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Patents Software The Courts Transportation

How Patent Trolls Stalled a New Transit App 85

Posted by Soulskill
from the give-us-money-for-the-idea-we-neither-came-up-with-not-use dept.
SFGate has the story of Aaron Bannert, creator of a San Francisco transit app called Smart Ride. The app was developed to provide arrival times for the city's bus system. Smart Ride was supported by ads, and Bannert had not yet turned a profit on it when he received a legal threat from a company claiming patent infringement. "It was from a company with ties to Martin Kelly Jones, who holds a series of patents claiming ownership of technologies for tracking vehicles and providing users with electronic updates. A handful of affiliated companies, including ArrivalStar and Melvino Technologies, have threatened or sued hundreds of organizations in recent years, from small entrepreneurs like Bannert to large corporations like American Airlines. ... ArrivalStar filed more than half the patent lawsuits in South Florida federal courts last year, according to the South Florida Business Journal. ... ArrivalStar will demand as much as $200,000 for a license, according to reports in other publications." The cost to the patent troll for filing a lawsuit is around $500, but Bannert was forced to spend over $10,000 on a legal defense and delay the launch of a new version for months. He's unable to provide details on the outcome of the case. "As high as the legal expenses were for Bannert, he thinks the bigger toll from patent trolling is the indirect cost to society, the products and innovation that don't make it off the drawing board."
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How Patent Trolls Stalled a New Transit App

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  • by ferrisoxide.com (1935296) on Sunday September 01, 2013 @04:36AM (#44729681) Homepage
    Seriously, if were considering setting up a new business model and didn't want to be dragged down by the hordes of patent-trolling parasites out there, NZ is starting to look good. Plus at 5 foot 10 inches I'm bound to be bigger than most of the Hobbits.
    • by jamesh (87723)

      This is a patent on "technologies for tracking vehicles and providing users with electronic updates", which isn't necessarily a "software" patent, even if the particular implementation they are going after is all software. Or at least I think it isn't clear cut enough that they couldn't still tie it up in courts for enough time arguing about "what is software anyway?" to send a small software shop into the red.

      • by russotto (537200)

        This is a patent on "technologies for tracking vehicles and providing users with electronic updates", which isn't necessarily a "software" patent, even if the particular implementation they are going after is all software.

        Sounds like "patenting the goal" to me. Also patenting something Qualcomm, at least, was doing over 20 years ago.

      • Hmm yeah I suppose it could be implemented with carrier pigeons as well.

    • I hope you have a wad of cash, since that is a requirement. Perhaps you are taller than fictional characters, though they have helped the economy a bit.
    • by trawg (308495)

      Yeh, except in NZ you have to worry about them sending a SWAT squad to your door for copyright infringement issues, a la Kim Dotcom :)

  • by Anonymous Coward

    Can a patent troll go after you if you release such application, without any kind of profit mechanism whatsoever?
    Lets say, I create such app, with a dev account made just to publish that app, without any real detail about myself, what can they do then?

    • Re: (Score:3, Informative)

      by sandertje (1748324)
      If you want to market or profit from your app, you most probably need some kind of company registration. Hence, you are trackable - at least your company is.
      • Re:Profit (Score:5, Informative)

        by TheRaven64 (641858) on Sunday September 01, 2013 @06:52AM (#44729973) Journal
        If you're not intending to make any profit from it, then you can set up a company that has no assets to distribute the app. This will cost you a small amount, but it means that the patent troll can take the company to court if they want, but it will cost them money and the company will just declare bankruptcy without attending court and they won't be able to recoup their legal fees.
        • Re:Profit (Score:4, Interesting)

          by SlaveToTheGrind (546262) on Sunday September 01, 2013 @11:30AM (#44731349)
          Just a cautionary note that the corporate form is a strong firewall, but it's not impermeable. Courts can, and sometimes do, "pierce the corporate veil" of sham entities and hold the owner(s) responsible for the entities' actions. Under-capitalization (actually in your hypothetical, no capitalization) of the entity is one of the factors they look at.*

          * This isn't legal advice; consult an attorney about your own particular situation; etc. etc.
    • x264 and libavcodec (Score:5, Informative)

      by amaurea (2900163) on Sunday September 01, 2013 @05:35AM (#44729803) Homepage

      Mplayer, libavcodec and x264 are examples of successfull patent-violating software products that have laster for a long while, and not been killed off by patent lawsuits. So it is clearly possible. The key is probably to be distributed, open source and not predominantly based in the USA.

      • by wagnerrp (1305589)

        That's because mplayer, libavcodec, and x264 aren't selling a product. Getting them off the market does the MPEG-LA no good. On the other hand, with Google wants to incorporate x264 into their own products like Youtube, they better get a license. Additionally, allowing such groups to implement their technology without requiring a license means there's less reason to implement new independent standards, and thus less market competition for MPEG-LA. It's the same idea as the rumor that Adobe dumped Photos

        • by gottabeme (590848)

          Getting them off the market does the MPEG-LA no good.

          Sure it would: without free programs like VLC and mplayer, people would have to buy programs to play DVDs and BDs, which would result in more licensing fees, or use systems like iTunes and Netflix, which already pay licensing fees.

          I think the reason they haven't pursued it is probably a combination of foreign legal jurisdictions and that it would cost more money than they would recover. But if, for example, Google started shipping x264 without paying MPEG-LA for it, you can be sure they'd sue.

    • Re: (Score:2, Funny)

      by Anonymous Coward

      First, don't make the mistake made by our coder in the story. He played the game and it cost him $10K, time and the time he put in on his app, as well as any future profits from it.
      When you are contacted by lawyers, the name of their client is evident , making him easy to track down. For far less money, a common hoodlum could go negotiate directly with the patent troll with the stipulation that he is now insured against accidents, fires and sudden death for a small fee, collecte

      • by sjames (1099)

        It's modded funny, but when the courts fail long enough and hard enough, it is the natural result. A few dead patent trolls would do more for patent reform in one year than the courts and USPTO have managed in 30 years.

        I'm amazed it hasn't already happened.

  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Sunday September 01, 2013 @04:46AM (#44729701) Journal

    In the patent infringement case used as an example, the article wasn't explicit about whether the patents were on software. Probably they were software patents, since the example was about a software app.

    The patent troll problem can easily extend beyond software or business methods. Doesn't have to be software to have prior art or to be too obvious. The reform of abolishing software patents wouldn't fix all the problems. We would still have a patent system that grants too many bad patents because of the conflicts of interest. The patent office generates more revenue, and lawyers get more work. The article mentioned plans for 5 executive actions to curb the problem, but didn't say what they are.

    • From TFA: "... the service that he received his data from, NextBus, already had a license to use those patents"

      This is the bullshit part. He is using a data service, not getting the data direct. As such, the patent doesn't apply to him. Fucking trolls.

      • by temcat (873475)

        I'm not sure that NextBus owning a license necessarily means that the patent doesn't apply. It might happen that patent law or the specific license say otherwise.

        • by abannert (3037317)
          My theory was that First Sale Doctrine should apply ( https://en.wikipedia.org/wiki/Exhaustion_doctrine [wikipedia.org] ). I told the troll that my app 1) didn't do any "vehicle tracking" of its own, and 2) got all its data from NextBus, whom the troll's very own demand letter stated as a licensee. I don't recall exactly what they said in response, but it was effectively a big "so what?". Their demands had nothing to do with the merits of their patents, or the technology used in my app, and only had to do with my app stor
          • by doccus (2020662)
            You've nailed it with "their ability to use the US court system", which is broken, and simply is unable to fairly look at the merits of any case. I assume that your'e the poor soul that got hammered by these trolls. It is the US court and legal system that is firmly on the side of money that is the problem. Justice is for sale to the highest bidder.
    • by drinkypoo (153816)

      The reform of abolishing software patents wouldn't fix all the problems. We would still have a patent system that grants too many bad patents because of the conflicts of interest.

      The patent office gets paid for patent applications, and gets paid again for granting patents. Consequently it is motivated to encourage applications, and also to grant patents. This is a fundamental problem which must be resolved in order to resolve the issue we're discussing.

      • The patent office gets paid for patent applications, and gets paid again for granting patents. Consequently it is motivated to encourage applications, and also to grant patents. This is a fundamental problem which must be resolved in order to resolve the issue we're discussing.

        One solution to this problem is to charge an annual fee to keep a patent, that increases exponentially. For example, $1000 for the first year, $2000 for the next, $4000 for the third, etc. The barrier to entry would still be low, and affordable to individual inventors, but many of the crappy patents would be abandoned after a few years, and the public would be better compensated for granting longer patent monopolies.

  • If someone sues for patent infringement, can you just say "ok I withdrew the app" and that's it?
    (and if minimal profit has occured, say, give the licence dues and move on)
    Or once the lawsuit is filed you have to pay the exorbitant amount or fight it etc?
    • by Z00L00K (682162)

      You can't withdraw the app, but you can publish all the source code for the app and let the patent troll bite into everyone that's building the app from that.

      And you can also make sure that the app is provided and hosted on a server in a different country where software patents aren't valid or at least a lot harder to prove valid. That way the patent troll will at least have a harder time to achieve the goal.

      Brings up another question - if I who don't live in the US publish an app that's downloadable from a

  • by Anonymous Coward

    That crazy patent system is going to break the US's advantage in the future.

  • by photonic (584757) on Sunday September 01, 2013 @05:14AM (#44729763)
    This is the millionth time we see a post on Slashdot about people falling victim to a patent troll. If this is not yet done somewhere, someone should really make a wiki to meticulously document all these small cases, so that the next time you talk to a politician, you can show them the real damage of the current patent system.
    • Sure, talk to a politician. Show them "the real damage of the current patent system." What, exactly, would you then ask the politician to do? Contrary to popular belief, you can't write laws in the form, "patent rights shall be stripped from anyone who a critical mass of Slashdot posters declares to be a patent troll... ARRRR."

      So: how would YOU fix this problem? Be specific. Keep in mind that, whatever solution you propose, you really need to preserve rights for the garage inventor that patents an i
      • by jedidiah (1196)

        Ban software patents and business method patents and probably any other type of "new" patent from the last 20 or 30 years.

        The problem is hardly as difficult as you try to make it out.

        It's very easy to identify really.

        • It's very easy to identify really.

          I'm sure it all seems so "very easy" when you just look at the world through your own particular set of glasses. In the real world, there are plenty of meritless patents held and litigated by NPEs that aren't software or business method. Next?

        • by jeremyp (130771)

          I was thinking about this the other day.

          The patent system was created to allow inventors a monopoly period to exploit their inventions financially in return for placing their inventions in the public domain. To me, this seems like a reasonable exchange if it is not abused. Patent trolls have managed to subvert the system so that it has the opposite effect to that intended.

          How about changing the law so that the patent holder is only allow to sue people for patent infringement if they themselves are activel

          • The first issue is that the U.S. Constitution doesn't require an inventor to practice a patent. It rather guarantees that inventors have the exclusive right to their discoveries for a limited period of time (right now, 20 years from the date of the initial application). That means, like it or not, I can sit on my patent for its entire lifespan and prevent ANYONE from practicing it. Now, in the real world I have no incentive to do that (unless I'm just a cantankerous jerk) -- most people respond well to m
    • by abannert (3037317) on Sunday September 01, 2013 @11:24AM (#44731303)

      The EFF just recently put up a site exactly for this purpose: https://trollingeffects.org/ [trollingeffects.org]

    • Good idea, let me just patent that..

  • So everybody is complaining about bad software patents, but are there any good software patents which are actually doing something tricky/interesting worth patenting?

    • Do you think e=mc^2 should be patentable? It certainly was valuable. We wouldn't understand nuclear power without it.

      There may not be any such thing as a good software patent. Software shouldn't be patentable.

    • by jamesh (87723)

      So everybody is complaining about bad software patents, but are there any good software patents which are actually doing something tricky/interesting worth patenting?

      I think this is a bad patent, whether it's software or not. If this guy can come up with a solution that does the same thing as the patented technology (without referencing the patent itself of course) in a short amount of time then it should be obvious that the only thing the patent has going for it is that the holder patented it first. It doesn't represent a substantial investment that the holder needs to recoup.

    • It's like the famous judge's definition of porn vs. nudity, "I know it when I see it."

      I just thought up a test the other day -- government hires some "good" programmers. Person comes in with an idea. If they can implement it in less than a half hour, get outta here!

      This may reject some very clever ideas, of course, but if they are obvious to implement, there never was much real protracted "years of effort" that went on to develop it, which is really what patents are to protect. Kind of how anti-theft is

    • by gnupun (752725)
      Of course, there are many good and essential software patents, which most people know nothing about unless they were in the business of creating a specific product.
      The patent troll problem could be easily solved by enforcing the "obviousness" test. Arrival time and current time status have been used for decades by bus stations, train stations and airports. Did ArrivalStar get a patent because the system was "implemented on a computer?"

      BTW, it seems this or similar ArrivalStar patents appear to have bee
      • by gnupun (752725)
        oops.. Here's the settlement link [apta.com]
        • by abannert (3037317)

          That settlement happened merely a week ago, long after they sued my company (Codemass), and only applies to public transit agencies who are APTA members. (Meaning, it doesn't help any of the literally 100s of other victims of ArrivalStar, nor the future victims who aren't public transit entities).

          Also, you are correct that some of ArrivalStar's claims in only 1 of their 30+ patents were recently invalidated, but other key claims remained in that patent and there's no evidence that ArrivalStar has any intent

    • by drinkypoo (153816)

      So everybody is complaining about bad software patents, but are there any good software patents which are actually doing something tricky/interesting worth patenting?

      "Worth patenting" is the situation we have now.

      "Tricky" is not the bar for a useful patent where "useful" is defined as "useful to the people".

    • by Z00L00K (682162)

      Short answer: NO!

      The reason is that what one company thinks is patentable and has taken a lot of time to work out is for someone else made on the fly as part of a bigger project or without even considering it to be especially advanced.

      Patenting software is not only slowing down innovation due to all lawsuits but it's also stupid since it's like patenting rainfall of a certain type. The rainfall will happen again and again at different locations for different reasons.

      The threshold for obtaining a patent is w

    • by abannert (3037317)

      From another perspective: Are there any truly novel innovations happening in software that can be described in such a way that *experts in the field* can understand and benefit from (not just lawyers), and where they are not simple evolutions of technology (or combinations of technology), and where they can be so narrowly construed so as to not hinder other innovations?

      I do believe some fantastic innovations are happening in software. Those are happening despite the horribly broken software patent system. S

    • by Qzukk (229616)

      Trolls generally don't announce what they're selling up front and the sealed settlements generally prohibit anyone saying what they're paying, but it appears that they want about 7-8% [patentbaristas.com] for each patent, which means that if your product has more than 4-5 patents in it, your patent payments will quickly become larger than your payroll. If it has more than 12 or so, your software becomes impossible to produce.

      Sewing machines had this problem years ago, where rather than patenting a thing, people had run up pate

    • by abannert (3037317)

      In short: I couldn't afford to win. I was told $10-25k just for the initial response, and starting at ~$100k for a patent infringement review of my technology, and that barely gets us to pre-trial motions. If they actually went through with the case it would be hundreds of thousands more, and basically no end in sight. This is a startup I'm bootstrapping myself, and I can't even come close to these kinds of expenses.

      The courts are a HUGE part of this problem. When I was served, the second packet was 10+ pag

      • by volmtech (769154)
        The other side of this is Big Corp infringes your patent. When you file against them their $1000 an hour lawyer says "Bring it on". Could you afford to do that? The Golden Rule, he who has the gold, rules.
  • How do you legislate fairly on this? It's a question I've been pondering.

    I can't see software patents or any other type being abolished due to the loss of perceived wealth that would cause within an economy.

    Instead I think a solution has to be found in the handling of patent cases.
    A fast track legal process which takes a "Tax" on all claims to fund itself.
    Removing the lawyers and courts fees thus removing the fear factor.
    Patent owners should be limited to a percentage of all profits made by the product the

    • What the patent trolls forget is that we all stand on the shoulders of others.
      Their "intellectual property" couldn't exist without the publicly domain intellectual property that existed before it.

      More likely it doesn't impinge on their amoral conscious any more than the thief considers the evolution of the crowbar before prying open your window or the extortionist generations of refinement of the camera he uses to get a compromising photo.

  • I just wanted to reiterate this statement

    The cost to the patent troll for filing a lawsuit is around $500, but Bannert was forced to spend over $10,000 on a legal defense

    It cost my stalker [homelinux.net] nothing to convince the local government to issue me an unconstitutional citation for holding a St. Patrick's Day party without a permit [homelinux.net], and it cost me over $6,000 to get the citation dismissed.

  • Dear Mr. Jones:

    I hear IBM is violating your patent left and right. They are tracking all their field service vehicles using a system just like the one in your patent. Go get 'em.

    Best Regards,
    Darl McBride

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