Slashdot Mirror
MSNBC Looks At Patent Abusers' Victims
Camel Pilot writes "Patent claims have reached a new low when "inventor" Witold Ziarno sued the American Red Cross for using the web to accept donations. This MSNBC article discusses this case and how it was beat using web archives and prior art!
Also Pangia Intellectual Property has given up hope on extracting fees from small e-commerce websites for its supposedly patent on e-commerce. The only problem with the PanIP case is that they got away without having to pay for the legal fees for the defense in an obvious abuse of the system." (See this previous post for more on PanIP's dropped case.)
I hope the Red Cross sues the dude and demands blood for repayment.
what does it take to chase a charity for alleged patent abuse. How does he sleep at night?
"...saying he had patented the electronic process by which the donations were made. Ziarno demanded a licensing fee from the non-profit agency for infringing on his patent, which he applied for in 1993 -- before most people had even heard of the World Wide Web."
This seams strange (in 1993?). For some reason, I do not think I understand US patents.
Webmaster of Infoweb
If the patent holder loses it's case in court, it's forced to pay the legal fees of the defendant.
Oh yes, they get kicked in the nuts afterwords.
Also, the patent office needs to be held accountable as well. Maybe they could fire the examiner that issued the patent.
I'm not saying that this is the difinitive answer, just some ideas to change things for the better.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
The main argument behind patents is that without them, nobody would have motivation to come up with new ideas and no research and development would be done.
I say bullshit.
Patents are holding developments back. If you have an idea for a better mousetrap build it and sell it. If someone else copies your idea then you'll just have to improve it, or find a way to make it cheaper than them, or whatever. You'll have to act quicker to make money on your ideas, and innovate faster. I think that's a good thing.
I know this may sound like a troll, but it isn't. If the US legal system is so good, shouldn't the American Red Cross win in the end?
"You can justify anything by putting it in quotes, adding a famous name and making it a sig" - Albert Einstein
The question is whether the patent itself is valid or not. If this was a genuinely innovative patented process that Red Cross violated, would it matter whether they're a charity or not?
I'm surprised that no one has filed suit claiming ownership of a patent which describes the mechanisms of email based spam.
...of course claiming ownership of spam would not be too handy for your image, but if you're a patently litigious batage image probably isn't a 10th as important as the payola.
:P
You'd think with the DoJ and corporate suits out and about, someone would be trying to cash out on their chips.
In fact, a spam patent is probably the one item I wouldn't mind seeing used and abused through the legal system.
Yeah... hypocrosy, but it's the thought that counts right?
Right?
The main argument behind patents is that without them, nobody would have motivation to come up with new ideas and no research and development would be done.
The actual argument for patents is that, without patents, people who use new inventions and innovations would waste huge amounts of effort keeping their discoveries secret from the competition.
The patent process is designed to encourage inventors to publish their ideas so that other people can build off of them. And after a number of years, the patent expires, and anyone can use the work for free.
LLC.. Low Life Cunts?
I know, the "Life" bit is a tad extreme.
many things get pattented before even invented or widely used, look at:
communications satelites in 1945
MS patents zeros and ones
and many more...
There are lots of clever people here on Slashdot. I have a question.
Has anyone here filed a patent for an invention (as an individual, not for their employers or a university) from which they now profit?
My belief is that the vast majority of patents are issued to, and profit, large companies. Or am I wrong, and there are hundreds of garage inventors out there profiting from their patents? Anyone?
"Something can be simple, but we shouldn't be deceived by this," said Jack Slobodin, another patent attorney. "If no one has done it before or thought of it, it deserves a patent. Like the paper clip, or the Post-it note." And the inventor deserves compensation, Slobodin said."
Protecting the rights of inventors is a necessary part of the research and investment fields, said Slobodin.
Otherwise, he said, there would be little incentive for taking risks: "The inventor should have a key to the courthouse. There's a long, sordid history of big companies stealing the work of private inventors."
The same old hopelessly flawed logic and a very good example of it: To make paperclips available to the World, which is what you are expected to do in return for the exclusive rights to profit from doing so, you need to invest in a paperclip factory, it's workforce, distribution network and all the other expenses associated with manufacturing investment. There lies the risk - a very great financial risk and rightly addressed by the patent system. If you consider an equivalently simple software or business method idea, where is that risk now? Just what exactly is it that needs to be protected? The only investment risk that needs to be protected in this case is the investment in the patent application itself and the litigation expenses required to extort money from legitimate and honest businesses and organisations.
Just who do the legislators think they're protecting when they engineer a system that enables worthless parasites like PanIP to persecute small businesses and others even to gratuitously attack charities?
Why not directly base a patent on the ammount of R&D done and some 'market time' value: eg a stupid web patent such as donations on the net which obviously took someone back in the early days of the net all of 3 minutes to figure out would have a very low 'R&D value' and a very low chance of being granted or upheld aditionally the internet/computing industry moves very fast, so the patent would only be granted for say 1 or 2 years if it was granted at all.
:P ) and because the car industry moves abit slower (lots of people still drive cars from the 90's) it would get a value of say 8 years and the R&D value would be taken into consideration in upholding its patents and charging royalties.
If a company had spent 5 years and billions in R&D of an innovative new type of engine it would get a high R&D value (dont ask me how thats calculated
The patent system is to give incentive and it does that by giving just enough time for someone to use a patent as an advantage before its open to everyone.
This comment does not represent the views or opinions of the user.
Atleast panip seems to have some shame, their site is down for 'maintenance and redesign, in view of new developments.'
Now, I have a track record of producing patentable ideas that are non trivial and leading edge. One of the things I considered was patenting some of them and starting a business based on the patents. But getting the patents would deplete my savings. I'd still need to have lawyers to protect and enforce them. That would involve getting a venture capitalist who would insist on getting most of the pie. That's a lot of work just to make someone else richer.
So, basically I just dump most of the stuff into the public domain to hopefully keep other people from patenting it and preventing me from using my own ideas. Looks like somebody may be picking up on one of them. I can't say too much about it, but if it works out, Microsoft is really going to be pissed at me.
I think loser pays is a good idea, but some other things need to be added as well:
1. An agency will be set up to oversee the state Bar... They will track how many frivilous suits a laywer is involved in and sanction attorneys who, say, take 5 of them to court that get tossed or they lose invoking loser pays. Sanctions should include suspensions and eventual disbarment.
2. Loser pays should only be invoked under these circumstances:
1. The loser reprsesents a corporation
2. The loser has means (more than a $5 million net worth) in the case of it being an individual.
Loser pays should be up to the judge, as a sanction against a party filing and PURSUING a frivilous claim, wasting the court's time.
3. The losing lawyer should have to forefit all fees to the WINNING party if loser pays is invoked.
4. A defendant should never be subject to loser pays, only the initiator.
5. Contingency fees should be subject to a 75% tax.
6. Judges should have greater lattitude in disposing of frivilous cases out of hand, INCLUDING forcing the plantiff to show sufficient evidence in initial discovery to show cause for there to be a valid claim for trial (think SCO here). This should be based on the theroy that if you DONT ALREADY HAVE EVIDENCE TO TRY SOMEONE, you don't belong in court!
These proposals aren't perfect, but they'd help.
Corporatism != Free Market
Accordingly, it is my view that prosecuting a case against art raising a substantial new question of patentability and losing, or in view of representations that the accused device is without a particular element (not merely a question of what the claim means, the meaning must be clear and the thing must not have it), and losing, should be sufficient grounds for an award of fees. Moreover, if art is asserted against a claim that raises a substantial new question of patentability, the art should be tested under a relaxed presumption of validity: the defendant still bears the burden to show invalidity, but only by a preponderance of the evidence.
If we want to limit the scope of this, we could limit this analysis to process (method) and product-by-process claims, the type of claims most likely to be subject to undiscovered or hard-to-discover "surprise" art.
The virtue of this approach is that a patentee's incentive to use the "stomp-for-nuisance-value" technique is significantly diminished. A defendant actually can harm the patentee to some extent for overreaching, while pretty much maintaining the plaintiff's proper edge in cases where the plaintiff is supposed to win.
Just because you lose a lawsuit doesn't mean it was frivolous. It just means you lost.
What 'loser pays' does, is remove civil lawsuits as a remedy against corporations, since corporations can almost always afford to pay any sort of legal fees a citizen could amass, but a private citizen is rarely going to be able to afford the corporations legal fees if they lose the suit.
...hold the Federal Patent Office liable for any and all patents. If they grant it and it later turns out there was prior art the patent holder can sue them for their lawyers fees, patent filing fee and any other expenses incurred because of the office's incompetence.
Maybe then we'd see an end to overly broad and obvious patents.
In order to balance things out the patent office would be able to send a patent back much more easily if they felt it was either overly broad, obvious or was just written in such a confusing way that the overworked patent examiners cannot understand what all the little letters on the page mean.
I am NaN
As I said, losing a lawsuit does not mean that the Lawsuit was frivolous.
There is a difference between a Frivolous lawsuit (suing McDonald's because I'm fat), and a Lawsuit with merit, that is lost (suing Ford for negligence relating to SUV Roll-Overs).
What 'loser pays' means, is that you must have an absolutely air-tight, 100% case before attempting a lawsuit as a private citizen or small firm. And if it's 100% air-tight, there really isn't any need for a trial now is there?
The whole point to a trial is to determine the facts when they are in dispute. 'Loser pays' removes that option from the private citizen, and makes corporations nearly untouchable, since a private citizen can't risk failure without facing bankruptcy.
Isn't funny that MSnbc would run a story about patent abuse.
When is some company that gets screwed by the incompetence of the Patent Office going to sue them for the damages they cause?
Xesdeeni
In the medical scanner scenario you have mentioned, the company might as well sell the machine after making the buyer sign an agreement in paper-and-ink --- no reverse-engineering, no disclosure, etc., just like today's NDAs. This is a bit of trouble involved, granted, but should be feasible for most things involved in "reasonable" patents today, such as a medical scanner or some new medicine, which cost quite a bit already. If the company still find it too much trouble, it may choose to do nothing and hope noone will reverse engineer their product too quickly (like the companies who don't want to spend money on applying for patents), otherwise I think it is a fair price for the company to pay in order to hoard its knowledge --- if your stuff is good enough people will still buy it even with the trouble of signing papers. Anyway the situation is quite similar to that with patents, just that everyone knows what are they allowed to do, and noone will get stabbed in the back.
Spelling correction: it's Pierre-Joseph Proudhon.
Comment removed based on user account deletion
Shouldn't MSNBC complain about the patent on a button that acts a certain way when pressed at a certain length of time? Oh wait, the NBC in MSNBC just got sued by the MS part.
The fix for this problem is the limit the loser pays is the amount of the loser's own lawyer bill. So, the loser pays the winner the lesser of two amounts - his own legal bill or the winner's. That way, he will limit his exposure to double what he pays his own lawyer.
The system is fundamentally flawed in providing any real advancement in the sciences. It has only proven to being useful in blocking competition from entering a market.
To defend a market, the company doesn't need valid patents or to show actual infringement. They only need a large stack of patents that a competitor might be infringing. This is enough to put the competitor out of business or at least force them into a settlement.
Patents aren't holding back development. You think biotechs and the drug companies would spend billions of dollars into R&D if there wasn't a patent system? How the hell would they make the money back if any company could copy it.
Have you ever been to a turkish prison?
The problem with patents as I see it isn't so much that there are stupid ones granted, but that there is no way to get real work done without running afowl of these stupid patents.
.sig
As much as I'd like to throw out patents completely, I don't see that happening anytime soon, so I propose approching the problem from the other direction.
Rule that software which runs on a computer built one year before the filing date of a patent was incapable of infringing. (Whatever it is must either be an algorithm or prior art, so it can't infringe.)
Although working on old hardware might be a bit of a limitation, you could at least be certain of avoiding patent infringement by doing so.
-- this is not a
"nuke the fuckers" :: "nuke the fuckers"
In other words, if a plaintiff files a frivolous lawsuit and gets smacked down in court, the court should find that the loser's lawyer didn't do his required duties in making sure that the case was legitimate before filing, making him liable for paying legal fees to the winner.
Maybe that'll discourage slimeball ambulance chasers from filing frivolous lawsuits in hopes of extorting settlements.
Meldroc, Waster of Electrons
When I was graduating from college in 1989, I had an interview with the Patent Office. They were expanding at the time, and wanted to hire bright young people that knew software and could advise them.
They offered me the princely sum of $19,000 per year, and I would have had to live in the D.C. area. Instead, I took a job in Missouri, with a much lower cost of living, for about 1.7 times as much salary.
they spelled it wrong, should be Pangea not pangia.
Reading through these posts it's easy to see how we got to where we are with patents in the US. Everyone has their own idea of why patents are important and many get so pompously technical with their explanations that everything and everyone gets confused. Not one post I've read (I haven't read them all) has mentioned what the Constitution plainly says about patents, and seeing what patents the patent office is granting I wonder if they've ever read it. The Constitutions says "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;". Was the idea of making a donation through the internet really a "discovery"?
--: BEGIN Rant --:
About the word "steal": Yeah, you're right, but while we're lookin' stuff up, let's look up connotation (sense 2b). IMHO, while you're right about the definition of "steal", that crime-y little word has many very negative connotations. And, in its most common usages, once something is stolen, it's previous posessor no longer has it.
But, of course, there's a fundamental difference between the electric world and the physical in this instance. In the physical world, it's much easier to move an object than it is to copy it. But it's the reverse in the electronic world. (at least most of the time ;-) ) In fact, to move things electronically, it's often necessary to copy, then delete the previous instance.
Websites that tell me to make no copies of their page annoy me since, most times, their page is already cached by my browser by the time I even see the notice.
A few years back there were anti-piracy radio commercials that said something close to: "When your kid installs pirated software, it's the same as if they went into a store, took a CD off the shelf and put it in their back pack and left without paying for it." Everytime I heard this commercial, I had to resist the temptation to rip the goddamn radio apart! (don't shoot the messenger) The (broken) analogy the commercial makes flies in the face of the way all this electronic stuff works. I.e. when you make a copy, now you have two!. It's like that Jesus thing where he fed all the people from one loaf of bread and one fish... or whatever.
--:END Rant:--
Ok, no I'm not saying I have all the answers. Hell, I probably have no answers. No, I'm not really in favor of abolishing all copyright, all patents, all trademarks, etc. But it really bugs me when people overstress old analogies that really don't work very well, and when people try to slip strongly negatively biasing language into the discussion.
I'd even go so far as to say that, in the future, I'd like to see the word "steal" (and related words) get redefined. No, I don't expect it to actually happen--but then again I didn't think WotC'd stop printing dual lands either. You never know.
Furry cows moo and decompress.
"Similar criticisms have been leveled against Paul Heckel, president of Intellectual Property Creators in Los Altos, Calif. Heckel has a patent for the partial display of computer files, allowing them to be presented as an index so users can preview files before opening them. Heckel now says many online newspapers across America use this technique on their home pages to tease visitors to click on links and read entire articles. He sent license demand letters to 60 of them recently. "Three or four" newspapers have paid license fees to Heckel, he said; the other cases have been dismissed and will be refiled. Hangartner represented one of the newspapers. Heckel said he couldn't discuss the patent, citing ongoing litigation. But he defended the practice of first suing small companies to win settlements that would then be used to finance lawsuits against larger litigants with bigger legal budgets." need to go and look at the specific claims in the patent. But wouldn't the rather old "head" tool in every flavor of *N*X I can think of perform a partial display of computer files?
How about Loser pays winners legal bills up to the amount of his own legal bills? So small parties only risk having to pay what they paid their own attorney, which if they are on contingency could be small. I guess they would also have to pay some amount for costs of filing.