http://www.politicususa.com/en/att-democracy
My guess is that Boehner will announce a bill to "defund" it shortly. That seems to be their favorite way to control the executive currently.
As a very happy T-Mobile customer, I nearly punched my monitor when I saw the announcement that it was going to be consumed by the Death Star. I did not have faith that the justice department had the cajoles or the honesty to actually try and stop it. I still have little faith that the government will be able to stop it, given that Congress has dropped all pretense of being anything other than available to the highest bidder.
Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain. It's the threat of such a lawsuit in the future that can negatively impact investment in a startup, as the right collection of patents could conceivably capture much of the economic surplus of a new venture. Alternatively, a big company might use the threat of a patent lawsuit, now or in the future, to push a young company to agree to an early acquisition.
The pledge doesn't seem to have much impact on these scenarios, even if a big company were to follow it rigorously.
Most of us, I believe, would prefer to see companies make a stronger commitment: "No first use of software patents" [period]. Google hasn't made this pledge, but to the best of my knowledge, they've acted in this way so far. It does seem in line with "don't be evil."
That said, I think I see what PG is going for here. He wants companies to make a pledge that, at a minimum, allows a new product or service to be tested on the market. That way, if it gathers traction, it will attract investment despite the threat of patents, and the new company will be able to mount a reasonable defense.
Perhaps more importantly, though, by allowing the product to succeed first, even in a modest way, it makes the offensive use of patents worse PR for the big company. Killing a successful product with patents is no longer an abstract issue. It takes away from customers and the market something very real.
I will quote myself from [ http://news.ycombinator.com/item?id=2855835 ] here for another solution, one that actually can _easily_ go through government (except for the intense lobbying against it by whoever enjoys the current patent regime); you can read there for some discussion if it is interesting. Quoth myself (with minor editing):
Intellectual "Property Tax". Have everyone declare the value of their intellectual "property" (patents, copyrights, trademarks) - each and every item, for that year, on their tax return, and have them pay 1% of the value as "IP tax", per year.
Clarification: you can set a different value every year. The value may drop to zero because a competitor's patent solves the problem better; or it may go up because it becomes essential to something that becomes commonplace.
That amount is what one pays for a compulsory license or if successfully sued, and up to 3 times that for willful infringement, per year -- and no more. (But of course, a patent owner can always negotiate a lower payment, as is done with music recordings that have compulsory license agreements)
All of a sudden, everyone has an incentive to state a reasonable value for their patent. Copyright catalogs that are not being published (old music recordings, old books, old movies) would be assigned 0 value by copyright holder, to avoid tax - which means anyone can freely make a copy. If they believe -- at the end of the year -- that someone is making a profit at their expense, they can set the value as high as they want at the end of that year, pay the tax, and sue the profiteer.
Simple, elegant, and coffer filling.
edit: put missing link
edit: added clarification about setting value each year anew.
There doesn't seem to be much evidence companies with fewer than 25 employees are getting sued unless there's something left unspoken here.
I think it would be more constructive to begin the discussion of what patent reform should resemble so that companies and individuals can show support for it. Some kind of software patent working group that can put forward a vision that everyone can get behind. If enough people and companies come to support a way of thinking then it will slowly affect current behavior and ultimately shape the legal framework of the future.
Even if it was a problem that companies smaller than 25 were being sued for patent infringement, I'm not sure the legal litmus test should be how many employees are at the company.
A court might well hold a company to such a pledge, on a theory of "equitable estoppel." This type of defense to an infringement charge is always highly fact-specific; here's an example of a case in which the defense succeeded:
A patent owner accused a manufacturer of eyeglass frames---which it had previously sued for infringement---of infringing other patents. After back-and-forth correspondence---in which the manufacturer denied infringement---the patent owner went silent for three years. In the meantime, the eyeglass manufacturer expanded its marketing efforts for the products in question.
The trial court held that the manufacturer was not liable for infringement, on grounds that the patent owner's actions, in view of all the circumstances, had misled the manufacturer into thinking it would not be sued. The appeals court found no error in this holding [1]; it explained that:
"In the context of patent infringement, the three elements of equitable estoppel that must be established are:
(1) the patentee, through misleading conduct, led the alleged infringer to reasonably believe that the patentee did not intend to enforce its patent against the infringer;
(2) the alleged infringer relied on that conduct; and
(3) due to its reliance, the alleged infringer would be materially prejudiced if the patentee were permitted to proceed with its charge of infringement."
[1] Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 605 F. 3d 1305 (Fed. Cir. 2010) (affirming summary judgment in favor of accused infringer), http://www.cafc.uscourts.gov/images/stories/opinions-orders/...
Paul, there is a major oversight here. The site http://thepatentpledge.org/ doesn't even have a contact form. Also, you may want to make the links nofollow.
PG: Red Hat, a multibillion dollar business, already has a working patent pledge - they won't use patents except defensively against people who attack them first. Copy that and use it.
"A clumsy parasite may occasionally kill the host, but that's not its goal"
This came up in a previous discussion on HN where I made essentially the same point. As someone pointed out in response, a parasite can get away with killing off the host as long as there's somewhere else to go next. In fact, a parasite could wipe out an entire species as long as it can make the jump to something more resilient.
it was just a short aside, but here's a link the the thread...
http://news.ycombinator.com/item?id=2760148
Start a non-profit coalition with the following rules:
(1) All patent disputes between members will be resolved by binding arbitration. The arbiters are a panel of domain experts (not lawyers!). There is no presumption that an issued patent is valid.
(2) If a member of the coalition is sued by a non-member, the other members of the coalition make their entire portfolios available for a defensive countersuit. When a member's patent is used to defend another member, the former is compensated by the latter on terms set by arbitration.
(3) There is no restriction on using one's own patents to sue non-members.
It would also be stated policy, at least in the areas of software and business model patents, that the arbiters would be directed to apply a very high standard of obviousness, so that most issued patents would be of little use in an arbitrated dispute.
Could such a thing work? No voluntary system can address the patent troll problem, as trolls have nothing to gain by joining it. But for practicing entities, it seems to me that membership in such a coalition could be beneficial, by reducing the likely number and expense of patent disputes.
Does anyone have stats on who is doing the most damage to early companies? Given the press, it's easy to think that trolls are the biggest offenders by an order of magnitude. Is there data that suggests otherwise?
Since good programmers are a scarce resource if enough of us took this pledge it could really start having an effect.
For quantities you can count (windows, money, people...), the word is "fewer." For quantities you can't, the word is "less"
The pledge should read: No first use of software patents against companies with fewer than 25 people.
---
These companies have agreed to be the first to publicly renounce aggressive use of software patents on small companies. Please join them!
A Thinking Ape,
Airbnb,
Bump,
CarWoo,
DailyBooth,
Disqus,
DotCloud,
Greplin,
Hipmunk,
Justin.tv,
Loopt,
Songkick,
Stripe,
Weebly,
Wepay
----
I think the whole YC gang is going to promote this aggressively, which means a strong network effect. Remains to been seen what happens outside this network.
PG's solution, while elegant and functional for individuals, will fail for corporations.
We have a spirit-of-the-law in America with regards to being a citizen: you pay taxes and receive benefits of living here. Corporate persons are, one would imagine, also party to this spirit of the law, yet they not only ignore the spirit, they find ways around the tax laws on a regular basis.
Even if companies were forced to comply with this by law, they'd just find away around it. Sub-25 person shell companies making up large corporations. Who knows.
The fundamental problem is the same as with the rest of corporate personhood: we have given corporations the rights of individuals but they lack the implicit ethics and social peer pressures which result in moral behavior.
One where software engineers pledge not to participate in formal patent creation. Because ultimately, all of the software patents out there were 'authored' by a software engineer. You have to have the person that actually invented the new implementation on the document.
Sure, your employment contract says that any IP you create on your employer's dime is owned by your employer. And so, sure, they could go out and pursue a patent for some new implementation that you invent. But you can stand up and say no, that you won't participate in the 'patentization' of your work (ie the formal, legal work to obtain the patent).
And without your involvement, it would likely fail. It certainly makes a statement internally and externally, at least.
How does this work? Well, you can make that commitment - in writing and verbally - when you join a company. Or you could simply state as much, formerly, in an email to your boss and superiors tonight when you get home.
With the software engineering talent market what it is anyone but a dope-shit code monkey has the leverage to dictate terms.
This problem needs to be fixed at its root, with a different law.
The S. Ct. already had their big chance in Bilski to dial back software patentability, and they blew it. Our only hope is Congress. (/me shudders hopelessly)
And to anyone suggesting we abolish patents completely: they increase societal utility in many sectors, most notably pharmaceuticals.
[1] lawyers and trolls.
I see 2 problems currently.
1. Microsoft suing Android makers, and other similar examples, where large companies burn billions of dollars of our economy over something pointless.
2. Patent trolls like Intellectual Ventures and their shell companies suing startups.
How does this solve either of these problems? Who really needs this?
In the software industry, patents are unnecessary. Because whatever is patented, even if it is not obvious WHEN patented, it (or a variant of it that falls under the patent) nevertheless becomes OBVIOUS to lots of people a mere 3-4 years later. Therefore, we can easily explain how a 20-year monopoly has wound up HURTING the industry rather than helping it. Companies implement an invention WITHOUT rummaging through new patents that come out every year. It is obvious that most of the stuff implemented in the software industry was arrived at in a different way. Non-practicing entities can sue those who actually implemented the invention 3-4 years later. Meanwhile, those who implemented it, get hit with a suit.
Therefore, patents have now become a tax on innovation.
I repeat: the inventions were not obvious AT THE TIME THEY WERE PATENTED. And, those who ultimately implemented them DID NOT READ THE PATENTS in order to get the idea for the invention. Therefore the system is not serving its purpose.
Patents are an exchange between the inventor and the public. The inventor discloses how an invention works, and in return gets a monopoly for 20 years so that no one else can implement it.
In open source, the IMPLEMENTOR not only discloses a theoretical thing but actually builds it AND releases all the inner workings of it, AND others can build on top of it. So we get the upside with no monopoly. Why do we need the latter, then, if so much innovation happens without it?
I'm no lawyer - I have to ask the logical question - does publicly stating this pledge bust any opportunity to double back (i.e. it is more legally binding than just a pledge?)
I would propose to eliminate software patents, or limit their time frame to 2 years. The industry moves way too fast and 17 years is way too long. I know pg wrote that "if you are against software patents, you are against patents", but consider this: the 17 years are completely out of proportion to how quickly the software industry moves. And the pace at which they are submitted is simply too great for the patent office to do anything appropriate in most cases. When we apply the patent trade-off to it, you get a negative result, not a positive one.
The patent trade-off is essentially that the company discloses their "secret" invention to the public, in exchange for a 17 year MONOPOLY (enforced by the government) on so much as implementing this invention in any context.
In software, innovations such as "in-app purchases" or "one-click buying" may not be obvious in 1997, but a couple years later they become "incremental improvements" that are pretty obvious to everyone. In fact, OPENNESS (open source, especially on the web with HTML, CSS and Javascript) has been the biggest driver of innovation, and not patents. Clearly, there are other motivations besides having a monopoly, and those motivations don't need the patent system at all. In contrast, they are being stifled by the patent system.
No one read the lodsys patent in order to "invent" in-app purchases. They were just bloody obvious to implement when the time came. Almost any experienced practitioner in the art would have said it was obvious when they were introduced. Then Lodsys came out of the shadows and demanded money.
My point is that the very purpose of patents is being undermined. It is supposed to promote innovation, by letting companies feel safe disclosing their "trade secrets" and "secret inventions". In reality, though, these inventions are extremely obvious to everyone when they are introduced a couple years later, and all software patents accomplish is the downside of the compromise: namely, a patent troll (a company that never implements anything, but just files patents) actually comes out and leeches money from those who DO implement the innovation.
That makes innovation more expensive, and patents become like a tax on those who actually IMPLEMENT ideas -- which we all know is much more important than merely HAVING them. For up to 17 years anyone implementing this will have to pay, and is the industry better off? Not at all. It moves so fast, that in a couple years, what was patented by a troll becomes the next obvious step. Software patents for 17 years are not benefiting society.
This is not abuse. This is the purpose of a patent. It gives you the ability to be as shitty as you want and still be the only gig in town. Society says "wow you're terrible, but thanks for letting us all know how you did it!"
Patents are largely a problem of companies buying government. But what about the people?
You can require members of the trust to invest in the trust at level relative to market cap. Breaking the trust results in loss of the assets/cash invested. The trust can also fund a defense pool/lobbying budget to protect the interests of the trust. Namely that members outside of the trust cannot successfully litigate on patents the trust hase agreed are frivolous.
edit: obviously transparency, open membership and some high profile members are useful for such a plan.
It would be more interesting if someone with the necessary legal muscle could design an effective and legal "IP shelter" from the U.S. patent system . The structure would be some series of foreign companies/organizations that could claim immunity for internet products as they would be 'foreign' and therefore not infringing. There are obviously many legal and tax issues that make this difficult (PCT, not viable for physical products, etc). However, if it could be designed and then templatized, much like Series funding documents have become, then it would allow any startup, but especially ones that attempt to tackle traditionally hostile industries (MAFIAA), to exist in a 'safe haven' away from the utter nonsense that US intellectual property has become.
Even if it creates some $X burden on startups, I am sure that most startups would be willing to pay this expense if it takes the risk of an Armageddon-like legal suit out of their startup picture. It would also be a forcing function on the US legislature due to loss of prestige and possibly revenue (imagine if the next Google incorporates in Canada and only a subsidiary works in California due to patent concerns).
I applaud that move.
http://englishplus.com/grammar/00000214.htm
And, I think the intent would be served equally well by getting rid of the restriction to software patents.
[1] Although the small entity rules define a small company as a maximum of 500 employees, rather than 25.
Since this pledge would only address this issue of secondary importance, which seems a lot less salient to the public, I can't imagine it getting off the ground.
but I think Moon have also another one side -
limits to 25 will run to huge number of small startups that can not be grow more then 25 peoples and
this is can stops investment from venture capitalists.
I think, we dont need draw a line between huge and small startups. We just need another patent system - transparent
and work well as we need. At first, we need to know, was gived a patent on our inventions or not - by few clicks.
At second - we need to know, what kind of invention and claims for it was pended but still have not sugessted.
At third, we need to see all climes of concurents patents - because we are allways can invent another one claims, and
build on them ower new products, that we can protect.
I think we can solve this problem - as technicians, we are much easier to prepare a bill
and after appeal to members of Congress or the legislature with a request to meet our demands.
We need to change the whole system. Obtaining a patent should be a simple thing as buying a domain name
or product in the online store. Now, placing an order, we practically give it to the blind -
we do not know if already issued a patent for the same invention or is it the same invention is filed by someone.
We do not know this and therefore has a great chance that in six months we will
letter of refusal and then we just lose time. This is I'm think about. And, IP and Patents is a strongly related to my startup,
I'm will apply to YC W12.
(1) would be to shorten the time that a patent is valid to 1 year . Give the Company who 'invents' (and goes through the patent process) a small head start, however in today's quickly changing world, I think that this shorter time-frame is more proportionally in-line with the R&D investment of these types of processes. Patents that protect the Physical items (that in general are more costly to develop and take a longer time to implement due to the more expensive and time consuming manufacturing processes) the protection would remain longer (engines, chip-sets, medicines, etc)
I think that these shorter term-limits will shake out the patent trolls, yet still allow a patent holder some opportunity to leverage their work and license to companies that could not wait the 1 year, however after that, it is all about execution.
(2)Perhaps another approach (and much less realistic) would be to keep the existing term limits, but have a prix-fixe license fee schedule/menu for all software and business processes. There would be a few Tiers of patents (i.e. Class 1, Class 2, Class 3, etc). You would apply to a patent (and a Class) and the license fees would spelled out for the annual license fees. Perhaps the Amazon 1-Click Patent would be Class-1 (i.e. "pretty darn obvious" and the fees would be $100 per year), etc. Anyone willing to pay the fee could license the patent (no one can be denied). This would also stop hoarding, and would allow people with legitimate inventions to monetize their investment, however still allow those that feel that they can execute to also move forward an innovate.
2. There's a presupposition that small companies are somehow better then large companies. I can say that a company like Lodysys is likely under 25 people. You don't want to put yourself in a position where you have agreed not to be agressive with any company based on their size. Many of the Inc. 500 are under 25 people.
I'd rather see a simpler pledge.
> We will use our patens defensively, not offensively.
> (Optionally)
> We will license our patents only to others who will use them defensively.
"Look, you pack of fucking navel-gazing fucktards. Put down the fucking guns, agree to pool your resources to buy sufficient hookers and Caribbean vacations for Congresscritters to have the existing patent system tossed out the door. We get it that you all sort of started out accruing vast numbers of patents, some good, some bad, some absolutely fucking moronic, in no small part to fend off attacks from each other and from evil little patent trolls, but look at how it's complicating your lives. You couldn't roll out a steaming turd without someone somewhere trying to claim you infringed on a patent they own.
Apple, you're now one of the biggest companies around. If anyone can afford the required number of prostitutes, golf club memberships, or whatever it is those corrupted evil bastards in Congress have an appetite for. Google, come on, you could help out here, same with Samsung. Then you can, you know, compete on the quality of your products, rather than trying to stuff newspaper down each others throats in what can only be described as the bonfire of the idiots."
http://dealbook.nytimes.com/2011/01/03/facebook-and-the-500-...
I'm not aware of any measurement method that any moderately smart rules lawyer (aka anyone who's played more than 5 hours of a strategy video game or pen and paper RPG) couldn't figure out a way around.
It's the companies that would make the pledge and break it or not even make the pledge at all that are the problem. Beyond a little peer/public pressure, this pledge does very little to address those companies.
My main concern is that the knowledge of a small company possibly infringing on IP (regardless of whether you feel patents exist or not) greatly disrupts the acquisition options by a larger company, as they would devalue the smaller company based on expected patent licensing/legal attacks.
On the flipside, if this can garner public pressure against the trolls-- and perhaps some real action in changing the laws, I think the world would be a better place.
Keep it up Y Combinator!
The problem is, the ones doing the suing (like blackboard which PG mentioned in a comment elsewhere) are the weaker companies with a lot to lose (as mentioned in "Are Software Patents Evil") who probably aren't attracting the best people to work for them anyway.
Here is why. Well let's say Microsoft marks its name into the current patent pledge because it's so green to be in the patent pledge even in its current form.
So now, it is the same as always, Microsoft will not be able to pursue ANY company which SEEMS to be a STARTUP at a given time from the point of view of the mass. Do you understand? Microsoft can't say: “Hey! Are you dumb? This company has 26 people so I can sue them. Don't troll me fools!” Hello the greenness… That's too late! The goal is to be green, nobody care about the strict truth. I think even a hype company with 500 people can be safe with the current patent pledge.
And probably it may even overtake the patent framework. It may be almost a "don't sue a startup" pledge.:d
You would, however, see Facebook sue startups for using the word "book" in their website name.
I wonder though if we could make the whole thing more effective by also adding an underlying threat to the pledge:
That any company, patent pledging or not, who violates the <25 rule will have their talent actively recruited away by those companies that have pledged.
I think until we see Microsoft, Google, Oracle and Apple on that list it wont be worth much.... and if we do see Apple on that list, would be believe them? and would they care if we didn't believe them?
Also, patent trolls that create patents for ideas they have, and are completely incapable of executing.
Software patents are crap.
Even if the road to a software patent-free world is a long one I think it's better to pursue that than compromise this way.
What if a company hires its 26th employee? Is that an invitation to litigate?
I commend Paul Graham on at least trying to contribute his ideas but I think we need to think more on this.
I get 'narrower' but what does 'but open source' mean here?
GET THE WORD OUT ABOUT YOUR PROBLEM!
1. Escalating embarrassment of like.com could have soured their potential acquisitions and forced them to settle.
2. If lawyers hear about your problem, they might help you. If you had the ability to reach every lawyer, professor and law student in the country, you would find someone. (Maybe not someone great, but someone who can at least avoid a default judgment and keep you in the game for another couple of years, and possibly emerge victorious.)
n.b. You do not need, or, probably, want, a patent attorney to litigate a patent case. Patent attorneys do tedious stuff with the PTO, courtroom litigators convince judges and juries. Nor do you need a lawyer from your city or state. You could have some kid fresh out of law school in Alabama dialing in to Northern District of California judicial teleconferences and filing your motions electronically.
-- Former patent litigator who would have liked to help, if he'd heard about this