We’re all trolls now: Patent ‘rat’s nest’ is worse than you think(gigaom.com)
gigaom.com
We’re all trolls now: Patent ‘rat’s nest’ is worse than you think
http://gigaom.com/mobile/were-all-trolls-now-why-the-patent-rats-nest-is-worse-than-you-think/
8 comments
Offtopic as well. I would like to know what made you choose something regarded so unethical here (and actually everywhere besides patent lawyers' offices) as a job. You should do an AMA on Reddit.
Uh, you downvote but don't answer? I'm actually curious as I imagine a lot of people are here?
Edit: I apologize for putting the 'except patent lawyers' offices' but HN won't allow me to edit that comment... Sorry. I really would like an answer.
Edit: I apologize for putting the 'except patent lawyers' offices' but HN won't allow me to edit that comment... Sorry. I really would like an answer.
I wanted to be a lawyer, but I'm also a nerd. Patent law is like law + engineering... what's not to like? (I think there have been AMAs by other patent lawyers, BTW.)
As for the downvoting, it wasn't me.
As for the downvoting, it wasn't me.
It's very offtopic, but I'd be interested to know what drove you to HN as a patent lawyer. I can see your account is well established, so I'm guessing it's not just to spontaneously chime in during patent discussions. Are you specializing in technology cases or are you partly a developer, too?
To some extent, every patent lawyer specializes in technology. As for participating here... well, I'm a lawyer by vocation but a nerd by avocation. I like the discussions here, even though I'm at best an amateur coder.
Probably you will not get a proper answer, yet you've put this question ringing in my head in a very elegant way.
What's your guess for what the guys at IV are making?
If they are getting a percentage of settlement revenue instead of billing hourly I could see them making that much.
If they are getting a percentage of settlement revenue instead of billing hourly I could see them making that much.
You mean patent lawyers who are employees of IV, or patent lawyers who represent IV? Actually, I dunno why I bothered to ask... I have no idea either way.
I don't know, I thought IV aside from their research division, is a company of lawyers that manage their patent portfolio.
Yeah - I was pretty amused by that one.
I have a feeling this will turn a lot more innovators into patent lawyers. This is probably the first time in my career that I want to start writing (as in more than once) my congressman. Not to mention that if Apple, Google, and Amazon are acting out of fear what hope does the little guy have?
I think "acting out of fear" is hyperbole for making a "logical business decision". It's not like these guys are strangers to the patent business (remember 1-Click?). One thing to remember about the little guy is, he doesn't have any money, so he's not worth going after.
My impression is that the scenario where 'big tech company/patent troll' sues 'unprofitable start-up' out of existence is pretty rare.
My impression is that the scenario where 'big tech company/patent troll' sues 'unprofitable start-up' out of existence is pretty rare.
I tend to agree with the "logical business decision", but what this means (I'm just speculating really), is that when a business reaches profitability, or taps a growth market, then the potential profit vs legal costs will turn on. Which means that IV and Big Name companies can strong arm the up-start company to either join their patent trolling or turn over some percentage. For what amounts to flimsy and obvious software ideas/patents.
> One thing to remember about the little guy is, he doesn't have any money, so he's not worth going after.
But part of the point of being a little guy is that you have a chance to not always be a little guy, but with the patent cartel/racket around it becomes much harder to grow beyond being a little guy.
But part of the point of being a little guy is that you have a chance to not always be a little guy, but with the patent cartel/racket around it becomes much harder to grow beyond being a little guy.
An exercise for hardy souls: Go into the patent database, and do a search for video or television over the Internet. (Networks, packet switched networks.) Note the number of patents that show up. Start reading them. Note how many of these are obviously pure trolls. It's just endless.
How can one know from reading a patent whether it's a "pure troll?"
Ask: How is the patent being used?
If the patent holder is not manufacturing a product but is threatening to sue others based on the patent, it's trolling.
IV manufactures nothing. However, through shell corporations, they threaten to sue others. This motivates their targets to participate in the IV pools and IV takes a cut.
This idea of threatening enforcement where the patent holder has no intent to ever manufacture is not something new. But no one ever liked it when it happened. That's because it serves no apparent purpose in bringing products to the market.
What makes IV unique is that Myrvold used his own money to start IV and start acquiring patents from patent holders in bulk. This was no small investment. His idea is to make trolling a business. Instead of trying to fix a problem, he has opted to exacerbate it for his own profit. He is engaging in exactly the type of conduct companies like the one he worked for had to be in constant fear of: the small inventor who will never be successful in the marketplace but who has received some patents that she can, at her discretion, enforce against some large companies that are successful in the marketplace.
For an interesting approach to how patents might be used, consult the history of Hans Bessemer. He produced some of the most valuable intellectual property in America's history. He made Carnegie the world's wealthiest individual.
Also, note that Paul Allen, one of the wealthiest men on the planet, tried some pure patent trolling a number of years ago. Why? He failed miserably. But what drives someone to try this?
If the patent holder is not manufacturing a product but is threatening to sue others based on the patent, it's trolling.
IV manufactures nothing. However, through shell corporations, they threaten to sue others. This motivates their targets to participate in the IV pools and IV takes a cut.
This idea of threatening enforcement where the patent holder has no intent to ever manufacture is not something new. But no one ever liked it when it happened. That's because it serves no apparent purpose in bringing products to the market.
What makes IV unique is that Myrvold used his own money to start IV and start acquiring patents from patent holders in bulk. This was no small investment. His idea is to make trolling a business. Instead of trying to fix a problem, he has opted to exacerbate it for his own profit. He is engaging in exactly the type of conduct companies like the one he worked for had to be in constant fear of: the small inventor who will never be successful in the marketplace but who has received some patents that she can, at her discretion, enforce against some large companies that are successful in the marketplace.
For an interesting approach to how patents might be used, consult the history of Hans Bessemer. He produced some of the most valuable intellectual property in America's history. He made Carnegie the world's wealthiest individual.
Also, note that Paul Allen, one of the wealthiest men on the planet, tried some pure patent trolling a number of years ago. Why? He failed miserably. But what drives someone to try this?
I'll ask again then. How can one know from reading a patent whether or not it's a pure troll?
Patents don't troll. People do. For example, people who run companies, like the shell companies IV incorporates.
It's not the patent that reveals trolling. Rather, what indicates trolling are the actions of the person running the company that controls the patent.
Perhaps I am misunderstanding your question.
It's not the patent that reveals trolling. Rather, what indicates trolling are the actions of the person running the company that controls the patent.
Perhaps I am misunderstanding your question.
No, I think we understand each other. I was replying to a comment about reading a patent to see if it was a "pure troll" which is impossible.
Does it claim the entire problem (by handwaving around aspects which will necessarily appear in any possible solution) rather than a specific solution which might be invented around? Is it the solution any practitioner will immediately produce upon first facing the problem (i.e., what "obvious" means everywhere outside patent law), so devoid of creative steps that writing it down was considered a waste of time? Was it "disclosed" in the patent repository (that mountain of obfuscated drivel we're well advised never to look at, on penalty of bigger lawsuits) and nowhere else?
I'm not trained in these matters, but it seems to me, that attempts to patent general notions like "video over the Internet" were primarily there to cast as wide a net as possible and put there by people who had no real invention but who did have a vague idea that this would be an area of economic interest in the future. A lot of those don't even seem to have any specific mechanisms to bring benefits like better compression, though they might have claims to that effect.
The fact that the general practice is to make claims as broad (and therefore vague) as possible doesn't leave me with good feelings about the system. Neither does the weird legalese that the patents consist of.
The fact that the general practice is to make claims as broad (and therefore vague) as possible doesn't leave me with good feelings about the system. Neither does the weird legalese that the patents consist of.
You know as well as I do that you can't. It is an absolutely absurd statement. This is just typical of a lot of the completely misinformed nonsense that passes for comment on patents.
Yeah, but I thought I'd ask the question instead of just saying "You don't know what you're talking about."
It is pretty clear what he meant; any patent that makes a ridiculously broad generalization was created just to sue everyone and get money or to take its competitors out of business.
Example: I patent the way of moving my leg in front of my other leg when that other leg is my only limb supporting my weight in order to repeat this process to make a displacement of my body mass (AKA walking)
Example: I patent the way of moving my leg in front of my other leg when that other leg is my only limb supporting my weight in order to repeat this process to make a displacement of my body mass (AKA walking)
What I suspect monochromatic is trying to point out is that patents are not easy to read and understand. Not even for patent lawyers. Maybe even by design. And that even if you do understand a patent, this generally says nothing about why it was filed.
Or do you expect executives to regularly review potential patent applications to avoid those that are potentially "too good" for the business?
Or do you expect executives to regularly review potential patent applications to avoid those that are potentially "too good" for the business?
Even when a patent is clear as day, it's not obvious on the face of it whether or not it's being used for trolling, or will be used for trolling. Trolling is all about who owns the thing, and what they want to use it for... not about how the patent was drafted. (At least not mostly about how it was drafted.)
What I suspect monochromatic is trying to point out is that patents are not easy to read and understand. Not even for patent lawyers. Maybe even by design.
This seems to indicate that patents are written in a way guided by their adversarial purposes. This is broken.
This seems to indicate that patents are written in a way guided by their adversarial purposes. This is broken.
This is, of course, the tragedy of our software patent situation. Changing the system is so difficult that all of the companies who have the greatest interest in advocating for change end up picking up patents to defend themselves... and we know the rest.
This is a horrible article. It makes no effort to seriously examine the issues. It is just a rant. If this is what passes for journalism then god help us all.
This can probably be said for nearly all "journalism" in the US.
The problem is the patent system and their apparent working definition of patentability. When Amazon can patent one-click purchasing or whoever can patent in-app purchasing, the government's definition of patentability is severely broken. From what I can tell the patent office just googles the claim's buzzwords for hits prior to the filing date and if nothing is found the patent is granted. They don't even try to get into obviousness / novelty / subject matter.
Ultimately I guess it's an issue that directly affects very few people, and indirectly hits the software consumer in the form of slightly(?) increased prices and less feature availability.
Ultimately I guess it's an issue that directly affects very few people, and indirectly hits the software consumer in the form of slightly(?) increased prices and less feature availability.
> from what I can tell . . .
This is really not how it works.
This is really not how it works.
Why not? Prior art is prior art; if it's in Google, it's prior art. Why do they make it so difficult (I know the answer but I hope i'm wrong)?
Would you mind expanding on how a prior art search works? It might be of great interest to folks here.
The USPTO publishes its operating manual for examiners on its website. All of chapter 900 deals with prior art and searches for it, but an overview of the process can be found in these sections:
904: http://www.uspto.gov/web/offices/pac/mpep/documents/0900_904... 904.02: http://www.uspto.gov/web/offices/pac/mpep/documents/0900_904...
The process examiners use for a specific patent is also documented by them in the file wrapper for every application and is available in PAIR: http://portal.uspto.gov/external/portal/pair
904: http://www.uspto.gov/web/offices/pac/mpep/documents/0900_904... 904.02: http://www.uspto.gov/web/offices/pac/mpep/documents/0900_904...
The process examiners use for a specific patent is also documented by them in the file wrapper for every application and is available in PAIR: http://portal.uspto.gov/external/portal/pair
Just empirically, it seems that examiners almost never use google.
My favorite 'rat's nest' synonym is Gordian knot.
As a patent lawyer, I'm not sure I'm aware of any patent lawyers making that kind of money [from a law firm, I mean].