Google, Yahoo, Others Sued Over Solitaire Patent

An anonymous reader writes "Back in 2004, Slashdot posted about computer solitaire being patented. It was a ridiculous patent and made it onto the EFF's list of worst patents. However, not much had been heard about that patent until now. It turns out that the patent holder, Sheldon Goldberg, is now using that patent to sue a bunch of different online publications, including Digg, eBaum's World, the NY Times, Cnet and the Washington Post. He's also suing Google, Yahoo and AOL (why not?)."

Why not microsoft?

[Bert64 (520050)]

Why don't they go after microsoft too? They've been distributing a computer solitaire game for many years in clear violation of this patent, and they have plenty of money to sue them for!

Re:Why not microsoft?

[quazee (816569)]

Most of the claims of that patent involve a networked version of a card game, where users play simultaneously with a "computer opponent".
Things such as advertising and scoreboards are mentioned as well.

So, the Windows Solitaire is less susceptible than a Web-based card game with advertising/leaderboard.

Re:Why not microsoft?

[conlaw (983784)]

So, the Windows Solitaire is less susceptible than a Web-based card game with advertising/leaderboard.

If you go back to the original article, http://trolltracker.blogspot.com/2008/01/4-interesting-new-cases-from-last-2.html [blogspot.com], you'll see that this guy also claims to have patented on-line game rankings, and pop-up advertising!

Re:Why not microsoft?

[Zordak (123132)]

Why don't they go after microsoft too? They've been distributing a computer solitaire game for many years in clear violation of this patent, and they have plenty of money to sue them for!

Because the claims don't read on a single-player card game. The claims positively recite multiple players. Taking a quick look at the claims, it looks like this is one of those instances of doing something well-known over a network. Given the Supreme Court's recent KSR decision, you could probably invalidate this by finding an instance of somebody doing the same thing not on a network.

I am a patent lawyer, but I don't represent you. This post should not be relied on by anyone for any reason. This post is my personal opinion, and is not endorsed by Jackson Walker LLP, its agents, or partners.

Re:Why not microsoft?

[WhatAmIDoingHere (742870)]

Gotta love that multiplayer Solitaire.

Killer solitaire

[AlpineR (32307)]

Despite the oxymoronic name, there does exist a fun multiplayer variant of Klondike solitaire. Each person plays their own deck and columns, but the stacks where you put cards in A-2-3-...-J-Q-K order are shared. Each ace starts a new stack, so there can be multiple partially complete stacks for each suit. The first player to get all of their cards out of their columns and onto any of the stacks wins. It's fast-paced and competitive.

Re:Why not microsoft?

[Zeinfeld (263942)]

Because the claims don't read on a single-player card game.

But Hearts is a multiplayer, network card game.

The troll might not want to go after Microsoft with a patent filed in 2001 for a game that has been in Windows since '95. Might be a teensy bit difficult to prove priority, lack of obviousness etc.

If I was looking for prior art that is where I would probably start. But there are entire histories of networked computer games.

I am not a lawyer, this is not legal advice. Although I am qualified to act as an expert witness I am not your expert witness. This post should not be relied on by anyone for any reason.

Re:

[Actually, I do RTFA (1058596)]

Although I am qualified to act as an expert witness I am not your expert witness.

What special criteria doe someone have to meet to be considered an expert witness?

Re:Why not microsoft?

[spun (1352)]

What special criteria doe someone have to meet to be considered an expert witness?

You have to, you know, witness a lot of stuff, and you have to be really good at witnessing stuff. Me, I've witnessed stuff all my life, but I never really paid attention, so although I'm a good witness, I'm not an expert.

Re:

[It'sYerMam (762418)]

They have to be an expert in some field - sufficiently such that they can testify based on technical evidence.

Re:

[Zugok (17194)]

Witnesses, in general, can not give evidence beyond what they can ascertain from their five senses, i.e. opinions generally can not be accepted. Expert witnesses can give an opinion which must be supported by their knowledge in the field. Generally you need to have specialist knowledge, usually technical, and be a recognised authority or qualification in the relevant field of evidence in question (so that excludes astrologists).

Re:Why not microsoft?

[Zordak (123132)]

My firm requires me to have a disclaimer. I'll admit I'm not always meticulous about it, but I can get really screwed by a post that sounds like I might be opining on whether a patent is valid or infringed. They basically own me, just like your employer probably owns you, so they can tell me to do stuff like that. Link or no link, I'm still an attorney, I work for a firm, and they can be held accountable for many of my actions.

That said, sure, no reasonable person would think I represent them or that they're entitled to rely on my post as legal advice. But there are a lot of unreasonable people in the world, and they're the ones most likely to sue. Lawsuits are expensive, even when you win. So practicing law turns out to be lots of making sure stupid people don't sue you. If you want proof, hire a lawyer to give you a legal opinion, and read the disclaimers in that.

Isn't this the best possible thing to happen?

[Ochu (877326)]

We have a fly-by-night organisation, suing at least eight major companies, with a patent that is clearly a joke.
Our legal system works as much by precedent as by legislation.
When the NYT, CNet and Google fight this as hard as they are going to, this will set that precedent, and it will set it hard. It will make it that bit harder for frivolous patents to ever reach court, and might, just might, prompt a re-evaluation of the entire system.

Use it or lose it

[Marcion (876801)]

I don't like the idea of owning ideas and other things that do not exist, but if we have to have a patent system, then I think there should be a "use it or lose it" element to the patent system. If you can prove that you are trying to make a product out of it, or have licensed it to someone who is trying to make a product out it, then you are allowed to approach the courts to try to have your patents enforced. Otherwise, all bets are off.

70% of patent actions are by people who stockpile patents but produce no products. These patent trolls are just leeches are should not be allowed to hinder real companies who actually make things.
 

Not a good idea...

[Per Abrahamsen (1397)]

Traditional patents does most damage when the patent holder release some poor and overpriced product only few can and will afford, basically holding back the benefits of the invention for the duration of the patent.

I believe induction cooking was delayed that way, because the holder of a key patent only used it in its own very exclusive brand, and refused to license it to cheaper brands with better distribution channels.

It is much better if the patent holder has no products of its own, and instead offers patents to everyone on RAND (reasonable and non-discriminatory) terms.

Even better, of course, would be to do away with the patents.

Re:

[forand (530402)]

So most people don't seem to RTFA here but you do not appear to have read the post you are replying to. The parent to your post said that if they patent owner had licensed the patent or were bringing a product to market then they could keep the patent if not then all bets are off. So how is your comment relevant at all?

Depends on the meaning of "use it".

[argent (18001)]

"Use it or lose it" doesn't mean "make it or lose it", it can also mean "actively promote or license it" as well.

Re:

[Nullav (1053766)]

What about just putting heavy research into something? You know, spending months/years on a new type of...elevator, and then filing an 'I might use this' patent (with proof of actually having spent this time/effort). Patents aren't just there for temporary monopolies, they also exist to provide details on the invention.
Some people have genuinely good ideas, but don't have the capital to do anything with them without licensing them to someone else.

Re:

[Marcion (876801)]

Well as I explained above, if you licence your patent to someone else and they try to make a product out of it, then you pass the test.

Re:cut 'em off

[kanweg (771128)]

The term is limited, to a period of 20 years. As an incentive not to keep the patent in force for any longer than necessary (and to pay for the patent system and bring in some tax money), there is a renewal fee to be paid every year or in odd cases (US) every couple of years. The fee gets higher the longer you want to keep the patent in force.

Patent terms are way more reasonable than copyright terms. And for a patent you have to meet high standards (OK, in some countries they sometimes make a joke out of that) and it is quite costly. Now, compare that to copyright. It doesn't cost anything, doesn't require registration and lasts for all practical purposes forever.

As to the HIV issue you mention. Just about any patent law has an article allowing the government to step in and end the monopoly prematurely. This is not done for trivial reasons, but in case of say - a bird flue epidemic - a patentee cannot hold a country at ransom. Brazil did it recently when some drug company insisted on charging too much.

Bert

Re:

[Artifakt (700173)]

The U. S. Congress has added an additional term of up to 5 years to the normal 20-year patent term for pharmaceutical patents. This is designed to prevent financial losses from the additional time it takes a pharmaceutical manufacturer to get a new drug approved by the Food and Drug Administration eating up a substantial portion of overall patent life.
Overall, this may be fair. Concerns include whether the variable additional term awarded is sometimes not a close match for the time actually t

Re:cut 'em off

[HiThere (15173)]

It's more difficult than that.
1) The current patent system is broken in ALL industries, but some sort of patent system is probably desirable.
2) For inventions that require a lot of up-front investment, a longer patent is more justifiable.
3) For industries that don't require the patent to reveal sufficient information to allow others to reproduce the invention easily, patents should be invalid.
4) When the system requires a patent lawyer to understand what the patent means, individuals who are not patent lawyers should not be affected.
5) There are a lot of undefined terms in the area of patents. These should be removed. Examples are "obvious", "skilled in the art". These need to either be made more precise, or removed from patent law...and if they are only well-defined to lawyers or patent-lawyers, then the laws containing those terms should only apply to lawyers or patent-lawyers.

A lot of these problems stem from the problem that nobody can define what a patentable invention is. As long as this is true, you're going to have either bad patent law or none ... but it doesn't need to be as bad as the current law.

But remember, some things are cheap to copy, but expensive to invent. It's for the protection of these that patent law is reasonable. And it's unfair to second-guess how expensive it *should* have been to invent after the fact.

Sometimes I think a patent should be not a license to manufacture, but a prize, rather like the X-prise. Each year in January congress should appropriate a certain amount of money, during the next January the "Patent Prize Commission" should allot that money among those filing for inventions during that year. It would be necessary to reveal sufficient information to allow others to copy the invention cheaply (i.e., without going through either the process of invention or of reverse engineering). If you don't win, your process remains your secret. You can file as often as you desire until you have won, but there's a fee for each filing that is estimated to cover twice the cost of handling and evaluation. If two or more entries in the same year are essentially identical (in the judgment of the judges), and it is still deemed a worthy invention, then the prize is split. All winning entries become public domain.

I'm not really sure that the prize would be better than the current system, but it's hard to see how it could be worse.

Re:

[Jay L (74152)]

I think you're right (IANAL though).

When you're suing the bad guys, you sue the most obvious ones first. And if you're lucky, they appeal and you win. Then it's binding predecent, not just influential.

THEN you go sue the less-obvious bad guys, because you've laid the groundwork.

It doesn't often happen in the reverse, but it sure could be helpful...

Re:

[Yvanhoe (564877)]

We need a +1 wishful thinking.
I hope you are right, but this guy may well have a case in the current legal system

Re:

[slashbob22 (918040)]

I agree to a large extent to your points; more examination is required to ensure that patents aren't useless.

The converse is making everything more difficult to patent (through whatever means) the effect this may have on individuals could also be huge. Joe Blow may invent something that could change the world, is new, unique, un-obvious and "should" qualify for a patent - now that patenting take a lot more resources he/she has a barrier to entry that organizations like google / yahoo! / etc can meet easi

MUD

[Marcion (876801)]

One of the patents is for a method for playing games on a network. Network gaming systems have been around for as long as networks. For example, in 1977 there was a little game called MUD.

Obviousness in to the US patent office is of course different than the rest of humanity.

More Info.

[headkase (533448)]

Techdirt has more: details [techdirt.com]. To add to the conversation, it also asserts a "networked gaming system" but again that's pure bollocks as Quake and Doom before it obviously provide prior art even for that!

that's the genius

[Racemaniac (1099281)]

that's the brilliant part of their invention i assume. adding a network part to a game you can only play alone. it's pure genius!

Re:

[edwardpickman (965122)]

It's so other sad, bored lonely people can watch you loose at Solitare across the network. Next step will be a solitare MMO. Wonder if they patented that yet?

Re:

[wikinerd (809585)]

apparently the network part is for calling home to reveal your biometrics and how long you take to complete each move, so that a helpful company representative can help you understand that privacy is dead.

Great

[Waccoon (1186667)]

My Clubs. Let me show you them.

Suing eBaum's?

[by Anonymous Coward]

And nothing of value was lost.

Re:

[Nullav (1053766)]

Nope, just the copies. :p

Is it too late......

[edwardpickman (965122)]

To patent chess or checkers? How about tick tac toe? Yes it's a new use for it but you might as well say printing on ePaper requires a separate copyright since it was never copyrighted specifically for that purpose. There has to be a limit set on persuing these claims as well. You shouldn't be able to wait until lots of deep pockets are involved for multiple years to sue so you know the damages will be high. The absolute maxium should be 12 months since a product was released but they should be required to give notice the moment they are aware of the infringement. Solitare is like traditional folk music which can't be copyrighted. It's been around too long and simply doing a computer version isn't changing it enough to warrant a patent. The code would be patentable but not the game. If they were all stealing code then that's a different issue.

Re:

[Yvanhoe (564877)]

Apparently, web-based version with a little twist nobody thought to implement before (there is a voice chat with web based chess and contextual ads! Yay!) could be patented.

Re:

[david_thornley (598059)]

I hung around Groklaw for a while, so I found out about the legal idea of "laches". There are people over there who can explain it far better than I, but the general idea is that you can't let patent violations pile up until you can sue for scads and scads of damages. It would be difficult to argue that the patent holders were unaware of solitaire games on computers, and I haven't heard of them asking Microsoft et al. for money before, so I'd think laches would apply.

Of course, if this patent is upheld

As dumb as it seems...

[notgm (1069012)]

As dumb as it seems, I cannot really be mad at anyone who actually gets to sue ebaums. I've never been a fan of the way he treats IP rights-holders.

Impossible

[jrothwell97 (968062)]

As unlikely as it may seem, Microsoft could be a saviour in this case. If I remember correctly, its (rather good) implementation of patience solitaire has been in Windows since 1990. Far before the patent was issued. So there.

Re:

[Alioth (221270)]

I remember playing Solitaire on a (networked no less) BBC Microcomputer ... in 1987.

Re:

[allenw (33234)]

Computer versions of Solitaire pre-date the Windows versions. For example, Compute! ran listings for Canfield [atarimagazines.com] in one of its last issues that had type-it-in-yourself code (1988). Other links on the the Compute! index page [atarimagazines.com] show even earlier versions (e.g.,1986).

A modest proposal to deal with this crap

[fnj (64210)]

The patent office pooped big time when this patent was granted. As long as there are patents, that problem will never be solved, but there are other ways it might be dealt with.

In some jurisdictions, "loser pays costs" is a way of inhibiting frivolous lawsuits. I'm not inclined to favor this, because one may too easily lose a case that has real merit, but ...

How about a provision where, if the case is duly found to be unusually frivolous, or glaringly without merit, loser pays triple the costs of the defendant and court?

Re:A modest proposal to deal with this crap

[Dhalka226 (559740)]

The problem with any loser-pays system is it substantially favors corporations and other interests with big dollars, moreso than the system already does. They are already behind the eight ball by (probably) having an inferior legal team and far fewer resources. Under your system, they also have to operate under the threat of being forced to pay three times that massive legal team's expenses? Remember, 3 * $1,000,000 for a regular person is a crippling sum of money. 3 * $100,000 for a corporation is nothing.

Even if you were right and should win, what kind of odds would it take for you to bring suit with that possibility hanging over your head? Is a 20% chance of ruining your life (80% chance of victory) small enough? 10%?

Does that mean...

[Nullav (1053766)]

...this patent troll's trolling?

Seriously, I see no way that anyone would do something like this to do anything besides prove a point. It would be like someone being sued over the 'circular transportation facilitation device' patent from a few years ago.

Prior Art?

[by Anonymous Coward]

According to EFF, the date to beat to show prior art is January 19, 1996. In 1994 Microgaming Software Systems released the first online casino in 1994.
http://www.gov.im/ebusiness/microgaming.xml [www.gov.im]
http://en.wikipedia.org/wiki/Microgaming [wikipedia.org]

Any other cited examples of prior art? Help shut down this asshat and contribute your prior art info to: http://w2.eff.org/patent/wanted/contribute.php?p=sheldon [eff.org]

Time to sue

[DuctTape (101304)]

For some odd reason I think that it's a grand and glorious idea to sue people left and right on silly patents just to perhaps get it through Washington's head that the patent system is broken and needs to be fixed. I'd bet you'd be hard-pressed trying to come up with any new business process or idea that somebody else hasn't patented or at least partially done by someone else that wouldn't be an invitation by that someone else to sue you if you did a better job than they did.

Or perhaps we just need to put

Don't lambast them

[mrmeval (662166)]

Emulate them, get ridiculous patents and then sue everyone you can. Eventually you'll make patents worthless enough and be enough of a pain in the ass that there will be a change in the law.

The other thing is to file as many patents as possible with as little money as possible to gag the patent office.

Contribute to the EFF

[Anderlan (17286)]

The only way I see the BS in software patents (and unbalanced copyright) coming to light is by the people who know the system doing the hard work of moving things along and educating the judiciary and public. The EFF is doing this. We can never contribute enough to compare to what the bad guys' lawyers have, but we don't have to. Just enough to knock some sense into people.

What the deuce?

[Kamineko (851857)]

What the deuce?!

This is an outrage! Tell the King! Tell the Queen!

Let me get this straight... Rushing for diamonds? That's no way to win hearts and minds. That takes patience.

In fact, if they carry on like this, some hot-headed ./er is gonna club them to death with a spade.

I really hope that a court loss is on the cards for them. And if they whine, I say 'Deal with it'.

Re:

[Kamineko (851857)]

On reflection, I suppose one has to shoot for the moon every now and then. It's still no excuse for being reckless and only doing whatever suits their interests.

Re:

[edwardpickman (965122)]

Dude if there's anything on this planet that qualifies for prior art it's suing for patent infringement. They're the ambulance chasers of the tech world.