This is a great idea. If you want to demonstrate just how much software patents suck, you need to be able to point out examples. Yet I've seen many people who try to do so get shutdown with remarks like "you're not a lawyer", "you don't understand patent claims", "if you read this in a Lawyer-Approved Fashion (tm) it turns out this IS a good patent claim", etc. It'll be a lot harder to dismiss examples of shitty patents if their shittiness is endorsed by the legal expertise of the EFF.
Is there a patent review person in charge of the patent at the PTO? That is, is there a name of a PTO person that we can attach to these to say "John Doe approved/accepted/submitted on behalf of... this patent?" If so, I would like to see EFF attach the name. Maybe public ridicule will make them a little more careful.
Wow, this a thousand times. It's so incredibly frustrating to have discussions about stuff like this with people who don't have the same knee-jerk mistrust of the patent system that I do. I'm not saying my reaction is right, just that it'll be nice to have something to point too and say "told ya so...". Of course, the people I know who don't think that the patent system is broken are probably the people who don't necessarily know/trust the EFF.
Many (most?) people believe in authority more than they believe in explanations. They watch TV everyday, and TV displays a tremendous amount of authority (all those expert guests in suits).
"Patents sucks" is a contrarian opinion in this environment. Without a proper-looking authority to back that up, no amount of explanation will ever convince those people. They will just assume there "must be a reason" for this, even if they don't understand it.
The alternative is to teach them how to think. This will take time.
For a story to appear on HN's front page, you need perhaps a few dozen upvotes. For a patent to be approved, years are spent examining it.
If a bad story hits HN, it's gone within the day. If a bad patent is issued, it can be used to extort millions of dollars out of people who are doing useful work.
The situations aren't glibly comparable. Every bad patent can cost millions of dollars. This isn't a system where we as a society should permit a high false positive rate.
In this situation, a high enough false positive rate, as evidenced by bad patents like these, can make it such that the cost of the system outweighs its value, such that a rational society would abolish it if there were no workable means of correction.
That aside, I note that the patent bar tries to spin the patent lawsuit revenue as being the value of patents, rather than the cost, so I suppose entrenched interests will continue with that line.
It's more like a day or two are spent actually examining any case in general. It takes so long because a) it has to (there is an 18 month period between submission and publication) and b) there are a lot of patents and the queue is long.
Also you've asserted there is a high false positive rate, but I would put money on the fact that the rate is extremely low. Like people having a fear of flying because they see news reports about all the accidents, the realite is the chances of a patent getting through or you dying on in a plane crash are miniscule, but successful flights and genuine inventions are rarely worth writing about.
I guess it depends on what one's of "high" is with respect to false positives. I think he's arguing that the costs associated with these false positives are such that even an "extremely low" absolute number (like one in a thousand) is unacceptable.
Consider, for example, if airplanes carried tens of thousands, rather than hundreds, of passengers. Then our acceptable false positive rate may change by an order of magnitude.
> even an "extremely low" absolute number (like one in a thousand) is unacceptable.
Like herd immunity in epidemology?
The really large corporations are mostly immune, because they have the resources to fight the disease from the carriers. Everyone else is subject to ill effects. With luck the carriers die off before they can infect the non-immune population.
When you get more carriers, the spread of the disease increases exponentially.
In case of patents we see two things playing out at the same time: the race to get more bad patents issued, and more actors trying to abuse the existing ones.
The herd immunity is long gone, and everyone suffers.
Exactly right. If 1% of 100 patents are bad, there's 1 bad patent out there. If 0.001% of 100,000,000 patents are bad, you have 1,000 bad patents and the problem is 1,000 times worse due to scale, because you only got a thousand times better and you needed to be a million times better to keep pace with the problem.
And no, you can't sensibly distribute the costs of that across the population in a case like this. Patents can be asserted against everyone independently, so a larger population makes things worse, no better, as it gives trolls more victims, rather than distributing the cost. It's not as if patent litigation is over for a patent once they've sued one person (though it is interesting to imagine a model where a patent might be 'exhausted' once the holder collected 'enough' money through litigation).
No. Exactly by providing examples which are explained clearly, one can argue that the system is broken if it passes such examples through. Saying that it's broken with theoretical explanation is not enough. Practical examples demonstrate what is broken.
I am not sure if it will result in any real change, if anything it may deflect criticism as it gives far too many a cheap out; slacktivism is common amongst sites like this one where angst and such is acted out but results in very little actual change. The resulting discussion becomes the extent of effort most will put forward, nodding of heads and screams of me too.
There are many similar sites raising issues that are important to society but the result seems to be the same, people come to blow off steam and get sated.
It might be fun if the EFF could post a threshold for investigating patents, perhaps taking suggestions and pricing it. Let people buy the patent shaming. I know they take blanket donations but targeted ones might get more people interested. Sally Struthers style, for only a one time donation of, we can expose a patent.
> I am not sure if it will result in any real change
Policy makers might be somewhat burdened by pure abstract arguments about how broken the system is, or not give them enough thought at all. Providing such clear examples helps them to make educated decisions and convince others as well. So I definitely see a value in such articles.
Do you honestly think that it even possible that examiners spend years examining cases? I can tell you with 100% certainty they do no, and the cost to the tax payer of doing so would be astronomical. Most bad patents are rejected, but you never hear any news about that do you? Selection bias is clearly at play here, and only idiots would think that examples of a few poor partents are evidence the system is broken. There are definitely issues with the system, but the system is not completely broken as some who have no knowledge of the issue would have you believe.
If Jefferson had any idea of what the current patent system would look like and how little it had to do with bringing to bear really novel inventions with high social value (compared to being mostly a rent seeking mechanism used to make a quick buck via iffy, vague claims on all sorts of obvious ideas), I'm absolutely certain he would never have allowed for the creation of the system on his watch.
> Do you honestly think that it even possible that examiners spend years examining cases?
It would be silly to suppose that they spend the entire time in examination. That's why it should be obvious that I think they have ample time to correct their mistakes.
You do have a point insofar as the entire "game" of patent grants is rigged, such that the examiners are graded on how many patents are processed, while the examinees are allowed to resubmit filings as many times as they like until they pass (subject to fees, of course).
That's demagogy. Completely or not completely is irrelevant. If it's passing through tons of patents like that and doesn't provide adequate means to prevent patent abuse - it requires a thorough reform. Those who claim that the system is not broken want to keep the status quo, because they benefit from the junk patents and patent abuse.
Uh... what? I think the claim that the system is not completely broken is very fair. If you want to prove it wrong, show that 90%+ of the patents are junk.
> Completely or not completely is irrelevant. If it's passing through tons of patents
It doesn't matter which patents pass, what matters is which absurd patents go to court and win.
So, let's see, how many court cases have we seen this past decade where absolutely absurd patents ended up winning in court?
Don't get me wrong, I think the system has problems, I just don't think it's broken and needs to be completely abolished.
We need to find a way to eradicate patent trolls and there are a lot of potential solutions to this. For example, if company A acquires company B, then company B's patents become void and null unless A can prove these patents are applicable to its business. Blam. All patent trolls vanish.
Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
> Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
Eliminating patent trolls would eliminate that problem for large corporations, although it would still cost them million of dollars to apply for patents solely to cancel out others' patents through cross-licensing. Start ups are even more screwed because all of the large incumbents still each have a huge arsenal of broad software patents and can bury any software start up in litigation who tries to compete with them. This also makes having a software patent essentially useless for a start up because any attempt to assert it against an incumbent would only result in counterclaims and ruinous litigation costs. The idea that a small practicing entity can realistically assert a software patent against a large tech corporation is beyond belief. And that's before you even consider the six-figure cost of paying lawyers to get a patent through the patent office, which then generally isn't even issued until the technology at issue is either obsolete and disused or so common and ingrained in the status quo that issuing an effectively retroactive patent on it without prior notice to those who have since adopted it is inherently unreasonable.
Software patents are fundamentally useless and should be abolished.
If you will excuse my directness, all of these arguments come across as 'it isn't fair that they're bigger than we are.' If large incumbents didn't have broad software patents to bury start-ups, they would use their market coverage. If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence. If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground.
Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform. That's what we need (in many more systems than patents as well; education, I'm looking at you).
Life isn't always binary. There are more answers than all or nothing.
> If you will excuse my directness, all of these arguments come across as 'it isn't fair that they're bigger than we are.'
Fairness has nothing to do with it. It's obvious that large entities have more power than small entities, but that's hardly an excuse to give them more. Especially when the argument being made is that it will help small entities which it empirically does not.
> Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
There should be corollary to Godwin's law that anyone who describes the tech industry as the wild west automatically loses the argument. There are no gunslingers here. You've already listed plenty of reasons why Microsoft is not going to be felled overnight by some startup in the absence of software patents.
> Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform.
There is nothing to reform. The essential failure isn't in the specifics of the law, it's in the concept of patenting what is fundamentally information. Under the same law the patent system works largely as it's expected to in the pharmaceutical industry or the auto industry. It fails spectacularly in the software industry because software is not supposed to be patentable subject matter.
"If large incumbents didn't have broad software patents to bury start-ups, they would use their market coverage." I'm not sure what you mean by market coverage but if you mean their incumbent product then that's exactly what a startup usually seeks to disrupt (successful or not this is the challenge the startup is taking on anyway).
"If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence." In a way this is exactly what the current patent system accomplishes. Except it's through litigation, not legislation (but it's legislation allowing for the grounds of litigation).
"If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground." Now you're just being absurd.
"Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous." What we have now is a wild-west scenario where submarine patents and overly broad patents allow trolls (and even practicing entities looking to squash competition) can simply litigate at will and the costs of defending overwhelm their competition (unless they're equally large or play the same game with cross licensing patents).
You are a small businessman. You get a letter demanding $5000 because you are infringing on this stupid patent. How often would you choose to spend $1M or more to fight the patent? Don't you see how ludicrous your test for correctness is?
"Not perfect" means broken, since such cherry picking can easily pile up to hundreds and thousands like EFF said in the post. There is no doubt about the amount of bad patents. Demonstrating what is bad is however very useful.
I don't know what system you have in mind to replace software patents, but I'm pretty sure it won't be perfect either, which, by your own definition means that your solution is just as broken.
Surely we can agree that "not perfect" is not equivalent to "broken"?
Yes, it's hard to make a perfect system, because it's not easy to define what should not be patentable (since it's broader than just software and criteria should be more generic to be applied well). Declaring software unpatentable can solve part of the problem, but it's not a generic solution, rather a workaround.
However it's clear that banning software patents at least would already improve it. I.e. such workaround is better than the current level of broken.
A single patent can bring a business to its knees or stifle a whole potential new industry. When it comes to patents, "not perfect" means "very broken".
For example, a startup with hardly any funding comes up with a very innovative idea to tackle a problem, they start working on it with very little funding. Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
What's the incentive for the next innovators to create a startup in such conditions?
"What's the point of trying to create something novel since Facebook or Apple will just copy us and crush us".
Even if the startup had the patent, it is unlikely they would have the millions it would take to enforce it against Facebook. Far more likely the opposite. Facebook collects hundreds of patents and uses rotten lawyer tricks to avoid ever competing with startups bringing real innovation.
> Even if the startup had the patent, it is unlikely they would have the millions it would take to enforce it against Facebook
They wouldn't have to, it's much cheaper and faster for Facebook to just acquire them.
Make no mistakes: whenever you read in the news that Big Company just acquired Small Company, a lot of this is justified by the patents that Small Company filed. It is much faster and cheaper for Big Company to acquire that company, its patents, its team and its products than spending years in court suing them.
> It is much faster and cheaper for Big Company to acquire that company, its patents, its team and its products than spending years in court suing them.
Which is why software patents are so useless! Big Company needs a team and code, and it gets the product to market faster to buy the team who has already written and tested the code than to pay a new team the same money to write it again. Meanwhile the patent is useless because the cost of ligating a patent claim is an inconvenience for Big Company but a mortal danger for the startup.
> a lot of this is justified by the patents that Small Company filed.
That's bunk. It can happen that companies are acquired for patents. But the above was the case when it's acquired for technology. That's a very different thing.
Yes, it usually goes something like "take our excellent acquisition offer of be sued to bankruptcy for this fine collection of patents you've infringed". (Decent offer / 10)
> Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
That makes an assumption that software patents should be used for preventing others from "grabbing the idea". That's invalid. You can protect your software with copyright, or for example make it open and ensure contributions from derivative works with copyleft. But to be competitive one doesn't need software patents which cause all kind of crooked damage.
> Not really: you don't condemn an entire system by pointing out individual bad examples of it.
To prove that software patents are bad, it is necessary, but perhaps not sufficient to point out bad examples. Then again I never said the only way of condemning the patent system was through examples?
And I don't think your comparison is in any way fair, but to address your point: if HN's quality vs quantity ratio dipped significantly then there would be calls to reform the submission and peer moderation system as well since HN would start to lose visitors over it. In fact constant reform is exactly how most of the top sites have managed to stay relevant in the fickle online world.
