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Patents of Business Destruction 171

Posted by CmdrTaco
from the something-to-think-about dept.
SnapShot writes "Over on Slate there's an opinion article on the Blackberry patent case. Here's a quote: 'It's easy to bash trolls as evil extortionists, to do so may be to miss an important lesson: Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat. They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.' "
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Patents of Business Destruction

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  • by Caspian (99221) on Tuesday February 07, 2006 @09:50AM (#14659213)
    Nothing like waking up in the morning and reading someone comparing you to mold. :)
    • I was in the military. I've been compared to worse when I wake up in the morning.
    • I think it's an apt comparision. Mold is also beneficial. Actually, without mold you wouldn't have modern medicine, soy sauce or cheese. I don't know what I would do without cheese. Patent holding companies are not all bad. If patents were wholy owned by companies say Amazon, go gain competitive advantage, they might refuse to license to their competitors like Borders or Barnes and Noble which is in their right. However if a patent holding company were to hold these patents, all they want is license fees t
  • by aussie_a (778472) on Tuesday February 07, 2006 @09:54AM (#14659241) Journal
    I say we treat patents as if it was rotten meat. Toss it away and go have chicken instead. Now I'm just hoping chicken is freedom in this analogy, because I'm not quite sure to be honest.
  • Expect the worst (Score:5, Interesting)

    by JanneM (7445) on Tuesday February 07, 2006 @10:10AM (#14659318) Homepage
    I suspect economical, political and social systems are best built the same way you do strategy analysis.

    Forget about maximizing the best possible outcome in the best possible world. It's not going to happen anyway, so why worry about it? Instead, focus on the worst possible outcome, and create your system so as to minimize that. Any outcome that turns out better than that pessimistic minimum is then just a happy bonus.

    So, make rules for patents that discourages fluff patents and extortion (you need to deposit a substantial sum that is returned upon a successful grant, but witheld if turned down?). Make it reasonably easy to challenge patents when invalid grants have slipped through, but that discourages vapid challenges (loser pays, for example).
    • by ficken (807392) on Tuesday February 07, 2006 @10:23AM (#14659386) Journal
      The problem comes when you are using hundred year old ideas - patents were a result of trying to protect innovators and exploration of progress. Now, the business of Patent Hoarding has become lucrative. Its no longer about protecting innovation. Its about sucking up as many ideas as humanly possible in order to take full advantage of capitalism.

      This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.
      • by JanneM (7445)
        Design the system so hoarding doesn't pay, then. That's the idea of designing for the worst case. How, in this case, I don't know - but there are any number of possible ways to discourage it. Allow no more in yearly patent royalties per licensee than the owner is earning from the technology in the patent themselves; make it legally binding to "sell" the use of the patent for a set one-time fee once the technology has become an ISO standard (that would encourage the use of standards as well) - there's many w
      • by swillden (191260) <shawn-ds@willden.org> on Tuesday February 07, 2006 @11:16AM (#14659779) Homepage Journal

        patents were a result of trying to protect innovators and exploration of progress

        Not exactly. And it's worth understanding the purpose of patents when trying to think about how the system can be fixed.

        The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up (the word 'patent' derives from the latin 'patere', which means "to be open", and scientific and medical communities still use the term to mean "open", or "free of obstruction") the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange for publishing the details. The bottom line, though is that patents are supposed to primarily benefit the public, not patent holders. Any patent regime that fails that test is broken. The ideal patent structure is that which generates the greatest flow of ideas to the public, and it should be obvious that this optimization problem is one that requires constant retuning as the structure of society and the nature of research changes.

        The same is true of copyright, by the way. Copyrights should primarily benefit the public, in the form of increased flow of materials into the public domain. Any benefits that accrue to copyright holders are mere byproducts of the primary goal. Like patents, copyrights require constant tuning to ensure that they're providing the maximum benefit to society. Like patents, the current copyright system does nothing of the sort.

        • The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up ... the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange

      • Re:Expect the worst (Score:3, Informative)

        by Dausha (546002)
        "This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard."

        No, this is an example of monopolism run amok--not capitalism. The whole premise behind patents (and copyright) is that the government grants a limited-term monopoly to encourage development of an idea. After all, once an idea is out there, it is ea
        • Except there is this inconvenient little detail that it is been largely the freemarket ideologues who insist on maintaiing a naive/permissive attitude toward monopolistic tendencies in the private sector. Government intervention (hence public accountability) is always portrayed as an abomination, often with maudlin undertones from an Ayn Rand novel.

          Unless, of course, that intervention is by the military into the lives of millions of foreigners to secure resources for the economy at home. Then its time to wa
      • This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.

        Monopolies are the enemy of the free market. Funny enough the same people who don't want the government to interfere with business are the same ones lobbying for governement-granted monopolies.
        • Tyranies are supposed to the be enemy of communism. But definitions on paper do not make something actually true.

          Any society that insists a) on permitting only ONE organizing principle, and b) on turning a blind eye toward its own worse tendencies, is "cruisin for a bruisin".

      • It's not the downfall of Capitalism.

        It's the downfall of Western Civilization, the Rule of Law, and the concept of a Constitutional Democratic Republic. As long as the right to spend money to influence the political process is equated with an essential liberty, then human greed can subvert it for it's ends, rather than the ends for which it was intended.
  • by BarryNorton (778694) on Tuesday February 07, 2006 @10:26AM (#14659401)
    The irony of the patent system is that while it's relatively easy to get a patent, the vast majority of the assigned patents are completely worthless.
    "It's like raaaaaaaain on your wedding day..."
  • Fix it? (Score:4, Insightful)

    by Black Parrot (19622) * on Tuesday February 07, 2006 @10:30AM (#14659423)
    How are you going to fix it, when the lobbyists who run the country think it's great as it is?
    • that's a defeatist attitude. which wouldn't be a problem in itself, i guess, but i think it also happens to not be true. there's a very large number of very large companies (think Microsoft) that are calling for patent reform. they're not all saying the same thing at the moment, but it's at least obvious that not everyone the government listens to thinks the situation's fine and dandy.
      • there's a very large number of very large companies (think Microsoft) that are calling for patent reform

        No, that's a manipulative political ploy.

        They are claiming they want "patent reform" and calling for essentially procedural changes to divert any political attention and control any legislative action. By calling for "reform" themselves they create the illusion that they are on the side of fixing the patent problems. They position themselves as the "reasonable compromise" position for fixing the patent pr
  • There is nothing wrong with the 'patent troll' that couldn't also be called 'evil' in laywers, doctors, or any other learned profession.

    if by 'patent troll' the author means people who buy up neglected patents, and then enforce them, how is this bad ? Its no different than some real-estate agents who buy up crappy houses, give them the once over, and flip them for profit. One man's garbage ...

    If the author means 'people who file friviolous patents', thats alread self limiting. Its either a very time intensi
    • There is a reason Microsoft and Ebay didnt license the patents, and then just payed out on them when challenged. Its because this is just the way you have to deal with the patent system with its millions of potential infringements waiting for your lawyers attention.

      You cannot build a non-trivial peice of software without falling foul of a load of something obvious - on a computer patents like one-click or the infinite subtle variations on LZ compression. So the only way to actually get anything built at a

  • by Jivha (842251) on Tuesday February 07, 2006 @10:38AM (#14659476)
    While patent reform may be far too complex a beast to be tackled in one comment(or even a whole post+comments), I think one place to begin must be patents granted for "business methods". From the article:

    "For most of U.S. history, patents had traditionally been issued in tangible objects, like monkey wrenches. For years, the courts and the PTO took a hard line against granting patents on intangibles like software or "business methods," based perhaps on the instinct that such inventions are too abstract and might cause economic damage.

    All that changed in the 1980s and '90s, when Congress concentrated patent's appellate duties in a single court--the Court of Appeals for the Federal Circuit. Over time, that court changed course on software and other questionable areas of patent, transforming the system from one that was highly conservative to one that's much more liberal."


    I sincerely think we must abolish all patents on "ideas" and "methods". The whole notion of a corporation patenting a way to do business seems absurd and completely against the notion of free market competition. At the rate that we're going, pretty soon we'll have a stage where any person wanting to start a new business will need to purchase a set of licenses from corporations, not counties/states!

    Another thought would be about how to resolve the multiple patent regimes around the world. As the Internet and globalization break down geographical barriers, we need a patent system(if at all) that will serve the entire world. What happens if a person in China or Brazil originally comes up with an idea for a new business? Will he need to check with the USPTO to see if it has been registered in the US? In Europe? Why? Does the USPTO check patent histories in other countries?
  • by digitaldc (879047) * on Tuesday February 07, 2006 @10:39AM (#14659487)
    They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.

    Just like Viruses, Worms & Malware are useful for Anti-Virus/Spyware companies to analyze how they got to where they are, and what might be done to fix them.
  • by ezpei (461814)
    So patent trolls don't kill innovation, but the USPTO does? Or is it patent trolls don't kill innovation, but patent law does?

    Nope. Blame here isn't mutually exclusive or singularly exhaustive. They're all crap.

    Just like ISPs, CAN-SPAM and spammers themselves are all to blame for the 50+ messages I have to clear out of my inbox every morning.
  • I think that the issues that are endemic to the patent system in the U.S. are really a function of the combination of business (how can we protect our hard work), law (the rule of law is sometimes very academic - how can you protect one without protecting another - what is the definition of useful), and government (constituents and lobbyists want "protection" to foster innovation - government reacts by fiddling with the law).

    Throw into this mix patent squatters (think of it this way: some folks buy inte
  • by Anonymous Coward on Tuesday February 07, 2006 @10:42AM (#14659507)
    If you have read the history of the Blackberry vs. NPT case you will see that the Blackberry case isn't a "troll" case. The technology was developed and actually used in a company that went defunct because it never reached "a critical mass". Just because they still retain the patents doesn't make them trolls.

    This still leaves open the question of whether the patents should have ever been issued to begin with. Software patents are asinine. Almost as asinine as being able to patent something that exists in nature.

    Oh, oh!!! Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.
    • Blackberry aren't heroes in this at all. I don't know if the patents are reasonable, I haven't read them (and I find the politically convenient overturning of them after years of being upheld extremely suspicious, to say the least), but I do know that Blackberry has consistently acted in bad faith in the entire case. Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified
      • "Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified the supposedly prior art software in order to get the demo to work!"

        Which is why the court is hanging them out to dry. RIM was its own worst enemy. It's why the patent can be invalid according to the patent office but still enforceable as far as the court goes.
    • Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.

      Just when I thought C# was becoming popular on Slashdot, you go and ruin it for me. :-(
  • How to fix patents (Score:3, Interesting)

    by nobleheath (946809) on Tuesday February 07, 2006 @10:47AM (#14659535)
    Any patents registered by a company (or individual) that goes Chapter 11 or all the way to bankruptcy should automatically become public domain. If the inventor isn't good enough to make money out of it then it should be open for all.

    The patent trolls that run around gobbling up defunct businesses to exploit other peoples work do nothing to help inovation - they mostly stand in the way. Patents are there to protect the inovators not the scavengers.

  • by rayd75 (258138) on Tuesday February 07, 2006 @10:48AM (#14659553)
    I have a hard time swallowing that one... (Ewww!) Mold actually offers some benefit to the ecosystem and it tends to surface only once its meal has ceased to live. Patent holding companies, on the other hand, spring out of nowhere and gut fresh companies as soon as they start to turn a profit. Else, they lie in wait until other companies' products or services are ubiquitous and then demand huge percentages on years of sales. Sounds to me like pirates are a better comparison. Oh well, at least we can count on a decline in global warming.
  • by TheSkepticalOptimist (898384) on Tuesday February 07, 2006 @10:49AM (#14659557)
    Bottom line is, this is the weakness in Capitalism. The fact that you can start up a company for the express purpose of screwing hard working or innovative people and companies out of millions in deserved money.

    I know a guy that has made a fortune taking trademarks and copyrights filed locally only in Canada or the US and filing them in his name globally. If that local, Canadian or US company wants to go global, they have to pay this guy royalties for using their own name.

    It may be sneaky and underhanded but its totally within the law.

    Same goes for patent trolls or squatters. Come up with our buy some idea that today might seem far-fetched, keep the language ambiguous and generalized, and as soon as some other company actually makes a product with similar function or purpose a reality, jump on them and sue the pants off of them.

    There are entire companies set up that buy and hold patents. Buying them off individuals and small companies and simply sitting on them, with a large team of shysters paid scouring patent applications and product releases hoping that some company might make a product that infringes on the patents they hold. These companies (contrary to what they might have you believe) are not think tanks nor do any research and development nor have any interest in making the ideas a reality. They simply sit on paper. It's entirely legal for a company to do nothing, let another company do all the work, and expect royalties or licensing fees to sell a product they actually spent time and money developing, or sue the pants off these companies. Its like corporate slavery.

    Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending the time and money and effort to make an idea a reality.

    Patents have become a dirty word.

    There needs to be changes imposed, period. Patent law needs to be rewritten, not just for software, but in all cases. This isn't happening fast enough.

    • Bottom line is, this is the weakness in Capitalism.

      Hold on, this isn't a weakness in Capitalism. In a pure free market there would be no patents. While the problems you discussed do exist, they are not a result of the Capitalistic system. On the contrary, they are a result of inept governments monkeying with the system.

      Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending th

    • Real estate investors often just sit on paper. Stock, bond, futures, etc., traders just sit on paper.

      What function do they serve? They increase the efficiency of the market, and many other things as well.

      It's much more efficient for a company to license their accidental inventions to others than to sit on them as trade secrets forever, because they don't know what to do with them.... It's much more efficient for them to sell the patents to a small holding company that will license them, for the same reas
  • by Quatl (927704) on Tuesday February 07, 2006 @10:55AM (#14659597)
    Of course patent trolls aren't evil in the sense that they are not the cause of the problem. Software patents on the other hand are evil and unnessasary. It used to be a fundamental tenant of patent law that the purpose of protection was to encourage creation. Software creators do not apear to need this protection. For the first ~30 years they had only copywrite and the industry still managed to grow at a ridiculous rate. The current state of IP law in the US is an obcenity.
  • Working in Pharma? (Score:3, Insightful)

    by dwandy (907337) on Tuesday February 07, 2006 @11:11AM (#14659733) Homepage Journal
    From TFA:
    Politically, while the idea of general patent reform is laudable, it faces inevitable opposition from industries like the pharmaceutical industry, where the patent system seems to be working. A broad-based Patent Reform Act, now in Congress, has been watered down considerably because of pharmaceutical opposition. Pharma has a point. In their industry, patent does what it should...
    Really? It seems to me that all patents do in the pharmaceutical business is guarantee monopoly-type profits.
    Drug companies launch ad campaigns where they try to justify their high prices (that lock people out) by stating that today's profits drive tomorrow's innovations. But if the high drug prices are simply to provide for tomorrow's R&D, then why do they show a $Billion in profit: By definition that money should either be a decrease in drug costs, or should have been spent on r&d ...else they're lying. They are in fact just like every other corporation that is making a product: No profitable company sets it's selling price based on production cost - it's set by what the market will bear. In the case of patent protected drugs that price is very high in affluent markets like the US.

    So there remains a very real question: Do patents really work in the drug business? I'm not sure that they don't promote innovation, but I'm sure that they generate monopoly profits. So, while that might be taken to mean that they're working, it can also be taken to mean that some reform might not be a bad idea there either...

  • Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat.

    You really, really need to listen to yourself. This "argument" is wholly devoid of substance, and is so on its face. First of all, wtf is a patent troll, that distinguishes it (assuming he is a faceless corporation rather than a legitimate and independent inventor) from, say, a property owner or landlord? Are you willing to defend the argument with that substitution, and if so, perhaps we need
  • dual perspectives (Score:2, Insightful)

    by DizzyDanMD (530054)
    Interesting scenario here. Aside from the trolls and patent squatters. Let's say that you are small little codeshop and you create this great thing and BAM, some huge company takes it away. With their big money, big lawyers, and all that jazz the little codeshop cannot afford, what do you do? On the other hand, you work for huge GeeWiz megacorp and never happened to sign one of those fancy non-disclosure forms. You go out and make a small company and get a design patent, and sue the big company.

    The whol
  • What if shareholders/investors required companies to show the ROI for their patents? It seems to me that the USPTO has allowed an inordinately high percentage of "bad" business model and software patents (meaning that they get overturned/disallowed on review). The only way to enforce a patent is through litigation, which is horrendously expensive. This is on top of the expense (and time) of actually getting a patent: Estimates for a US patent are around $15K+; patenting globally can cost >$250K. It
  • I don't understand (Score:3, Interesting)

    by drasfr (219085) <revedemoi@nOSpam.gmail.com> on Tuesday February 07, 2006 @12:19PM (#14660244)
    Yes, one thing I don't understand.

    The patents in questions are likely to be rejected. The whole object of this lawsuit are those patents.

    How can the judge dismiss that? What if he awards the injunction, either forces to close or settle. One way or another. What will happen if/when the patents ARE rejected? Because the lawsuit would have been on invalid ground?

    Why can't this new evidence taken into account for the lawsuit? I don't understand this law aberation. Why can't the judge either order to wait to know the result of the patent re-examination, or forces the PTO to re-examine faster and be a party in the lawsuit?

    I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

    Can someone explain?
    • "I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

      Can someone explain?"

      No, not really :) But the validity of the patents and the court case are not one in the same. At the time of the trial the patents were/are? still in effect. The court decided it wasn't their job to invalidate them. RIM however made the very large error of misleading the court. So it is g

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