back
8 comments
This article deliberates about the venue of patent litigation. But even if you settle upon and ideal venue, there are deeper structural problems with patents.

US patent law is unenforceable against the world’s largest manufacturer, China, which boldly copies patented IP with impunity.

US patent law enables non-practicing entities (NPEs) to hold third parties liable for damages. If you bought toilet paper manufactured on a machine that infringes a patent, you can be sued for wiping your own ass. NPEs have successfully extracted millions from small businesses whose only crime was listing an app in the Play Store using a Google API, or using TLS to protect credit card information in flight —- obvious ideas that possibly technically infringed a US patent.

Patents are thought to protect small inventors but filing fees are exorbitant and as per the article, large corporations can easily steal ideas while tying inventors up in court.

Since patent laws enable trolls to decrease our GDP while trade secrets offer they only true protection against the biggest threats, arguing about the venue where we litigate farcical claims misses the point. We should just suspend the patent system until the rest of the manufacturing globe is on board.

Yes, but NPEs are necessary if patents are to be a thing also for smaller inventors.

An inventor can invent things that make a nuclear power plant cheaper or more efficient or better in some other way. He can't control whether the people and organizations who can afford nuclear plants decide to use his invention.

So NPEs are necessary for patents to work for small the inventor, and are how patents work for the small inventor. A small inventor in an expensive field is always a NPE.

I hate the typical use of NPEs but your point is correct. It’s like private equity companies: in principle quite reasonable but many people use them to extract the value of a business and leave a husk behind.

I don’t know of a way to fix these kinds of problems.

I think the right idea is better patent examination.

If patent examination is correctly performed, then all patents will have real novelty and the people who have to license a patent haven't had anything taken away from them since the novelty means that they wouldn't have come up with the thing they have to license anyway.

like most things, it may have started out to protect or help the "little guy", but it inevitably gets corrupted and subverted. It now only protects the big players. Even if you have created something truly novel, the big guys will out-litigate, outspend, and outlast you. And, the big guys can afford to patented so many obvious "inventions" as to stifle any competition.

The patent system has become a victim of regulatory capture.

That is of course, if it really did start out to protect the little guy.

The patent system grew out of the European guild system. It was the opposite of regulatory capture: the local authority (typically a king) would be paid to sanction a monopoly (on shoemaking or whatever). So the shoemakers could keep their secrets but even if one leaked it didn’t matter because they controlled making shoe at all.

The US patent system was the first that worked differently: it was a bribe to the inventor for disclosure: if you describe your invention so anyone could copy it, the government will let you use the courts to enforce a temporary monopoly.

Sometime in the 20th century the “so anyone could copy it” part fell into abeyance and now one of the strategies is to write as vaguely and ambiguously as possible, both to make it harder to copy and so you could argue that someone doing something vaguely related or parallel was “infringing”.

Patents only really work in a few places. Pharma is one because the R&D and other up front capex is massive compared to production.

But few other domains even have that issue.

"That is of course, if it really did start out to protect the little guy."

One version I have heard is that it started as a means for the military to gain access to the latest technological developments.

patents are a tricky one. you only need to have a couple of small variations and patent then becomes a legality. only to be advantaged by costly lawyers that could go on forever