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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.""
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.
- "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?However some of the cures seem worse than the disease. For Example:
Just you're average nitpicker.
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
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?
"Communism is like having one [local] phone company " - Lenny Bruce
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.
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.
I do not have a signature
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."
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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...
War is Peace. Freedom is Slavery. Ignorance is Strength. - George Orwell or George Bush?
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.
Outdoor digital photography, mostly in New Engl
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.
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?
Come play Heroes of Might and Magic Mini online.
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.
It is more productive to voice thoughtful opinions (reply) than to judge (moderate) others.
That's a good point. Maybe the issue fee ($1280) should be folded into the filing fee ($740).
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..
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."
Do you like Japanese imports?
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.
Best. Comment. Ever. Enjoy!