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[6]: Wait, what???
by Nelson on Sat 8th Jun 2013 14:10 UTC 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.

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