I wonder, is there still someone who believes that patents are protecting the small inventors and companies?
At least in the software and IT business it seems (it is clear to me) the other way around. Patents are protecting the incumbents and big companies, who can afford legal experts to defend themselves.
It does nearly never protect small inventors and small companies. In the current time of big lawsuits and big money for lawyers, big is what succeeds. Small companies either:
- can not afford to patent everything they do
- can not afford to find potential infringing companies
- can not afford patent lawsuits
Even when they patent, and even when they know, that some other company infringes their patent, they just are not able to take the risk of patent lawsuits. In the case of a big other company it also can be the same as suicide. There is an anecdote, that one big company (everybody knows) send their patent lawyers to a small company, saying, they are infringing their patent X. The small company proved to the lawyers, they did not. But those hard-boiled lawyers just said: Look, we have X-thousand patents. We will find many others, you infringe and sue you, unless you pay us now for this patent! They paid, of course!
The patent system has become like highwaymen -- many see the big money without effort -- and it is. Those that are robbed, oftentimes are the real creative persons. And so, the patent system just has become the opposite to what it pretends to be. And of course, patent-attorneys, lawyers and even politicians defend a corrupted system, because they benefit from it.
Best example is Bill Gates: In his early time he stated, that patents on software would harm the software industry. Today he is one of the biggest proponent of the system, since his company today is big and he things it would profit from it. But in the end, even for M$, I doubt.
I certainly don't. Worse, I don't think that what is currently labeled as 'patent trolls' is the worst aspect of software patents.
It's the huge tech companies which have amassed and keeps on amassing broad software patents which is the real problem.
The only reason we are actually seeing some legal action being taken against 'patent trolls' (i.e non-practicing entities) is because they are a nuisance to said huge tech companies.
Meanwhile these tech giants will use software patents to stifle / destroy competition instead of competing in the open market, you don't need to look any further than Microsoft and Apple's patent suit against Google which they are doing through third-party patents they bought specifically for that purpose, to stifle a competitor with which they can't compete on the open market through the value of their products.
Now Google is a massive company themselves and has the funds to atleast mount a proper defence (not that it will matter in the first instance as Microsoft and Apple chose East Texas as it's venue), but if you are a startup you have zero chance against these tech giants when they come knocking.
They can afford to drag this through court for ages, you most likely can't, and even if you could and if you won, they could most likely simply choose another patent from their arsenal and go after you again.
I do not speak for the (small) company I work for in any official capacity, so I will not go into the details. But we have quite a few patents, and they have been useful. There is considerable risk in coming up with a new idea and launching it in the market; a risk that a small company cannot afford to get wrong too many times. There is the risk of failure, and then just the opportunity cost of having your small team work on project A vs project B.
If our work was unprotected then larger companies could just sit and watch the small companies try, and then swoop in and take over the market if the idea is valid and the market is there. Recall that Microsoft received the "evil" moniker (which I don't really agree with, btw) in part because how often they did exactly this.
Sure, there are all kinds of injustices and inequalities in the system; I do not argue the system is perfect, nor do I suggest that I have any idea how to improve the system. There is value, however, in rewarding a company that takes risks and generates new ideas. Perhaps that value is overshadowed by the value destruction by patent trolls, I don't know (would have to see the numbers). But it is a value.
There are a few different reasons I do not agree with this comment. For one, I refuse to subscribe to the idea that it's OK to run away from the problem and let patent trolls win by default. I'm the kind of person that stands up for what they believe is right, and thus I would prefer to stand and fight a patent troll. I applaud the organizations out there that are taking a stand (NewEgg, Rackspace, etc). You win some, and you lose some, but in the end I think it's important that people take a stand for what they believe is right. Another reason I do not agree relates to fragmented markets/laws outside of the US. While I think many will agree that the US Patent System has many problems, the one thing it does do well is remain consistent. When you look at the landscape outside of the US, it becomes very fragmented and inconsistent. You may or may not have rights. You probably won't get sued by a patent troll, but you might get ripped off. As an example, consider the Samwer Brothers and their approach towards respecting intellectual property. Granted, this is the other (extreme) end of the spectrum, but it's something to consider. So while the US System does have some problems, there are also some positives that can actually work in your favor. My takeaway from the entire issue; Do your own due diligence. I'm not a Lawyer, but I do know how to search the USPTO Database for Prior Art. It's not rocket science, anyone can do it. If you are a founder, and you are worried, spend some time researching it. I recently made a pretty major UX change to one of my projects based on this advice. I identified a (Microsoft) patent that related to what I was building, and I made sure that my upcoming product does not infringe. Of course one cannot be expected to catch all prior art, but I believe it should still be included in the process at some level.
It's for this reason I'm abstaining from opening up any company in the US and sticking to Europe until the patent trolls are reined in. I can imagine many foreign-born entrepreneurs are now taking the same approach, especially as the number of lawsuits appears to be increasing (800 vs. 2,900 small firms sued in 2005 [0]) with a further ~100,000 receiving letters from patent trolls demanding payment in a single year.[0]
Well, that's an interesting question... Would a company be any better off incorporating in hong kong or something when it comes to patent disputes? I've been looking into this for various reasons already...
How about a foreign corp that owns the IP (which a patent troll may at some point arbitrarily claim was infringing) licensing that IP to a US-based corp. Is the US-based corp exposed to any liability? Probably? Maybe?
The patent system is broken. There should be some restrictions where a company cannot make money from suing based on a patent without them actually producing the product themselves. That way you know that the people owning the patent at least are capable of making what they have a patent for. If that is not the case then they should expedite the expiration of the patent where they would loose it in a certain amount of years if they were not able to produce that product in that time.
The patent is meant to be a legal monopoly for outstanding innovations for a set amount of time, not as a revenue models for lawyers.
Which proposal from your first paragraph is going to ensure outstanding-ness of inventions? I recall company lawyers making the rounds asking us to write down any possible inventions among the things we'd already built. I don't remember the lawyers ever asking whether those possible inventions were outstanding.
What happens if a claimed outstanding innovation is not seen as outstanding by the majority, leading to the innovating entity running out of money and closing down, and then someone realizing the true value of the invention five years later (and reaping monetary benefits of it)?
I think we should simply abolish software patents.
Software engineering simply isn't a deep field, and most interesting ideas are not really inventions in the same way that a new hardware device might be. Sure there are some interesting and cool patents like SURF and SIFT, but they are a tiny minority.
Just out of curiosity, are start ups in other countries like Canada and Europe subject to patent trolling as well or do patent trolls avoid suing outside of America?
Won't help immediately, probably won't help much anytime soon. But the network effect has to start somewhere, and at least joining now commits startup to doing right thing.
Perhaps an oversimplification, but what would be the ramifications if patent law was altered to cover the inventor (or inventing body) _only_. "Prior art" becomes unpatentable, and the only legal argument occurs when there is a dispute about shared IP.
Would this effectively eliminate patents-as-a-business model, and still protect inventors who create _new_ ides, be they physical or digital?
But that's what a patent-troll is for: Being paid. They are like highwaymen, they want to be paid, for what, is not important. If the money is OK, they will even go on their own kind.
The global move to "first to file" seems basically an admission that the patent system is completely ideologically bankrupt and is nothing more than regulatory capture for cutting-edge industries and a jobs program for lawyers.
The paper matters more than the invention. What a world.
[+] [-] tehabe|12 years ago|reply
At least in the software and IT business it seems (it is clear to me) the other way around. Patents are protecting the incumbents and big companies, who can afford legal experts to defend themselves.
[+] [-] PythonicAlpha|12 years ago|reply
- can not afford to patent everything they do - can not afford to find potential infringing companies - can not afford patent lawsuits
Even when they patent, and even when they know, that some other company infringes their patent, they just are not able to take the risk of patent lawsuits. In the case of a big other company it also can be the same as suicide. There is an anecdote, that one big company (everybody knows) send their patent lawyers to a small company, saying, they are infringing their patent X. The small company proved to the lawyers, they did not. But those hard-boiled lawyers just said: Look, we have X-thousand patents. We will find many others, you infringe and sue you, unless you pay us now for this patent! They paid, of course!
The patent system has become like highwaymen -- many see the big money without effort -- and it is. Those that are robbed, oftentimes are the real creative persons. And so, the patent system just has become the opposite to what it pretends to be. And of course, patent-attorneys, lawyers and even politicians defend a corrupted system, because they benefit from it.
Best example is Bill Gates: In his early time he stated, that patents on software would harm the software industry. Today he is one of the biggest proponent of the system, since his company today is big and he things it would profit from it. But in the end, even for M$, I doubt.
[+] [-] gillianseed|12 years ago|reply
It's the huge tech companies which have amassed and keeps on amassing broad software patents which is the real problem.
The only reason we are actually seeing some legal action being taken against 'patent trolls' (i.e non-practicing entities) is because they are a nuisance to said huge tech companies.
Meanwhile these tech giants will use software patents to stifle / destroy competition instead of competing in the open market, you don't need to look any further than Microsoft and Apple's patent suit against Google which they are doing through third-party patents they bought specifically for that purpose, to stifle a competitor with which they can't compete on the open market through the value of their products.
Now Google is a massive company themselves and has the funds to atleast mount a proper defence (not that it will matter in the first instance as Microsoft and Apple chose East Texas as it's venue), but if you are a startup you have zero chance against these tech giants when they come knocking.
They can afford to drag this through court for ages, you most likely can't, and even if you could and if you won, they could most likely simply choose another patent from their arsenal and go after you again.
[+] [-] RogerL|12 years ago|reply
I do not speak for the (small) company I work for in any official capacity, so I will not go into the details. But we have quite a few patents, and they have been useful. There is considerable risk in coming up with a new idea and launching it in the market; a risk that a small company cannot afford to get wrong too many times. There is the risk of failure, and then just the opportunity cost of having your small team work on project A vs project B.
If our work was unprotected then larger companies could just sit and watch the small companies try, and then swoop in and take over the market if the idea is valid and the market is there. Recall that Microsoft received the "evil" moniker (which I don't really agree with, btw) in part because how often they did exactly this.
Sure, there are all kinds of injustices and inequalities in the system; I do not argue the system is perfect, nor do I suggest that I have any idea how to improve the system. There is value, however, in rewarding a company that takes risks and generates new ideas. Perhaps that value is overshadowed by the value destruction by patent trolls, I don't know (would have to see the numbers). But it is a value.
[+] [-] nova|12 years ago|reply
If that were true we wouldn't have any patent system at all.
[+] [-] sergiotapia|12 years ago|reply
[+] [-] shawnreilly|12 years ago|reply
[+] [-] kintamanimatt|12 years ago|reply
[0] http://arstechnica.com/tech-policy/2013/09/op-ed-how-patent-...
[+] [-] dave_sullivan|12 years ago|reply
How about a foreign corp that owns the IP (which a patent troll may at some point arbitrarily claim was infringing) licensing that IP to a US-based corp. Is the US-based corp exposed to any liability? Probably? Maybe?
[+] [-] us0r|12 years ago|reply
[+] [-] Cort3z|12 years ago|reply
The patent is meant to be a legal monopoly for outstanding innovations for a set amount of time, not as a revenue models for lawyers.
[+] [-] nimble|12 years ago|reply
Which proposal from your first paragraph is going to ensure outstanding-ness of inventions? I recall company lawyers making the rounds asking us to write down any possible inventions among the things we'd already built. I don't remember the lawyers ever asking whether those possible inventions were outstanding.
[+] [-] alok-g|12 years ago|reply
[+] [-] yetanotherphd|12 years ago|reply
Software engineering simply isn't a deep field, and most interesting ideas are not really inventions in the same way that a new hardware device might be. Sure there are some interesting and cool patents like SURF and SIFT, but they are a tiny minority.
[+] [-] phalina|12 years ago|reply
[+] [-] mlinksva|12 years ago|reply
Won't help immediately, probably won't help much anytime soon. But the network effect has to start somewhere, and at least joining now commits startup to doing right thing.
[+] [-] lxmorj|12 years ago|reply
[+] [-] bsg75|12 years ago|reply
Would this effectively eliminate patents-as-a-business model, and still protect inventors who create _new_ ides, be they physical or digital?
[+] [-] SheepSlapper|12 years ago|reply
...Right?
[+] [-] PythonicAlpha|12 years ago|reply
But that's what a patent-troll is for: Being paid. They are like highwaymen, they want to be paid, for what, is not important. If the money is OK, they will even go on their own kind.
[+] [-] unknown|12 years ago|reply
[deleted]
[+] [-] chaostheory|12 years ago|reply
[+] [-] altrego99|12 years ago|reply
[+] [-] cheesylard|12 years ago|reply
[+] [-] wissler|12 years ago|reply
http://en.wikipedia.org/wiki/First_to_file_and_first_to_inve...
[+] [-] Pxtl|12 years ago|reply
The paper matters more than the invention. What a world.
[+] [-] drderidder|12 years ago|reply