Nice to see Cloudflare fighting the good fight, but patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. It doesn’t even matter if they win - when a company with billions in the bank sues a company with millions in the bank, the small company is basically just screwed no matter what because they can’t afford the legal fees. It’s a cheap way for big, bloated, slow moving companies to eliminate fast moving, lean, disruptive competition.
A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things!
The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.
> company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence
By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I can't see any situation where individual patent clerks would be held accountable. First, it goes against established case law regarding civil cases against federal employees [1, 2]. Second, if you amend the law so that patent clerks are an exception and can be held individually liable for potentially tens of millions of dollars, only absolute idiots would agree to take that job.
The idea would be for the patent office to get $I dollars funding from tax payers, from which they payouts are made when errors are made. If they flub it year after year they'd be forced into process improvements or a huge fight with Congress. Basically, as soon as control becomes separated from accountability, one organizationally hit into these problems.
Another analogy: I'm sort of against housing brokers passing the mortgage onto Fannie Mae. By the time the government finds out something is wrong, it may be too late to "untake" the property. Brokers have short-term control goals and short term risk profile. They stick somebody else with the long term disk, while they're still paid. It's a misalignment.
That doesn't really help because money is fungible.
In a city near me the taxpayers recently rejected a tax increase to pay for a bond because they were grumpy that the government took out the bond without asking them first. The city was still on the hook for the bond, so they just siphoned money from the roads fund.
The same thing would happen here—you can say that the judgment must come from fees, but then the patent office will have to either raise fees to crazy levels in order to cover the risk (thus making patents even more of a large company advantage) or they'll siphon money from things that were being covered by fees and use taxpayer dollars to cover those things.
I think this is the main problem, rather than companies owning patents they do not implement, and suing the ones that do without a licence.
There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts.
There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable.
It needs to be easier and cheaper to challenge bad patents and false claims of infringement.
> patent clerks aren’t actually subject matter experts in the field
This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information.
The patent office needs a lot more funding if you want it to be effective.
> The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information.
As a former USPTO patent examiner, I can confirm that this is the main reason for low patent quality.
> This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
I never found the contract search help to be useful. ("STIC search" is what I'm thinking of. Your friend may have been on a different contract as I'm not familiar with specific contract subject matter experts providing search help.) I'd guess that the problem is that those folks get even less time than I did!
> patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground
Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.
There are two important differences. 1 Patent trolls are non practicing entities, ie they don’t produce anything other than lawsuits(pure rent seeking), big companies may not be producing on all of their patents, but they typically provide at least some societal value. 2 big companies aren’t typically making direct revenue from their patents, but rather use them as a moat to prevent challengers (which seems more similar to what patents are intended for even if it is often abused by being overly broad)
>That's not a part of any commonly accepted definition of "patent troll" that I'm aware of
It's exactly the definition I've heard of for the past 20+ years.
>This is what makes one a patent troll.
No, it isn't.
Think about what a troll does: it hides under a publicly-owned bridge, and then forces anyone who wants to cross the bridge to pay a toll.
This is exactly what the NPEs do with their BS patents: they get a patent on some obvious BS, and then charge people money to use "their IP".
Big companies don't do this: they use patents to prevent competitors from operating. They don't grant licenses to their competitors at all. Trolls in mythology didn't refuse bridge access to anyone, they just forced them to pay a toll.
The entire point of being an NPE is to get money from licensing (and lawsuits).
I work at a large company. A colleague of mine filed a patent for a thing we were working on, and included me in the list of inventors.
I spent that summer trading emails with lawyers trying to get the application to even resemble what we were actually doing. The patent was for computer animation, and the application had fucking clip art of printers and pagers and 50 pages of "and this is novel because computers are shiny" and "if you figure out how to do this with a toaster, we've called dibs."
I'm proud of the work I was doing; we were legitimately working at the frontier of motion design. It's cool that my name is in the historical record for that, but it's also embarrassing that it's in the form of a software patent - particularly one that looked like it had been copy/pasted from decades of bullshit patents and barely adapted to cover what we were actually proposing.
Whatever little faith you have in the patent system will be even further eroded if you ever find yourself on the filing side of the patent. It shocked me how much of the application was broad and hand-wavey, citing irrelevant and obsolete technology to pad out the pages. Even worse, they didn't seem to care to understand the actual "invention." If I didn't fight back, they would have filed (and probably won) something that could have been generated with the prompt "please write me a generic patent application to pad out a tech company's portfolio."
I think the most fatal flaw is, and in all other fields too, that money correlates with court victory. If we somehow able to erase just that, lots of laws suddenly becomes much fairer and closer to its original intent.
If companies are found to have filed bad faith patents, there should be a rapidly escalating cost increase for future patents, ending in penalties including their existing patents being legally released into the public domain.
There is, of course, the usual problems of companies spinning up shell companies to mitigate the risk, but that's a different problem that needs fixing for a whole bunch of reasons.
Former patent examiner here. Current AI patent search isn't that useful in my experience. The USPTO had multiple AI patent search tools circa 2022 (when I quit), most of which were of comparable quality to the similar documents listed at the bottom of a patent document on Google Patents.
> A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground.
Simple solution: Abolish patents. All the rhetoric about incentivizing innovation is bullshit. They stifle innovation, and they stifle competition. They're designed to protect slow, inefficient established corporations. That's all they ever did and that's all they'll ever do.
Patents and copyrights are dangled like winning lottery tickets in front of the average citizen. Maybe you can invent something or write a book and sell it for millions! Which does happen... about as often as people win the lottery.
More often a patent or copyright is one of thousands a giant company procures. But all the intellectual property profiteers need is that 1 in 300,000,000 chance dangling in front of a voter and they'll never agree to do away with IP, in fact, the opposite will happen. They'll actively fight to keep them in place.
Somehow the winning ticket in popular discourse is to be a patent troll: at best, "sell my idea" to some big company (troll); at worst convince a court to give you a pile of money because someone "stole" your idea (in advance). It is a rare person who dreams of coming up with a good idea and then working hard for years to make it a reality.
How many patent trolls do you know? As compared to people that you know who would/could be an inventor on a patent? I'm a patent litigator and it's still the latter for me. This narrative is a bit histrionic.
As a software developer, I'm not exactly representative, nor are you. The point was about ambition/popular perception, not the reality. If your "maybe someday" dream prominently features being issued a patent, it's not because you'll use the patent responsibily to defend the idea that you're actively developing and marketing. If your "maybe someday" plan involves developing and marketing an idea, patents might be a factor somewhere way down the list of how to get there, but that's a very different ambition.
(That's not to say that the reality isn't also broken, just that popular perception is even more broken.)
> The point was about ambition/popular perception, not the reality.
What a silly point then. Who cares what people's perceptions are when they are not based in reality.
> If your "maybe someday" dream prominently features being issued a patent, it's not because you'll use the patent responsibily to defend the idea that you're actively developing and marketing.
I see, so nobody can get a patent because nobody will use a patent "responsibly".
Hmmmm, I mostly know people who worked for big companies who got BS patents for bragging rights and one from a small startup with one obvious idea but they wanted to try and protect themselves since the idea was essential to their core business. The former don't seem much different from trolls while the latter should not have been granted a patent since it was so obvious IMO.
I reckon simple solutions are often simple because they ignore important complexities. I'd love to abolish patents, but I don't see how our society could before figuring out stuff like how else to support the people that do important knowledge work, and incentivizing creating new things when it's a hell of a lot more profitable to just wait until someone else does it first. The software industry is already compatible enough that many companies open source their code voluntarily, but I don't see how we can generalize that. What incentive would companies have to pour all of those resources into complex chip design, intricate novel medical devices, or new medicine? You might be able to have open source insulin pump controllers, but how about a lifesaving new linear accelerator or chemotherapy drug when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process and hit the market at nearly the same time? I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good, but it's not, and that seems like a prerequisite you simply can't ignore.
I'd love to be proven wrong, but I think the "well if you wanna make an omelet..." kind of attitude I usually see accompany sentiments like this seem more edge-lordy than anything else.
Have you actually read any patents? Just knowing the bare basics of how something works isn't enough to make a successful business out of it. Even with mechanical manufactured stuff, a few diagrams isn't going to tell you all the stuff you really need to know to properly manufacture it, and patents have famously left out lots of important trade secrets, not to mention stuff that people just didn't bother writing down.
>into complex chip design
Do you have any idea all the technology and tools that go into chip design? They aren't all nicely documented in some patent applications.
>when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process
Good luck with that. No single engineer knows enough to replicate any truly complex process.
>I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good
If you could pay a single engineer to do anything so substantial as you claim, then all this work would be done by universities. It isn't, for a reason.
The incentive that companies have to pour resources into this stuff is to make money, and they do this by building their technology base and market share. Not having patents isn't going to make much difference; it'll just prevent them from keeping new competitors out of the market so easily.
I don't think they're designed to project established corporations, but lawyers move faster than congress. So much like the Tax code, they've already figured out how to take advantage of the existing system.
In fact, I would say the ultimate realization of that is the existence of patent-trolls. The patent-holder which exists solely for the purpose of possessing the patent rather than creating it, or utilizing it to make their own product.
A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things!
The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.