The first thing to fix is the economic incentive: when you lose a trial due to invalid or non-infringed patent, you have to be the one footing the bill.
It probably means that you have to escrow a provision to start such a litigation, to avoid organized bankruptcies of empty shells. If you don't have this money and nobody's willing to lend it to you, it probably means that your case has little merit.
"If you don't have this money and nobody's willing to lend it to you, it probably means that your case has little merit."
Or you're a start-up or small business that can't afford the contingent liability of a deep-pocketed infringer's legal team. Uncapped "loser pays" clauses also have an unintended consequence of encouraging the infringer to beef up their legal team to intimidate the patent holder.
In France, this is left the the judge's appreciation. "Condamnation aux dépens", literally "penalty of the costs", is a complementary, optional penalty which forces to foot part or all of the winning party's legal costs.
The merits of the case and the proportionality of the winning party's legal expenses are taken into account. In practice, it works, together with a couple of anti-ambulance-chasing provisions (e.g. "no gain no fee" contracts are illegal).
Loser-pays and a ban on contingency cases is basically a guarantee that consumers will never be able to sue a large corporation to vindicate their rights. It's basically carte blanche for a big corporation to respond to any litigation by hiring the biggest most expensive legal team, adopting a scorched earth litigation policy, and threatening the plaintiff with the resulting bill.
Now, that doesn't make it a bad policy per se. It works fine in France, where the government is much more willing to enforce consumer rights using regulatory means. It wouldn't work so well in the U.S. where the government leaves a lot of that kind of enforcement to private litigation.
Again, in France it's not "_loser pays_". It's "_judge determines who pays, and does so in such a way as to deter financial bullying_".
The very reason why we have judges, rather than only cops, is that mechanically applying rules doesn't work. In most non-trivial cases, we need a human being who defends the sometimes subtle spirit of the law. That's one of those cases.
There are rules that allow US Federal judges to do the same, but the default expectation is that in most litigation each side will pay their own attorneys fees. In certain narrow areas, such as civil rights litigation, the presumption goes the other way.
In my experience most judges are very reluctant to order fee shifting in the absence of a specific statute because, among other reasons, it can be grounds for a malpractice action against the attorneys.
"The first thing to fix is the economic incentive: when you lose a trial due to invalid or non-infringed patent, you have to be the one footing the bill."
What happens when a small inventor files for a patent dispute, and still loses due to financial muscle of the big company? This clause will just act as a deterrent for me to sue "Google/Apple" because I cannot afford to lose. They will bury me in debt if I go head against them.
If you can afford a patent, you aren't a small inventor. Small inventors are entirely excluded from the patent game, because they cannot afford to enforce. This has been the case for nearly two decades. If you're not convinced, it could be "either pay the costs or lose the patent".
Is it common for small inventors to sue big companies for infringement? Do they ever win? Even if it happens once in a great while, it's still probably not rational for most small inventors to take on big companies, even today. This is another flaw of the current arrangement.
Besides, you don't have to make the escrow amount arbitrarily large. If I can only afford to spend $10k on a particular patent infringement lawsuit, I'll just have to put half of that in escrow and spend the other half on my necessarily limited case. The defense can spend what they want, but they'll only be reimbursed from what's in escrow, and only if they prevail. This would be an additional burden for plaintiffs, but it wouldn't qualitatively change their decision-making process.
Don't know if they actually make money but their costs are minimal. Those are the bottom of the barrel ads that ad networks serve up when nobody else actually wants to pay for the impression - either because a site is crap or because there's not enough info to target anything more profitable at you.
Also related to the ads, does anyone have some marketing distillation of why they always use the words "weird trick"? Weird trick for weight loss, weird trick for language learning, etc.
Basically, the trick is "weird" because it's not too positive, so as not to make it sound false and unbelievable, not negative either, and uncommon enough to attract attention and pique interest. Of course, overuse of the technique desensitizes the viewers and it will eventually fall out of favor.
Doctors actually like genuine weight loss techniques (like taking more exercise) because their use improves public health. Patent holding megacorps do stand to gain from weak patent enforcement.
Ownership, when it extends beyond individual brute force, is always a social convention.
More than a "right" to such, society inevitably examines and challenges its social conventions. (There are some long term patterns, but even these are not steady-state.)
Society is going to look for what works for society. If and as (over-) concentrated "ownership" increasingly holds society back...
In other words, ownership at a societal level is a useful tool, but it is not an absolute.
As just one small example, even within our "ownership" society in the U.S., we increasingly have law enforcement confiscating assets without due process whether upon real or convenient suspicion of wrongdoing (asset "forfeiture").
You own it... as long as society says you own it. One reason to use it to help promote a healthy and reasonably fair society -- it's in your own long-term interest.
Microsoft is not seriously expecting the billions they're getting from Android OEM's by charging them for using open source software with trivial and broad patents is going to last forever, is it? If they're basing their mobile business strategy on that, they're doing it wrong.
Sorry this is unrelated to the article, but I've noticed a sharp increase in sites breaking the "Back" button, including this one. Salon.com is another bad offender. Is it just me or has anyone else noticed it? And is there an extension to prevent it? (Chrome)
Considering that 99% of USA politics is driven by lobbying and big business this legislation has a snowballs chance in hell of actually passing without a lot of watering down.
I wouldn't call Yahoo new. It IPO'ed 17 years ago, barely 10 years after Microsoft and Adobe.
Red Hat IPO'ed 14 years ago. Even so, it only has a market cap of less than $9B, less than 1/3 of companies like Yahoo (and 1/30th of Google's). They do some neat things in open source and virtualization, but I wouldn't call them "hot".
I would. They're web and Linux companies - technologies that are completely pervasive now, and didn't even exist when Microsoft and Adobe were already big companies.
Innovators vs. Squatters. Isn't that the expected way this argument would shake out? Patents encumber innovation, not royalty checks.
Those with lots of resources will use force to defend them. Conflicts of interest need to be declared up front - if we think people with patents need to be taken down a peg or two, we shouldn't take objections/arguments coming only from companies with thousands of patents seriously.
The underlying problem with patents is basically that the upside of owning a patent is essentially unlimited, where as the cost is finite (and large for an individual, but peanuts for an established corporation).
What needs to be done is make those two things related: For example, require patent holders to declare the value of a patent on their tax filings (say, in April for the previous year), pay a 1% tax on that value, and limit any infringements damages to that value (per defendant, per year). Perhaps also make a forced "imminent domain" seizure possible by any sued part for 10x of the value.
We do not want anyone to have a patent economically worth $100K or less being able to assert it to stop production of something worth $100M or more -- and yet, the current system facilitates that (see e.g. eolas vs. ms, the xml case against microsoft, creative vs. carmack).
Once you have a "cost of carry" for patents, carrying offensive patents will become expensive enough that patent holders assign value (thus, enforceability) to patents they dim worthy.
(And no, this does not push a "small inventor" or "small patent holder" out of the game. If you have a patent worth $100M but do not have much more than $1M to enforce it, you do NOT have a patent worth $100M - litigation is going to cost you much more than that; They are already out of the patent game - so let's fix other aspects first)
Investors have been given a powerful tool here. A litmus test, if you will. The management of those tech companies that do not expect to innovate and succeed in future, have signed this letter opposing CBM expansion. Those that do expect to do so, have not.
Three laws for a fair patent system, would help a lot:
1. Acquiring a patent must cost $0. -- There should be no distinction between applications, such as expedited service (which we have now). The USPTO is not a business!
2. A refundable sincerity bond is used to ensure the system is not abused. --The bond is 100% refundable, regardless of outcome. It can only be confiscated if willful negligence or fraud can be proven.
3. There should be no distinction in time frames. All patents are good for a fixed period of time and no longer. They is no renewal period or fee for such.
1. A patent office costs non-trivial money to run. Particularly if you want it to run well and be staffed by examiners competent in their technology domains. Why should the non-patentable industries subsidize this cost (ostensibly via taxes) to the benefit of patentable industries? Why, when the cost is very closely related to quantity of work, should that cost be borne by anyone but the industries that hope to benefit from the work they're creating?
2. Negligence and fraud aren't problems in the patent system. What's the point of a bond against them?
3. Shorter terms are something that just about everyone supports in theory and then disagrees on in the specific discussion of: how short?
No way! This will result in orders of magnitude more bullshit patent applications, and even more rubberstamping rather than careful review. I'd much rather have patent acquisition cost $inf and none be issued at all.
Can you elaborate on this? Granting a patent doesn't cost $0.
(I do like the bond idea, but even today's bad patents are generally invalidated on prior art, not on willful negligence or fraud -- I'm not sure a bond would necessarily change anything)
The bond could perhaps let you offload some part of the work of locating prior art to the applicants. I think actual fraud should be punished as actual fraud, but "I attest that I am confident there is no relevant prior art" coupled with a quick google search turning up mountains of prior art should cost them the bond, and that might help reduce the number of junk patent applications, allowing us to process non-junk applications better and faster.
It probably means that you have to escrow a provision to start such a litigation, to avoid organized bankruptcies of empty shells. If you don't have this money and nobody's willing to lend it to you, it probably means that your case has little merit.