My Brush With a Patent Troll

http://jacquesmattheij.com/my-brush-with-a-patent-troll

by ivancdg • 14 years ago

221 65 14 years ago

davyjones• 14 years ago

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."

- John Carmack

icebraining• 14 years ago

His /. comment on the issue is good too: http://slashdot.org/comments.pl?sid=151312&cid=12701745

gruseom3• 14 years ago

Yes. This part is worth repeating even though it says the same thing as the GP (I cleaned it up slightly):

"Patents are usually discussed in the context of someone "stealing" an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah. But in the majority of cases in software, patents affect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that?"

Carmack put his finger on precisely what bothers me as a programmer about software patents.

tomjen32• 14 years ago

It would not be a problem if lawyers wouldn't take the case.

So the question is, how do we make sure lawyers don't want to? (without going to jail).

wmil• 14 years ago

I think the big problem is juries. A group of random individuals isn't going to wade through the technical details well.

However there's a right to a jury trial. So I propose the following.

Juries for patent trials should be paid dramatically more (in the neighbourhood of what lawyers get) and selected from a list of volunteers according to criteria that the two sides argue over.

The idea being that we want competent people to fight to get on juries rather than come up with an excuse not too.

alanctgardner26• 14 years ago

This has nothing to do with lawyers. If you talked every criminal lawyer in the country out of prosecuting murders, it wouldn't make murder legal. The system needs to be reformed through legislation, which has everything to do with politicians.

Chris_Newton• 14 years ago

So the question is, how do we make sure lawyers don't want to? (without going to jail).

Don’t get caught. ;-)

But seriously, there only seems to be one answer that is likely to work in practice: change the risk/reward structure so that patent trolling isn’t profitable any more.

One obvious approach would be making fewer things subject to patent protection in the first place. You could explicitly exclude whole categories like software or business method parents, assuming you could define them clearly enough. You could raise the general bar for granting/defending patents in terms of originality and non-obviousness. You could leave the standards the same in principle but apply more robust checking for prior art and/or a more thorough consultation to determine obviousness before awarding a patent. Each of these has costs in different places: principally, the legislature, the courts, and the patent office, respectively.

Another approach would be to look at the types and magnitudes of consequences that result if you lose a patent case, either by being found to infringe someone else’s patent or by claiming that someone infringes your patent and failing to win the case. For example, what if the remedies available to someone who owned a patent but who was not actively working to exploit that patent in some reasonable way themselves were made dramatically less than the remedies available to someone who was using the patent system “properly” to secure exclusive rights while they worked hard to exploit a real invention? What if there were a meaningful cost to bringing a patent case and losing not just because the court invalidated your original patent but also because the court actively determined that the original patent had been [some legal specification of “obviously abusing the system”], a kind of patent case analogy for dismissing with prejudice?

mogrim2• 14 years ago

I think the problem is patents without any implementation, or commercial use.

Make a condition of patent defence to actually have brought to market a product that uses the patent. Licensing the technology to someone would also be a valid defence, but it should be within a reasonable timeframe. Patent protection could then be limited to the actual use made of the technology, overly wide patents would be more clearly identifiable, and the patent could be legally reduced in scope without losing all cover.

willrobinson• 14 years ago

Take away the financial incentive: high fees.

Good luck with that.

The only way to stop this troll problem is to stop these patents from being issued. Nip it in the bud. There will always be someone willing to pay for an exclusive license to the patent (i.e. buy junk patents) with the sole intent of using it to sue startups. Sad but true.

Even if the junk patent was filed for and obtained by a person who was intending to build a product or see that products get built using the technology, what we all know can happen is the product never gets developed, the patent is never practiced, and it gets sold or traded for something or acquired through bankruptcy or some other means. And... eventually... it can wind up in the hands of a troll.

Having these junk patents "floating around out there" (or maybe we should say lurking in the depths, like dormant but functional submarines ready to take out any ships who have set off on a journey to build products and made it far enough... it puts every startup at risk.

The essence of a patent is a government-granted right to sue. That is really all it is for the grantee. Nothing more and nothing less. The often cited language from the US Constituion only relates to the creation of a patent office and the purpose behind it, not what the patent office grants you. The USPTO does not give you a free ticket to a monopoly (modern US patents are not "letters patent") nor does it even ensure a successful business. You have to accomplish that on your own. Being able to sue infringers or having rights to sue as a bargaining chip in negotiation _might_ help. But it won't ensure your success. (Unless your "business" is pure patent trolling.)

Ideally (as the Constitution suggests) the patent is intended to spur innovation and (we would assume) protect a growing business of sharing those innovations (e.g. as products) with others, but that doesn't always happen. Businesses fail for a variety of reasons. But a patent, no matter how poor in quality, remains a right to sue, as long as the maintenance fees are paid. Thus even a long forgotten junk patent with no associated product or innovations is still a "live" right to sue, a potential threat, laying dormant until a. the owner gets bitter enough to adopt an extortionist mindset (e.g. look at what the co-founder of Microsoft, one of the wealthiest men in the world tried a number of years ago- no one is immune from this mindset) or b. the patent falls into the hands of a natural born extortionist, e.g. someone who actively looks to buy junk patents in order to sue people for a windfall. The patent troll.

ZeroGravitas• 14 years ago

Has anyone got a theory as to why video and video streaming seem particularly prone to patent trolls? A few years ago people might have accepted the answer that "they're really complicated", but I think we all accept now that patents are pretty much BS. So there must be some other incidental business reason why so many people went and filed patents on these ideas. Because Hollywood has lots of money and a reliance on video but no tech understanding maybe?

gallerytungsten• 14 years ago

"a theory as to why video and video streaming seem particularly prone to patent trolls"

There's lots of streaming video on the web. For trolls, plenty of targets. Millions of potential defendants. If they issue 100,000 threats to sue, there will be at least a few that decide they'd rather pay than fight. Which then enables the troll to repeat the process.

kristaps• 14 years ago

Because it's likely to be profitable. Countless companies are doing something with streaming video and there are enough light and medium-weights in this space that are likely to choose to pay off the trolls instead of going to court.

Tipzntrix3• 14 years ago

My best answer is...Youtube blew up. The market for it went through the roof, anyone's posting videos all over the internet, and obviously the trolls weren't using their patent to make money themselves, they were using it to ride on the backs of the real developers.

tisme2• 14 years ago

Your best answer doesn't hold water. YouTube was started in 2005, which means it was founded after the first round of these lawsuits had started. These patents are about live content, Youtube was about stored content.

photorized• 14 years ago

They were actively going after adult entertainment companies (paid video etc), at least initially. They felt that's where the money was.

tisme2• 14 years ago

Exactly. See: http://gregpiccionelli.com/index.php?option=com_content&...

smashing• 14 years ago

Video and streaming media is not at all alone. Think of it as just being a more geek friendly topic as opposed to the patent litigation that passes for innovation for everything from aviation and to exercise equipment.

ktizo5• 14 years ago

I would say, because they are obvious.

If you had just watched an episode of The Jetsons and then were presented with a global communications network attached to computers with video screens, live video communications would be about the first thing you would think of. If you had also watched some adverts during the episode however, you would probably come up with live video porn, and maybe Amazon.

denzil_correa• 14 years ago

The Stack Exchange "Ask Patents" sound a very good idea for such cases. People can be more aware like the OP.

Tipzntrix3• 14 years ago

I'm glad we have such staunch defenders here and at the head of the Patent Office. This is nice to read, and Ask Patents is a great concept that perhaps you can be a part of.

macchina• 14 years ago

I can see allowing a patent on software to the extent the invention incorporates a truly novel and interdependent physical component. But plain software patents are, for the most part, bogus and ought to be outright eliminated. There is no dearth of software innovation, and the litigation is twice as expensive as development.

shasta• 14 years ago

Just to clarify, the idea of video in the browser wasn't novel. Your implementation was novel and might even have been the first instance of the general idea, but the only way you could claim such an obvious idea as novel would be to have invented the browser.

easy_rider• 14 years ago

This guy literally "saved" GeoCities hah. (dutch) http://webwereld.nl/nieuws/64140/nederlander-redt-geocities....

a-priori• 14 years ago

So I had an idea the other day for a patent reform: property tax on patents.

As long as a company wants to keep the monopoly rights over a patented invention, they are taxed a percentage of the patent's market value each year. They can choose either to pay that tax or sell the patent to someone else.

The government would offer to buy any patent for its market value, using tax revenue gathered from other patents, in doing so putting the invention into the public domain.

This would discourage companies from building large 'defensive' patent portfolios, since they'd be expensive to maintain. It works for the 'lone inventor' scenario too, since the market value of a new, untried invention would be low.

Once a patent's value is proven by developing the patent, its value will rise. At some point, the benefit derived from the patent's monopoly rights will no longer be worth the cost, and the rational thing to do is sell the invention.

My Brush With a Patent Troll

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