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.
Do you have any examples?
I would say "Simple solution: abolish patents on software".
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.
(That's not to say that the reality isn't also broken, just that popular perception is even more broken.)
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".
There's no point in furthering this conversation.
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.
>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.
Oh, I would immediately start a fund that looks for good ideas at the germinating phase and then superfunds a competitor.
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.
But how?
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.
[1] https://www.justice.gov/jm/civil-resource-manual-33-immunity...
[2] https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal...
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.
I think they meant the patent office should cover that from fees, not from taxpayers.
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.
Now THAT would be a use of my tax dollars I could actually get behind.
I've posted before about some of the issues here: https://news.ycombinator.com/item?id=33506286
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.
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!
Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.
That's not a part of any commonly accepted definition of "patent troll" that I'm aware of, but of course NPEs can also be patent trolls.
> use them as a moat to prevent challengers
This is what makes one a patent troll.
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 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."
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.
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.