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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.""
Next thing you know, somebody will try and patent the hyperlink. Oh wait...
"Can't sleep. Clowns will eat me"
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.
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
- "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?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/"
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.
e4 e5
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.
I've got a bad attitude and karma to burn. Go ahead. Mod me down.
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
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.
"Because we are not employing at entry level, offshoring will kill our industry stone dead."
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?
"It is a greater offense to steal men's labor, than their clothes"
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.
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.
D'oh!
Shut up, be happy. The conveniences you demanded are now mandatory. -- Jello Biafra
Setting aside problems of obviousness, the difficulty of evaluating it, the problem of prior art etc.
... 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!
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
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.
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:
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?
If you were blocking sigs, you wouldn't have to read this.
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
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.
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.
... but by what the public has shown it knows through prior art references.
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
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
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...
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
Uh, shouldn't that be "Just your average nitpicker."?
-- MarkusQ
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.
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.
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.
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.
Infuriate left and right
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."
~shiny
WILL HACK FOR $$$
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?
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.
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...
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..
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.
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.
-- If god wanted me to have a sig, he'd have given me a sense of humor.
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 $10,000 typical award.
If Amazon had countersued InTouch for the waste of their time and litigation costs, would they have gotten anywhere? Is this a threat they could have waved at InTouch to get them to drop the suit?
Of course we all know the old saying about the man who is his own attorney has a fool for a client, but if I did it myself, 0$/hr, then the other side can't even afford one lawyer (as a company would have to have an employee *representing* the company).
Kjella
Live today, because you never know what tomorrow brings
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!"
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.
Infuriate left and right
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.
War is necrophilia.
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.
War is necrophilia.
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.
War is necrophilia.
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.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
No.
I do not have a signature