The intention of the patent system was to promote the useful proliferation of the sciences and arts. Billion-dollar verdicts to companies that do not even produce a marketable product are the antithesis of that intention. It is not clear to me how to solve this problem aside from tearing down the patent system and never rebuilding it. Gone are the days when an inventor in their garage is prevented from the exploitation of a large company by virtue of a patent they filed for their invention. Now, holding companies exist to absorb patents that describe the most abstract and nebulous ideas in order to leech the maximal value from real companies, and courts like this enable them.
End the patent system. (I'd be happy if we even just got rid of software patents on the existing basis that math cannot be patented, but while I'm on my soapbox, might as well go all the way.)
Apple had to set up Facetime proxy servers because a company had a patent on what was essentially “direct communication between two devices on the internet”.
Amazon’s patent on “one-click” buying.
Just utter nonsense that any company would be allowed to hold such a patent.
Apologies: I’m mobile rn and would otherwise research the actual details, but it really gets me riled up and I had to comment without citations.
Let's be clear about the point of patents first. Patents are for non-obvious inventions, and they exist to encourage sharing that invention's details with the public.
The idea is that a patented invention is novel enough that it's unlikely someone else would independently invent it, so the patent encourages the inventor to share all the details of the invention (and in exchange gives them a monopoly on it). Patents are specifically _not_ for good ideas that aren't non-obvious inventions. You can't patent the idea of "1 click buying" or "a time machine", only an actual invention/implementation that does those things.
I agree amazon's 1-click experience is a really good idea. It's also well designed and implemented. The question though is whether some other developer could, given the idea of "1 click buy", create this "invention".
I think it's unquestionable that, given the problem statement, many other developers of the time could have created the same thing.
In fact, a bunch of other developers have already created 1-click buy buttons, and I assure you the vast majority did not read amazon's patent to figure out how to write that code.
The fact that people can build this invention without looking at amazon's patent, to me, proves it should not be patentable. The general public gained nothing from the patent.
In my happy little fantasy world, CS patents should lose their validity if a bachelor CS student/group of students can recreate the fundamentals (for a course/thesis project), without knowledge of the patent.
1 click buying probably fails that. I'm on the fence about "lossy compression of audio files using wavelets, based on a psycho-acoustic model of hearing range" (aka mp3)
IIUC, the standard is regrettably non-obvious to someone of ordinary skill in the art. "Sure it obvious to her, but she's an expert!" can be a valid defense of patent non-obviousness. :/
Hmm, downvotes? Perhaps because I said "expert"? I used it in the sense of an exceptionally good person in the field, rather than the less-restrictive legal sense, which includes those who are unexceptional, uninventive, and of average qualification. Or perhaps some are unfamiliar with PHOSITA?
> A skilled person is typically defined as an expert in a relevant field who has average knowledge and ability but is not exceptional, outstanding, or brilliant. Such a person must be neither over- nor under-qualified and is deemed to be uninventive.[1]
> This raises a difficult question of how to define an appropriate benchmark for AI-assisted inventions and whether/how the current standard should incorporate AI.
That’s not really how patents are supposed to work. If you give someone enough constraints almost any patent will seem obvious. The point of patents is when an entire industry is solving a given problem doing X, and someone comes up with a better option then you want that industry to use the better method.
To get that swap you need public disclosure in some industries, and to get public disclosure you need incentives. For widely available products that disclosure may consist of the actual object without any patents. But, for say oil refineries people don’t just get to walk around and see what’s what.
Having said that the parent system could be changed in a vast number of ways with many tradeoffs. Just consider the wider implications beyond just software or mass produced items.
> If give someone enough constraints almost any patent will seem obvious.
That seems like a strawperson. The parent said that just given the very rough idea or (I would add) even just the term "1 click buy", somebody could have created a comparable experience without any reference to the patent. That's not "give someone enough constraints". That's "let somebody overhear a customer mention the feature in passing".
Suggesting that Amazon wouldn't have invented 1-click buy without patents seems incompatible with good business practices. All my conversations with other developers mentioned a single reason for patenting "random" features at this point: As a way to defend against other people's patents. The only reason _not_ to create a novel feature was that it may be too close to something patented and a lucky lawyer may have argued that it was too close. If anything, software patents actively discourage innovation.
I've never heard of anybody implementing a feature by using a patent. I've never heard of somebody developing a novel feature to get a patent. Which means as "patents", they are useless.
The actual patent isn’t the same as disclosure. Take RSA encryption for example. People don’t implement it from the patent, but independent invention was extremely rare. People’s implementations generally trace the idea back to Ron Rivest, Adi Shamir, and Leonard Adleman, who publicly described the algorithm in 1977.
Yet, overhear the idea in passing and it’s implementation is obvious. Actual secure crypto is much harder than a simple implementation though. RSA is interesting because an equivalent algorithm was independently discovered in 1973 at GCHQ the British signals intelligence agency, and only declassified in 1997.
So in effect it’s disclosure not invention that shaped public crypto. I am not saying patents are a great fit for software, but I am saying disclosure in one form or another is.
> If give someone enough constraints almost any patent will seem obvious.
In the one-click case, it's like getting a patent on the idea of conversion of heat to mechanical motion, then demanding payment from James Watt for his steam engine.
The actual non-obvious test is not a child, but "a person skilled in the art" (of software in this case).
You also are talking about the idea, not the invention. The idea was not patented, the technical invention (effectively flow-charts for how to have a button click trigger an auth cookie check, have databases retrieve credit card numbers, etc), which is not obvious to a child.
But, I would argue, the details of the invention would be clear enough to someone skilled in the art, another competent programmer.
> The question though is whether some other developer could, given the idea of "1 click buy", create this "invention".
I totally disagree with that. There's even apocryphal story that when 1-click purchase was implemented, developer actually couldn't resist of adding "are you sure" message box, because just click and buy is so against typical patterns.
I can give another example - socket wrench. Ratcheting wrench was patented on 1863. It took 110 years to invent quick change socket for it, although if you look at it you will say - well, everybody could create that invention.
I don’t think that anecdote serves as a good counterpoint. I think that developer was implying that such a button might lead to accidental purchases, not that the concept of clicking a single button to purchase something was some kind of inventive concept.
In my opinion, it’s a stupid idea and I think anyone could have come up with it. No one did it because it’s an anti-pattern.
What’s unique about this vs the experience of a (hypothetically) rich person walking in to a department store where they have an account and saying “I’ll take that, that, and that.” then walking out and knowing that it will be delivered to their house simply by virtue of the fact that the management know their face and their preferences?
I can do you one better. I ate lunch at the same sidewalk restaurant in Shanghai almost every day for several months. I usually didn't order at all; instead, they recognized me, knew what I wanted, and brought it out without needing to be asked.
Yes I agree. I am old enough to remember working on software before Amazon existed that had one click ordering. Never occurred to us that it was anything but bloody obvious, like 2 plus 2 is 4.... now theirs an idea.
FWIW I had an e-commerce product offering one click buying from dynamic banner ads (!) before Amazon had one click buying.
I think it was obvious at the time, and cannot fathom why other stores didn’t try it earlier except perhaps fraud fears.
Separately, Amazon is often no longer one-click, which will bite you when you think you ordered but were instead on a supplemental question page you clicked back from without reading. Super annoying when the product doesn’t show up 2 days later.
I've liked the idea of an exponential cost to holding a patent - as in, the cost to maintain it doubles every year. If you're producing a product that's highly successful, profitable, then you'll be able to afford to keep the patent for more years. If you're a patent troll not producing anything, it's going to get expensive quick.
Edit to add: I just realized patents are definitely part of the legal industrial complex..
I like that - but there are other options
randomly thinks of something
When you file your patent, you add blind optional licensing terms to it. For $x your company can use this. Or for $y you can license each device that uses it. For $z you can buy this (not invalidating any other registered uses).
That way when developing something, you can work out whether it's cost efficient to use/avoid/buy - and remove all the risk of litigation and the overhead of lawyers.
Patent system is broken - but on one hand don't think cancelling it is the answer, but resent the sink of cash that it sucks in by existing in its current form.
But this will not solve anything else about patents, there will be less reason to license them and such as the amount of time they can run for without any special income through the patent will be much less. Thus giving companies and inventors with a large capital a larger one up on the people that patents are also supposed to protect.
Lots of inventions can be discovered by an individual with access to a lab (for example, at a university) yet cannot realistically be brought to market without billions in capital they may not have access to. Licensing is supposed to fix this by allowing these inventors to profit from their inventions without needing to get into manufacturing.
At what cost to society? Statements for one side or the other without looking at it in balance, as an equation, doesn't allow us to see the full picture and consequences.
How does this protect an individual inventor who invents (for example) a revolutionary new battery but is unable to secure the enormous capital needed to manufacture it? If the cost to maintain the patent is exponential then the existing battery makers need only wait for the inventor to go broke.
Ideally people are researching and innovating because it's something they're passionate about and not doing it purely for financial gain.
I also believe we'll have a better funding model than what financial-VC industrial complex has provided us/allowed, crowdfunding of sorts.
I'd also like to ask: isn't that already a problem? How many independent battery tech companies are there, and how many have scaled?
Also, maybe different technologies have different rates of patent cost increase - so that way the more expensive to get going sectors for technology dev have a longer runway or grace period.
There are lots of ways to make things flexible. Andrew Yang also suggested making government rewards for technology development, so instead of a patent for some type of technology you get say $10,000,000 - or maybe even $1 billion if your tech meets whatever benchmarks spec'd.
Ideally people are researching and innovating because it's something they're passionate about and not doing it purely for financial gain.
If that's your position then why not abolish patents? I'm a lot more in favour of that. Personally, I think the patent system discourages innovation and encourages rent-seeking.
Andrew Yang also suggested making government rewards for technology development, so instead of a patent for some type of technology you get say $10,000,000 - or maybe even $1 billion if your tech meets whatever benchmarks spec'd.
I like this idea at an instinctual level but I worry that it would be open to abuse. Perhaps the abuse of a system like that would be less bad than the patent system we have right now but that remains to be seen. I do know that a lot of people would be generally opposed to it on principle. They would see it as an undeserved handout.
Great - so if I’m dependent on a patented product, it’s going to get exponentially more expensive and all that money will be funneled to the patent office. This helps nobody.
If that could be implemented fairly (scaling costs based on total revenue so small-time businesses aren't locked out of the system, without giving non-producers/patent trolls a free $0 patent) then that seems like a good compromise.
That changes the game only slightly. Large companies will then be able to hold out over smaller ones far larger reentrenching monopolist behavior. Basically, market mechanisms always favor the rich. You need a fair system not one based on money assuming you even think patents are defensible.
The entire country should be united against the eastern district of Texas. It’s insane how much money and opportunity those idiots have cost the entire populace.
The patent system is federal law. It starts out in federal district court. That's the US District Court for the Eastern District of Texas when the plaintiff "resides" there, which they do in order to get into that court. (The defendant also has to be subject to its jurisdiction, but that's generally true for companies that do business nationwide.)
Ordinarily federal cases are appealed to the circuit court of appeals for that region, but patent cases everywhere are appealed to the US Court of Appeals for the Federal Circuit. If your first thought on hearing that there is a specific federal appeals court that gets all the patent cases was that it would be the target of regulatory capture by patent plaintiffs, you guessed right.
After the circuit court, the next appeal would be to the US Supreme Court. But they don't take very many cases and for a long time they especially didn't take very many patent cases, so the other two captured courts have been screwing up the patent system for decades.
I wonder why the Eastern District is like this? I wonder if it goes back to the oil industry and what I'm sure was a brutal fight over patents on drilling and refinery technology during the heyday of Texas wildcatting.
Slow evolutionary pressure on people and institutions.
You form a small cottage industry around a court system that doesn't have a ton of work, and therefore can hear your cases quickly; you start to get 'business minded' consultants in the industry that approach clients in other jurisdictions to bring their cases to this court system. That pipeline of work ossifies and generates a lot of value as it's immediately proximal to the transaction; when courts become less predictable/slow down/start putting out bad results, the individuals involved complain. 20 years later, these individuals are now on the bench. They view the system from the perspective of the business they've created. They optimize with the stakeholders they serviced in mind.
And so from a few local lawyers trying to hustle, you create an IP nightmare for the entire country.
As far as I recall from reading about this a few years back, it's really mainly this one judge who is perpetuating this bs, although perhaps he has managed to attract a following of judges there. Just search for "Judge Robert Schroeder software verdict" and the cases pop up. Literally one person destroying growth and healthy innovation for so many. Reminds me of other people in positions of power...
There's some number-driven analysis that suggest plaintiffs began to file there specifically because plaintiffs used to often win. That seems to have settled down more recently, but the reputation remains.
Its good business, that is how Marshall, Texas, city of 20000 got its Samsung Ice Skating Rink, Samsung Holiday Celebration Show and a steer champion called TiVo.
One thing that needs to happen is clear opposition to the current patent system from technology companies and employees of those companies. Too many people and companies are willing attack "patent trolls" but still defend the patent system in general and even software patents in particular. Apple, for example, received a large settlement for design patents from Samsung[1], apparently including, for example, a patent for the "home screen app grid".
My guess is that the leadership in large companies like the fact that the company owns patents, since it's some manifestation of the company's innovative capabilities, without realizing the pernicious effect the patent system has on their ability to innovate. I seriously think the patent system could contribute greatly to the end of worldwide U.S. technological prowess, especially as it seems to me the trend is toward more restriction.
Ideally, all tech companies should commit to complete patent non-aggression. And employees should pressure legislators for radical patent reform.
Why? forum shopping is nothing new. The EU has a similar problem with Germany's Dusseldorf court, also popular among patent trolls . That's for instance where Apple sued Samsung to gain a quick preliminary injunction years ago with a doctored image of Samsung tablet[1] -- and Apple did get one -- though all of Apple's claims were overturned later, in large part due to Germany's higher legal standard for infringement.
Now, do you believe that universities or medical research institutions that do not produce or manufacture a product themselves shouldn't be able to patent their invention only because they are not in the business of producing themselves?
A patent is usually for very specific methods or utility that usually doesn't cover a product in entirety (trade dress is a different matter and deals mostly with overall impression). According to an old estimate from RPX, there are over 250+K active patents in modern mobile devices -- you aren't saying that thousands of other inventors not employed by Apple, Samsung or other modern portable device makers, should have no say in patent business?
In case of VirnetX, the key executives at the company are also the inventors of the infringed patents -- Robert Dunham Short, Victor Larson. They were granted while they were working for SIAC and later bought by and re-assigned to VirnetX.
> Billion-dollar verdicts to companies that do not even produce a marketable product are the antithesis of that intention.
It depends on how exactly you define "a product". I think that if one could do research and come up with valuable technology that they hope to license. If this is a useful idea then I think they should be able to sue over it even if they don't have a "product".
I think it depends more on the patent itself. If the patent is very clever and something that people are unlikely to discover themselves then it makes sense to exist and be enforceable. However if it is something obvious or simple to independently discover than it should not be, irrespective if you are producing a product or not.
> I think it depends more on the patent itself. If the patent is very clever and something that people are unlikely to discover themselves then it makes sense to exist and be enforceable.
Not really, not if the holder isn't actively exploiting it. The whole point of patents is to encourage expensive innovation so you don't come up with something and then have it stolen after doing the hard work.
But if you did the hard word and aren't exploiting it, then it shouldn't be withheld from society. Let someone else exploit it.
If you did the research but can't mass market it, then you should be forced to sell the patent, so that society can benefit from your invention.
At the end of the day, the patent system is supposed to benefit society, not the inventor.
An idea I’ve been chewing on for a while is reframing how value is derived. Broadly, the predominant mechanisms used today requires resources to be finite in order for their value to be meaningfully quantified. This makes sense for physical and temporal entities, and I see the copyright and patent systems as the mechanisms we came up with to impose artificial scarcity of intrinsically abundant resources. I see this as ultimately rewarding self interested behaviour, which wild gesturing at everything.
Rather than remove or replace it, I’d propose building a competing mechanism which values and rewards sharing abundant resources as broadly as possible.
To my mind, the value of an idea should be quantified on the breadth and depth of its application, not by how tightly it can be restricted.
One candidate would be a neural network akin to PageRank. Ideas would be the neurones (value sinks), and dependency links would be the synapses (value sources). The greater the links in size and number, the greater the value attributed to the ideas. Neurones and links could have ‘owners’ attached to facilitate accounting. There’s also a potential MMT component, where part or all of the generated value is instantiated by a currency issuer.
It’s always going to be that one district for the same reason basically all businesses are incorporated in Delaware, because their court system has heard a ton of cases on the subject and is a known quantity to everyone involved. It sucks that our patent system sucks but given enough time and case volume any district will turn into the same thing.
I’m not a lawyer and don’t really know the implications of this case fully but a cursory reading of that page as a layman seems to support what you are saying (note the “Impact” section of the Wikipedia page).
I think there is still room for the little guy to build something that can be replicated in reasonable time by a behemoth tech company. That isn't to say that I'm a big fan of patents. The reality is that the world moves much faster than it did when patents first became a thing. I'd advocate for reducing the term of patents to 5 years, down from 20 years. You can get some protection but you're going to need to compete before long.
Yes, I think the harm caused by the broken system as it stands is more than the benefits it provides. I'd love to see it abolished. Especially software patents.
I don't know how this should be structured but there has to be some principle of "use it or lose it" for IP protections, and some limitations on transference of IP.
Obviously there are a lot of negatives to implementing some kind of legal framework around those ideas but something has got to give here, the existence of patent trolls and defensive patent strategies is offensive to the notion that we should encourage innovation.
As someone whose contributions to society would require much greater licenses and capital than I would ever get, but can alternatively stretch my finances to get a patent because of brief time periods where I notice something that others overlooked, I absolutely understand why people do what they do.
I would be a non-practicing entity too.... Why should I get vilified for that? because I will never have the licenses or capital needed to execute that idea, but I still put it in the public sphere - yes, even the broadened vague version that my patent attorney altered my ideas to. The patent attorneys themselves say it is a waste of time and money otherwise.
So, what is the argument? That I should dedicate my life to one idea? I mean I know people that think thats their plan if they ever got a viable idea. The rest of us know better and churn out and dismiss ideas every week.
What distinction is there, does that make me a patent troll worthy of your ire? Let me level with you, maybe there could be statutory tweaks to limit what purchasers of patents can get from infringement claims (The non practicing entities that buy up patents and find organizations to sue), if the current patent owner is not the named inventor.
I agree that if all the incentives are misaligned and no individual entity is acting maliciously and just working with the rights they have, then we should revisit the patent system itself. I agree that judges in patent litigation are doing some strange/corrupt things. I just don't see how any preference is still addressing how to compensate people for ideas.
Alice Corp forbids patents for a normal, noncomputer action just taken on a computer (calculate interest, but on a computer!), but allows software patents otherwise.
> What software patents will survive Alice analysis?
> The question has been raised, therefore, what kinds of software-related patents will survive the analysis prescribed in Alice and Mayo. The question was considered during the oral argument of the Alice case, although not more than cursorily in the opinion. Counsel for CLS Bank suggested that data compression and data encryption were software technologies that are likely to be patent-eligible because they address "a business problem, a social problem, or a technological problem." The Solicitor General, as amicus curiae, said that it would be difficult to identify a patent-eligible business method unless it involved an improved technology, such as "a process for additional security point-of-sale credit card transactions using particular encryption technology" – "that might well be patent eligible."[40]
> At least one commentator has questioned that, however, because encryption largely consists of mathematical operations using modular arithmetic and theorems of Euler.[41] Yet, as the commentator points out, in the Flook case the Supreme Court said: "As the CCPA has explained, 'if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory [patent ineligible].' " Furthermore, in July 2014, just after the Alice decision came down, a Federal Circuit panel held a patent ineligible, quoting Flook and adding: "Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible."[42] Judge Bryson's comments, quoted above, may therefore be more predictive of the likely outcomes of future software-related patent cases, including encryption ones, than counsel's assurances during oral argument in the Alice case.
Isn't LZW compression patented? It's definitely a pure mathematical operation, but intuitively it seems like a reasonable (non-obvious) thing to patent.
Not anymore, all LZW patents expired by 2004 (https://en.wikipedia.org/wiki/Lempel%E2%80%93Ziv%E2%80%93Wel...), long before the 2014 Alice decision we're talking about. We don't know if the LZW patent would have survived post-Alice, but from the above link it looks like it would have been on thin ice:
"At least one commentator has questioned that, however, because encryption largely consists of mathematical operations using modular arithmetic and theorems of Euler.[41] Yet, as the commentator points out, in the Flook case the Supreme Court said: "As the CCPA has explained, 'if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory [patent ineligible].' " Furthermore, in July 2014, just after the Alice decision came down, a Federal Circuit panel held a patent ineligible, quoting Flook and adding: "Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible."[42] Judge Bryson's comments, quoted above, may therefore be more predictive of the likely outcomes of future software-related patent cases, including encryption ones, than counsel's assurances during oral argument in the Alice case."
The implication of the SCOTUS ruling I'm talking about appears to be that there's no real limiting principle, since effectively every software is just the automation of an abstract business process or mathematical theorem.
> What software patents will survive Alice analysis?
> The question has been raised, therefore, what kinds of software-related patents will survive the analysis prescribed in Alice and Mayo. The question was considered during the oral argument of the Alice case, although not more than cursorily in the opinion. Counsel for CLS Bank suggested that data compression and data encryption were software technologies that are likely to be patent-eligible because they address "a business problem, a social problem, or a technological problem." The Solicitor General, as amicus curiae, said that it would be difficult to identify a patent-eligible business method unless it involved an improved technology, such as "a process for additional security point-of-sale credit card transactions using particular encryption technology" – "that might well be patent eligible."[40]
> At least one commentator has questioned that, however, because encryption largely consists of mathematical operations using modular arithmetic and theorems of Euler.[41] Yet, as the commentator points out, in the Flook case the Supreme Court said: "As the CCPA has explained, 'if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory [patent ineligible].' " Furthermore, in July 2014, just after the Alice decision came down, a Federal Circuit panel held a patent ineligible, quoting Flook and adding: "Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible."[42] Judge Bryson's comments, quoted above, may therefore be more predictive of the likely outcomes of future software-related patent cases, including encryption ones, than counsel's assurances during oral argument in the Alice case.
That's what they said about design patents too, but Apple managed to dig it out of grave to use it against their competitor [1]. I guess they are everywhere and they never die.
The intention of the patent system was to promote the useful proliferation of the sciences and arts. Billion-dollar verdicts to companies that do not even produce a marketable product are the antithesis of that intention. It is not clear to me how to solve this problem aside from tearing down the patent system and never rebuilding it. Gone are the days when an inventor in their garage is prevented from the exploitation of a large company by virtue of a patent they filed for their invention. Now, holding companies exist to absorb patents that describe the most abstract and nebulous ideas in order to leech the maximal value from real companies, and courts like this enable them.
End the patent system. (I'd be happy if we even just got rid of software patents on the existing basis that math cannot be patented, but while I'm on my soapbox, might as well go all the way.)