Linked by Thom Holwerda on Tue 4th Jun 2013 12:45 UTC
Legal Ah, patents - the never-ending scourge of the technology industry. Whether wielded by companies who don't actually make any products, or large corporations who abuse them because they can't compete in the market place or because they're simply jerks, they do the industry a huge disservice and are simply plain dangerous. According to The Wall Street Journal (circumvention link), president Obama is about to take several executive actions to address patent trolls - which may seem like a good idea, but I am very worried that all this will do is strengthen the positions of notorious patent system abusers such as Apple and Microsoft.
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RE[4]: Wait, what???
by Nelson on Tue 4th Jun 2013 18:56 UTC in reply to "RE[3]: Wait, what???"
Nelson
Member since:
2005-11-29


What does the "spirit of the law" have to say about somebody independently coming up with an invention?


Independently of the original inventor? I guess it would give them a pat on the back and wish them good luck in negotiating a license.


Or using an existing "invention" for compatibility's sake?


You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility.

Compatibility is a nice end to strive for, but it is secondary to intellectual property rights.

If an IP holder is inclined to provide his IP for the sake of compatibility, then he is within his rights to do so. I am not in favor of compelling IP holders to relinquish their rights for the sake of compatibility. That's not the right trade off to me.

In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard.

This is the single most deliberate attack of compatibility and interoperability in recent memory. Small executive orders against shell companies are not going to change this.


Or patent holders who deliberately patent every possible permutation of an idea in order to exclude others from the market?


Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge.


I'd hope for us to aim for higher standards than what we've got today.


I guess my point is that all laws suffer from this same issue. If you apply a set of regulations based on a classification, you rightly stated that they can and will wiggle out of it. This is why it is important to let a Judge decide what the intent of the law is, and apply his own discretion when deciding who to punish.

Judges exist for this very purpose. I also don't think the current system is terribly bad, and a lot of hyperbole gets understandably thrown around during discussions like this.

Reply Parent Score: 3

RE[5]: Wait, what???
by bnolsen on Wed 5th Jun 2013 12:47 in reply to "RE[4]: Wait, what???"
bnolsen Member since:
2006-01-06

Lets go judge shopping. I'm sure one or more can be found that will agree with me. Sorry judges aren't special superhuman integrous people. And they are lawyers by trade, not much more. There's not enough of these people (lawyers) at the bottom of the ocean.

The fun part is they have the power to gum up the works and make you spend a bunch of time and money screwing around. Companies with paid legal departments love this answer. Small companies? Well they are dying out.

Reply Parent Score: 1

RE[5]: Wait, what???
by Alfman on Wed 5th Jun 2013 14:57 in reply to "RE[4]: Wait, what???"
Alfman Member since:
2011-01-28

Nelson,

"Independently of the original inventor? I guess it would give them a pat on the back and wish them good luck in negotiating a license."

Yes, but this flies in the face of the justification for patents in the first place, which is the (wrong) assumption that without patents nobody would bother to develop the idea into something tangible. It's possibly true for things like medical drugs, but it's never been the case for software.


"You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility."

Frankly patents are becoming less and less about inventing and more and more about developing corporate arsenals, ergo the quotation marks.

Also, regarding software compatibility, being compatible doesn't imply freeloading in any sense of the word. If anything being compatible with complex software systems can be more difficult than not being compatible. Consumers expect software to be compatible with defacto standards for interoperability, like DVDs or word processing software. Software which is incompatible due to patent infringement would force users to live on a digital island, isolated from everyone else. I predict your attitude will be "too bad, pay the royalties", which is your prerogative, however when patents are used this way, it's intentionally anti-competitive and does nothing to promote innovation. Ie, all the harms of patents with non of the benefits.



"In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard."


I'm no fan of google, so I find your comment ironic. My rational is driven by behaviour and not identity. Why can't I be critical of all companies who participate in patent abuse?


"Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge."

I find there's not much consistency in rulings, and having a patent system in which one honestly cannot know whether one will be found to infringe or not is extremely bad. I'm linking this case because I think you'll disagree with the ruling as well, the repercussions of which went well beyond microsoft.

http://www.h-online.com/open/news/item/XML-patent-US-Supreme-Court-...


Courtroom judges shouldn't even be part of the patent process. Having to go to court is the result of a broken patent system in the first place. The courtroom itself is becoming a viable weapon against those who cannot afford to see the trial through and have no choice but to settle or go bust.

http://tips.vlaurie.com/2011/09/the-cost-of-patent-lawsuits/

Edited 2013-06-05 14:59 UTC

Reply Parent Score: 3

RE[5]: Wait, what???
by The1stImmortal on Thu 6th Jun 2013 11:18 in reply to "RE[4]: Wait, what???"
The1stImmortal Member since:
2005-10-20

You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility.

"Deserve"? No.
If someone's willing to pay them for that R&D great, but it's expecting welfare to claim one "deserves" compensation for unasked-for work. If I go out in the garden and dig a hole no-one is going to claim I deserve compensation for that hole (in fact the real estate agent would probably be quite upset heh) - even if someone would find that hole useful there'd have to be some kind of agreement in place for them to be expected to compensate me for it.

Compatibility is a nice end to strive for, but it is secondary to intellectual property rights.

Intellectual property (in its various forms), being a legal fiction in the first place, comes in exactly the place the government (acting as agents of the population in democratic states) chooses to place it. Currently Patents trump interoperability but interoperability trumps copyright (and usually trademarks where the trademark is an essential part of interoperability).
If a government chooses to rearrange that order (although this would take legislation rather than an executive order in the US I believe) then that order changes.

If an IP holder is inclined to provide his IP for the sake of compatibility, then he is within his rights to do so. I am not in favor of compelling IP holders to relinquish their rights for the sake of compatibility. That's not the right trade off to me.

Once again, this is dependent on law. The law created those rights (they're not inherent natural rights) so the law can make them cease to exist, or moderate their use. If the law involves compulsory licensing then so be it (this has come up in the context of pharmaceuticals for example - some governments feel it is immoral to grant a monopoly on life saving chemicals if the monopoly holders therefore restrict the use/sale/supply of those chemicals)

In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard.

This directly contradicts your immediately previous paragraph. You are saying on one hand that no-one should be able to restrict the patent holders' rights, but then saying that courts should be able to restrict the rights of patent holders to prevent others using their patents when those others refuse to license them according to normal procedure. FRAND does not mean free (as in beer). It means Fair and Non-Discriminatory. FRAND also has no legal basis - it's an industry practice not a legal status. If someone isn't licensing the patents properly, under current law, they're violating the patent.


Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge.

I'd personally say that judges have been pretty hit-and-miss about this - some are on the ball, others not so much. Juries are even more unpredictable (depending on geographical area)

I guess my point is that all laws suffer from this same issue. If you apply a set of regulations based on a classification, you rightly stated that they can and will wiggle out of it. This is why it is important to let a Judge decide what the intent of the law is, and apply his own discretion when deciding who to punish.

Generally a good idea yes, but in this case the subject matter itself is created via law, so the law is the only "natural" source of regulation on the matter. One thing people keep forgetting here is that Patent rights are entirely artificial rights - you can't exercise moral discretion and talk about the "spirit" of the law about Patents as they wouldn't even exist were it not for those laws - the laws entirely define them and regulate them, so there should be very little room for interpretation (on the patents themselves that is). Obviously it doesn't work this way, but it should.
That's not to say patent lawsuits should be cut and dried - there's other issues involved in them (such as contract law or timing etc) but the patents per se should be entirely a matter of law once outside of the patent office

Reply Parent Score: 3

RE[6]: Wait, what???
by Nelson on Sat 8th Jun 2013 14:10 in reply to "RE[5]: Wait, what???"
Nelson Member since:
2005-11-29


"Deserve"? No.
If someone's willing to pay them for that R&D great, but it's expecting welfare to claim one "deserves" compensation for unasked-for work. If I go out in the garden and dig a hole no-one is going to claim I deserve compensation for that hole (in fact the real estate agent would probably be quite upset heh) - even if someone would find that hole useful there'd have to be some kind of agreement in place for them to be expected to compensate me for it.


Uh, you're being misleading. The inventors would like credit for their work when you use it. Hindsight is 20/20. One man's "obvious invention" is another mans R&D breakthrough, so people walk into this thing with skewed perspectives.

And please, please let's stop the ridiculous false equivalencies and oversimplifications. Patents are not real estate.

If that's how you mentally picture it in order to make it easier to grok, then so be it, but know that you miss out on essential context.


Intellectual property (in its various forms), being a legal fiction in the first place, comes in exactly the place the government (acting as agents of the population in democratic states) chooses to place it. Currently Patents trump interoperability but interoperability trumps copyright (and usually trademarks where the trademark is an essential part of interoperability).
If a government chooses to rearrange that order (although this would take legislation rather than an executive order in the US I believe) then that order changes.


Obviously, but I was speaking in terms of the statutory reality, not under some imagined reality. In the US especially, property rights are especially important, and IP ties into that pretty handily.

I don't think we're in disagreement here that IP is ranked above compatibility and that compatibility is the prerogative of the IP holder, so I'll leave this topic be.


Once again, this is dependent on law. The law created those rights (they're not inherent natural rights) so the law can make them cease to exist, or moderate their use.


No right is inherently natural, only what society (and therefore Governments) deems to be natural. From that lens, IP rights and something like the right to speech are on the same footing.

Just as IP rights can be litigated away, Constitutional bodies can be amended (and have been historically).


If the law involves compulsory licensing then so be it (this has come up in the context of pharmaceuticals for example - some governments feel it is immoral to grant a monopoly on life saving chemicals if the monopoly holders therefore restrict the use/sale/supply of those chemicals)


That is on them, I wasn't really speaking from a moral high ground, only attesting to the current reality.


This directly contradicts your immediately previous paragraph. You are saying on one hand that no-one should be able to restrict the patent holders' rights, but then saying that courts should be able to restrict the rights of patent holders to prevent others using their patents when those others refuse to license them according to normal procedure.


No, you perhaps strongly wish it contradicted my previous paragraph. FRAND is obviously a distinct category within patents, in that an explicit deal is struct. IP holders have their IP included in a standard in exchange for a legally binding promise to license of FRAND rates.

The issue at hand is who negotiated in bad faith. There are a variety of things that play into that such as the royalty rates, reciprocity, etc.


FRAND does not mean free (as in beer). It means Fair and Non-Discriminatory. FRAND also has no legal basis - it's an industry practice not a legal status. If someone isn't licensing the patents properly, under current law, they're violating the patent.


A FRAND defense entails a series of equitable defenses and has been a doctrine that's been reinforced by the courts (in the US and the EU). The DoJ and EU have laid into Google pretty severely for their FRAND patent aggression.

I think some of the confusion stems from the fact that some companies hold that the patents are invalid, uninfringed, FRAND, or a combination of the three. They're not mutually exclusive.


I'd personally say that judges have been pretty hit-and-miss about this - some are on the ball, others not so much. Juries are even more unpredictable (depending on geographical area)


I generally don't think Juries are a good idea for patent cases period. This is one area imho that needs to change.


you can't exercise moral discretion and talk about the "spirit" of the law about Patents as they wouldn't even exist were it not for those laws - the laws entirely define them and regulate them, so there should be very little room for interpretation (on the patents themselves that is). Obviously it doesn't work this way, but it should.


But we're not talking about patents, only the classification of entities as patent trolls. The point was that they could easily wriggle out of this classification. My counter point was to let the classification be up to the discretion of the judge when he notices a trend of abuse.

Reply Parent Score: 2