When Patents Attack(npr.org)
npr.org
When Patents Attack
http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack
134 comments
> [...] they accidentally infringe on a patent
Patents in the software industry were historically held for defensive purposes. If you get large enough you start building a patent portfolio so other companies can't sue you because you'll sue them back. Everybody infringes on everybody else's absurd patents so suing is a Mutually Assured Destruction scenario (neither party wins and the lawyers take all the money that you could have invested in something worthwhile).
Companies like Lodsys and Intellectual Ventures are different. They only have patents and they have no product. So if they sue you for patent infringement you can't sue back even if you have patents because they don't have a product and by definition can't infringe on your patents (if you have them).
Patent fights between corporations are ugly enough, but are generally on a more-or-less level playing field. They happen in the courts between very well funded armies of lawyers.
Suits between, say, Lodsys (money + patents + lawyers + no product) and independent developers (no money + no patents + no lawyers + product) are so vastly uneven and unfair that most developers will just give up before this ever comes before a court. Even if you want to do it on principle it'll bankrupt your life. Just giving up and finding safer markets with (maybe) lower profit margins seems like the obvious way to go for anybody.
As usual, the only way to rectify the software patent situation is to hit the big guys where it hurts. If we want to software patents go away, we need to see that Microsoft, Apple, and other big players are sued and lose for patent infringement on a regular, expensive basis. If we can hit the big projects frequently enough they will give up, decide the patent regime costs more than it's worth, and get their cronies in politics to turn it off. It is not likely that things improve until this happens.
A couple of years ago a company called i4i got an injunction issued prohibiting the sale of Microsoft Office for (frivolous) patent infringement. Of course, Microsoft panicked and worked around the patent immediately, released a patch, and sent out new packages to suppliers -- expensive indeed but at least they avoided actually not being able to sell Office at all. If we have this kind of thing happen to multiple big companies even a few times a year I think we'll be on track to some serious patent reform. Until then, it's just too profitable to pillage the little guy and engage in mutual cross-licensing and suit settlements among competitors than it is to care that it is impossible to write software without violating hundreds of patents.
We know the saying: "the best way to get rid of a bad law is to enforce it". I've heard it attributed to Teddy Roosevelt but can't seem to find a good reference atm.
A couple of years ago a company called i4i got an injunction issued prohibiting the sale of Microsoft Office for (frivolous) patent infringement. Of course, Microsoft panicked and worked around the patent immediately, released a patch, and sent out new packages to suppliers -- expensive indeed but at least they avoided actually not being able to sell Office at all. If we have this kind of thing happen to multiple big companies even a few times a year I think we'll be on track to some serious patent reform. Until then, it's just too profitable to pillage the little guy and engage in mutual cross-licensing and suit settlements among competitors than it is to care that it is impossible to write software without violating hundreds of patents.
We know the saying: "the best way to get rid of a bad law is to enforce it". I've heard it attributed to Teddy Roosevelt but can't seem to find a good reference atm.
If we want to software patents go away, we need to see that Microsoft, Apple, and other big players are sued and lose for patent infringement on a regular, expensive basis.
That's pretty much what happened to Microsoft. It got sued and creamed repeatedly in the late 1990s and early aughts. Myrvold's venture is a very obvious outcome. Earlier foreshadowings included Microsoft's pressuring Wang to sue Netscape: http://www.v3.co.uk/v3-uk/news/1943376/wang-loses-lawsuit-ne... http://articles.baltimoresun.com/1995-04-17/business/1995107...
(One of many reasons those with long memories have little trust or love of the former Redmond giant).
(Edit: fixed italics on quoted text.)
That's pretty much what happened to Microsoft. It got sued and creamed repeatedly in the late 1990s and early aughts. Myrvold's venture is a very obvious outcome. Earlier foreshadowings included Microsoft's pressuring Wang to sue Netscape: http://www.v3.co.uk/v3-uk/news/1943376/wang-loses-lawsuit-ne... http://articles.baltimoresun.com/1995-04-17/business/1995107...
(One of many reasons those with long memories have little trust or love of the former Redmond giant).
(Edit: fixed italics on quoted text.)
"As usual, the only way to rectify the software patent situation is to hit the big guys where it hurts."
I do understand where you are coming form; I'd like to add my $0.2: The best way to fix patents is to get a better funded patent office so that they can process patents faster, updating laws and basically following the due process required to update the current system.
Accepting that things will change only if large corporate interests are hurt, is to be ruled by a broken, unjust and unfair system, one which will never value be 'fair' only to those with enough money to buy their way to power.
I do understand where you are coming form; I'd like to add my $0.2: The best way to fix patents is to get a better funded patent office so that they can process patents faster, updating laws and basically following the due process required to update the current system.
Accepting that things will change only if large corporate interests are hurt, is to be ruled by a broken, unjust and unfair system, one which will never value be 'fair' only to those with enough money to buy their way to power.
Also, there's value in sticking your head in the sand since if you know a patent exists but don't think you're infringing but then lose an infringement case, you're liable for treble damages (IIRC, IANAL, etc).
Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''
Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''
I wonder if there will be a "Finlandization" of software development (concept courtesy of Chris Crawford's classic "Balance of Power" game) where small devs and dev shops align with larger, protective entities that provide defensive protection in exchange for association with the aura of small, indy developers.
Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc.
Eh...
Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc.
Eh...
You mean ... like IBM's endorsement of Linux, and in partnership with Intel and others, forming the Linux Foundation?
Having the free guilds be sworn to some liege for protection while providing useful arts is hardly a new concept.
Having the free guilds be sworn to some liege for protection while providing useful arts is hardly a new concept.
Just to set the record straight: a game developer didn't come up with the concept of Finlandization. The term was long used by scholars in geopolitics to refer to the situation of Finland, which although internally free, had aspects of its foreign policy more or less dictated by the Soviet Union.
You are correct...I should have said "my introduction to the concept" was courtesy of the game Balance of Power. Which is interesting, but perhaps not HN comment-worthy.
Sorry, firebones, "Balance of Power" Chris Crawford != "Patent 5771354" Chris Crawford. (Fwiw, I made the same assumption while I was listening to "This American Life" too.) I spent far too much time digging to get to the bottom of this identity question....the disambiguation is in the middle name/initial. On the patent filing, the inventor is Christopher M. Crawford. In video-game-Chris-Crawford's preface to his new self-published ebook on Amazon
http://www.amazon.com/Art-Computer-Game-Design-ebook/dp/B005...
he refers to himself as Christoper Charles Crawford. QED.
http://www.amazon.com/Art-Computer-Game-Design-ebook/dp/B005...
he refers to himself as Christoper Charles Crawford. QED.
Actually, there may be a moral responsibility on all of us developers/hackers to make it obvious to the general public how ridiculous most sw patents are.
For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense.
ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.
For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense.
ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.
Listen to the this american life story, they mention a piece of software used by patent lawyers which does basically that.
If it's any consolation, hearing from a patent troll means you've built a successful product.
That's like saying that hearing from the Mafia means you now have a successful business. Hoorah, I guess...
More like: you look like you've got enough resources to pay out, but not enough to put up a good fight.
One of the problems with patent enforcement: the patent holder has the right, but not the obligation, to pursue infringement. Or in plain English: they can pick their fights.
If IBM, Mac's Komputer Shoppe, and Western States Services, Inc. all infringe, odds are good that the PatTrollCo will skip IBM (able to defend) and Mac (no assets) but nail WSS (big enough to have assets, not big enough to have attorneys on retainer or a significant patent portfolio).
One of the problems with patent enforcement: the patent holder has the right, but not the obligation, to pursue infringement. Or in plain English: they can pick their fights.
If IBM, Mac's Komputer Shoppe, and Western States Services, Inc. all infringe, odds are good that the PatTrollCo will skip IBM (able to defend) and Mac (no assets) but nail WSS (big enough to have assets, not big enough to have attorneys on retainer or a significant patent portfolio).
And that you now own as little of the profits from it as they think you can survive on.
Except you don't need to make a profit to be subject to a lawsuit. Hobby or weekend projects are just as liable.
Well sure. But from a practical standpoint, a patent troll is far less likely to bother with someone who doesn't have reasonably deep pockets.
While this is generally right, it is also fairly common for patent trolls to go after some small fish they claim are violating a patent first to set a precedent of wins (or settlements) against opponents with weak legal war-chests.
A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.
A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.
[deleted]
If you infringe a patent - isn't possible to get a fixed cost or is it a fraction of earnings? Can you be more out of pocket than what you earn? ie can you do
[1. Possibly cursory layperson check of existing patents ]
2. Weekend / hobby / small-scale project
3. Oh! People like it, it's making money / scaling!
4. Get lawyer in to do proper patent search before continuing?
(not that this is ideal either)
[1. Possibly cursory layperson check of existing patents ]
2. Weekend / hobby / small-scale project
3. Oh! People like it, it's making money / scaling!
4. Get lawyer in to do proper patent search before continuing?
(not that this is ideal either)
You can agree to license it for whatever the other party is willing to license it for.
It's the court costs that can pretty much bankrupt you.
It's the court costs that can pretty much bankrupt you.
There is a simple solution to this problem. Make maintenance fees payable yearly, and make a requirement of getting the patent renewed proof that you're actually using it. People filing patents only to sit and wait until someone else infringes is a cancer on American innovation.
Definitely like the second part. It would seem that if you aren't actually using your patent, the patent's purpose is lost.
I also think there should be oversight on the patents that are granted. Right now you can patent something that has 20 years of prior art with relative ease. That's silly.
I also think there should be oversight on the patents that are granted. Right now you can patent something that has 20 years of prior art with relative ease. That's silly.
There _is_ the doctrine of laches, a defense in the case of suits brought after a long period of non-enforcement. As with most defenses, this entails lawyering up and going to court, part of what makes this process so expensive.
There were also reforms in the 1990s which extended the life of a patent (from 17 years to 20), but started the clock at filing time, not grant. This was due to a slew of patents issued to Jerome Lemelson which he kept appealing to the patent office. These were eventually granted, a practice termed "submarine patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties (he's also got a wing of the Smithsonian named after him).
But the system's still pretty messed up.
There were also reforms in the 1990s which extended the life of a patent (from 17 years to 20), but started the clock at filing time, not grant. This was due to a slew of patents issued to Jerome Lemelson which he kept appealing to the patent office. These were eventually granted, a practice termed "submarine patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties (he's also got a wing of the Smithsonian named after him).
But the system's still pretty messed up.
Throwing an idea out there: Software patents should last no more than 1 year.
If you come up with something worth patenting, you get a year lead on competitors. That's it.
If you come up with something worth patenting, you get a year lead on competitors. That's it.
I think a better solution is a mandatory licensing process. The threat of absolute exclusion is too damaging to the industry.
AND, the patent office needs to start DOING THEIR JOB and stop granting patents for obvious inventions.
AND, the patent office needs to start DOING THEIR JOB and stop granting patents for obvious inventions.
Those are both pretty good suggestions.
There are a host of arguments as to why it can't happen, of course.
For the first: the idea of a patent is to grant a monopoly. That should be on a "use it or lose it" basis -- if you're not selling a product (or taking demonstrable efforts to do so) within some t time of having submitted (or been awarded) a patent grant, you lose the exclusive use right. Afterward, you can get some mechanical royalty, perhaps. That still raises issues in the place of software where there are potentially _thousands_ of infringements in a single product. And moreso for free software: is the mechanical royalty some percentage of purchase price (a competitor could sink your market by dumping), is it a fixed per-unit fee (and how is that determined, assessed, and collected)?
Confounding that is the point mentioned in the story: the value of patents is their aggregated use. It's like the Lilliputians tying down Gulliver. Each thread on its own is tiny, but enough of them are sufficient to be immobilizing.
The real problem is that the patent office can literally create property rights out of thin air / whole cloth. The mandate of several recent directors of the US Patent Office has been to "increase production" -- to grant more patents. If the NPR story is accurate (and reading patents is an obscure art, which itself may invalidate the directive of "obvious to one of ordinary skill in the art") and Crawford's '5771354 patent was one of 5000 identical inventions issued at the time, then the patent office very simply isn't doing what it's supposed to do.
The problem (wait, have I used that tuple before in this response) is that there's no one party authorized and/or able to bring about that reform. I've watched the spectre of software patents emerge and grow over the industry for nearly two decades. Richard Stallman's been railing against this since the early 1990s (the man is seriously prescient). Numerous tech companies, including Red Hat and Oracle, are or were part of an anti-patent league. For a time, Microsoft fared very poorly in patent fights (it had a small portfolio of its ownn, hence, a weak defensive position). It's hardly surprising that Myrvold spun out and started IV. So we're kind of stuck. Unless Congress can get convinced to take action.
I'd love to see that. I'm not hopeful.
There are a host of arguments as to why it can't happen, of course.
For the first: the idea of a patent is to grant a monopoly. That should be on a "use it or lose it" basis -- if you're not selling a product (or taking demonstrable efforts to do so) within some t time of having submitted (or been awarded) a patent grant, you lose the exclusive use right. Afterward, you can get some mechanical royalty, perhaps. That still raises issues in the place of software where there are potentially _thousands_ of infringements in a single product. And moreso for free software: is the mechanical royalty some percentage of purchase price (a competitor could sink your market by dumping), is it a fixed per-unit fee (and how is that determined, assessed, and collected)?
Confounding that is the point mentioned in the story: the value of patents is their aggregated use. It's like the Lilliputians tying down Gulliver. Each thread on its own is tiny, but enough of them are sufficient to be immobilizing.
The real problem is that the patent office can literally create property rights out of thin air / whole cloth. The mandate of several recent directors of the US Patent Office has been to "increase production" -- to grant more patents. If the NPR story is accurate (and reading patents is an obscure art, which itself may invalidate the directive of "obvious to one of ordinary skill in the art") and Crawford's '5771354 patent was one of 5000 identical inventions issued at the time, then the patent office very simply isn't doing what it's supposed to do.
The problem (wait, have I used that tuple before in this response) is that there's no one party authorized and/or able to bring about that reform. I've watched the spectre of software patents emerge and grow over the industry for nearly two decades. Richard Stallman's been railing against this since the early 1990s (the man is seriously prescient). Numerous tech companies, including Red Hat and Oracle, are or were part of an anti-patent league. For a time, Microsoft fared very poorly in patent fights (it had a small portfolio of its ownn, hence, a weak defensive position). It's hardly surprising that Myrvold spun out and started IV. So we're kind of stuck. Unless Congress can get convinced to take action.
I'd love to see that. I'm not hopeful.
Honestly, if the patent office would just do their job and not grant bogus patents based on obvious inventions or inventions with prior art, that would probably be enough.
Software patents aren't the problem, bad software patents are the problem.
Software patents aren't the problem, bad software patents are the problem.
The job of the patent office is impossible in the field of software patents.
It is not realistic to expect anyone to judge novelty and non-obviousness in a field this wide and active. Imagine trying to evaluate mechanical engineering patent applications if millions of people carried machine shops around in their backpacks.
The only solution is to end software patents. Obama could do this today by directing the patent office to respect the Supreme Court's Flook decision, which they reiterated as good precedent in Diehr and in Bilski.
It is not realistic to expect anyone to judge novelty and non-obviousness in a field this wide and active. Imagine trying to evaluate mechanical engineering patent applications if millions of people carried machine shops around in their backpacks.
The only solution is to end software patents. Obama could do this today by directing the patent office to respect the Supreme Court's Flook decision, which they reiterated as good precedent in Diehr and in Bilski.
The non-obviousness part absolutely requires more domain expertise than I expect a lot of patent clerks bring, but checking for prior art seems like something that could be found via search or crowdsourcing.
Imagine if there were a public review step to granting patents, where the broader community could provide examples of prior art and debate the non-obviousness of it.
Imagine if there were a public review step to granting patents, where the broader community could provide examples of prior art and debate the non-obviousness of it.
Can you name an example of a good software patent?
Mpeg,h264 series of patents. I'm not sure any one would invest the same effort in these particular domains if they knew every one can copy them (though current crop of internet companies like google have an incentive to do it).
As long as it meets the non-obvious and no-prior-art tests, I don't see a problem with the concept.
Something like mouse gestures feel like a patentable innovation worthy of a temporary government-enforced monopoly.
Something like mouse gestures feel like a patentable innovation worthy of a temporary government-enforced monopoly.
Sure, but not for a decade or more. The timescale of patents is simply incompatible with the timescale of software.
I totally agree on that front. Five years seems like a reasonable upper limit to how long software patents should last.
There are lot of additional problems though... the way the Patent Office washes their hands and leaves it up to the courts to sort things out etc.
I personally think ALL software patents should be abolished completely. In absence of that, NPE's "non-practicing entities" should not be allowed to hold patents. You need to prove that you are using it (in commerce) to keep the patent. And you should not be able to sell a patent unless it is sold with an existing revenue producing business.
The US system has turned into a joke.
That patent office really doesn't have enough resources to do their job. Congress determines their budget and the fees they charge, and actually hasn't even seen fit to allow them to keep all the money they collect in fees.
In the 1980s (IIRC) this has previously resulted in long delays before patents were issued, but then Congress ordered to USPTO to clear its backlog, which means they now _have_ to grant most patents quickly, because if they don't the applicant will just make a few small changes and send the patent in again, but if they grant the patent its out of their hair.
In the 1980s (IIRC) this has previously resulted in long delays before patents were issued, but then Congress ordered to USPTO to clear its backlog, which means they now _have_ to grant most patents quickly, because if they don't the applicant will just make a few small changes and send the patent in again, but if they grant the patent its out of their hair.
THIS. the patent office has turned in to a bit of a joke. Well, software patents in general have turned into a joke.
I think this would be much more appropriate.
15 years in technology is a lifetime. Enforcing a monopoly for so long ensures that there will be no real innovation/progress in that area. How can we, as a society, afford to be held back like this?
In so many areas progress would happen much faster if not hindered by legal threat.
15 years in technology is a lifetime. Enforcing a monopoly for so long ensures that there will be no real innovation/progress in that area. How can we, as a society, afford to be held back like this?
In so many areas progress would happen much faster if not hindered by legal threat.
It's funny how little innovation there is in the patent system itself.
That would also require the patent office to grant patents in well less than a year. It wouldn't help the little guys too much if you found out you were granted the patent 6 months or more after its expired.
Crazier idea - what if the patent pool (for some domain maybe?) was fixed? (ie. there can only exist 10k patents?)
Then the cost of patent search isn't ever increasing as long as rate of patenting is higher than rate of expiry.
And possible it could provide a mechanism for removing frivolous patents (like - you could buy a patent 'slot' off an existing holder - so you'd be incentivised to find the most stupid patent so you could offer them the least cash upfront, as they'd not be holding out for licensing profits).
I don't think it would work. The big corps would own all 10k slots and nobody else could file one because they would recycle patents internally.
I wonder how Google would have looked at this idea 10 years ago, or even now: http://www.businessinsider.com/the-4-big-problems-with-googl....
As the article only touched on, this is precisely why the next computing giant will not come from Silicon Valley or anywhere in the US. The current software patent situation has ensured it.
I doubt it. The next computing giant will want to sell in the US, too. Patent laws don't cover where you're from, they cover where you sell (or where you give away free stuff but make money from ads). You'd have to block all US visitors from your site to avoid the US patent system.
I've been thinking about workarounds. Could a "I confirm that I'm from Malaysia" button do the trick?
I've been thinking about workarounds. Could a "I confirm that I'm from Malaysia" button do the trick?
May be the future companies will price products higher in US markets.
As a co-founder of a startup, my most worrying thoughts are not finding customers or improving the product. They're "when will I get a scary legal letter that asks for millions over a patent I've never heard of".
Really? I never ever think about patents. Ever (except when reading HN). It's just not a real day to day issue.
The biggest part of the problem is that companies (and founders) are forbidden from speaking up after licensing deals are made. Perhaps you could post anonymously, but you'd still be violating the NDA in spirit and you'd be punished if discovered.
In other words, if three companies down the block signed millions away to Intellectual Ventures, you would have no idea. Maybe the risk is overblown. Unfortunately we have no idea of knowing.
They try to hammer this point home in the podcast.
It occurred to me there is simple legislation that might chip away at all this shadiness: Pass a law that forbids NDAs in patent licensing deals.
In other words, if three companies down the block signed millions away to Intellectual Ventures, you would have no idea. Maybe the risk is overblown. Unfortunately we have no idea of knowing.
They try to hammer this point home in the podcast.
It occurred to me there is simple legislation that might chip away at all this shadiness: Pass a law that forbids NDAs in patent licensing deals.
You'd know it if it happpened. Management may not do a PR, but people talk. Remember the lawsuit and NDA agreement are proceeded by talks. At the very least you'd know they were approached and then suddenly went silent on the matter.
If it did work it would be the greatest conspiracy ever pulled off. A company extracting a billion hostile dollars and people not even posting on anonymous sites? So not likely.
The genius of IV's NDAs isn't that they have millions of companies paying them, but that they can create the mythology that they might. And you might be next.
I'm literally about 100x more worried that my architect gets hit by a bus than I am of being sued over patents.
If it did work it would be the greatest conspiracy ever pulled off. A company extracting a billion hostile dollars and people not even posting on anonymous sites? So not likely.
The genius of IV's NDAs isn't that they have millions of companies paying them, but that they can create the mythology that they might. And you might be next.
I'm literally about 100x more worried that my architect gets hit by a bus than I am of being sued over patents.
I think all the indie devs that are getting letters from lodsys would tend to disagree with you about whether or not it's a 'real' issue.
For every indie dev getting a letter from Lodsys, there has been 100 indie devs that have failed for reasons unrelated to patents.
I'm not saying that lawsuits don't happen, but they're rare.
I'm not saying that lawsuits don't happen, but they're rare.
But for every successful indie dev there are already many more unsuccessful ones irrespective of patents. The question is, how many successful devs get hit out of the pool of successful devs?
The odds are already pretty long for being a successful dev, but if these letters take out 10, 15, or 20% of the would-be successful ones, that's a big deal.
The odds are already pretty long for being a successful dev, but if these letters take out 10, 15, or 20% of the would-be successful ones, that's a big deal.
I agree they are rare and there are 100 potential pitfals before patents would become a concern for a startup, but they are still starting to scare a lot of people with the current press they are getting. It is a tricky issue for me to decide on. On one hand I fully understand the need for patents, there would be a lot more horror stories of the little guys getting squashed without them. On the other hand I hate the way huge companies are using them as a revenue stream. I personal would like to see patents become unenforcible if you can not show that you are currently working on a product that utilizes the patent or have a product in production that utilizes it. Stop letting companies just own a patent for the hell of it.
I doubt there would be "a lot more horror stories of the little guys getting squashed without them."
The reason google, facebook, etc... would rather buy startups that are breaking new ground is because it's faster and cheaper than just copying/cloning an idea and building it from scratch - especially these days, when innovation happens much quicker.
The reason google, facebook, etc... would rather buy startups that are breaking new ground is because it's faster and cheaper than just copying/cloning an idea and building it from scratch - especially these days, when innovation happens much quicker.
I guess the reason I find them more worrying is the lack of control. I know I can write good software, I think I've got a great product idea, and I know where I can get help in the areas I lack. These are all issues I can manage. Bruce Schneier writes a lot about how people fear things that are new, and things that are outside their control, this seems to apply.
The only way for me to "manage" some sort of patent lawsuit would be buying insurance against it (is that even possible?), and even then the insurance company would likely settle, handing over more cash, and further validating the business model.
The only way for me to "manage" some sort of patent lawsuit would be buying insurance against it (is that even possible?), and even then the insurance company would likely settle, handing over more cash, and further validating the business model.
I agree with you and I feel the same! As a co-founder, I recently did risk analysis for next iteration of our product; for everything we had risk mitigation strategy in place. But for "getting sued"; we will be screwed and shut down the business (if its hundreds of thousands dollar claim)
[deleted]
Did anyone else click the "someone patented toast" link and actually read the claims? It's for toasting bread at 2,500-4,500 degrees, with specialized infrared ovens.
2500-4500 degrees sounds impressive, I can't believe how NPR manipulated me!
Wait... http://www.vendian.org/mncharity/dir3/blackbody/
Pretty sure a standard household toaster is well into that range.
Wait... http://www.vendian.org/mncharity/dir3/blackbody/
Pretty sure a standard household toaster is well into that range.
"specialized infrared ovens" That's cute. Toasters, you mean? Toasters work by heating a coil to somewhere in that range (2.5k - 4.5k degrees), and then the radiation from the coils toasts the bread.
I have read somewhere that patent description are often deceitful. The abstract can be intentionally misleading and the wording in your case seems to be too.
Intellectual Ventures recently posted a rebuttal http://intven.com/newsroom/insights/11-07-25/Disruption_Invi...
They like to say things like "ideas have value" and that they are "disruptive."
Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong.
And who, or what, do they think they are disrupting? Isn't IV the incarnation of the status quo?
Reading their website feels like reading a politicians...
They like to say things like "ideas have value" and that they are "disruptive."
Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong.
And who, or what, do they think they are disrupting? Isn't IV the incarnation of the status quo?
Reading their website feels like reading a politicians...
Geez, why did they even bother? I mean it's plain as day that they know what they're doing. These guys are credible technologists who sold their souls to the devil. It's one thing for some business guy looking for a quick buck to become a patent troll, but it sickens me to my very core to even think about Myhrvold and Detkin and what they are knowingly doing to the industry. Even with all the double-talk, Detkin was still acquiescing in the interview about where "most" of their money comes from. The astonishing thing is how they can't even produce a single example of an inventor whom they helped or a product that was brought to market as a result of their "research".
Man if ever I wanted to believe in Hell, these guys are the ones to inspire me.
Man if ever I wanted to believe in Hell, these guys are the ones to inspire me.
Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong.
The Planet Money reporters asked this very question. IV offered bupkis in response, rather sending them on a wild goose chase. I only hope Mhyrvold starts patenting culinary ideas, just to spread the joy.
The Planet Money reporters asked this very question. IV offered bupkis in response, rather sending them on a wild goose chase. I only hope Mhyrvold starts patenting culinary ideas, just to spread the joy.
> We at Intellectual Ventures fundamentally disagree with [the notion that patents have a negative impact on innovation], which flies in the face of centuries of evidence.
I know of a rather serious source that says patents are a net evil, baked up by… centuries of evidence: http://www.dklevine.com/general/intellectual/against.htm
About the values of ideas, it is quite evident that most patents' ideas are extremely valuable. The more obvious the idea, the more valuable it is. The artificial scarcity created by the patent system merely shows how valuables simple ideas actually are. Imagine for instance that breathable air becomes scarce. How much would you be willing to pay for it if it meant your life?
I know of a rather serious source that says patents are a net evil, baked up by… centuries of evidence: http://www.dklevine.com/general/intellectual/against.htm
About the values of ideas, it is quite evident that most patents' ideas are extremely valuable. The more obvious the idea, the more valuable it is. The artificial scarcity created by the patent system merely shows how valuables simple ideas actually are. Imagine for instance that breathable air becomes scarce. How much would you be willing to pay for it if it meant your life?
Never mind the fact that there simply cannot be centuries of evidence about software patents.
But we were talking about patents in general. And those are quite old:
http://en.wikipedia.org/wiki/Patent#History -> "Patents in the modern sense originated in 1474"
And of course, the Watt's steam engines patents: http://en.wikipedia.org/wiki/James_Watt#Patents
http://en.wikipedia.org/wiki/Patent#History -> "Patents in the modern sense originated in 1474"
And of course, the Watt's steam engines patents: http://en.wikipedia.org/wiki/James_Watt#Patents
And I'm calling out that the article was about software pattents being possibly bad and the response was simply, "no, patents are good" without any real substance.
Some bad things are so obviously good that you don't have to provide substance. Examples: the "protection" of intellectual "property", GDP growth, and even death (which somehow gives meaning to life).
Also, they made a general statement, which we could have dismissed thus: "OK, the patent system is a net good. But _software_ patents are definitely bad [a few decades of overwhelming evidence]". This is generally what we see here an HN.
However, I think we can attack their statements more directly, as "Against Intellectual Monopoly" did. I also think we should do so, instead of just defending our corner of the industry. My current position is, the concept of patent is broken at its core. It simply doesn't work, never did, never will. Hey, I even heard that the first patent systems actually were disguised trade barriers, meant to protect the established, local industry. At that, they did work.
Also, they made a general statement, which we could have dismissed thus: "OK, the patent system is a net good. But _software_ patents are definitely bad [a few decades of overwhelming evidence]". This is generally what we see here an HN.
However, I think we can attack their statements more directly, as "Against Intellectual Monopoly" did. I also think we should do so, instead of just defending our corner of the industry. My current position is, the concept of patent is broken at its core. It simply doesn't work, never did, never will. Hey, I even heard that the first patent systems actually were disguised trade barriers, meant to protect the established, local industry. At that, they did work.
I am surprised that the rebuttal didn't attempt to refute any of the facts in the piece. I know the folks at TAL/NPR take their reporting and fact checking seriously, but I would expect IV to take some weaker part of the piece and try to discredit them.
Instead they are creating a false dichotomy of "patents can be good for inventors, so we can't be doing anything wrong"
Instead they are creating a false dichotomy of "patents can be good for inventors, so we can't be doing anything wrong"
"I am surprised".
Yes, shocked, shocked ....
Yes, shocked, shocked ....
They can't be serious with that rebuttal. Intellectual Ventures is a parasite who's allowed to thrive on the innovation and hard-work of others simply because they have identified a loop-hole in an archaic system that was never built for or intended for the abusive nature in which they are exploiting it.
That entire article rests on the assumption that software patents have some value outside of the ability to sue someone else with them or to ward of lawsuits by someone else. They want you to think of a software patent like it's a piece of music or a motion picture. They're just like Netflix or Spotify for patents! I don't know how anyone working for that company can sleep at night.
I personally believe that (unless something is done to change the system), generic software patents will ensure the slow grinding halt of entrepreneurial innovation in the U.S.
Intellectual Ventures is the worst thing to happen to small web businesses and developers... ever.
In movies you can't have a patent for action cop movies with a surprise plot twist. That would be absurd. Just like generic software patents.
Don't look now but...
http://www.plotpatents.com/
They've actually been trying for some time now.
http://www.plotpatents.com/
They've actually been trying for some time now.
There are business method patents (Google "State Street Bank").
Michael Jackson attempted to patent some of his dance moves.
There's been discussion of patenting specific sports plays.
There are also discussions and stories looking at fields which work well without (or by ignoring) IP protections: comedians, fashion designers, jazz musicians. Even this bunch of hippie freaks doing something they call "free software", but I don't think that will ever amount to anything.
Michael Jackson attempted to patent some of his dance moves.
There's been discussion of patenting specific sports plays.
There are also discussions and stories looking at fields which work well without (or by ignoring) IP protections: comedians, fashion designers, jazz musicians. Even this bunch of hippie freaks doing something they call "free software", but I don't think that will ever amount to anything.
it took me a minute to find it, but here is the "ideas have value" quote http://www.geekwire.com/2011/intellectual-ventures-responds-...
heres a quote: "Many of the world’s leading technology companies are beginning to recognize that patents are a strategic asset worth billions of dollars. "
At least in the technology companies ive worked for, the strategic value of patents comes purely from the fact that having them can keep frivolous lawsuits at bay.
At least in the technology companies ive worked for, the strategic value of patents comes purely from the fact that having them can keep frivolous lawsuits at bay.
I guess they've never heard the phrase - "ideas are a dime a dozen".
One of the best TAL episodes in recent memory. The story mentions that modern patents (specifically software patents) lack the novelty that the patent system was originally designed to encourage. Did patent laws change at some point in history to allow this to happen?
One of the best TAL episodes in recent memory.
Absolutely. While listening to it, one of my thoughts was "I can't wait to read the discussion of this over on HN".
I'm going to use this opportunity to remind people to donate to their local public radio station, TAL/WBEZ Chicago, or both.
Absolutely. While listening to it, one of my thoughts was "I can't wait to read the discussion of this over on HN".
I'm going to use this opportunity to remind people to donate to their local public radio station, TAL/WBEZ Chicago, or both.
The audio version of the story mentions that it was a decision by the patent office, not specific legislation. Sometime in the 1980s they went from copyrighting software (i.e., treating it like literature or art) to patenting it.
No, the audio version mentions that the patent office used to operate on the principle that software could be copyrighted but not patented, but sometime in the 80s the judiciary indicated in several instances that was not the case and the patent office complied.
Yup, it's a repost, but I'm okay with it because the MP3 is now available (came out Sunday @ 7pm). Take note, it's only available for free this week. After that, I think you can find it on iTunes or Amazon for a buck or three.
Yikes, sorry about that. My search for "npr patents" only brought up a mention in a comment.
I'm glad you re-posted, actually, since the original links (when posted) didn't include audio.
I'm curious as who are the VC's who invested in IV? Are these typical tech VC's, or are they more of the private equity type that relish in making money off these so called opportunities or arbitrages that don't require actual productive work.
Is this an issue for companies owned by HNers?
Poll: http://news.ycombinator.com/item?id=2809951
Two very interesting Econtalk podcasts on IP issues and economics, both of which argue that innovative industries can thrive in legal regimes which offer very limited IP protections:
Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...
Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...
pg groupies may also want to check out the Econtalk interview with Paul Graham. Finding it is left as an excercise for the reader, primarily to encourage people to check out this amazing resource.
Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...
Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...
pg groupies may also want to check out the Econtalk interview with Paul Graham. Finding it is left as an excercise for the reader, primarily to encourage people to check out this amazing resource.
It's interesting to see more mainstream media outlets (npr and This American Life (public radio?)) talk more about patent trolling lately. As of a few weeks ago lay people I talked to had no idea programmers generally disliked patents.
For some reason, every time I read the name Intellectual Ventures I sound it in my mind as Intellectual Vultures.
In the audio version, they mention several times that patent law is founded in the constitution. I wish they would actually read it though, as it's not very complicated:
The Congress shall have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Congress shall have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Oddly enough, that is not enough to make patent law mandatory by the constitution: the text you cite has the structure "The congress shall have Power To […] promote X by using the mean Y".
First, it is not written that the congress has to exercise that power.
Second, what if Y does not promote X? What if it hinders X? It is written that the congress is allowed to promote X (through Y), not doing nothing about X (through Y) and certainly not hinder X (through Y).
I understand how one might assume that a patent system is a good (best? only?) way to promote the Progress of Science and useful Arts, especially back then. Nevertheless, I think this was a mistake: they wrote the mean in the same stone they did the goal. (Of course, goals themselves can turn out to be means to higher purposes, but in this case it is quite obvious from the beginning.)
First, it is not written that the congress has to exercise that power.
Second, what if Y does not promote X? What if it hinders X? It is written that the congress is allowed to promote X (through Y), not doing nothing about X (through Y) and certainly not hinder X (through Y).
I understand how one might assume that a patent system is a good (best? only?) way to promote the Progress of Science and useful Arts, especially back then. Nevertheless, I think this was a mistake: they wrote the mean in the same stone they did the goal. (Of course, goals themselves can turn out to be means to higher purposes, but in this case it is quite obvious from the beginning.)
Is this sort of thing an issue in other countries. I'm a tech founder in Australia. I don't think we have the same level of anxiety about being sued for unknowingly breaching a software patent. Can anyone comment on this? Is our patent system different or can we expect to see our industry similarly affected in the future?
Patents are territorial. That is, unless someone has filed an application (or designated Australia as part of a national phase of a Patent Cooperation Treaty (PCT) patent application, nothing will issue in Australia. Generally, companies try to figure out where their likely markets are, and where the expense can be justified. Australia is becoming more and more relevant, but it was not nearly as common to file there a few years ago. (Full disclosure, I'm a U.S. patent attorney (but I'm actually a good guy!).)
That's a bit reassuring to me. I'm not anyone special, but I've got some ideas I want to code up that likely won't get anyones attention. After seeing patent topics popping up here on HN so often, I'm seriously terrified of even being a programmer anymore. This stuff makes me want to give up and find a job digging ditches or something, Office Space style.
But, I'm Canadian. Your comment makes me feel a bit safer, but I have the feeling that little things like hosting the site in the US or collecting money from Google AdSense or an Amazon Affiliates account could make me horribly liable.
I know that rationally this practically a non-issue, since I'm such a low value target, but the fear is still there, lurking beneath the surface, scaring the hell out of me.
But, I'm Canadian. Your comment makes me feel a bit safer, but I have the feeling that little things like hosting the site in the US or collecting money from Google AdSense or an Amazon Affiliates account could make me horribly liable.
I know that rationally this practically a non-issue, since I'm such a low value target, but the fear is still there, lurking beneath the surface, scaring the hell out of me.
it's time this issue got more exposure than just the tech world... reporters aren't worried about their company being sued out from under them.
The solution is very simple. Create a simple how to patent template website, then have every developer apply for patents on any business and software process that they can dream of. Within two years you'll choke the entire system into change. Make it impossible for anyone to do anything.
1st idea, the collection, aggregation, and transmittal of electronic messaging data during a waste evacuation process. (i.e. checking your email while on the toilet)
1st idea, the collection, aggregation, and transmittal of electronic messaging data during a waste evacuation process. (i.e. checking your email while on the toilet)
To the extent that the system is choked it means that the Patent Office grants patents without having the time to look at them, not that a backlog develops. You might notice that this has already happened.
of course that is happening. Even worse is that the people examining the patents are not best and under qualified to review software patents.
Can someone please tell me what Myrvolhd actually DID when he was leading MS Research? I remember no innovations from MS in that era.
He wrote long memos and famously pooh-poohed the internet.
http://www.kenauletta.com/themicrosoftprovocateur.html
Correction: this was before he was sent (banished, the article makes it seem) to Microsoft Research.
http://www.kenauletta.com/themicrosoftprovocateur.html
Correction: this was before he was sent (banished, the article makes it seem) to Microsoft Research.
When you look up who's at MSFT Research (and there are some truly great minds there -- Leslie Lamport of LaTeX fame for one, I find a certain credence to the theory posited by some that its main function was to take talent off the market.
I actually just heard this story over NPR Radio. It's concerning to think about how companies like this can strong-arm smaller startups. But at the same time that doesn't mean that we should hide in fear. We've got to keep on doing what we do best: developing innovative products and solutions for users everywhere. Torpedoes be damned.
[deleted]
Serious question: can/do patent trolls go after open source projects? I'm not thinking of businesses who sell/support open source software (e.g. Red Hat), but would it be a viable "defense" for an indie dev to simply release their project as open source? I've got an idea for a "weekend project" or two that I could conceivably make a few bucks with, or I could release them as open source so that I can at least benefit from the idea without worrying (as much?) about being sued for violating a patent. On the one hand if I'm not making any money from it one would think that the trolls would go elsewhere, but then again...
Just looking for a general idea here, I'm not looking for official legal advice here... :-)
Just looking for a general idea here, I'm not looking for official legal advice here... :-)
The Debian patent FAQ is pretty good for this: http://www.debian.org/reports/patent-faq
Very useful - thanks for the link!
If you're looking for an organization which is actively working to fix the software patent problem, you can look to End Software Patents: http://endsoftpatents.org/
What if you could pay for some kind of insurance product to protect against patent lawsuits? Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?
>What if you could pay for some kind of insurance product to protect against patent lawsuits?
Heh. Programmers' malpractice insurance. The premiums would be ridiculous, though.
>Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?
That's more or less the shitck Intellectual Ventures uses to justify that they're not patent trolls (they point it out in TFA). In the podcast they point out that their need for a good ROI doesn't allow them to sit idle.
How do you defend against patent trolls, though? It's not like they make anything that can be infringed on.
Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
Heh. Programmers' malpractice insurance. The premiums would be ridiculous, though.
>Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?
That's more or less the shitck Intellectual Ventures uses to justify that they're not patent trolls (they point it out in TFA). In the podcast they point out that their need for a good ROI doesn't allow them to sit idle.
How do you defend against patent trolls, though? It's not like they make anything that can be infringed on.
Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
> Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
Nice idea!
> It's not like they make anything that can be infringed on.
Or, require the patent holder to prove 'damages'. Since they don't make anything and don't actually use their patents there are no damages lost.
Nice idea!
> It's not like they make anything that can be infringed on.
Or, require the patent holder to prove 'damages'. Since they don't make anything and don't actually use their patents there are no damages lost.
You can. rpxcorp.com
Well, this was timely.
http://news.ycombinator.com/item?id=2808110
Is it fair to call Intellectual Ventures an arms dealer.
I wonder why people waste their time and money on defending themselves in court, why don't they hire Tony Soprano to fix their problem instead? It would be a pretty appropriate response.
Poll: What's you take on Intellectual Ventures with regard to innovation? http://wepolls.com/1510009
Admittedly I stopped reading the article when I got to "IV isn't a patent troll, we're simply just a big patent market connecting suppliers to consumers"
No, you're not simply a 'market'. A market doesn't come and sue you for buying your milk somewhere else.
No, you're not simply a 'market'. A market doesn't come and sue you for buying your milk somewhere else.
You might want to finish the article.
I get that the article is against the patent process, and the downmodders don't seem to get that I was referring to IV's characterisation of itself, not npr's characterisation of IV - I thought it was clear where I was directing it due to the phrase "you're not a market".
I wasn't using 'patent troll' or any of the other terminology. I was pointing out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000 word article. I'm now about halfway through and have scanned the rest of the article... and I don't see anything that invalidates my claim above. IV is not the 'market' that it says it is. If anything, I am supporting what npr is saying.
HN moderation is weird.
I wasn't using 'patent troll' or any of the other terminology. I was pointing out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000 word article. I'm now about halfway through and have scanned the rest of the article... and I don't see anything that invalidates my claim above. IV is not the 'market' that it says it is. If anything, I am supporting what npr is saying.
HN moderation is weird.
The subject of article is more or less how IV's reasoning is flawed. Picking a quote from the beginning and saying "that is flawed" is just echoing the bulk of the article. I would guess your downmodders think you're not adding to the discussion.
I don't buy that argument - why aren't many of the other short comments in this page getting the same treatment when they're not adding to the discussion either?
If you had cut out the "Admittedly I stopped reading the article when I got to" part of your comment, you probably wouldn't have been downvoted. I think the general perception is that it's difficult to add to the discussion of an article if you didn't even bother to read that article, especially when your comment merely echoed the article.
I, too, think it is that particular phrase, and I disagree with the sentiment of downmodding this kind of admission instead of actual content.
I've seen this elsewhere - if someone says they're being sarcastic, they're downmodded to hell... but people in the same thread saying the same thing in the same sarcastic manner, but without the admission, are left alone.
I find this inconsistency annoying - it appears that downmod-friendly HNers are more interested in making a pretense to politeness than actually moderating content. It only takes a single dissenter and your words are already diminished on the page.
I've seen this elsewhere - if someone says they're being sarcastic, they're downmodded to hell... but people in the same thread saying the same thing in the same sarcastic manner, but without the admission, are left alone.
I find this inconsistency annoying - it appears that downmod-friendly HNers are more interested in making a pretense to politeness than actually moderating content. It only takes a single dissenter and your words are already diminished on the page.
I'm deeply saddened by this mess and doubt it will ever be resolved. There is far to much money at stake now to revert things - money = lobbying.