The Patent Protection Racket

http://www.joelonsoftware.com/items/2013/04/02.html

by doty • 13 years ago

190 94 13 years ago

joelonsoftware.com

Nux• 13 years ago

He's goddamn right! Patent system needs to die. Now.

mathattack• 13 years ago

I like the photo from the Seven Samurai. :-)

NotUncivil• 13 years ago

On a related note, this is one of the reasons I prefer to use, and make, Apache 2.0-licensed software. Its terms are similar to those of BSD and MIT but it also includes a patent licensing clause.

law• 13 years ago

So does GPLv3.

belorn3• 13 years ago

GPLv3 patent licensing clause was created as a copy/fork of the clause from Apache 2.0 license, and then had an added statement about patent license agreements.

samspenc• 13 years ago

Its so awesome that more and more medium-sized companies are paying attention to this! Patent racketeering needs to stop!

rbanffy• 13 years ago

Patent protection rackets have been used for more than a business model: they have been used as tools to pressure large companies into entering partnership agreements.

Please see the second item of the list: https://news.ycombinator.com/item?id=5479381

mehdim• 13 years ago

Are open web APIs becoming the new IT patents? http://api500.com/post/46951162382/apis-are-the-new-patents

te_platt4• 13 years ago

Can anyone here give (and defend) an example of a good patent? By that I mean one that is non-obvious, novel, and clear enough to be able to be used to build the claimed invention.

piokoch• 13 years ago

There are many. Think of safety-pin? When it comes to software it is much harder. The thing I can accept are cryptographic algorithms, since as an outcome we get a product - encoded text. All these one-clicks, etc. are pure bullshit.

unimpressive• 13 years ago

But math isn't patentable. You shouldn't be able to sprinkle "math implemented as a computer program" on top of your patent application and be able to skirt this.

te_platt4• 13 years ago

I just looked up the safety pin patent and it does look pretty good. I hope my original question didn't come off as confrontational. I do think we would be better off eliminating patents altogether, but I want to make sure I'm not discounting any positive effects patents may have.

betterunix• 13 years ago

"The thing I can accept are cryptographic algorithms, since as an outcome we get a product"

Of all the things...

Cryptography is math in this day and age. Patents on crypto are patents on math, with only the measly "ON A COMPUTER!!!!" clause justifying their existence.

rayiner7• 13 years ago

It was the patent on the field effect transistor that lead Bell Labs to invent the bipolar transistor: http://www.pbs.org/transistor/background1/events/patbat.html.

Also at Bell Labs, OFDM: http://www.google.com/patents?id=9ZFEAAAAEBAJ&printsec=a... (based on a paper published that year).

If you look at the implementation of something like LTE, there are a lot of non-obvious patented technologies in there: http://blogs.wsj.com/digits/2012/10/03/plan-to-pool-lte-pate....

Tesla has a boatload of patents and some of them are quite interesting: http://www.faqs.org/patents/assignee/tesla-motors-inc.

SpaceshipOne (which won the Ansari X-Prize) is patented. http://www.spaceref.com/news/viewsr.html?pid=23871. It's owned by what is basically an NPE, which serves as the investment vehicle for commercialization of the technology.

Fundamentally, you can't understand all sides of the patent debate unless you learn about how traditional engineering works. We're talking about fields where it takes $10 million to come up with a new idea, $100 million to do an MVP, and $1 billion or more to really put something complete on the market. E.g., here's a Rolls Royce gas turbine patent: http://www.faqs.org/patents/app/20130078582. I guarantee you they burned tens of millions of dollars figuring out what those numbers should be.

This is not a space conducive to startups. Thus the need to avoid a few million here in there in defending frivolous litigation is less important than the need to be able to propertize the results of R&D, so it can be traded, bought sold, shared in structured ways. Without patents, a company like Scaled Composites or ARM wouldn't exist, because they don't sell products, they sell the results of R&D. Getting rid of patents (and IP protections generally), force every company to produce tangible products, because there is no way to monetize things that aren't tangible products.

AnthonyMouse7• 13 years ago

That's hardware. What about software? Can you provide a specific example (i.e. a patent number) of a "good" software patent?

belorn3• 13 years ago

Of all those examples you gave, only the space ship is within the last half decade, and full fill the requirement of an non-obvious, novel, and clear enough patent where one can out of the patent produce something akind to the claimed invention.

the LTE link is a good example of BAD patents. Their best example MPEG LA patents, which is neither novel, non-obvious or patents written so that someone can produce the claimed invention.

I guess the moral of the story is: If you produce space ship designs, then maybe its worth patenting it.

lifeisstillgood3• 13 years ago

There is a lot of difference between software and process patents (which for most reasonable people look a lot like either copyright or WTF) and hardware patents that you have listed.

Even so things like non-obvious are a hard hurdle - most physicists know of the experiment where you fire a single proton at a half silvered mirror and it will be quantum-indeterminate whether it bounces back - that is truly random. There is /was a patent on using that for generating random numbers and is the basis of most every poker site in the world.

It's getting to the point where patenting the business model of patent trolling is going to be the only solution

Edit Having read the GC patent I can see there is at least one software patent that might just pass muster - but really I struggle with the idea this is an invention.

Edit2 - just to clarify - look at the patent for Edisons lightbulb (ignoring the fog of war surrounding patent claims). At the time the generation of light and heat from passing a current through a wire was well known - but edisons defensible patent is a specific description of how to build his lightbulb - vacuum, alloys, resistance etc. To my non legal mind that is not a set of scientific principles, but a copyright in hardware form.

josephlord6• 13 years ago

I'll play: US20080002776.

[http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Se...]

Although I no longer work for the BBC and have already received my bonuses for the filing and granting (after I left the BBC) of this patent I have a personal curiosity as the core inventive step was (I believe) mine although it was greatly extended and improved by others with greater domain knowledge in MPEG encoding. As far as I know it was a novel idea and wasn't obvious in advance to experienced video encoding engineers.

The original idea was to treat encoding losses as errors/defects that can be fixed or patched by additional data distributed separately. This was extended to arbitrary enhancements and changes and potential implementations, consequences and techniques.

I believe that there was a real non-obvious inventive step in considering encoder losses as patchable bugs. Given that idea alone a (suboptimal) implementation is relatively easy to create but was not obvious if the task being discussed is using the early 2000's Internet to deliver better video quality than broadcast (SD) TV could.

I am not aware of any current usage of the ideas in this patent or what licenses the BBC may or may not have granted.

Edit: Time for me to sleep now, will check for any replies tomorrow.

AnthonyMouse7• 13 years ago

At a glance that sounds like the "supplemental enhancement information" that H.263 had circa 2000, but the patent appears to have been filed in 2004 and issued in 2008. Am I wrong?

te_platt4• 13 years ago

Interesting. I think my only issue would be with the clarity of the patent. I admit to not being skilled in the art of broadcast video but not completely ignorant of video compression ideas either. Still, the "legalized" writing style makes for very difficult reading. Did you have a working version before applying for the patent?

scoot2• 13 years ago

This is where the patent process really falls down - subjectivity.

You consider the idea of treating compression loss as an error to be patched as non-obvious, whereas to most on HN (being generally technical, even if not in this field), that's probably, a "yeah, duh, and?" suggestion.

The implementation of that idea, and the techniques and technologies involved may ultimately be novel, non obvious and patentable, but your argument boils down to suggesting that "if it's broke, fix it" (in any particular subject domain) is sufficient to warrant a patent, so doesn't meet the criteria requested.

I think to be objective in answering the GP post you should probably suggest a patent that isn't your own.

ZeroGravitas3• 13 years ago

Why is my licence fee (basically a very regressive tax) being used to apply for further government-granted monopolies that can only be used to tax (or worse prevent) other corporations from delivering video services? What benefit is this providing the people of the UK?

jsnell2• 13 years ago

I don't read a lot of modern patents, for the obvious reasons: there are legal risks, and the patent texts are useless even if the invention isn't. But there used to be a time when a software patent wasn't necessarily an obfuscated hodgepodge of legalese with no apparent technical content.

Consider for example the (expired, so should be safe to read) mostly-copying GC patent: http://www.google.com/patents/US4907151

A system description doesn't get much better than that. If somebody couldn't implement a GC based on that patent, they're not a competent systems programmer. (It was also definitely novel. Non-obviousness is harder to argue 25 years after the fact).

poochie_the_dog• 13 years ago

Why on earth would there be legal risks to reading a patent? Contrary to copyright, whether you're infringing on a patent because you read it or because you happened to have the same idea is completely irrelevant. I know some free software guys are pretty paranoid about reading proprietary code, but I see no reason why this should transpose to patents.

(but IANAL, so perhaps I'm missing some subtle point)

loqi• 13 years ago

Weak argument for obviousness: As I understand it, the basic idea is to use a copying GC that pins everything pointed to by stack or registers. I had the same idea earlier this week, after spending a few days' spare cycles thinking about GC and having read virtually none of the literature.

Agreed on the clarity of presentation, though.

Zigurd• 13 years ago

This is a patent that covers something novel that was actually implemented and sold in a commercial product: http://www.google.com/patents/US7012997

The phone system this was implemented for had the unique property of tightly integrating the switch with what would normally be an "outboard" IVR system. It enabled a whole class of new features that could only be implemented on a switch of that nature, where the state of a call, or any interaction other than a call, like programming a feature button, could be interposed with arbitrary audio prompts.

If you read the patent and are "skilled in the art" you could implement it.

I'm pleased with this patent because it isn't obscure, it's easy to understand why it is novel, and it isn't trying to do anything underhanded, like making something obvious for a mobile device supposedly makes it novel and non-obvious.

The patent system is being gamed in order to exploit it. If the price of ending that exploitation is to exclude software from patent protection, so be it.

linuxhansl• 13 years ago

The more pertinent question would be an example of a good software patent.

IMHO there isn't any. At the very least there isn't any that benefited society as a whole. (Again, I am only talking about software patents).

As I've written before, the point is not whether the patents covers a good idea, but rather whether the covered invention would not have seen the light of day without the promise of a legal monopoly (again, all in IMHO).

SilasX2• 13 years ago

You mean software patents? Because if you meant any patent, there are loads of good examples in pharmaceuticals (and chemicals more generally), and they are pretty much textbook examples of being "hard to discover, easy to reproduce from description".

Just off the top of my head: Viagra, Teflon, aspirin (the latter of which has long since expired or been seized as war reparations, depending on where you live).

ZeroGravitas3• 13 years ago

Viagra was an ineffective drug that now gets sold based on a side-effect noted during testing for it's initial purpose. Maybe that's technically "hard to discover" but it's not really what initially leaps to mind when I hear that phrase.

huhtenberg• 13 years ago

Pretty much any pharma patent is fronting a boatload of R&D expenses that went into developing the drug.

abfan1127• 13 years ago

It sounds like we need "Kickstarter for Fighting Patent Trolls"...

205guy• 13 years ago

Given the article's opening paragraphs (small businesses and startups falling prey to the trolls), I'm surprised there hasn't been an organized attempt to inform people of the problem. Maybe I don't know about it and the author doesn't mention it, but it seems like there should be a website that categorizes the various players and their actions, with forums so victims and potential victims can share their experiences. Once you have all the data being collected in one place, then you can get the word out (how?) so that people know to check online even before checking with their lawyer. It seems like patent trolling is something that could be partially defeated with better and more widespread information.

AnthonyMouse7• 13 years ago

I expect it's standard for the troll's "pay up and sign here to avoid ruinous litigation costs" deal to include an NDA that would prohibit things along those lines.

dantiberian• 13 years ago

It is very easy to say that a company should fight a patent lawsuit instead of paying it up but that's not always possible. In many cases pragmatism is going to be better than fighting in court for a small business, especially if the likely court costs for the battle are going to exceed your businesses accumulated lifetime revenue.

nonamegiven• 13 years ago

I see ads all the time on TV and billboards for DUI and settlement and disability lawyers. "Get the result you deserve." I think many of them are national firms, although they look local.

It seems that patent troll victims would be a great area for a firm to break into.

SomeCallMeTim6• 13 years ago

I just spoke with a friend about a time when his company was approached by a patent troll.

The patent in question was granted in 2002 [1]. He had himself worked on the technology under "patent" in 1998, and was able to find someone who had published material as far back as 1995, and who was willing to send supporting documentation and to, if necessary, testify.

He talked with his attorney, who agreed the prior art he'd found was spot on, and that in legislation they'd be almost certain to win. But that it would cost ~$3m.

The patent trolls also were going after names such as Amazon, Facebook, and other huge companies. The troll was asking for $200k for a license from each company. As far as my friend knows, they ALL settled (or at least many of them had).

There were 15-20 names on that list. If they'd simply put the $200k-$300k of "licensing fees" into a common pot and used that money to fight the troll, then it would have done a small amount of good in defeating one troll's patent.

But really the whole system does need serious reform. His suggestion was to cause the patent trolls to have to PAY for legal fees if they lose a patent challenge, though that would just encourage them to sue from individual corporations that would declare bankruptcy on losing.

But I think software patents should simply be disallowed, or the bar raised (somehow?) to exclude anything vague and hand-wavy. One thought I've had was to require an implementation of the process being patented. Then it would be far harder to claim that your patent covers something only vaguely related, and the patent would actually be useful for its original purpose, which was to put the knowledge into the public domain when the patent expires.

[1] I wouldn't swear to the dates; they're from memory. The approximate order/scale is correct, though.

shmerl4• 13 years ago

>But that it would cost ~$3m.

Can you elaborate (if you have any idea) what this cost actually consists of?

SomeCallMeTim6• 13 years ago

Sorry, I don't know any more of the details. It was a casual conversation about patents and spurious lawsuits in general (they'd also been sued in a class-action, which they did fight and "win", in quotes only because apparently the attorneys for the plaintiffs are likely to appeal, meaning it's not over yet), and I've related what I remember from it.

Though I will say this: He absolutely wanted to fight. He completely hated the concept of paying the extortion. But as a representative of a VC-backed company, he couldn't in good faith spend $3M on a lawsuit that could be put to rest for $200k.

csense2• 13 years ago

If it's such an open-and-shut case, why hire a high-powered firm that'll cost $3M instead of some kid fresh out of law school who wants to make a name for himself and is willing to take ramen wages?

SomeCallMeTim6• 13 years ago

If it were a small start-up, that would one approach. Problem is that kid may screw things up and lose the case. Maybe not, but we're talking a VC-backed company with a board of directors and such. He did tell me that, looking at the list of other companies being sued, he felt that his company had "reached the big time." (The odds you've heard of his company are not very good -- I wouldn't have heard of it except that I know him, though I did run across it in an article in the last couple of months.)

The concept of hiring someone on the cheap to fight it isn't really one of the options on the table when you have investors and a board to keep happy.

binarymax• 13 years ago

If there is hard evidence of prior art, then filing an ex parte reexaminiation[1] is certainly not $3M.

[1] http://www.uspto.gov/web/offices/pac/mpep/s2210.html

SomeCallMeTim6• 13 years ago

I thought Blackberry/RIM actually WON one of those, but then ended up paying $300M anyway? The press reporting was unclear, but that's what it seemed like had happened, which never made any sense to me. Maybe it was still pending an appeal by the patent holder?

Again, I don't know enough of the specifics. I'll ping him and see if they did that.

jacques_chester6• 13 years ago

The one reform this suggests is a requirement to list who else has has licensed a patent, or who has been sent a letter of "offer".

shmerl4• 13 years ago

What's more important that even companies which actually produce something are also engaging in patent protection racket. Such as MS, Apple and others. That's why the term "troll" (i.e. racketeer) is not exactly the same as NPE.

mtgx• 13 years ago

Isn't what Microsoft is doing with all the Android manufacturers basically the same thing, too?

ZeroGravitas3• 13 years ago

I'm fairly convinced that it's mostly marketing and hot-air. After all Barnes and Nobles managed to get 1/2 a billion dollars out of their legal fight with Microsoft, it seems unlikely that Samsung would just roll over.

But signing a bit of paper that makes it sound like a bad idea for competitors to enter Samsung's main money-making area and get some "marketing expenses" from a rich but strategy-bereft supplier makes good business sense.

csense2• 13 years ago

What if the startup uses a scorched-earth policy? Fight 'til the money runs out, liquidating your assets and closing down the business piece by piece, then if the troll wins, they get nothing because it's all been spent on lawyers and there's nothing left for them to take.

paulgb• 13 years ago

Then the startup loses. The troll assumes that the startup is rational and won't do that.

It would be interesting to see what effect a VC could have if they started a policy of not allowing their portfolio companies to settle with a troll and funding them to fight. It might be expensive at first, but in theory once they develop a reputation the trolls will know it will be an expensive and risky proposition to go after their portfolio.

brown9-2• 13 years ago

In what way is self-destruction a viable defense? This kills the startup.

The Patent Protection Racket

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