My Own Patent Apologies (2014)

http://blog.dustinkirkland.com/2014/06/elon-musk-tesla-and-my-own-patent-apology.html

by mariuz • 11 years ago

57 59 11 years ago

blog.dustinkirkland.com

thinkcomp4• 11 years ago

I own a few patents, as I'm sure many on Hacker News do. As I write this, I'm in the middle of a patent lawsuit with Square (http://www.plainsite.org/dockets/24u13j6tr/california-northe...). I don't apologize for it.

I'm not a troll. I'm an inventor and I made a real product. I'm also someone well known for having dealt with intellectual property theft as a victim. I also spent a year at Stanford Law School poking around as a fellow as I developed what is now the most accurate patent assignment database there is--far more accurate than the official one--on PlainSite.

I'll be deliberately terse with my comments here, but the upshot is that the problem here isn't the idea of patents. They are a lottery ticket to a lawsuit as Elon Musk has said, but they're also an important insurance policy for serious innovators. (Another such insurance policy is VC, but not every serious innovator has VC backing.) The problem is the legal profession. Patent trolls (and other sorts of IP trolls) are by and large the creations of corrupt lawyers. Inventors are slighted in favor of large corporations because of "upstanding" lawyers. Transparency is impeded everywhere you turn in the patent world courtesy of the patent bar. And unlike the USPTO TTAB, where corporations can represent themselves at virtually no cost, in the USPTO PTAB, the patent bar has seen to it that you must hire a lawyer.

It's not a coincidence. The system is incredibly broken, but if you want to blame someone, blame the lawyers for ruining what might have been a workable and necessary paradigm.

aetherson• 11 years ago

There are lots of things where "the idea of them" isn't bad, but they can't be turned into law-enforced policy without leading to bad consequences.

That's not really the fault of lawyers, either.

mikekchar• 11 years ago

If anyone is curious about the patent the parent is suing for, it is included in the documents he linked to. Here is an handier link: http://www.plainsite.org/dockets/download.html?id=132275042&...

I'm afraid that I (and surely many others on Hacker News as well) will not be cheering you on. It's pretty much the definition of something I do not want to be patentable.

I understand it will probably not be possible to convince you to change your mind, so I won't insult you by trying. However, keep in mind that your stance really is diametrically opposed to many groups who do not want software patents.

pc86• 11 years ago

It's the "for payments" version of all those "but on a screen" patents that people here hate on so much. Prior work includes but is not limited to Facebook tag suggestions, and and just about everything done in facial recognition on any laptop in the world.

ChuckMcM• 11 years ago

ploxiln2• 11 years ago

If patents were granted fairly and litigated fairly and efficiently, sure, they'd be great.

But they just can't be. Many millions of dollars are spent gaining bad patents and litigating them unfairly. In practice, they're a tool which enables and amplifies the worse parts of human and societal nature, a tool for the abuse of power.

I say we just give them up. There may be fewer published inventions, but not that many fewer really. Some inventors will be motivated to invent for its own sake. Others will profit from being involved in the implementation and commercialization of their own inventions combined with others. Some inventors will get "screwed" when others get rich off their creations. But that happens today anyway. There will likely be disagreements about who really came up with the core of an idea first, or who's idea is really more core to the product, and without patents, those arguments won't cost millions of dollars and stifle creation. Everyone would be better off IMHO.

oldmanjay• 11 years ago

A huge part your argument comes down to "it will all be the same as now but magically better" but you didn't bother to make a case, just list out some very assertive predictions.

meanduck• 11 years ago

Also, Its very likely that the invention will be reinvented by someone. Is not there a public patent review process before a patent is granted so the other inventors can provide alternative solutions ? This would solve most if not all problems.

scriptproof• 11 years ago

No need to downvote a comment that exposes an opinion you disagree with (and I disagree too). The patent is clearly a joke: "A method for transferring an electronic payment between a purchaser and a merchant etc...". Instead of downvote, send a letter to your congressmen to stop this ludicrous software patent thing, it will be more useful.

coldpie7• 11 years ago

Nothing wrong with sending a clear message to someone actively trying to do harm to innovation. That kind of behavior should not be welcome in our industry.

monochromatic6• 11 years ago

A patent does not cover what its title describes. Titles are routinely extremely vague, just a few words.

You have to look at the claims if you want to know what the patent is actually about.

BinaryIdiot4• 11 years ago

I own a few patents, as I'm sure many on Hacker News do. As I write this, I'm in the middle of a patent lawsuit with Square (http://www.plainsite.org/dockets/24u13j6tr/california-northe...). I don't apologize for it. I'm not a troll. I'm an inventor and I made a real product.

That's great you made a real product. So many who file patents don't end up creating real products. But the problem here is you made a real product that's pretty generic much akind to the patents of "input devices changes display on output device" kind of patents. It's an abuse of the system that many are working to eradicate.

So I don't think you're going to find any support on HN for it. It's great you're not like the typical patent troll since you claim you made a product (of which I have not verified but I give you the benefit of the doubt) but obvious design patents hurt innovation. Hell to some degree all patents hurt innovation but the obvious designs are the most egregious in my opinion.

coldpie7• 11 years ago

I'm not a troll. I'm an inventor and I made a real product.

Doesn't matter. You're trying to take ownership of an obvious idea. Your patent did not inspire anyone at Square, nor did anyone at Square learn how to perform this process by your patent. They don't owe you a cent. It is only by a shitty quirk of the system, which you are taking advantage of, that allows you to try to extort money out of them. You are part of the problem.

jb6136• 11 years ago

Your patent did not inspire anyone at Square

question is how do we distinguish between patents that "inspired" and those which did not?

Or does inspiring even matter - anyone can see the "inspiration" on Android from the release of the 1st iPhone (e.g. before and after designs) - yet this fact plus all of Apple's $billions were unable to stop/prevent Android from their clearly inspired copying.

monochromatic6• 11 years ago

shitty quirk of the system

Is it still considered a quirk when it's by design and it's the entire point of the system? If we're only talking about damages for when designs are copied (instead of independently developed), we're basically talking about trade secret misappropriation.

nkurz• 11 years ago

Since no one else has said it yet, thanks for contributing your insight to this discussion. You must have known it would be a hostile audience, and that many wouldn't agree with you, but we benefit from hearing your side and being able to talk about the disagreement. Genuinely, thanks for your bravery and openness in discussing it.

BinaryIdiot4• 11 years ago

Honestly I think the apology is a bit unnecessary but I'm glad many are turning around on the ideal of technology patents. Yeah patents on obvious designs not only hinder but hurt innovation (one click, anyone?) but even patents on non-obvious but obviously-trending designs can slow progress in many areas.

I'll be honest though I wish patents worked. It would be nice to have a way to protect the "little guy" when they figured out a break through, showed it to the "big guy" and was then ripped off. But in practice the "little guy" would need millions of dollars just to create the case and go after the "big guy". That practically makes the patent system a place where only the "big guys" can play which defeats its purpose.

So maybe it's time to do something radical and just completely end or retard its abilities. I'm not sure if the current political environment will change this system any time soon though. Most patent holders have large sums of political influence.

abstractbill• 11 years ago

I'll be honest though I wish patents worked.

I'm glad patents don't work. I've always felt there's something very deeply wrong with owning an idea.

BinaryIdiot4• 11 years ago

I don't mean in the form that they exist today but the original ideal behind them: that they can protect someone with little to no money from being steam rolled when they come up with a new invention / novel idea that is taken by the bigger guys. At least this felt like the original intent of patents but it simply can't work like that today.

And yeah owning an idea is terrible. It would have been nice to at least be required to demonstrate the idea being patented. But that opens all sorts of issues.

throwawaykf056• 11 years ago

But in practice the "little guy" would need millions of dollars just to create the case and go after the "big guy".

This is the exact problem that many patent trolls solve. If your patent is strong enough, they will take your case on "contingency" and take a (huge) cut of the winnings, if any. Patent trolls can help even the imbalance between the big guys and the little guys.

Not surprising then that the loudest complaints about patent trolls come from the "big guys". Unfortunately for them, multiple studies, including by the GAO and professors like Michael Risch and Coleen Chien show that there is no real patent troll litigation crisis. Fortunately for them, tech media is happy to regurgitate their PR for the rage-view value, and most people are happy to accept it uncritically.

Nadya2• 11 years ago

Not... quite.

People criticize the patent trolls that are using generic/obvious patents that somehow got approved when they should have been rejected.

"Interface for opening a door by use of hand and twisting motion" (aka: a doorknob)

Those types of patents. The ones worded ever so carefully as to try and sneak by being declined. When people refer to patent trolls they are mostly referring to the companies that purchase the rights to these kinds of patents and go on a litigation hunt of any big fish they find infringing to try and sucker out payments.

I do not see it as patent trolling when someone who say... invented a jetpack and has a patent on the technology in use going through a firm to sue an infringing superbody who has infringed upon the patent to sell their jetpack because they can mass manufacture and undersell the small business. That's what I see as a "legitimate use" of patents.

On the other hand, "Backpack to be worn to fly through the air through means of jet propulsion technology" (aka: jetpack with no working functionality patented) is not a legitimate patent in my eyes and is sat on to prevent anyone from making jetpacks because the moment they invent a jetpack they'd be sued. That's what stifles innovation.

monochromatic6• 11 years ago

Patent trolls don't (traditionally anyway) do stuff on contingency. They buy patents, and then they monetize them.

rayiner2• 11 years ago

It would be nice to have a way to protect the "little guy" when they figured out a break through, showed it to the "big guy" and was then ripped off.

It was the "big guys" that lobbied for increased IP protections in the 1990's, for a pretty good reason: protection from foreign competitors. I worked with a big router company once, who told me that a Chinese company had ripped off their router designs down to the English silk-screened assembly instructions on the PCBs. All of the little-company versus big-company stuff is small potatoes compared to that overarching concern.

That's why a lot of big technology companies are still strong supporters of patents. They don't want Chinese companies copying their chips down to bugs in the firmware and undercutting them on the market because they don't have any need to recoup R&D costs.

jb6136• 11 years ago

your statement is contradictory - you claim large corps increased IP protection yet what we see today is that patents are the weakest they've ever been.

BinaryIdiot4• 11 years ago

for a pretty good reason: protection from foreign competitors

How do US patents protect from foreign competitors? Are you referring only to the US market or otherwise? Depending on the industry outside of the US might be a far larger market so I don't know how successful patents are in this area. I'm curious as to the data about this.

monochromatic6• 11 years ago

But in practice the "little guy" would need millions of dollars just to create the case and go after the "big guy".

Not true at all. If you have a good case, you can probably find a law firm willing to handle it on contingency.

Animats• 11 years ago

It's amusing to see Canonical held up as a good example. Of course they're anti-patent. They repackage the work of others and sell it.

nickpsecurity3• 11 years ago

Releasing the patents is a bad idea. A prior discussion on Schneier's blog about dealing with the patents came to a different conclusion: amass patents to use in self defense. It's what all the big names do. Otherwise, you're just going to be sued into oblivion by big names and the trolls with little leverage to use.

So, if the concern is innovation, then it's best to patent everything possible into non-profits and public benefit corporations that promise to never use or charge any open developments. Not just promise but in their charters, etc. Might have a small membership fee just to keep it going. Then, any threats to open projects are made with lawsuits from this organization going against them. I think there's already an alliance in OSS doing something similar.

Yet, the lesson from prior discussion was: "a good offense is the best defense" given virtually anything can be patented and sued over. Too broken for an avoidance strategy or even fair, payment strategy.

Zikes3• 11 years ago

I'm not sure leverage counts for much anymore, considering Oracle was still able to go after Google recently despite Google's own massive patent holdings.

throwawaykf056• 11 years ago

1. Google likely had a much weaker portfolio when Oracle sued. It is much, much stronger now.

2. There's probably both much overlap in Google's patents and Oracle's technology.

3. The Oracle v. Google case is now primarily about copyright rather than patents.

robrenaud• 11 years ago

Would Twitter's Innovator's Patent agreement have worked out better for him?

ddlatham• 11 years ago

The fact I can sit down and solve a problem and then get sued for it because someone else happened to solve it the same way without me even being aware of it is terrible.

canam• 11 years ago

Agreed. I believe a reasonably qualified engineer would produce similar solutions to those same problems. With this patent system, you have to search the patent databases before your start to implement your idea. I've had several buzzkills on ideas because I found them to have been patented. Perhaps my implementations would have made the world better, but we will never know because of the daunting prospect of facing a legal battle.

My Own Patent Apologies (2014)

Related Stories