At the risk of losing some karma here... and prefacing this with: I hate these patent trolls, they go entirely against my senses... I am wondering: is there a charitable view on the "other side" of this that I'm not seeing, in which these people have some (perhaps weird) way of morally justifying this practice?
I finally heard a good argument in support of "patent trolls" from a friend who has a few patents. It was something like this:
"The little guys can't fight legal battles with large corporations. So either you work with lawyers that are labeled patent trolls or you lose your patent by default by lack of defending it. Or you can go broke fighting in court."
It was the first time I had considered the possibility that there may be more at play here and that I couldn't see all sides clearly.
These lawyers, and more importantly, these shell companies, are being labeled as patent trolls because they're filing nonsense patents and then spraying nonsense lawsuits around to try to capture random prey. They're not the vanguard of "protecting the little guy."
The idea that making it easy for bad patents to be defended is somehow good is ridiculous. It ignores the possibility that the patent office, the legislature, and the courts need to improve so that good patents are protected but bad patents aren't a drain on society.
Of course the argument doesn't seem any good if you completely misunderstand it..
Let's say you're a small player with a legitimate patent. A huge entity is infringing. In order to make any money of your invention, you have to fight. But that can be very costly and risky. Instead, you sell your patent to someone specialized in this, a "patent troll". You get some money, they use their expertise to fight the big player.
Like selling someone's debt to a collector so at least you get some money.
The problem isn't really NPEs. If it makes sense to have patents, then it probably makes sense to have a market in patents. The problem is mostly low-quality patents and the fact that the patent system is a poor fit for software.
The way the US patent system works compared to other countries is that it's closer to copyright (though not quite copyright): any crappy idea can be patented as long as there's no prior art. The burden of proof is on those who own the patent and those who want to challenge it on court. The Bureau registers everything and then lets the businesses fight in courts.
This approach gives the US an advantage on the international patent market too: an American patent holder has the priority rights in other countries where it wishes to register the same patent.
All this kind of makes sense - kind of - but in practice there seem to be a lot of crappy patents with prior art that remain unchallenged and sometimes even confirmed in courts despite prior art.
This is what's broken. 1-click checkout shouldn't have been registered not because it's crappy but because there were web sites doing something very close or even similar under a different name. Those businesses either never bothered, were too small or went out of business by the time Amazon could be challenged in courts. I believe there are many more examples like this.
Someone has to take the burden of identifying prior art. The PTO doesn't seem to be interested, it's just extra work for them which as a govt. agency they tend to minimize. Businesses that could present prior art can be too small or even out of business by the time a patent is registered.
I believe it's a matter of some additional regulations but because I'm not a lawyer I can't really say how to fix this system.
Some of these NPE bought those patents from previous PE that actually put the work on some of those innovation. That could be from Video Codec, 3G/4G Telecom Spec, Wireless Spec etc. I think those tends to have some merit. They never stayed around long enough to have a return of investment on their R&D. So patent is part of those asset, they should be of some value.
Whether you agree the price for those patents is entirely different. Although you could also argue those are bogus patent with no value.
It is also worth mentioning companies tend to file and fill as much patents as possible to some sort of spec in order to gain at least some form of ROI. The reason being the thing / part they work on for years may never had made it to the spec, but in the process of competing they might have made the official spec better. So despite their tools not ending up within the spec they might still want to get as much from the patent pool as part of their work.
Again, whether they are asking for too much of it is somewhat a different question. If you spend enough time on HN in the past few years most people would think 4G and 5G patents are absurd and Qualcomm is evil. I tend to hold a contrarian view they are not. ( At least not as evil as most would think )
What I cant stand is things like "Single Button Purchase" Patent from Amazon. I give some benefit of doubt to pull to refresh from Twitter. But single button purchase is .... I dont have a word to explain it. Although there may be people who disagree with me and think a single button purchase is genius.
