also a requirement to license patents at a 'reasonable rate'.
I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.
I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.
I actually think that Sawstop (in general. Might be some details that are bogus) is a great example of the patent system working as intended.
The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effective it is, and he got to sue them and win.
Also, their patents are about to or have already expired (https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sa...)
Sounds like the 20 years gave him just enough time to:
1. Attempt to license the product and fail 2. Create a company 3. Market the company / product effectively 4. Exit ( https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-t... )
And now competition will begin to roll out their similar saws. I think 5 years would've been far too short for him. He would've been squashed. There would've been no motivation for companies to license his tech or buy out his company. They would've just waited 5 measly years and then stomped him.
Now. If this was software, this whole thing would've played out in what? 5 years? 10 tops? So 20 years, to me, seems to be about right for some things. but absolutely TERRIBLE for others.
The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effective it is, and he got to sue them and win.
Also, their patents are about to or have already expired (https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sa...)
Sounds like the 20 years gave him just enough time to:
1. Attempt to license the product and fail 2. Create a company 3. Market the company / product effectively 4. Exit ( https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-t... )
And now competition will begin to roll out their similar saws. I think 5 years would've been far too short for him. He would've been squashed. There would've been no motivation for companies to license his tech or buy out his company. They would've just waited 5 measly years and then stomped him.
Now. If this was software, this whole thing would've played out in what? 5 years? 10 tops? So 20 years, to me, seems to be about right for some things. but absolutely TERRIBLE for others.
From what I have heard, the sawstop 'inventor' is a patent attorney first, and an engineer second. Whilst he has offered to license the technology to other brands, reportedly the terms he offered were ridiculous.
The bosch system was significantly different. Notably having the advantage of not destroying the blade when triggered. The sawstop patent removed this major innovation from the market. A clear example of stifled innovation.
Moreover, sawstop doesn't sell in Europe, nor license. Which leaves me with no option to make use of this great innovation. Not quite stiffling innovation, but still making the world worse.
With a 5 year patent, sawstop would still have been profitable I believe. But we would have safer tablesaws around the world, we would have systems that don't ruin blades when triggered, and probably have many other innovations on top of that.
The bosch system was significantly different. Notably having the advantage of not destroying the blade when triggered. The sawstop patent removed this major innovation from the market. A clear example of stifled innovation.
Moreover, sawstop doesn't sell in Europe, nor license. Which leaves me with no option to make use of this great innovation. Not quite stiffling innovation, but still making the world worse.
With a 5 year patent, sawstop would still have been profitable I believe. But we would have safer tablesaws around the world, we would have systems that don't ruin blades when triggered, and probably have many other innovations on top of that.
I feel like mandatory licensing is the answer. Have a state ombudsman who sets a price of "marginally above reasonable" so that people are still encouraged to negotiate first, while providing a way out when it's obvious the patent-holder is not acting in good faith.
Everyone wins: the inventor gets a payday even if he can't deliver directly, consumers don't have to choose between "brand I trust" and "patent-exclusive feature I need", and manufacturers stay out of the courts.
You get the payday, whether it's your one man startup or a massive industrial that actually delivers the product to market.
Everyone wins: the inventor gets a payday even if he can't deliver directly, consumers don't have to choose between "brand I trust" and "patent-exclusive feature I need", and manufacturers stay out of the courts.
You get the payday, whether it's your one man startup or a massive industrial that actually delivers the product to market.
Sawstop is a fabulous example. After the patent expired too, what are those other companies doing? Well, when I looked into European table saws last year, they started using it as a market segmentation tactic and putting stop tech only on their upper tier of $$$ saws. Disgusting. Felder, go fuck yourselves.
In the US you can be sued if you have a safety system that isn't on some models and someone gets injured. check with a laywer for details.
Note that despite the above, don't buy a tool without those safety features. Better to spend more now and live than get your heirs a pile of money.
Note that despite the above, don't buy a tool without those safety features. Better to spend more now and live than get your heirs a pile of money.
Not sure about the details of that, you can definitely buy Hammer/Felder table saw products in the USA (not that I want to, given their shitty attitude about using this feature as a market segmentation tactic).
It's frustrating because I'd much rather have a proper European sliding table saw like the Robland CZ-300 II, but I don't want to give up the safety of a Sawstop system.
It's frustrating because I'd much rather have a proper European sliding table saw like the Robland CZ-300 II, but I don't want to give up the safety of a Sawstop system.
You can be sued, and will probably lose in court. however that is a risk you are allowed to take. They are allowed to see such products even though nobody should. Eventually regulations will take over, but for now it is just a economic optimization problem: will the monetary loss from killing/injuring someone and losing the law suite be more money that just putting the system on the say - I hope you feel icky just reading that.
I think that exemplifies why the patent system should at the very least not have the same rules and terms for physical products as for software, if it should exist for software at all. The time and capital investments to start up are just so dramatically different.
What I see is most physical patents involve something that is actually novel--the low-hanging fruit was picked long ago. Most software patents involve something that would be the expected product (or one of a small set of possible products) of assigning a software engineer to solve the problem. (To me the clearest example of this is blinking cursors. Draw by inversion or draw with a backing store--both are obvious techniques to any software professional, both were at one time patented.)
I absolutely agree. My point was more that using Saw Stop as an illustration of the broken system is a poor one. Because I think the patent on physical tech enabled a real disruption to the status-quo. Allowing "the little guy" to establish themself as a real competitor to some huge names.
Another "working as intended" patent: Light-reflecting board game https://patents.google.com/patent/US7264242
And the lawsuit over it: https://generalpatent.com/professor-s-company-wins-1-6-milli...
> November 26, 2012 - Innovention Toys LLC, a company headed by a Colorado professor named Michael Larson, won its patent infringement lawsuit against MGA, Wal-Mart Stores and Toys "R" Us. A federal jury in New Orleans found that the defendants had infringed Innovention's patent on a strategy board game using lasers and mirrors.
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Back in the days of http://www.gamecabinet.com being one of the primary sources for board games on the web you'll note a search on it: http://www.gamecabinet.com/info/PatentSearch.html
One of the things this let people do is find games that were patented, but never published.
Sid Sackson wrote in A Gamut of Games:
> The files of patents that have been granted are a fruitful hunting ground for forgotten games, although going through these files, as anyone who has ever been involved in a patent search well knows, is a time consuming job. Often the patented games are downright silly, such as a set of dominos made of rubber so that they can double as ink erasers (No. 729,489) or a sliding block puzzle with edible pieces so that a player who despairs of a solution can find collation in gratifying his stomach (No. 1,274,294). Often the patents are repetitious: There are over a thousand different baseball games.
The publishing of a patent maintains the ideas - even if they never got anywhere. If you know how to look, its an archive of decades of board games rules... written in patentease.
And the lawsuit over it: https://generalpatent.com/professor-s-company-wins-1-6-milli...
> November 26, 2012 - Innovention Toys LLC, a company headed by a Colorado professor named Michael Larson, won its patent infringement lawsuit against MGA, Wal-Mart Stores and Toys "R" Us. A federal jury in New Orleans found that the defendants had infringed Innovention's patent on a strategy board game using lasers and mirrors.
---
Back in the days of http://www.gamecabinet.com being one of the primary sources for board games on the web you'll note a search on it: http://www.gamecabinet.com/info/PatentSearch.html
One of the things this let people do is find games that were patented, but never published.
Sid Sackson wrote in A Gamut of Games:
> The files of patents that have been granted are a fruitful hunting ground for forgotten games, although going through these files, as anyone who has ever been involved in a patent search well knows, is a time consuming job. Often the patented games are downright silly, such as a set of dominos made of rubber so that they can double as ink erasers (No. 729,489) or a sliding block puzzle with edible pieces so that a player who despairs of a solution can find collation in gratifying his stomach (No. 1,274,294). Often the patents are repetitious: There are over a thousand different baseball games.
The publishing of a patent maintains the ideas - even if they never got anywhere. If you know how to look, its an archive of decades of board games rules... written in patentease.
That’s a different problem entirely. It used to be stores had to carefully source the products they sold to make sure they weren’t selling something that wasn’t allowed to be sold in the US, with the advent of Amazon that all went out the window, now the name of the game is defraud everyone you can and claim innocence on the backend when caught. “Our algorithm didn’t catch it, we stopped selling it as soon as we were made aware it was definitely illegal”.
The funniest hypocrisy of Silicon Valley/tech culture is that it’s full of people who think the rules and laws don’t apply to them but they vote every year for more and more regulations, that they then brazenly flout and act all indignant that the government has failed to do the things they voted for (and thus we need more government) but then refuse to actually follow.
The funniest hypocrisy of Silicon Valley/tech culture is that it’s full of people who think the rules and laws don’t apply to them but they vote every year for more and more regulations, that they then brazenly flout and act all indignant that the government has failed to do the things they voted for (and thus we need more government) but then refuse to actually follow.
This is a bad example though, because everyone knows who Apple are. There's no point inventing anything as a new company if an existing one can just copy it and outspend your marketing.
And there's no point inventing anything as an established company if you can just aggressively buy IP and leverage existing property.
There's a balance to how much IP protection actually encourages innovation, and we're far on one side of it.
There's a balance to how much IP protection actually encourages innovation, and we're far on one side of it.
If companies choose not to innovate and purchase their innovation instead that still creates a market for innovation and a source of funds for doing so. I'm far from convinced this is the case as most big tech companies have entire research divisions regularly producing papers and patents and we've seen some big AI products recently launch out of internal big tech initiatives.
You need to have enforceable NDA's, keep things as trade secrets, and have a well built organization that simply continuously out-innovates AND out-executes the competition.
I think patents are okay, but the maximum duration should be 5 years and there needs to be some proof of utilization of the patent to sue for damages.
20 year patents are ridiculous, and it seems like even in the 1800's that should have been considered a bit extreme.
I think patents are okay, but the maximum duration should be 5 years and there needs to be some proof of utilization of the patent to sue for damages.
20 year patents are ridiculous, and it seems like even in the 1800's that should have been considered a bit extreme.
The term (in the US) wasn't originally that long. It was decided individually but not to exceed 14 years. That's long, but much more reasonable in a time when it could take months for just some basic roundtrip long-distance correspondence.
I don't think you can just state that in good faith while ignoring how much harder/more expensive R&D is these days.
How much harder/more expensive is R&D these days?
Is it harder by an amount that exceeds the amount by which the readily addressable market has expanded for most things?
It should probably depend on the product type. I get 20 year parents for medicine where research is expressive and time-to-market is long. But for most fields 5-10 years is plenty to make back your R&D investment and make a profit. And after your patent expires you still have the first-mover advantage
Pharma "research" categorization of expenses is maximized. In part to create sympathy for long patent terms, in part to obscure the role of government funded research underlying many pharma products, and in part to maximize tax benefits.
And in large part because FDA multi-stage trials are very expensive to get through and the risk of failure is high. I know it is popular to hate on the pharmacy companies right now - and deservedly so - but the research costs are not totally made up like you are implying.
Maximized is not "totally made up." You will find software companies maximizing R&D tax credits, too, for example.
A JHU study found median costs for clinical trials of $19 million.
That's expensive relative to software. If I piled HIPAA, payments processing, and whatever telcos might require for hooking up to SS7 in one app (call it "X") I doubt I could get halfway to $19 million.
But $19 million is peanuts compared to pharma revenue. I stand by the assertion that pharma gets undeserved sympathy for long patent terms.
A JHU study found median costs for clinical trials of $19 million.
That's expensive relative to software. If I piled HIPAA, payments processing, and whatever telcos might require for hooking up to SS7 in one app (call it "X") I doubt I could get halfway to $19 million.
But $19 million is peanuts compared to pharma revenue. I stand by the assertion that pharma gets undeserved sympathy for long patent terms.
> I stand by the assertion that pharma gets undeserved sympathy for long patent terms.
Sure. That's an assertion that's easy to stand by because it's so easy for it to be true because it's so open ended and unbounded.
I think most people believe the pharma companies are playing it up some and getting some undue sympathy, but 10x the sympathy and 10% more sympathy are vastly different situations and your assertion is "true" for both. It's less a question of whether that assertion is true, and more about to what degree, because that's what really matters in a discussion like this.
A statement about the median cost of a single study across an industry compared to pharma revenue (across an industry, across all studies done, whether resulting in a successful product that can make it to market and earn revenue), is not something we can make useful assertions from, whether or not I believe your assertion to be true (I do). It's just throwing disjointed numbers around and using implications instead of data to link them, which isn't a useful way to convince people who want to understand what's going on.
Sure. That's an assertion that's easy to stand by because it's so easy for it to be true because it's so open ended and unbounded.
I think most people believe the pharma companies are playing it up some and getting some undue sympathy, but 10x the sympathy and 10% more sympathy are vastly different situations and your assertion is "true" for both. It's less a question of whether that assertion is true, and more about to what degree, because that's what really matters in a discussion like this.
A statement about the median cost of a single study across an industry compared to pharma revenue (across an industry, across all studies done, whether resulting in a successful product that can make it to market and earn revenue), is not something we can make useful assertions from, whether or not I believe your assertion to be true (I do). It's just throwing disjointed numbers around and using implications instead of data to link them, which isn't a useful way to convince people who want to understand what's going on.
How is an industry-wide median cost "disjoint?" What number would better represent typical clinical trials costs?
Is it the median cost for a trial or for all trials that a company does? A company might have many trials going on at once, of greater or lesser costs, but revenue is an aggregation of everything over a year. A company with $100 million in revenue and 10 trials ongoing and a company with a $1 billion in revenue and 10 trials ongoing would possibly lead one to specific conclusions, but even when it's broken down that much it doesn't really mean anything for the examples presented, because the mean cost of the trials that the company in question has ongoing could be entirely different. The 10 trials the $100 million revenue company is administering could average $1 million, and the 10 trials the $1 billion company is administering could cost 80 million each, by nature of the types of drugs they and markets they are aiming for.
It could also be that there's lots of low cost trials around $20 million, but slightly less than half of the trials that are done are very expensive, and 4-5 times the cost. This would be more obvious if there were values for bot mean and median, instead of just median.
The looser the data, the less you can actually infer. Any time someone tells me the median cost for something across an entire industry, my immediate reaction is to wonder what that means, not assume I actually know what it means, because it's far too little data to really know. How many trials are done in a year on average? How many a year do companies average based on revenue? Or simple, what's the actual amount spent on trials compared to revenue, and over how many years are those trials run? Is yearly cost of a trial really a good indicator, if trials take 5-10 years to run, so a failed one results in not just loss of money spent but opportunity cost over many years?
Note: If you provided a reference for that median number I would have actually looked it up to see if it made sense to me, or if I had additional questions about how they went about their measurements. Instead, all I have a questions about what the numbers mean because I have no context.
It could also be that there's lots of low cost trials around $20 million, but slightly less than half of the trials that are done are very expensive, and 4-5 times the cost. This would be more obvious if there were values for bot mean and median, instead of just median.
The looser the data, the less you can actually infer. Any time someone tells me the median cost for something across an entire industry, my immediate reaction is to wonder what that means, not assume I actually know what it means, because it's far too little data to really know. How many trials are done in a year on average? How many a year do companies average based on revenue? Or simple, what's the actual amount spent on trials compared to revenue, and over how many years are those trials run? Is yearly cost of a trial really a good indicator, if trials take 5-10 years to run, so a failed one results in not just loss of money spent but opportunity cost over many years?
Note: If you provided a reference for that median number I would have actually looked it up to see if it made sense to me, or if I had additional questions about how they went about their measurements. Instead, all I have a questions about what the numbers mean because I have no context.
Here is a link to the JHU announcement: https://publichealth.jhu.edu/2018/cost-of-clinical-trials-fo...
You will like some of the numbers on that site even less than the $19 million median cost for a trial.
The study was published in JAMA, link on the JHU page. I hope this does not sound like an appeal to authority, but good luck discrediting the numbers.
You will like some of the numbers on that site even less than the $19 million median cost for a trial.
The study was published in JAMA, link on the JHU page. I hope this does not sound like an appeal to authority, but good luck discrediting the numbers.
I wouldn't be surprised if it takes 5 years (or more) to both get a patent and litigate it though any appeal. FWIW, in the current U.S. system, my understanding is the time it takes to get the patent comes out of the 20 years, though I think you can get some time back if it takes a very long time.
Correct. There IS a "patent term adjustment" if the PTO takes longer than it should.
The term you want is "prosecute" not "litigate."
The term you want is "prosecute" not "litigate."
I don't think this true of all patents. Patents for drugs are obviously necessary in the current environment. But software patents are definitely bogus.
It is funny that pharma is always brought up as an example for industries where patents "obviously" make sense. Pharma is in fact a pretty good example why patents don't make sense and hinder innovation.
Historically, before the homogenization of IP law, pharmaceuticals had different patent protection in different countries, ranging from very strong (the US), to weak (most of Europe) to excluded (Switzerland). The most successful and innovative pharma companies who were outspending everyone else on R&D were from Switzerland. Patentability of pharmaceuticals suddenly gave US companies a big boost and was really a lobbying success, so they managed to gain strong market positions without much innovation.
Historically, before the homogenization of IP law, pharmaceuticals had different patent protection in different countries, ranging from very strong (the US), to weak (most of Europe) to excluded (Switzerland). The most successful and innovative pharma companies who were outspending everyone else on R&D were from Switzerland. Patentability of pharmaceuticals suddenly gave US companies a big boost and was really a lobbying success, so they managed to gain strong market positions without much innovation.
The cost of FDA approval was at least an order of magnitude lower back then. Why would anyone spend a billion dollars getting a drug FDA approved if after they do anyone else can manufacturer it?
You still need FDA approval to develop a generic. The FDA will not approvea generic unless both the patents and other legal exclusivities (I think the FDA sometimes grants exclusivity beyonbd the end of the patent).
If patents were abolished, the FDA could instead be authorized to blanket grant such exclusivity to genuinely new drugs, with pretty much the same effect as patents.
If patents were abolished, the FDA could instead be authorized to blanket grant such exclusivity to genuinely new drugs, with pretty much the same effect as patents.
Do you have a link to an article or book that covers this?
I’m trying to workout why Swiss companies would outspend the rest, is it that patents incentivise sitting on your laurels? And did drugs require the huge testing they need now?
I’m trying to workout why Swiss companies would outspend the rest, is it that patents incentivise sitting on your laurels? And did drugs require the huge testing they need now?
It's funny, the people I know in biotech say the opposite, that biotech patents are bogus but they don't think they'd be able to get rid of the system because of how much traditional tech relies on them. Their minds are blown when I tell them how much of an issue they are for us in traditional tech too.
The default narratives used to justify questionable industry practices fall apart so quickly when we engage in even the smallest amount of inter-disciplinary dialogue.
I'd love to see more of this.
I'd love to see more of this.
I agree that it is the obvious choice for medicine, but is it really the best option? Do we really have no other methods to fund medicine? Is it worth prioritising new patentable discoveries over other ones like making drugs cheaper or using them more effectively?
"Do we really have no other methods to fund medicine? "
We have. Public funded (also via universities) and donation based research.
But investment money is kind of big and if it would suddenly disappear, it will hurt current research as most (?) of it is dependant on it. But all that money would not necessarily disappear, when patents suddelny gets abolished, as there is also the option of increased secrecy.
Meaning they make effective pills, and work with regulators to test them - but share little about the manufacturing process. I believe that is already happening to some extent, but would likely increase a lot.
We have. Public funded (also via universities) and donation based research.
But investment money is kind of big and if it would suddenly disappear, it will hurt current research as most (?) of it is dependant on it. But all that money would not necessarily disappear, when patents suddelny gets abolished, as there is also the option of increased secrecy.
Meaning they make effective pills, and work with regulators to test them - but share little about the manufacturing process. I believe that is already happening to some extent, but would likely increase a lot.
I think the current system probably funds it about as well as we could do. We get a bunch of startups attempting to push one drug through--succeed and it's a big payoff for it's investors, fail and they lose their investment. It's actually a bad bet for investors so it moves money from overly optimistic investors to the public.
We do have problems elsewhere in the system, though:
1) Drug ads. They should be pretty much nuked from orbit. Drugs are a medical decision, any promotion activities should be directed at doctors, not patients. I would make an exception for drugs that radically improve treatment for something patients might have considered something they just have to live with and not told their doctors about. (I have Viagra in mind here--and that's the only one that comes to mind.) In such a case I would only permit "there is a new treatment for X, talk to your doctor", no names of either the drug or the company.
2) Dodgy approval decisions. The recent Alzheimer's drug comes to mind.
3) Drug companies should not be able to find out what doctors prescribe. That creates a conflict of interest.
4) I question whether drug makers should even be allowed to do the phase III testing at all. That puts the researchers in a position where a no decision could be bad for them down the road.
On the flip side, I think we could benefit from having an appears-to-work type of approval. It would require extensive real-world use data (either from foreign use or like what we have seen with marijuana being widely used for chemotherapy nausea) but not the usual approval process. Obviously, no patents, but all companies selling it would be required to put some specified percent of sales into a pool used to fund more research. (And I wouldn't mind doing something like that for all drugs, albeit at a lower percentage. Every drug has say a 5% tax that goes into a FDA account for that drug. When there's enough money in the account to fund useful research about it the FDA does so. Common off-label uses would be prime candidates for such studies.)
We do have problems elsewhere in the system, though:
1) Drug ads. They should be pretty much nuked from orbit. Drugs are a medical decision, any promotion activities should be directed at doctors, not patients. I would make an exception for drugs that radically improve treatment for something patients might have considered something they just have to live with and not told their doctors about. (I have Viagra in mind here--and that's the only one that comes to mind.) In such a case I would only permit "there is a new treatment for X, talk to your doctor", no names of either the drug or the company.
2) Dodgy approval decisions. The recent Alzheimer's drug comes to mind.
3) Drug companies should not be able to find out what doctors prescribe. That creates a conflict of interest.
4) I question whether drug makers should even be allowed to do the phase III testing at all. That puts the researchers in a position where a no decision could be bad for them down the road.
On the flip side, I think we could benefit from having an appears-to-work type of approval. It would require extensive real-world use data (either from foreign use or like what we have seen with marijuana being widely used for chemotherapy nausea) but not the usual approval process. Obviously, no patents, but all companies selling it would be required to put some specified percent of sales into a pool used to fund more research. (And I wouldn't mind doing something like that for all drugs, albeit at a lower percentage. Every drug has say a 5% tax that goes into a FDA account for that drug. When there's enough money in the account to fund useful research about it the FDA does so. Common off-label uses would be prime candidates for such studies.)
That public funding has to come from somewhere, though, to the tune of quite a few billions of dollars. Do we really believe the tax increases required will be palatable to voters, and politically possible for elected officials? In the US, we can't even get universal public-funded healthcare.
Not sure the increased secrecy would help all that much. Is drug manufacturing that complicated that a motivated company could not reverse engineer a new drug solely from its off-the-shelf product, without too much trouble?
Not sure the increased secrecy would help all that much. Is drug manufacturing that complicated that a motivated company could not reverse engineer a new drug solely from its off-the-shelf product, without too much trouble?
Where is that money coming from right now? Ultimately it's still coming out of the average person's pocket.
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Not sure why drug patents are obviously necessary. There are tons of issues with them including big pharma gaming the system to keep drugs protected for decades.
Without patents existing, who would pay for the trials required to bring a drug to market?
Except that they are excessively gamed with reformulations.
Well obviously. How else could publicly funded research be price gouged?
"Obviously." I like how this is the argument for drug patents, and if you don't just simply agree with this, the only real other option is to accuse the person arguing that it "obviously" is the right decision of arguing in bad faith.
...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
I mean, if James Collip and Charles Best sold the insulin patent to the University of Toronto for a mere $1 each, "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket, I'm more inclined to believe that for-profit medicine is just evil.
...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
I mean, if James Collip and Charles Best sold the insulin patent to the University of Toronto for a mere $1 each, "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket, I'm more inclined to believe that for-profit medicine is just evil.
> Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
Practically all generic drugs are available because the original drug is off-patent. You picked one (insulin) and ignored all the others:
https://www.healthgrades.com/right-care/patient-advocate/dru...
Practically all generic drugs are available because the original drug is off-patent. You picked one (insulin) and ignored all the others:
https://www.healthgrades.com/right-care/patient-advocate/dru...
I picked the one that was donated on purpose by its creators though, and it's still making profits for the drug companies 100 years later. So why do we need patents, then?
From the page you linked:
> While these drugs are nearing the end of their patent term, the release of generics may be delayed due to litigation, acquisitions, or other exclusivities. As a result, some expected generics from previous years may still be in progress.
The point about the PBMs is that apparently, drugs have to be profitable or they are not made anymore. So even the generic companies need to position themselves in a way where their products are profitable, not only for them but for the insurance (or they will be dropped by formularies, and nobody's insurance will cover it.)
If patents are the only way for firms to protect the profitability of their drugs then we are doomed.
I picked one, sure, and you provided a list as counter-example. But the FDA also ships its own list... of off-patent approved drugs without an approved generic (and the current publication is a full 16 pages of drug names):
https://www.fda.gov/drugs/abbreviated-new-drug-application-a...
If the pharma companies can make a change to the formula so that the new formula of a drug is no longer covered by the original patent, they can get a new patent. I'm not an expert, but this is how I've understood the problem through reading about it. Yes, we have generics, but what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?
So, with 20 years of head start and a deep war chest, the companies you mentioned can all iterate, stop research on the previous drug, put up legal roadblocks in the way of their competition, put out a new drug which cannot be copied, while it costs a lot of money (and time) for competition to get their generic form of the drug tested and approved. It's not as automatic as the term "patent cliff" might suggest.
I'm just saying that the intent of patents in general is for innovations to enter the public domain after the period of exclusivity on the idea that enables their creators to enjoy profitability and a legally protected (temporary) monopoly on the idea. It seems like a fair question to ask, is that really what's happening? (What percent of time does it happen like that, what percent of time does it go down some other way?)
From the page you linked:
> While these drugs are nearing the end of their patent term, the release of generics may be delayed due to litigation, acquisitions, or other exclusivities. As a result, some expected generics from previous years may still be in progress.
The point about the PBMs is that apparently, drugs have to be profitable or they are not made anymore. So even the generic companies need to position themselves in a way where their products are profitable, not only for them but for the insurance (or they will be dropped by formularies, and nobody's insurance will cover it.)
If patents are the only way for firms to protect the profitability of their drugs then we are doomed.
I picked one, sure, and you provided a list as counter-example. But the FDA also ships its own list... of off-patent approved drugs without an approved generic (and the current publication is a full 16 pages of drug names):
https://www.fda.gov/drugs/abbreviated-new-drug-application-a...
If the pharma companies can make a change to the formula so that the new formula of a drug is no longer covered by the original patent, they can get a new patent. I'm not an expert, but this is how I've understood the problem through reading about it. Yes, we have generics, but what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?
So, with 20 years of head start and a deep war chest, the companies you mentioned can all iterate, stop research on the previous drug, put up legal roadblocks in the way of their competition, put out a new drug which cannot be copied, while it costs a lot of money (and time) for competition to get their generic form of the drug tested and approved. It's not as automatic as the term "patent cliff" might suggest.
I'm just saying that the intent of patents in general is for innovations to enter the public domain after the period of exclusivity on the idea that enables their creators to enjoy profitability and a legally protected (temporary) monopoly on the idea. It seems like a fair question to ask, is that really what's happening? (What percent of time does it happen like that, what percent of time does it go down some other way?)
First of all, you made a general statement and I demonstrated its falsity. Now you're changing the subject to, "Oh, but not all patented drugs become generics."
I never said they did. However, there are giant companies that do almost nothing but generics, like Teva, so obviously lots of generics exist:
https://www.tevapharm.com/our-company/teva-facts-figures/
As for "what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?"
nearly all insurance companies require a generic to be used unless there's a very strong reason to use the branded product. In your example, if the new drug genuinely is better, then the patients deserve to have it. If it's a trivial improvement then it won't get approved.
I never said they did. However, there are giant companies that do almost nothing but generics, like Teva, so obviously lots of generics exist:
https://www.tevapharm.com/our-company/teva-facts-figures/
As for "what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?"
nearly all insurance companies require a generic to be used unless there's a very strong reason to use the branded product. In your example, if the new drug genuinely is better, then the patients deserve to have it. If it's a trivial improvement then it won't get approved.
> First of all, you made a general statement and I demonstrated its falsity
This is an extremely disingenuous reading of our conversation. I made a specific statement about a particular instance (which you dismissed as cherry-picking), and I asked a question at the same time. Which you reduced overall to a "general statement" while dismissing the specific example that was really important to the context of what point I was trying to make:
> James Collip and Charles Best [donated] the insulin patent "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket
> Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
There's an impedance mismatch between "nearly all insurance companies require a generic to be used" and "drug patents should be clearly in the public interest" when "drugs have to be profitable or they are not made by companies anymore."
Why not engage a bit more directly with the original example, if you're going to accuse me of generalizing now? Let's talk about insulin, I'm sure I picked it for a reason.
Is there a generic insulin that is chemically identical to a name brand insulin with the same efficacy? No, there apparently is not [1] – I won't claim to be fully informed on these issues, but it seems pretty clear from reading that the issue cannot simply be reduced to "lots of generics exist, so you are mistaken."
Why can't we have low cost insulin from an entity that operates like the post office, that exists as a public benefit corporation without any profit motive?
Does it really make sense that people who have insurance that is not "top tier" will not have access to the better (still patented) drugs, if they are really better? Are they better, or are they really just "evergreening" patents? If insurance typically only covers generics, then it's really problematic that there is no generic form of this lifesaving drug, and the monopoly persists more than 80 years after the patent should have expired on the original invention!
The deal was supposed to be 20 years. What went wrong, does it "go wrong" a lot, and does it "go wrong" more or less frequently when human lives are at stake? These aren't unfair questions, and if Teva (or any company other than Eli Lilly) made a generic form of Humalog insulin then I probably would not ask them at all. But only Eli Lilly does, only Eli Lilly can.
The same company apparently makes the so-called "generic" insulin that also makes the top-tier patented "Humalog" so maybe there are too many regulatory hurdles or something else is wrong. (I thought that the generics were supposed to represent the competition, that comes to save the day after patents expire...)
If we're central planning, wouldn't we want to promote a resource arrangement such that the best drugs with the most promise and the greatest life-saving properties will go to the most people? Is it really so off-base to conjecture that a resource arrangement that actively does something else is "really evil?"
[1]: https://www.healthline.com/diabetesmine/why-is-there-no-gene...
This is an extremely disingenuous reading of our conversation. I made a specific statement about a particular instance (which you dismissed as cherry-picking), and I asked a question at the same time. Which you reduced overall to a "general statement" while dismissing the specific example that was really important to the context of what point I was trying to make:
> James Collip and Charles Best [donated] the insulin patent "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket
> Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
There's an impedance mismatch between "nearly all insurance companies require a generic to be used" and "drug patents should be clearly in the public interest" when "drugs have to be profitable or they are not made by companies anymore."
Why not engage a bit more directly with the original example, if you're going to accuse me of generalizing now? Let's talk about insulin, I'm sure I picked it for a reason.
Is there a generic insulin that is chemically identical to a name brand insulin with the same efficacy? No, there apparently is not [1] – I won't claim to be fully informed on these issues, but it seems pretty clear from reading that the issue cannot simply be reduced to "lots of generics exist, so you are mistaken."
Why can't we have low cost insulin from an entity that operates like the post office, that exists as a public benefit corporation without any profit motive?
Does it really make sense that people who have insurance that is not "top tier" will not have access to the better (still patented) drugs, if they are really better? Are they better, or are they really just "evergreening" patents? If insurance typically only covers generics, then it's really problematic that there is no generic form of this lifesaving drug, and the monopoly persists more than 80 years after the patent should have expired on the original invention!
The deal was supposed to be 20 years. What went wrong, does it "go wrong" a lot, and does it "go wrong" more or less frequently when human lives are at stake? These aren't unfair questions, and if Teva (or any company other than Eli Lilly) made a generic form of Humalog insulin then I probably would not ask them at all. But only Eli Lilly does, only Eli Lilly can.
The same company apparently makes the so-called "generic" insulin that also makes the top-tier patented "Humalog" so maybe there are too many regulatory hurdles or something else is wrong. (I thought that the generics were supposed to represent the competition, that comes to save the day after patents expire...)
If we're central planning, wouldn't we want to promote a resource arrangement such that the best drugs with the most promise and the greatest life-saving properties will go to the most people? Is it really so off-base to conjecture that a resource arrangement that actively does something else is "really evil?"
[1]: https://www.healthline.com/diabetesmine/why-is-there-no-gene...
No, you said, "Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?"
How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it.
I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.
How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it.
I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.
If you want to go ahead and remove again the specific context of my question/assertion after I re-added them back together, to emphasize how important that context was, go ahead and do it. I said what I said, in the order that I said it, on purpose.
I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was most important, but now you've cut it right back out again. Are you sure?
Humalog as we know it today was first released in the 90's and it's still patented (or, at least Eli Lilly is the only company that can produce it, the specific "it" that we mean when we say Humalog and not "biosimilar to Humalog".) What are the actual enhancements that have been released in 2018-2019 to warrant the granting of a new patent for Eli Lilly's Humalog? Or is it out of patent? What's a biosimilar?
(Why can't anyone make Humalog other than companies that own patents on insulin, if Humalog has been out of patent since the mid 2010's?)
I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was most important, but now you've cut it right back out again. Are you sure?
Humalog as we know it today was first released in the 90's and it's still patented (or, at least Eli Lilly is the only company that can produce it, the specific "it" that we mean when we say Humalog and not "biosimilar to Humalog".) What are the actual enhancements that have been released in 2018-2019 to warrant the granting of a new patent for Eli Lilly's Humalog? Or is it out of patent? What's a biosimilar?
(Why can't anyone make Humalog other than companies that own patents on insulin, if Humalog has been out of patent since the mid 2010's?)
all you had to say originally was:
"...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that ALL drug patents actually enter the public domain productively at their end of their expiration period?" [note the ALL]
Since you refuse to just admit you were wrong, we are done here. Go ahead and have the last word if that's important to you. I won't be replying any more.
"...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that ALL drug patents actually enter the public domain productively at their end of their expiration period?" [note the ALL]
Since you refuse to just admit you were wrong, we are done here. Go ahead and have the last word if that's important to you. I won't be replying any more.
I believe the original insulin is cheaply available. But newer, faster acting, variants which are easier to administer are still patented.
I don't know much about it honestly, but this article that talks about PBMs is very interesting:
https://publichealth.jhu.edu/2023/eli-lilly-lowers-insulin-p...
> “Even though they're dropping their list price by 70% and capping their cost to patients at $35, it’s important for us to make this very, very clear—the company is still making a profit,”
...
> During a 2019 congressional hearing, insulin makers admitted that there’s pressure to keep list prices high so that PBMs can also profit.
> PBMs favor the drugs that will yield them higher profits. By lowering prices, Lilly runs the risk of being excluded from formularies, meaning the insurance companies will no longer cover the product for their patients.
https://publichealth.jhu.edu/2023/eli-lilly-lowers-insulin-p...
> “Even though they're dropping their list price by 70% and capping their cost to patients at $35, it’s important for us to make this very, very clear—the company is still making a profit,”
...
> During a 2019 congressional hearing, insulin makers admitted that there’s pressure to keep list prices high so that PBMs can also profit.
> PBMs favor the drugs that will yield them higher profits. By lowering prices, Lilly runs the risk of being excluded from formularies, meaning the insurance companies will no longer cover the product for their patients.
I'm not sure about "obviously necessary", but they are one of the few cases where they may be somewhat justified
Besides, airpods clones off aliexpress are supposed to be stopped by trademark law to begin with…
They're typically not in breach of trademark, but airpods are protected with a bunch of "design patents" as well.
https://www.patentlyapple.com/2020/08/apple-has-been-granted...
https://www.patentlyapple.com/2020/08/apple-has-been-granted...
Patents are a feudalist holdover in a modern capitalist economy.
Thanks for the links. How do you suggest startup entrepreneurs work around the broader moral dillemma here?
On one had, we shouldn't feed the flames but on the other hand - we may need a foundation of patents for defensive measure or to reaslitically compete against the likes of IBM who have a gajillion patents.
And I'm aware of at least one government grant programs that requires patents apart of their application process. From what I can asertain this is otherwise money on the table, after meeting that prerequsite.
Are you suggesting we walk away from technology grants and just wing it with regards to what may happen when IBM legal team (or other patent troll) comes knocking ?
On one had, we shouldn't feed the flames but on the other hand - we may need a foundation of patents for defensive measure or to reaslitically compete against the likes of IBM who have a gajillion patents.
And I'm aware of at least one government grant programs that requires patents apart of their application process. From what I can asertain this is otherwise money on the table, after meeting that prerequsite.
Are you suggesting we walk away from technology grants and just wing it with regards to what may happen when IBM legal team (or other patent troll) comes knocking ?
> How do you suggest startup entrepreneurs work around the broader moral dillemma here?
Turn your invention into prior art. Publish it, in detail, publicly. Then, if someone else tries to patent it, it's much easier to contest the patent application.
Turn your invention into prior art. Publish it, in detail, publicly. Then, if someone else tries to patent it, it's much easier to contest the patent application.
If you are in the game, you have to play it.
You don't have to advocate for it, and you can advocate against it. But you may not have much a choice on playing.
Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
Besides, the IBM legal team will come knocking, won't tell you anything that can let you understand why, and you will have no other option but to comply. How many patents you have, or if they actually have one that you are infringing isn't really relevant.
You don't have to advocate for it, and you can advocate against it. But you may not have much a choice on playing.
Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
Besides, the IBM legal team will come knocking, won't tell you anything that can let you understand why, and you will have no other option but to comply. How many patents you have, or if they actually have one that you are infringing isn't really relevant.
Good points
> Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
unless you just need them for gov't grants that require them - in this case it's an investment into a pre-requisite and if the net capital from the grant is higher than the cost of the patent you got then hypothetically you are ahead; unless there are recurring/other expenses involved in 'maintaining' the patent that I'm not aware of.
> Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
unless you just need them for gov't grants that require them - in this case it's an investment into a pre-requisite and if the net capital from the grant is higher than the cost of the patent you got then hypothetically you are ahead; unless there are recurring/other expenses involved in 'maintaining' the patent that I'm not aware of.
Can anyone comment on which government grants require a patent?
SBIR grants will see it as a positive if you have a potential monopoly. They want you to have a successful business and a valid exit strategy is to sell out the IP or license it.
Require is a strong word, it's just a strategy they recognize as valid.
Require is a strong word, it's just a strategy they recognize as valid.
[deleted]
Can you point me to the government grant program that requires patents as part of the application process? That is potentially very concerning. I would be interested to learn more.
It's a Canadian tech grant; non-dilluting - and they don't explicitly specify it is a requirement, but from the rep directly working for the program and anyone who I've talked to who has applied to the program your chances of getting the grant are basically zero if there is no IP. Coincidentally, they have another smaller grant you can apply for that goes direct to a service provider of your choice; and basically they suggest you use this first to pay for a law firm to get a patent started and then apply for the larger grant thereafter.
I've personally witnessed venture capital firms requiring patent filings as a prerequisite for funding. An acquaintance of mine once worked for a startup where the team was diverted from product development to ideation on patentable processes. The focus was less on innovation and more on creating a unique claim to secure funding, which I find misguided.
The VC, instead of nurturing the inventive process, largely contributed to the crafting of a patent application. The objective was to design it in such a way that it was cryptic and as widely applicable as possible. Despite its questionable practices, the patent was approved, leading to the subsequent funding of the startup.
However, the market didn't respond well to the idea, necessitating a pivot. Meanwhile, there were other companies independently pursuing similar ideas. They could have invested significant time and resources, unaware that they were infringing on an existing patent. It's a speculative guess, but I can't help but wonder if the VC fund is vigilantly searching for successful implementations of the patented idea, ready to initiate lawsuits for patent infringement. This illustrates the potential misuse of patents, which, rather than fostering innovation, sometimes stifle it.
The VC, instead of nurturing the inventive process, largely contributed to the crafting of a patent application. The objective was to design it in such a way that it was cryptic and as widely applicable as possible. Despite its questionable practices, the patent was approved, leading to the subsequent funding of the startup.
However, the market didn't respond well to the idea, necessitating a pivot. Meanwhile, there were other companies independently pursuing similar ideas. They could have invested significant time and resources, unaware that they were infringing on an existing patent. It's a speculative guess, but I can't help but wonder if the VC fund is vigilantly searching for successful implementations of the patented idea, ready to initiate lawsuits for patent infringement. This illustrates the potential misuse of patents, which, rather than fostering innovation, sometimes stifle it.
> And I'm aware of at least one government grant programs that requires patents apart of their application process
Any examples? Interesting, first time hearing about this
Any examples? Interesting, first time hearing about this
I worked with companies that were funded by DARPA and patent filings were required. This was all in defense related tech like vision systems, robotics, communications, etc. There's a special portion of a patent application where you have to disclose that government funding was involved, so it must be a common occurance. If the company decides to later change the strategy for handling pending patent applications, they needed to get DARPA approval first.
I’m not sure radicalising this debate helps anyone. We are trying for a narrow victory of preserving IPR. Turning that into a broader argument about software patents plays into the opposition’s hands.
As long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo, the broader abuse of the patent system to serve as a legal anti-competitive moat in service of large companies who can afford expensive lawyers will continue. It's not radical to believe that.
> long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo
I’m not saying drop the fight. Just to show a modicum of strategy. Turning an IPR fight into a patent debate lets those looking to quash IPR win while doing nothing for the broader debate.
What is smart, tactically, is doing exactly this when you oppose something: overscope so people disengage or get distracted in a juicier discussion while forgetting to send the relevant message to their elected or regulator.
I’m not saying drop the fight. Just to show a modicum of strategy. Turning an IPR fight into a patent debate lets those looking to quash IPR win while doing nothing for the broader debate.
What is smart, tactically, is doing exactly this when you oppose something: overscope so people disengage or get distracted in a juicier discussion while forgetting to send the relevant message to their elected or regulator.
On the contrary, continuously applying fresh duct tape to a fundamentally broken system allowing it to limp along allows the opponents to point to it and say "see, the system works as is" and the bias in favor of upholding the status quo wins out. By allowing things to fail, you force people to get engaged to do something to fix the problem, at which point actual change becomes possible.
Allowing important systems to fail is not without cost.
At some point, the immediate cost of fail-and-fix is lower than the total short to mid term cost of not fixing it.
The problem arises when systems are intentionally set up to fail (e.g. USPS pensions, gutting education), because those who set them on a doom course usually do so to offer a privatized "alternative" to pocket the profits.
The problem arises when systems are intentionally set up to fail (e.g. USPS pensions, gutting education), because those who set them on a doom course usually do so to offer a privatized "alternative" to pocket the profits.
What course of action doesn't come with a cost? Fixing things well is expensive but fixing things poorly is generally more expensive in the long run.
But the point is that what fixing something well means depends on the context. Total software re-writes are rarely a good idea for large production systems, and software isn't special in that regard.
Yeah, but we don't care about preserving the existing large production system, we explicitly want to switch to a different, more appropriate system.
> By allowing things to fail
Nothing in this context is "allowing things to fail." It's simply strengthening rightsholders' hands.
Nothing in this context is "allowing things to fail." It's simply strengthening rightsholders' hands.
It's a failure for those who want to weaken rightsholders' hands, which presumably includes anyone who wants to see the patent system completely torn down.
The point is if you want people to act, they need to first feel the pain of inaction. If the status quo is tolerable, there is less incentive to put in the great effort necessary for reform.
The point is if you want people to act, they need to first feel the pain of inaction. If the status quo is tolerable, there is less incentive to put in the great effort necessary for reform.
Are you speaking/working for EFF? If yes, I'll delete my comment.
Patents are abominations and should not exist. I don't see how informing the public about their negatives benefits patent trolls.
Patents are abominations and should not exist. I don't see how informing the public about their negatives benefits patent trolls.
On the other hand, it's been argued that without the threat of a radical faction, moderate reformers are completely toothless. I'm not sure there's a generic answer to this dilemma that applies to all situations.
> it's been argued that without the threat of a radical faction, moderate reformers are completely toothless
Once you're at the table. If you're trying to get people in the room, a radical faction drives them away. In this context, consider how many people didn't bother clicking through to respond to the patent office. And consider how many tuned out the discussion because we've seen it before. That's the power of radical over scoping.
Once you're at the table. If you're trying to get people in the room, a radical faction drives them away. In this context, consider how many people didn't bother clicking through to respond to the patent office. And consider how many tuned out the discussion because we've seen it before. That's the power of radical over scoping.
I agree that, in general, a series of narrow, tactical victories, especially those which lend themselves to being enshrined in legislation, do more to help a movement than trying to overturn an entire system in one stroke. Base hits rather than grand slams. It's not sexy, it's not what revolutionaries scream about, but it's about a million times more effective.
The goal of a narrow victory seems faulty. I wonder if a "narrow accelerationism" might be more effective.
IP disputes tend to be B or C stories in the public eye-- either super-technical where they only really interest people in very narrow verticals, or containing unsavoury and unmediagenic characters that are easy to demonize.
Give the IP lobby everything it wants, and we create a world of "here's an adorable 6-year-old girl who will die a very painful and public death because of patents" and "we had to burn down the pre-school because Mrs Crumble photocopied some worksheets with Donald Duck printed on them". With any luck, the backlash would be so massive that nobody would dare speak the word "patent" or "copyright" in Congress for three or four centuries.
IP disputes tend to be B or C stories in the public eye-- either super-technical where they only really interest people in very narrow verticals, or containing unsavoury and unmediagenic characters that are easy to demonize.
Give the IP lobby everything it wants, and we create a world of "here's an adorable 6-year-old girl who will die a very painful and public death because of patents" and "we had to burn down the pre-school because Mrs Crumble photocopied some worksheets with Donald Duck printed on them". With any luck, the backlash would be so massive that nobody would dare speak the word "patent" or "copyright" in Congress for three or four centuries.
> I’m not sure radicalising this debate helps anyone.
Oh but it does. That’s in part how we ended slavery and gave women full human rights and citizenship. If anything radical ideas shift the Overton window into making progress actually happen.
The second point is that the only correct position here is the radical one: as far as I can tell, the truth here is that (i) patents do far more harm than good, and (ii) they cannot be fixed into more good than harm. Therefore, they should be abolished, plain and simple.
Less radical positions may look reasonable, be more politically acceptable… but the only reality they’d be based on would be the flaws of our human minds and the existing power structures of our society. Because of those I indeed only have the faintest hope about patents being abolished in the foreseeable future. At best I’m hoping for some narrowing down: in scope, duration, or a strengthening of due process (mostly prior art).
But I have yet to be convinced that the best course of action isn’t the complete and utter abolition of the entire patent system. Now one could argue that that patents are a useful tool in our exploitation of the South, and losing it might weaken our position and ultimately make us a tad poorer as the South emancipates. That might even be true, see what happened for the COVID vaccines. But I don’t think this argument would win any votes around here.
Oh but it does. That’s in part how we ended slavery and gave women full human rights and citizenship. If anything radical ideas shift the Overton window into making progress actually happen.
The second point is that the only correct position here is the radical one: as far as I can tell, the truth here is that (i) patents do far more harm than good, and (ii) they cannot be fixed into more good than harm. Therefore, they should be abolished, plain and simple.
Less radical positions may look reasonable, be more politically acceptable… but the only reality they’d be based on would be the flaws of our human minds and the existing power structures of our society. Because of those I indeed only have the faintest hope about patents being abolished in the foreseeable future. At best I’m hoping for some narrowing down: in scope, duration, or a strengthening of due process (mostly prior art).
But I have yet to be convinced that the best course of action isn’t the complete and utter abolition of the entire patent system. Now one could argue that that patents are a useful tool in our exploitation of the South, and losing it might weaken our position and ultimately make us a tad poorer as the South emancipates. That might even be true, see what happened for the COVID vaccines. But I don’t think this argument would win any votes around here.
Abolishing patents is likely to substantially hinder innovation. Maybe if it is accompanied by reasonable changes to other processes. But without patent protection there is a zero reason to spend $2 billion to $3 billion to get a drug through FDA trials when a competitor can make a generic afterwards for roughly $5 million and undercut you dramatically in the market as a result. People complain about patents endlessly without offering a realistic solve for this problem and think that innovation in fields where innovation is expensive won't be hampered at all despite this clearly not being the case.
> But without patent protection there is a zero reason to spend $2 billion to $3 billion to get a drug through FDA trials when a competitor can make a generic afterwards for roughly $5 million and undercut you dramatically in the market as a result.
I see. The solution here is simple: let the private labs go bankrupt, hire their researchers in public facilities. You’ll get your innovation back. As for the costs, well, sure you need to pay those researchers, but you get most of that back in the form of much cheaper medication.
I mean, why keep capitalism in the areas where it is so obviously failing? I want effective roads, schools, energy, water, hospitals, mass transportation… along with health insurance, retirement plans, unemployment insurance… and for all of those, the best way I know of is to make them public.
And while we’re at it I’d like some democratically run media that aren’t owned by a bunch of ludicrously rich people, so I don’t get automatic propaganda about why making the above public doesn’t work. Because it does. I’m living in France, I’ve seen it work.
> People complain about patents endlessly without offering a realistic solve for this problem
I think I just did. But you have to accept that it means reducing the scope of Capitalism, if not outright ending it. If you don’t, well… explain to me how Capitalism will somehow not burn our planet to a crisp and depletes its resources. Because as far as I can tell the "only system that works" will not work for long. It cannot. Because Physics. Thus it will end, one way or another, and it’d be nice if it didn’t take the world along with it.
I see. The solution here is simple: let the private labs go bankrupt, hire their researchers in public facilities. You’ll get your innovation back. As for the costs, well, sure you need to pay those researchers, but you get most of that back in the form of much cheaper medication.
I mean, why keep capitalism in the areas where it is so obviously failing? I want effective roads, schools, energy, water, hospitals, mass transportation… along with health insurance, retirement plans, unemployment insurance… and for all of those, the best way I know of is to make them public.
And while we’re at it I’d like some democratically run media that aren’t owned by a bunch of ludicrously rich people, so I don’t get automatic propaganda about why making the above public doesn’t work. Because it does. I’m living in France, I’ve seen it work.
> People complain about patents endlessly without offering a realistic solve for this problem
I think I just did. But you have to accept that it means reducing the scope of Capitalism, if not outright ending it. If you don’t, well… explain to me how Capitalism will somehow not burn our planet to a crisp and depletes its resources. Because as far as I can tell the "only system that works" will not work for long. It cannot. Because Physics. Thus it will end, one way or another, and it’d be nice if it didn’t take the world along with it.
I am glad Hacker News is still against massively centralized things of SOME kind. I remember when the cypherpunks here were in favor of blockchain and crypto. The latest zeitgeist of being against decentralized stuff (witness the hate of plebbit) is leading the “hackers” here to learned helplessness and support online feudalism (big tech monopolies). And I was worried people started to embrace patents too.
Y’all will love decentralization next summer again.
Y’all will love decentralization next summer again.
There are no software patents in EU (maybe even in the whole Europe) with exception for specially designed hardware. Idk how that works.
There are software patents in EPC countries (which includes EU, UK), but not software patents as such. A sibling noted that USA now requires a real-world effect, that change apparently mirrors the situation under EPC: software here can be patented if it makes a technical contribution, ie it must do something outside of the computer (or something that simulates something outside of a computer! see Halliburton).
What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess.
It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom).
Any opinions here are my own and do not relate to my employment. This is not legal advice.
What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess.
It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom).
Any opinions here are my own and do not relate to my employment. This is not legal advice.
EU law only excludes patents for software “as such.” https://www.iam-media.com/regionindustry-guide/patents-in-eu.... You can still patent inventions embodied primarily in software so long as it’s in the context of an industrial or consumer application. So you can’t patent RSA, but you can patent a phone that uses RSA to securely transfer data.
Since the Supreme Court’s Alice decision in 2013, which tightened the longstanding exclusion to patentability for “abstract ideas,” it’s probably slightly harder to get (or keep) a software patent in the US than in the EU. Just because US courts are more willing to look past hardware aspects of an invention to see if the “gist” of the invention is an abstract idea implemented in software.
Since the Supreme Court’s Alice decision in 2013, which tightened the longstanding exclusion to patentability for “abstract ideas,” it’s probably slightly harder to get (or keep) a software patent in the US than in the EU. Just because US courts are more willing to look past hardware aspects of an invention to see if the “gist” of the invention is an abstract idea implemented in software.
When hardware is designed to be controlled by software, then you can't exclude software from the patent, because such patent would describe nonworking hardware. But that software isn't patentable separate from hardware.
Here’s a thought experiment: take a look at the Tillitis Key: https://tillitis.se
It’s a security dongle that can execute arbitrary programs. It’s hardware is actually a RISC-V core implemented on top of an FPGA, with some firmware on top to load the user programs.
Now the firmware is a kind of software, so patent should not apply, right? Heck one could even argue that the configuration of the FPGA should not count either, only the FPGA itself may count. There’s a problem though: the keys are locked.
They kinda have to be to deliver their security promises, and prevent the secret key in the device from leaking, either by accident or by adversarial extraction. But then what do I have? A hardened piece of… hardware actually. And all the patents that didn’t apply "because software", now do.
Or maybe they do not, I’m not a lawyer. I just wanted to highlight how fuzzy the frontier could be.
Now the firmware is a kind of software, so patent should not apply, right? Heck one could even argue that the configuration of the FPGA should not count either, only the FPGA itself may count. There’s a problem though: the keys are locked.
They kinda have to be to deliver their security promises, and prevent the secret key in the device from leaking, either by accident or by adversarial extraction. But then what do I have? A hardened piece of… hardware actually. And all the patents that didn’t apply "because software", now do.
Or maybe they do not, I’m not a lawyer. I just wanted to highlight how fuzzy the frontier could be.
And you will be able to buy TKeys that are unlocked, and you (your organization) will then be able to personalize and lock them yourself. Does it then start out as SW, and then become hadrdware? Also not a lawyer. ;-)
https://shop.tillitis.se/
https://shop.tillitis.se/
There are no software patents in the US either, as of 2014, except ones that have a physical effect on the world. Compression, encryption, and data structures are basically the only allowed software patents.
Hardware patents are bad too. Even more bad are those that cover both hardware and simulation of hardware in software domain.
For example, someone "invented" a circuit that lets you control an analogue filter parameters in a certain way. Then also was granted patent for a software that mimics behaviour of such circuit. As if someone found a loophole to patent mathematical formulas.
Either people that grant patents are dumb or I don't know.
For example, someone "invented" a circuit that lets you control an analogue filter parameters in a certain way. Then also was granted patent for a software that mimics behaviour of such circuit. As if someone found a loophole to patent mathematical formulas.
Either people that grant patents are dumb or I don't know.
USPTO patent examiners are notoriously not granted enough time to review all submissions.
Now I am afraid of writing solutions to problems that are already solved for fun.
I have a challenge out to all my friends: "Show me one, just one, software patent that is not obvious to someone skilled the field, and I will stop my annoying diatribes about how bad software patents are."
To this day I have yet to see to a useful software patent.
To this day I have yet to see to a useful software patent.
Patents become obvious the second they're out. This is exactly why they exist. But coming up with the stuff in the first place is what's hard.
I worked in video coding back in the day, I can assure you that there are stuff in the HEVC codec that are pretty far from obvious.
AlphaGo is pretty high up there too if you ask me.
Whether patenting software is useful or not is a different debate...
I worked in video coding back in the day, I can assure you that there are stuff in the HEVC codec that are pretty far from obvious.
AlphaGo is pretty high up there too if you ask me.
Whether patenting software is useful or not is a different debate...
I completely agree.
Patents should be contrasted with trade secrets as that is their main "competitor". Is it useful to the general public to be shown the details of a new technology, but have it's use restricted for 20 years? Or is it more useful to prevent blocking of technology but these are going to be kept as trade secrets instead?
From my point of view patents are probably harmful here. Having people be inspired and come up with alternative (or rediscover the same) implementations is probably going to lead to much better for the public than actually learning exactly how the original company did it in exchange for 20y of exclusivity (and all of the pain that enforcing the exclusivity brings).
Remember that unlike copyright patents are not about encouraging the creation of work or innovation. They are a trade of information to the public for a period of exclusivity. For software that tradeoff seems far to far in the inventors favor.
Patents should be contrasted with trade secrets as that is their main "competitor". Is it useful to the general public to be shown the details of a new technology, but have it's use restricted for 20 years? Or is it more useful to prevent blocking of technology but these are going to be kept as trade secrets instead?
From my point of view patents are probably harmful here. Having people be inspired and come up with alternative (or rediscover the same) implementations is probably going to lead to much better for the public than actually learning exactly how the original company did it in exchange for 20y of exclusivity (and all of the pain that enforcing the exclusivity brings).
Remember that unlike copyright patents are not about encouraging the creation of work or innovation. They are a trade of information to the public for a period of exclusivity. For software that tradeoff seems far to far in the inventors favor.
I think network effects are already so far in favour of software companies that the patents are not really needed. Look at how AWS resells free software via it’s services for example. And anyone can copy them! And they are. But they are still the biggest by a long shot.
> AlphaGo
What about AlphaGo? The Reinforcement Learning methods? The Monte Carlo tree search? The Deep Learning?
DeepMind didn't invent any of these things but applied them in a novel way. If everything was software patented, AlphaGo may not have existed.
What about AlphaGo? The Reinforcement Learning methods? The Monte Carlo tree search? The Deep Learning?
DeepMind didn't invent any of these things but applied them in a novel way. If everything was software patented, AlphaGo may not have existed.
Again not saying I am for patents.
Just answering the original question.
Did AlphaGo bring anything new to the table? Hell yeah.
Just answering the original question.
Did AlphaGo bring anything new to the table? Hell yeah.
> Did AlphaGo bring anything new to the table? Hell yeah.
It is incredible software and deserves the Turning Prize, no question. But what new patentable tech did they invent?
It is incredible software and deserves the Turning Prize, no question. But what new patentable tech did they invent?
Patentable tech doesn't have to be from the ground up. If you design something that solves a problem that wasn't solvable prior to your invention - regardless of the tech it is based on - it definitely qualifies for a patent.
> Patentable tech doesn't have to be from the ground up. If you design something that solves a problem that wasn't solvable prior to your invention - regardless of the tech it is based on - it definitely qualifies for a patent.
I asked twice what specific patentable tech they invented and you declined to answer.
It is a straw man to suggest I was arguing against about any specific thing being patentable.
I asked twice what specific patentable tech they invented and you declined to answer.
It is a straw man to suggest I was arguing against about any specific thing being patentable.
I thought it was clear it was the whole architecture, piping deep neural nets and monte carlo search together and using reinforcement learning on the whole thing is not something that had been done before.
That guy:
https://patents.google.com/patent/EP3459018A1/en?oq=EP345901...
That guy:
https://patents.google.com/patent/EP3459018A1/en?oq=EP345901...
https://patents.google.com/patent/US4405829A/en
https://patents.google.com/patent/US6285999B1/en
https://patents.google.com/patent/US7478074B2/en
-- Method for node ranking in a linked database (PageRank)
An application of Bayes' Theorem (1763) and heavily related to Markov chains (1906). Build a Markov chain of simulated users clicking around the internet and build its weights with Bayes' Theorem and you basically have PageRank. It's clever, but no more clever than what thousands of software engineers invent every day.
https://en.wikipedia.org/wiki/Bayes%27_theorem
https://en.wikipedia.org/wiki/Markov_chain
-- RSA
A pretty strong example, but largely based on Diffie-Hellman key exchange published a year before and known since 1969. At least this one was granted to its actual inventors.
https://en.wikipedia.org/wiki/Diffie–Hellman_key_exchange#Cr...
-- Support vector machine
"The original SVM algorithm was invented by Vladimir N. Vapnik and Alexey Ya. Chervonenkis in 1964. In 1992, Bernhard Boser, Isabelle Guyon and Vladimir Vapnik suggested a way to create nonlinear classifiers by applying the kernel trick to maximum-margin hyperplanes. The "soft margin" incarnation, as is commonly used in software packages, was proposed by Corinna Cortes and Vapnik in 1993 and published in 1995."
https://en.wikipedia.org/wiki/Support_vector_machine#History
Patent issued in 2004 to none of the above people. Fail. Patent has FORTY YEARS of prior art. Should never have been issued. I personally remember SVMs being considered "old school" AI in my college AI class in 2005.
An application of Bayes' Theorem (1763) and heavily related to Markov chains (1906). Build a Markov chain of simulated users clicking around the internet and build its weights with Bayes' Theorem and you basically have PageRank. It's clever, but no more clever than what thousands of software engineers invent every day.
https://en.wikipedia.org/wiki/Bayes%27_theorem
https://en.wikipedia.org/wiki/Markov_chain
-- RSA
A pretty strong example, but largely based on Diffie-Hellman key exchange published a year before and known since 1969. At least this one was granted to its actual inventors.
https://en.wikipedia.org/wiki/Diffie–Hellman_key_exchange#Cr...
-- Support vector machine
"The original SVM algorithm was invented by Vladimir N. Vapnik and Alexey Ya. Chervonenkis in 1964. In 1992, Bernhard Boser, Isabelle Guyon and Vladimir Vapnik suggested a way to create nonlinear classifiers by applying the kernel trick to maximum-margin hyperplanes. The "soft margin" incarnation, as is commonly used in software packages, was proposed by Corinna Cortes and Vapnik in 1993 and published in 1995."
https://en.wikipedia.org/wiki/Support_vector_machine#History
Patent issued in 2004 to none of the above people. Fail. Patent has FORTY YEARS of prior art. Should never have been issued. I personally remember SVMs being considered "old school" AI in my college AI class in 2005.
Ugh, I pasted the wrong patent there for number 3, but Vapnik does in fact hold a couple of SVM related patents. Concerning the "FOURTY YEARS of prior art", well SVMs without the kernel trick are about as much prior art (and useful) as perceptrons compared to Deep Neural networks.
> An application of Bayes' Theorem...
> but largely based on Diffie-Hellman key exchange published
Novel applications are patentable.
> but largely based on Diffie-Hellman key exchange published
Novel applications are patentable.
> Novel applications are patentable.
If they're non-obvious. Remember, the challenge was: show me the strongest, most defensible examples of software patents you can. GP did a great job coming up with 3 very strong examples of patents (taking his word that the SVM patent he meant to show is much stronger). And yet even in those top examples, there are (IMO) reasonable arguments that they still do not deserve protection. I'm not convinced either way, but there are arguments.
My point is that "novel applications" are most of what software engineers do, every day. I contend that there are 10,000+ ideas equally as novel as PageRank invented every day. Senior software engineers probably come up with one every few weeks. This strongly challenges the idea that these are "non-obvious".
If they're non-obvious. Remember, the challenge was: show me the strongest, most defensible examples of software patents you can. GP did a great job coming up with 3 very strong examples of patents (taking his word that the SVM patent he meant to show is much stronger). And yet even in those top examples, there are (IMO) reasonable arguments that they still do not deserve protection. I'm not convinced either way, but there are arguments.
My point is that "novel applications" are most of what software engineers do, every day. I contend that there are 10,000+ ideas equally as novel as PageRank invented every day. Senior software engineers probably come up with one every few weeks. This strongly challenges the idea that these are "non-obvious".
These links seem to be self defeating in nature.
First, most of them are math related, except you get the computer to do the math. You can't (or shouldn't) be able to own or outlaw math.
The last link is a Support Vector Machine as far as I can tell. Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x? That's absolutely wild
First, most of them are math related, except you get the computer to do the math. You can't (or shouldn't) be able to own or outlaw math.
The last link is a Support Vector Machine as far as I can tell. Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x? That's absolutely wild
> First, most of them are math related,
Nope. At least not for any reasonably sane definition that would not apply to all software.
> Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x?
Maybe before whining about how Vapnik got an unfair patent for something someone else did in 1964, try learning something about SVMs and their history. It's quite insulting.
Nope. At least not for any reasonably sane definition that would not apply to all software.
> Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x?
Maybe before whining about how Vapnik got an unfair patent for something someone else did in 1964, try learning something about SVMs and their history. It's quite insulting.
Not to detract from the point too much, but RSA was independently discovered in 1973.
From what I can gather, that's RSA, PageRank, and the idea of neural networks and how to train them (or some specific subset or advancement of that I think?).
I agree these are novel and not something immediately obvious. I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Amazon's one-click patent was ridiculous. Is Google's PageRank? Maybe. Is the RSA algorithm or how to train neural networks? I don't know. Encouraging the development of these by granting limited time monopolies on them seems like it would encourage people to develop them, but if there was a different way to reward the inventors I would be interested in the details (i.e. less blanket statements that it would be as good, but reasoned thought at a minimum and data if we are so lucky as to have some).
Sometimes the problem is not the idea but the implementation. Maybe that's the case with some types of patents.
I agree these are novel and not something immediately obvious. I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Amazon's one-click patent was ridiculous. Is Google's PageRank? Maybe. Is the RSA algorithm or how to train neural networks? I don't know. Encouraging the development of these by granting limited time monopolies on them seems like it would encourage people to develop them, but if there was a different way to reward the inventors I would be interested in the details (i.e. less blanket statements that it would be as good, but reasoned thought at a minimum and data if we are so lucky as to have some).
Sometimes the problem is not the idea but the implementation. Maybe that's the case with some types of patents.
Almost, the last patent is about SVMs which are a different ML learning paradigm (one that completely eclipsed neural networks for some time, for what it's worth).
> I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Yup. I agree that software patents, in the US at least, are a bit of a cluster-fuck, but it's evidently not true that nothing non-trivial was ever patented.
> I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Yup. I agree that software patents, in the US at least, are a bit of a cluster-fuck, but it's evidently not true that nothing non-trivial was ever patented.
ARC cache is only obvious after it’s been shown to you.
Whether or not software patents are a good thing is an entirely separate question (one on which I suspect we agree, in fact) but software patents can and do contain actual non-obvious inventions.
Whether or not software patents are a good thing is an entirely separate question (one on which I suspect we agree, in fact) but software patents can and do contain actual non-obvious inventions.
ARC is not completely obvious, sure, true, but it's a very very very hard stretch to call it worthy of 20 years of monopoly.
It simply seems like a multi-tier cache (which it is, after all, it's 4 LRU duct taped together in a useful way).
And, maybe there's nothing wrong with the 20 years, the problem is how hard much it costs to license it, how much the whole discovery process costs to the whole industry.
It simply seems like a multi-tier cache (which it is, after all, it's 4 LRU duct taped together in a useful way).
And, maybe there's nothing wrong with the 20 years, the problem is how hard much it costs to license it, how much the whole discovery process costs to the whole industry.
Again, we're in agreement that software patents have many flaws, but the statement "only obvious things are patented" is plainly false.
I don't like software patents but are SIFT and SURF really obvious? Even after 2 tries of trying to read and understand how they work, I've still only gotten the most superficial high-level view of them.
> software patent that is not obvious to someone skilled the field
Small but significant correction: software patent that was not obvious to someone skilled in the field AS OF THE FILING DATE (or priority date).
Small but significant correction: software patent that was not obvious to someone skilled in the field AS OF THE FILING DATE (or priority date).
The filing date is often a year after the provisional was filed, and the invention was already marketed. That doesn't mean that the provisional wasn't novel.
Yes, I understand and agree. I was correcting the OP of this thread, and got downvoted. I'm a patent attorney, what do I know. LOL. So many strong opinions about patents flying about.
Intellectual property demonstrably stifles innovation. It is the ultimate rent-seeking behaviour. It's not limited to software patents either. Hell, it's not even limited to patents.
The Wright brothers had a patent on the flight control mechanism that they used to stifle innovation [1]. This problem was so bad that when the US entered the First World War, they were completely unable to produce any aircraft and had to buy them from the French. This ultimately led to Congress intervening to form a patent pool for aircraft patents, a system that persists til now.
In the early days of the Internet (ie Napster and Limewire era) there was a lot of hand-wringing about "stealing" music and how it hurt artists. Almost no artist makes sufficient income from music royalties. Only the very top do. The rest make a living from perfrmances and music IP doesn't impact that. But it does help record companies to explit artists, which is the main point.
The pharmaceutical industry claims patents are necessary for drugs. Thing is, most drug research is undertaken by government funding and then basically just handed over to Big Pharma, who spend most of their money on marketing not R&D. What R&D they do is largely to game the patent system to extend patents without minor but irrelevant changes.
Copyright law is repeatedly extended (in the US) largely to stop Mickey Mouse entering the public domain. At this point I'd be happier with a carve-out specifically for the stupid mouse and let everything else fall into public domain
We do not need intellectual property. For atistic works, 10 years. Max.
[1]: https://en.wikipedia.org/wiki/Wright_brothers_patent_war
The Wright brothers had a patent on the flight control mechanism that they used to stifle innovation [1]. This problem was so bad that when the US entered the First World War, they were completely unable to produce any aircraft and had to buy them from the French. This ultimately led to Congress intervening to form a patent pool for aircraft patents, a system that persists til now.
In the early days of the Internet (ie Napster and Limewire era) there was a lot of hand-wringing about "stealing" music and how it hurt artists. Almost no artist makes sufficient income from music royalties. Only the very top do. The rest make a living from perfrmances and music IP doesn't impact that. But it does help record companies to explit artists, which is the main point.
The pharmaceutical industry claims patents are necessary for drugs. Thing is, most drug research is undertaken by government funding and then basically just handed over to Big Pharma, who spend most of their money on marketing not R&D. What R&D they do is largely to game the patent system to extend patents without minor but irrelevant changes.
Copyright law is repeatedly extended (in the US) largely to stop Mickey Mouse entering the public domain. At this point I'd be happier with a carve-out specifically for the stupid mouse and let everything else fall into public domain
We do not need intellectual property. For atistic works, 10 years. Max.
[1]: https://en.wikipedia.org/wiki/Wright_brothers_patent_war
Network effects are far more powerful than IP. Witness the fact that >50% of Twitter's users hate it and think everyone should leave but they are still using it because they are still using it.
Without IP the owners of the core hubs of network effects could take all intellectual products, monopolize them, and rent them back to us. We would be unable to resist because network effects are more powerful than we are as individuals.
Without IP the owners of the core hubs of network effects could take all intellectual products, monopolize them, and rent them back to us. We would be unable to resist because network effects are more powerful than we are as individuals.
If I where a US citicens I would want whoever is resposible for it to be fired and investigated for corruption.
Because you need to either be severely incompetent to a point of by far not being qualified to do your job or corrupt to come up with that.
If you do a bit research into the patent system it becomes clear that if anything challenging being to difficult and expensive is a problem not the other way around.
Because you need to either be severely incompetent to a point of by far not being qualified to do your job or corrupt to come up with that.
If you do a bit research into the patent system it becomes clear that if anything challenging being to difficult and expensive is a problem not the other way around.
AIU USPTO is corrupt by design: its incentive is its own commercial interest.
The effect of the anti-patent push has been to pivot the VC and startup industry from technology to buying market share. When patents were strong, you came up with an idea, got it working, got a patent, and then went to a VC for funding to deploy. Now, you come up with an idea, hype it, and go to a VC for funding to hype it more.
The most useful thing about software patents IMO is what you uncover during the patent writing process. When you’re sitting there writing the equivalent of a 10-20 page college essay on the problem background, operating environment, then all the present and future uses of something novel (the provisional stage), it forces you to think in a way that no typical product management process does. There are few (any?) other forcing mechanisms I’ve seen that produce the same results.
And then the legal team runs it through the legalese obfuscator 9000 to make sure no one else will have any idea what it's even about.
Seriously, Google needed insider information at Sonos to infringe on their multi-room audio patent. Go read it and see if you could implement a working system from it https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8...
Seriously, Google needed insider information at Sonos to infringe on their multi-room audio patent. Go read it and see if you could implement a working system from it https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8...
That’s true. The narrative can get lost or at least watered down in the process.
If your design or method is new and unique, just a write scientific paper about it. It is about the same.
I assume this change is related to the patent office wanting to reduce its workload? Funding probably should be increased. Patent nonsense ends up costing everyone a LOT more in the long run.
My reading is that it's probably related to an extortion attempt where a firm went after VLSI and Intel?
https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-dir...
https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-dir...
So damned if this goes through, damned if it doesn’t.
No, the board can combat "extortion" in other ways.
Don't allow the initiator to _drop_ the request once started.
Initiator pays all costs (I think this is already done?).
Then any extortion has to happen up front, and it becomes much more obviously extortion.
Don't allow the initiator to _drop_ the request once started.
Initiator pays all costs (I think this is already done?).
Then any extortion has to happen up front, and it becomes much more obviously extortion.
Unless they have changed it since I learned about this, the loser pays at the PTAB.
After reading the proposed rule changes, I'm not so sure it's bad, and I'm also not sure it hits the EFF in any meaningful way (unless the EFF is hopelessly corrupt, which I guess is a possibility). The biggest thing at issue is that it protects small entities from spurious IPRs (ie IPRs from parties not being sued) from for-profit companies while litigation is ongoing, which seems kind of reasonable. IPRs are expensive, so this is an easy way to either drive a small entity bankrupt during a high-stakes lawsuit or extort a payout.
The EFF isn't a for-profit entity, so if they have problems with this rule, it might mean that they are so closely connected to one or more for-profit companies that they are treated as for-profit. That honestly makes the EFF sound suspect. I am assuming this comes from their ideological anti-IP stance rather than corruption, but either way it doesn't come off as an honest take on the new rules.
The EFF isn't a for-profit entity, so if they have problems with this rule, it might mean that they are so closely connected to one or more for-profit companies that they are treated as for-profit. That honestly makes the EFF sound suspect. I am assuming this comes from their ideological anti-IP stance rather than corruption, but either way it doesn't come off as an honest take on the new rules.
The alternative explanation is that EFF, having experienced incredible and well-funded push-back in its attempts to invalidate dumb patents, believes that this rule has been engineered to limit even further the ability of third-parties to challenge unnecessary patents.
I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
(Due disclosure: I used to work for EFF. The fight for a reasonable way to overturn bad patents has been, IIRC, a multi-decade uphill battle, against an industry of patent troll adversaries, who did everything from trying to subpoena EFF's membership rolls[1], to suing in Australia to have an EFF blog post taken down[2]. I guess we could have been being paid off by Big Don't Patent Dumb Things, but I defy you to find any of the patents that the EFF has either exposed or organizationally fought that should, in fact, have stayed patentable [3])
[1] https://www.eff.org/deeplinks/2014/01/eff-fights-patent-trol...
[2] https://www.eff.org/deeplinks/2017/11/court-rules-effs-stupi...
[3] https://www.eff.org/issues/patents
I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
(Due disclosure: I used to work for EFF. The fight for a reasonable way to overturn bad patents has been, IIRC, a multi-decade uphill battle, against an industry of patent troll adversaries, who did everything from trying to subpoena EFF's membership rolls[1], to suing in Australia to have an EFF blog post taken down[2]. I guess we could have been being paid off by Big Don't Patent Dumb Things, but I defy you to find any of the patents that the EFF has either exposed or organizationally fought that should, in fact, have stayed patentable [3])
[1] https://www.eff.org/deeplinks/2014/01/eff-fights-patent-trol...
[2] https://www.eff.org/deeplinks/2017/11/court-rules-effs-stupi...
[3] https://www.eff.org/issues/patents
> The alternative explanation is that EFF, having experienced incredible and well-funded push-back in its attempts to invalidate dumb patents, believes that this rule has been engineered to limit even further the ability of third-parties to challenge unnecessary patents.
I am expressing doubt about whether the EFF actually has a stake in these rule changes, as they very clearly state several times. The article here isn't about generic third parties. It's about the EFF. This rule change also came after someone essentially tried to use an IPR to extort VLSI technology and Intel. The lack of recognition of that extortion and the corresponding limitations on these rules suggests to me that the EFF is not being entirely forthright here.
> I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
Holy strawman batman. Read the second paragraph.
Also, the rule change is in English. You can actually read the rule change and you will realize that it's a lot more narrow than the EFF is suggesting. In particular, the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
If we were to take the EFF's words at face value that this rule change applies specifically to the EFF's ability to fight bad patents, the only real conclusion we can draw is that some of the EFF's funding comes from for-profit companies who want specific patents struck down (invalidating (a) above) or want the EFF to hurt their competitors, which would, in fact, be suggestive of corruption. The other conditions certainly don't apply to the EFF.
So that leaves us with one of two alternatives:
1. The EFF actually has no dog in the fight but just doesn't want to have an effective patent system; or
2. The EFF takes money from companies with the purpose of hurting their competitors.
I am expressing doubt about whether the EFF actually has a stake in these rule changes, as they very clearly state several times. The article here isn't about generic third parties. It's about the EFF. This rule change also came after someone essentially tried to use an IPR to extort VLSI technology and Intel. The lack of recognition of that extortion and the corresponding limitations on these rules suggests to me that the EFF is not being entirely forthright here.
> I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
Holy strawman batman. Read the second paragraph.
Also, the rule change is in English. You can actually read the rule change and you will realize that it's a lot more narrow than the EFF is suggesting. In particular, the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
If we were to take the EFF's words at face value that this rule change applies specifically to the EFF's ability to fight bad patents, the only real conclusion we can draw is that some of the EFF's funding comes from for-profit companies who want specific patents struck down (invalidating (a) above) or want the EFF to hurt their competitors, which would, in fact, be suggestive of corruption. The other conditions certainly don't apply to the EFF.
So that leaves us with one of two alternatives:
1. The EFF actually has no dog in the fight but just doesn't want to have an effective patent system; or
2. The EFF takes money from companies with the purpose of hurting their competitors.
> This rule change also came after someone essentially tried to use an IPR to extort VLSI technology and Intel.
the IPR process exists in part to combat patent trolling, which is worse than that, and happens more frequently than that, to greater harm than that -- unfortunately for the victims there, they usually aren't rich, politically-connected companies like Intel
> the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
(1) those limitations sound bad, when I want a for-profit company who is not currently litigating a patent to be able to challenge arbitrary patent trolls' IP via IPR without court costs being a barrier
(2) 'these limitations don't directly affect X, therefore X shouldn't have a problem with it' is only true if X cares about nobody but themselves, which obviously isn't true here, given EFF's track record
the IPR process exists in part to combat patent trolling, which is worse than that, and happens more frequently than that, to greater harm than that -- unfortunately for the victims there, they usually aren't rich, politically-connected companies like Intel
> the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
(1) those limitations sound bad, when I want a for-profit company who is not currently litigating a patent to be able to challenge arbitrary patent trolls' IP via IPR without court costs being a barrier
(2) 'these limitations don't directly affect X, therefore X shouldn't have a problem with it' is only true if X cares about nobody but themselves, which obviously isn't true here, given EFF's track record
>The alternative explanation is that EFF, having experienced incredible and well-funded push-back in its attempts to invalidate dumb patents, believes that this rule has been engineered to limit even further the ability of third-parties to challenge unnecessary patents.
Your entire perspective presupposes that you are correct. I'm surprised people fall for the EFF's shtick so easily - it's so heavily worded in a pointed fashion, that any other kind of writing of this style, is regularly rejected in places like this because of how biased it is. Oh wait... you used work for the EFF!
What's unreasonable about fighting patents in district court? EFF is trying to have its cake and eat it too. Pretending that it's all big bad companies AND patent trolls. but both of those entities are on the opposite sides of each other. The reality is that what the EFF is advocating for will absolutely benefit the big bad companies that the EFF attempts to disavow any commonality with it.
Of course the EFF describes anyone opposed to it as a patent troll, but that's totally unfair imo and pretty much an outright lie. any inventor that isn't one of the big tech co's stands to benefit from this proposed rule change.
And your point about the patents that the EFF fights is completely besides the point, because the EFF isn't the only entity involved in patents, so who cares whether the EFF has challenged valid patents or otherwise, that's exactly what district court is for...
Your entire perspective presupposes that you are correct. I'm surprised people fall for the EFF's shtick so easily - it's so heavily worded in a pointed fashion, that any other kind of writing of this style, is regularly rejected in places like this because of how biased it is. Oh wait... you used work for the EFF!
What's unreasonable about fighting patents in district court? EFF is trying to have its cake and eat it too. Pretending that it's all big bad companies AND patent trolls. but both of those entities are on the opposite sides of each other. The reality is that what the EFF is advocating for will absolutely benefit the big bad companies that the EFF attempts to disavow any commonality with it.
Of course the EFF describes anyone opposed to it as a patent troll, but that's totally unfair imo and pretty much an outright lie. any inventor that isn't one of the big tech co's stands to benefit from this proposed rule change.
And your point about the patents that the EFF fights is completely besides the point, because the EFF isn't the only entity involved in patents, so who cares whether the EFF has challenged valid patents or otherwise, that's exactly what district court is for...
The bigger issue is that it allows NPEs to protect themselves from this process (by declaring themselves as "small" and "inventor-owned"), making it kinda useless.
that's only true for NPE's that are enforcing patents that are owned by the inventor, and isn't the case for most of what people would call patent trolls. The EFF represents that the majority of patent trolls (which is something that EFF pretends to be the only party that brings patent lawsuits... lol, completely disingenuous on their part) are the kind where there is one person that invented a ton of patents and is enforcing them, but that's not the case. EFF doesn't even pretend to navigate this distinction.
non-profit is a complicated topic and companies which are not corrupt and "in spirit" act as a non profit might very well count as a for-profit company in many legal situations AFIK
So you are okay with the EFF getting a very large donation from an organization involved in litigation with the purpose of harassing the plaintiff and draining their resources? That doesn't sound like "not corrupt in spirit." That sounds like "greenwashed extortion racket."
See and that is why such a law is a problem because people just twist your words in ways which turn them into something you 100% did not say (or did) and then you can't try to take down a abusive patent.
I'm pretty sure the patent office is funded by fees, so its in their interest to keep the applications coming. They also seem to avoid penalties even when their bad patents are overturned.
"The USPTO is a demand-driven, fee funded, performance-based organization with a commitment to delivering reliable IP protection and information to its various stakeholders; including serving inventors, entrepreneurs, and businesses in the U.S. and around the world." [1]https://www.uspto.gov/sites/default/files/documents/fy21pbr....
"The USPTO is a demand-driven, fee funded, performance-based organization with a commitment to delivering reliable IP protection and information to its various stakeholders; including serving inventors, entrepreneurs, and businesses in the U.S. and around the world." [1]https://www.uspto.gov/sites/default/files/documents/fy21pbr....
Please go to US Inventor, https://www.usinventor.org & learn about Josh Malone (Bunch of Balloons) and what the PTAB is doing to legitimate inventors who's hard fought and paid for patents are getting 'nullified' by companies who just don't want to pay a reasonable licensing fee to use their invention. This is a very legitimate organization doing a lot on Capital Hill to help. They have a lot of info and encourage people to reach out to your Congressmen and Senators; loud voices everywhere sometimes break through.
Anyone have a link to the proposed rules? I couldn't see a reference to the text in the EFF release.
The "Take Action" buttons take you to a page with both the rules and a way to comment on them.
Someone should tell the UX/UI team at the EFF that banner blindness[1] (cf [2][3]) applies to bright, contrasting buttons in the middle of text content nowadays, in part because of websites like substack that way-overuse mid-article calls to action.
[1] https://en.wikipedia.org/wiki/Banner_blindness
[2] https://ux.stackexchange.com/questions/120541/why-do-people-...
[3] https://news.ycombinator.com/item?id=32012875
[1] https://en.wikipedia.org/wiki/Banner_blindness
[2] https://ux.stackexchange.com/questions/120541/why-do-people-...
[3] https://news.ycombinator.com/item?id=32012875
Thanks!
I assumed "Take Action" was a simple form, and I didn't want to do that until I read what I was taking action about.
I assumed "Take Action" was a simple form, and I didn't want to do that until I read what I was taking action about.
When looking at the proposed rules, I think this is the problematic bit (search for "standing"):
"The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3)."
"The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3)."
There is also this - "intent to commercialize" would preclude most third parties.
"The Board should first determine whether a petitioner meets the first three criteria—standing, intent to commercialize and privy/real party in interest—before moving to the compelling merits analysis."
"The Board should first determine whether a petitioner meets the first three criteria—standing, intent to commercialize and privy/real party in interest—before moving to the compelling merits analysis."
Why does the EFF have a problem with a rule about for-profit entities? Aren't they a non-profit?
These rules say that a company cannot preemptively challenge a bogus patent before developing something that would infringe that patent.
This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
You should read the rules. They only apply to patents that currently have ongoing litigation and parties that are not involved in the litigation or likely to produce a product. They are a lot more narrow than you think.
> They only apply to patents that currently have ongoing litigation
No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation.
Contrived scenario:
- My company makes spoons, but I'm toying with the idea of pivoting into making keyboards.
- PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device."
- My company files for a petition for PGR on the grounds that this is not novel.
- The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1].
[1] https://news.ycombinator.com/item?id=36198908
No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation.
Contrived scenario:
- My company makes spoons, but I'm toying with the idea of pivoting into making keyboards.
- PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device."
- My company files for a petition for PGR on the grounds that this is not novel.
- The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1].
[1] https://news.ycombinator.com/item?id=36198908
That comment is wrong. The rules clearly state that there has to be ongoing litigation on the patent. Otherwise, basically nobody could IPR anything until they get sued.
> That comment is wrong.
It is a direct quote from the Federal Register notice published by the USPTO. The quote, with a bit more context:
> The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3).
This seems pretty clear.
> The rules clearly state that there has to be ongoing litigation on the patent.
Can you direct me to the part of the new rules that state there has to be ongoing litigation? There are entire sections regarding parallel petitions and parallel litigation, but they are clearly presented as sufficient cause for discretionary denial on their own, and not as requirements for discretionary denial based on the other criteria referenced.
Unless you're saying this rule will only apply to petitions where there are both parallel petitions AND parallel litigation (they are listed and discussed separately) AND the other mentioned criteria are referenced.
> Otherwise, basically nobody could IPR anything until they get sued.
Or demonstrate that the petitioner does not satisfy point 3) above:
> (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market
This is why the EFF is worried.
It is a direct quote from the Federal Register notice published by the USPTO. The quote, with a bit more context:
> The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3).
This seems pretty clear.
> The rules clearly state that there has to be ongoing litigation on the patent.
Can you direct me to the part of the new rules that state there has to be ongoing litigation? There are entire sections regarding parallel petitions and parallel litigation, but they are clearly presented as sufficient cause for discretionary denial on their own, and not as requirements for discretionary denial based on the other criteria referenced.
Unless you're saying this rule will only apply to petitions where there are both parallel petitions AND parallel litigation (they are listed and discussed separately) AND the other mentioned criteria are referenced.
> Otherwise, basically nobody could IPR anything until they get sued.
Or demonstrate that the petitioner does not satisfy point 3) above:
> (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market
This is why the EFF is worried.
The rule is trying to prevent commercial entities from having access to the IPR process. The EFF sees this as a threat to civil liberties in the digital world... From the EFF's About Us page:
"The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world."
"The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world."
A valid assumption!
Let me play devils advocate here.
Although there are examples in this article of clearly scam patents being thrown out, please remember that there are likely examples of the opposite where clearly valid patents get thrown out without a court case, and more where it was unclear which way the patent office should go.
Overall, this alternative system to challenge patents weakens patents as it is indented to. Especially in software patents this is may be a good thing to many, but it is clear to see that this system has probably resulted in some valid patents not being filed as their inventors lack faith that a patent will prevent uncompensated ip theft, and it gets hidden instead.
Although there are examples in this article of clearly scam patents being thrown out, please remember that there are likely examples of the opposite where clearly valid patents get thrown out without a court case, and more where it was unclear which way the patent office should go.
Overall, this alternative system to challenge patents weakens patents as it is indented to. Especially in software patents this is may be a good thing to many, but it is clear to see that this system has probably resulted in some valid patents not being filed as their inventors lack faith that a patent will prevent uncompensated ip theft, and it gets hidden instead.
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Patents are supposedly granted to inventors, yet the preamble of each patent independently lists 'inventor' and 'assignee'.
So what part exactly does the assignee play other than to represent capital? And clearly capital is valued over innovation, as it is the assignee that actually 'owns' the patent, not the inventor.
This seems to be an evergreen topic on HN. Everyone likes to rant, and nothing changes.
Besides @myshpa's references below, I've published several things myself, and one of them made the front page of HN:
https://albertcory50.substack.com/p/lets-vote-on-it
https://albertcory50.substack.com/p/no-source-code-no-patent (front page)
It's not inconceivable that Congress, even one as dysfunctional as this one, could eventually agree that software is not patentable subject matter. That's Ripley's "nuke it from orbit" solution.
Democrats: because software patents are a tool of rich tech companies to maintain their dominance.
Republicans: because they hate the trial lawyers, and some R's are libertarian-leaning as well. And because they hate the tech giants, too.
Write your congressman & senators. Or pick some other active form of political participation.
Besides @myshpa's references below, I've published several things myself, and one of them made the front page of HN:
https://albertcory50.substack.com/p/lets-vote-on-it
https://albertcory50.substack.com/p/no-source-code-no-patent (front page)
It's not inconceivable that Congress, even one as dysfunctional as this one, could eventually agree that software is not patentable subject matter. That's Ripley's "nuke it from orbit" solution.
Democrats: because software patents are a tool of rich tech companies to maintain their dominance.
Republicans: because they hate the trial lawyers, and some R's are libertarian-leaning as well. And because they hate the tech giants, too.
Write your congressman & senators. Or pick some other active form of political participation.
And of course the Federal Register site returns a 503 error when you try to leave a comment. Government hard at work as usual...
Filed a comment. Please do the same. :)
The USPTO is still granting software patents despite Alice.
Is there a way to make them stop?
Is there a way to make them stop?
Well, we just had Apple boast about 5000 patents.
so which is it? "patents" being used by trolls? or American Corporations protecting their investments?
I remember when I realized why software patents are not going away any time soon; it was the same thought that I had when I tried to consider the quantity (amount) of dollars represented as 'valuable assets' in IBM's finances; assets which are just software patents.
I remember when I realized why software patents are not going away any time soon; it was the same thought that I had when I tried to consider the quantity (amount) of dollars represented as 'valuable assets' in IBM's finances; assets which are just software patents.
This is one of the problems with 'Corporations are people' and 'Money is free speech'.
Once a revenue source is generated, there are now 'persons (corporations)' with very loud 'speech (money for lobbying)' that start attempting to influence law.
Governments are a collection of people that are hopefully optimizing toward the benefit of the people. I don't see how patent trolls benefit anyone that doesn't draw a paycheck directly from it.
Once a revenue source is generated, there are now 'persons (corporations)' with very loud 'speech (money for lobbying)' that start attempting to influence law.
Governments are a collection of people that are hopefully optimizing toward the benefit of the people. I don't see how patent trolls benefit anyone that doesn't draw a paycheck directly from it.
fighting a patent is quite expensive and hard and in case of proper patents (and many less proper) unlikely to succeed else many patent trolls wouldn't be able to earn so much money
This is the reason why most times patents are not fought until someone gets sued even through at that point more things are at risk, like temporary restricted sales, so normally a precaution patent invalidation should be preferred by the company starting to sell products where they know someone is patent trolling. But it isn't, as it's too expensive.
There probably had been cases of big companies using a "try to drown small company in lawsuits even if they are spurious" approach, but IMHO this is the wrong way to limit such power abuse (the right way is painful panelties and reparation if they are found to do so and reasonable fast court actions to stop this abuse until courts are settled).
This is the reason why most times patents are not fought until someone gets sued even through at that point more things are at risk, like temporary restricted sales, so normally a precaution patent invalidation should be preferred by the company starting to sell products where they know someone is patent trolling. But it isn't, as it's too expensive.
There probably had been cases of big companies using a "try to drown small company in lawsuits even if they are spurious" approach, but IMHO this is the wrong way to limit such power abuse (the right way is painful panelties and reparation if they are found to do so and reasonable fast court actions to stop this abuse until courts are settled).
I hope this pushes other platforms to provide some more memory channels, could be tricky for AMD due to them wanting to commit to AM5 and I'm not sure if you can retrofit it.
Through then most consumer applications don't necessary need/profit much from the wider memory bandwidth as more bandwidth is harder to use then faster memory speed.
And more channels in a "motherboard not on-die" setup is much more costly for everyone (motherboards + CPUs + end user) then for on die. So maybe new CPUs with some on-die memory with their own channels + 2 classical channels is more likely. But then more on-die L3 or L4 cache (e.g. X3D) is probably more useful then on-die RAM. Hm, it's fun how in some way apples CPUs mismatch most of the consumer marked, but then Apple PRO models don't sell to most of the consumer marked.
Through then most consumer applications don't necessary need/profit much from the wider memory bandwidth as more bandwidth is harder to use then faster memory speed.
And more channels in a "motherboard not on-die" setup is much more costly for everyone (motherboards + CPUs + end user) then for on die. So maybe new CPUs with some on-die memory with their own channels + 2 classical channels is more likely. But then more on-die L3 or L4 cache (e.g. X3D) is probably more useful then on-die RAM. Hm, it's fun how in some way apples CPUs mismatch most of the consumer marked, but then Apple PRO models don't sell to most of the consumer marked.
EFF can't tell you the difference because according to the EFF, there is no other kind of patent holder...
You can also go a level deeper and consider what the dollars themselves are, and why those will not go away either.
they'll become digital, like a cryptocoin.
the push to cashless USD is here and won't be going away
but what does the cashless evolution mean for wage based economy? I'm still thinking through this, but the future is catching up and it seems I will only have to wait some more before circumstances of life and the world force this upon the public; so I don't think I have to actually think through what this means... this will become the brave new society in which I'll die (assuming I survive the transition)
also, let's keep in mind the dollars like the ones you refer too, which "wont' be going away" were re-invented around the 70s, during the nixon administration, when gold was thrown out of the equation completely. but this ain't about metallic elements
the push to cashless USD is here and won't be going away
but what does the cashless evolution mean for wage based economy? I'm still thinking through this, but the future is catching up and it seems I will only have to wait some more before circumstances of life and the world force this upon the public; so I don't think I have to actually think through what this means... this will become the brave new society in which I'll die (assuming I survive the transition)
also, let's keep in mind the dollars like the ones you refer too, which "wont' be going away" were re-invented around the 70s, during the nixon administration, when gold was thrown out of the equation completely. but this ain't about metallic elements
Disingenuous at best.
patent are necessary, but they must be only granted for 5 years of time span. 5 years of leverage to patent holder is more than enough for them to cover up there research cost
I don't think you should be downvoted for suggesting this. I have wondered if it makes sense to adjust the amount of 'research hours' to how long it would take a competitor to produce the same result, and protect a patent for that length of time. To me 5 year seems arbitrary, and the rate at which people are innovating seems to get faster and faster. 5 years used to sound reasonable, but may be exceedingly unfair at today's technological pace.
So then you look at things like, 'well has this patent protected the innovation to get it to market during its lifetime?' Maybe it should be re-evaluated every year to determine if the patent is serving its purpose, or simply protecting no marketable product.
Maybe we should look at the value of the product being created and once that product has earned x-wealth the patent is ended?
I will admit I'm in the camp of "patents are bad -> period", but I was surprised to see your submission at the bottom here. I don't think you're far off.
So then you look at things like, 'well has this patent protected the innovation to get it to market during its lifetime?' Maybe it should be re-evaluated every year to determine if the patent is serving its purpose, or simply protecting no marketable product.
Maybe we should look at the value of the product being created and once that product has earned x-wealth the patent is ended?
I will admit I'm in the camp of "patents are bad -> period", but I was surprised to see your submission at the bottom here. I don't think you're far off.
non-patent holder can use those 5 year to improve the product in parallel (in shadow, without commercialization), so once those 5 year completes they can compete with the patent holders evolved product after 5 year.
it do not stops innovation, neither prolong human progression for too long.
1) EFF has only filed one IPR ever, (linked in the post), against Personal Audio, to invalidate a patent asserted against podcasting. This was crowd-funded by hundreds of people. It required years of litigation beyond the IPR process itself.
2) Patent challenges should be open to all. There's nothing wrong with a "for profit" org challenging a government monopoly - it's a public benefit. A good patent will often hold up (many do), a wrongly granted one will usually go down.
Please read the examples in the post of (very) small businesses, individuals, and nonprofits (Wikimedia) who were protected because another organization, often a for-profit, filed a successful IPR.
It's truly upside down world when USPTO is concerned its very limited monopoly-challenging services are being overused by "for-profits" that file "serial" petitions. In my career I have analyzed hundreds of shell companies that have (each!) sent out dozens or hundreds of threat letters and lawsuits demanding patent royalty payments (patent trolls). Guess what? They're ALL for-profit. They ALL file serial petitions with the hopes of a fast payout.
We have limited means to challenge this extortionate business model, and now USPTO is trying to drastically limit one of the best options. I hope they reconsider, and we ask for your support.
Thanks to all and I appreciate the discussion here.