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

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

[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.

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?

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/"

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.

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?

[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?

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

[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

[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: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.