https://www.jdsupra.com/legalnews/director-vidal-removes-ope...
https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions...
The US legal system generally requires parties to have standing before they can make use of courts or pseudo-courts like the PTAB. Situations like this make it clear why: when lots of money is on the line people will try to “hack” the system in ways that its designers didn’t expect. Uniquely open processes like IPR are vulnerable to exploitation in a way that is annoying to lawyers compared with what they’re used to, so they reflexively reach to reimpose standing requirements. That’s basically what is being proposed here.
Again, the above doesn’t mean I think this rule change should go forward: the IPR process and its openness are incredibly valuable and should be retained. but it’s misleading to portray this proposed rule as arbitrary or corrupt.
It makes sense, but I'm leery of trusting the USPTO because they have been saddled with (intentionally?) godawful incentives: they must pay for all their operations using patent fees. The more trolling they enable, the more money they get. Based on these incentives, I would expect the USPTO to oppose rule changes that effectively reduce trolling.
https://www.uspto.gov/about-us/performance-and-planning/budg...
> With full access to the fee collection estimate to offset total spending, the USPTO will use $32 million (net) from the combined operating reserves (ORs) in FY 2024, resulting in a net appropriation of $0.How do trolls pay anything to the USPTO? Usually the patents a troll tries to assert against others are purchased from others, often failed tech startups. (Note: People often forget that every “bad” patent was once someone’s startup dream. Edit: OK, maybe not every "bad" patent was once someone's startup dream.)
Their claimed rationale for these changes is simply dishonest. Hundreds of patent trolls have been abusing pro-patent-holder rules for years and they never blinked an eye. USPTO only cares about "abuse" when they can use it as an excuse to gut a mechanism designed to (and working well to) combat patent troll abuse. They are an organization entirely captive to patent holders with zero interest to benefit innovation or society at large.
Both things can be true. I'm sure there is a need for changes to IPR, but that doesn't mean they didn't know what they were doing when this was proposed. It's hard to imagine a good faith effort to end abuse of the system that also just happens to protect bad actors. Is it really likely that they had no idea that this would drastically weaken the ability to challenge bad patents? I suspect they knew exactly what the proposed rules would mean, that there are other options that would help prevent abuses like the one you pointed out without making it needlessly difficult for legitimate challenges.
I’m just pointing out that without a discussion of the recent events which clearly motivate this rule change, the narrative is missing important context that makes the USPTO look like mustache-twirling villains for proposing this. They may in fact be villainous, but readers still deserve the full backstory to come to that conclusion themselves.
And in this case, this new proposed rule is simply pushing the balance in patent abusers' favor, so it is corrupt because they are pushing it for their racketeering profits.
A better solution would be to prevent more bad patents in the first place (like forbid software patents for example) instead of making such kind of workarounds. But they aren't doing it either.
That's rich considering that IPRs were basically invented to give big companies the upper hand. For a while, they ran in parallel to actual district court litigations over the subject patents! Even now, they'll stay litigations! The same exact defendant, instituting a parallel challenge of the same exact patent, but in a pseudo court! IPRs are abuses of the system!
Unless they can justify very high damages, they are predisposed to settling out of court. When you hire top lawyers, or have a massive legal department, you're paying a lot of money. Going to court is at best a gamble unless you have an obvious and solid case.
What this means is they use threats of going to court wrapped up in legalese in the hopes of getting their way out of court.
Unfortunately, the degree to which various districts earn reputations around being pro or anti patent means they're also advantaged in "shopping around", so to speak, to get any case they bring moved to a favorable court. This is the biggest thing that they can do that your average "small dogs" have a harder time with.
The worst has changed in the last year:
https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scram...
but it'd be nice to see ways to make it more difficult to game the system by "judge shopping".
Drug and medical patents have at least some moral claim to virtue (don't come at me on that one). Whenever you see an op-ed about how patents are so valuable, those are always the poster children.
It's never software patents, because absolutely no one but lawyers thinks those are a good thing. But they're subject to the same laws as the "good" patents (whatever you think those are).
So the solution is clear: Congress must legislate that software is not patentable subject matter. We can do this.
A shitload of science is done on the public purse.
I don't want to objectify you, and you aren't wrong because stuff is now being done speculatively for profit day 1, but the "moral" aspect of this is really dubious to me: If we want to fund public health drug research, we can. And if we did, there would be no reason to vest patents over the discovery, we sunk the public purse into the drug design for public good outcomes.
I back India every time on this: Fuck the patents, they just make the drugs.
What??? Read the post again: it was studiously neutral on the topic.
I'm describing a political reality: software should be carved out of their space. They have a ton of clout in DC, and if you insist on killing drug patents, too, then nothing will ever be done. Guaranteed.
their definition of "dumb" is probably quite different from yours (or most software engineers).
Also see https://www.linuxfoundation.org/blog/stand-up-for-open-sourc... which didn't get much discussion https://news.ycombinator.com/item?id=36154988
https://en.m.wikipedia.org/wiki/Leahy–Smith_America_Invents_...
It was introduced not that long ago as part of bipartisan legislation that meaningfully reformed the existing patent system, including by introducing systems like IPR which clearly weaken the rights of patent holders (who have been fighting ever since to overturn it). If the system were utterly irredeemable, reforms like this should never survive.
It was created or a different time, and its governing rules reflect it.
How to rewrite it is no simple task to figure out and is well beyond what I am able to do.
I do think the bar for applying ought to be higher and the categories that can be patented significantly lowered.
I am not sure, but it seems that the time it takes to grant A patent requires changes as well.
Nearly everything new has "pending patents"
A good thing would be changing the ethics of how people think about patents and applying for them.
A better, quicker and easier way to prove prior art should be developed. (and if it is not already the case, the entity that applied for a patent with prior art should be made to cover all legal and paperwork etc. for doing so.
There's not even a pretence this is helping innovation any more.
The pretense of a rules based order is what holds the sharade together.
Like, if the government (or anybody, really) wants an invention to be open, they can offer the inventor/company some sum of money, and if they accept then they will have to explain how it works. Otherwise, it will remain a trade secret until someone else figures it out.
It is being suggested that if a secret is worth exposing, the people can simply make a direct offer for the things they want to know and let things they don’t care about, like how to buy an item online with one click, remain ‘secrets’. Patents wouldn't go away, but would by priced by their recognized value.
What would be no doubt lost are the things people don’t know that they want to know — ideas that aren’t commercially viable at the time of conception, for example. On the other hand, with the patent record now impossibly large, does anyone truly scour patents to seek out inventions they didn’t know they needed and derive a real benefit from them upon discovery?
Governments already provide funding for scientific research. Why can't the same principle be used to "fund" the disclosure of technological secrets?
No doubt the system is abused, but the solution isn't to eliminate all protections...Apple or Google have the money to instantly clone anything
E.g. if A patents X and some large company B wants to use X and A refuses, then B cannot use X even if they offer millions.
Just curious...is there a good faith argument why this change would be good?
> Petitions challenging under-resourced patent owner patents where the patentee has or is attempting to bring products to market;
So I’d say the good faith argument is that it’s designed to protect larger orgs from bullying actual inventors/startups by attempting to threaten the legitimacy of their patents. The bit about bringing products to market is supposed to exclude trolls. More from the source:
> Such limited resources may impact the perceived fairness of post-grant reviews. For example, some stakeholders in response to the RFC expressed concern that under-resourced inventors are unable to afford the costs involved in defending patents in post-grant review. Some stakeholders advocating for small businesses and individual inventors urged the Office to take into account the financial resources of a patent owner, and to limit reviews of patents owned by under-resourced entities who lack funding to defend challenges to their patents but who have sought to bring their inventions to market either themselves or through a licensee.
So yeah basically the argument is that defending themselves in this proceeds is too onerous for small entities.
So I think that’s the good faith argument. I’m skeptical, though I will happily admit that I don’t know much about the uses and abuses of the patent system.
What makes it bad faith is that the reason the mechanism exists is because the predators in the patent system are the inventors, not the challengers.