Red Hat Prevails Against Patent Troll Acacia

walterbyrd writes with news that Red Hat and Novell have won a patent case brought by a subsidiary of Acacia Research Corporation. The company had "accused Red Hat and Novell of infringing three patents that cover a computer-based graphical user interface that spans multiple workplaces, and lets users access icons remotely, according to court documents. A jury in Marshall, Texas, yesterday sided with Red Hat and Novell's defense that the patents were invalid." Red Hat's Michael Cunningham said, "The jury knocked out three invalid patents that were masquerading as a new and important inventions, when they were not. We appreciate the jury's wisdom and remain committed to providing value to our customers, including through our Open Source Assurance program. We also remain stalwart in resisting bogus shakedown tactics."

Comments

yay!

[mr.dreadful]

Finally something good out of Marshall Texas that isn't football...

Re:yay!

[pcolaman]

Please tell me you are not mistaking this for Marshall the college. Not really aware of Football being a major thing that Marshall, TX is known for. It is known as one of the places where the Civil Rights movement centered out of in the south, but I'm not aware of it being particularly noted as a great high school football school, in terms of other Texas High Schools. A quick search online shows that most sites that rank high schools in their classification (4A) shows them to be a middle of the pack football school.

Which Patents

[WrongSizeGlass]

The article doesn't mention which patents were "invalidated". Oh well, at least Red Hat & Novell were victorious.

Re:Which Patents

[PatPending]

5,072,412, entitled “User Interface With Multiple Workspaces for Sharing Display System Objects" which issued on December 10, 1991

5,533,183, entitled “User Interface With Multiple Workspaces for Sharing Display System Objects” which issued on July 2, 1996

5,394,521, entitled “User Interface With Multiple Workspaces for Sharing Display System Objects” which issued on February 28, 1995

Source: http://www.groklaw.net/pdf/IPvRH-1.pdf

Re:Which Patents

[tuxgeek]

3 patents, different dates, same names ?? WTF

Still, any win for the good guys makes this a great day in freedom land

Epic patent trolls?

[kaptink]

Correct me if i'm wrong but these guys look like epic patent trolls - http://www.acaciaresearch.com/pressreleases.htm

Re:Epic patent trolls?

[Anonymous Coward]

I think Acacia is living proof that ideas are not hard to produce; they are hard to implement. Apparently, Acacia Research finds actual labor too difficult.

Re:Epic patent trolls?

[calmofthestorm]

If you're too lazy to innovate, you can always use the legal system to steal other people's hard work. God bless IP extortion.

Re:Epic patent trolls?

[benarius]

It looks to me like they have two modes of operation. They either work on behalf of the patent owners and share patent revenue or they purchase patents and then try to enforce them. If they are sharing revenue with the inventors then they are no more patent trolls than any other patent attorney for hire.

Re:Epic patent trolls?

[jedidiah]

Based on the information, it looks like Acacia was trying to claim ownership on things that have been done by Unix since before Acacia ever existed.

Perhaps when there are consumer products that classify as prior art East Texas finally get the hint.

Re:Epic patent trolls?

[Anonymous Coward]

in the US if you win can you claim your legal expenses and other costs back from the other party either by default or as part of the same ruling? This inorder to discourage frivoulous lawsuits?

Re:Epic patent trolls?

[SingleEntendre]

Besides, a patent ".. that cover[s] a computer-based graphical user interface that ... lets users access icons remotely, according to court documents. " doesn't seem very efficient. Inserting lawyers and courts into this remote access process would increase latency. Don't let lawyers get involved in software engineering !

Re:Epic patent trolls?

[BrokenHalo]

in the US if you win can you claim your legal expenses and other costs back from the other party either by default or as part of the same ruling? This inorder to discourage frivoulous lawsuits?

This applies in lots of countries, but judges can be selective (I'm being polite) when it comes to awarding costs.

Re:Epic patent trolls?

[cetialphav]

It all depends on the definition of frivolous. The US courts set a pretty high bar for calling a legal action frivolous so it rarely happens. I don't really see this as a problem, though. "Loser pays" systems sound good on the surface, but it also means that small parties would almost never sue big parties unless there is no chance of losing because the bigger party could mount an enormous legal bill. A loser pays system would allow people with big pockets to be even more abusive than they are in the current system.

Re:Epic patent trolls?

[cetialphav]

I hate to defend these guys because what they do is pretty sleazy, but "patent trolls" do serve a purpose. They create a market of selling IP. For those who believe that IP encourages innovation (I'm not one of them), then the existence of patent trolls means someone can invent something and have a buyer for the rights to that invention even if no one wants to market the product.

For example, say I invent a highly efficient electric car. This upsets a lot of existing businesses so it may be very hard for me to productize it. I may know that my invention will eventually win out, but I can't afford to wait that long. Well, I can sell this to someone who is willing to wait and profit from this.

The stories that generally show up on Slashdot are generally shake down schemes that take vague, poorly done patents and apply them to unwarranted things to make a quick buck. But that doesn't mean that everyone who is trying to profit from the patent system is a con artist.

Re:Epic patent trolls?

[Daengbo]

If patent trolls keep having all their cases in east Texas, eventually the average person there is going to become educated enough to say "Hey! I saw this in the last case. It seems obvious." ;) I can hope, right?

Re:Epic patent trolls?

[blitzkrieg3]

I'm pretty sure they got the patent from Xerox, for rooms. The idea was that you use a room and house analogy for your window manager. So all offices applications are in the office room, games in the gaming room, recipes belong in the kitchen, etc. And you had to switch rooms via a door icon, no joke.

Re:Epic patent trolls?

[calmofthestorm]

The problem is that it used to be that an "invention" was largely self describing. The other day, I noticed a vice grip attached to the back of a pickup truck of some maintenance workers. This is the sort of thing where thinking of it is equivalent to knowing how to build it. This is increasingly less true, but patent law hasn't been keeping up.

If I sat around all day thinking up bullshit patents I could make a fortune off extortion as a parasitic leech on people who actually contribute to society. Ideas are a dime a dozen, the hard part is building them. Come up with a cool car idea? Great, now build one. Isn't so easy, is it?

If Apple decides to patent some technology essential to a smart phone (they probably have), and refuses to license it, this creates a monopoly not just on their particular invention, but on all similar inventions. I feel that patent laws were intended to give people monopoly on a particular good, not on all things that might possibly resemble or compete with it.

Of course, the solution here is cross licensing agreements and defensive patenting, but that only works if you're a huge corporation.

Re:Epic patent trolls?

[ObsessiveMathsFreak]

I hate to defend these guys because what they do is pretty sleazy, but "patent trolls" do serve a purpose. They create a market of selling IP.

Well paedophiles create a market for selling child porn, but that doesn't mean we should either laud them or make it legal.

Re:Epic patent trolls?

[cetialphav]

I'm pretty sure that is the worst argument against patents that I have ever heard. It is arguments like that that make it hard to convince normal people that patent reform is important.

Re:Epic patent trolls?

[Anonymous Coward]

I can see where you're coming from, but I think the argument is wrong, just like the argument that breaking windows is good because it creates new work and new jobs is wrong.

Re:Epic patent trolls?

[rjch]

I'd have to agree with you, but I also find it very interesting to note that there is no reference to their loss in this case in their media releases.

Victoria (Australia) has a rather nice little provision on the books which would aid in dealing with companies such as this. Pity they've only applied it to 14 people.

Re:Epic patent trolls?

[Anonymous Coward]

You're describing a service that doesn't actually exist in practice. Patent trolls aren't companies that buy patents to implement them, or enablers of buying and selling patents. They're companies that buy patents and extort actual product producers, and those are just the nice ones. In the worst cases, they're companies that exploit weaknesses in the patent process to try to outright steal patents.

Re:Epic patent trolls?

[ffreeloader]

Well, I can sell this to someone who is willing to wait until the opportune time to create the car and profit from it.

What you're talking about is a company with deep enough pockets to actually be able to produce your car that can afford to wait to develop it.

A patent troll would never actually create the car. They only own patents so they can sue orgs with deep pockets that actually do produce something. They do nothing but look at products with the idea of seeing if they can apply one of their patents to the product and then claim patent infringement and sue. They produce nothing, but siphon off vast sums of money for lawyer's pockets and sometimes some for themselves too when they win.

In your example if a patent troll bought your patent they would hold it until someone tried to build an electric car like you had designed, and then sue them. Your idea would never come to fruition. It would be used as a hammer with which to beat on other inventors.

Re:Epic patent trolls?

[CrkHead]

I can't resist a good car analogy. You invent the electric car that will be the game changer. It would be legitimate to sell or license that to a manufacturer to produce something. But selling it to a third party that sells it to Exxon, who then sues me because the engines I'm putting into golf carts are similar to your idea is where you get to the behaviour of a real patent troll.

Re:Epic patent trolls?

[marga]

If you are trying to profit from the patent system, then you are a con artist. Productive ways of profit mean selling a design for a product for the value of the design, and for the product that it might become.

Selling it so that someone else can sue whoever actually goes about inventing it, means selling lawsuits, not actual products.

Re:Epic patent trolls?

[Anonymous Coward]

That's hilarious. But it adds the possibility of one thing modern OSes are sorely lacking in: better task separation (for security and convenience).

Re:Epic patent trolls?

[CondeZer0]

Exactly!

People trading on patents are trading on government granted monopolies which only benefit those holding the patent and harm the rest of society as a whole.

Markets are good at allocating rivalrous goods where there is real scarcity, artificial scarcity created by the government means that people spends their resources lobbying the government to create even more scarcity.

Re:Epic patent trolls?

[Hognoxious]

A loser pays system would allow people with big pockets to be even more abusive than they are in the current system.

Un unlimited loser pays system might. In England & Wales it's at the judge's discretion and one of the criteria he'll apply is a test of reasonableness. If you run up 100k in legal bills over a three grand fender-bender, you may well end up out of pocket.

Re:Epic patent trolls?

[kenp2002]

The problem is that it used to be that an "invention" was largely self describing. The other day, I noticed a vice grip attached to the back of a pickup truck of some maintenance workers. This is the sort of thing where thinking of it is equivalent to knowing how to build it. This is increasingly less true, but patent law hasn't been keeping up.

If I sat around all day thinking up bullshit patents I could make a fortune off extortion as a parasitic leech on people who actually contribute to society. Ideas are a dime a dozen, the hard part is building them. Come up with a cool car idea? Great, now build one. Isn't so easy, is it?

If Apple decides to patent some technology essential to a smart phone (they probably have), and refuses to license it, this creates a monopoly not just on their particular invention, but on all similar inventions. I feel that patent laws were intended to give people monopoly on a particular good, not on all things that might possibly resemble or compete with it.

Of course, the solution here is cross licensing agreements and defensive patenting, but that only works if you're a huge corporation.

Average cost of a patent just in paperwork alone is over $2000 bucks. If you have an idea to patent 30 ideas good luck scraping together $60,000 bucks.

I have 3 patent ideas and the only takers demand a 90% share of the patent in order to front the patent costs.

Patents have nothing to do with innovation, it's nothing more then intellectual share cropping now.

Jury ... Random people from around

[unity100]

i wonder how long until a bunch of them jury will succumb to the 'stealing' and 'intellectual property rights' or 'innovation' baits.

Way to go Red Hat!

[Bearhouse]

We appreciate the jury's wisdom and remain committed to providing value to our customers, including through our Open Source Assurance program. We also remain stalwart in resisting bogus shakedown tactics.

Exactly why you should get your customers to pay RH for support, as I encourage mine to do.
'Free' software does not mean 'without cost'. The FOSS community needs people like RH, (urm, OK, and the slightly less 'not evil' IBM), helping out.

There's much discussion here & elsewhere about how to fix the broken US patent system.
How about changing the law so that punitive damages could be awarded against blatant patent trolls such as Acacia? (Don't get me started about the cynical, useless bastards at SCO).
Better still, how about making 'stifling innovation through frivolous patent suits' a Federal / criminal offense?

Re:Way to go Red Hat!

[larry bagina]

Better still, how about making 'stifling innovation through frivolous patent suits' a Federal / criminal offense?

Just what we need, a law to compensate for the failure of the federal employees at the patent office.

Re:Way to go Red Hat!

[Bearhouse]

Better still, how about making 'stifling innovation through frivolous patent suits' a Federal / criminal offense?

Just what we need, a law to compensate for the failure of the federal employees at the patent office.

That's exactly my point. It would appear that the patent office does not have the resources to effectively review new patents. Hence private organisations have to resort to the courts. But it's a one-way street - to me seeming like 'being guilty until proved innocent'. Some dick patent troll sues you. You then have to spend considerable time & money proving that they're a dick troll. (See SCO etc.) Time & money that you could and should be instead spending on innovating, creating jobs and better serving your customers.
Just saying that a bigger barrier to trolling than just legal costs could be a way of deterring frivolous cases.

Re:Way to go Red Hat!

[Anonymous Coward]

or better yet, money that could be spent paying office rent, salaries, internet services. The guys who have most to fear from patent trolls are the ones searching for success, not those already successful.

Re:Way to go Red Hat!

[__aasqbs9791]

Anyone with money and a product or service (to some extent) has something to fear from patent trolls. The only defense is to have enough money to last through a trial, and that's only sometimes successful. I think we have a problem here in that patents are not screened well enough at the patent office. If I had a patent, I'd want to feel extremely confidant that it won't be invalidated by a court. And if I avoid infringing others patents, I'd want to be very confident that I'm not just avoiding invalid patents (waste of time and effort). But most of all (as a consumer), I'd want to be very confident that patents are actually promoting the progress of science and the useful arts. I have little to no confidence that any of these things are true now.

Re:Way to go Red Hat!

[phantomfive]

How about changing the law so that punitive damages could be awarded against blatant patent trolls such as Acacia?

They completely lost their patents, they were shown to be invalid. That is the first time I've ever heard of that happening. If that becomes common, companies will be a lot more careful about what patents lawsuits they file, for fear of losing the patent. This is an extremely good precedent.

Re:Way to go Red Hat!

[Anonymous Coward]

That's exactly my point. It would appear that the patent office does not have the resources to effectively review new patents.

Unfortunately, I think you're wrong. No patent office, however rich, can afford to hire the (tens of) thousands of engineers (not experts, since as everyone knows by now, that doesn't mean much) skilled enough to cover each and every R&D field competently. So the poor guys have to use half-random tactics such as crossing keyword lists for finding prior art. We can't blame them for that, it's still better than nothing.

What we need is to find a practical way of distributing prior art and, most importantly, nonobviousness examination, à la Open Source, ideally.

Re:Way to go Red Hat!

[Anonymous Coward]

There is a simple way to fix this. Put the burden of the cost of proving that a patent is in fact new on the party filing.

Put a filing deposit of say $100,000 which is to be held, say 10 years, by the patent office. Put a bounty on any patent that is filed and if proved invalid the filing deposit is split 50/50 with the parties proving a patent is invalid and the Patent Office who would be reviewing this proof of an invalid patent.

This would solve two tihngs: It would slow down stupid filing as it would cost money to do so. Two, it would "pay" to have the bogus patents invalidated.

Re:Way to go Red Hat!

[Anonymous Coward]

I like it. I really like your idea :-) But there must be some sort of proportionality to the applicant's wealth, otherwise Microsoft et al. will still dominate the field, and individuals or small companies will be excluded. And before filing, you must prove that you have done extensive research on prior art, and face (again proportional) damages if your bad faith is later proven, or the application is undisputably shown to be obvious.
Any other ideas?

Re:Way to go Red Hat!

[cetialphav]

How about changing the law so that punitive damages could be awarded against blatant patent trolls such as Acacia?

The problem is that it is hard to argue to a court that Acacia deserves punitive damages. The courts start with the assumption that all patents are legitimate. They do not rank patents based on quality. They have all been reviewed by impartial technical experts and been blessed by the USPTO. It is extremely difficult to argue (and win) to a court that the patent office screwed up.

I think blaming people like Acacia misses the point, because this isn't about punishing people. The real problem is that too many non-innovative things are becoming patented. The problem isn't the patent trolls; the problem is the patent system. The trolls only exist because the system is broken. Punishing trolls does nothing to fix the underlying system.

Re:Way to go Red Hat!

[Anonymous Coward]

Replying to my own reply...
It just struck me that what you describe is the good ol' US bounty system. The more I think about it, the more I like it, and it should be enabled at every stage of the process. Instead of worthless patents filed by patent trolls or anyone, we would have patent busters, I mean patent bounty hunters, making money by helping the system getting rid of the former. Not to mention competitors, happy to oblige...

Re:Way to go Red Hat!

[Anonymous Coward]

who said hire them? Put the patents online for a community to approve or deny.

Re:Way to go Red Hat!

[Anonymous Coward]

How did you get from "Red Hat and Novell won" to "you should pay Red Hat for support"? Perhaps a little kudos to Novell as well are in order here?

Re:Way to go Red Hat!

[Anonymous Coward]

Punishing trolls does nothing to fix the underlying system

So, can RedHat sue the USPTO for the losses they incurred? After all, a jury has already ruled that the patent should never have been awarded

Re:Way to go Red Hat!

[Scarletdown]

How about changing the law so that punitive damages could be awarded against blatant patent trolls such as Acacia? (Don't get me started about the cynical, useless bastards at SCO).
Better still, how about making 'stifling innovation through frivolous patent suits' a Federal / criminal offense?

Or even better, how about letting software be protected under a different system, like perhaps copyright, and leave the patent system to actual physical inventions and innovations?

Or is that too novel an idea?

Re:Way to go Red Hat!

[Crazy_CorranH]

They need some way to fund their defence case (or at least I'm guessing that is the reasoning behind it)

Re:Way to go Red Hat!

[TheRaven64]

Not really. If you're a patent troll, there's no point suing a company that doesn't have the money to pay you. You're more likely to try the IBM approach with smaller companies; offer them a flat-rate patent licensing deal. Make it cheap, so it's cheaper for them to agree than for them to win in court, then you can use 'we have 10,000 licensees for this patent already' as an argument when you go after the bigger guys.

Re:Way to go Red Hat!

[TheRaven64]

Patent applications are online already. The problem is that there is no real incentive for people to contribute. If you find a bit of open source code that does almost what you want, then there's an incentive for you to add that feature, but what do you get from reviewing patents? It takes time, and if you file a claim of prior art which is deemed invalid and the patent still granted then there's evidence that you've read the patent so any infringement jumps to triple damages for wilful infringement.

If patents had to be accompanied by a description designed to be readable by an engineer, rather than a lawyer, and came with compulsory licensing requirements, then there might be such an incentive. If you saw something useful, you could just pay the fee and get to incorporate it in your own product immediately.

Even that doesn't help with the non-obvious requirement. This is very difficult to test. If an engineer, when presented with the problem, comes up with the same solution, then the solution is obvious, but in a lot of cases the clever bit is identifying the problem. This applies to science too: anyone with a reasonable degree of mathematical knowledge can derive the equations for special relativity, but it took Einstein to ask the right questions.

Re:Way to go Red Hat!

[TheRaven64]

This seems like the best suggestion so far. Make filing an invalid patent a civil offence. If you find an invalid patent and can prove prior art or obviousness, then you can sue the company or individual that filed it. If you win, then they are required to pay you statutory damages, are required to refund all licensing fees that they have collected plus 50%, and are prevented from filing a patent infringement suit for six months per invalid patent. Introduce the law with a one year amnesty, in which patent owners can disclaim their own patents and avoid liability.

Re:Way to go Red Hat!

[TheRaven64]

Probably the same way the headline goes from 'Red Hat and Novell won' to 'Red Hat Prevails'. Remember, Novell (the second-largest contributor to OpenOffice, massive contributor to GNOME, contributor to Linux, Xen, and a number of other projects) is a Microsoft shill and hates open source, while Red Hat can do no wrong.

Re:Way to go Red Hat!

[TheRaven64]

The problem is that the lines between software and hardware are increasingly blurred. With increasing degrees of configurability of machinery, software is more akin to a design than a device. If you have something like a RepRap machine and you use it to create some novel widget, should the widget be patentable, but not the design of the widget? How, exactly, do you separate the two? What about things like software defined radio? If you burn an algorithm into an FPGA, is it now patentable? What about an ASIC?

Software patents highlight the deficiencies of the patent system, they don't introduce new ones.

Re:Way to go Red Hat!

[Anonymous Coward]

How about changing the law so that punitive damages could be awarded against blatant patent trolls such as Acacia? (Don't get me started about the cynical, useless bastards at SCO).

Once again, the SCO/Novell lawsuit was over copyrights, not patents.

Re:Way to go Red Hat!

[Jer]

They completely lost their patents, they were shown to be invalid. That is the first time I've ever heard of that happening. If that becomes common, companies will be a lot more careful about what patents lawsuits they file, for fear of losing the patent. This is an extremely good precedent.

What's the risk of losing a patent that is unenforceable, especially if your business model is basically extortion (i.e. you don't produce anything yourself but you sit on patents waiting for someone to produce something similar to your patent and then sue, hoping for a licensing settlement)? If you don't sue your patent is worthless anyway - the only reason you have it is to give you something to sue over. I agree Acacia lost something here - their investment of money in the lawsuit process. But that's all they really lost - they weren't going to make any money sitting on a patent they were never willing to bring to a lawsuit. Given their business model, that's just a "cost of doing business" and may not act as a deterrent at all to future companies, or even future actions by this same company.

That brings up a good question - they've had these patents for a long time. Are Redhat and Novell the first companies they tried to exercise them against, or are they just the first companies that didn't blink and pay for a licensing agreement? If your business model is basically extortion, every small company that blinks and pays out on your bad patent is money in the bank.

Re:Way to go Red Hat!

[phantomfive]

That brings up a good question - they've had these patents for a long time. Are Redhat and Novell the first companies they tried to exercise them against, or are they just the first companies that didn't blink and pay for a licensing agreement? If your business model is basically extortion, every small company that blinks and pays out on your bad patent is money in the bank.

Exactly, the more patents become invalid, the weaker their business model becomes. This is the first time I've heard of this patent defense working. If it becomes more common, it will be a lot harder for patent trolls to exist.

patent trolling

[portnux]

Since the entire concept of patents is to support innovation, why not give patent a specific and limited amount of time to actually incorporate their ideas and if that isn't met the patent is invalidated? This I think would at least limit patent trolling.

Re:patent trolling

[Theaetetus]

Since the entire concept of patents is to support innovation, why not give patent a specific and limited amount of time to actually incorporate their ideas and if that isn't met the patent is invalidated? This I think would at least limit patent trolling.

Would be tough... Patents are a property right. We don't normally take peoples' property away if they're not using it in ways that we'd like, but maybe you could make an argument under Kelo v. City of New London that it's an eminent domain taking. Plus, it wouldn't be invalidating the patent - it would be assigning it to the government, who then releases it free into the public domain.

Re:patent trolling

[butlerm]

None of that applies to legislative restrictions on patents that will be granted in the future. Patents are a form of artificial property created by the government, and the government can establish what shape, form, limitations etc apply to them, including refusing to grant any patents at all, making them all expire in six months, requiring mandatory licensing, setting auto-invalidation provisions, or practically anything else the legislative branch thinks is socially beneficial.

Not only that, the current laws regarding obviousness and prior art are so vague that Congress could do an enormous amount of legislating without legally depriving current patent holders of their property at all, because patents are only valid within the context of the statutory law under which they were granted. That is why they can be invalidated and overturned if a legal determination is made that law was not properly followed.

In most common law countries, you can lose your title to real property too, if a proper title search was not performed. i.e. such titles were never valid in the first place. Unlike condemnation proceedings, the government does not compensate you if you don't do the necessary work to gain clear title. Likewise for patents that turn out to have prior art, etc.

Re:patent trolling

[coppro]

Would be tough... Patents are a property right. We don't normally take peoples' property away if they're not using it in ways that we'd like, but maybe you could make an argument under Kelo v. City of New London that it's an eminent domain taking. Plus, it wouldn't be invalidating the patent - it would be assigning it to the government, who then releases it free into the public domain.

Some patent laws provide provisions by which a patent holder can be seen to be abusing their patent and have conditions forced upon them, but these seem to get rarely used (Here's Canada's Patent Act as an example).

Re:patent trolling

[Theaetetus]

None of that applies to legislative restrictions on patents that will be granted in the future. Patents are a form of artificial property created by the government, and the government can establish what shape, form, limitations etc apply to them, including refusing to grant any patents at all, making them all expire in six months, requiring mandatory licensing, setting auto-invalidation provisions, or practically anything else the legislative branch thinks is socially beneficial.

Not exactly... First, they're restricted under the Patent Cooperation Treaty and TRIPS, such that they can't refuse to grant patents, or give them a term less than 20 years.
Second, 35 USC 102 says a person is "entitled" to a patent. Entitlement rights are different from granted rights - an entitlement cannot be taken away without due process.

Not only that, the current laws regarding obviousness and prior art are so vague that Congress could do an enormous amount of legislating without legally depriving current patent holders of their property at all, because patents are only valid within the context of the statutory law under which they were granted.

In what way are they vague?

Re:patent trolling

[butlerm]

First, they're restricted under the Patent Cooperation Treaty and TRIPS

Any country can withdraw from a treaty at will. Not very likely in this case, but possible if the issue was deemed to be important enough.

35 USC 102 says a person is "entitled" to a patent.

35 USC 102 is a section titled "Conditions for patentability; novelty and loss of right to patent". It describes when a patentee is entitled to be granted a patent, and under what terms and conditions, included those by which the patent may be determined to be invalid. In any case, subject to the restriction on ex post facto laws, the law can be changed.

In what way are they vague?

They are vague to the degree that major issues of how to interpret certain provisions of patent law are constantly before the courts, for example how to interpret the following:

"A patent may not be obtained...if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art" (35 USC 103 (a))

Exactly what is "obvious", and what is "ordinary skill in the art" are questions that could use substantial legislative elaboration. What about this provison:

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (35 USC 101)

There is a major legal dispute over whether this covers software and business method patents. Congress should clarify the law outright, rather then letting the issue drift back and forth in the courts for decades. Major issues of public policy should be decided by the people's elected representatives.

Re:patent trolling

[Theaetetus]

Any country can withdraw from a treaty at will. Not very likely in this case, but possible if the issue was deemed to be important enough.

Sure, if they don't mind getting hit with economic sanctions and tariffs by all of the other countries in the treaty.

35 USC 102 says a person is "entitled" to a patent.

35 USC 102 is a section titled "Conditions for patentability; novelty and loss of right to patent". It describes when a patentee is entitled to be granted a patent, and under what terms and conditions, included those by which the patent may be determined to be invalid. In any case, subject to the restriction on ex post facto laws, the law can be changed.

Yes, I know what the section is called. I am, in fact, a registered patent agent. What you may not realize is that the title has no legal weight - for example, the "PATRIOT" act is not very patriotic, in spite of the title.
What I was attempting to point you towards was the word "entitled". Entitlement is different than a granted privilege. You may obtain a driver's license - you are not entitled to a driver's license. You are entitled to own property, have equal protection of the laws, are entitled to the immunities and privileges granted by various states, etc. Entitlement is a step further than a privilege - it cannot be removed without due process of law.

In what way are they vague?

They are vague to the degree that major issues of how to interpret certain provisions of patent law are constantly before the courts

If that were the definition of "vague", then everything is "vague", from contract law, to tort law, to personal injury law, to divorce law, etc., etc.

for example how to interpret the following:

"A patent may not be obtained...if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art" (35 USC 103 (a))

Exactly what is "obvious", and what is "ordinary skill in the art" are questions that could use substantial legislative elaboration.

Or substantial judicial elaboration. See, under a common law system such as we have, statutes are not required to explicitly name all situations. In fact, that would be quite a bad thing - you notice that the Constitution says nothing about telephones, or software, or automobiles. In fact, the entire Constitution is a mere twelve pages... that's one of the reasons that we've had such a stable country: it may be reinterpreted as times change.
Similarly, the original patent act was written in 1790. There were many situations they didn't contemplate, which is why they left the statute open ended. That doesn't mean it's vague - it's quite precise, but also quite broad and expansive.

KSR v. Teleflex gives a good list of tests for whether something is obvious. Obviousness itself is not a legal question, though. It's a fact question. If Congress were to expand the statute, it would still just be to create a list of tests - probably copy the same ones from KSR. But it would still be a factual question for a jury in each and every case.

What about this provison:

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (35 USC 101)

There is a major legal dispute over whether this covers software and business method patents. Congress should clarify the law outright, rather then letting the issue drift back and forth in the courts for decades. Major issues of public policy should be decided by the people's elected representatives.

Actually, in spite of what Slashdot would like to think, there'

Re:patent trolling

[Anonymous Coward]

Exactly what is "obvious", and what is "ordinary skill in the art" are questions that could use substantial legislative elaboration.

See, I'm rather coming from the scientific mind set than from the legal. Let's introduce an "obviousness test":

• Pose the problem to N reviewers from the field. Say N=10.
• When more than K come up with a solution "indistinguishable from the application" (which should be decided by majority vote of those N experts), then reject the patent. We'd want to set K fairly high, say K=8.
• The cost of the process should be some exponential of the number of experts who've come up with "the same idea". For example: 100 * 2^n -- so if zero experts come up with your idea, you pay 100, if all of them hit it, you pay 102400 (and are not granted the patent, since 10 > K; note that I would favor a base slightly greater than 2).

This would create some incentive to submit non-obvious ideas.

Re:patent trolling

[TheRaven64]

The problem with this is that it favours large companies. A really useful patent may require a large manufacturing base to properly commercialise. Imagine if you invent something that makes hybrid car engines 20% more efficient. Can you put it into production? Not easily, but maybe you could buy some factory time. You can't really commercialise it properly without cooperating with a car manufacturer though, because it's only useful in conjunction with the rest of the engine. So you patent it and approach Honda and Toyota. With the current system, they either license it, or wait 20 years before they can use it.

With your system, they just have to wait a year or two, and then they can use it for free.

Thank you Linux.....

[commodore64_love]

I had spyware on my Windows XP-PC which AdAware dutifully removed. But unfortunately the removal of the spyware damaged by RAID configuration, so I could no longer reboot the system.

A Linux Live CD allowed me to look at my 2 hard drives, determine they were undamaged, and reconstruct the RAID. Thanks Linux. Maybe if Microsoft was not so short-sighted, they too would allow Windows Live CDs for emergencies like this one.

Re:Thank you Linux.....

[Loconut1389]

While not allowed by any stretch google Hiren or MiniPE.

Texas and patents

[esocid]

Whoa. Did I just read "Marshall, TX" and "patents were invalid" in the same sentence? Someone should check that the earth's polarity just didn't go through a reversal.

Re:Texas and patents

[Anonymous Coward]

The polarity did reverse! Even twice! Look at it!

Re:Texas and patents

[noidentity]

Whoa. Did I just read "Marshall, TX" and "patents were invalid" in the same sentence? Someone should check that the earth's polarity just didn't go through a reversal.

You have to take into account the high concentration of residents who are experts on software patent law.

Re:Texas and patents

[harlows_monkeys]

Whoa. Did I just read "Marshall, TX" and "patents were invalid" in the same sentence? Someone should check that the earth's polarity just didn't go through a reversal

Defendants have been doing well in patent suits in Texas for a few years. The notion that EDT somehow unduly favors plaintiffs is a myth.

Note that the expected outcome of a patent suit is a win for plaintiffs, pretty much in any district, for the simple reason that it is plaintiffs who decide to bring suit. It costs a lot of time and money to get a case to the point of filing a patent suit, so the only ones that make it to court are ones where the plaintiff has spent considerable effort in determining that they have a decent chance of winning.

Plaintiffs choose EDT not because they think it favors them. They choose it because many other plaintiffs chose it, and so the courts there have experience with patent litigation. Patent litigation is complex, so both plaintiffs and defendants really want judges who are experienced in it.

Of course, that raises the question of how EDT got started in patents in the first place. I believe that it started when a particular judge there, with a background in computer programming, worked on a complex patent case as a lawyer, before he became a judge. He enjoyed the challenge, and when he became a judge, he made it a point to try to be assigned any patent cases that came up in EDT. That in turn caused more people to file in EDT, and so on.

Another factor is that there is not much federal crime going on in EDT. Patent suits are civil, not criminal. Criminal cases take priority over civil cases, because of the Constitutional right to a speedy trial in criminal cases. In a district with a busy criminal element (and the braindead "war on drugs" has ensured that there is a steady supply of federal crime in many districts), it can take years to get court time for a civil case. Hence, plaintiffs seek out districts that have light criminal calendars.

Sanity prevails, at least this time.

[Gearoid_Murphy]

It's good to see these trolls taking a hit for once, it always seems like they've got the upper hand, especially with the dysfunctional patent system.

Cynical?

[Frosty Piss]

Given that "Patent Trolling" brings a *LOT* of court business to that particular jury pool, I wonder how smart the folks in Marshal Texas really are? Suppose they know more than we assume, but also understand that if they nullify every dumb-assed patent that comes their way, the Patent Trolls will take their business (and $$$) elsewhere? Cynical?

No. Patents are no property

[Anonymous Coward]

Patents are no property. Just a time-limited monopoly (sometimes even that is bad enough).

That's what the "IP crowd" want us all to believe: by repeating the meme "IP" they want copyrights, trademarks and patents to be at one level with property rights, to play the same stupid capitalistic games they are accustomed to play with their "assets".

And if we are not careful and swallow this meme, someday they'll succeed, bit by little bit. Laws, after all, reflect the values and beliefs of society -- laws will follow if we all swallow.

So: please don't talk about "Intellectual Property". Say "Intellectual Poverty", or whatever.

Remind your friends: there's no IP.

Money??

[Anonymous Coward]

It just costs money for the jurors. Hardly anyone who serves on a jury makes more money than they would in their regular job. As to the courts litigating for profit..hmm..google ninth circuit, scandal, mortgages, bankruptcy nasty can 0 worms there

Re:Money??

[joelsherrill]

I have jury duty this week in Huntsville Alabama and I will be paid $10 a day plus $.05 per mile for travel to and from the court house. If I am dismissed on the first day, I get nothing. So at least here, you would make more begging or on unemployment than jury duty.

Re:Money??

[Anonymous Coward]

You're talking about county or state jury duty. Federal jury duty (at least where I live) pays $40/day. Not bad for skipping work. :)

I'd like to

[zogger]

The same way that MS makes a few bucks..coming preinstalled on PCs. The consumer pays for the software, but never really sees it either the way it is packaged. I have no idea why red hat and canonical don't just sell computers, with their software preinstalled, guaranteed to "just work". Both companies are large enough to fund production runs of computers and get good wholesale prices over in asia, so they could be cost competitive. Heck, they could gauge interest in advance just by running a poll on their support forums to see if people might be interested, what types of hardware, what they thought would be a fair price, etc.

Groklaw post: "This is only a temporary victory"

[walterbyrd]

A poster on groklaw has a much more pessimistic view. Sadly, I think the poster makes some sense:

Something similar is going to come up again in the future. And again, and again, with different plaintiffs and different patents.

Eventually, because there's a random element in jury decisions, one of them will win big. Winning a jury verdict when you deserve to lose is a bit like throwing a double 6 with dice. The odds are against you, but if you keep trying, it will eventually come up.

If you understand that, then you will also understand that in the long run, a victory for one of these patent trolls is certain. Long term, there is no solution as long as software can be patented.

Re:Groklaw post: "This is only a temporary victory

[/dev/trash]

Sorry. Software patents are here to stay. Quit infringing and all is okay.

Oh but it is about punishing people

[SmallFurryCreature]

The west is being torn apart by the lack of accountability. The banks, the governments who failed to supervise the banks, the voters who elected the politicians who didn't do anything time and time again. We now have capitalists trying to tear apart European countries to make a quick buck. If a few pirates dare to interrupt shipping we send in war ships and blow their brains out, but if capitalist hold entire economies hostage we think this is good business.

Acacia is seriously hurting the economy because nobody can afford to do business without deep pockets to protect against them. It means no startup stand a change anymore once a patent troll comes looking and even big companies are constantly at the mercy of the poor saps who didn't manage to get out of jury duty.

When a flea bites you, you might shrug it off as harmless, but when you are being swarmed by parasites, you got to start killing them and go after their unborn children as well. Or you are going to die.

Ask yourself, what has been done to stop the banks and other industries from having to be bailed out again? Answer: Absolutely nothing. How many times do you think the US and EU can afford to do this? In Europe first it was Iceland that went belly up, and added a couple of thousand to Dutch and British tax payers. Now it is Greece, with the government there having deceived regulators who didn't check anything because they were not allowed but all the time we were told that the EU was good for us and that it worked so well. And now it is becoming clear that pretty much all of the garlic nations are in deep shit and just waiting to fall over. Oh goodie, we propped them up with countless donations when they joined because it would pay of in the long term. Well this is the long term and they need yet more cash.

And at no point is anybody going to jail. Or stripped of power and privilege.

If you don't punish people, you don't correct behavior. The system itself ain't broken, it is designed to be controlled from within, but when you no longer put sanctions on bad behavior and control, then it fails. Think of it as an engine. If I remove the oil, then the engine isn't broken, but it will be soon enough. The design of the engine is solid, you just need to replace the operator and put the previous operator as a warning next to it, on a spike.

but wait, what about the PTO

[init-five]

The trolls were doing what trolls do - but the PTO seems to be their biggest enabler and profiting in the process. Why in the world would a patent like the one cited be awarded? And now that it turns out the patent is bogus why can't the PTO be held liable for creating the mess in the first place?

Re:but wait, what about the PTO

[Anonymous Coward]

IANAL, so what I am about to say can be taken with a grain of salt, so to speak. IIRC, there is a law, at least in the US, that more or less forbids anyone from suing the federal gov't or it's agencies. Kinda hard to hold the USPTO liable for anything if they are immune to liability via legal fiat. What CAN be done, if I understand it correctly, is to either have another federal agency/ branch/ official investigate for any breach of the law, at which point it's likely "not your problem" anymore, or you may be able to sue a particular individual within the offending agency.....assuming you can even identify the person responsible for your hassle, have deep enough pockets to pursue the matter, and somehow manage NOT to screw up on procedure along the way. Where some kind of institutional abuse is concerned, your best bet is to write your local Congresscritter and hope for the best. As IANAL, there may be better options out there that I am unaware of, but I think the point can be made that the average "Joe Citizen" will find the system set up such as to make it rather difficult to accomplish much of anything in a timely manner, if at all.

Wondering?

[Anonymous Coward]

With more and more invalid patents being deemed and bringing undue hardship on companies and individuals think it would be possible to slap a civil lawsuit on the USPTO?

They're no good!

[Anonymous Coward]

Why should the property of "IP" be more valuable than the application of said knowledge? It seems far more constructive to actually use the knowledge, rather than tie it up to someone's bank account.

Red Hat Novell

[dontgetshocked]

Wow,th is great news.The folks over at Marshall,Texas are nothing but Trashy trolls.Being from Texas I don't condone there evil ways.Greed and low morals wreak from Marshall,Texas.Long live open source,may they live long and prosper.