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Priceline & Expedia Patent Battle Heats Up
swilson writes "Not to be outdone by Amazon, Priceline has sued Microsoft and Expedia for patent infringement of their "name-your-price" business model. You can check out the story on The Standard." To get the facts straight, Priceline sued Expedia in October, and now Expedia/MSFT is filing a motion to dismiss the suit. MSFT is saying that Priceline stole the idea from someone else originally, which is an interesting argument in itself. I think we should make a comic book called "Patent Wars". It'd be like "Secret Wars", except duller.
I like that, we stole it fair and square.
this sounds just like the Apple suit against Microsoft (and Xerox), both of which they lost.
Can't they realize that good ideas are a renewable resource? Instead of wasting their time with lawysuits, they could keep ahead of the competition by continually raising the bar. fools!
I haven't ever done it before, but I think this is an apporiate response. I think many of us agree in this forum that the US patent laws need serious re-vamping. I don't think I have ever seen (though I may be wrong) anyone suggest writing their congressman/woman. If something in the government doesn't work, let them know about. If many senators get lots of emails/letters about this, maybe someone will take a hard look at it.
My 2Cents
Remove the spam reference to email
It seems that adding a computer to any old way of doing business is worthy of patent or trade secret protection these days. Priceline's model doesn't strike me as radically different from the bidding that takes place on stock exchanges, other than the fact that they have expanded it to a variety of products and services.
If Microsoft had stolen unpublished code, customer lists, internal design documents or the like, I would wish Priceline well. But from where I sit, it looks to me like MS is simply trying to compete in the market niche that Priceline defined.
The net will not be what we demand, but what we make it. Build it well.
I went to priceline.com to check out plane tickets earlier this year as I was planning a trip, and I was totally turned off by the way they wanted to conduct the transaction.
There was no way I was going to name my price, enter my credit card number and automatically buy the ticket before I even was saw what airline it was on. Priceline gave me no way to just shop around for prices - you name the intenerary, name a price and bam, you are charged and you have no choice about anything after that. So, I went to travelocity, where I could actually shop around a bit.
I think this name your price thing is lame, and I can't imagine why anyone would want to fight over it. Especially since they are planning on extending the paradigm to commodities such as groceries - who wants to haggle over a can of soup? Or lose out becaue they were willing to pay more than the going rate, without ever knowing the going rate?
Anyway, this is another case where MS shines in lack of originality. Have they ever thought of anything for themselves? Good ideas or bad, I don't think they have.
Juln
One guy, working for a pretty big software corporation, told me the reason why all these stupid patents exist (it was before all these amazon-b&n, priceline-expedia, etc. wars started). Basically, companies used to file them as defensive weapons, pretty much like nukes in the cold war. Everybody realized that most of those patents were idiotic, and nobody was going to start patent wars. But they made it clear that if someone started to sue them for patent infringement, they would couter-sue for some other patent, so it would be a lose-lose situation.
Looks like the new guys don't completely understand such a system. Too bad...
This doesn't really have much to do with this particular case, but with patents in general: especially the fear that they can impinge on the freedom of free software.
Some people have suggested the idea of having an online database of ideas, as a way of providing ammunition to fight patent suits: if you can provide evidence that such-and-such an idea existed prior to such-and-such a date... you get the idea.
I like the idea, but the big problem is that a database in and of itself doesn't really provide much evidence. So I've been trying to think of a practical way of implementing what (for lack of a better term) I call an anti-patent. It would essentially be just like a patent, except that it would be used to prove prior art in patent infringment cases. That way, anything that is covered by an anti-patent you can use with impunity in free software with little fear of litigation (hopefully).
The way it would work is that you would make a submission (like an application) and some research would be done to verify the viability of the submission, then if it "passes", evidence would be collected, dated, notarized (or whatever is legally neccessary), and put into a searchable database.
So far the main problems I've run into revolve around financing the system. How can you make the system cheap enough to be practical, but still provide enough revenue to administer the program? I know that some people would probably volunteer for the project, but in addition to the administration costs, it would be necessary to build up a war chest to fund legal challenges/defenses. How much would people really pay for this (especially since they might already be sacrificing potential income from patenting their idea)? How else can this be funded?
-- It only takes 20 minutes for a liberal to become a conservative thanks to our new outpatient surgical procedure!
This is getting daft. This is roughly equivalent to patenting the "process" of shopping. Patents were meant to encourage the development of gadgets during the industrial revolution. They were never intended for abstract ideas, and certainly not business models. Businesses are meant to compete in the marketplace, and not cushion themselves with artificial legal barriers.
It's clear that there are enough bullshit patents filed for slashdot to run one of these stories every day. It's also clear that patents are a pointless and costly system in an information-centric world.
But it would be nice to see some of the stupidity of the patent system be aired a little more frequently outside the relatively enlightened forum of Slashdot. A bit of grass-roots evangelization is needed. Consequently, I am planning to put up a webpage with a few pointed rants about the present system, and ideas about what it could be replaced with. If you have any views on this that you would like to see aired, mail me at:
mike@mikera.net
Once upon a time, there lived three patent lawyers - Daddy Patent Lawyer, Mother Patent Lawyer and Little Baby Patent Lawyer.
One day, Mother Patent Lawyer half-baked them a case, for breakfast, but it was too hot to handle, so they decided to go for a walk through the Trademark Woods.
That same morning, Goldybanks went for a walk through the woods, when she came across a fabulous mansion, complete with swimming pool and wraught iron gates. Being a cracker, it didn't take long to bypass the locks on the gates. (It was using Windows NT.)
Going in, she found three bowls of cooling* bowls of legal cases.
(* Cooling is a process patented by the Santa Claus Christmas Corporation)
She tried the first bowl, and it was too hot. Too much Microsoft. She tried the second bowl, and it was too cold. No money in it. But the third bowl was just right. A dash of e-commerce, and a sprinkling of good PR opportunities.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
The fundamental problem with patenting information is that you cannot exclude other people from having the same (or similar ideas) independently. Technology comes in waves and each wave of ideas builds on the previous infrastructure/memeware left by the previous. Creating a rigid legislative framework for a fluid medium is cause for trouble and only enriches only lawyers. There are a number of problems with the current system. The holy mantra of network effects (ie Metcalfe's Law that the utility of a network increases as the square of the number of participants) encourages companies to create Ponzi schemes to try and create the maximum customer base for their wares (can we say .con here?) on the hope that they can exclude any competitors (a la AOL instant messaging) and sell their customers to advertisers. Patents are just one weapon in this scheme as the speed of penetration translations to market share and any delaying tactics on your competition hurts their growth rates. There are actually some rather interesting theoretical work on modelling word-of-mouth effects as quantum waves but in practical terms, a patent system designed for manufacturing is just not suited for creating new services. Imposing a slow moving legislative process (and there are good reasons why people prefer time to think over complex issues) over a fast mutating technology market is like controlling hot air with a piece of string. I would argue that if Amazon really thought their idea was so hot, they should create the software and license it to other players and let them reap the benefits. If the idea is so simple that people can implement it without paying then it must not have been that novel or distinctive in the first place. Now what are worthy things that deserve protection? I would probably nominate file formats (ie anything stored in permanent form) as in return for making it non-proprietary, the community can award the firm some rights such as naming and/or leadership/respect role. Here one can contrast the reputation of Adobe (Postscript -> PDF) vs SGI (GL -> OpenGL) in their efforts to foster the wider market. IMHO Adobe had a chance to compete with Microsoft in defining desktop document standards (ie interface to printers, especially industrial ones) but blew it while SGI has gone whole hog and freed up their GLX and Performer APIs.
Unfortunately companies can measure #patents but not intangibles like goodwill but which is more important in the long-term?. Unfortunately (or maybe deliberately so) consumer education for complex technical stuff like computers has still a long way to go when people can still confuse MHZ (effectively the RPM of the CPU) with the total software/hardware package (ie motor + comfort + millage). Perhaps consumer education is one area where Linux can be more effective, especially in warning against the long-term hard that frivilous patents can cause.
LL
The site could also provide a series "boycott patent abusers" logos (general, and specific ones for the biggest offenders) that website builders could put in their pages. This would help spread the word on the problem for those who would like to boycott these compies ALA RMS.
Andover/slashdot and company would be a perfect place to host such a website, IMNSHO, as slashdot deals with stupid patents on a frequent basis, anyhoo.
What do you think, sirs?
XML causes global warming.
Now I see here at the top it says "Children's rules to toys"... somehow though I don't think it applies to children anymore...
I was about to ask how anything could get duller than Secret Wars. :)
Because they don't have to.
When you are in the lead, you don't take chances. You don't innovate. You do exactly the same thing as everyone else in order to stay in the lead.
For example, take a sailing race. Once you are in the lead, you should always be able to win. You just do EXACTLY the same thing as your opponent. Even if you think he turns in a stupid direction, you follow him, just in case it turns out to be a good move. In this way you can stay the same distance ahead, and never lose ground. In fact, its considered very amateurish to NOT match your opponents moves.
By following the crowd you are guaranteed to come out where everyone else does. This applies to everything: software, sailing, stocks, life.
Its stupid to take risks when you can let others take them for you. Of course, patents are meant to protect inventors and encourage innovation. In this way, they are good. Unfortunately, as people keep pointing out (you Karma whores!) patents are diluted and becoming more and more abused. Oh well.
Not very topical, but ah well.
You know, if MS were following this strategy (which they probably should), it would mean that it would be appropriate for them to introduce a MS Linux distribution. Just a thought. :)
- Union for the Public Domain: their page on Business Practice Patents.
- The League for Programming Freedom: their page on Software Patents
- freepatents.org for activism in the EU
- Phil Karn: his "The US Patent System is Out of Control"
Any others? If all of these forces could be united with help from slashdotters......disavow all knowledge...
"Going to a store, saying 'I need thing x, I only
have 10 bucks, do you have a thing x for 10 dollars? '"
Yeah, but that's where Priceline's model is superior to yours - if you went into a store and said, "I need a toothbrush. I only have $1 billion. Do you have a toothbrush for $1 billion?" the store would then be forced to sell you a toothbrush for $1 billion! Priceline brilliantly did away with such nonsense, thereby adding value.
-=Best Viewed Using [INLINE]=-
I recall hearing somewhere (can't remember the source, but I remember it was a congressional staffer - can any one else place this?) that it takes on the order of four (that's 4, 2*2, IV) handwritten letters to make a someone in the house/senate take action on an issue.
So perhaps, instead of emailing your congresscritters, you might want to take the 2-3 minutes it takes to write them a letter on the subject.
"Great men are not always wise: neither do the aged understand judgement." Job 32:9
Didn't I hear about an Open Source Patent Project? Does anyone know how it's going?
... they get published - either in technical journals or (publically accessible) online bit-buckets. The idea here is that if they missed a real patentable idea then at least they screw up the patent process for another (competitor) firm by pointing out "hey, prior art, here!"
We all know that one way to break a patent is to demonstrate "prior art". However, this doesn't have to be an actual implementation of an idea, it can be a description of an idea placed in the public.
Mighty corporations all have a patent process in place. They encourage their staff to generate patent applications for monetary reward. These applications are then assessed by specialists in said mighty corporations to see if they are worth pursuing seriously. The ones chosen get sent on to the Patent Office.
But the rest don't get thrown away
The OSS community should do they same thing. Have an Open Ideas Database where potentially patentable idea (however "obvious") can be made public and thus no longer patentable.
You don't need to invest the $$$s to get a patent yourself to stop someone else getting one. If the OSS community is serious about long term survival then we need such a database. (Remember MS's Halloween threats to use the "patent weapon".)
Regards, Ralph.
Per the USPTO doc Intellectual Property and the NII: Discoveries, laws of nature, mathematical algorithms, methods of doing business and the like are not eligible for patent protection. What the hell's up with the USPTO anyway?
BZZZZZRRRRRT.
The US Government is immune from Patent Infringement.
Maybe thos congresscritters aren't as stupid as you think..
Microsoft has already been on the business end of a few patent infringement matters, lost one of them (STAC) *IN SPADES*, won one of them (Rehman) with a determination of invalidity on techical grounds, and bought the company (Apple) to settle another.
/.land, invalidity is determined by lockstep ideology and naked allegations of obviousness. In practice, however, one does not argue invalidity in those terms -- you would lose ab initio.
Here in
It is common for companies in patent-intensive businesses to be both plaintiffs and defendants, with little consequences derived from positions they have taken in earlier matters. Microsoft will win or lose based upon prior art they actually find and demonstrate, or upon inequitable conduct they can show, or upon proof of non-infringement. These things are argued case by case and things stated in one rarely have an impact on another, unless it is another case relating to the same patent or family of patents.
Arguing merely that the patent is a *bad*, nasty software patent is not something that they will do for three important reasons: (i) it cannot win the case; it cannot win the case; and (ii) it cannot win the case.
I think Priceline provides a very decent service, providing cheap fares to consumers and filling otherwise-empty airline seats. If you choose jet aircraft only, you'll be flown on major airlines: AA, USAir, Delta, TWA, et al. If the specific service or frequent-flyer miles matter to you, this is not for you - as a penniless (ahem) grad student, I'm glad to be flying round trip across the country for less than $100. Yes, I gave them a credit card number before I knew the airline, but I'm flying on United, which was (probably still is) offering the same flight for $200...
Think of it as an analog to arbitrage in the commodities market. (Or am I waaaay off base here?) As for "is it patentable?", well, given the current climate at the PTO, whyever not? Yes, its stupid, but that's not stopping anyone else, apparently.
"I will take the Ring," he said, "though I do not know the way."
Who is to say that someone else in India didn't have the same idea years ago, but had neither the means (money), or the way(communication) to "patent" their idea.
Let me try to express the idea of the basic principle of a patent as simply as possible.
A patent is a contract between the inventor and the government to give you exclusive rights for a limited period of time in exchange for publishing an invention rather than keeping it secret.
Now suppose the great Maharaja Nimoji came up with the idea for One-Click Shopping in the year 300 B.C. but didn't let his court scribe write down the idea in the Great Scroll of Nifty Sanskrit Inventions because he didn't want the other Maharajas using the technology.
Nobody can use the idea as a basis for further development of technology BECAUSE IT WASN'T PUBLISHED. The idea of the patent is very specific - IT IS TO ENCOURAGE THE PUBLICATION of technological ideas so that if the inventor croaks the idea won't be lost for 2295 years, like the M. Nimoji's invention of One-Click Shopping.
Nobody cares if One Click Shopping was invented but not recorded. It might as well not exist. The idea is to get people to release inventions to the public domain after some fixed period of exclusive rights so that they DON'T get lost, and people can freely use them.
People in the OSS don't seem to get this at all, but Patents really were designed to encourage the OPENING OF TECHNOLOGY. A patented idea in fact becomes public domain or FREE after a period of time.
Did anyone actually take the time to look up the
/. failed to post) At these meetings Microsoft demanded shares of Priceline at below IPO prices. All of this is so reminiscent of other previous Microsoft activities it should raise the hackles of anyone in the high tech industry. Microsoft is just repeating what they did to Stac here, and deserves to get sued by Priceline.
patent before first running off at the mouth???
The only one I could find listed at IBM's Patent Server is this:
US5897620: Method and apparatus for the sale of airline-specified flight tickets.
IT IS NOT A PATENT ON REVERSE AUCTIONS
It is in fact a technology related patent for
processing certain kinds of airline ticket
purchases. As far as I know, this idea was actually an original invention by Priceline, and they deserve to get a patent on it.
Claim 1 reads:
1. A method comprising the steps of:
viewing, using a computer, special fare listing information for air travel to a specified destination location from a specified departure location within a specified time range, said special fare listing information excluding a specified departure time; transmitting, using a computer, a request to purchase a commitment for carriage corresponding to said special fare listing information; receiving a commitment for carriage, including an obligation by an airline to provide a seat on a flight, that satisfies said request but does not specify a departure time;
accepting said commitment for carriage; and receiving at a time subsequent to said accepting an identification of said departure time.
This patent is so narrow that anyone that is not just out there COPYING what other people are doing (like Microsoft often does) should be able to avoid it.
There have been other stories in the media about Microsoft attending venture capital meetings with Priceline and failing to reach a business agreement. (That I submitted and
All of this is so similar to the previous rapacious behaviour of Microsoft there is no way I can find fault with either the patent system of what Priceline is doing.
Priceline appears to have an extra-special set of cojones. Their patent covers something that was done on timesharing computers years ago, notably by a company that one of the Priceline founders was associated with, and the new twist is that they're doing it on the web.
While we're getting the hang of rooting for Microsoft for once, does anyone know how things are going vis-a-vis Cleartype, the Microsoft flat-panel font-rendering techniqe that eerily resembles something an Apple engineer did on CRTs 20 years ago?
And, as far as I know, it always has.
Andover's sole connection to the open source world is in buying various open source-oriented web sites, and as far as I know, all of them have run open source operating systems.
That being said, I don't see running Solaris as being an unforgiveable sin. Sun isn't without flaw, but it's no Microsoft.
D
----
Where in the world did you get that idea? Some of the most important patent cases have been against the federal government! See, e.g., U.S. v. Adams, 383 U.S. 39 (1966), one of the most important cases on obviousness.
OK, true, you go to the Court of Claims rather than a District Court for trial (and don't get a jury), but the same substantive law applies (except certain damages issues) and appeals still go to the Federal Circuit.
I Can't Believe It's A Law Firm, LLP does not necessarily endorse the contents of this message.