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Cloudflare coughs up a few grand for prior-art torpedoes to sink troll

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I applaud all efforts to wipe patent-trolls from the map.

Nonetheless as an engineer I see this as typical reactive behaviour - expensive, ineffective and doesn't solve the underlying problem, which to my mind is the fact that the US Patent Office is guilty of gross negligence and professional misconduct of the highest degree by awarding these damn things in the first place whilst clearly doing no due diligence.

How do we solve the patent problem? We can't get rid of it as it does have a useful purpose, but its current implementation is more cack-handed than a talk-talk developed banking app running in IE6 using flash player.

Damned if I can solve it. Answers on a postcard?

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Make the USPO office liable for costs associated with failed Patent litigation due to prior art or a too generic patent grant.

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I am not sure that would be fair on the prior art front. It would be impossible for the USPO to have perfect knowledge of everything ever invented.

Fully agree on the overly generic stuff though.

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No go nuclear, sue them for attempted fraud and extortion and get them to prove to a court that the patent application was for an invention and not an idea. This approach also opens the possibility of your team doing a discovery search ...

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"I am not sure that would be fair on the prior art front. It would be impossible for the USPO to have perfect knowledge of everything ever invented."

Raise the bar on originality. Recognise that everyday programming is simply applying logical thought to everyday problems. The applicant should provide evidence that the problem has been around for a good while and acknowledged to have no existing solution - as documented in peer-reviewed journals, for instance.

Or simply ban software patents in their entirety.

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"Make the USPO office liable for costs associated with failed Patent litigation"

Fining government departments doesn't work; it's all just the taxpayers' money anyway, and if you make a fine big enough for them to notice, all you've done is further reduced their ability to the job properly. This is why government bureaucracies so often have issues with efficiency - you can't punish them in any meaningful way because they're performing a necessary function using the country's own resources, so any punishment is the equivalent of punching yourself in the face.

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One idea I have is a "use it or lose it" clause for businesses. Either you use or maintain the patent in question in some way or else it becomes public domain. This rule only applies to businesses, it would not apply to individuals. Now obviously, a business would have a reasonable time to start using the patent.

Another idea is to ban back royalties and have a specialty court that deals with patent disputes. If a company is really infringing on your patent then this special court would decide what future royalties are to be paid out. This would make patent trolling much less profitable.

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"acknowledged to have no existing solution"

But what if your solution is better than what's on the market ?

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"But what if your solution is better than what's on the market ?"

That shouldn't allow you to patent what is already on the market.

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In particular the USPTO has been granting patents for XYZ well established idea/process, "But on a computer!" and more recently "But in the cloud!" and this is the kind of grant which deserves to be struck down with prejudice against the examiner(s).

If the examiners defend the grant with "I was ordered to do it" (which is apparently the case) then USPTO manglement should be hauled before the courts to explain themselves.

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"Fining government departments doesn't work;"

But going after the civil servants giving the orders _does_

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Free Speech

The move raised debates over the extent of free speech rights online and the role network service providers play in protecting them.

Answered by the obligatory XKCD...

The concept of free speech pivots on whether or not government can silence the speech. It in no way mandates that a private or commercial entity must tolerate these <Insert suitable pejorative here>.

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Re: Free Speech

Bravo, exactly what I was about to point out. The right to free speech only applies to government censorship, everyone else is free to call out asshats, block their access, delete posts etc

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Why not simply invalidate a patent when the holder fails to defend it, particularly when they initiate the action?

"Blackbird filed suit in July 2016 against six companies asserting this '448 patent. All of those cases were voluntarily dismissed by Blackbird within three months – fitting a pattern where Blackbird was only looking for small settlements from defendants who sought to avoid the costs and delays of litigation," Prince said.

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There may be occasions where your patent is valid, but you come to realise that you're massively outgunned - the unauthorised usage of your patent may not outweigh the risk to your business from high legal costs for the duration of the case.

Having the patent invalidated because a bigger company said "fuck you, let's see whether you can last the whole case" probably isn't a good idea, as big companies will just ignore patents (as they do now) on the basis that you can't even really threaten them on the offchance of a settlement if it means invalidation when you can't risk following through.

Not that the current system doesn't allow for that risk anyway, and not that the current system is any good, but I think you're probably introducing more issues for "honest" companies there without actually doing too much harm to the trolls.

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" I think you're probably introducing more issues for "honest" companies there without actually doing too much harm to the trolls."

There may be some "salvation" in the works anyway.

Copyright trolls should have taken notice of a few USA judges who've refused to allow trolls to file legal fees against defendants and only allowed the statutory minimum damages (https://fightcopyrighttrolls.com/2016/08/21/magistrate-judge-declines-to-award-copyright-troll-attorney-fees-because-copyright-trolling-fees-does-not-advance-the-purposes-of-the-copyright-act/) and more recently a ruling that a trolls who cut and run must compensate the defendant. (https://fightcopyrighttrolls.com/2017/09/21/magistrate-judge-to-copyright-troll-you-may-cut-and-run-if-you-want-but-first-compensate-defendant/#more-15870)

Patent trolls are slightly lower on the judicial radar, but this kind of thing does get noticed and is likely to start being applied generically to troll-like behaviour.

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