Losing the War on Patents

theodp writes: "Jeff Bezos and Tim O'Reilly's once-hyped BountyQuest.com takes a beating in a Salon article today that takes note of Amazon's recent decision to license one of the few patents BountyQuest claimed to have found winning prior art for, a patent held by the InTouch Group, who had sued Amazon for infringing on the patent prior to Bezos' reported $1+ million BountyQuest investment. In the article, professional patent buster Greg Aharonian provocatively remarks that "BountyQuest was always a joke...Bezos and O'Reilly were never seriously interested in patent quality...Bezos just used O'Reilly to help Amazon...That Amazon ended up licensing the InTouch patent just shows how stupid the whole thing is.""

Comments

New Idea

[Tremul]

Next thing you know, somebody will try and patent the hyperlink. Oh wait...

Re:New Idea

[Oggh]

Wired News, today Move Over, BT: He Invented Links British Telecom's claim that it owns the patent to hyperlinking outrages Bob Bemer, an octogenarian who invented what would become a key component of Web navigation a long, long time ago. By Michelle Delio. http://www.wired.com/news/culture/0,1284,50398,00. html

Licensure does not Mean What You Might Think

[euphline]

Amazon.com's decision to license a patent simply means that they did a little bit of math to determine whether the cost to litigate the patent suit, combined with the odds of winning were greater or less than the cost of licensing the patent. Clearly, they determined that it was simply cheaper to license the patent than to litigate it.

The legal system in the United States is (unfortunately) often used by unscrupulous companies that know that settling their lawsuit will be cheaper than litigation... regardless of the merits of the case.

That said, settling lawsuits (also known as ADR, Alternative Dispute Resolution) is a *good thing*. This gets the decision making out of the hands of judges and juries and into the hands of the parties. It allows folks that are at odds to come together on something where they both have *some shot* of going home happy. At the end of a lawsuit, often everyone loses because of the high cost of litigation.

-jbn

Please note: Part of the cost of litigation is lawyers. They are just doing their job. Part of the cost of technology is hiring techies. Don't fault lawyers for getting paid any more than you fault yourself for getting paid.

Re:Licensure does not Mean What You Might Think

[RazzleFrog]

Spoken like a true lawyer. What you forget is that these "unscrupulous companies" are receiving the legal advice on unscrupulous lawyers, whether internally or externally. The lawyers go into these cases expecting a settlement. They get paid boatloads of cash either way and it is usually a lot less work than going to court. I'm curious how many of these settlements happen between lawyers while playing golf and charging the client $300/hr.

Also, on your comparison of techies and lawyers, most corporate techies I know work in cramped cubicles while most corporate lawyers (the real ones not the aides and assistants) I know have large offices swimming in mahogony and plush leather chairs. I think there is a slight difference there.

Re:Licensure does not Mean What You Might Think

[atopian]

This reminds me of Fight Club, where hes describing the insurance process for recalls :)

From a logical view it seems silly, sense its just a waste of energy and money that could be applied to something useful, oh say like mabye actually innovating?

Re:Licensure does not Mean What You Might Think

[Futurepower(tm)]

Exactly my thoughts. Thank you.

But, I wish you would get a different name. I feel odd accepting wisdom from someone named "RazzleFrog".

Re:Licensure does not Mean What You Might Think

[RazzleFrog]

It's offtopic but I am maxed out anyway.

There is a story behind the name. I spent many years using my first initial and my last name as my userid everywhere. This was inherited from the very early days in college and it stuck. In the last year or so I got sick of it but all the cool names were taken so I was talking with somebody about Fraggle Rock and inspiration stuck. Of course, in today's litigious society I swapped it around to become RazzleFrog (as opposed to RazzleFrock which sounded like something you would wear).

This also explains my high 500000+ slashdot ID.

Re:Licensure does not Mean What You Might Think

[Shiny Metal S.]

I'm curious how many of these settlements happen between lawyers while playing golf and charging the client $300/hr.

$300/h while playing golf?! God damn it! And I thought that my record of $100/h while watching The Simpsons (when my client thought I was coding) was impressive! I guess It's time to change my profession... On the other hand, I know people who get much more than $300/h while playing golf. They're usually professional golf players, but still it's a lot of money...

Re:Licensure does not Mean What You Might Think

[SirSlud]

> settling lawsuits (also known as ADR, Alternative Dispute Resolution) is a *good thing*

No it's not. It only means that trying to do the right thing (that is, figure out who really owns a patent and whether or not its valid) is more expensive than paying wallet-service to unsubstantiated claims.

If thats the pinnacle of achievement of the market based economy, count me out. Like how the IMF bailed everyone out of the Asian market crisis, nobody ends up learning anything, and stupidity is allowed to reign. Market based tactics always place the interests of the few (private interests, natch), above those of a soceity at large, which is why in this day of wealth-stroking penetance, the social costs of systems supporting private interests are huge. So long as you blindly stroke the market with your narrow minded rhetoric, it will continue to do so, instead of serving the broader social interests (ie, barrier to market, equality in market participation) that it was designed to do.

Money talks louder than Right. If you claim thats a good thing, you're too far gone to save.

Re:Licensure does not Mean What You Might Think

[SirSlud]

> Don't fault lawyers for getting paid any more than you fault yourself for getting paid.

Don't worry, I only fault them for making it cheaper to ignore real problems than to actually analyse and solve them by way of an impartial judicial system. Then I fault the companies for placing all of their shareholders value in a concept that would cost crudloads to defend. And then I fault shareholders for being more interested in the success of their stock than the improvements that the technology their money is behind makes to life in general.

And then I go back to work.

Re:Licensure does not Mean What You Might Think

[KnowsNot]

Conceptually, BountyQuest is a good thing. It can help locate hard-to-find prior art in certain technical areas (such as software)--the kind of stuff that isn't in prior patents, hasn't been published in a widely distributed/searchable medium, or just might not be appreciated for what it is by those of less technical skill (including patent attorneys and patent examiners). It also has the potential to empower those who complain about overly broad patents to do something about them. If you think the patent had obviously been done before, go find a reference to prove it.

However, BountyQuest has some tragic flaws and is in no way a solution to all that ails the patent system. Finding a good prior art reference after a patent has issued does not eliminate the patent or necessarily prevent it from being enforced. Identifying a reference is just the first step. The procedural costs and risks associated with invalidating a patent (either through the courts or the Patent Office) are high. As long as there is a legally viable argument (which there almost always is) that the patent is still valid, the owner may continue to assert it.

Identification of a strong reference does hurt the patent holder though and is a great service to those the patent is asserted against. It greatly reduces the patent holder's negotiating power because they want to avoid litigation as much as accused infringers. I'm sure that Amazon managed to negotiate a more favorable license (if the reference was really that good). There are others who will be willing to fight if the patent holder pushes too hard or asks for too much.

Unfortunately, this service does little for small companies and individuals and does not rid the system of patents that should never have existed in the first place. The companies that can absorb the licensing costs are subjected to an illegitimate tax that raises the cost of doing business--again, ultimately hurting the consumer. If BountyQuest really wanted to put its money where its mouth is, it would put together a legal service for invalidating overreaching patents. Something like a legal defense fund for the public domain of ideas. Actually, a lot of patent attorneys might be interested in the pro bono opportunity if it existed.

Re:Licensure does not Mean What You Might Think

[MindStalker]

That said, settling lawsuits (also known as ADR, Alternative Dispute Resolution) is a *good thing*. This gets the decision making out of the hands of judges and juries and into the hands of the parties. It allows folks that are at odds to come together on something where they both have *some shot* of going home happy. At the end of a lawsuit, often everyone loses because of the high cost of litigation.

I'm highly confused by this statement, your saying that if I get sued and settle for a million dollars, in which I was basically blackmailed, because I knew that taking it to court could cause my buisness to go under. So you say we've both won?

Re:Licensure does not Mean What You Might Think

[euphline]

our saying that if I get sued and settle for a million dollars, in which I was basically blackmailed, because I knew that taking it to court could cause my buisness to go under.

While there are cases brought that are totally bogus, most cases have a pretty heavy grain of truth in them [that is often absent in the news accounts of the stories]. Those that don't have any truth to them can be thrown out very early in the case with very little expense... before people even start settling cases.

Reporting lawsuits fully and accurately is no different than trying to report fully and accurately the new features in the latest kernel. The facts and the media report are often going to end up a little ways apart. These *totally worthless* cases don't happen as often as you might think, and when they do, the plaintiff rarely gets million dollar settlements.

-jbn

I say rarely, because I rarely say never.

Re:Licensure does not Mean What You Might Think

[MindStalker]

I'm more thinking of the times when the lawyers are more expensive than settling, and you can't always be garanteed to get legal expensese paid.

Re:Licensure does not Mean What You Might Think

[Anonymous Coward]

Techies create something.
Lawyers do not.

Techies are the life-blood of the world economy.
Patent lawyers are parasites sucking that blood.

Re:Licensure does not Mean What You Might Think

[nerdlyone]

> Don't fault lawyers for getting paid any more than you fault yourself for getting paid. Don't worry, I only fault them for making it cheaper to ignore real problems than to actually analyse and solve them by way of an impartial judicial system. Then I fault the companies for placing all of their shareholders value in a concept that would cost crudloads to defend. And then I fault shareholders for being more interested in the success of their stock than the improvements that the technology their money is behind makes to life in general.

And then do you fault yourself as part of this massive machine since you elected the legislators who enacted/perpetuate this system? You are as culpable as any of those you "fault."

Re:Licensure does not Mean What You Might Think

[CoachS]

With all due respect, patent lawyers make it possible for techies to earn a good living by creating something.

-CoachS-

Waste of an investment

[The Rizz]

Amazon may have just gone with the option of paying InQuest because it might just be cheaper to pay the patent royalties than deal with a lengthy court case.
Even if they do have prior art on their side, you have to PROVE it's prior art.

The stupid thing here is that Bezos spent $1M+ on this project and didn't even bother doing anything with the fruits of the labor.

Oh well, hopefully BountyQuest is at least paying those who find the prior art... that way it can be useful for someone, if only as a way to redirect some corporate money into one's own pockets. (In the non-Enron way, that is...)

--The Rizz

"There are no circumstances under which a state is justified in placing its welfare ahead of mine." --Robert A. Heinlein

Re:Waste of an investment

[Flower]

Amazon spent a million and got some goodwill for the company by pacifying a loud but small demographics and blindsiding them with some busy work on a shiny windmill.

BountyQuest has already given fruit if you ask me.

Unusable legally?

[interiot]

Speaking of the BountyQuest prior art discovery:

• "It was never used in the case," says Joshua Kaplan, founder of InTouch. "The defendants didn't bring it up."

Simple answer: it wasn't viable as legal evidence in a court of law?

Re:Unusable legally?

[markmoss]

Or maybe they showed the evidence to InTouch privately and got InTouch to "settle" before the evidence was presented in court. Does anyone know what the settlement was? $0.01 is a settlement... And it doesn't hurt InTouch's chances with the next bunch of suc^h^h^halleged infringers, while a court transcript of evidence tending to invalidate the patent would.

Let's strike back...

[DocSnyder]

Patent-No. 3.14159265

Method to increase the choice on a public online opinion poll

Reference A shows an apparatus to perform a public online opinion poll (Reference B) which is to be increased by one option (Reference C) containing the nickname of a person related to the mentioned apparatus (Reference D)...

References:

A) "http://slashdot.org/"
B) "http://slashdot.org/pollBooth.pl"
C) "http://slashdot.org/pollBooth.pl?qid=740"
D) "http://cowboyneal.org/"

Re:Let's strike back...

[Alsee]

Patent-No. 3.14159265

Im sorry, but your patent number appears to be incomplete.

Please resubmit with completed patent number and we will be happy to assist you.

Thank you, and have a nice day!

-

Ideas

[JohnBE]

Is it the duty of the person/organization with a new idea to publish it such that patents will be blocked? Or face the consequences of not widely distributing the idea.

Re:Ideas

[Proaxiom]

There is no such "duty", exactly. But if somebody patents your invention, the onus is on you to prove you invented it before the patent application was filed.

If you can't prove it, you're SOL. The patent will stand.

If you can, then either the patent will be rejected (if the PTO is made aware of your invention), or the courts can invalidate the patent after the fact.

Re:Ideas

[JohnBE]

When I say duty I meant something that somebody is compelled to for moral or legal grounds. Not duty as in obligation.

I guess the problem is when people are not au-fait with the current laws.

I imagine that something published online, if transferred to a different medium could also be considered under the DMCA. I wonder where excerpts and verbatim copies stand with this (even in an office meeting scenario).

I'm no lawyer. I'm not bloody minded enough ;-).

I guess we know how Native Americans felt...

[ArcSecond]

Imagine you are living next to a river, enjoying the fishing, the transportation, the community that has grown up around life on the river.

Then some @sshole finds a nugget of gold. Suddenly there's a town upstream, polluting the river, 1000s of stinky (and paranoid) prospectors pointing shotguns ("git awfa mah propertah!"), and the river is clogged with boats.

We can only hope that the gold runs dry quickly, the prospectors drown trying to run the rapids on their way to sell their sacks of gold (which they tend to tie to their bodies, thankfully), and things will get back to normal sooner or later.

Either that, or its time to move.

Re:I guess we know how Native Americans felt...

[Raindeer]

Imagine you are living next to a river, enjoying the fishing, the transportation, the community that has grown up around life on the river.

Then some @sshole finds a nugget of gold. Suddenly there's a town upstream, polluting the river, 1000s of stinky (and paranoid) prospectors pointing shotguns ("git awfa mah propertah!"), and the river is clogged with boats.

We can only hope that the gold runs dry quickly, the prospectors drown trying to run the rapids on their way to sell their sacks of gold (which they tend to tie to their bodies, thankfully), and things will get back to normal sooner or later.

Well, we all know how that story ended. It became the United States of America that we all know today. Draw your own conclusions ;-)

If It's broke don't fix it!

[Gopher971]

The US Government seems to have a very blinkered approach to patent reform. Blindfolded in fact.
However some of the cures seem worse than the disease. For Example:

Others are calling for more radical government reform. Richard Stallman, founder of the Free Software Foundation, argues Congress should exclude software from the patent system. "That," he says, "would really solve the problem."

or

"One reform is to require applicants to do prior art searches, as opposed to the current rule that they disclose what they know," he says. "The current rule allows them to wimp out by saying, 'We didn't know because we didn't search.'"

They do not tackle the underlying problem. The Patents system was never designed for software and code. Patent legislation and practice law has been distorted to accomodate them and this has led to "bad" patents.

If this can be resolved is up to FTC but going on past experience I wouldn't expect too much progress.

Re:If It's broke don't fix it!

[Vagrant]

Part of the problem is that there are too many patents being granted for questionable "inventions". Patents are only supposed to be granted if the invention is "non-obvious".

Obviousness (is that a word?) is something that can be argued for almost anything. Given enough time, resources, and research, many things can be deemed as obvious.

Re:If It's broke don't fix it!

[Anonymous Coward]

I don't often agree with RMS, but he's onto something here. There are some patents like PKI that seem appropriate but many, if not most of the others, are squatting or defense-against-squatters. The rule of thumb should be, if the average layman can't understand the problem being described, or if he can understand the solution (including why it is better) without having an advanced background in math, computer science, or some other academic discipline, then the idea shouldn't be patentable.

Re:If It's broke don't fix it!

[Anonymous Coward]

I think the wording is something more like, wouldn't be obvious to a tradesman in the field. It's tradesman or something that made me think of carpentry.

Re:If It's broke don't fix it!

[MindStalker]

Just because the average layman can understand the solution doesn't mean it shouldn't be patentable. There are plenty of very inventive ideas that are perfectly patentable. I would more suggest, if given the same problem, the average layman came up with the same solution, it shouldn't be patentable.

Re:If It's broke don't fix it!

[Flower]

If the patent system is not designed to handle code (which the SC will disagree with you btw) then why is removing the ability to patent software a bad thing?

There is always copyright to fall back on. It's not as if there are no laws to protect software if you take the ability to patent it away. Personally, I'd rather see every company write closed code than have them patent the idea behind it.

And what is the FTC going to do anyway? To paraphrase, I think, "Everything under the sun, made by man, can be patented." That is the current legal view regarding patents. As long as it isn't obvious to a person with average skill in the field you can patent it. Let's not forget to add that it is the USPTO's assumption that disputes will be handled by the courts. After all it is why they created a court just to handle those cases. And while it is possible for somebody to pay the USPTO to re-review a patent whose fault is it that so few use that option?

So what should they do? Validate patents through a slashdot poll?

Re:If It's broke don't fix it!

[Anonymous Coward]

Given enough time, resources, and research, many things can be deemed as obvious.

My sarcasm detector must be faulty. I can't tell if you are trying to be funny, or if that's the stupidest thing anyone ever wrote.

Re:If It's broke don't fix it!

[garyrich]

"So what should they do? Validate patents through a slashdot poll?
"

There's the kernel of an idea here. Not slashdot, the horror... But posting a summary to a technical board in the subject area during patent review could help. If 90% of the responses say it's BS, prior art or apallingly obvious to a practicioner in the field - don't grant it.

Re:If It's broke don't fix it!

[puppet10]

Of course no idea alone is patentable -- "A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine." (1).

The current problem IMHO is due to the overturning of the business method exception (2) which almost allows just an idea to be a valid patent and were excluded with a 100 years of case law, that this type of business method patent was not the intent of the constitution, and also one of the reasons all these patents were available, since even though the basic ideas are very old (for instance Priceline patented a reverse auctioning business method) no one was able to patent them when they first appeared since business models werent able to be patented (with good reason IMHO) until 1998.

Re:If It's broke don't fix it!

[martyn s]

Whoa, copyright and patents are *totally* different here. If I am Microsoft I own the copyright to MS Word, and no one but me can give the right to stamp and sell Word CDs. But if I owned the patent on "spellcheck" that means noone can write software that automatically underlined words that were spelled incorrectly. You can't "copyright" spellcheck, unless it's the name of a specific program.

Re:If It's broke don't fix it!

[Flower]

You exactly have my point. I don't want the idea behind spellchecking patented. The only thing I care about is that the owner's implementation is protected. IOW, you can't use their code if they do not permit it. This is of course my opinion which the courts don't agree with obviously. But, imo, I think there is enough incentive to produce code that copyright is sufficient protection. Patents for software, especially for stuff that doesn't even have a product to show for it, should not be allowed.

Re:If It's broke don't fix it!

[martyn s]

Even further. If you look at the original discussions about patents, you will see that patents weren't issued to promote innovation, patents were designed to prevent a corporation from keeping it's innovation secret and having society eventually lose it forever. So incentive isn't even an issue here, or at least it shouldn't be.

The war is not over.....

[brownj_685]

The war isn't over, nor do I think it will ever be over. Just another battle lost. It takes time for things to change. Just because it isn't happening a quickly as you might like, does not mean you give up the fight. James

Making the US vulnerable to economic warfare?

[Ice Tiger]

Looking at the US patent system and DMCA, it seems that maybe the US is vulnerable to econmic warfare from entities external to it's borders.

By tactical use of patents and copyright laws it would be easy for such an entity to stifle development of technology and products, thus destroying the US economy.

Just an idea.

Re:Making the US vulnerable to economic warfare?

[jgerman]

Not likely, even if such an attack were possible, number one there most likely isn't anyone with the wealth to pull it off, and two, the external entity would be SOL when the US repealed/amended the laws to retaliate. So not only did that money pour money into getting the patent, it's money is now gone forever.

Re:Making the US vulnerable to economic warfare?

[Bozar]

Most likely not: for the simple reason that the united states legal system has a habit of ruling in favor of US residents (of which, big corporations are the most important ;D) Take for instance the patent on radio communication by marconi(an italian), which was overturned in favor of one of tesla's (an american). And this comes after marconi won the nobel prize for inventing the radio. (not that tesla didn't deserve to win the dispute... but he was dead at the time i think) And in any case, any money that you put into disputing a patent goes into the united states legal community and legal system, so you are making your own worst nightmare: a nation of practicing lawyers. (wait... do we have that already? :( )

Re:Making the US vulnerable to economic warfare?

[Ice Tiger]

Ok this is an example from history, another question then. How many patent disputes get to a court ruling now?

The entity does not have to be a foreign government and it does not have to be a short term 'attack'.

In fact you could probably get the same result as a coordinated effort by making it profitable to use the US legal system to get self gain. Ok take this scenario, you are a competitor of a US company, part of your strategy is to stifle your US competition by the use of DMCA and software patents, your US ompetitor cannot retaliate by doing the same to you using your legal system. Now multiply this by many times and the results are the same as a coordinated attack by one entity even though no such coordination has taken place.

Oh and protect yourself by having a shell company in the US.

Just some thoughts

Re:Making the US vulnerable to economic warfare?

[Tablizer]

Looking at the US patent system and DMCA, it seems that maybe the US is vulnerable to econmic warfare from entities external to it's borders.

Well, the Taliban already cornered this technology:

http://asianjoke.com/pix/afghan_missile_launcher.h tm

part of the problem

[Alien54]

Only about 20 BountyQuest contests have resulted in bounty-winning prior art since the site's inception. New bounty offers, meanwhile, have slowed to a trickle; 23 contests were running when the company launched but only three contests are now open for submissions.

This may be a part of the problem right here. Although, I do not know about the financing of the site in the first place.

Let's face it. I would expect that we would have an increase in the number of contests. or did it quickly get into areas that were just to obscure?

Re:part of the problem

[Anonymous Coward]

Of all the companies founded to take advantage of the Internet BQ is one of the very few that:
A) Was trying to do good for the world
B) Is still in Business

Good for them!

Re:part of the problem

[Anonymous Coward]

Let's face it. I would expect that we would have an increase in the number of contests. or did it quickly get into areas that were just to obscure?

Well looking at recent bounties on, Client-end web filtering (ala Cyberpatrol, i.e. the nemisis of Peacefire), Embedded web servers, web-based database systems which users can login to and update

While they may not be on areas the average Joe knows about, I imagine anyone reading slashdot would at least have heard about the abovementioned areas.

Domino Licensing -- A Clause for the Settlement?

[ClarkEvans]

The reason why Patents are valueable is that if the litigation cost for one company is X, they can license it for Y X. Then, once one company pays, they can go to the next company, etc. Till all of them pay up. Thus, with a market of N potential licensees, the upper bound is N*X, and most likely Y*X will be extracted. Now. If I were going to settle, I would add a simple clause:

This royalty payment must be returned if, within the next 3 years suit is brought up and within 10 years the suit results in the patent being overturned. To facilitate this, as soon as a suit against the patent is filed, the Inventor must put the amount of the royalty payment into escrow account or find a gaurenteer which will back the payment. Further, the licensee does not give up right to join such a patent law suit.

I'm not a lawyer, but this clause could do wonders to stop patent profiteering by allowing the law-suit costs to be spread over all of the licensees. Thus, X NY. A standard clause like this (or written into law) would help things out significantly; since it makes the entire industry the defendant rather than each individual company.

What can we honestly do?

[JohnDenver]

20,000 software patents a year...

That really bothers me. As a software developer, I've always aspired to make some really cool killer application, but I wonder how many infringments of obvious patents I would encounter if I attempted to do so.

So what am I going to do? Drive down to DC and hold up posters and distribute leaflets in front of the USPTO while the people who are taking advantage of the patent office laugh at me as they work on receiving thier government sanctioned monopoly on an IDEA???

Wait a minute... I thought we were capitalists. What's this crap about the government sanctioning monopolies? On ideas non-the-less.

I don't know about you guys, but I feel helpless in this situation. I grew up actually believing that this civilization was about real prosperiety and the creation of wealth.

I had one idea. I figured that with 20,000 some patents a year, we could assemble them and demonstrate how easy it is to infringe on obvious patents.

The way I would probably demonstrate this would be by writing a VB program in front of a group of people, much like the seminars. As I add features, I would tally the number of patents I infringed on.

Hell, you don't even have to show any code, just the natural evolution of ideas. Maybe as you're improving the software you could poll the audience for the next improvement and to thier surprise, they would discover thier obvious solution had been patented.

That's one idea, but it's fill with a ton of flaws. Ex: Who wants to watch me improve on a software program? Where am I going to do that? How am I even going to get people there?

I don't know about you guys, but I want to stop bitching about this and do something. The question is: What can I honestly do?

Re:What can we honestly do?

[jgerman]

The way I would probably demonstrate this would be by writing a VB program in front of a group of people, much like the seminars. As I add features, I would tally the number of patents I infringed on.

Hell, you don't even have to show any code

I certainly wouldn't show my code if I were writing programs in VB, in fact I'd carry that secret to my grave.

Re:What can we honestly do?

[JohnDenver]

I certainly wouldn't show my code if I were writing programs in VB, in fact I'd carry that secret to my grave.

My thinking went along the lines of:

If people knew that you could even infringe of software patents with VB, then they could be certain they have no chance with thier own language.

Re:What can we honestly do?

[Shiny Metal S.]

Wait a minute... I thought we were capitalists. What's this crap about the government sanctioning monopolies? On ideas non-the-less.

I don't know about you guys, but I feel helpless in this situation. I grew up actually believing that this civilization was about real prosperiety and the creation of wealth.

These are words of Thomas Jefferson, the primary author of the United States Declaration of Independence:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

When did the strong spirit of these beautiful ideas become so meaningless?

Re:What can we honestly do?

[powerbarr]

Yeah some patent ideas are crap but there is another point you are missing.

Say your a company that comes up with a great idea, say a new drug that will stop or inhibit some disease. You publish your results and any other company can now make it. Wait you have to get the millions of dollars back you spent to come up with the drug while all the other companies just have to build a manufacturing line. Capitalism has to have some incentives.

That is what patents are or should be. An incentive for coming up with a good idea. There just needs to be a better way to filter out the crap from the good ideas.

And please don't start on how drug companies would rather treat a disease, than cure one. That is a whole separate issue.

Re:What can we honestly do?

[Anonymous Coward]

He says that unless you keep it a secret, it should spread freely across the world. So if you want to make money off it, you should keep the idea to yourself. The only person that wins is the person with the idea, assuming he can sell his idea without giving it up. So the government setup this thing where they will protect your idea for x years so you can make money off it, and in exchange, you give your idea to the world. Everyone wins. Sure, you can get rid of copyright and force people to give their ideas up, but other countries have tried this, and the result is no one makes up new ideas. What is the incentive if not money? Not a warm fuzzy feeling, sometimes research projects can take millions of dollars, money is important.

Re:What can we honestly do?

[Seanasy]

Could you provide the source for that quote?

I've tried Google but every page that has it only cites Thomas Jefferson. Nobody gives a full citation./P.

Re:What can we honestly do?

[Shiny Metal S.]

It's here, on The Red Thread site (which is going to be moved to a new address soon). They have a nice collection of related quotations, sorted by author and by subject.

Re:What can we honestly do?

[Shiny Metal S.]

Please, do not confuse copyright and patent system. They have very little in common. I know why were the patent laws introduced. I'm asking about the spirit of such great people like Thomas Jefferson, not what is the patent system for.

So the government setup this thing where they will protect your idea for x years so you can make money off it, and in exchange, you give your idea to the world. Everyone wins.

This is very important to understand: When someone gets a patent for obvious invention - only this one person wins, while the rest of the world loses. It is especially true with software patents, where I can write a program and distribute it to millions of people with zero cost. The license fee is no longer a small percentage of my investment. It's the only cost, which absolutely stops development of free software.

Sure, you can get rid of copyright and force people to give their ideas up, but other countries have tried this, and the result is no one makes up new ideas.

Could you provide any examples to illustrate your point?

Re:What can we honestly do?

[ItsIllak]

OK, I completely understand the need to figure out what you can get up and do to fight something. However, I still have to point out the slight flaw in your idea. I have trouble teaching non-techies I know how to use Outlook sometimes. You really thing anyone that doesn't already agree with you will understand what your doing and why you're trying to do it with "street VB programming"?

I don't know what you can honestly do. I guess you can try and get the mainstream press to pick up on the idea somehow. Tell your friends and neighbours tell them to tell anyone they know in the press. Make it a electoral issue in your area.

The only people with any control any more are the people at the TOP of the media, a few people in goverment and a few strongholds of media that are still independent. You aren't going to get the first two, so good luck with the third.

Re:What can we honestly do?

[mbogosian]

When did the strong spirit of these beautiful ideas become so meaningless?

The same instant someone came along and said, ``I'll pay fifty dollars for one....''

Some Native American tribal cultures might have asked the same question about land, but the instant any new class of [noun] is used in an exchange with another class of [noun] of proven value, the ownership of items in the newly introduced class is implicit. To paraphrase an earlier post, ``Git off mah propertah!'' Once sounded absurd to somebody, and yet it has come to pass that we no longer have a concept of unowned or unclaimed land. The same is now true of ideas...just look at how we refer to them: intellectual propertah.

Re:What can we honestly do?

[LdyArdRhi]

*grinning like a loon*

Who is John Galt?

Re:What can we honestly do?

[JohnDenver]

OK, I completely understand the need to figure out what you can get up and do to fight something. However, I still have to point out the slight flaw in your idea. I have trouble teaching non-techies I know how to use Outlook sometimes. You really thing anyone that doesn't already agree with you will understand what your doing and why you're trying to do it with "street VB programming"?

I thought it was kind of rediculous too, but that's the best idea I could think up to educate how software patents inhibit software developers.

Apparently, there are atleast 1/2 million software developers in the US alone. How can we atleast galvinize that?

Re:What can we honestly do?

[Anonymous Coward]

What's worse, it's a terribly, TERRIBLY, bad idea to actually read through the patent database.

If you write code (or USE code) that infringes on a patent, you can be sued for "damages", as a court sees fit.

...But if you _knew_ about the patent, and write (or USE) code that infringes on that patent, you can still be sued for damages, but then you're also liable for _three times_ that base amount.

Scary system, hmm?

Re:What can we honestly do?

[be_seeing_you]

Did anyone happen to mention that Jefferson was the first U.S. Patent Commissioner, or that Jefferson held several patents himself?

Re:What can we honestly do?

[nerdlyone]

This is very important to understand: When someone gets a patent for obvious invention - only this one person wins, while the rest of the world loses.

So you are just complaining about abuses of the patents system, and not the patent system itself. Obvious patents should not issue (obviously), but sometimes they do. There are legal mechanisms to take care of this, the biggest being the chance to prove the patent was obvious at the time of its making, thereby having the patent (or the obvious claim) invalidated. Given that this mechanism exists, how do you suggest we improve it?

And though I don't know the context of Jefferson'a quote, some of the points he makes suport the need for a patent system. Ideas can't be contained, once they are given to the public, anyone can use them without decreasing others' uses.

However, ideas are not FREE to begin with. Integrated circuits do not just pop into someone's head, they take much work and development and testing and the whole process is kind of expensive. Without the potential of recouping some of the investment in this endeavor, who would undertake it?

Lawyers are all evil bastards

[euphline]

I'm curious how many of these settlements happen between lawyers while playing golf and charging the client $300/hr.

most corporate techies I know work in cramped cubicles while most corporate lawyers (the real ones not the aides and assistants) I know have large offices swimming in mahogony and plush leather chairs.

Welcome to the market economy.

Oh, and while you continue blaming lawyers... remember... if juries [your piers] were 100% consistent... trial would be a good option. And if companies didn't pay lawyers... they wouldn't "open source".

-jbn

Re:Lawyers are all evil bastards

[ichimunki]

Market economy? Lawyers are a guild whose practice it is illegal to perform without joining the guild. That's an artificially restricted supply, hence not a free market. Try again.

Re:Lawyers are all evil bastards

[RazzleFrog]

The Supreme Court in 1996 actually reduced the power of juries fairly significantly in patent lawsuits by saying that ""Judges, not juries, are better suited to find the acquired meaning of patent terms"

Basically judges interprets the patent and the jury nods their head. So don't always blame my peers.

Re:Lawyers are all evil bastards

[Anonymous Coward]

The case you're talking about, which was responsible for the creation of Markman hearings, has probably saved society billions by now.

Most lawsuits end after the Markman hearing, in which the definitions of the words used in the claims of the patent(s) are decided by a judge. Juries are still responsible for deciding the facts in the case, Markman hearings merely ensure that someone with legal training interprets the claims, which are not unlike a legal contract in that they contain legal terminology, syntax, etc. -- would it be fair to expect a jury to interpret the claims as such?

Re:Lawyers are all evil bastards

[tapiwa]

hear hear. Another guild in the same vein are the accountants.

While they restrict supply, the law (at least here in the UK and most of Africa) decrees that a limited company *SHALL* employ the services of a qualified accountant to audit its books.

... and before you go on about how this is done to safeguard the interests of investors, think ENRON!

Re:Lawyers are all evil bastards

[grahamm]

It is done to safeguard the investors. What the Enron case brings into question was whether the accountants (regardless of their degrees, licences and membership of the appropriate professional bodies) performing the audit were sufficiently qualified to do so.

Re:Lawyers are all evil bastards

[Anonymous Coward]

samething as P.Eng or doctors or actors etc.

Re:Lawyers are all evil bastards

[Malcontent]

You know the moderation system is out of whach when a nonsensical post like this gets modded up to 5.

In what way is the supply of lawyers artificially restricted. Are the numbers of lawyers growing? Is there some society that determines how many lawyers each town has? Is there racial or gender discrimination? Who restricts the number of laywers and how? Go ahead and back up your ridiculus assertion.

Perhaps while you were wallowing in your ignarance you confused passing the bar exam as some sort of a restriction. If this is so please tell us how this is different from doctors, professional engineers, electricians, plumbers hell even MCSEs.

I await your answers.

Re:Lawyers are all evil bastards

[ichimunki]

If you're going to accuse me of "wallowing in ... ignarance [sic]" at least learn to spell "ignorance", okay? Ad hominem attacks always work better when the attacker doesn't open himself or herself to the same or similar attacks.

If this is so please tell us how this is different from doctors, professional engineers, electricians, plumbers hell even MCSEs.

I never said it was different. Can you even read? At this point you have failed to meet my minimum requirements for continuing this discussion.

Re:Lawyers are all evil bastards

[Malcontent]

Hey fuckhead just answer these questions.

Who limits the number of lawyers? What is the maximum number of laywers that the US can have and how is that number distributed amongst the different cities and states.

Just because I spelled a word wrong that does not mean you are not an ignorant fuck who thinks there is a cap on the number of lawyers.

Re:Lawyers are all evil bastards

[ichimunki]

Whatever your problem is, don't take it out on me. You're just plain abusive and I refuse to discuss lawyers or economics with you further. Call my argument nonsense all you want, but quit insulting *me*. At least I can spell.

Re:Lawyers are all evil bastards

[Anonymous Coward]

at least learn to spell

Yes that's right attack someone's spelling, always a good move when you are clearly unable to respond to the substantive questions they raise.

Ad hominem attacks always work better when the attacker doesn't open himself or herself to the same or similar attacks.

Yes, but it isn't an ad hominem attack, merely to point out that someone is wrong. The fact is you are wrong, simple. That's the reason you are unable to answer any of the questions he posed. Your attack on lawyers as some sort of guild just echos popular (and ignorant) prejudices against that particular profession, a prejudice which ironically (or is it hypocritcally) seems to be strongest wherever the population is the most litigious. In this regard you are literally, wallowing in ignorance.

Re:Lawyers are all evil bastards

[Malcontent]

Quit your whining and answer the fucking question you stupid fuck.

What is the maximum number of lawyers the united states can have, how is that number distributed amongst the various cities and states, and who enforces these numbers.

This was your idiot assertion not mine. I just want you to clarify your point. You refuse to and complain about my spelling and my abusiveness.

You made a moronic nonsensical post now explain yourself or at least admit that you were full of shit when you made some insane accusation that there was an artificial scarcity of lawyers.

Re:Lawyers are all evil bastards

[Trepidity]

The bar exam is an artificial restriction on a free market economy. In a free economy anyone could practice as a lawyer, and the poor ones would not be able to charge as high rates. You could still have a bar exam, similar to an MCSE certification as you point out, and lawyers with bar certification could charge higher based on that. The problem is with legally prohibiting people not so licensed from practicing law - that's an artificial restriction and not letting the market do its job.

Re:Lawyers are all evil bastards

[ichimunki]

No.

Re:Lawyers are all evil bastards

[ichimunki]

I believe telling someone that they are "wallowing in ignorance" is an ad hominem attack. It is substantially unrelated to the truth or validity of the assertion at hand. It is strictly an attack on the person making the assertion, therefore "ad hominem". After all, that is what "ad hominem" means: "to the man". Whether or not I am "wallowing in ignorance" is wholly unrelated to my views on what constitutes an artificially restricted supply in a market.

I believe it is best if you are going to be insulting in tone and accuse others of "ignorance" that one must be certain that one does not make similarly stupid mistakes, like not being able to spell "ignorance". Frankly, I don't think I have any reason to respond to someone who is insulting me.

In fact, the poster of that message, "malcontent" appears to have no real desire to discuss the issue like a civilized person. He or she seems to be more interested in vitriol and argument. Frankly, I don't give a flying fuck what such a person thinks of my statements. They have no reason to treat me poorly even if I am wrong (which I am not, this is a matter of opinion and persuavive discourse, not fact finding), and it is my right to refuse to converse further. I owe this person nothing, not an explanation for my refusal to discuss the matter further (which I did give) nor background on why I hold the opinion that I do (which I am not going to bother with).

By the way, I did not make an "attack on lawyers as some sort of guild". I simply stated that it *is* a guild. Which it is. They call the process of joining the guild "passing the bar". And my assertion was hardly an attack on lawyers. As others have stated, the supply is restricted for a reason: to protect consumers from bad lawyering. If just anyone could call themself a lawyer, we'd be awash in lawyers who knew nothing about the law. The guild itself recognizes that they are in a position where not all who need the services of lawyers may have access due to the fees associated. This is why most state Bars require or strongly encourage pro bono work, and why most law degree programs require it before graduation.

And now to wrap up this, my 1,111th and final post to Slashdot (fitting that it should be to an AC, since I stopped responding to AC's a long time ago normally): I'm tired of this shit. Maybe I'm dead wrong. Fine. You're hardly going to convince me otherwise with this antisocial bullshit. So here's me wallowing in ignorance (mmmm, bliss!): Fuck you.

Re:Lawyers are all evil bastards

[nerdlyone]

The damage from what you suggest (letting incompetent lawyers practice and just cleaning up the mess later) would create more problems than it solves. Do you think the market works fine by itself in all cases? Are you for lazaisse faire (sp?) capitalism? The market does not work perfectly. Intervention is frequently required. Artificial market restriction does not mean less freedom. Totally free market does not mean more freedom. Bargaining power is seldom equal. And the market still does its job fine with the "restriction" of the bar exam. Which is not a bad restriction anyway, since it is performance based and not based on income or gender or any other irrelevant factor. I can't believe this, people are always complaining about how awful lawyers are, but now we are arguing that we need more of them and lower quality ones at that! By all means, please remove any potential barrier to becoming a lawyer. That will improve them.

Its all plain stupid

[haplo21112]

The PTO really needs to stop granting patents on common sense ideas...
The whole on click thing, common sense, its patent that should never have been granted.

Downloading music samples, makes sense to deliver samples of songs to users, it would seem as connections got faster, that this would begin to happen more and more. Common sense...

Don't even get me started on the BT thing...again it makes sense that users would need to get from point A to Point B on a computer its a dumb patent.

Re:Its all plain stupid

[pizen]

Sorry, but I hold the patent on Common Sense. If you would like to use Common Sense you are going to have to pay me a licensing fee. The USPTO has failed to pay this fee.

Re:Its all plain stupid

[Anonymous Coward]

You are so friggin right. You would not believe the number of things that have been patented that are just plain ole common sense. Just the other day i found out that some damn fool patent examiner had granted a patent on the LIGHT BULB. Fer Cryin out loud! It's as plain as the nose on your face that a tungsten filament will glow brightly without burning in an atmosphere free from oxidents. And they graned some poser a patent on that! I mean Sheesh! thats just simple physics!

Software patents

[alcibiades]

There are some problems with the way patents are examined in the US, but the fact is that US patents are of higher quality (and hence more valuable) than patents anywhere else in the world. This is due in large part to the effectiveness of the examination system.

Software patents are not examined as effectively as other types of patents, e.g., for hardware or mechanical devices, in large part because of the natural language problem; when I claim software, I am claiming an algorithm that can be described in hundreds of different ways in English, even though to one of ordinary skill in the art all of those descriptions would mean the same thing. Add to that the fact that the technology is developing so quickly that nobody in the industry is aware of all the latest developments, and you have a serious information distribution problem -- examiners don't have access to the prior art.

The answer is not to overthrow a system that has helped to make the US a global leader in technology development. In fact, few, if any, changes need to be made to the system at all. As the software industry develops, the fundamental concepts that form the basis for technology in the industry will become better and more widely understood, and fewer "obvious" patents (like the "one click" patent) will issue. In the mean time, we have to look carefully at what is being claimed in these patents to see how the industry develops a legal description for its fundamental concepts.

Software patents in the end will protect small companies that come up with "killer apps" rather than allowing large companies to perpetuate monopolies that are founded on their dominating share of the market. The patent system has done this again and again in other fields, and software will be no different.

Re:Software patents

[CrazyDuke]

...except for the individual programmers and small companies that can't afford to pay the $20,000+ per patent.

I have some ideas for inventions myself. But, since I can't patent them, I'm not even willing to test them, or try to get a investor to help with the patent, because some big corp would probably patent it out from under me if it had any real value; And then it sue me into the ground because I can't afford any kind of legal despute if I tried to make my own invention.

God bless America, Land of the Free (Corporations)

Re:Software patents

[Anonymous Coward]

Rubbish. The american patent system is and always has been one of the worst in the world - First to Invent? Don't make me laugh. First to file is far fairer.

Re:Software patents

[Sabriel]

Software patents in the end will protect small companies that come up with "killer apps" rather than allowing large companies to perpetuate monopolies that are founded on their dominating share of the market. The patent system has done this again and again in other fields, and software will be no different.

Ah, but it IS different. Software fundamentally consists of executable ideas, operable via any general purpose computational device - including the human brain. Any algorithm that we can comprehend is an algorithm we can perform ourselves, no external technology required, no matter that we may be slow or make mistakes.

Essentially, the ability to patent software is the ability to patent thought. Combined with the ability to patent genes... either is more than a dangerous path to take; both is sheer folly born of total greed. Don't think nobody in power would ever exploit their position to abuse it - Pol Pot, Adolf Hitler, Mao Zedong, Joseph Stalin, Saddam Hussein, Osama Bin Laden, Josef Mengele. Have I named enough people, or should I continue?

Re:Software patents

[alcibiades]

You can always represent yourself -- not an easy way to go, but cheap.

Also, the PTO halves their fees for small entities.

Re:Software patents

[Bobzibub]

1) I have never heard anyone seriously imply that the US examination system is effective before. Even if it is better than say, Uzbekistan's. Does this mean it is "good"?
2) I have never seen any proof that software patents have helped the US grow a successful software industry. Individual companies (and both side's lawyers) at the expense of other companies but not necessarily the industry as a whole. Remember there are significant transaction costs involved.
3) I do not see any reason how development of the software industry will cease idiotic patents. Not when there is easy money to be made.
4) While in theory, a patent can defend a small company's ideas, in practice this idea is suspect. I do not understand how a small company will be protected against large companies with significant ly more funds for legal defense. Killer app or not. Microsoft can win against the DOJ because of their legal resources; how can one expect joe-coder company's patent to be upheld against Microsoft?

Please enlighten me.

Cheers,
-B

Re:Software patents

[Anonymous Coward]

You can always just use your invention publically and rest assured that even if a big bad corporate did get a patent for your idea, it would be invalid for prior use/art.

Sorry to point out the blindingly obvious.

(also, why not file a patent yourself? There are plenty of help-guides around and even though the enforcability might not be ideal, it would probably be granted in some useful form)

It's not just software patents

[john@iastate.edu]

The other day I bought a can of silicone lubricant which claimed a patent for the `novel' idea of putting the MSDS on the back of the label.

D'oh!

Re:It's not just software patents

[good-n-nappy]

I bought an Anne Klein watch for my wife for Valentine's Day and there was a clearly marked patent on the box. The patent wasn't for anything related to the watch but for a little drawer in the bottom of the box that held the instruction manual. Tee Hee. I'm sure that will put all the other watchmakers right out of business.

The main problem with software patent

[Nicolas MONNET]

Setting aside problems of obviousness, the difficulty of evaluating it, the problem of prior art etc.

It costs lots of money to mass-produce a technically advanced enough device that would infringe on a significant patent. This means that, if you are faced with a patent infrigement suit, you are most likely already spending a lot of money to produce/design the device, so defending yourself will only be a small part of the total cost of the thing.

Software patents now ... just ANY programmer could infringe on patents. That means that an 18 year old student could be found infringing a patent, for something he's not even making money on, and then he could not even afford a lawyer to defend himself!

And it's virtually IMPOSSIBLE to avoid infriging on patents: not only are there too many of those patents, but they're written in a completely hermetic language that only specialists comprehend. To top it off, not every programmer understands english well enough to begin with.

That's why software patents are dangerous and freak the shit out of free software developers: it's like running in a landmine-ridden field. Nobody has step on one yet, but it's bound to happen.

Goes to show, you can't be too cynical

[Rogerborg]

• That Amazon ended up licensing the InTouch patent just shows how stupid the whole thing is

Which demonstrates the clarity of corporate thinking in contrast to our muddy old fashioned notions of "right" and "wrong". From my experiences of talking to my employer's legal department, here's how corporates involved in litigation think:

• How much will I have to pay if I choose to to win this suit?
• How much will I have to pay if I don't choose to win this suit?

That's it. That's the only consideration. If the cost of paying lawyers to win the case is more than the cost of paying the litigant, it won't be fought, and no precedent will be set. Right and wrong is irrelevant. Note that in a case where both parties have limited access to resources, it really is the ability and willingness to spend that decides the verdict. When one party runs out of money or blinks, the case is settled.

A step towards helping this would be if the courts took an example from (e.g.) English courts, where it's much more usual for the loser to pay both sides' legal costs. This generally requires a countersuit in the US, except in a few well defined cases, like when you can prove breach of registered copyright (yes, that's right, if someone steals your unregistered copyrighted work, you have to pay to prove they did it, then all that happens is that a court tells them to stop [and if they don't, you have to bring another suit]. You don't typically get a sizable award, not even your legal costs).

Second, courts could stop awarding randomly huge amounts of damages to successful litigants. As with unregistered copyright, they could simply say "Stop it" to the losing party, and let both sides pay their lawyers and weep over how stupid they were to let it get to court in the first place. There's an argument that punishing the transgressor is necessary to make an example, but we have swung too far, to the point where people are using the courts as a primary means of income (not just at a corporate level over patents and IP, some people make a good living through personal injury suits)

Third (an important adjuct) we could trim the crap out of our legal system and translate it from Lawyerese. It's no coincidence that about 50% of both Senate and Congress are members of the American Bar Association. Separation of powers my ass, US law is written by lawyers for lawyers. What we need is a system where neither defendant or litigant needs a lawyer, and a streamlined process that forces both parties to stick to the primary evidence by giving a fixed amount of time to present whatever evidence and arguments they want (without interruption), then a fixed time to rebutt their opponents. This often happens in an ad hoc fashion in lower courts dealing with minor issues, but there is no reason why it shouldn't apply at all levels of civil litigation which considers "balance of probability" rather than "beyond all resonable doubt". If you can't make your case in two hours (without interruption), you can't make it at all and are just stalling to bleed your opponent and to inflate the perceived important of your arguments relative to his.

Whew. There we are. I firmly believe that patents aren't the problem. Sure, it's farcical that the USPTO is funded through granting patents, but I don't believe that's the real problem. The problem is that it costs a lot of money to defend a patent suit, and we give ludicruous awards to the winner based on theoretical damages. Chances are that the defendant has more to lose and will blink first and settle. As we've seen again and again, we now have a new breed of company that exists solely to file speculative patents, sit tight until someone else implements them, then sue on the basis that they could have made X amount of money if they'd bothered to implement their own idea.

Simple enough answer: you didn't implement the idea, you don't get damages. You can stop people from using your idea, and you can negotiate to license or sell it, but what you can't do is negotiate using the threat of an insanely huge lawsuit. If you want to stop OmniMegaCorp from using your idea, find a pro bono lawyer, sue, win, get your legal costs awarded, and let them come to you offering to pay you a fair amount. If the implementor thinks they've got prior art, they have less to lose by fighting it to the end, and having your patent invalidated. We really do need to encourage both sides to see a case through to the end by lowering the risks, and I'd be willing to put tax dollars into the courts to make that happen, because I know that every time a company buckles under and agrees to license an idiotic patent, those costs will eventually be passed on to me.

Does that sound insane?

Re:Goes to show, you can't be too cynical

[ajakk]

A step towards helping this would be if the courts took an example from (e.g.) English courts, where it's much more usual for the loser to pay both sides' legal costs.

After starting off with a good explanation of why people settle, you offer a solution which just makes it worse. If the loser has to pay the other's attorney's fees, then people will settle even sooner because the amount of money they could lose is significantly higher. Example: lets say that example company R sues other company I for patent infringement. R sues I for $10 million dollars. I knows that the patent is silly. If they fight the patent, they will have to spend $2 million for lawyers (as will their opponents). Now if I wins, they will lose nothing, but if they lose the case, they will have to pay $14 million ($10mil judgement + 2 mil. lawyers + 2 mil. other lawyers). This sort of distribution of costs makes it harder for companies to know how much a lawsuit will cost, and most companies being risk adverse, they will settle to avoid the lawsuit. Simple enough answer: you didn't implement the idea, you don't get damages. You can stop people from using your idea, and you can negotiate to license or sell it, but what you can't do is negotiate using the threat of an insanely huge lawsuit.

Mostly I agree with this. What happens if you were working on implementing an idea, but someone else comes out and uses your patent, and they destroy your market. Ie. you have a patent on a widget. Joe Bob reads your patent and starts selling the widgets, and everyone who wants a widget has already bought one. Now you sue Joe Bob, and he can't sell them any more. What are you going to do with your $30 million dollar widget factory?

Re:Goes to show, you can't be too cynical

[Jahf]

In my mind, the system that would work best is:

a) Plaintiff wins, legal fees covered by individual parties since the Plaintiff was shown to be "in the right".

b) Defendendant wins, all legal fees are covered by the plaintiff since they were responsible for bringing the suit to court and wasting everyone's time and money.

That way the defendant, who did not call the court to action, never has to pay for the often exorbitant plaintiff's legal fees. Additionally, plaintiffs have an incentive to only bring to trial issues that they are "in the right" on.

We'd still have problems, but far fewer lawsuits would be brought on just to threaten someone into submission.

Re:Goes to show, you can't be too cynical

[Rogerborg]

• If the loser has to pay the other's attorney's fees, then people will settle even sooner because the amount of money they could lose is significantly higher

Unless they think they'll win. This article is about a company buckling even though they had prior art. If they've presented that to the litigants, and the litigants have gone ahead anyway, then the suit is essentially frivilous, and the litigants really should be punished as much as possible for bringing it.

Remember, we're talking about predatory misuse of patents here, where usually the defendant can show prior art if they think it's worth sticking out to the bitter end. Shortening the case right down would help with that.

Incidentally, I didn't make it clear that it's not court time that matters, it's case time. If the court hears arguments for four hours, then adjourns for two weeks to let both parties prepare two hour rebuttals, that's only eight hours of court time, but it tends to add four full weeks of billable lawyer time for the parties. So cram it into one day. If you don't prepare enough to rebutt on the spot, tough. A civil case is "balance of probabilities", remember, it's not the all-or-nothing of a criminal case. If you're clearly in the right, you should be able to show that quickly and without being tied up in side issues or having to go away and come up some clever legalese to torpedo your opponent's arguments.

• What happens if you were working on implementing an idea, but someone else comes out and uses your patent, and they destroy your market. Ie. you have a patent on a widget. Joe Bob reads your patent and starts selling the widgets, and everyone who wants a widget has already bought one. Now you sue Joe Bob, and he can't sell them any more. What are you going to do with your $30 million dollar widget factory?

Supply the market that Joe Bob has kindly created for you. He's actually done you a favour. Pay him money for access to his client base. Alternatively, license Joe Bob to continue supplying the market (he's invested to do so, and will be eager to settle now). I'm absolutely not in favour of using patents to kill ideas, just that if you're not using your patent, you shouldn't be able to be awarded damages as though you have been.

Re:Goes to show, you can't be too cynical

[Animats]

Sure, it's farcical that the USPTO is funded through granting patents....

That's a good point. Maybe the issue fee ($1280) should be folded into the filing fee ($740).

Re:Goes to show, you can't be too cynical

[Anonymous Coward]

>> Joe Bob reads your patent and starts selling the widgets, and everyone who wants a widget has already bought one. Now you sue Joe Bob, and he can't sell them any more. What are you going to do with your $30 million dollar widget factory?

> Supply the market that Joe Bob has kindly created for you. He's actually done you a favour. Pay him money for access to his client base. Alternatively, license Joe Bob to continue supplying the market (he's invested to do so, and will be eager to settle now).

?? But, according to the parent post, the market's now saturated - everyone who's bought a widget has one. So, there isn't the same market as when you built that $30M factory, and it will take *much* longer to recoup that investment. Can you stay in business paying off the debt on that factory with a much-less rate of return? Joe Bob can't help in this case.

Re:Goes to show, you can't be too cynical

[|<amikaze]

Yes, this sounds like a good plan, except this: what if it's a little guy who is saying that a big guy stole their technology? Say, Microsoft takes my GPL'd software, and integrates it into the next version of Windows. There is no way that I have the money to try to fight this in court, but even if I do win, I still lose because of the debt I get myself in.

Re:Goes to show, you can't be too cynical

[sholden]

Sure, it's farcical that the USPTO is funded through granting patents....

That's a good point. Maybe the issue fee ($1280) should be folded into the filing fee ($740).

Or even change the issue fee into a rejection fee. If the examiners find the patent application isn't valid, then the applicant should have (since you are meant to do this before filing for a patent) so charging them for the research time seems reasonable.

Re:Goes to show, you can't be too cynical

[nerdlyone]

Third (an important adjuct) we could trim the crap out of our legal system and translate it from Lawyerese. It's no coincidence that about 50% of both Senate and Congress are members of the American Bar Association. Separation of powers my ass, US law is written by lawyers for lawyers. What we need is a system where neither defendant or litigant needs a lawyer, and a streamlined process that forces both parties to stick to the primary evidence by giving a fixed amount of time to present whatever evidence and arguments they want (without interruption), then a fixed time to rebutt their opponents. This often happens in an ad hoc fashion in lower courts dealing with minor issues, but there is no reason why it shouldn't apply at all levels of civil litigation

I think you are oversimplifying a bit. You are basically questioning the entire practice of starre decisis, which means we use previous cases as precedent. Those "rules" are what make litigation less of a roll-the-dice outcome and provide much needed certainty to litigation and to our law in general. People can look at what happened the last time this issue came up, and they will have an idea what the court is likely to say this time, or at least what it will consider when making its decision. The fact that you can look to precedence is what you seem to be complaining about, since that is what makes litigation so complicated--all the potential sources of precedent and authority. I am not trying to misconstrue or mischaracterise you, so if I have it was not intentional.

Yes, our current way of doing law makes the process more complicated and expensive, but it also vastly improves the accuracy of the results of litigation. The common law, the basis of most civil litigation and out of which commercial codes came, arose over time, with improvements made as problems were identified. Some fairly smart people had a hand in making the system. It is complex and cumbersome and perhaps hard for some people to understand (all that "lawyerese"), but it gives better results than the "OK you get your say then he gets his then I decide who wins before dinner" approach which you suggest.

You make an important point when you say that lower courts already use your suggested method to determine less important issues. It is limited to lower courts on non-issues because it is too inaccurate to use on anything important. Yet you suggest we should base our entire legal system on a set of rules which every American can understand (assuming I take your, "What we need is a system where neither defendant or litigant needs a lawyer," comment correctly). Such a system could not effectively determine the disposition of billions of dollars of assets. Well, it could DO it, it just wouldn't do a very good job. I believe people would be very unhappy with the outcome.

Motives

[Anonymous Coward]

I think this theopd guy is the same guy who was mad he didn't win the 1-click bounty!

Who gets to define *common sense ideas* ?

[ip_vjl]

You can't say that the patent office shouldn't grant patents on common sense ideas. The only way a patent examiner can show that something was *common* is by finding relevant prior art. If the idea has existed, THEN the examiner can deem it as common sense because somebody talked/wrote about it before.

A patent examiner doesn't have the luxury of just saying, "oh, well this is obvious." If it was so obvious, then why is there NO prior art mentioning it in the past?

Let's face it, as computer geeks, we think just about any computer idea is obvious because it all builds from prior knowledge. But to the patent office, they can't be so subjective. They need to guage the public's knowledge NOT by what they THINK the public knows ... but by what the public has shown it knows through prior art references.

If something is truly common knowledge, then some reference to it must exist somewhere. That's the problem that places like IP.com are trying to solve. Make prior art more easily visible to examiners to prevent these "bad" patents from issuing.

- vin

Re:Who gets to define *common sense ideas* ?

[Catiline]

They need to guage the public's knowledge NOT by what they THINK the public knows ... but by what the public has shown it knows through prior art references.

I feel really bad smashing your beautiful argument to little bits, but you made a critical error. The "common sense" in question isn't of Joe Public, but of specialists. I don't have to be a nuclear physicist, but I expect that if one came up with a brilliant new idea- say, cold fusion- and it worked, that they could go to the patent office and get a patent. OTOH, I don't want folks going and getting a patent on (for example) putting your socks on before your shoes.

The problem here is that the PTO has delegated the lion's share of research into prior art to the applicant. How many people do you think, under that system, would do research? Either the PTO has to do independent research, or would also have to say "We will invalidate any patent granted if we are notified of prior art, no matter how minor, relevant to your patent that was not mentioned in the application."

Prior art intentionally buried?

[r2ravens]

From the article:
" ...anyone smart enough to figure out how to find the prior art will know enough about the industry to go straight to the players -- law firms, companies -- and sell the prior art directly, cutting out the BountyQuest middlemen."

So, let me see if I understand this. It is possible that if one discovers prior art, one could contact law firms and companies directly to sell this knowledge? One might even contact the company which is the patent-holder in question to see what it would be worth to keep this information a secret, or sell the information to the patent-holder themselves so that they may bury it.

This sounds like quite the little cottage industry and much like the many designs for 100+ mpg carburetors which have been purchased by the car companies and shelved.

I know that it is possible that some other person may find information regarding the same prior art, but the gamble might be worth it from the companies perspective based on how many or how few people might be looking at a particular patent and the value of that patent.

It wouldn't surprise me that this is taking place. Another possible example of capitalism at it's finest.

I guess greed may still rule...

Re:Prior art intentionally buried?

[bmajik]

Do you have any non-men-in-black links to back up the "100 mpg" carburetor ?

a) fuel injection has been more fuel efficient than carburettion since like, 1980

b) many vehicles are hit with a gas-guzzler tax because they dont meet some fuel efficiency standard. that cost is directly passed to consumers, meaning a higher price point for a given car, meaning less attractiveness compared to some other vehicle which is more fuel efficient

c) things like CAFE and other clean air / efficient fuel laws penalize automakers that dont meet draconian fuel efficiency standards.

in other words, fuel efficiency is a _major_ cost issue for car makers. the prices of the cars go up if they aren't fuel efficient, and the carmakers actually get fines if they dont ship cars in a certain range of efficiencies... to the extent that some foreign cars will never come to us shores because of the pentaly imposed..

for example, BMW just designed and built a brand new engine factory because they figured out how to get approx 15% fuel economy improvement. This is a major leap forward in engine design. All future BMW engines will incorporate this technology (valvetronic)

So, tell me who's sitting on a 100mpg _carburettor_ that actually works, and is a relevant choice for application in a US motor vehicle ? Because i'd be curious to see what mathematics comes up with a scenario where sitting on it is better than putting it in a car...

Re:Prior art intentionally buried?

[cascadingstylesheet]

Another possible example of capitalism at it's finest.

No. Patents are government granted monopolies. They only exist because of government.

Re:Prior art intentionally buried?

[Anonymous Coward]

I don't proclaim to be an expert, but... the cars I see with fuel efficiency are the focus and the matrix and other ugly little beasts. When I was at the car show recently I was amazed at the poor gas mileage on so many of the cars. On ALL of those SUVs. It amazed me that they can still produce a car with 13mpg efficiency and are still allowed to sell it. You can cite all these regulations on the auto industry in respect to fuel efficiency, but I see it as an area where big corporations have clearly bought themselves out of real regulation. I can't say I even know enough about it to act like I have the perfect solution. I do, however, think that a reduction in reliance on oil is now an important part of our national security.

Re:Prior art intentionally buried?

[bmajik]

SUV's are classified as trucks, and as such have lax emissions and fuel economy restrictions.

It is very unfortunate that they are so popular, because they tear up the roads, are wasteful of essentially every resource, and do nothing especially well (except kill other drivers, while tyipcally saving the brick-headed morons that buy them)

I've said it before and I'll say it again. We'll rely less on oil when its cheaper to do something else. Oil companies aren't stupid and have been working on synthetic and alternate fuels for decades. Auto makers are doing similar work - BMW has been making prototype hydrogen powered 7 series cars for 3 generations of that line (nearly 20 years).

Don't think of SUV's as cars. Think of them as signs of obesity and idiocy.

Most modern _cars_ get pretty good as mileage. Most japanese 4 bangers are > 30 mpg for highway driving. The latest corvette has a 50% overdrive 6th gear that lets it coast on the highway getting nearly 27mpg - for a car that has a 4 second 0-60 time (unheard of for any car under 6 figures).

Most "work" trucks are also reasonably fuel efficient because of how they are driven. They have poor mileages because they have large displacements to generate the torque required for the work they do. Diesel truck have it even better, since Diesel is about 11% more fuel efficient than gasoline.

So, generally the auto industry has made great leaps and bounds in complying with increasing fuel efficiency requirements while still meeting the demands and expectations of consumers.

Incidnetally, all the cars that suffer from gas guzzler tax are usually high performance vehicles, not cars made by lazy companies. The new BMW M3 has one of the most efficient motors ever produced - 333 horsepower from 3.2 liters, thats greater than 100 horsepower per liter, all with normal aspiration. Even so, the M3 is hit with the gas guzzler tax because at 8000 rpm (its redline) its going through quite a bit of fuel.

Essentially these regulations are putting performance car makers in a bind. The cost of a performance car is passed onto the consumer.

Meanwhile, SUV's are classed as trucks and have utterly abysmal fuel economy. They damage more people, more roads, and more property than other types of vehicles. It is statistically and intuitively obvious that letting soccer moms drive 5000 pound vehilcles with silver-dollar sized brakes in stop on go traffic in a 20 minute commute is a huge problem. If you want real reform for fuel efficiency, roadway saftey, etc, then i suggest requiring SUV's to be treated like trucks in terms of vehicle and drivers licensing is a great idea. Driver education in the united states is pitifully inadequate and putting heavier, less stable, less performant, and less economical vehicles in the hands of the blindfolded masses has borne out to be a bad idea again and again. Requiring people to get different licenses based on weight class of vehicle might be a good start.

Re:Prior art intentionally buried?

[nerdlyone]

. It is possible that if one discovers prior art, one could contact law firms and companies directly to sell this knowledge? One might even contact the company which is the patent-holder in question to see what it would be worth to keep this information a secret, or sell the information to the patent-holder themselves so that they may bury it.

I am not certain, but there may be laws against part of what you mentioned, namely a company holding information which they know is relevant to their patent and could knock it out. Inventors have a continuing duty of disclosure that I believe would prevent a company from "buying" prior art to keep it secret. inventors must disclose to the PTO any references that are material to the examination of their patent. I am not sure but I think this duty extends beyond issuance.

Buying such art with an intent to suppress it would basically be an admission that they knew it was material evidence, and they would therefore have a duty to tell the PTO about it.

Prior art is only part of the solution.

[MongooseCN]

You also have to have the time and money to defend your prior art in court. Say you invented and patented an algorithm for some form of super video compression years ago. Now if Microsoft decided today to use that algorithm in their product, would you try to take MS to court? Do you think your average programmer is going to have the time and money to defend his patent against a large corporations armada of lawyers hired specifically for the purpose of creating and defending patents? No, just finding prior art doesn't mean anything if you can't defend it.

Re:Prior art is only part of the solution.

[nerdlyone]

Now if Microsoft decided today to use that algorithm in their product, would you try to take MS to court?

YES! If you have a valid patent claim which they infringe, yes you take them to court. Or (more likely) you license it to them, because it will be cheaper for them to just pay you a license than to fight to invlaidate your patent. Unless it is a killer app. And then, you as the real inventor of a killer app that MS wants to use, have GREAT incentive to press on. Big corps lose in court. The court system isn't quite as broken as you suggest. If you have a valid claim which they legitimately infringe, I'd say you have a good shot at getting a judge or jury to agree.

Sig recursion

[MarkusQ]

Just you're average nitpicker.

Uh, shouldn't that be "Just your average nitpicker."?

-- MarkusQ

Re:Sig recursion

[Anonymous Coward]

Uh, shouldn't that be "Just your average nitpicker."?

Uh, shouldn't there be a comma after "be" in your sentence?

Let's keep it going! ;)

Re:Sig recursion

[Anonymous Coward]

Uh, shouldn't that be "Just your average nitpicker."?

Uh, shouldn't there be a comma after "be" in your sentence?

Nope. Consider: you wouldn't write "Shouldn't that be, a leather mouse pad?" or "Shouldn't that be, free (as in love)?", etc., would you?

You don't place a comma between the verb and its direct object. Having a quotation as the direct object doesn't change anything.

-- MarkusQ

Re:Sig recursion

[Anonymous Coward]

You do place commas before reciting a quotation. You generally do not start a sentence with Uh. I guess ignoring both of these rules makes you Uber-cool or whatever it is you geeks say these days.

The Purpose of Patents

[TomRC]

The only purpose for existence of the patent system is to encourage the invention of novel inventions and methods and publish them to make them available for the use of the nation.

Ask yourself: was there a lack of innovation before software became patentable? Has innovation in software increased since software became patentable?

Are software inventions more or less available for use once they are patented?

Corporate patent lawyers actually DISCOURAGE engineers from seeking solutions to technical problems in the patent system - it would open the corporation up for patent law suits. It's much safer to re-invent the wheel.

That sounds like a great idea.

[Shoden]

I think I'll patent it :)

Modded down...

[Futurepower(tm)]

Interesting.

And I got modded down for mentioning it. *grin*

Hurt to developing economies

[pubjames]

The way patents are used these days is unfair and is really going to hurt developing economies.

I wonder if Japan's economic revolution, which started because it began copying electronics devices from the West and did them more cheaply, then better, I wonder if that could today? They would probably get hit by loads of patent infringement claims, which they wouldn't have been able to afford to fight.

Lets take India, for instance. Lots and lots of very cheap programmers. Don't like paying hundreds of dollars for your XYZ software? You don't have to any more, the Indians have a package just as good for a tenth of the price... It could happen, just liked it happened with Asian countries and consumer electronics and cars.

Some of you may think, well in that case software patents are good because they protect American businesses. However, if the ecomonies of developing countries improve, we are all better off for it. The people in those countries are more wealthy, which is better for them, and it's better for us because they have money to buy our stuff. Essentially, patents are blocking the efficient working of the free economy, which of course is a cornerstone to the American Way. So, to use currently popular rhetoric, software patents are anti-America.

Re:Hurt to developing economies

[Lonath]

They're not going to allow software patents. The rest of the world just flat out won't respect patents and they will continue to make new software and only the 5 percent of the world's population in the US will get dragged down by them. Think about the long term implications of this:

You can write any software you want for 95 percent of the world's population (a vastly untapped market) or you can run through a minefield of regulations to write software for the 5 percent of the world with a very mature market. I see the rest of the world opting out of the US IP system.

Re:Hurt to developing economies

[Anonymous Coward]

a couple of points to think about...

- Most countries have domestic law which allows for compulsory licenses of patents if a patentee refuses to grant a license on reasonable terms.

- A US patent has no effect in any country outside the US (from an infringement point of view). Most software patents are granted in teh US and are therefore irrelevant to developing countries with domestically focussed software industries. Exporting is a different matter, but the US is not the only market for software.

- Any inventor in any country can apply for a patent in any other Convention or Patent Treaty country. There is no bias against any developing country. In fact, there are reductions in official fees applied to certain countries when filing Patent Cooperation Treaty Applications.

In my view, The reality is more complicated and not as damaging as most people think.

Too many ENRON clones out there

[Anonymous Coward]

Forget about cloning cats, the ethics and morals of the ENRON CEOs have been cloned to the hilt in America INC. Bezos is just another example.
Microsoft is the worst offender:
http://www.billparish.com

Unfortunately, the Microsot/DOJ case has proven that justice goes to the highest bidder and 'right' is the providence of the deepest pockets.

If you settle lawsuits, the terrorists win

[Codex The Sloth]

Settling bullshit lawsuits is kind of like paying terrorists. Once they know you'll pay, the bloods in the water and all the sharks will be after you.

What About GPL Software?

[Anonymous Coward]

I was just wondering, has the situation with software patents affected any GPL projects? Do the developers of GPL projects have to consider patent infringement issues when they design their software, or are they protected by their non commercial status? Are there any examples of GPL developers being affected by patents?

I know I may be asking the obvious, but there have been enough wierd patents in the news that I'm willing to question almost anything.

(sorry about the AC, I'm too lazy to register, and I don't do cookies)

Re:What About GPL Software?

[MisterBlister]

GPL software is just as liable when infringing a patent as any other software. The fact that it is 'Free' and/or 'non-commercial' doesn't help one bit.

soon we'll all be dead and it won't matter

[Anonymous Coward]

as long as you don't go to hell, you won't have to be around lawyers

100mpg (was Re:Prior art intentionally buried?)

[MoNsTeR]

It's worth pointing out that the 100mpg carbeurator did actually "exist" on paper, but that it "worked" by ignoring the laws of physics. That is to say, it /didn't/ work, reducing the myth of the greedy auto companies stifling fuel economy to just that, a myth.

Get your Google on if you want confirmation.

It's not binding. Period.

[yerricde]

When did the strong spirit of these beautiful ideas become so meaningless?

It's not legally binding. Period. And if it's not legally binding, the courts have the power to ignore it. (Heck, they routinely ignore even binding laws such as 17 USC 117 and the DMCA's exemption for some reverse engineering.)

Re:It's not binding. Period.

[Shiny Metal S.]

When did the strong spirit of these beautiful ideas become so meaningless?

It's not legally binding. Period. And if it's not legally binding, the courts have the power to ignore it.

But we have to remember that the courts are supposed to help people in the first place, not to fight against people, which are inconvenient to corporations. When did we forget about that? What suprises me the most, is that people are accepting that. People vote with their wallets, and they seem to not understand that very important fact.

I'm just afraid that my grandchildren will ask me in 2050: "Grandpa, what was the freedom of thought?" and I will tell them "I can't tell you kids, it's against the law now."

Here's another way to balance things

[A nonymous Coward]

Prohibit either party from spending more than the other. If MegaCorp sues TeensyCorp, they can't bring ten lawyers to the negotiating table or courtroom unless TeensyCorp also brings ten lawyers. If TeensyCorp wants to spend $1000 total on their defense, that's all MegaCorp can spend. Perhaps MegaCorp is absolutely positively sure that they will win on merit; allow them to loan TeensyCorp as much as they want, but TeensyCorp has the right to refuse the loan, in which case MegaCorp still is limited by what TeensyCorp spends. If TeensyCorp accepts the loan and loses, they owe the loan amount; if TeensyCorp wins, MegaCorp loses the loan in addition to the judgement.

In other words, get money out of the equation of justice. There would certainly be some abuses. MegaCorp could pay a low rate for legal advice on one lawsuit and exagerated rates on unrelated legal matters. But that would show up sooner or later, and it could only be done to a limited extent. MegaCorp still couldn't show up in court with ten lawyers who are only billing $25 an hour, it would be too fishy.

Apply this to all cases, not just civil. It would stop the death penalty abuses, where some poor slob (who probably is also a scumbag, but still deserves justice) is given $350 for his complete defense.

Open-source implementation of software patents

[koto54]

Or another way to do it is to hit where it hurts : on the money.

Why not creating a repository of open-source implementation of every software patents, and put this repository in a anti-software patent country (Europe, but not for long I'm afraid, or Canada, which have a really strong feeling against software patents, or even Russia, why not ?).

That would mean that every foreign industry, in a anti-softpatent country, will be able to create software using thoses open-source implementations, but NOT american industry !

A real disavantage for american company !
I'm sure that, then, it's them that will ask for NO software patent :-)

It happens all day long.

[Erris]

Inventions then cannot, in nature, be a subject of property."

When did the strong spirit of these beautiful ideas become so meaningless?

So look up subject and property in a current and in a 1770 dictionary. You might find the differences disturbing. English language evolution has been co-opted by five music publishers and three broadcasters for the last 60 years, are you supprised that your words serve your masters?

Peverse Incentives

[tom's a-cold]

One explanation of the growth of inappropriate patents is simply that the USPTO has been seeking to expand its bureaucratic turf. The fact that their funding is proportionate to the number of patents granted only reinforces this behavior.

This explains the USPTO's endless series of IP brainfarts: patenting gene sequences, business methods, algorithms. Of course, this also plays into the hands of large corporate interests with well-funded legal staffs. There's always money to be made in claiming ownership of something that wasn't owned before. Far more efficient than coming up with new ideas yourself. In a different time and different context, it used to be called claim-jumping. Most of that was also done by the rich and powerful (look at who ended up owning most of the land in the Western US: railroads and East Coast investment consortia).

This has never been about the market. The only solution is legislation to restrict the scope of patents.

Re:Peverse Incentives

[nerdlyone]

One explanation of the growth of inappropriate patents is simply that the USPTO has been seeking to expand its bureaucratic turf. The fact that their funding is proportionate to the number of patents granted only reinforces this behavior.

Did you know that the PTO does not get too keep the revenues it earns? Much of it is funneled away to other areas, and does not benefit the PTO at all.

And the PTO has absolutely NO CONTROL over how many patent applications are submitted to it each year. Therefore, assuming they are relatively objective in their work, they don't control the number of patents granted each year either. That number depends only on the number of GOOD (i.e. patentable) patent applications submitted to them. Are you suggesting they are systematically granting bad patents (and therefore knowingly breaking the law) so that they can increase their budget?

And the "endless series of IP brainfarts" are not exactly attributable to the PTO, since they don't make the big decisions on how 35 USC and its regs are interpreted. The Supreme Court makes those decisions, like on business methods. The PTO did not make business method patents legal, the Supremes did.

This has never been about the market. The only solution is legislation to restrict the scope of patents.

I agree with you there. The Supremes only interpret the law, they don't make it. Congress is the only one who can legislate to overturn some of these things we think should be beyond the scope of patentable subject matter. Some well places restrictions on DNA (like definite uses for anything patented) would work wonders IMHO. And business methods should never ever have been patented.

Re:Peverse Incentives

[tom's a-cold]

Did you know that the PTO does not get too keep the revenues it earns? Much of it is funneled away to other areas, and does not benefit the PTO at all.

I'm aware of that. The real mechanism is only slightly more complex: more patents to process, more headcount in the department. In the civil service, that's what matters, more than revenue. Now let's look at the demand side: higher likelihood of marginal patents being approved leads directly to more patent submissions.

Are you suggesting they are systematically granting bad patents (and therefore knowingly breaking the law) so that they can increase their budget?

I'm saying that the incentives are for them to err towards granting a patent rather than refusing it when they're in the gray area between valid and invalid (say, barely discernible incremental improvements). I'd also say that, whether they've been spurred on by the Supremes or the door has been left open by ambiguous legislation, they have undeniably embraced mission creep. Regulations are developed (at least nominally) to comply with the law, but their interpretation is seldom clear-cut, and there are endless opportunities for systemic bias. I have worked for governments, and administrative discretion hides a multitude of sins (as does judicial "interpretation" which often subverts legislative intent). But if your point is that it's the whole system that needs reform, not just the PTO in isolation, then I strongly share your view.

Re:Peverse Incentives

[nerdlyone]

But if your point is that it's the whole system that needs reform, not just the PTO in isolation, then I strongly share your view.

Actually, I don't necessarily think the whole system needs reform, though I do think there are some areas that have turned the wrong direction. Business methods is one easy example. We probably have one the best patent systems in the world, as indicated by the success of licencing in the US. With bad patent systems, you get bad patents that are not easy to liscense, nor worth much if you can license them. Japan is an example of this, there is little enforcement there and patents are less valued.

Responsibility

[Anonymous Coward]

Lawyers are a guild, not however to protect their marketshare, but to protect the consumers from unscrupulous pretenders.
You can use Paralegals and such for a bunch of the routine stuff.
Just as anyone can give first aid, only doctors operate.
Only licenced pilots can fly commercial aircraft.

I is to protect US, not them

Re:Responsibility

[markmoss]

Lawyers are a guild, not however to protect their marketshare, but to protect the consumers from unscrupulous pretenders.

Except that the guild does as little as possible to discipline crooked members...

Re:Responsibility

[Anonymous Coward]

In an industry where attention to the smallest details of grammar and phrasing is utmost, determining the 'corrupt' is a more difficult task than you'd expect.

Re:Responsibility

[nerdlyone]

Except that the guild does as little as possible to discipline crooked members...

What other profession expels its own members for purely ethical violations? Not lawbreaking, but ethical violations? Lawyers are held to a higher standard than any other occupation or profession. Who else can lose the right to practice their profession without even breaking any laws?

People hate those with a little power. Knowledge is power. Therefore people hate lawyers.

obviously...

[Dr. Awktagon]

BountyQuest was always a joke...Bezos and O'Reilly were never seriously interested in patent quality...

If you're at Vegas and you find a broken slot machine that pays out more than 50% of the time, would you tell anybody? Would you do anything about it? Why on earth would you?

You'd just get in line along with the hundreds of other people and start pulling that lever..

Nope, it became Canada.

[Tenebrious1]

It wasn't the Cali gold rush of 1949. That area was already well settled, Fort Sutter having 12000 heads of cattle and 10000 sheep. The gold was discovered while building a mill to aid the growing town.

It's possible he's talking about the Juneau Gold rush, where Joe Juneau was lead to the gold by the chief of the Auk tribe. The town of Juneau grew, but there wasn't the huge stampede there- in 1881, there were still only 150 whites in town. According to the stories, the local indians, though they did not profit, did not do too badly.

The last gold rush took place in Nome, Alaska. With some 40,000 prospectors. But that took place on a beach.

The most likely candidate is the Yukon Gold Rush, where some 60,000 prospectors tried their hands. It had a devastating impact on the Native Americans in the area, the Yukon Tribes. Of course, the Yukon is part of Canada.

I am glad

[werther]

...with the fact that I'm living in Europe. But for how long....?

Patent system

[zoftie]

Relating to that, patent system that is being battered by slashdot , shall employ these practices:
1. give copies of documents on court orders *BUT* with dates blotched out.
2. proceed with defacement of patents as to obliterate all dates on each patent, thus restoring the system to it original status - knowlege repository.

Lawyers will use the system no more, because of ambiguity of use an undated patent system. So it would not matter who and when submitted a patent,
its just there as many others, and neither will take precedence, one add to all and all add to one.

trust me, everyone will be happy, except lawyers.

Re:Patent system

[Anonymous Coward]

You are only partially correct. The original function of the patent (library) system was not just a repository. It was one part of the "bargain" between the state and individual reflecting the grant of a limited monopoly in return for an inventor fully disclosing an invention. This goes back to the 15th century when the Crown in the UK started making grants to traders.

An undated patent repository would be pointless as the patent system is about limited ownership of IP rights based on priority. It would be like having a land title system with no names.

I have to say, there seems to be a lot written about altruistic approaches to IP rights, but it seems much of it is based on an innacurate understanding of how the patent system works.

...

That why there are patents

[hacksoncode]

I think you misapprehend what Jefferson was saying. The Founding Fathers of the US were unanimous in their hatred of trade guilds. This was because of this quote that you posted here. Since information wants to be free, there is a very strong incentive not to release the information into "nature", where it would stop being of benefit to you.

The patent system was designed to work around this obvious deficiency in reality. :-)

The point of the patent system is to give people a monopoly for a limited time on their inventions so as to encourage them to release them into nature (which would tend to destroy their value).

Obviously, there's no value in a system which does this with "obvious" information, which is why the patent system is supposed to disallow patents on "obvious" inventions.

But if there's one thing this article has shown us, it's that people's whining about obvious patents is full of hot air. If only 4 of the many bounties offered by BountyQuest for these supposedly "obvious" patents were paid out, that implies (not ensures, but strongly implies) that these patents were not on obvious ideas, otherwise genuine published prior art would have been found by someone motivated by the $10,000 typical award.

Countersuing?

[Ogerman]

If Amazon had countersued InTouch for the waste of their time and litigation costs, would they have gotten anywhere? Is this a threat they could have waved at InTouch to get them to drop the suit?

Amazon does not like the military!

[Martigan80]

Those bastardz wont even ship any computer related items to APO/FPO addresses! Well here will show you how bad the military takes it from them.

Sorry but overseas all we get is a Monopoly called AAFES

Wow now that would be an easy win...

[Kjella]

Of course we all know the old saying about the man who is his own attorney has a fool for a client, but if I did it myself, 0$/hr, then the other side can't even afford one lawyer (as a company would have to have an employee *representing* the company).

Kjella

BountyQuest

[bobafett2]

What a surprise that Greg Aharonian, who is on record as stating that he wants BountyQuest to fail because it is competitive with his private search business, once again pulls out his only tool, the flamethrower. Ask any BountyQuest winner (e.g., a $25000 one last week) how they like the system. The Intouch case started long before BountyQuest launched, and the Amazon lawyers have said they have had good prior art all along. The decision to settle has to be about pure economics: litigation costs $3000 per day, and a cheap license is a much easier way to go. We'll see what happens with BountyQuest, but it is still around, unlike a lot of the dot-coms.

Part of problem is All-or-Nothing

[Tablizer]

"Innovative" is a continuous concept, not a Boolean value. Thus, the patent office should give a *score* of some sort. Perhaps the higher the score the longer the patent lasts.

Obviously "one-click" should get a lower score than an unbreakable encryption algorithm. But, as it is now, it is all-or-nothing.

In english please

[Anonymous Coward]

Jeff Bezos and Tim O'Reilly's once-hyped BountyQuest.com takes a beating in a Salon article today that takes note of Amazon's recent decision to license one of the few patents BountyQuest claimed to have found winning prior art for, a patent held by the InTouch Group, who had sued Amazon for infringing on the patent prior to Bezos' reported $1+ million BountyQuest investment.

This sentence had more clauses than the north pole at Christmas.

I think the article misses the point

[nikko]

True, BountyQuest has not been a roaring commercial success so far. But gimme a break! The company is less than 3 years old. Did the Salon author really expect that our IP industry, a creature of hundreds of years of evolution and billions of dollars of entrenched interests, would turn on a dime?

The real question is: "What's wrong with the BountyQuest model"? Personall I think it makes a lot of sense. My understanding is that the major problem they are having is the conservatism of law firms. The BQ process starts with posted bounties. In order for a bounty to be posted, a law firm, or a corp legal department, has to cough up some money. Lawyers, even more than doctors, are notoriously conservative in their approach to new technology and new process. Even though BQ has been "on the radar screen" of techies, most ip lawyers probably still don't know about. And even if they do know about it, they are culturally hide-bound. They are unlikely to screw with the status quo until it bites them on the ass.

A good analysis of BQ wouldn't simply claim that it's unsuccessful. It would also attempt to explain why.

Some interesting articles on patents

[slam smith]

I've come to the conclusion that patents are actually mostly a waste of time and energy, especially for smaller entities. Basically all a patent is a piece of paper that gives you the right to sue. I wonder sometimes if the economy would do better to not have patents. So much energy and money is spent in pursuing and fighting patents, without even getting into the greater absurdities that are software patents. These articles are some of best explanations I've seen for it.

when to patent

case against patents

how to bust a patent

patent horror stories

Patents, lawyers, and ideas, oh my!

[Merovign]

I don't have any objection to the idea of patents, it's just that lawyers got involved with the system. In theory, a certain protection of a truly original idea does provide a development incentive - but not when the system is so complex and overloaded that PWOLs (People WithOut Lawyers) are afraid to apply in case they get raped by PWELs (People With Expensive Lawyers).

Add to that people who see the system as an opportunity to make a quick buck over vagueness and uncertainty, and lawyers who make the process so expensive that companies have little choice but to surrender, and it gets depressing.

Remember that lawyers make the laws, enforce the laws, judge the cases, and (mis)represent the disputing parties - the only class of person you can guarantee will be in the winner's circle after a court case is a lawyer.

Not that I'm cynical about lawyers or anything.

Re:Patents, lawyers, and ideas, oh my!

[Anonymous Coward]

I'm always a little surprised that articles such as this make such a point about whipping on lawyers.

Perhaps the expression 'patent attorney' should be substituted, then as an exercise consider that most patent attorney, patent agents etc were originally engineers, physicists, scientists, biologists and chemists.

Simply because a profession speaks a different vocabulary and approaches problems differently, doesn't mean that it is necessarily evil and corrupt. Caution needs to be exercised when people blur the line between lawyers (as in the standard calibration 'sue-em-all-let-god-sort-em-out' type) and patent attorneys. If it sounds like I'm defending patent attorneys.. hmm. well, why not?

Another point to remember is that people who get so worked up about the system are themselves the victims of skewed journalism. For every spittle-flecked news article on the abuse of the patent system there are (largely unread) articles on how and why the concerns were simply not relevant or meaningful. But, that doesn't sell newspapers I guess.

DANEGELD

[cpuffer_hammer]

DANEGELD
(A.D. 980-1016)
Rudyard Kipling

IT IS always a temptation to an armed and agile nation,
To call upon a neighbour and to say:--
"We invaded you last night--we are quite prepared to fight,
Unless you pay us cash to go away."

And that is called asking for Dane-geld,
And the people who ask it explain
That you've only to pay 'em the Dane-geld
And then you'll get rid of the Dane!

It is always a temptation to a rich and lazy nation,
To puff and look important and to say:--
"Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away."

And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray,
So when you are requested to pay up or be molested,
You will find it better policy to says:--

"We never pay any one Dane-geld,
No matter how trifling the cost,
For the end of that game is oppression and shame,
And the nation that plays it is lost!"

LOL!!!

[Anonymous Coward]

I'm just afraid that my grandchildren will ask me in 2050: "Grandpa, what was the freedom of thought?" and I will tell them "I can't tell you kids, it's against the law now."

OMG!!! That's gotta be the funniest fucking thing I've ever read.

I'm sorry to laugh at you like this, but if you were in touch with some *normal* people, you might understand that you're Orwellian attempt at being dramatic leaves one more with the feeling of a bad SNL parody.

I don't mean to humiliate you in front of everybody (you're anonymous after all and people forget), but if you keep making attempts to be dramatic like that, you're going to humiliate yourself much worse than I ever will...

Laugh it up, we all do dumb things...

Re: CAFE

[Anonymous Coward]

The whole idea of the U.S. attempting regulation of average fuel consumption (for the whole industry and for sub-categories) represents typical U.S. governmental insanity. (If they decide to touch something, they make sure to get it ridiculous and bureacratic.) In industrial countries where you pay high taxes (yuck!) on fuel (i.e., most countries except the U.S.), the whole issue of fuel consumption is handled by market forces (namely, you can feel every single drop of wasted petrol in your wallet). No better incentive is needed, trust me.

BTW I drive a European car in the U.S. It's nice to hear my mileage is roughly equal to the total mileage of my three cubicle neighbors.

Heck, that's a minor fix :-)

[A nonymous Coward]

Unless you are a street bum -- if you have a regular job, there's that pay -- even though it wouldn't be related if the lawsuit involved software you handled in your spare time.

Or allow some minimum amount, say one employee. It would be hard to argue that because you spent $0, the other side couldn't even send an employee.

Anyway, the basic idea is to simply not let one side buy justice when the other side can't afford to match them. Even if one side manages to cook things enough to spend twice as much as the other, that's nothing compared to what happens today.

A few comments from Tim O'Reilly

[tadghin]

Overall, I didn't disagree with the point of the Salon story that software patents are big trouble, and that BountyQuest has had much less of an impact that we hoped. But I found the story shallow in its understanding of the patent system, and drawing rather broad conclusions from very little data.

First, let me also point out that theodp, who submitted this story, has been on a quest to discredit BountyQuest ever since his submission of supposed prior art on the 1-click patent was not chosen for a share of the $10,000 bounty we awarded. He sent in hundreds of pages of material without any explanation of what particular part of it invalidated the patent, and all of those who looked at it couldn't see the remotest relevance. Requests for clarification about just what in this material represented prior art were met with avoidance and hostility. His continued harrassment of both me and BountyQuest has convinced me that he's some kind of a crank. I was disappointed to see Salon picking up his sour grapes as part of his story, and then to see him spinning this further for Slashdot.

Second, while I admire Greg Aharonian for his relentless advocacy of a better patent system, his comments that "BountyQuest is a joke" need to be taken with a grain of salt. They are in fact competitors, using different mechanisms to reach the same goal. Both provide "market mechanisms" to find prior art that potentially can be used to invalidate or confirm patents. Where I do agree with Greg is that requiring applicants to search for prior art is exactly the right thing to do. And it's exactly what I recommended in my own patent advocacy.

Third, there were numerous inaccuracies and flawed conclusions in the Salon story, ranging from the trivial (I collected 10,000 signatures in three days on my anti-1-click petition, not 3500) to the fundamental.

For example, Amazon licensing the InTouch patent doesn't mean that no successful prior art was found. Because these kind of settlements are made behind closed doors, it may be just as likely that Amazon found killer prior art, and that InTouch paid their court costs or did some other kind of swap in order to preserve the fiction that they have a valid patent. I'm not saying that that's what happened, but we have just as much evidence for that statement as was presented for the idea that no prior art was found.

The Salon story suggests that the BountyQuest approach of searching for prior art via Internet bounties is "a joke" because the prior art they found may not have been used in a couple of cases. This is like saying that the open source process is a joke because every patch that's submitted isn't used.

There used to be a mock Tarot deck called Morgan's Tarot, which had a card that said, "Do not meddle in the affairs of wizards, for they are subtle and quick to anger." Dealing with lawyers is like that. I talked with the lawyers in the Barnes & Noble vs. Amazon case, and they really weren't interested in outsiders sticking their nose into their case. So many of these things are handled outside the public view.

The fact that BountyQuest hasn't done as well as expected has as much to do with the funding drought from the high-tech meltdown as from a fundamental failure in its business model. I still believe that "many eyeballs" can turn up prior art that might not be found even by professional searchers. (And in fact, I've continued to get submissions from random users long after the BountyQuest 1-click bounty had been awarded. Some of them seem pretty conclusive to me. But the real lesson I learned from my own experience putting up a bounty is that it's useless for a third party to do this. It's got to be one of the parties to the dispute who does it, or else there's no assurance that the prior art that's collected is relevant to the legal approach being pursued, or the business objectives of the parties.