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Webvention Demanding $80k For Rollover Images 314

Posted by timothy
from the define-gobsmackery dept.
I Don't Believe in Imaginary Property writes "Webvention is demanding that websites with rollover images pay $80,000 or face a patent lawsuit based on US patent 5,251,294, which it bought from Intellectual Ventures. Webvention claims to already have licensing deals with Apple, Google, Nokia, Sears, Sony and Orbitz. Right now, they're suing Abercrombie and Fitch, Bed Bath & Beyond, Dell, Gamestop, E*Trade, Neiman Marcus, Visa and ten others in a court in east Texas."
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Webvention Demanding $80k For Rollover Images

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  • by ciaran_o_riordan (662132) on Thursday October 14, 2010 @05:39PM (#33900956) Homepage

    Problem is, reviewing wrongly-granted patents takes years - 5 years for the 1-click patent and it wasn't even invalidated, just narrowed.

    In other fields, this isn't a huge problem. In pharma, or the automobile industry, a threat is met with a legal team and a counter-suit. For software, when it's small businesses or even individuals that get threatened, they don't have the time and resources to play the game. It's the old joke about the manager phoning his lawyer "Some company wants me to pay them $5K for a liccnece, do I have to pay that?" "Give me $40k and I'll review it". (That number is the cost estimate that Dan Ravicher gave for giving a client a certificate of non-infringement.)

  • Re:Abstract... (Score:5, Informative)

    by Homburg (213427) on Thursday October 14, 2010 @05:40PM (#33900976) Homepage

    The figures [google.com] are pretty sweet [google.com] too.

  • A couple of details (Score:5, Informative)

    by Grond (15515) on Thursday October 14, 2010 @05:41PM (#33900994) Homepage

    First, the application was filed in 1990, so prior art is going to be harder to come by than you might think.

    Second, the patent was already thrown into reexamination a month ago. Check reexam 90/011,229 on PAIR [uspto.gov] for the details. The law firm that filed the reexam request is Townsend, Townsend & Crew [townsend.com], which is a major IP firm. The request cites multiple pieces of prior art and looks pretty well put together. One of the first things the examiner did was try to call the patent owner for an interview. The examiner couldn't get ahold of them. That's a bad sign for the patent owner.

    Some of the prior art citations include HyperCard and HyperText.

    Third, courts have tended to temporarily halt litigation (a procedure called a stay) while they wait for the results of a reexamination. It's quite possible that this patent is about to die in the Patent Office without the lawsuits moving forward.

  • by bmk67 (971394) on Thursday October 14, 2010 @05:47PM (#33901084)

    Considering that the patent (filed 2/7/1990) predates CSS, Javascript, onmouse* events, and HTML itself, I'd have to say none of those would qualify as prior art.

    Not defending the validity of the patent itself, I'm just sayin'...

  • by Thagg (9904) <thadbeier@gmail.com> on Thursday October 14, 2010 @05:51PM (#33901120) Journal

    Patents today run for 20 years from time of application, or 17 years from date of grant (whichever is later, although the 17 year rule only applies to patents filed quite some time ago.) Those dates would be Feb 7, 2010 or Oct 5, 2010 respectively. This patent is expired.

  • by Zocalo (252965) on Thursday October 14, 2010 @05:59PM (#33901244) Homepage
    WTF! 1990? I'd say prior art is going to be impossible to come up with in the context of HTTP and the World Wide Web. Tim Berners-Lee's initial proposal for the web wasn't even filed until November of 1990, with the first conceptual tools available by Christmas. The ability to display the graphics necessary for rollovers didn't arrive until later still, and only really got popular with the release of Mosaic in 1993.

    Other than Hypercard and similar early hypertext tools like Ted Nelson's Project Xanadu (now there's a blast from the past!), I can't think of many types of software that existed in 1990 this patent would even come close to applying to.
  • by theghost (156240) on Thursday October 14, 2010 @06:02PM (#33901276)

    The only winning move is not to play.

  • Re:East Texas (Score:5, Informative)

    by compro01 (777531) on Thursday October 14, 2010 @06:04PM (#33901312)

    It's not the water, it's the judges, mostly T. John Ward. He's got his own rules about patent suits and runs cases very quickly by means such as not allowing lengthy discovery (which obviously puts defendants at a substantial disadvantage).

    It's also a legal tarpit, as he almost always rejects transfer motions.

  • by Grond (15515) on Thursday October 14, 2010 @06:08PM (#33901344) Homepage

    Patents today run for 20 years from time of application, or 17 years from date of grant (whichever is later, although the 17 year rule only applies to patents filed quite some time ago.)

    The application in this case was filed before June 8, 1995, meaning that its term is 17 years from the date of issue.

    This patent is expired.

    Just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286 [cornell.edu]. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.

    However, the equitable doctrine of laches [wikipedia.org] may limit an infringement suit to more recent instances of infringement.

  • by Grond (15515) on Thursday October 14, 2010 @06:32PM (#33901704) Homepage

    In pharma, or the automobile industry, a threat is met with a legal team and a counter-suit. For software, when it's small businesses or even individuals that get threatened, they don't have the time and resources to play the game.

    A reexamination request only costs $2,520. One was filed in this case a month ago, actually. And for your talk of small business and individuals, note that this company isn't going after small businesses or individuals. It's going after companies that range from large to huge: Apple, Google, Nokia, Sears, Sony, Orbitz, Abercrombie and Fitch, Bed Bath & Beyond, Dell, Gamestop, E*Trade, Neiman Marcus, Visa. These are some of the largest companies in the world.

    Furthermore, yes, it may be costly for an individual business or developer, but they can band together to each chip in a small amount to pay for reexamination or a declaratory judgment suit for a patent that threatens all of them.

    You also seem to be assuming that there are no small businesses in pharma or the automobile industry. In fact there are many small drug companies, and most biotech companies are quite small. There are also many small companies in the automobile industry that make replacement parts, aftermarket accessories, etc. There are very few industries wholly made up of large companies.

    The solution to this kind of thing is to tighten the written description and enablement requirements and reduce the presumption of validity. There is no need to blindly focus on software patents. They aren't special.

    It's the old joke about the manager phoning his lawyer "Some company wants me to pay them $5K for a license, do I have to pay that?" "Give me $40k and I'll review it". (That number is the cost estimate that Dan Ravicher gave for giving a client a certificate of non-infringement.)

    I wonder where Ravicher got his numbers. They're completely out of line with the AIPLA Economic Survey (a survey of practitioners), which found that the average cost of an infringement opinion is more like $13,000. And bear in mind that's the average; many attorneys are going to charge less for less complex cases or offer a sliding fee scale to small businesses and individuals. Just because a large law firm might charge 5 figures for an opinion does not mean that there aren't competent, technically trained IP attorneys that would do the same work for a fraction of that. I know because I'm one of them.

  • by Grond (15515) on Thursday October 14, 2010 @06:34PM (#33901712) Homepage

    As I mentioned earlier, just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286 [cornell.edu]. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.

    However, the equitable doctrine of laches [wikipedia.org] may limit an infringement suit to more recent instances of infringement.

  • Re:Abstract... (Score:2, Informative)

    by fatphil (181876) on Thursday October 14, 2010 @06:43PM (#33901808) Homepage
    Here's the icon: http://www.d4.dion.ne.jp/~motohiko/playmatedock/playmaitaiko1.gif
    And here's the program: http://www.noomuseum.net/img/Nooscaphes/MacPlaymate-1-.JPG (NSFW)
  • Stereotypical: (Score:5, Informative)

    by Arancaytar (966377) <arancaytar.ilyaran@gmail.com> on Thursday October 14, 2010 @06:55PM (#33901924) Homepage

    1.) Patent was filed in 1993; meaning the fraudster waited till the last possible second.
    2.) Patent covers a basic part of the HTML/JS spec, which is kind of like patenting a "for" loop.
    3.) Lawsuit was filed in East fucking Texas.

  • Re:Abstract... (Score:4, Informative)

    by DriedClexler (814907) on Thursday October 14, 2010 @07:17PM (#33902200)

    Okay, that does it: I am now convinced someone submitted this patent as a joke and they never got around to letting the patent office know after getting it approved (which wasn't supposed to happen). Then, patent troll Nathan Myhrvold, the guy who duped the SuperFreakonomics idiots [wikipedia.org] on geoengineering, bought it up for his Intellectual Ventures troll company and then sold it to a troll with even lower morals.

    *vomits*

  • by Sloppy (14984) on Thursday October 14, 2010 @07:37PM (#33902412) Homepage Journal

    I like how you lumped in the companies that are not evil but are hated by liberals (Exxon-Mobil, Smith & Wesson) with the companies that are actually evil (Monsanto, Philip-Morris) in your little fantasy. And then left out Google.

    He wasn't talking about evil potential victims of patents; he was talking about powerful potential victims of patents. What's wrong with lumping powerful companies together (whether they're evil or not), when you're talking about using power?

    I think the person with the "little fantasy" was you, and when you decided to artificially divide the list of powerful prospective-patent-victim companies into evil vs not-evil-but-hated-by-liberals (a distinction that is totally irrelevant to what the thread was about; how victims might end up effectively striking back if they are sufficiently threatened by patent abuse), you revealed what your fantasy is: that teh librals are the only ones who are against patent abuse.

  • Re:Expired? (Score:3, Informative)

    by The_mad_linguist (1019680) on Thursday October 14, 2010 @08:00PM (#33902672)

    Depends when it was filed. The formula is (20 years past filing date) and (17 years past issuing date).

  • Re:Seems Obvious? (Score:5, Informative)

    by Jerry (6400) on Thursday October 14, 2010 @08:20PM (#33902908)

    I read the patent, all 270 pages of it, most of which is repetitive photographs of text or drawings with slight word changes to make the "patent" apply to just about any industry they could think of 20 years ago. It uses two key words: "Contextualizing" and "Alternates". Each image usually has two adjacent boxes of text which look like outline notes. Another set of images is of display device which appears to have a screen and two knobs. The screen is divided into three sections. The upper left is and index tree, the lower left is a help section, and the right side is where information relating to the selection made in the upper left panel is displayed. Most dev tools API documentation is constructed like that, in either GUI or console format, and has been since well before the patent application date.

    The example code is written in BASIC and is full of "CALL nnnn"'s as a way of controlling flow. It does not contain lines about moving a mouse icon over an HTML hotspot and have an action take place. The example code does not contain the concept of call-backs or other such coding mechanisms which would be required to respond to interrupts in an event loop.

    The patent is written in such a general way that what it means is open to what ever the patent holder thinks it means, or can convince a judge and/or jury it means. The code it self could apply to selecting menu options with a mouse or by tabbing and using the Enter Key.

    This "patent" is a classic example of what is wrong with patenting ideas, math formulas or coding algorithms.

  • by Bigjeff5 (1143585) on Thursday October 14, 2010 @09:55PM (#33903728)

    You are correct sir.

    I believe they can go through with their current lawsuits (since the term ended 9 days ago), but I don't think it is possible for them to create new ones.

  • Re:Seems Obvious? (Score:4, Informative)

    by Bigjeff5 (1143585) on Thursday October 14, 2010 @10:00PM (#33903752)

    Actually no, for patents prior to 1995, it's 20 years from the earliest application OR 17 years from the date issued, whichever is longer. For all patents after 1995 it's 20 years from the earliest application. The issuance date does not matter any more.

    It was first applied for Feb 17 1990, so 20 years ran up this past Feb 17.

    It was issued Oct 5, 1993, so 17 years ran up 9 days ago.

    In other words, there aren't going to be any new lawsuits, but those in progress will continue. That's why they shotgunned them like this, they had almost no time in which to do it.

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