Take a stand against patent trolls

http://www.internetretailer.com/2011/03/31/take-stand

by chwolfe • 15 years ago

60 26 15 years ago

wccrawford2• 15 years ago

And will Crutchfield be taking that stand? Because posting an article like this and then refusing to follow your own advice is foolhardy at best.

rojoca• 15 years ago

There is the EFF: https://w2.eff.org/patent/

wccrawford2• 15 years ago

That's not the point. Crutchfield wrote that article. I want to know if Crutchfield is following his own advice.

jcromartie• 15 years ago

I've always wondered: what if you just responded to a patent troll with "screw you" and refused to play their game? What if you just did the absolute minimum and didn't take their bait to reach settlement? What could you face? Could you go to jail?

sammyo• 15 years ago

Not directly but ignoring a request from a court of law can quickly annoy a judge.

bradleyland• 15 years ago

Patents are a civil matter. You'd end up involved in civil litigation, which means you pay an attorney to defend you, or the plaintiff would win by default. Usually, the goal is to settle prior to litigation, because litigation is incredibly expensive.

If you litigate and the plaintiff wins the case -- or you don't fight and lose by default -- the plaintiff gets a judgement against you. The judge/jury determine what you must pay to the plaintiff. With a judgement in hand, the plaintiff must start collection proceedings. This is a not-so-straight-forward process, and can take months, if not years, depending upon how evasive the defendant is and how aggressive the plaintiff attorney is.

Expect to receive garnishment orders for your pay, as well as other treats, such as having your checking account emptied without notice. Being evasive may also require additional court appearances and court orders. Failure to comply with a court order can result in charges of contempt. This usually means a fine, but can also result in jail time if the act is egregious.

At the end of the day, you may find yourself filing bankruptcy, in which case the trustee will be the one after your assets.

The whole time this is happening, it's very difficult to operate. Having someone chase you while paying thousands of dollars in attorney fees makes life very difficult.

The bottom line is that you cannot simply "refuse to play their game".

noonespecial• 15 years ago

I think your best bet might be to go pro se, where you represent yourself and just file a flurry of extensions, change of venues, discoveries etc. Learn a few rules and then burn the trolls time like crazy. If you have a low income, most states will even waive your court and filing fees.

splat2• 15 years ago

The tacit assumption upon which this argument rests is that the trolls are guaranteed to lose in court (at least after an appeal). While that might be a fair assumption in the most egregious cases, in many circumstances the lower court will not be particularly skilled in patent law and an appeal to a specialized appeals court is by no means certain. A rational businessman might well chose to settle a case even if the probability of losing is just 5% simply because the penalties for patent infringement are so high in comparison to the settlement costs.

probablyrobots• 15 years ago

The OP also argues that the patent could be defeated by a patent review. "Virtually none of the patents that patent trolls buy would be issued today. The vast majority of these patents would not survive a U.S. Patent & Trademark Office patent review. Most were issued during the 1990s when the standards for business process patents were very low."

The OP goes on to say that the victims of patent trolls band together to finance the review to make it cheaper than settling.

splat2• 15 years ago

> The OP also argues that the patent could be defeated by a patent review.

Yes, but the OP ignores the probability of failure. I'm claiming that even a small probability of failure would be sufficient to deter most businesses from pursuing the OP's advice because the costs of a defeat are so much greater than the costs of a settlement.

> The OP goes on to say that the victims of patent trolls band together to finance the review to make it cheaper than settling.

I'm not disputing that. The problem I'm pointing out does not have to do with financing the review, but with the fines that are due if you lose the case. Even if you band together to finance the review, if you lose, you have to pay the fines individually.

alanthonyc• 15 years ago

The MacroSolve patent[1][2] was requested in 2003 and granted in 2010: forms on devices that transmit data to web servers.

The USPTO is broken.

[1]http://fosspatents.blogspot.com/2011/05/worse-than-lodsys-ma...

[2]http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec...

kwantam3• 15 years ago

This is a situation where the locally optimal solution is globally suboptimal. You're doomed to a death of a thousand cuts if you play along with patent trolls, even if each cut is comparatively small.

Clearly "let's cooperate and put trolls out of business" isn't happening right now, and other than the possibility that no one has thought of it before now (doubtful) there are two obvious reasons:

- For a given case where a troll sues multiple parties, each party is relying on the other defendants to cooperate, but the lowest risk alternative is to settle early and be done with it. The patent troll knows this, and will try to cut down the number of cooperators until all are forced to settle.

- Since most cases don't offer much resistance and often settle, patent trolls are able to fund an expansion of their operations, and they simultaneously gain credibility ("you'd better settle, Microsoft already did").

So the historical practice of settling with trolls works against companies who would think not to do so, and any group of companies that tries to band together in defense is in a situation where defection ruins the defense, and the incentive to defect starts high and increases with each additional defection.

As Mr. Crutchfield says, it's a shakedown that exploits a peculiarity of the patent system (namely, the combination of the ability to sell patents with the ability for NPEs to bring infringement suits). This is an emergent property of the legal system. The right approach is to change the system.

I doubt I'll have to convince many here that nothing of value would be lost if NPEs were no longer allowed to bring infringement suits for dormant patents.

amalcon• 15 years ago

So it's a straightforward defect-weighted prisoner's dilemma. The best option for any one party is to settle (regardless of what others do), but the best overall result would be for nobody to settle.

One solution to the prisoner's dilemma is for everyone to get together and give up the ability to defect, say by incorporating it into corporate bylaws. Another is to drastically change the cost structure, such as by insurance or a mutual contract that holds anyone who settles liable for a large amount. If not done carefully, either of these could tie a party's hands against legitimate suits, but they are alternatives (after a fashion).

Game theory has analyzed the prisoner's dilemma to death. If there's any hope for a grassroots solution, it's there.

BornInTheUSSR• 15 years ago

I wish someone had a patent on the business process of buying patents just to sue companies that actually try to provide some value to the world and then went around suing these parasitic lowlives.

kwantam3• 15 years ago

IBM may well have such a patent very soon.

http://www.freepatentsonline.com/y2007/0244837.html

dpcan• 15 years ago

Who is fighting to keep software patents as-is? Who are we up against? I have NEVER read anything in their favor. If we live in a society where the laws need to be changed, why are they just not changing? What horrors could actually come from abolishing software patents?

I just don't understand why this is still an argument. Who are we even arguing against? I never see anyone disagreeing with the argument. It's as if everyone hates the same thing yet it continues to exist and all we have to do is change it. So someone just change it.

rwmj• 15 years ago

There's a big pharma lobby who love patents and lobby for more of the same.

This is in itself a problem: there is no separation between types of patents, so we can't (easily) get separate policy on software, business methods, pharma etc. I imagine, for example, no one would particularly complain about software patents if they only lasted for 2 years. But the way it is now, that would mean all patents would expire after 2 years, and the pharma lobby would hate that.

Having said all that, best thing is to get rid of all patents, and we'll start again when someone proves that narrow patents in a particular field have a benefit to the economy.

tzs2• 15 years ago

Speaking of pharmaceutical patents, I'd like to see two changes:

1. There should be automatic licensing of the patent to anyone who wishes to make the drug, at a royalty rate on gross sales determined by statute. I'm thinking something around 5%.

2. The patent term should be extended from 20 years to something like 100 years.

The idea here is that drug companies invest huge amounts in developing new drugs. Many of these don't even pan out. Some make it into production, and they are patented for 20 years. The drug company then has to charge a lot to make up for that huge investment before the patent expires, and the generics come on market.

So, for the first 20 years we consumers pay something like $30-50/month (after insurance--it could be $200 or more a month without insurance) for these drugs until they go generic, then it drops to around $4/month (and that is without insurance!).

Under my proposal, the generics would come out right away, for maybe around $5/month, and the original company would make back its investment over a very long term instead of needing to make it back over a relatively short term.

tzs2• 15 years ago

IBM:

    Without the benefit of patent protection, software companies
    would be forced to rely on secrecy which limits the public’s
    ability to learn from software innovations, since patent
    documents are a significant source of technological disclosure.
    See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994)
    (Newman, J., concurring). Given the reality that software source
    code is human readable, and object code can be reverse
    engineered, it is difficult for software developers to resort to
    secrecy. Thus, without patent protection, the incentives to
    innovate in the field of software are significantly reduced.
    Patent protection has promoted the free sharing of source code
    on a patentee’s terms—which has fueled the explosive growth
    of open source software development.

and

    The economic benefits that flow from software innovation are the
    product of significant investment in research and development.
    And the incentives provided by the patent system encourage that
    investment by providing the same quid pro quo as in other
    technology fields: the promise of economic rewards in exchange
    for the public disclosure of useful inventions. See generally
    Testimony of Nicholas M. Donofrio, Executive Vice President,
    Innovation and Technology, IBM Corp., Before the H.R. Comm. on
    Science (July 21, 2005); Cong. Office of Tech. Assessment,
    Finding a Balance: Computer Software, Intellectual Property, and
    the Challenge of Technological Change, 23 (1992) (recognizing
    that “patent protection is of importance to the U.S. software
    industry”). The exclusive rights granted to patentees
    encourage software innovators to pursue inventions that they
    might not otherwise pursue, in broad and diverse areas.

and

    Patent protection for software protects innovators from
    appropriation of their efforts by “free-riders.” Without
    patent protection, the risk of appropriation may force software
    innovators into other, more promising ventures. See, e.g.,
    Richard S. Gruner, Better Living Through Software: Promoting
    Information Processing Advances Through Patent Incentives, 74
    St. John’s L. Rev. 977, 1004 (2000). The free-rider problem is
    particularly acute in the software sector because software
    products are “vulnerable to rapid, inexpensive copying that
    undercuts the initial developer’s opportunity to benefit * *
    *, thereby undermining its incentives to invest in software
    development.” Pamela Samuelson, et al., A Manifesto Concerning
    the Legal Protections of Computer Programs, 94 Colum. L. Rev.
    2308, 2332 (1994). While literal copying is the province of
    copyright law, the ease of appropriating software source code
    makes the patented inventions included in the code uniquely
    susceptible to instant appropriation.

These are all taken from the amicus brief IBM filed in the Bilski case. http://www.patentlyo.com/08-964-ibm.pdf

edit: fixed to replace duplicate quote with the quote I meant to paste in.

brlewis2• 15 years ago

Tough cookies, IBM, you lost.

Here's a rundown of relevant court decisions:

Supreme Court, Benson: That software is just an algorithm. You can't patent an algorithm. There may exist some kind of software that can be patented, but not ones that look like this.

Supreme Court, Flook: We see what you did there. This patent is just software to solve a mathematical problem. The post-solution activity isn't novel. There may exist software that could be patentable, but not software that looks like this.

Supreme Court, Diehr: This one's different from Flook in that they're claiming novelty in parts of the invention outside the software.

Federal Circuit, State Street: Actually I think patents that aren't distinguished in the least from the one in Flook are OK.

Supreme Court, Bilski: Pay attention to Benson, Flook, Diehr. Nothing's changed since these decisions. Ignore State Street.

In summary, the reason software is patentable today is that lots of people persist in ignoring the Supreme Court. There may in the future be some kind of software the Supreme Court might think patentable, but every software patent we talk about here on HN, especially related to patent trolls, is indistinguishable from Flook.

krschultz• 15 years ago

In order for this to be effective, defendants need to be able to discover other defendants being sued by the particular troll firm for that particular patent. Then the defense can be funded by multiple companies and the defense becomes more formidable.

This almost screams for a website - a central place to facilitate matchmaking between companies under suit by a particular troll.

efsavage• 15 years ago

Unfortunately you're not going to see many companies saying "Yeah! We're being sued by that guy too!" because that quickly reduces to "we're being sued!", which never goes over well with investors, shareholders, employees, etc.

ahi• 15 years ago

I was going to write up a full article, but I'll just post this here instead.

I was thinking shame might work a little bit. Most people, even lawyers and patent trolls, think of themselves as being good people. Calling them out directly can have quite an affect.

MacroSolve is one of the companies suing iOS developers over forms (http://www.readwriteweb.com/mobile/2011/05/macrosolve-joins-...).

Dr. Dale Schoenefeld, a CS professor and bureaucrat at University of Tulsa (http://www.utulsa.edu/offices-and-services/information-techn...), is on the board. He probably doesn't care that I think he's a scumbag, but I imagine he might care how he is perceived by students and his colleagues.

ggchappell• 15 years ago

While we're on the topic of annoyances that get in the way of worthwhile activities, how about websites that publish interesting articles and then stick eye-catching auto-scrolling displays right next to them? It never ceases to amaze me how rarely it seems to occur to web-based publishers that someone might actually want to read their stuff.

Well, thank goodness for Readable.

Hey, maybe I should patent auto-scrolling ads, and then sue sites like this one. That would be patent trolling with positive social impact as the goal.

Take a stand against patent trolls

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