Bill Takes Aim At Patent Lawsuit Stupidity > Holding companies are the problem....

reply to grantwal

Re: Holding companies are the problem....

The interesting thing is that most of us would agree on who a patent troll is if we posted the facts of a case. When you try to define it with precision, the troll can tweak a few settings to get to the other side of the demarkation point. It then takes years for Congress to regroup.

Congress has dealt with other similar problems by delegating the rulemaking authority to agencies to change the criteria to deal with adaptive system abusers. For example, designer drug laws allow the DEA to ban new drugs that have certain properties even though they are not listed by name. This stops drug dealers from creating slight variations in drugs to slide around the rules. Similarly, the IRS can do this with tax structures. When people suggested a similar proposal to deal with assault weapons, people went ballistic.

If you look at many of these patent trolls, they operate out of offices the size of a shoebox (rarely a mailbox), in the Eastern District of Texas, are fully owned by lawyers who make their living representing these corporations. Since corporations are separate legal entities, they can collect attorney fees. (Someone representing themselves cannot).

My thoughts are as follows:

*We stop the trolls from getting attorney fees from the other side by allowing the court to peer through the structure and make an economic reality based test whether the lawyer and the business are largely overlapping;

*We create a special patent/copyright enforcement court that is designed for virtual litigation (appearance by teleconference, fasttracked discovery), etc.;

*We create a fast tracked first stage of litigation with limited discovery (to stop abusive discovery aimed at burdening the defendant);

*We allow damages to mitigated by proof that the infringment was untintentional and the product of good faith patent research. If the infringment is unintentional, we can offset the damages by proof of what the cost and reduced sales would be to go forward with alternate non-infringing technology. For example, Samsung quickly reworked their phones to deal with some of Apple's patent claims. In a judgment issued for an infringement, the jury should be asked to determine how many more phones would have been sold because of the infringing similarity than if the product had come to market with the non-infring interface;

*If the infringment is innocent (see above), compulsory licenses can be calculated with reference to industry standard fees with some multiplier, e.g. no more than 2.5 times what the factfinder believes comparable licenses were granted for;

Special rules should be put in place for probable trolls. I believe that the Justice Department or the Patent Office should be empowered to promulgate rules defining the ever changing characteristics of a troll and that Congress should identify the criteria with a broad brush. Trolls could further be limited to only collecting X times what they originally paid for the patent.

reply to Goober
I would argue that your gene machine and all the patents in-between should not be granted until you have a working model. Your idea, regardless of how well you or a lawyer or an engineer can put it down on paper is nothing but a dream until you actually have something tangent that can do what you "think" it can do.

Yes, I would say concepts, theories and hypotheticals should not be patented even if they can be proven with mathematics and physics unless you have a working model.

If in the process of making the gene machine you create something else (the in-between) then that should be patented on its own merit.

Software along with their processes and results which are the end product of software should NEVER be patented for any reason. It is code and should be copyrighted. This would and should allow others to create the same end results, but require they write their own code for doing so.

reply to stufried

I don't think any of this is easy and the twenty minutes I put into my post is no substitute for carefully thought out legislation. I also know that everytime major litigation passes it takes years of litigation to sort out. Lastly, I know that every law has unintended consequences. One reason I suggest implementation of the law through regulations was to permit a more dynamic system to deal with problems on both sides. Consider my suggestions talking points. Perhaps someone with more skills in this field than I can take the ball and run with it.

reply to Goober
Software patents only exist to provide something to sue people over. A good example is the constant rounds of bullshit in the smartphone industry.
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[65 Arcanist]Filan(High Elf) Zone: Broadband Reports

reply to Goober
I'm not sure I am seeing a valid argument for or against anything I said beyond your seizure one, which I would say no to if it is software based. Hybrid solution would result in the hardware being patented and the software being copyrighted exclusive of one another.

The method you got it to work with software is copyrighted and cannot be reproduced, but the end result is what you really want to patent (no seizures because of your software) and thus you want to restrict anyone else from "innovating" even better software to accomplish the same goal without paying you first. We could extent this to say once someone comes up with any concept for an end result and patents it, then nobody can do anything to come up with that end result without first paying the patent holder. One example of this that comes to mind is the One-Click shopping cart patent.

Your first point, that it has been that way for years, is kind of silly. Blacks use to be owned and women couldnt vote. I am pretty sure we are better off now because we didnt have people sitting around saying.... it's been that way for years so we cant change it. The system is clearly broke and I would argue one of the main reasons it is broken is because concepts and theories are patented too much.

reply to Goober
But wait... didnt you already say your software is copyrighted and thus can't be stolen? So what is it you are scared of?

Are you also saying that nobody else can come along and innovate a better implementation on "your" hardware by writing better software?

reply to Skippy25
Unless you know the history of patent filings, you have no basis on which to call my assertion silly. Read up a little on the case law and history before making comments like that.
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No more corruption, lying and unremitting stupidity by Obama. Impeach the clueless, anti-business, socialist now.

Really? You are saying because it has always been that way so we can't change it is silly regardless of history and my lack of knowledge concerning patents.

Case law or not. It can be changed with laws being enacted by Congress.

READ the history. Constructive reduction to practice has NOT always been that way. I'm done with you.

reply to stufried

That is true.
This bill wont fix the real problem allowing companies to patent vague ideas and concepts with no working product or allowing them to patent an idea that the computer world already does and knows about.

Tivo invented nothing. They made a product off prior ideas that were common knowledge, but were just the first person who filed paperwork as they had the money to do so.
Tivo makes a product, but they are also a patent troll using patents they never should have received to stop competition.
Just because you manufacture the product does not mean you are not a patent troll.
Microsoft, samsung, apple all patent troll (partly because they need to be able to retaliate against each other.)

You people are nuts. I'll leave you all to blather on about things of which you have no clue.

reply to Oh_No

dupe post

reply to Oh_No

Re: Holding companies are the problem....

reply to Morac