I never thought I'd find myself defending a plaintiff in a patent lawsuit, but some of HN has really gone off the deep end with this anti-patent nonsense.

This is a company who are defending their legally granted competitive advantage in a field in which they actually compete. I don't know that I consider a foam arrow sufficiently non-obvious to patent, but that's neither here nor there.

Not only is this not troll-like, this is precisely the sort of situation for which patents were designed. Someone comes up with an idea; thinks, "huh, this idea would be easy to steal"; and applies for protection against it being stolen.

A patent does not have to be on a final good or service, and owning a patent does not oblige you to sell a product to anyone who asks. If you have a patent on industrial machinery to protect your own production chain, you're not required to build one for anyone who is willing to put up the cash for it. It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement.

To draw a rather apt analogy - there is a laser tag company in my parts (basically you run around in a darkened room shooting each other with guns that fire a little IR laser) - they don't sell their equipment to anyone who asks - it's a competitive advantage for their venues. I don't know whether or not they have patents, but I don't see how you could reasonably argue that they shouldn't have them if they designed the equipment, or that they should be required to provide that equipment to others. If they were required to do that, what would be the point of the patent?

And just to save accusations of cherry-picking, I agree with you about the non-guaranteed region rah rah, but it's rather beside the point.

>It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement.

Personally, I think it's ridiculous that someone could create something "obvious", refuse to sell it to you and also restrict you from making it yourself. The world shouldn't work that way. I hope courts agree.

Right, but you're rolling two issues into one.

I agree with you on the creating something obvious part, and the patent perhaps shouldn't have been issued (though scroll down for more discussion on that, it's more complicated than it seems at first, and it looks like prior art is more of a concern that obviousness - the patent is not simply for "foam arrows").

But restrict you from making something they designed and won't sell you?

Well are you making it to sell or for personal use? Making it for personal use, I agree, and I think it's unfortunate that the law does not.

Selling it, which is what the defendant did? No, that's the point of a patent.

This entire post is beside the point. I was talking about a franchising scam. These are not the business practices of a successful manufacturer successfully selling its valuable products. Apple and Samsung don't pull this kind of shit. This sort of thing preys on unsophisticated people who have a bit of money saved, by separating them from that money before they've seen enough to know how valuable (or not) the foam arrow product is. Read the first sentence of the FAQ: "Pricing details are available when an application to be a Licensee is approved..."

I'm all for caveat emptor, but once they've crossed that line they've lost the moral status to demand society's assistance in punishing competitors. Besides, what are we talking about here? Any 9yo could figure out how to attach a foam tip to an arrow. They've spent far more time obtaining patents and setting up complicated commercial schemes than they have developing a product. The entire patent system is seen by many as harmful and unnecessary. This isn't the example that's going to prove it's not.

How is it a franchising scam? I'm agreeing that not guaranteeing an operating area is a bit shit, but reports (from within this very thread, no less), suggest that it is very much a real and, more, worthwhile, outfit. Then again, I don't really care if it's good or a pile of shit, there's no law against having a crappy product.

Withholding pricing details is pretty standard for franchises. I would probably agree (somewhat) with a point that franchising as a system often tries to take advantage of unsophisticated people, but I don't see much evidence that this is anything more than par for the course.

> Any 9yo could figure out how to attach a foam tip to an arrow.

As I said, I didn't disagree with the obviousness, though it's become murkier, read more discussion below.

> They've spent far more time obtaining patents and setting up complicated commercial schemes than they have developing a product.

Feel free to back this up any time you like.

>legally granted competitive advantage

I don't understand how it could be called a competitive advantage when you have to run to the law to fend off your competitors.

Actually I don't really understand the whole idea theft scenario, shouldn't it be the patent holder's responsibility to prove others have stolen their idea? Innocent until proven guilty etc. If your product can be 'reverse engineered' just by looking at them, good luck with that, chances it was obvious in the first place.

>I don't understand how it could be called a competitive advantage when you have to run to the law to fend off your competitors.

The whole point of the patent system is to encourage people not to maintain trade secrets - to share their developments and in exchange be guaranteed time in which someone is not allowed to compete on that front. You're giving up practical ability to defend your advantage, on the understanding that the law will pick up the slack.

>If your product can be 'reverse engineered' just by looking at them, good luck with that, chances it was obvious in the first place

Sophistry. Look at Velcro: it's easy to see how it works on examination, but it was a damned clever idea, and not remotely obvious.

What is so bad about trade secrets? You either share or keep to yourself. Sharing something then prohibiting others from replicating it is just pretending that there is a cake you could eat, but you are forbidden to do so.

I agree we have a different definition for obvious, but I would argue that mine is at least very straightforward. If you think your idea is novel but very simple, you have to go a step further and find out how to monetize it better than others. I think it is my responsibility to protect my interests e.g. trying to keep it a secret by obfuscating the code. We do this all the time in software.

>What is so bad about trade secrets?

Nothing in particular, but there are lots of times when it's useful to a society for people not to keep them.

Patents generally last a little over a decade, after which competitors are free to use them. If you keep your developments secret, they could stay secret for decades, which means decades in which competitors couldn't study, improve upon, fix your ideas. It slows the pace of progress, or so the argument goes.

You can agree or disagree with the sentiment, but I don't think it can be dismissed out of hand.

>you have to go a step further and find out how to monetize it

I think this comes back to society's interest, as all discussions of patents must.

It's not necessarily in society's interest for you to withhold developments until you find a way to protect them. What if drug manufacturers refused to sell drugs, only dispensing them on location, for fear of others stealing their secrets?

What if someone came up with an idea like Velcro, to hark back, and never developed it, seeing the cost and realising that the IP could never be protected. Would we be better off?

I would like to believe the answer is yes, but to be honest I'm not so sure. I don't think patents are the main driving force of innovation and research, and we would come to a halt without them. But even if they are, when you are the first to come up with an idea you are still in the best position to turn a profit off it without patents. Sure, your margins might be smaller, but society as a whole should benefit from a more competitive environment, compared to squeezing every drop of money to a single company.

From previous discussions I took away big pharma R&D and PR cost breakdown is usually very sad. You can defend a case like Solvadi, that Gilead is entitled to maximize their profits, but it is not in society's best interest after all, as I think it is not directly looped back into innovation.

You demonstrate a misunderstanding of why the patent system exists (not surprising given the people that profit from it go great lengths to ensure this is the public perception). The legal protections baked in the the patent system are supposed to be a side effect; they are the carrot to get people to buy into registering a patent. The intended result is to provide a path for non obvious ideas to enter the public domain. The legal protection is provided to discourage people from hiding or obfuscating construction plans to maintain their monopoly while also ensuring that those same plans are on record at the patent office so as soon as the device enters public domain access is available to all.

Under this scheme the "ability to franchise the making of foam in a specific arbitrary shape" completely fails the test of being unique or novel and is 100% divergent to why the patent system exists.

You seem to be entirely skipping over the novelty requirement as well as non-obviousness.

I was actually intentionally skipping over everything about the granting of the patent, the non-obviousness was just the first thing that came to mind.

The point I was making, which I thought my post made clear, was that the granting of the patent is immaterial in discussions of its enforcement.

But it's not immaterial. When a company becomes aware that its patent should not have been granted and can be invalidated, it is entirely (and legally) pertinent when considering bad faith enforcement actions.

In this case, the company is likely now aware that the particular "stolen" arrows in question had been designed and manufactured by that manufacturer many years before this company filed its patent.

The company is not protecting itself against copies of an idea that it came up with.

But did it know it before the case? Has it had time to withdraw its claim since this information has become widely known? In fact, does anyone know anything about the company besides what its legal opponents have said?

I'm not saying this company is necessarily acting in good faith, but there is an enormous presumption of guilt going on, which started long before anyone started discussing prior art, on a case which is not prima facie unreasonable.

Oh, now I understand! You meant to say that if we ignore everything about the plaintiff, the actions the plaintiff has taken in and out of court, what we know about the patent, and what we know about the products that were actually being sold, we should be able to consider the case in tabula rasa fashion, and give the patent the benefit of the doubt. I guess I was confused because this was in response to something about odious franchising...

Except, any particular patent won't get the benefit of the doubt from a jury of software people. We've seen the harm patents have done in our industry, and we're sensitive to the harms they've done in other industries and in society as a whole. There probably are some plaintiffs that would inspire some sympathy from us despite that, but this certainly isn't such a plaintiff.