Relax liability for infringers

Problem

Patent liability is strict liability. This means that all a patent holder must do is show that a defendant practices its invention, not that the defendant had any intention to infringe, or even any knowledge that the patent existed. The law, in its current form, allows trolls to target anyone who allegedly infringes.

Solution

Congress should pass a law letting alleged infringers avoid liability when they can show that they independently arrived at the invention they practice. If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it. An innocent infringer defense would protect those inventors and, consequently, shut down a major revenue stream for the trolls.

Albo Fossa
APF
Santa Fe
NM
United States
Posted Jun 19, 2012 2:16 pm
  • Software developer / engineer
"Independent arrival" is a vacuous notion, with possible noble intent, but difficult-to-impossible to prove. It would require mind-reading beyond current human abilities.
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540 thumbs up.
Joe Kowalski
United States
Posted Jun 19, 2012 7:44 pm
  • Software developer / engineer
  • Internet user
I would rather there be more of a "safe harbor" type provision. A patent owner could write a letter to a potential infringer and say, hey, we think you infringe on our patent #xxxx,xxxx, and here's why, and the infringer will have 30 days to reply with an oops we didn't know, and then have 90 days to work around the infringement, licence the patent on FRAND terms, or remove their product from the market without any damages or liability.
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498 thumbs up.
Darron Black
Houston
TX
United States
Posted Jun 20, 2012 7:07 pm
  • Software developer / engineer
  • Internet user
How on EARTH would a patent holder succeed in court if the defense could just claim ignorance?

Sorry, this just makes the whole enterprise look naive. Nobody's going to take this seriously if you leave such huge holes in your proposed system. I wanted to sign this petition, but now I can't.

The key to reform is a WORKING software patent system or NONE AT ALL. This takes the current broken system and just throws the broken on the other side of the fence.
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492 thumbs up.
Marco Meijer
Twente University
Netherlands
Posted Jun 20, 2012 4:26 pm
  • Academic
  • Software developer / engineer
  • Internet user
This idea is lacking. While the thought behind it is decent, I don't see how you could prove whether someone really did not know of a patent, or is just pretending not to know. While it seems to make things better for a lot of people, it also seems to open new doors for actual infringers.
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482 thumbs up.
Ben Bogart
Simon Fraser University
Vancouver
Canada
Posted Jun 20, 2012 4:28 pm
  • Academic
  • Software developer / engineer
  • Internet user
When you write poetry you’re using words you did not invent (though you could) to convey some idea. Likely you also use phrases and sentence structures you did not invent. Further, you may be be using allegory and referring to stories and ideas you also did not invent. So where is the line between repetition and contribution? IP and copyright clearly make the point that a particular arrangement of form may be unique and attributable to one person (or corporation).

Things get sticky when we go beyond specific words on a page or particular arrangements of physical materials. For example, software is covered by copyright; the specific arrangement of syntax and words in a digital file can be considered the same as the arrangement of words on a page. So why are there such things as software patents? They exist because (largely) corporations seek to control not only the implementation (the code) but the very process, the algorithm itself.

If you take an idea from someone else’s writing and restate it in completely different words, that is not infringement. In the world of code, a particular software process could be reimplemented so that it does not infringe on the original, but yet to the user of the program the process may be indistinguishable. What is the problem with this? Well, the algorithm is quite similar to an idea. It can be realized in many different forms without loosing its identity. I don’t think it makes any sense to attribute ownership to an idea because there is no obvious objective way of measuring how that idea is related to other ideas in order to determine its (degree of) originality.

The conceptual content of an algorithm, or a poem, is both a function of the uniqueness of the reader (associating each symbolic representation to experiences and practises in their life) and the commonality of the culture. The same relation applies to the creator of the poem or algorithm. So we return to the question, where is the line between the cultural norm and the unique and individual contribution?

I think that a part of the answer is a consideration of scope. If we look very tightly at a supposed contribution then it may seem very unique and interesting compared to the background. If we broaden the scope (look at ideas in other contexts and in a broader time-frame), then perhaps what was seen as unique and original suddenly blends into the background and its uniqueness is reduced, or even obliterated.

I would go so far to say that individual ownership (of any idea) is flawed because no human creation happens in isolation. The argument of ownership can only apply to a physical form that is implemented by a creative individual: “I made this, its mine”. That ownership only applies to the physical object, and not the content.

All creative endeavour is social and cultural, and as such owes most of its existence to culture itself. Even if you could make a particular individual unique contribution in isolation, it would have no value because it would exist outside of the context of culture. No one could even understand it because it would not depend on cultural norms for communication and purpose.

So how can one “own” an idea that cannot be excised from culture? It seems that our non-communal notions of owning physical things has crossed over to apply to ideas, but I don’t think the relation holds at all. You could even argue that you can’t own a physical “thing” because you did not pay for all aspects of its creation; somewhere in the process someone, or something, looses out (a worker not paid a living wage, an animal’s suffering, the environment), and you owe something by “owning” that object.

The worst thing about all this effort for uniqueness and originality funnelled into IP vaults, is that it deprives culture of those elements. If we lack a background of ideas and practises then that can only hurt future innovation, creativity, and originality. Ideas, including abstract processes, are cultural and social notions, and without a commons, they have no meaning and no value.
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465 thumbs up.
Buster Bo
Sweden
Posted Jul 26, 2012 5:51 am
  • Software developer / engineer
  • Internet user
"35 U.S.C. § 103 describes the condition of patentability referred to as non-obviousness. This provides that a patentable invention must not have been obvious to a "person having ordinary skill in the art" in view of the appropriate prior art." Quote: http://en.wikipedia.org/wiki/Title_35_of_the_United_States_Code

If more than one inventor comes up with the same invention, isn't it kind of an obvious solution then?
The main problem is that it is too easy to get patents granted on obvious solutions or even on prior-art. Causes to that could be granting officers of USPTO or patent lawyers who lacks the "ordinary skill in the art", or that they get paid by the number of applications they grant, or they get paid on the side by the mega-company to grant trivialities.

Millions of programmers solve problems every day (that's what programmer do) in the most obvious way they can think of. Yet they infringe on dozens of patents for every program they write, without knowing it. Nothing new can be made without paying gigantic license fees. The time it would take to check all your solutions against patent databases and then applying for licenses or doing workarounds would be multiple times longer than it takes to develop the software.

Software patents results in:
*Worse program code - Due to unnecessary workarounds of obvious solutions.
*Longer development times - Due to searching for infringed patents, licensing bureaucracy or inventing in-optimal, non-obvious workarounds.
*More expensive software - Due to licenses, lawyers and longer development time.

There is nothing good with software patents. Delete!
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432 thumbs up.
Mike Boucher
Dakota Legal Software, Inc.
Lafayette
CO
United States
Posted Sep 5, 2012 12:47 pm
  • Patent owner
  • Software developer / engineer
  • Internet user
  • Victim of patent troll
The proposal is to let infringers avoid liability if they did not infringe on the inventor's control of the right to copy. Not surprisingly, this is something called copyright. Copyright is different from patent, as it should be.

A side note: a lot of these proposals seem to have been drafted by well-meaning people with no understanding of patent law. Not understanding that you are proposing a copyright system to replace the patent system is but one example. Getting a patent lawyer involved early in your process can only help. We resume our regularly-scheduled programming...

Despite apparently proposing a large change, the proposal to allow "infringers avoid liability when they can show that they independently arrived at the invention" actually changing a few words and phrases to get to exactly the same place. To see why this is so, understand the law of copyright from which this proposal seems to have originated.

To show copying, a plaintiff must show that a defendant had access to the information and that there is substantial similarity between plaintiff's protected work and defendant's infringing work. Showing substantial similarity is simply the analysis of infringement that already takes place. The new element is a demonstration that defendant had access to the copied information. Plaintiff has presumably filed an application for a patent on the invention with USPTO and had them publish it on their public web site, which is well-known by many and indexed by Google for everyone else, which is sufficient to show access.

The new element that you propose is satisfied by the existence of the patent, which must already be demonstrated to show standing, and the old element is already litigated under the present system. So your effort to convert the patent system into a copyright system is a nullity. The elements of copying are already established by facts that must already be proved to establish infringement. You may have a different idea of copying with different elements than are found in copyright law, in which case you are proposing something different. However, if so, you are probably proposing something defective because you are not taking advantage of centuries of copyright jurisprudence to determine whether there was or was not independent copying. Either way, this is a poor idea.
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423 thumbs up.
Sergey Babkin
United States
Posted Sep 11, 2012 11:20 am
  • Software developer / engineer
  • Internet user
A horrible idea. It will make the patents useless because it will be impossible to prove that someone had seen a patent or an implementation based on it before they used it. On the other hand, the patents must not cover the obvious solutions. If given the problem, any engineer with reasonable experience in that area comes with a solution in an hour, this solution must not be patentable.
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419 thumbs up.
E. M.
Frisco
United States
Posted Feb 16, 2013 4:39 am
This makes perfect sense, and provides a good working definition for what is "obvious."
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418 thumbs up.
Benjamin Fritz
United States
Posted Aug 24, 2012 8:24 pm
  • Software developer / engineer
  • Internet user
In the software world, just keeping a history of your code and the changes to it (read: version control), should be enough in many cases to show that you came up with the idea yourself or gradually evolved your software naturally. More complicated things would no doubt need dated design documents or mathematical derivations or whatever. I see no reason why it would be difficult to show that you came up with something without copying it. It's the same sort of information I understand is needed to defend a patent's validity in court.
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417 thumbs up.

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Ritu Agarwal
Ritu Agarwal
delhi
India
Posted May 19, 2015 3:06 am
  • Venture capitalist / investor
I am going to invest in Cameroon to start new business. please inform me that:
1.patent (blatant tax-municipalities) applicable for companies registered under Free trade zone & what will be tax %.
2. Applicable time period (i.e. from 1st or 2nd or 3rd year to start business or )
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144 thumbs up.
Chris B
San Jose
CA
United States
Posted Mar 1, 2013 7:19 pm
  • Patent owner
Independent invention in patent law is asinine. What's the motivation for disclosing your invention in a patent if some other yahoo can just say,"oh yea, I totally came up with that too..but I did it independently, so you can't touch me"

I surprised such an organization as smart as the EFF has proposed this moronic idea.
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387 thumbs up.
E. M.
Frisco
United States
Posted Feb 16, 2013 4:39 am
This makes perfect sense, and provides a good working definition for what is "obvious."
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418 thumbs up.
Stephan Kinsella
Kinsella Law Group
Houston
TX
United States
Posted Feb 6, 2013 11:35 am
  • Lawyer
  • Academic
  • Venture capitalist / investor
  • Internet user
This defense would be good, and could be made workable, despite some concerns expressed by other commentators; essentially the patentee should have to prove copying, as copyright holders have to do in copyright suits. One way the defendant can prove they did not copy is to use a "clean room" approach as is done in software design to avoid copyright infringement.

The problem with this defense, however, is that patentees can still sue competitors who do actually copy them. There is nothing wrong with emulation; it is part of the free market process. The entire patent system should be abolished. Still, limiting patent rights by the proposed defense would be a step in the right direction, as it would reduce the harm patents do to the economy. Basically any reform that makes patent rights weaker is good. I discuss other reforms at http://c4sif.org/2012/03/2011/03/11451/how-to-improve-patent-copyright-and-trademark-law/

Though this might do a bit of damage to my career, as I'm a patent attorney.
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388 thumbs up.
Colleen Chien
Santa Clara University School of Law
PIEDMONT
CA
United States
Posted Sep 25, 2012 2:54 pm
  • Academic
Companies are increasingly the target of patent suits because they are users, rather than makers, of technology. Innovatio LLC has sued small coffee shops and hotels that use wifi, and Project Paperless LLC has sued small businesses over their use of digital scanners. 40% of respondents to a survey stated that they were being targeted because of their innocent use of another’s or a widely available technology. The practice of suing those who innocently use technology instead of those who make the technology, if within the court’s reach, should be discouraged. Courts can do so through active case management and staying cases brought against users; Congress could consider adopting some version of an “innocent user defense” or expanding existing limits on liability for users of technology that now exist for surgical method patents to internet and software technologies that represent staple articles of commerce. This paper discusses the practice and defenses I describe. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146251
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415 thumbs up.
Sergey Babkin
United States
Posted Sep 11, 2012 11:20 am
  • Software developer / engineer
  • Internet user
A horrible idea. It will make the patents useless because it will be impossible to prove that someone had seen a patent or an implementation based on it before they used it. On the other hand, the patents must not cover the obvious solutions. If given the problem, any engineer with reasonable experience in that area comes with a solution in an hour, this solution must not be patentable.
up
419 thumbs up.
Mike Boucher
Dakota Legal Software, Inc.
Lafayette
CO
United States
Posted Sep 5, 2012 12:47 pm
  • Patent owner
  • Software developer / engineer
  • Internet user
  • Victim of patent troll
The proposal is to let infringers avoid liability if they did not infringe on the inventor's control of the right to copy. Not surprisingly, this is something called copyright. Copyright is different from patent, as it should be.

A side note: a lot of these proposals seem to have been drafted by well-meaning people with no understanding of patent law. Not understanding that you are proposing a copyright system to replace the patent system is but one example. Getting a patent lawyer involved early in your process can only help. We resume our regularly-scheduled programming...

Despite apparently proposing a large change, the proposal to allow "infringers avoid liability when they can show that they independently arrived at the invention" actually changing a few words and phrases to get to exactly the same place. To see why this is so, understand the law of copyright from which this proposal seems to have originated.

To show copying, a plaintiff must show that a defendant had access to the information and that there is substantial similarity between plaintiff's protected work and defendant's infringing work. Showing substantial similarity is simply the analysis of infringement that already takes place. The new element is a demonstration that defendant had access to the copied information. Plaintiff has presumably filed an application for a patent on the invention with USPTO and had them publish it on their public web site, which is well-known by many and indexed by Google for everyone else, which is sufficient to show access.

The new element that you propose is satisfied by the existence of the patent, which must already be demonstrated to show standing, and the old element is already litigated under the present system. So your effort to convert the patent system into a copyright system is a nullity. The elements of copying are already established by facts that must already be proved to establish infringement. You may have a different idea of copying with different elements than are found in copyright law, in which case you are proposing something different. However, if so, you are probably proposing something defective because you are not taking advantage of centuries of copyright jurisprudence to determine whether there was or was not independent copying. Either way, this is a poor idea.
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423 thumbs up.
Omar O'Hara
Red Razor Media
St. Louis
MO
United States
Posted Aug 28, 2012 9:39 am
  • Internet user
Would it be possible to use a port of Google's patent search utility to create a database of patent searches? This might go a long way toward proving that someone was unaware of an existing patent.

A developer could apply for a unique ID
Each developer could then search for existing patents; each search and criteria would be stored in the database
If there was ever a question of infringement, the defendant could use this search database as evidence to assist in proving their lack of knowledge.

Of course, this would require that the patent search back end be intelligent enough to suggest existing patents based not only on the entered search criteria, but on branched iterations as well; similar to what Google's knowledge graph provides.

I think the key is to show due diligence on the developers part.
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416 thumbs up.
Benjamin Fritz
United States
Posted Aug 24, 2012 8:24 pm
  • Software developer / engineer
  • Internet user
In the software world, just keeping a history of your code and the changes to it (read: version control), should be enough in many cases to show that you came up with the idea yourself or gradually evolved your software naturally. More complicated things would no doubt need dated design documents or mathematical derivations or whatever. I see no reason why it would be difficult to show that you came up with something without copying it. It's the same sort of information I understand is needed to defend a patent's validity in court.
up
417 thumbs up.
Tyler Jones
TurtleShroom Productions
Oakwood
GA
United States
Posted Aug 2, 2012 5:48 pm
  • Academic
  • Internet user
This would shift an impossible burden on legitimate patent prosecutors. If the defense can merely claim "Oh, that was patented? No idea.", and walk, it would destroy the purpose of patenting, and not just on software.

Software is a very special breed to patent, and while it should be handled differently, the ancient maxim still applies. "Ignorance of the law is no exuse for breaking it."

"Ignorance that someone beat you to your patent is no excuse to break a patent."


Look at poor Eli Whitney. He never got a patent, but let's use this example and say he did.
Eli finds another farmer running a cotton gin and knows it was stolen from his gin, because of the way it goes about threshing the seeds from the cotton. He knows exactly when and where.

Now, this farmer and Eli stand in an old courthouse on a hot summer day, poor and representing themselves. The other farmer looks to Eli and simply says "Ol' Whitney got a patent on this here gin 'fore I did?"

"Yeah, I did."

"Well, no one sent me any writin' 'bout that, and Lawd knows I cain't reach the Patent Office for several weeks. I had no idea 'bout Eli's patent."


-and under this proposal, simply claiming that one did not have an idea that they were infringing is a way out? There's no justice or protection of innovators if that happens. This Point must be dropped or heavilly edited to further serious discussion. Perhaps a method of cease and desist, or a grace period to invent a new workaround could be temporary solutions.

Of course, tort reform is, to me, the best bet. A toaster inventor with cash to spare could sue another toaster inventor if the handles were the same shape, and he wouldn't care if he won or lost because of the legal fee system.

If the loser had to pay- as the toaster example would probably fall upon the one bringing suit -it would make ligitation a neccesity, and not a quick cash oppurtunity.

Another example of tort reform is, as was suggested in a Point on this petition, was to approximate earnings in proportion to the amount of damage patent infringing was causing the company. If a company sues for a product that's been dead for thirty years, and now only contributes less than one percent of their revenue, why should they earn millions? If a patent infringement is costing you ten thousand dollars, you should be awarded ten thousand dollars, the legal fees, and possibly ten percent interest, so that a small carry away package could be used to further the company. That way, a ten thousand dollar loss wouldn't turn into a ten million dollar lawsuit, and justice would sway the court, not greed.
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416 thumbs up.

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