Losing the War on Patents 179
theodp writes: "Jeff Bezos and Tim O'Reilly's once-hyped BountyQuest.com takes a beating in a Salon article today that takes note of Amazon's recent decision to license one of the few patents BountyQuest claimed to have found winning prior art for, a patent held by the InTouch Group, who had sued Amazon for infringing on the patent prior to Bezos' reported $1+ million BountyQuest investment. In the article, professional patent buster Greg Aharonian provocatively remarks that "BountyQuest was always a joke...Bezos and O'Reilly were never seriously interested in patent quality...Bezos just used O'Reilly to help Amazon...That Amazon ended up licensing the InTouch patent just shows how stupid the whole thing is.""
New Idea (Score:3, Funny)
Re:New Idea (Score:1)
Licensure does not Mean What You Might Think (Score:5, Insightful)
The legal system in the United States is (unfortunately) often used by unscrupulous companies that know that settling their lawsuit will be cheaper than litigation... regardless of the merits of the case.
That said, settling lawsuits (also known as ADR, Alternative Dispute Resolution) is a *good thing*. This gets the decision making out of the hands of judges and juries and into the hands of the parties. It allows folks that are at odds to come together on something where they both have *some shot* of going home happy. At the end of a lawsuit, often everyone loses because of the high cost of litigation.
-jbn
Please note: Part of the cost of litigation is lawyers. They are just doing their job. Part of the cost of technology is hiring techies. Don't fault lawyers for getting paid any more than you fault yourself for getting paid.
Re:Licensure does not Mean What You Might Think (Score:2, Interesting)
Also, on your comparison of techies and lawyers, most corporate techies I know work in cramped cubicles while most corporate lawyers (the real ones not the aides and assistants) I know have large offices swimming in mahogony and plush leather chairs. I think there is a slight difference there.
Lawyers are all evil bastards (Score:1)
I'm curious how many of these settlements happen between lawyers while playing golf and charging the client $300/hr.
most corporate techies I know work in cramped cubicles while most corporate lawyers (the real ones not the aides and assistants) I know have large offices swimming in mahogony and plush leather chairs.
Welcome to the market economy.
Oh, and while you continue blaming lawyers... remember... if juries [your piers] were 100% consistent... trial would be a good option. And if companies didn't pay lawyers... they wouldn't "open source".
-jbn
Re:Lawyers are all evil bastards (Score:5, Insightful)
Re:Lawyers are all evil bastards (Score:1)
While they restrict supply, the law (at least here in the UK and most of Africa) decrees that a limited company *SHALL* employ the services of a qualified accountant to audit its books.
... and before you go on about how this is done to safeguard the interests of investors, think ENRON!
Re:Lawyers are all evil bastards (Score:1)
Re:Lawyers are all evil bastards (Score:2)
In what way is the supply of lawyers artificially restricted. Are the numbers of lawyers growing? Is there some society that determines how many lawyers each town has? Is there racial or gender discrimination? Who restricts the number of laywers and how? Go ahead and back up your ridiculus assertion.
Perhaps while you were wallowing in your ignarance you confused passing the bar exam as some sort of a restriction. If this is so please tell us how this is different from doctors, professional engineers, electricians, plumbers hell even MCSEs.
I await your answers.
Re:Lawyers are all evil bastards (Score:2)
Re:Lawyers are all evil bastards (Score:2)
Who limits the number of lawyers? What is the maximum number of laywers that the US can have and how is that number distributed amongst the different cities and states.
Just because I spelled a word wrong that does not mean you are not an ignorant fuck who thinks there is a cap on the number of lawyers.
Re:Lawyers are all evil bastards (Score:2)
What is the maximum number of lawyers the united states can have, how is that number distributed amongst the various cities and states, and who enforces these numbers.
This was your idiot assertion not mine. I just want you to clarify your point. You refuse to and complain about my spelling and my abusiveness.
You made a moronic nonsensical post now explain yourself or at least admit that you were full of shit when you made some insane accusation that there was an artificial scarcity of lawyers.
Re:Lawyers are all evil bastards (Score:2)
Re:Responsibility (Score:2)
Except that the guild does as little as possible to discipline crooked members...
Re:Lawyers are all evil bastards (Score:2, Informative)
Basically judges interprets the patent and the jury nods their head. So don't always blame my peers.
Re:Lawyers are all evil bastards (Score:1, Informative)
Most lawsuits end after the Markman hearing, in which the definitions of the words used in the claims of the patent(s) are decided by a judge. Juries are still responsible for deciding the facts in the case, Markman hearings merely ensure that someone with legal training interprets the claims, which are not unlike a legal contract in that they contain legal terminology, syntax, etc. -- would it be fair to expect a jury to interpret the claims as such?
Re:Licensure does not Mean What You Might Think (Score:1)
Exactly my thoughts. Thank you.
But, I wish you would get a different name. I feel odd accepting wisdom from someone named "RazzleFrog".
Re:Licensure does not Mean What You Might Think (Score:1)
There is a story behind the name. I spent many years using my first initial and my last name as my userid everywhere. This was inherited from the very early days in college and it stuck. In the last year or so I got sick of it but all the cool names were taken so I was talking with somebody about Fraggle Rock and inspiration stuck. Of course, in today's litigious society I swapped it around to become RazzleFrog (as opposed to RazzleFrock which sounded like something you would wear).
This also explains my high 500000+ slashdot ID.
Modded down... (Score:1)
Interesting.
And I got modded down for mentioning it. *grin*
Re:Licensure does not Mean What You Might Think (Score:2)
Re:Licensure does not Mean What You Might Think (Score:1)
From a logical view it seems silly, sense its just a waste of energy and money that could be applied to something useful, oh say like mabye actually innovating?
Re:Licensure does not Mean What You Might Think (Score:5, Insightful)
No it's not. It only means that trying to do the right thing (that is, figure out who really owns a patent and whether or not its valid) is more expensive than paying wallet-service to unsubstantiated claims.
If thats the pinnacle of achievement of the market based economy, count me out. Like how the IMF bailed everyone out of the Asian market crisis, nobody ends up learning anything, and stupidity is allowed to reign. Market based tactics always place the interests of the few (private interests, natch), above those of a soceity at large, which is why in this day of wealth-stroking penetance, the social costs of systems supporting private interests are huge. So long as you blindly stroke the market with your narrow minded rhetoric, it will continue to do so, instead of serving the broader social interests (ie, barrier to market, equality in market participation) that it was designed to do.
Money talks louder than Right. If you claim thats a good thing, you're too far gone to save.
Re:Licensure does not Mean What You Might Think (Score:2)
Don't worry, I only fault them for making it cheaper to ignore real problems than to actually analyse and solve them by way of an impartial judicial system. Then I fault the companies for placing all of their shareholders value in a concept that would cost crudloads to defend. And then I fault shareholders for being more interested in the success of their stock than the improvements that the technology their money is behind makes to life in general.
And then I go back to work.
Re:Licensure does not Mean What You Might Think (Score:2, Interesting)
Conceptually, BountyQuest is a good thing. It can help locate hard-to-find prior art in certain technical areas (such as software)--the kind of stuff that isn't in prior patents, hasn't been published in a widely distributed/searchable medium, or just might not be appreciated for what it is by those of less technical skill (including patent attorneys and patent examiners). It also has the potential to empower those who complain about overly broad patents to do something about them. If you think the patent had obviously been done before, go find a reference to prove it.
However, BountyQuest has some tragic flaws and is in no way a solution to all that ails the patent system. Finding a good prior art reference after a patent has issued does not eliminate the patent or necessarily prevent it from being enforced. Identifying a reference is just the first step. The procedural costs and risks associated with invalidating a patent (either through the courts or the Patent Office) are high. As long as there is a legally viable argument (which there almost always is) that the patent is still valid, the owner may continue to assert it.
Identification of a strong reference does hurt the patent holder though and is a great service to those the patent is asserted against. It greatly reduces the patent holder's negotiating power because they want to avoid litigation as much as accused infringers. I'm sure that Amazon managed to negotiate a more favorable license (if the reference was really that good). There are others who will be willing to fight if the patent holder pushes too hard or asks for too much.
Unfortunately, this service does little for small companies and individuals and does not rid the system of patents that should never have existed in the first place. The companies that can absorb the licensing costs are subjected to an illegitimate tax that raises the cost of doing business--again, ultimately hurting the consumer. If BountyQuest really wanted to put its money where its mouth is, it would put together a legal service for invalidating overreaching patents. Something like a legal defense fund for the public domain of ideas. Actually, a lot of patent attorneys might be interested in the pro bono opportunity if it existed.
Re:Licensure does not Mean What You Might Think (Score:2, Interesting)
I'm highly confused by this statement, your saying that if I get sued and settle for a million dollars, in which I was basically blackmailed, because I knew that taking it to court could cause my buisness to go under. So you say we've both won?
Re:Licensure does not Mean What You Might Think (Score:1)
While there are cases brought that are totally bogus, most cases have a pretty heavy grain of truth in them [that is often absent in the news accounts of the stories]. Those that don't have any truth to them can be thrown out very early in the case with very little expense... before people even start settling cases.
Reporting lawsuits fully and accurately is no different than trying to report fully and accurately the new features in the latest kernel. The facts and the media report are often going to end up a little ways apart. These *totally worthless* cases don't happen as often as you might think, and when they do, the plaintiff rarely gets million dollar settlements.
-jbn
I say rarely, because I rarely say never.
Re:Licensure does not Mean What You Might Think (Score:1)
If you settle lawsuits, the terrorists win (Score:1)
Waste of an investment (Score:3, Interesting)
Even if they do have prior art on their side, you have to PROVE it's prior art.
The stupid thing here is that Bezos spent $1M+ on this project and didn't even bother doing anything with the fruits of the labor.
Oh well, hopefully BountyQuest is at least paying those who find the prior art... that way it can be useful for someone, if only as a way to redirect some corporate money into one's own pockets. (In the non-Enron way, that is...)
--The Rizz
"There are no circumstances under which a state is justified in placing its welfare ahead of mine." --Robert A. Heinlein
Re:Waste of an investment (Score:1)
BountyQuest has already given fruit if you ask me.
Unusable legally? (Score:4, Insightful)
- "It was never used in the case," says Joshua Kaplan, founder of InTouch. "The defendants didn't bring it up."
Simple answer: it wasn't viable as legal evidence in a court of law?Re:Unusable legally? (Score:2)
Let's strike back... (Score:4, Funny)
Method to increase the choice on a public online opinion poll
Reference A shows an apparatus to perform a public online opinion poll (Reference B) which is to be increased by one option (Reference C) containing the nickname of a person related to the mentioned apparatus (Reference D)...
References:
A) "http://slashdot.org/"
B) "http://slashdot.org/pollBooth.pl"
C) "http://slashdot.org/pollBooth.pl?qid=740"
D) "http://cowboyneal.org/"
Re:Let's strike back... (Score:2)
Im sorry, but your patent number appears to be incomplete.
Please resubmit with completed patent number and we will be happy to assist you.
Thank you, and have a nice day!
-
Ideas (Score:2)
Re:Ideas (Score:2, Informative)
If you can't prove it, you're SOL. The patent will stand.
If you can, then either the patent will be rejected (if the PTO is made aware of your invention), or the courts can invalidate the patent after the fact.
Re:Ideas (Score:1)
I guess the problem is when people are not au-fait with the current laws.
I imagine that something published online, if transferred to a different medium could also be considered under the DMCA. I wonder where excerpts and verbatim copies stand with this (even in an office meeting scenario).
I'm no lawyer. I'm not bloody minded enough
I guess we know how Native Americans felt... (Score:3, Informative)
Then some @sshole finds a nugget of gold. Suddenly there's a town upstream, polluting the river, 1000s of stinky (and paranoid) prospectors pointing shotguns ("git awfa mah propertah!"), and the river is clogged with boats.
We can only hope that the gold runs dry quickly, the prospectors drown trying to run the rapids on their way to sell their sacks of gold (which they tend to tie to their bodies, thankfully), and things will get back to normal sooner or later.
Either that, or its time to move.
Re:I guess we know how Native Americans felt... (Score:1, Flamebait)
Then some @sshole finds a nugget of gold. Suddenly there's a town upstream, polluting the river, 1000s of stinky (and paranoid) prospectors pointing shotguns ("git awfa mah propertah!"), and the river is clogged with boats.
We can only hope that the gold runs dry quickly, the prospectors drown trying to run the rapids on their way to sell their sacks of gold (which they tend to tie to their bodies, thankfully), and things will get back to normal sooner or later.
Well, we all know how that story ended. It became the United States of America that we all know today. Draw your own conclusions ;-)
Nope, it became Canada. (Score:2)
It's possible he's talking about the Juneau Gold rush, where Joe Juneau was lead to the gold by the chief of the Auk tribe. The town of Juneau grew, but there wasn't the huge stampede there- in 1881, there were still only 150 whites in town. According to the stories, the local indians, though they did not profit, did not do too badly.
The last gold rush took place in Nome, Alaska. With some 40,000 prospectors. But that took place on a beach.
The most likely candidate is the Yukon Gold Rush, where some 60,000 prospectors tried their hands. It had a devastating impact on the Native Americans in the area, the Yukon Tribes. Of course, the Yukon is part of Canada.
If It's broke don't fix it! (Score:4, Insightful)
However some of the cures seem worse than the disease. For Example:
Sig recursion (Score:3, Informative)
Uh, shouldn't that be "Just your average nitpicker."?
-- MarkusQ
Re:If It's broke don't fix it! (Score:2)
There is always copyright to fall back on. It's not as if there are no laws to protect software if you take the ability to patent it away. Personally, I'd rather see every company write closed code than have them patent the idea behind it.
And what is the FTC going to do anyway? To paraphrase, I think, "Everything under the sun, made by man, can be patented." That is the current legal view regarding patents. As long as it isn't obvious to a person with average skill in the field you can patent it. Let's not forget to add that it is the USPTO's assumption that disputes will be handled by the courts. After all it is why they created a court just to handle those cases. And while it is possible for somebody to pay the USPTO to re-review a patent whose fault is it that so few use that option?
So what should they do? Validate patents through a slashdot poll?
Re:If It's broke don't fix it! (Score:2)
"
There's the kernel of an idea here. Not slashdot, the horror... But posting a summary to a technical board in the subject area during patent review could help. If 90% of the responses say it's BS, prior art or apallingly obvious to a practicioner in the field - don't grant it.
Re:If It's broke don't fix it! (Score:2)
Re:If It's broke don't fix it! (Score:2)
The current problem IMHO is due to the overturning of the business method exception (2 [gigalaw.com]) which almost allows just an idea to be a valid patent and were excluded with a 100 years of case law, that this type of business method patent was not the intent of the constitution, and also one of the reasons all these patents were available, since even though the basic ideas are very old (for instance Priceline patented a reverse auctioning business method) no one was able to patent them when they first appeared since business models werent able to be patented (with good reason IMHO) until 1998.
The war is not over..... (Score:2, Insightful)
Making the US vulnerable to economic warfare? (Score:3, Interesting)
By tactical use of patents and copyright laws it would be easy for such an entity to stifle development of technology and products, thus destroying the US economy.
Just an idea.
Re:Making the US vulnerable to economic warfare? (Score:2)
Re:Making the US vulnerable to economic warfare? (Score:3, Interesting)
Re:Making the US vulnerable to economic warfare? (Score:2)
The entity does not have to be a foreign government and it does not have to be a short term 'attack'.
In fact you could probably get the same result as a coordinated effort by making it profitable to use the US legal system to get self gain. Ok take this scenario, you are a competitor of a US company, part of your strategy is to stifle your US competition by the use of DMCA and software patents, your US ompetitor cannot retaliate by doing the same to you using your legal system. Now multiply this by many times and the results are the same as a coordinated attack by one entity even though no such coordination has taken place.
Oh and protect yourself by having a shell company in the US.
Just some thoughts
part of the problem (Score:2)
This may be a part of the problem right here. Although, I do not know about the financing of the site in the first place.
Let's face it. I would expect that we would have an increase in the number of contests. or did it quickly get into areas that were just to obscure?
Domino Licensing -- A Clause for the Settlement? (Score:2)
This royalty payment must be returned if, within the next 3 years suit is brought up and within 10 years the suit results in the patent being overturned. To facilitate this, as soon as a suit against the patent is filed, the Inventor must put the amount of the royalty payment into escrow account or find a gaurenteer which will back the payment. Further, the licensee does not give up right to join such a patent law suit.
I'm not a lawyer, but this clause could do wonders to stop patent profiteering by allowing the law-suit costs to be spread over all of the licensees. Thus, X NY. A standard clause like this (or written into law) would help things out significantly; since it makes the entire industry the defendant rather than each individual company.
What can we honestly do? (Score:5, Insightful)
That really bothers me. As a software developer, I've always aspired to make some really cool killer application, but I wonder how many infringments of obvious patents I would encounter if I attempted to do so.
So what am I going to do? Drive down to DC and hold up posters and distribute leaflets in front of the USPTO while the people who are taking advantage of the patent office laugh at me as they work on receiving thier government sanctioned monopoly on an IDEA???
Wait a minute... I thought we were capitalists. What's this crap about the government sanctioning monopolies? On ideas non-the-less.
I don't know about you guys, but I feel helpless in this situation. I grew up actually believing that this civilization was about real prosperiety and the creation of wealth.
I had one idea. I figured that with 20,000 some patents a year, we could assemble them and demonstrate how easy it is to infringe on obvious patents.
The way I would probably demonstrate this would be by writing a VB program in front of a group of people, much like the seminars. As I add features, I would tally the number of patents I infringed on.
Hell, you don't even have to show any code, just the natural evolution of ideas. Maybe as you're improving the software you could poll the audience for the next improvement and to thier surprise, they would discover thier obvious solution had been patented.
That's one idea, but it's fill with a ton of flaws. Ex: Who wants to watch me improve on a software program? Where am I going to do that? How am I even going to get people there?
I don't know about you guys, but I want to stop bitching about this and do something. The question is: What can I honestly do?
Re:What can we honestly do? (Score:2)
The way I would probably demonstrate this would be by writing a VB program in front of a group of people, much like the seminars. As I add features, I would tally the number of patents I infringed on.
Hell, you don't even have to show any code
I certainly wouldn't show my code if I were writing programs in VB, in fact I'd carry that secret to my grave.
Re:What can we honestly do? (Score:2)
My thinking went along the lines of:
If people knew that you could even infringe of software patents with VB, then they could be certain they have no chance with thier own language.
That sounds like a great idea. (Score:1)
Re:What can we honestly do? (Score:5, Informative)
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
When did the strong spirit of these beautiful ideas become so meaningless?
Re:What can we honestly do? (Score:2)
Could you provide the source for that quote?
I've tried Google but every page that has it only cites Thomas Jefferson. Nobody gives a full citation./P.
Re:What can we honestly do? (Score:2)
It's not binding. Period. (Score:1)
It's not legally binding. Period. And if it's not legally binding, the courts have the power to ignore it. (Heck, they routinely ignore even binding laws such as 17 USC 117 and the DMCA's exemption for some reverse engineering.)
Re:It's not binding. Period. (Score:2)
I'm just afraid that my grandchildren will ask me in 2050: "Grandpa, what was the freedom of thought?" and I will tell them "I can't tell you kids, it's against the law now."
It happens all day long. (Score:2)
When did the strong spirit of these beautiful ideas become so meaningless?
So look up subject and property in a current and in a 1770 dictionary. You might find the differences disturbing. English language evolution has been co-opted by five music publishers and three broadcasters for the last 60 years, are you supprised that your words serve your masters?
Re:What can we honestly do? (Score:2)
Who is John Galt?
That why there are patents (Score:2)
The patent system was designed to work around this obvious deficiency in reality.
The point of the patent system is to give people a monopoly for a limited time on their inventions so as to encourage them to release them into nature (which would tend to destroy their value).
Obviously, there's no value in a system which does this with "obvious" information, which is why the patent system is supposed to disallow patents on "obvious" inventions.
But if there's one thing this article has shown us, it's that people's whining about obvious patents is full of hot air. If only 4 of the many bounties offered by BountyQuest for these supposedly "obvious" patents were paid out, that implies (not ensures, but strongly implies) that these patents were not on obvious ideas, otherwise genuine published prior art would have been found by someone motivated by the $10,000 typical award.
Re:What can we honestly do? (Score:3, Insightful)
Re:What can we honestly do? (Score:1)
Say your a company that comes up with a great idea, say a new drug that will stop or inhibit some disease. You publish your results and any other company can now make it. Wait you have to get the millions of dollars back you spent to come up with the drug while all the other companies just have to build a manufacturing line. Capitalism has to have some incentives.
That is what patents are or should be. An incentive for coming up with a good idea. There just needs to be a better way to filter out the crap from the good ideas.
And please don't start on how drug companies would rather treat a disease, than cure one. That is a whole separate issue.
Open-source implementation of software patents (Score:1)
Why not creating a repository of open-source implementation of every software patents, and put this repository in a anti-software patent country (Europe, but not for long I'm afraid, or Canada, which have a really strong feeling against software patents, or even Russia, why not ?).
That would mean that every foreign industry, in a anti-softpatent country, will be able to create software using thoses open-source implementations, but NOT american industry !
A real disavantage for american company !
I'm sure that, then, it's them that will ask for NO software patent
Re:What can we honestly do? (Score:2)
OK, I completely understand the need to figure out what you can get up and do to fight something. However, I still have to point out the slight flaw in your idea. I have trouble teaching non-techies I know how to use Outlook sometimes. You really thing anyone that doesn't already agree with you will understand what your doing and why you're trying to do it with "street VB programming"?
I thought it was kind of rediculous too, but that's the best idea I could think up to educate how software patents inhibit software developers.
Apparently, there are atleast 1/2 million software developers in the US alone. How can we atleast galvinize that?
Its all plain stupid (Score:1, Redundant)
The whole on click thing, common sense, its patent that should never have been granted.
Downloading music samples, makes sense to deliver samples of songs to users, it would seem as connections got faster, that this would begin to happen more and more. Common sense...
Don't even get me started on the BT thing...again it makes sense that users would need to get from point A to Point B on a computer its a dumb patent.
It's not just software patents (Score:2)
D'oh!
Re:Its all plain stupid (Score:1)
Who gets to define *common sense ideas* ? (Score:3, Informative)
A patent examiner doesn't have the luxury of just saying, "oh, well this is obvious." If it was so obvious, then why is there NO prior art mentioning it in the past?
Let's face it, as computer geeks, we think just about any computer idea is obvious because it all builds from prior knowledge. But to the patent office, they can't be so subjective. They need to guage the public's knowledge NOT by what they THINK the public knows
If something is truly common knowledge, then some reference to it must exist somewhere. That's the problem that places like IP.com are trying to solve. Make prior art more easily visible to examiners to prevent these "bad" patents from issuing.
- vin
Re:Who gets to define *common sense ideas* ? (Score:3, Insightful)
I feel really bad smashing your beautiful argument to little bits, but you made a critical error. The "common sense" in question isn't of Joe Public, but of specialists. I don't have to be a nuclear physicist, but I expect that if one came up with a brilliant new idea- say, cold fusion- and it worked, that they could go to the patent office and get a patent. OTOH, I don't want folks going and getting a patent on (for example) putting your socks on before your shoes.
The problem here is that the PTO has delegated the lion's share of research into prior art to the applicant. How many people do you think, under that system, would do research? Either the PTO has to do independent research, or would also have to say "We will invalidate any patent granted if we are notified of prior art, no matter how minor, relevant to your patent that was not mentioned in the application."
Software patents (Score:3, Insightful)
Software patents are not examined as effectively as other types of patents, e.g., for hardware or mechanical devices, in large part because of the natural language problem; when I claim software, I am claiming an algorithm that can be described in hundreds of different ways in English, even though to one of ordinary skill in the art all of those descriptions would mean the same thing. Add to that the fact that the technology is developing so quickly that nobody in the industry is aware of all the latest developments, and you have a serious information distribution problem -- examiners don't have access to the prior art.
The answer is not to overthrow a system that has helped to make the US a global leader in technology development. In fact, few, if any, changes need to be made to the system at all. As the software industry develops, the fundamental concepts that form the basis for technology in the industry will become better and more widely understood, and fewer "obvious" patents (like the "one click" patent) will issue. In the mean time, we have to look carefully at what is being claimed in these patents to see how the industry develops a legal description for its fundamental concepts.
Software patents in the end will protect small companies that come up with "killer apps" rather than allowing large companies to perpetuate monopolies that are founded on their dominating share of the market. The patent system has done this again and again in other fields, and software will be no different.
Re:Software patents (Score:2, Insightful)
I have some ideas for inventions myself. But, since I can't patent them, I'm not even willing to test them, or try to get a investor to help with the patent, because some big corp would probably patent it out from under me if it had any real value; And then it sue me into the ground because I can't afford any kind of legal despute if I tried to make my own invention.
God bless America, Land of the Free (Corporations)
Re:Software patents (Score:1, Informative)
Re:Software patents (Score:2)
Essentially, the ability to patent software is the ability to patent thought. Combined with the ability to patent genes... either is more than a dangerous path to take; both is sheer folly born of total greed. Don't think nobody in power would ever exploit their position to abuse it - Pol Pot, Adolf Hitler, Mao Zedong, Joseph Stalin, Saddam Hussein, Osama Bin Laden, Josef Mengele. Have I named enough people, or should I continue?
The main problem with software patent (Score:5, Interesting)
It costs lots of money to mass-produce a technically advanced enough device that would infringe on a significant patent. This means that, if you are faced with a patent infrigement suit, you are most likely already spending a lot of money to produce/design the device, so defending yourself will only be a small part of the total cost of the thing.
Software patents now
And it's virtually IMPOSSIBLE to avoid infriging on patents: not only are there too many of those patents, but they're written in a completely hermetic language that only specialists comprehend. To top it off, not every programmer understands english well enough to begin with.
That's why software patents are dangerous and freak the shit out of free software developers: it's like running in a landmine-ridden field. Nobody has step on one yet, but it's bound to happen.
Goes to show, you can't be too cynical (Score:5, Informative)
Which demonstrates the clarity of corporate thinking in contrast to our muddy old fashioned notions of "right" and "wrong". From my experiences of talking to my employer's legal department, here's how corporates involved in litigation think:
That's it. That's the only consideration. If the cost of paying lawyers to win the case is more than the cost of paying the litigant, it won't be fought, and no precedent will be set. Right and wrong is irrelevant. Note that in a case where both parties have limited access to resources, it really is the ability and willingness to spend that decides the verdict. When one party runs out of money or blinks, the case is settled.
A step towards helping this would be if the courts took an example from (e.g.) English courts, where it's much more usual for the loser to pay both sides' legal costs. This generally requires a countersuit in the US, except in a few well defined cases, like when you can prove breach of registered copyright (yes, that's right, if someone steals your unregistered copyrighted work, you have to pay to prove they did it, then all that happens is that a court tells them to stop [and if they don't, you have to bring another suit]. You don't typically get a sizable award, not even your legal costs).
Second, courts could stop awarding randomly huge amounts of damages to successful litigants. As with unregistered copyright, they could simply say "Stop it" to the losing party, and let both sides pay their lawyers and weep over how stupid they were to let it get to court in the first place. There's an argument that punishing the transgressor is necessary to make an example, but we have swung too far, to the point where people are using the courts as a primary means of income (not just at a corporate level over patents and IP, some people make a good living through personal injury suits)
Third (an important adjuct) we could trim the crap out of our legal system and translate it from Lawyerese. It's no coincidence that about 50% of both Senate and Congress are members of the American Bar Association. Separation of powers my ass, US law is written by lawyers for lawyers. What we need is a system where neither defendant or litigant needs a lawyer, and a streamlined process that forces both parties to stick to the primary evidence by giving a fixed amount of time to present whatever evidence and arguments they want (without interruption), then a fixed time to rebutt their opponents. This often happens in an ad hoc fashion in lower courts dealing with minor issues, but there is no reason why it shouldn't apply at all levels of civil litigation which considers "balance of probability" rather than "beyond all resonable doubt". If you can't make your case in two hours (without interruption), you can't make it at all and are just stalling to bleed your opponent and to inflate the perceived important of your arguments relative to his.
Whew. There we are. I firmly believe that patents aren't the problem. Sure, it's farcical that the USPTO is funded through granting patents, but I don't believe that's the real problem. The problem is that it costs a lot of money to defend a patent suit, and we give ludicruous awards to the winner based on theoretical damages. Chances are that the defendant has more to lose and will blink first and settle. As we've seen again and again, we now have a new breed of company that exists solely to file speculative patents, sit tight until someone else implements them, then sue on the basis that they could have made X amount of money if they'd bothered to implement their own idea.
Simple enough answer: you didn't implement the idea, you don't get damages. You can stop people from using your idea, and you can negotiate to license or sell it, but what you can't do is negotiate using the threat of an insanely huge lawsuit. If you want to stop OmniMegaCorp from using your idea, find a pro bono lawyer, sue, win, get your legal costs awarded, and let them come to you offering to pay you a fair amount. If the implementor thinks they've got prior art, they have less to lose by fighting it to the end, and having your patent invalidated. We really do need to encourage both sides to see a case through to the end by lowering the risks, and I'd be willing to put tax dollars into the courts to make that happen, because I know that every time a company buckles under and agrees to license an idiotic patent, those costs will eventually be passed on to me.
Does that sound insane?
Re:Goes to show, you can't be too cynical (Score:3, Insightful)
A step towards helping this would be if the courts took an example from (e.g.) English courts, where it's much more usual for the loser to pay both sides' legal costs.
After starting off with a good explanation of why people settle, you offer a solution which just makes it worse. If the loser has to pay the other's attorney's fees, then people will settle even sooner because the amount of money they could lose is significantly higher. Example: lets say that example company R sues other company I for patent infringement. R sues I for $10 million dollars. I knows that the patent is silly. If they fight the patent, they will have to spend $2 million for lawyers (as will their opponents). Now if I wins, they will lose nothing, but if they lose the case, they will have to pay $14 million ($10mil judgement + 2 mil. lawyers + 2 mil. other lawyers). This sort of distribution of costs makes it harder for companies to know how much a lawsuit will cost, and most companies being risk adverse, they will settle to avoid the lawsuit. Simple enough answer: you didn't implement the idea, you don't get damages. You can stop people from using your idea, and you can negotiate to license or sell it, but what you can't do is negotiate using the threat of an insanely huge lawsuit.
Mostly I agree with this. What happens if you were working on implementing an idea, but someone else comes out and uses your patent, and they destroy your market. Ie. you have a patent on a widget. Joe Bob reads your patent and starts selling the widgets, and everyone who wants a widget has already bought one. Now you sue Joe Bob, and he can't sell them any more. What are you going to do with your $30 million dollar widget factory?
Re:Goes to show, you can't be too cynical (Score:4, Insightful)
a) Plaintiff wins, legal fees covered by individual parties since the Plaintiff was shown to be "in the right".
b) Defendendant wins, all legal fees are covered by the plaintiff since they were responsible for bringing the suit to court and wasting everyone's time and money.
That way the defendant, who did not call the court to action, never has to pay for the often exorbitant plaintiff's legal fees. Additionally, plaintiffs have an incentive to only bring to trial issues that they are "in the right" on.
We'd still have problems, but far fewer lawsuits would be brought on just to threaten someone into submission.
Re:Goes to show, you can't be too cynical (Score:2)
Unless they think they'll win. This article is about a company buckling even though they had prior art. If they've presented that to the litigants, and the litigants have gone ahead anyway, then the suit is essentially frivilous, and the litigants really should be punished as much as possible for bringing it.
Remember, we're talking about predatory misuse of patents here, where usually the defendant can show prior art if they think it's worth sticking out to the bitter end. Shortening the case right down would help with that.
Incidentally, I didn't make it clear that it's not court time that matters, it's case time. If the court hears arguments for four hours, then adjourns for two weeks to let both parties prepare two hour rebuttals, that's only eight hours of court time, but it tends to add four full weeks of billable lawyer time for the parties. So cram it into one day. If you don't prepare enough to rebutt on the spot, tough. A civil case is "balance of probabilities", remember, it's not the all-or-nothing of a criminal case. If you're clearly in the right, you should be able to show that quickly and without being tied up in side issues or having to go away and come up some clever legalese to torpedo your opponent's arguments.
Supply the market that Joe Bob has kindly created for you. He's actually done you a favour. Pay him money for access to his client base. Alternatively, license Joe Bob to continue supplying the market (he's invested to do so, and will be eager to settle now). I'm absolutely not in favour of using patents to kill ideas, just that if you're not using your patent, you shouldn't be able to be awarded damages as though you have been.
Here's another way to balance things (Score:3, Interesting)
In other words, get money out of the equation of justice. There would certainly be some abuses. MegaCorp could pay a low rate for legal advice on one lawsuit and exagerated rates on unrelated legal matters. But that would show up sooner or later, and it could only be done to a limited extent. MegaCorp still couldn't show up in court with ten lawyers who are only billing $25 an hour, it would be too fishy.
Apply this to all cases, not just civil. It would stop the death penalty abuses, where some poor slob (who probably is also a scumbag, but still deserves justice) is given $350 for his complete defense.
Wow now that would be an easy win... (Score:2)
Kjella
Heck, that's a minor fix :-) (Score:2)
Or allow some minimum amount, say one employee. It would be hard to argue that because you spent $0, the other side couldn't even send an employee.
Anyway, the basic idea is to simply not let one side buy justice when the other side can't afford to match them. Even if one side manages to cook things enough to spend twice as much as the other, that's nothing compared to what happens today.
Re:Goes to show, you can't be too cynical (Score:5, Insightful)
That's a good point. Maybe the issue fee ($1280) should be folded into the filing fee ($740).
Prior art intentionally buried? (Score:3, Insightful)
"
So, let me see if I understand this. It is possible that if one discovers prior art, one could contact law firms and companies directly to sell this knowledge? One might even contact the company which is the patent-holder in question to see what it would be worth to keep this information a secret, or sell the information to the patent-holder themselves so that they may bury it.
This sounds like quite the little cottage industry and much like the many designs for 100+ mpg carburetors which have been purchased by the car companies and shelved.
I know that it is possible that some other person may find information regarding the same prior art, but the gamble might be worth it from the companies perspective based on how many or how few people might be looking at a particular patent and the value of that patent.
It wouldn't surprise me that this is taking place. Another possible example of capitalism at it's finest.
I guess greed may still rule...
Re:Prior art intentionally buried? (Score:3, Insightful)
a) fuel injection has been more fuel efficient than carburettion since like, 1980
b) many vehicles are hit with a gas-guzzler tax because they dont meet some fuel efficiency standard. that cost is directly passed to consumers, meaning a higher price point for a given car, meaning less attractiveness compared to some other vehicle which is more fuel efficient
c) things like CAFE and other clean air / efficient fuel laws penalize automakers that dont meet draconian fuel efficiency standards.
in other words, fuel efficiency is a _major_ cost issue for car makers. the prices of the cars go up if they aren't fuel efficient, and the carmakers actually get fines if they dont ship cars in a certain range of efficiencies... to the extent that some foreign cars will never come to us shores because of the pentaly imposed..
for example, BMW just designed and built a brand new engine factory because they figured out how to get approx 15% fuel economy improvement. This is a major leap forward in engine design. All future BMW engines will incorporate this technology (valvetronic)
So, tell me who's sitting on a 100mpg _carburettor_ that actually works, and is a relevant choice for application in a US motor vehicle ? Because i'd be curious to see what mathematics comes up with a scenario where sitting on it is better than putting it in a car...
Re:Prior art intentionally buried? (Score:2)
It is very unfortunate that they are so popular, because they tear up the roads, are wasteful of essentially every resource, and do nothing especially well (except kill other drivers, while tyipcally saving the brick-headed morons that buy them)
I've said it before and I'll say it again. We'll rely less on oil when its cheaper to do something else. Oil companies aren't stupid and have been working on synthetic and alternate fuels for decades. Auto makers are doing similar work - BMW has been making prototype hydrogen powered 7 series cars for 3 generations of that line (nearly 20 years).
Don't think of SUV's as cars. Think of them as signs of obesity and idiocy.
Most modern _cars_ get pretty good as mileage. Most japanese 4 bangers are > 30 mpg for highway driving. The latest corvette has a 50% overdrive 6th gear that lets it coast on the highway getting nearly 27mpg - for a car that has a 4 second 0-60 time (unheard of for any car under 6 figures).
Most "work" trucks are also reasonably fuel efficient because of how they are driven. They have poor mileages because they have large displacements to generate the torque required for the work they do. Diesel truck have it even better, since Diesel is about 11% more fuel efficient than gasoline.
So, generally the auto industry has made great leaps and bounds in complying with increasing fuel efficiency requirements while still meeting the demands and expectations of consumers.
Incidnetally, all the cars that suffer from gas guzzler tax are usually high performance vehicles, not cars made by lazy companies. The new BMW M3 has one of the most efficient motors ever produced - 333 horsepower from 3.2 liters, thats greater than 100 horsepower per liter, all with normal aspiration. Even so, the M3 is hit with the gas guzzler tax because at 8000 rpm (its redline) its going through quite a bit of fuel.
Essentially these regulations are putting performance car makers in a bind. The cost of a performance car is passed onto the consumer.
Meanwhile, SUV's are classed as trucks and have utterly abysmal fuel economy. They damage more people, more roads, and more property than other types of vehicles. It is statistically and intuitively obvious that letting soccer moms drive 5000 pound vehilcles with silver-dollar sized brakes in stop on go traffic in a 20 minute commute is a huge problem. If you want real reform for fuel efficiency, roadway saftey, etc, then i suggest requiring SUV's to be treated like trucks in terms of vehicle and drivers licensing is a great idea. Driver education in the united states is pitifully inadequate and putting heavier, less stable, less performant, and less economical vehicles in the hands of the blindfolded masses has borne out to be a bad idea again and again. Requiring people to get different licenses based on weight class of vehicle might be a good start.
100mpg (was Re:Prior art intentionally buried?) (Score:3, Informative)
Get your Google on if you want confirmation.
Re:Prior art intentionally buried? (Score:2, Insightful)
Another possible example of capitalism at it's finest.
No. Patents are government granted monopolies. They only exist because of government.
Prior art is only part of the solution. (Score:3, Insightful)
The Purpose of Patents (Score:3, Insightful)
Ask yourself: was there a lack of innovation before software became patentable? Has innovation in software increased since software became patentable?
Are software inventions more or less available for use once they are patented?
Corporate patent lawyers actually DISCOURAGE engineers from seeking solutions to technical problems in the patent system - it would open the corporation up for patent law suits. It's much safer to re-invent the wheel.
Hurt to developing economies (Score:3, Interesting)
I wonder if Japan's economic revolution, which started because it began copying electronics devices from the West and did them more cheaply, then better, I wonder if that could today? They would probably get hit by loads of patent infringement claims, which they wouldn't have been able to afford to fight.
Lets take India, for instance. Lots and lots of very cheap programmers. Don't like paying hundreds of dollars for your XYZ software? You don't have to any more, the Indians have a package just as good for a tenth of the price... It could happen, just liked it happened with Asian countries and consumer electronics and cars.
Some of you may think, well in that case software patents are good because they protect American businesses. However, if the ecomonies of developing countries improve, we are all better off for it. The people in those countries are more wealthy, which is better for them, and it's better for us because they have money to buy our stuff. Essentially, patents are blocking the efficient working of the free economy, which of course is a cornerstone to the American Way. So, to use currently popular rhetoric, software patents are anti-America.
Re:Hurt to developing economies (Score:3, Insightful)
You can write any software you want for 95 percent of the world's population (a vastly untapped market) or you can run through a minefield of regulations to write software for the 5 percent of the world with a very mature market. I see the rest of the world opting out of the US IP system.
obviously... (Score:3, Insightful)
BountyQuest was always a joke...Bezos and O'Reilly were never seriously interested in patent quality...
If you're at Vegas and you find a broken slot machine that pays out more than 50% of the time, would you tell anybody? Would you do anything about it? Why on earth would you?
You'd just get in line along with the hundreds of other people and start pulling that lever..
Countersuing? (Score:2)
DANEGELD (Score:2)
(A.D. 980-1016)
Rudyard Kipling
IT IS always a temptation to an armed and agile nation,
To call upon a neighbour and to say:--
"We invaded you last night--we are quite prepared to fight,
Unless you pay us cash to go away."
And that is called asking for Dane-geld,
And the people who ask it explain
That you've only to pay 'em the Dane-geld
And then you'll get rid of the Dane!
It is always a temptation to a rich and lazy nation,
To puff and look important and to say:--
"Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away."
And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.
It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray,
So when you are requested to pay up or be molested,
You will find it better policy to says:--
"We never pay any one Dane-geld,
No matter how trifling the cost,
For the end of that game is oppression and shame,
And the nation that plays it is lost!"
Re:What About GPL Software? (Score:2)