White House Announces Reforms Targeting Patent Trolls 124
andy1307 writes "According to Politico (and, paywalled, at The Wall Street Journal), the White House on Tuesday [released] plans to announce a set of executive actions President Barack Obama will take that are aimed at reining in certain patent-holding firms, known as 'patent trolls' to their detractors, amid concerns that the firms are abusing the patent system and disrupting competition. The plan includes five executive actions and seven legislative recommendations. They include requiring patent holders and applicants to disclose who really owns and controls the patent, changing how fees are awarded to the prevailing parties in patent litigation, and protecting consumers with better protections against being sued for patent infringement."
What is patentable? (Score:5, Insightful)
Do these measures address arguably the most fundamental problem: too many things are patentable in the US and patents are awarded too easily in the first place?
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That would cost money. Taxpayers' $$$. So they offload the problem onto the courts and the consumers end up paying for it that way.
Re:What is patentable? (Score:5, Insightful)
Re:What is patentable? (Score:5, Insightful)
Not necessarily tax payers dollars. In fact, the patents already force people to pay hidden taxes on products. You could charge the patent trolls more for their patents, have a "flood-penalty" for entities holding more than a few patents, etc. It would be extremely unfair to make the tax payers bleed for being ripped off. Punish the wrongdoers, not the victims.
A related issue is that the USPTO is a net contributor to the budget. They don't even get to use all of the patent examination fees that they generate, with some being "diverted" [wikipedia.org] to the general budget.
A "flood-penalty" along the lines you propose would punish those corporations which generate and use a large number of patents, such as IBM, Toshiba, Siemens, and so forth. A better idea would be to take the ratio of implemented patents (in products produced and marketed by the patent holder) to unimplemented patents (whether licensed to others or not), and use that as the basis for a tax per patent or per unimplemented patent more than a few years old. This would still hit patent licensors such as ARM, but if the tax were relatively low, it would not hinder them much while the trolls would find it a great inconvenience.
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Those "corporations which generate and use a large number of patents" generate a HUGE number of trivial, stupid, or even bogus patents BECAUSE there is no "flood penalty". Yes, the ones you mention also generate a large number of reasonable patents. But because of the rules of the game they generate an incredibly large number of stupid and trivial patents. There needs to be SOME sort of "flood penalty". Perhaps it could be partially offset for every item that you produce that you validly claim is using
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Sadly, they are not a net contributor by the time you count up all the direct costs of maintaining the courts and the indirect costs of patents driving up retail prices.
Re:What is patentable? (Score:5, Interesting)
For example, the USPTO could charge large patent application fees for patent applications that are rejected; but charge low fees for patents that are granted. That would change the incentives for both the examiners and the filers of patent applications. If a patent is later re-examined and is found that it should not have been granted, then there should be an even larger penalty, and additional penalties for litigating based on an invalid patent.
Another approach would be to simply scale up what the patent office is currently doing, but not use so much human labor to do it. Simply throw all patent applications into a large room full of cats with PATENT GRANTED stamps attached to their feet.
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That makes no sense. Application fees occur at the time application, typically many years before rejection or approval is known. Instead, perhaps apply a large Post-processing Rejection Fee and leave the application fees somewhat untouched.
On the other hand, they could look at the provisional application process. Maybe provide a cursory review, require certain fields be filled out so that these unpatentable patents get short-circuited at the beginning. For something that gets initially "rejected" throug
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A sliding scale patent fee might be useful. If you own a lot a patents or make a lot of money off of the patents you own, you pay more. If you don't already own a patent, then maybe no fee? Or maybe a percentage fee for whatever you make off the patent? A big question in my mind is is the USPTO solvent? Does it require tax payer funds or is it funded completely by the fees? I'm sure I could google it, but I really should get some work done today.
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Yeah, let us discourage the creative people who have lots of ideas and are covering new ground from advancing the state of the art and bringing new products, medicines and technologies to society.
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My idea wasn't to discourage people from having a lot of patents, but that if you have a bunch of patents and make a lot of money from them, you can afford to pay more. Oh wait, when you read that way, it's very socialistic. Back to the drawing board.
Re:What is patentable? (Score:5, Interesting)
It's property is it not? Then start treating it like property.
TAX IT.
That's not socialist. Property taxes predate socialism but at least 1000 years. So if these people want virtual property created out of thin air then let them pay taxes on it like I do on my house.
Tax it. Assign it a known value. Make it easy to assess tort claims like patent violations and software piracy.
Give some incentive to put things in the public domain after they are no longer worth the tax bill.
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Now that makes even more sense than my original un-thought out plan.
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That a good idea - not only do you pay a yearly tax based on the assigned value, to keep the assessed value realistic, anyone can offer more than the assessed value - if you sell the patent, that's the new value, if you don't, then the value is set to the new value. If they offer 5 or 10 times the value, you either must sell it or it gets assessed at double what they offered.
The first five years, unless a patent is used in litigation, there will be no tax. This protects the small business folks. If you do
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The alternative to the patent system isn't everything becomes public domain. It's no one tells anyone else what they've discovered. Which is better do you think: a) you need an anti-biotic and you can go to your doctor in your town and get a bottle of penicillin, or b) you need an anti-biotic and you have to travel half way around the world where you are escorted alone into a room where you are fed a pill and then you sit there for two hours while the pill dissolves into your system then you are let leave.
Re:What is patentable? (Score:4, Insightful)
The alternative to the patent system isn't everything becomes public domain. It's no one tells anyone else what they've discovered.
Yeah, if Amazon hadn't revealed their revolutionary one-click ordering brainstorm to the world on their patent application, then we'd still all be sitting here wondering:
"How the hell did that Amazon order happen so easily? God, I wish I could figure that out! There must be some trick to it."
Re:What is patentable? (Score:4, Insightful)
Silverware. Silverware is not patented technology. It's not copyrighted either. Yet I can go to a score of stores in my medium size town and buy enough silverware to host a meal for a thousand people or more for less than a day's wages. Aspirin, acetaminophen, and penicillin are no longer covered by patents, and those are still readily available. Coca-Cola, even with it's secret formula, is famously available and identifiable world-wide. Your assertion that without the power of a legally enforced monopoly that nobody would produce goods for profit is absurd.
People that make things do so because it makes them money. It makes them money whether there is competition or not because people need things. Patents allow limited time to make more money by suspending the power of competition to artificially compensate for the cost of development. A tax based on the value of a patent or copyright over it's lifespan is perfectly acceptable. As GP said, if IP holders are so insistent that IP be subject to the benefits of property laws, then let them suffer some of the drawbacks as well.
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You seem to be claiming that I am claiming that no one will create anything unless patents are perpetual. I'm not making that claim at all. I'm also not making that claim that without patents no one would create anything. I am making the claim that patents expand product availability and new product creation. Outside of a tiny number of fabulously wealthy philanthropists, no one will spend a billion dollars and a decade of time developing a life saving medication if they cannot expect to receive a correspon
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These days, there is an entire legal specialty to grind out patents that will get past the patent office and succeed in court but that do not actually describe the ''invention" well enough to replicate it.
Most of the crap that spews forth from the USPTO these days is trivial to reverse engineer and often was already known to others.
Ideally, a working patent system that reflects reality and actually has promotion of the useful arts as it's primary goal would be put in place. However, if that isn't done, next
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Re:What is patentable? (Score:5, Insightful)
No one believes that tired old bit of propaganda anymore.
Necessity is the mother of invention, not avarice.
This is the problem when you start treating creative work as "property". You get obscene rhetoric that implies that any restrictions on the virtual land grab is some sort of theft.
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What propaganda? That research is expensive? If your itch costs a billion dollars to scratch, you need a billion dollars to scratch it regardless of how necessary you feel it is to scratch.
Re:What is patentable? (Score:5, Interesting)
Sure it makes sense, you are sweating the implementation. You could for example charge a large up front Application Fee, that the bulk of it gets refunded if the patent is accepted, or not if it's rejected. Pretty simple.
You make the Rejected Fee large enough and sure as shit you'll see some commercial entities pop up that will pre-scan your patent for less than the reject fee, and make sure all the i's are dotted and t's crossed before they submit it to the USPTO (for a fee of course). This shifts the burden of dealing with junk patents to the free market, and increases the quality of patents the USPTO sees, and with the higher fees, they can even staff better, and now they have an incentive to make sure bad patents get rejected, and like all things, money is a great motivator.
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My kingdom for modpoints. This would actually work and be in line with capitalism in general. Hell the Republicans should be all over this becuase it does two things - creates more industry and reduces governmental interference of business
Re:What is patentable? (Score:5, Insightful)
Sincerely, I doubt it would work. First, you are adding yet another middleman, increasing practical costs and bureaucracy for no reason. Second, there is a huge incentive for the USPTO to reject things to cash the fee. Third, it would imply a process of appeal that will never be used by the little guy.
I mean, the end result might well be less patents, but the mechanism is equally flawed and a burden for those who should get one. I would love to see less patents around, hell, after reading this [ucla.edu] long paper on the topic I'm convinced no patents are needed at all, even for pharmaceuticals. But unless you abolish patents completely, you need some system that minimizes abuse.
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...and in the revolving door of free-market and government, there would never be any kind of collusion or bribery to make sure that a patent got through! Genius!
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Sure it makes sense, you are sweating the implementation. You could for example charge a large up front Application Fee, that the bulk of it gets refunded if the patent is accepted, or not if it's rejected. Pretty simple.
Actually, that's pretty stupid. Even if you make the cost of filing patents 10 times more expensive, this still won't be prohibitive to trolls who earn millions from abusing patents. For them it's just a little extra cost of doing business.
The small time inventor on the other hand is screwed. Even if they have zero doubt about legitimacy of their filing (which is in most cases impossible) they still won't be able to afford the collateral.
You just made everything worse for the good guys and the bad guys for
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No, it should be offloaded on to the applicants.
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More Money! [youtube.com]
Re:What is patentable? (Score:5, Insightful)
No, the President cannot simply change the rules about what is patentable. That would take an Act of Congress. Now if only Congress could produce some worthy Acts instead of sharpening their daggers for the next partisan attacks.
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Re:What is patentable? (Score:4, Informative)
The president can quite literally change the rules about what is patentable through an executive order, however, if that would stand up in court would be questionable. The fact that changing patent law wouldn't really go against anything in the constitution directly would probably hold a lot of weight. Of course, if the president is found to have overstepped his bounds, he can always be removed from office for it as well if the offense is big enough.
Re:What is patentable? (Score:5, Insightful)
No. The measures are going to be designed by same people who designed the current patent laws, and therefore will have the same goal: to enforce position of incumbent powerhouses against small disruptors.
Therefore patents will likely be allowed to use as a method of suppressing competition for big companies. However small company use of patents to defend and attack anti-competitive practices will likely be destroyed in the name of "defending against patent trolls".
The actual patent reform would take power from incumbent companies, and as a result will simply not happen.
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You are almost certainly right, about the motives as well as about the likely effect.
To this I may add, the submitter's bias (or complete lack of effort to present the NPoV) is clear in the blurb. Patent trolls are "disrupting competition"? Really? The whole point of the patent system is to disrupt the competition, by giving out almost life-time exclusive rights for implementing ideas. Yet patent lovers keep repeating the same nonsense: in their world, monopolies spur the competition.
Another piece of no
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I still wonder what effect it would have, to change law from "Assuming granted patents are valid" to "Assuming granted patents may be invalid". I mean, it will not solve that many problems, but it could solve the problems of patent trolls being granted legitimate force just from having the patent granted.
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No, because that would be idiotic and stupid. Having one person dictate what is and isn't patentable opens a huge can of worms that can hinder innovation because government cannot adapt to changes and innovations in other fields.
For example, let's say the current patentable stuff includes stuff for a carriage drawn by a horse, given the technology of
Re:What is patentable? (Score:5, Interesting)
> Having one person dictate what is and isn't patentable opens a huge can of worms that can hinder innovation
That is MORONIC.
The lack of a patent does not "hinder innovation". People can still choose to bring new products to market even if they don't get to benefit from a virtual land grab.
You're just repeating the same old tired megacorp propaganda.
Avarice is not the mother of invention.
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Avarice is not the mother of invention.
No it isn't. But it does help propel the invention out into the world. Many people invented something because of necessity. But then they sold it because they wanted to make money on it. Other people attacked problems, because they knew if they solved them they can make money off of it
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Having one person dictate what is and isn't patentable opens a huge can of worms
I think you're reading too much into what I wrote that isn't really there.
I am not talking about specific cases, I am talking about general principles and what the scope of patent protection should be. I have no problem with saying that, for example, patents should not apply to any information-based "invention" such as software, business methods, or scientific data. I also think it would be wise not to grant patents for any physical invention whose novelty is primarily or entirely in the information it embo
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Having one person dictate what is and isn't patentable opens a huge can of worms that can hinder innovation because government cannot adapt to changes and innovations in other fields.
You're saying that limiting patents or leaving the decision of what is and is not patentable to one person can hinder innovation? And you're talking about patents, a government-enforced monopoly over methods? That is simply too comical; it is patents that are disgusting, not the act of limiting them or making it more difficult for people to obtain them.
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The first, biggest issues of patent reform are:
The mechanics of patent reform are fairly obvious to everybody, once we
"reining" (Score:5, Funny)
"Reining", not "reigning". Think horses, not kings.
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Are you sure? This is the president of the United States we're talking about...
Re:"reining" (Score:4, Funny)
"aimed at reigning in certain patent-holding firms"
"Reining", not "reigning". Think horses, not kings.
Shirley you mean "raining".
Re:"reining" (Score:4, Funny)
I do not mean raining and don't call me Shirley.
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Oh, I don't know, some of the solutions applied to Kings might be well applied to patent trolls. Beheading would be a reasonable and modest solution to the problems they make.
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"aimed at reigning in certain patent-holding firms"
"Reining", not "reigning". Think horses, not kings.
The king reigns because he holds the reins.
But did you lose your loose change? And can you tow a line to where people can toe it?
Huh? (Score:2)
... and protecting consumers with better protections against being sued for patent infringement.
How's that new? I thought consumers were exempt from these type of lawsuits.
Should I have been reading patents before wasting money on my iPhone?
Re:Huh? (Score:5, Informative)
The you clearly haven't read the law.
Section 271 of Title 35:
(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
The "uses" part covers customers who have bought the infringing product. It is not common to go after the customers but it is legal and there are examples.
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... you clearly haven't read the law.
Why does that make me feel enlightened?
Re:Huh? (Score:5, Informative)
The you clearly haven't read the law.
Section 271 of Title 35:
(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
The "uses" part covers customers who have bought the infringing product. It is not common to go after the customers but it is legal and there are examples.
As an example of going after customers, see the story about patent trolls extorting money from business who use scan-to-email functionality [slashdot.org]. There are more recent stories on this subject, but this one from January is what I can find right now.
Re:Huh? (Score:5, Informative)
... and protecting consumers with better protections against being sued for patent infringement.
How's that new? I thought consumers were exempt from these type of lawsuits. Should I have been reading patents before wasting money on my iPhone?
Do you not remember that case of the people who "invented wifi" in patent form? They went around suing small businesses using wifi. They did an interview where they were asked "have you gone after any home users?" to which they replied "not at this point".
No one is safe from the reach of their filth. It's just that suing home users probably isn't profitable. I would be curious though as to what would happen if you acquired an obvious patent and tried to sue a politician with it
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I think you're confusing copyright and patent law. I'll admit that you might just be drawing an analogy, however.
OTOH, remember that the RIAA bought special laws that gave them the right to claim those huge damages. I'll grant that they were strengthened by (corrupt? stupid?) court decisions, but the older forms of the copyright law would not have enabled them to have a profitable business suing people.
The (corrupt? stupid?) court decisions that I'm aware of were the ones that allowed ephemeral copies to
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I would be curious though as to what would happen if you acquired an obvious patent and tried to sue a politician with it
The obvious would happen. You would lose, but it would probably not change much for the common guy. The main problem on your train of though is that you are expecting a rational, constitutional, response. Real life allows for solutions that are neither.
I'm not sure their the problem (Score:5, Interesting)
1) You don't need to produce a product to have a patent (think small inventors looking for partners).
2) Patents should be transferable (can sell them)
3) You can sue for infringement
Simple as that you can now have companies that buy patents and sue for infringement. I suspect the real issue is #2 - if they are non-transferable then the inventor will have to license them. I think there would still be some troll law firms that represent a pool of inventors, but they'd have to share the "profits" and I suspect it would be less of a problem.
Another issue is probably the duration - 20 years is a long time for a patent, but primarily they should not be transferable.
I would argue that they should not be transferable from inventor to employer either, but that's a bit off topic - short version: your employment papers might include automatic licensing of inventions to the company under some terms. The US does not recognize companies as inventors - and rightly so IMHO.
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The response to your proposal that patents cannot be sold: "Since I can't sell my patent to you, I'll just grant you an exclusive, lifetime license to the patent for any use for X dollars instead."
If you can license a patent, then it's effectively transferable, and no profit sharing needs to be taking place, nor could we expect profit sharing to act as a deterrent.
The real problem is that unpatentable items are being granted patents. Algorithms (and data, for that matter, such as genetic sequences, since th
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That we're even considering it "IP" is a (bigger) problem all its own.
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So in reality: Nothing will change (Score:3)
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Seems hollow. (Score:2, Interesting)
Re:Seems hollow. (Score:5, Informative)
How does first to file change anything for small inventors? If anything it makes it easier for them as they will likely not be able to prove their date of invention nor afford a costly legal battle to do so.
You do know it just means that if You and I attempt to patent the same device the patent goes to the first to file not to the first to invent right? If either of us disclose the patent first, like say publish some FOSS software, no one gets a pantent.
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The problem is that the people who rail against first-to-file are ignorant of what the system is. Many somehow think it means that prior art, etc. no longer apply when nothing could be further from the truth.
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Why would anyone think that?
That would be total insanity. I would go patent eating right now.
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I don't know why but many people here on Slashdot still think that no matter how often it is corrected.
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First to invent made sense a century ago when an inventor in California might need several days to reach Washington. It really doesn't make sense today.
neither makes sense (Score:4, Interesting)
If two people independently invent something, then I think it should be non-patentable by definition.
The whole point of patents is to make public information on how to do something *that would otherwise be lost*. If multiple people independently invent something, then it seems to me that it is not in danger of being lost.
If the only reason something is patentable is because nobody ever had that specific problem before, but the solution is obvious to an expert, then it shouldn't be patentable.
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If two people independently invent something, then I think it should be non-patentable by definition.
Here we go... That sounds about right... The mere fact that two people tried to independently patent something at the same time ought to be clear proof that there is enough out there that the patent ought to be rejected. I'd even go further, if it can be proved that a person independently invented the same thing years into the life of a patent without ever having heard of the patent, then the original should be revoked (because that would mean that the ability of the world has caught up and now can do said
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If two people independently invent something, then I think it should be non-patentable by definition.
Why? 2 people out of 6 billion come up with the same idea, so it must not be novel? Of course not, that is just stupid. The idea isn't that you should be the only person in the world ever to figure out to solve a problem. Just that not very many other people can or have.
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First to file is bad for the little guy, because the little guy doesn't have a legal team standing ready to churn out a patent. Assume a guy in his garage and an employee at a big corp invent the same thing. The guy at the big corp invents it a little after the guy in his garage. The result will be that the big corp gets the patent, because they will be mu
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What exactly is wrong with first-to-file? The rest of the world uses it just fine. Do you even know what the first-to-file means? First-to-file is just the way its decided who a patent goes to if muliple parties try to patent the same thing. Why you rail against the change is bizarre but sounds like your one of the many idiots on Slashdot who misunderstand the concept. Also, you should be all for the change since it also briught along an increased scope of what can be used as prior art to invalidate a pate
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If multiple separate parties all try to patent the same thing, then the idea was too obvious to be patented in the first place.
You say that, but exactly this situation has occurred with inventions as original and important as the telephone (1876) [wikipedia.org].
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Clearly then the telephone wasn't nearly as novel as you would like to have us all believe.
The idea of the lone inventor also feeds into the idea of the benevolent dictator or Robber Baron in the style of Any Rand. The idea that the little guy exists in isolation from the state of the art also allows for granting the "captain of industry" far more power and influence than he deserves. Apply to the "corporate person" if no obvious figurehead is available.
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If multiple separate parties all try to patent the same thing, then the idea was too obvious to be patented in the first place.
You say that, but exactly this situation has occurred with inventions as original and important as the telephone (1876) [wikipedia.org].
Yes and because of that the government spent more then 100 years suing AT&T for antitrust violations. Until finally AT&T agreed to diversify.
Now we are still dealing with AT&T as a large entity though it is mainly over internet.
Note to patent trolls (Score:1)
Better not mess with the WH and Capitol Hill staffers' iPhones and Androids.
Unfortunately, the likes of Nathan "See I'm a geek like you" Myrhvold are too smart for that.
This could get interesting: (Score:1)
Can't Obama just drone-assassinate patent trolls?
Good ... (Score:2)
Allowing customers to be sued for patent infringement has always struck me as stupid.
If I buy a product from a vendor, and *they* infringed on a patent, there's no way I should be in a position to get sued by some asshole who thinks he owns a patent on a "system of connecting two machines with a network".
Even more so if the product is something I bought at a retail store -- if I can walk into Wal Mart and buy it, and you think that infringes on your patent, take it up with someone else. NMFP.
Re:Good ... (Score:5, Insightful)
If he can ignore the 4th amendment, occasionally the 1st amendment, and target citizens for assassination why should patent law be any different?
When I buy something, I do not enter into a license with everyone who owns a patent on every aspect of what I buy. I buy a friggin' product -- the pissing contests aren't my problem.
Like I said, by the time I can walk into Wal Mart and buy something, you need to indemnify the consumer. Because at the check out, there isn't a place where I initial a license with some company I've never heard of. If the vendor isn't compliant, well, that's their problem.
Good (Score:2)
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Apple makes almost all of its money selling product, not through patent threats. Pretty much the opposite of a patent troll.
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No, this is what patents are for. You spend a lot of time and money inventing something, you start selling products based on that invention, someone else uses your invention to sell his own product, you sue. We may not agree with Apple on the validity of the patents, but that's irrelevant.
The "nice" name for a patent troll that the lawyers use is a "non-practicing entity." Apple practices, not a troll, just an overly-litigious company.
Coporate Policy Stifling Innovation Also (Score:5, Interesting)
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The policy of deliberate ignorance also destroys the entire point of the Patent system to begin with.
Patents exist to encourage the disclosure of interesting trade secrets so that everyone can benefit from them. If everyone is scared away from the patent database, then those patents really have no legal basis to exist.
The same goes for patents that are useless as documentation.
Every creative work is meant to be "pirated" sooner or later.
Ah, the hazards of skimming (Score:2)
The plan includes five executive actions...
Me: Whoah...that's a bit harsh, don't you think? I'd think we can get by with a simple public caning, maybe some time spent in the stocks...
Things I would do to fix the patent system (Score:2)
1.Make it illegal to send any infringement notices or "you have violated a patent we own" notices unless the notices contain details of exactly which patents are being violated.
2.Make it harder to get an ITC injunction order by requiring the patent holder to provide more proof that not granting the order will cause irreparable harm.
3.Introduce an "enforce it or loose it" system for patents which prevents patent holders from waiting to sue until they think they can get more money from a violation (e.g. waiti
Primary source (Score:1)
Re:serious patent question (Score:4, Funny)
Just call it "System and Method for use of a Combination of Reciprocating Frictional Motion and Visual Stimuli for the Production of Half-Sequence Genomes in a Saline Solution."
They'll approve that in no time.