Netflix Sued Over Fradulently Obtained Patents 193
An anonymous reader writes "Techdirt has a story about a new class action lawsuit against Netflix, claiming that the patents the company is using to sue Blockbuster were obtained fraudulently. Specifically, the lawsuit claims that Netflix was well aware of prior art, but did not include it in its patent filing, as required by law. The lawsuit also claims that Netflix then used these fraudulently obtained patents to scare others out of the market, in violation of antitrust law. 'Certainly, it makes for an interesting argument. Patents grant a government-backed monopoly -- which should get you around any antitrust violations. However, if that patent is obtained fraudulently, then I can see a pretty compelling claim that you've abused antitrust law. It would be interesting if other such cases start popping up (and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner).'"
About time... (Score:2, Insightful)
Re:About time... (Score:4, Insightful)
Now, if someone were to invalidate all software patents, that would be a reason to celebrate. This is just the (hopeful) invalidation of two patents out of two million, and perhaps the spanking of yet another company acting evil.
In the time it's taking me to write this response, I imagine three other software patents are being granted. Even if this moves forward (which it hasn't yet) we're still moving backwards.
Or, more realistically... (Score:5, Insightful)
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It would be a reasonable thing to do, and doing reasonable things seems to be anathema to most governments.
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Maybe the problem is that lawmakers simply don't understand that software is not an analog to the real world. They don't understand that it moves faster, and that software development often simply doesn't have to bear the cost of traditional inventions and innovations. Not to say that there aren't software products or implementations worthy of patenting, but rather to say that patents in a software world are simply different.
Or maybe, just maybe, non-tech
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So if I understand you correctly, software patents should be treated like soft wax sculpt
YES! (Score:3, Funny)
So if I understand you correctly, software patents should be treated like soft wax sculptures that don't last very long, but hardware patents are more like durable cast iron hammers. That means we can melt software patents into candles, using them for lighting and ending the energy crisis, while we can use hardware patents to pound legal textbooks into pulpwood to burn for heat, ending the energy crisis. Both end up solving the energy crisis, so shouldn't we treat them the same?
Have you considered running for Congress? Because you are ready to make laws!
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That is simply absurd. Two or three years seems like a reasonable period a junk patent, but this is terribly unfair for meaningful discoveries which arguably justify a patent, like RSA.
Hypo
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MOD PARENT UP (Score:4, Insightful)
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What isn't math then? I can describe almost anything as a set of formulas, even complex machines are just self-computing "programs" made out of physical material.
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One Click Shopping (Score:4, Insightful)
identifying prior art (Score:3, Interesting)
A method of placing an order for an item comprising: under control of a client system, displaying information identifying the item; and in response to only a single action being per
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It's easy to say "look! prior art", but what I'm getting at is to prove it in court it takes a lot more of an argument, since the video game example doesn't specifically show combining all those aspects together.
So essentially you have the uphill battle of showing me as a judge or jury something that proves that the idea of a single click to order something has been published before, all the aspects of the client-server communication have been published before, and that those documents have hinted that th
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In other words, in practice, software patents really only protect the obvious part. Any idiot could look at one-click shopping and think, "I bet the browser is displaying it, and sending a request to the server with an identifier, etc." In contrast to
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So like a vending machine then
Does that make this lawyer a (Score:4, Interesting)
It would be nice to see this force reasonable patent reform.
Re:Does that make this lawyer... (Score:2)
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It would be nice to see magic pixies appear beside my desk handing me gold coins, too.
Slightly more probable than this particular suit forcing reasonable patent reform, too.
Don't care about suing people (Score:2, Insightful)
Without lawyers I am quite certain the world be a better place.
(Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)
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Without lawyers I am quite certain the world be a better place. (Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)
This is semi-offtopic at this point, but here's a good start, ban lawyers from holding political office. 90% of the problems we have with lawyers stem from the fact that almost all politicians started as lawyers, and so it's impossible to pass any laws that have a negative impact on the income of lawyers, and laws pass all the time that improve the income of lawyers.
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laws be written the way they are. Harder to change the realities of science.
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It makes perfect sense to stop those who spend years studying law from actually making laws.
The problem is you have a conflict of interest. The lawyers make their money by exploiting loopholes in the legal system, so it's in their best interest to keep those loopholes in place. You don't have to be a lawyer to study law, but people seem to assume that politicians MUST be lawyers because they know the law. It's the same principle as banning people on a sports team from placing bets on their games, it's a conflict of interest.
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Sure, I agree. Of course, if we were voting with our heads instead of just for the incumbent (who is reelected 95% of the time, at least in congress) then perhaps we would have a better chance at it. Of course, we elect people based on what they look like and how much they spend on their campaign, so it's not going to happen until human nature change
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Since, generally, the people voting are the same people that voted for the guy 2 years ago, and the opponent is generally of a similar ideology to the opponent from 2 years ago, is it really surprising that, even if people were voting with their heads, the incumbent would be reelected in the vast majority of cases?
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Polls show both that over 50% of the voting population believes we need a change, yet we reelect the incumbent 95% of the time.
So yes, it is that surprising.
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It shouldn't be. There are 535 (voting) members of Congress, 532 of which were not elected by the voter you are questioning. More than 50% believe we need a change, of course. But vastly more of them believe we need a change in the 532 members of Congress that the person be polled didn't have a vote in selecting than in the 3 that they did.
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As far as Canada goes, at least you have 4 parties at the national level. I'd be happy as a clam if we had anything approaching the NDP here in the states. In your terms, we have a battle between the Conservative Party (Democrats) and the Christian Heritage Party (Republicans).
And yes, I'm aware that the Democrats are not conservatives. I'm just aware that the Canadian Conservative party is about as liberal as mainstream Democrats.
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If one profession, the law, is forbidden to hold elective office, the other two traditional professions should also be barred, i.e., The Clergy and the Military. All three traditional professions have special privileges and obligations in our society.
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Most legislatures actually employ (some in the narrow sense, some in a broader sense) several sets of lawyers in this process.
The first is the lawyers employed, on paper, by industry or lobbying groups which actually write the laws that some member of the legislature is convinced to introduced
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Actually I have a more comprehensive program in mind.
Campaign contributions must be made to a general fund which is to be distributed evenly across all those on the ballot. For every dollar spent on one's own campaign, one dollar must be placed into the fund to be distributed to all candidates. Candidates are placed on the ballot based on petition; the n people with the highest number of signatures may be on the ballot.
Also we would be forcing broadcast media to pro
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What would help is to end the special interest influence. Law firms are huge donors to political groups. Make it so that people are the only ones able to donate, and put a cap on how much they can donate per year. No golf trips, no vacations, no planes, etc. Make politicians go back to
OMG I chose the wrong profession... (Score:5, Insightful)
Forget IT, go to law school.
1) Help company get patents
2) Profit
3) Help company threaten to sue infringers
4) Profit
5) Defend company against other lawyers representing other patents
6) Profit
7) Sue other companies for bogus patents
8) Profit
Heck, even if the company they represent gets burned and goes under, they still walk away with no penalty. It's like all the financial benefits of inventing something, with out the work or risk!
-Rick
Yeah, it's a beautiful racket. (Score:5, Interesting)
Now, you can argue that lawyers and lawmakers form a recursive loop, but I'll leave that for people smarter than I.
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You are aware that the majority of legislators are, in fact, lawyers?
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So I prototyped the situation above, and all I get is "Out of stack space" :(
Hard to prove (Score:4, Insightful)
You need to be able to prove that the company ignored prior art and if a case comes down to two people saying different things the courts will generally find in favor of the defendant.
I can see it now:
Lawyer 1: "You knew about the prior art before you filed for the patent because your secretary told me so!"
Defendant: "No I didn't!"
Judge: "Case dismissed"
In order for this cases to be sucessful, hard evidence needs to found (i.e. an e-mail saying "Lets ignore the prior art"). Otherwise the only ones who will win are the lawyers (as always).
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That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.
But, why the heck is the system run this way? A patent application is supposed to be a legal documen
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They take a great risk if they wait to find out later there patent is invalid.
Now, I don't pay for a search, I do it myself. Still risky, but I can claim I did the search.
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I don't know about for patents, but failure to practice due diligence will get you into trouble in other legal circumstances.
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If you are filing for a patent, you do need to perform searches for prior art. However, you always do so with your company's lawyer present (and maybe even let them work the mouse and give you advice about things on the fly).
No law requires that you explain what you did or said while consulting with your attorney. Thus, you can legally testify that you never searched for the patent, even if you did know about it the whole time. If the truth somehow came ou
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They are trying to distinguish between the innocent infringer and the one who says 'I don't care, let them care.'
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Other posters have presented a number of reasons why an inventor might not do a search. Here's another one.
If you search for prior art, you are obligated by law to dis
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That said, there are a good reasons to do a search (e.g., it's expensive to prepare a patent, ensure support for differentiation, avoid doctrine of equivalents limits).
bout time, now if only (Score:5, Funny)
now that's an amusing thought.
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#2. Test all remaining examiners for competence in the fields they will be examining. Promotion for higher levels would require more stringent testing. Ask if any of the State colleges would be willing to assist in the development of an internet testing and grading process for such use. Select colleges based on the competence of their graduates.
#3. ???? #4 Profit!
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have you seen the qualifications you need to get a job of that type?
Re:How would you fix the patent office? (Score:5, Insightful)
But still, there are so many things being patented, in such esoteric fields, that even smart people with training in related fields or tangential field or whatever don't have the technical knowledge to grasp the subject at hand, or -- and this is pretty important -- don't have a way to access the information that would give them a better grasp of it.
I mean, you're probably not a dumb guy, but imagine yourself presented with a sheaf of materials that you only vaguely know about from college five years ago. It's written in technical language that, even though broken down as much as it can be, is still pretty arcane. How are you going to judge if that patent application represents something truly innovative, something truly worth granting a patent for?
We can all say, "Well, they should know," but that's much harder said than done. Another problem is that the people truly qualified to judge the patent's worthiness are often very expensive people. While the patent office may pay a lot of money to their examiners, they still don't, as far as I am aware, pay as well as private industry.
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Change the way patents are granted and prosecuted.
1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.
2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.
3) Require a demonstration of the paten
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But what if you have something easy to make, but very, very innovative? And how do you determine how much effort went in to the innovation? I'm not saying this is an unworkable idea, just that there has to be more than this -- the patent system is designed to reward innovation, not just hard w
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You asked and answered your own question. Get some subject matter experts in there. Give them only patents dealing with their specialty or of general scope. Then every patent requiring technical knowledge will be handled by an expert. Problem solved.
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I don't understand. It's like you know the fix, but are asking for people to tell you the fix. Then, when the fix is pointed out, you explain that it isn't likely to happen. Well, if it were likely to happen, it should have already happened. I do not think it will ever be fixed. But the fix is straightforward (even if not exactly cheap and quick).
I guess it's so
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I don't know enough of the process to know what to fix. However, since you asked.
1. If an examiner doesn't understand the subject matter, subcontract to someone who does.
2. Peer Review required for all patents. Patents are probationary during peer review.
3. Patent fraud should be severely punished. Perhaps cancelling all pending patent applications for any companies found guilty. The companies would then have to resubmit with a new start date.
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First, I'd increase the amount of detail required in software patents. Basically you'd need an actual implementation, in source or binary form. There would be a corresponding increase in the similarity required for an act of patent infringement. Only very limited, fair use of the patent would be allowed.
To address the problem of independent inventions of the same thing, I'd limit the definition patent infringement to instances wher
Re: How would you fix the patent office? (Score:2, Insightful)
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Maybe if they stopped granting patents on discoveries (like genes), ideas (like software and business processes), or obvious stuff (like XOR) and just granted them on
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I assume that you mean "becomes a valid patent" afte
Class action? (Score:2)
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Probably because the lawyer filing the case is going to claim a wide range of potential victims constituting a valid "class" through the antitrust allegations.
No, when people band together, you get a big direct action suit with lots of plaintiffs (like the one depicted in Erin Brockovich). A class action suit is when a lawyer and a small number of plaintiffs allege the existence of
Just one wish. (Score:2)
Netflix needs to get nailed on this (Score:5, Insightful)
It's said that no great idea ever comes out of nowhere. All of the greats stood of the shoulders of giants. However, if people get it into their head to abuse the patent system like this, then there will be no shoulders to stand on and in the end no great achievements.
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yeah, except that if NetFlix hadn't done what they did, they might have been taken down themselves by someone else doing exactly the same thing - to them.
The patent system is a nuclear standoff. Everyone would be
IANAL (Score:2)
So unless they can subpeona some emails from WAY back when they got the patents talking about something like that, all Netflix has to do is claim ignorance.
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Sure, direct evidence would be nice, but circumstantial evidence works to. And, in a civil case, the standard of proof is "preponderance of the evidence" (that is, the jury must merely be conviced that it is more likely than not that the charge is true), not
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It's kind of interesting; patent attorneys at corporations often tell the engineers not to do patent searches on their own. If the company subsequ
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Also, to show "inequitable conduct," you have to show two things. First, that the art is both "material to patentability" and "not cumulative." In other words, if the "prior art" in this case is either less pertinent than the art that was c
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http://yro.slashdot.org/comments.pl?sid=235267&th
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Actually it's "knew or should reasonably have known". That second part is the kicker. When applying for a patent an applicant's required by law to do certain due-diligence research (including the prior-art search) first and include the results in the application. If a reasonable person doing the research required by law would've discovered the prior art, then whether Netflix actually knew about it doesn't matter.
Or that's the theory, anyway. In practice you get into extended argument about what's reasonabl
Who's in the class? (Score:5, Interesting)
The article is pretty vague on exactly what the evidence is. The actual lawsuit [scribd.com] is more informative, but harder to read.
The class (as I finally figured out on page 17 of the lawsuit) is Netflix customers, of whom Dennis Dilbeck is the representative sample. They're suing based on the idea that Netflix's prices are higher than they should be, because competition by Blockbuster should have brought prices down. I just can't see a judge buying it; these people all paid for Netflix's service at the asking price voluntarily.
From what I've read so far, I'm just not buying their claim. They are citing one patent in particular, which is about delivery of resources based on people making requests on a computer, but that's considerably different from Netflix's rental queue.
(I'm assuming that patents are not a completely stupid idea. Please, if you're in the "all patents are inherently evil" category, can you just assume that I agree with you and go preach to the choir in some other thread?)
I don't consider Netflix's idea at all obvious. I thought it was pretty neat when I came up with it: the idea of a rental service which doesn't have a due date is pretty cool and I'd never heard of it.
I know we hate patents, but I hate idiot class-action lawsuits even more. I've been involved in dozens of them; I literally throw them away unopened when they arrive in the mail. The lawyers always make money and I always get a coupon for 30 cents off my next bag of Chex Mix.
Sometimes, I'm even suing myself. Some of those lawsuits were shareholders suing the company. Well, I'm still a shareholder, so I'm suing myself.
All the lawyers need to find is one fool member of the class to make a claim, and the company will often settle rather than fight. It's free money for class-action lawyers.
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I myself am not against class action lawsuits absolutely. In this case, if Netflix loses, we get rid of a pesky patent.
So, if the patented method could be useful for anyone else in Internet DVD rental, then if this patent is (especially) illegitimate, Netflix not using the method makes things worse.
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A class action suit isn't going to find that out. It is going to end up either (a) dismissed, or (b) with a settlement in which Netflix will not admit wrongdoing but will give a pile of money to the lawyers and some token discount or payout to the class members.
Its more likely that Blockbuster v. Netflix will actually end up wit
Thank you. (Score:2)
I'd like to believe that a "class" could actually win a class-action lawsuit. You'd think that, after "people who bought Sony CDs vs. Sony & its rootkits," I'd know better.
And a patent that the holder is using is better, or less bad, than a patent that's just being sat on.
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Well, (Score:2, Interesting)
Slightly ironic.
Isn't that neglagence(sp?) (Score:2, Insightful)
Isn't there a positive obligation to investigate prior art before filing. Just like you have a positive obligation to keep your walkway free of ice, protect children from attracive nuiscences and pay your taxes?
Wait, I have a car analogy too! If you're driving your car, and you close your eyes and speed through every stop sign, then shouldn't you still be ticketed (AFAIK, not seeing a stop sign is a legitimite, although difficult to prove, defense. But I'm not very sure as I made up the fact
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Nobody (that I'm aware of) does a patent se
Non including prior art? (Score:3, Interesting)
This isn't fraud, this is standard operating procedure.
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Just because everybody does it doesn't mean it isn't fraud.
Article has no concept of antitrust law (Score:3, Informative)
I continue to be amazed at how technology people are so astonishly bad with understanding Anti-trust law.
Patents grant you a type of monopoly over the technology you are using, but they do not automatically grant you a monopoly over the marketspace you are in. Therefore you are not in violation of anti-trust laws if you lose a patent. You simply lose the ability to sue someone if they come along and copy your technology. How can you be abusing power you no longer have?
Is netflix in hot water over abusing patent laws? You betcha, but anti-trust laws are not their problem.
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MS anyone? (Score:2)
Which is exactly what Microsoft is doing with their 'Open Source Software infringes our (most bogus) patents' FUD. And MSFT has already been found guilty of abusing its monopoly. I really hope Netflix to lose this lawsuit in order to make a precedent, so MS shall be more careful of using their patents to keep its monopoly status.
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Wow, That's Weak (Score:3, Insightful)
That's pretty weeak. Looks like they're going for extortion and to certify a class all in one shot. Amazing. Only in
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Excuse me, Biff, but you've got to start getting your opinions from somewhere besides Right-Wing Radio. I'm surprised you didn't show what a Rush Baby you are by calling it the "Ninth Circus".
Americans should thank God that there are still some judges on the Bench who refer to the Law and the Constitution instead of Scripture when developing opinions. There is a certain type of corporate nimrod who believes that there's nothing more importan
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I guess since the entity that I want to "pay up" isn't Microsoft, the RIAA, or the MPAA the mods decided to mod me offtopic. Whatever...
Wonderful irony (Score:4, Insightful)
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