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Patent Issued Covering Phone Notifications of Delivery Time and Invoice Quantity

Posted by Soulskill on from the i-should-patent-the-rubber-stamp dept.

eldavojohn writes: The staggering ingenuity of the U.S. Patent system has again been showcased by the EFF's analysis of recent patents. This week's patent and follow-up patent cover the futuristic innovative idea that when you order something, you can update your order and add additional amounts to your order while it's being processed. But wait, it gets even more innovative! You may one day be able to even to notify when you would like it delivered — on your phone! I know, you're busy wiping all that brain matter off your screen as your head seems to have exploded. Well, it turns out that inventor and patent holder Scott Horstemeyer (aka Eclipse IP, LLC of Delray Beach, FL) found no shortage of targets to go after with his new patents. It appears Tiger Fitness (and every other online retailer) was sending notices to customers about shipments. Did I mention Horstemeyer is a lawyer too? But not just a regular lawyer, a "SUPER lawyer" from the same firm that patented social networking in 2007, sued Uber for using location finding technologies in 2013 and sued Overstock.com as well as a small time shoe seller for using shipping notifications in 2014. A related article at Vox makes this case: "The primary problem with the patent system is, well, the patent system. The system makes it too easy to get broad, vague patents, and the litigation process is tilted too far toward plaintiffs. But because so many big companies make so much money off of this system, few in Congress are willing to consider broader reforms."

60 comments

  1. Prior art by Anonymous Coward · · Score: 1

    Doesn't the fact that something existed prior to the patent invalidate suing for patent infringement?

    1. Re:Prior art by jythie · · Score: 1

      It depends. Prior art might invalidate it, or they might have a section in the patent referencing the earlier material and how they build off of it. Either way, the process of finding out is expensive.

    2. Re:Prior art by TheCastro1689 · · Score: 1

      He could have sent the patent years ago, which is likely, and it was approved recently.

    3. Re:Prior Art by TheCastro1689 · · Score: 2

      I hold the patent on using your phone to complain to your husband that the kids are behaving poorly. We should start a company together.

    4. Re:Prior art by avandesande · · Score: 1

      How long have businesses been communicating with customers via text messaging?

      --
      love is just extroverted narcissism
    5. Re:Prior art by Jason+Levine · · Score: 3, Interesting

      Or, he filed the patent years ago, and then filed a series of updates to it. Each update delays the final "approval date" and allows him to modify the patent. Over time, he can craft a vague sounding patent and/or one that covers existing technology. Then, his "prior art date" is from a year before when he INITIALLY filed the patent. So while the final patent might have been considered innovative if filed as-is on the initial filing date, patent trolls abuse the "update" system to draw their patents out until they are hard to beat via prior art.

      Or, even more likely, the patent examiners said "We'll approve this and let the courts sort it out." Meanwhile, the courts are likely to say "Well, the patent examiners wouldn't have approved this if it wasn't a valid patent."

      --
      My sci-fi novel, Ghost Thief, is now available from Amazon.com.
    6. Re:Prior Art by Mr+D+from+63 · · Score: 1

      I am going to patent a method for detecting incompetent patent reviewers.

    7. Re:Prior art by Nidi62 · · Score: 3, Interesting

      Or, he filed the patent years ago, and then filed a series of updates to it. Each update delays the final "approval date" and allows him to modify the patent. Over time, he can craft a vague sounding patent and/or one that covers existing technology. Then, his "prior art date" is from a year before when he INITIALLY filed the patent. So while the final patent might have been considered innovative if filed as-is on the initial filing date, patent trolls abuse the "update" system to draw their patents out until they are hard to beat via prior art.

      Simple fix for that would be that any time an update is submitted that date becomes the new intial filing date of the patent. The better fix would be to get patent examiners who actually do their jobs and investigate and think about whether a patent should really be granted instead of jsut spending 5 minutes on it.

      --
      The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
    8. Re:Prior Art by Anonymous Coward · · Score: 0

      I'm going to patent your mom.

    9. Re:Prior art by SlaveToTheGrind · · Score: 1

      Exactly -- TFP says it claims priority to an application filed in 2003.

    10. Re:Prior art by mwvdlee · · Score: 5, Insightful

      These IP trolls usually calculate how much it would cost for their victims to fight the patent, win or lose, then make a settlement offer slightly below that.

      IMHO, the patent system isn't flawed, it's the lackluster way patent offices grant new patents.
      They should be held accountable for bad patents.

      --
      Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
    11. Re:Prior art by LogicLoop · · Score: 1

      IMHO, the patent system isn't flawed, it's the lackluster way patent offices grant new patents..

      The patent office isn't part of the patent system??

    12. Re:Prior art by Nemyst · · Score: 1

      Or make each incremental update increase the total cost of the patent application by 10x. I'd love to see them squirm at that.

    13. Re:Prior art by Livius · · Score: 1

      Nothing prevents suing, and a lot can prevent winning a lawsuit even if the law is unambiguously on your side.

    14. Re:Prior Art by pieterh · · Score: 1

      Your mum's so FAT32...

      --
      My blog
    15. Re:Prior art by ripvlan · · Score: 1

      I just can't believe that FedEx/UPS isn't already doing something like this. Each driver carries a "mobile device" for which package pickup instructions are sent. "Please pickup 1 item at Business X" and later "Please pickup 2 items at Business X" Plus when the driver delivers the package they scan the item to mark it as delivered.

      I know that Police cars and Fire trucks are "mobile things" - which are tracked and they know when they arrive at destination. AND - the Seattle bus system already tracks buses and sends you a text msg saying "the bus will be at your stop in 10 minutes" My friend has been using that app for many many years. Granted you aren't adding more items and exchanging money. But the prior art is thick.

      and - what is the difference between a text message and email? If I had a web page that refreshed (polled) to show this status --- is that a new patent?

    16. Re:Prior art by Man+On+Pink+Corner · · Score: 1

      If the USPTO actually applied the required standards of nonobviousness and nontriviality, these stupid patents would never have been granted.

      Unfortunately, their incentives are diametrically opposed to common sense. There is literally no downside for a USPTO examiner to rubber-stamp everything on his or her desk. They get to go home early to beat the traffic, while productive society is left to deal with the legal fallout. The net effect is to devalue legitimate IP while rewarding the trolls.

      This, I think, is what really needs to change. Somehow, the feedback loop has to be closed in a way that incentivizes the examiners to throw out vague, egregious patents on abstract concepts.

    17. Re:Prior art by bmo · · Score: 1

      Unfortunately, their incentives are diametrically opposed to common sense. There is literally no downside for a USPTO examiner to rubber-stamp everything on his or her desk. They get to go home early to beat the traffic, while productive society is left to deal with the legal fallout. The net effect is to devalue legitimate IP while rewarding the trolls.

      THIS IS WHY WE CAN'T HAVE NICE THINGS

      It's because of this and copyright abuse that I think, sometimes, that we should just chuck it all and rely on trade secrets and a free-for-all on copyright. These jerks are not just poisoning the well, they're throwing dead goats in it.

      --
      BMO

    18. Re:Prior art by Anonymous Coward · · Score: 0

      These IP trolls usually calculate how much it would cost for their victims to fight the patent, win or lose, then make a settlement offer slightly below that.

      This sounds more like a problem with suing than with the patent office. Our European friends must be wondering why they don't simply fight the patent claim and then make the IP trolls pay the legal costs. Because that's what happens in a real legal system.

      They should be held accountable for bad patents.

      And how do you plan to do that? You can't hold patent examiners accountable -- they might not even be with the patent office by the time that the patent is challenged. So who are you holding accountable?

      We should stop pretending that patent examiners are qualified to review patents without help. The only people who are really qualified to review patents are engineers who could write their own. Are we really willing to spend six figure salaries on patent examiners with doctorates? How would they know that an invention is obvious? Really, what they can do is check to see if there's related patents and that all the fields are filled out in the form. Technical juries composed of members of the relevant field should be the ones to evaluate patents.

      To keep costs down, we should only evaluate patents when there is a conflict. Then there can be qualified people on both sides arguing for and against each patent. A patent application is a team of people versus a single examiner. Why do we act surprised when the team beats the individual? Opposing teams each with an incentive to make their case would more effectively balance the competing interests.

      We should also insist that all patent applicants testify to the existence of a prototype. Then when the case is brought, they should have to submit the prototype as evidence. Then people can evaluate whether the prototype matches the allegedly infringing invention.

    19. Re:Prior art by Sloppy · · Score: 1

      Last I heard, nothing invalidates suing anyone for anything. As long as defense is expensive, extortion will be an option.

      --
      As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
    20. Re:Prior art by Registered+Coward+v2 · · Score: 1

      Unfortunately, their incentives are diametrically opposed to common sense. There is literally no downside for a USPTO examiner to rubber-stamp everything on his or her desk. They get to go home early to beat the traffic, while productive society is left to deal with the legal fallout. The net effect is to devalue legitimate IP while rewarding the trolls.

      Alternatively, so many patents are filed that in order to work through them an examiner must spend the minimum time possible as well s avoid re-examination if he or she refuses it so the rational thing to do is approve all unless it is obviously not patentable. The legal system can then sort out what is valid and what is not.

      A solution would be to hire more examiners or make a patent case loser pay if the holder loses the suit but that would involve Congress actually looking at realistic solutions.

      --
      I'm a consultant - I convert gibberish into cash-flow.
    21. Re:Prior art by Anomalyst · · Score: 1

      These jerks are not just poisoning the well, they're throwing dead goats in it.

      Is that before or after they sodomize the goat?

      --
      There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
    22. Re:Prior art by Anomalyst · · Score: 1

      a logarithmic fee increase would be better, apply the additional funds towards deeper and more comprehensive examination of that patent.

      --
      There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
    23. Re:Prior Art by gstoddart · · Score: 1

      Sorry, but all patent reviewers are incompetent. That's the job description these days.

      They don't give a fuck as long as the check clears.

      --
      Lost at C:>. Found at C.
    24. Re:Prior art by Theaetetus · · Score: 1

      Or, he filed the patent years ago, and then filed a series of updates to it. Each update delays the final "approval date" and allows him to modify the patent. Over time, he can craft a vague sounding patent and/or one that covers existing technology. Then, his "prior art date" is from a year before when he INITIALLY filed the patent. So while the final patent might have been considered innovative if filed as-is on the initial filing date, patent trolls abuse the "update" system to draw their patents out until they are hard to beat via prior art.

      That's simply not true. While patent applicants can file continuation applications with revised claims, they must have support in the originally-filed application, and the applicant cannot modify the original application at all. If anything is added that wasn't in the original document, then the "prior art date" is moved to when the modification was added. See http://en.wikipedia.org/wiki/Continuing_patent_application#Continuation.

  2. Prior Art by RabidReindeer · · Score: 4, Funny

    Does this conflict with my patent for sending a message to mom asking when supper's ready?

  3. US patent system is fine - leave it alone by Anonymous Coward · · Score: 0

    This gentleman put in very hard work to invent the future we live in - he deserves the right to sue all infringers and get rich - just remember to donate a little to the poor good sir!

    1. Re: US patent system is fine - leave it alone by Anonymous Coward · · Score: 0

      We need a business process patent that covers patent trolling. Problem solved?

  4. What?! by wardrich86 · · Score: 1

    How can you patent something that's already in production and exists?! I'm gonna patent farting!

    1. Re:What?! by Anonymous Coward · · Score: 5, Funny

      Not gonna happen. I can demonstrate prior fart.

    2. Re:What?! by ClickOnThis · · Score: 1

      +100 Funny

      --
      If it weren't for deadlines, nothing would be late.
    3. Re:What?! by ClickOnThis · · Score: 1

      How can you patent something that's already in production and exists?! I'm gonna patent farting!

      You're too late ... sort of.

      --
      If it weren't for deadlines, nothing would be late.
    4. Re:What?! by ClickOnThis · · Score: 0

      Especially the "demonstrate" part.

      --
      If it weren't for deadlines, nothing would be late.
    5. Re:What?! by wardrich86 · · Score: 1

      I am both overjoyed and lost for words that such a patent exists.

    6. Re:What?! by MobileTatsu-NJG · · Score: 1

      How can you patent something that's already in production and exists?!

      To discover that you have to read the patent. Now, lucky for you, this particular patent seems to be devoid of any real distinction, but most of the time you see a story about a patent here on /. the headline says "Apple patented farting!" but the patent itself actually says "Apple patented a valve that makes a user's farts smell like Granny Smith Apples" that few, if any, are likely to infringe on. Unfortunately the former generates more ad-revenue.

      --

      "I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)

    7. Re:What?! by tommeke100 · · Score: 1

      claim 34: never fart on another man's balls

  5. this is such BS by Anonymous Coward · · Score: 0

    Come on guys really???

    Can I patent the color of the sky and charge royalties from people whom look up to it?>

    Can I patent the action of deficating into a toilet basin and also charge royalities for the action?

    Can I patent the act of urinating into an apparatus that resembles a Urinal, and collect royalties for the action of such?

    Can I patent the act of flushing a toilet in such a manner that it self is unique, and thus collect royalties on that action?

    I mean really where does it stop? or go for that matter.

    I mean reallly people

  6. Require patents to advance the state of the art by Anonymous Coward · · Score: 0

    A lot of these shitty patents would be fixed if we simply required that. Inserting "Tab A" that someone else invented into "Slot B" that someone else invented does nothing to further the state of the art, especially when the actual inventors clearly marked the tabs and slots for you. Anything already doable "by email", should not be patentable "by phone" especially since email to SMS gateways were invented, making everything done by email automatically doable by phone.

    Looking at the first patent, it claims a priority date to 2003, when did SMS gateways start?

    1. Re:Require patents to advance the state of the art by Gr8Apes · · Score: 1

      Beats me, but I wrote a notification service in 2007 using Kannel and that goes back to Oct 2004 date as the reference implementation for WAP 2.0.... Something tells me it's older than that. In fact, IIRC, I wrote an email/SMS sending app back around 2003 that leveraged some commercial service for another job, and they weren't new either, but I can't recall who that was.

      --
      The cesspool just got a check and balance.
  7. Does it appily to a form or freee txting? by Anonymous Coward · · Score: 0

    come on guys,, this is mental masturbation.

  8. Inventions vs. Engineering by bill_mcgonigle · · Score: 1

    I heard the acute problem aptly summarized recently: "Patents are supposed to cover inventions, but what they're being issued for is mere engineering."

    This is a better metric than the "obviousness test" - what is the essential and genius inspiration that led to a the idea of putting a delivery message in a SMS message? There is none - no patent.

    I realize the entire system has evolved into one giant mechanism to enrich entrenched corporate interests, but it's still a good insight into how maybe the system could have been designed less-wrong from the beginning.

    --
    My God, it's Full of Source!
    OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
    1. Re:Inventions vs. Engineering by Mr+D+from+63 · · Score: 2

      It is a shame that the patent office views patents applications as a source of income, so they don't want to discourage patent applications by rejecting them.

      It would be interesting to see the percent rejections over time.

    2. Re:Inventions vs. Engineering by Gr8Apes · · Score: 1

      They reject quite a few, try submitting one sometime. It takes time and effort to push it through. The real issue is that a patent should come with a working prototype described by the patent. No prototype, no patent, no patent filing date, no submarine extensions. Solves a whole host of issues right out of the gate not to mention removing entire classes of "ideas" or "business process" patents, reducing the latter back down to trade secrets which is where they should have stayed.

      --
      The cesspool just got a check and balance.
    3. Re:Inventions vs. Engineering by Dutch+Gun · · Score: 1

      Apparently, the patent office initially rejects 90% of patents, but that figure is slightly misleading. The patent submitter simply has to rework, rework, appeal, and you can still get it approved. What percentage of patents are *eventually* approved after the resubmissions and appeals? In 2012 that number was calculated at 90% approved!

      Moreover, the patent filing fee is kept even if the patent is rejected, and fees are also required to resubmit or appeal. So, there's financial incentive to first reject the patent a few times, perhaps force an appeal, and then finally approve it.

      I'm not saying they're strictly considering revenue here, but... yeah, let's face it. The patent examiners would probably get in big trouble if they made it too difficult to file patents and keep those fees coming it.

      --
      Irony: Agile development has too much intertia to be abandoned now.
    4. Re:Inventions vs. Engineering by Gr8Apes · · Score: 1

      Honestly, the patent fees should go to ... landscaping in Oregon or a random wheel of non related funding.

      --
      The cesspool just got a check and balance.
  9. nc by Falos · · Score: 2

    "Imaginary property".

    nuff said

  10. I am filing two patents today by swschrad · · Score: 1

    one for a query system (hey, WTF is this?) and a response system (a thing!). I'll take 15% gladly from a patent troll as my share. I believe my language is broad enough that it covers all communications in any mode.

    --
    if this is supposed to be a new economy, how come they still want my old fashioned money?
  11. WTF by LessThanObvious · · Score: 1

    Wasn't getting a patent pretty hard in the past? I don't get how so many ideas seem to be patentable when they are obvious and vague. These patent lawyers are going to destroy innovation in America. Software patents pretending to be something else, patenting vague ideas, patenting processes that aren't really proprietary, this shit needs to stop. The USPTO needs to get a fucking backbone and preserve the integrity of the free market and we should create a fast track process for patent invalidation. A little guy that gets sued over one of the BS patents issued in the last 25 years should be able to challenge its validity for small fee before the suit can move forward.

  12. "Small time" shoe seller? by Theaetetus · · Score: 2
    From the linked article:

    Shoes for Crews, which makes skid-proof soles for workers who toil on slippery surfaces, has sold millions of pairs of shoes to workers at McDonald’s, KFC, Taco Bell, P.F. Chang’s, Ruth’s Chris Steak House and other restaurant chains. The company says its secret formula makes the stickiest soles on the market, but Shoes for Crews refuses to file for a patent, fearing the process would reveal valuable clues to rivals

    Not really a small shoe store as Subby implied, but rather, a manufacturer and wholesaler which, according to LinkedIn, has between 200-500 employees. So, it's more like "patent troll sues multi-million dollar company", but that doesn't really get as much sympathy.

    1. Re:"Small time" shoe seller? by Dutch+Gun · · Score: 1

      Manufacturing businesses with fewer than 500 employees are officially categorized as "small businesses" in the US. For some other types of companies like say, computer services, the amount of revenue is used as a metric, with the cut-off being $21 million average receipts for the past three years. The amount varies by the type of business.

      Typical government... making a simple thing as whether a company is "small" or not into such a complicated issue.

      --
      Irony: Agile development has too much intertia to be abandoned now.
    2. Re:"Small time" shoe seller? by Theaetetus · · Score: 1

      Manufacturing businesses with fewer than 500 employees are officially categorized as "small businesses" in the US.

      And regardless of that, most people wouldn't refer to one as a "small shoe store".

  13. You know the patent system is broken when ... by pmikell · · Score: 1

    ... A security flaw can be a patent violation; because a security flaw could be sufficient to allow a quantity in an order to be modified when the website operator did not intend that to be possible.

  14. Blast from the past. by 140Mandak262Jamuna · · Score: 1
    It is time stamped on Wednesday August 23, 2006 @09:38PM:

    http://yro.slashdot.org/commen...

    Surprised it has not happened yet. Or, has it?

    --
    sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
  15. Accountability by Rhyas · · Score: 1

    Something I've rarely heard discussed in any of the patent reform discussions is accountability. It would make total sense to hold the Patent office accountable for the patents they approve. Particularly when they are proven overly broad or killed off by prior art. Sure, you can't do it immediately, but if a patent is invalidated for legal reasons, then there should absolutely be blowback to the patent office that approve the thing in the first place. You would probably have to define some criteria for meeting guidelines on complexity, but at some point you have to hold Joe Blow accountable for rubber stamping a patent like this example that's so blindingly stupid. i.e. he's really bad at his job, get freaking rid of him!

    Without proper accountability, I don't think there will ever be meaningful reform.

  16. "X, but on a phone" by RyoShin · · Score: 1

    There have been recent (good) rulings that saying "X, but on a computer" is not a valid patent. I hope that lower courts say that this is just "X, but on a mobile computer" so we don't have to have an explicit ruling also blocking "X, but on a phone".

    On another note, I wonder if it would be worth having some crowd-funded anti-patent-troll fund. I know the EFF takes the fight when able, but that's usually after smaller companies/individuals have caved and paid the extortion fee. If there was a fund that would take the patent-holder to court and pay out any ruling against the defendant, should the patent be deemed baseless (any patent, not just electronics), that would hopefully halt the trolls far earlier in the process and dissuade others.

    1. Re:"X, but on a phone" by Theaetetus · · Score: 1

      There have been recent (good) rulings that saying "X, but on a computer" is not a valid patent. I hope that lower courts say that this is just "X, but on a mobile computer" so we don't have to have an explicit ruling also blocking "X, but on a phone".

      On another note, I wonder if it would be worth having some crowd-funded anti-patent-troll fund. I know the EFF takes the fight when able, but that's usually after smaller companies/individuals have caved and paid the extortion fee. If there was a fund that would take the patent-holder to court and pay out any ruling against the defendant, should the patent be deemed baseless (any patent, not just electronics), that would hopefully halt the trolls far earlier in the process and dissuade others.

      Not really... Contrary to popular wisdom (and Subby's attempt to call a 500 person company a small shoe store), patent trolls almost never go after individuals, because individuals don't have any money. Unlike copyright infringement with the $150k per work, there are no statutory damages in patents, and damages aren't even 100% of profits - they're limited to a reasonable royalty. If even a small patent lawsuit costs $200-500k, and you can expect to get 5% royalties, you aren't going to sue someone with less than $4M in annual revenue... And in reality, try closer to $1M to run a small patent lawsuit and royalties closer to 2-3%. So, now you're talking $50M in revenue to be a real target.

      So, the real question is can you crowdfund $2-5 million to defend companies with tens of millions in annual revenue? It's like you're asking David to donate to protect Goliath.

  17. Please tell me... by TechNeilogy · · Score: 1

    ...I slept for 11 months and this is April Fool's Day.

    --
    "The wisdom of the Patriarchs was that they *knew* they were fools." --Master Foo
  18. Patently Absurd by Art3x · · Score: 1

    The whole idea of there being an original idea is absurd. There simply is no such thing. Progress is the slow refinement of ideas past. One sharp engineer building upon the ideas of engineers past. And when such an engineer makes an advance, that advance is so obvious that simultaneous invention in different parts of the world is more common than you thought. The same can be said for art. This is coming from someone who has been accused of being "creative" by my parents, teachers, and bosses, without solicitation. See Everything Is a Remix. Abolish the whole system. Invalidate all patents ever granted.

  19. I can't wait... by Coffeesloth · · Score: 1

    One day I hope to see an article about him suing Amazon and the US Postal system for sending messages on package delivery...

  20. Patentable? by Anonymous Coward · · Score: 0

    Say someone just happens to be able to patent "wearing clothes"... just like how our guy here patented a notification.... all of us would have to go on the street naked cuz if we wear anything, it would be in violation of a patent... LMFAO!!!