Introducing EFF's Stupid Patent of the Month(eff.org)
eff.org
Introducing EFF's Stupid Patent of the Month
https://www.eff.org/deeplinks/2014/07/inaugural-stupid-patent-month
109 comments
This is a great idea. If you want to demonstrate just how much software patents suck, you need to be able to point out examples. Yet I've seen many people who try to do so get shutdown with remarks like "you're not a lawyer", "you don't understand patent claims", "if you read this in a Lawyer-Approved Fashion (tm) it turns out this IS a good patent claim", etc. It'll be a lot harder to dismiss examples of shitty patents if their shittiness is endorsed by the legal expertise of the EFF.
Is there a patent review person in charge of the patent at the PTO? That is, is there a name of a PTO person that we can attach to these to say "John Doe approved/accepted/submitted on behalf of... this patent?" If so, I would like to see EFF attach the name. Maybe public ridicule will make them a little more careful.
Wow, this a thousand times. It's so incredibly frustrating to have discussions about stuff like this with people who don't have the same knee-jerk mistrust of the patent system that I do. I'm not saying my reaction is right, just that it'll be nice to have something to point too and say "told ya so...". Of course, the people I know who don't think that the patent system is broken are probably the people who don't necessarily know/trust the EFF.
They don't have to trust the EFF blindly - they do a pretty good job of explaining what's wrong with this patent.
Many (most?) people believe in authority more than they believe in explanations. They watch TV everyday, and TV displays a tremendous amount of authority (all those expert guests in suits).
"Patents sucks" is a contrarian opinion in this environment. Without a proper-looking authority to back that up, no amount of explanation will ever convince those people. They will just assume there "must be a reason" for this, even if they don't understand it.
The alternative is to teach them how to think. This will take time.
"Patents sucks" is a contrarian opinion in this environment. Without a proper-looking authority to back that up, no amount of explanation will ever convince those people. They will just assume there "must be a reason" for this, even if they don't understand it.
The alternative is to teach them how to think. This will take time.
> This is a great idea.
Not really: you don't condemn an entire system by pointing out individual bad examples of it.
This is like picking a bad article linked on Hacker News and saying "Hacker News is broken and needs to be abolished".
You're not going to convince anyone with this kind of cherry picking.
Besides, the title made it sound as if the EFF was filing stupid patents.
Not really: you don't condemn an entire system by pointing out individual bad examples of it.
This is like picking a bad article linked on Hacker News and saying "Hacker News is broken and needs to be abolished".
You're not going to convince anyone with this kind of cherry picking.
Besides, the title made it sound as if the EFF was filing stupid patents.
For a story to appear on HN's front page, you need perhaps a few dozen upvotes. For a patent to be approved, years are spent examining it.
If a bad story hits HN, it's gone within the day. If a bad patent is issued, it can be used to extort millions of dollars out of people who are doing useful work.
The situations aren't glibly comparable. Every bad patent can cost millions of dollars. This isn't a system where we as a society should permit a high false positive rate.
In this situation, a high enough false positive rate, as evidenced by bad patents like these, can make it such that the cost of the system outweighs its value, such that a rational society would abolish it if there were no workable means of correction.
That aside, I note that the patent bar tries to spin the patent lawsuit revenue as being the value of patents, rather than the cost, so I suppose entrenched interests will continue with that line.
If a bad story hits HN, it's gone within the day. If a bad patent is issued, it can be used to extort millions of dollars out of people who are doing useful work.
The situations aren't glibly comparable. Every bad patent can cost millions of dollars. This isn't a system where we as a society should permit a high false positive rate.
In this situation, a high enough false positive rate, as evidenced by bad patents like these, can make it such that the cost of the system outweighs its value, such that a rational society would abolish it if there were no workable means of correction.
That aside, I note that the patent bar tries to spin the patent lawsuit revenue as being the value of patents, rather than the cost, so I suppose entrenched interests will continue with that line.
> years are spent examining it
It's more like a day or two are spent actually examining any case in general. It takes so long because a) it has to (there is an 18 month period between submission and publication) and b) there are a lot of patents and the queue is long.
Also you've asserted there is a high false positive rate, but I would put money on the fact that the rate is extremely low. Like people having a fear of flying because they see news reports about all the accidents, the realite is the chances of a patent getting through or you dying on in a plane crash are miniscule, but successful flights and genuine inventions are rarely worth writing about.
It's more like a day or two are spent actually examining any case in general. It takes so long because a) it has to (there is an 18 month period between submission and publication) and b) there are a lot of patents and the queue is long.
Also you've asserted there is a high false positive rate, but I would put money on the fact that the rate is extremely low. Like people having a fear of flying because they see news reports about all the accidents, the realite is the chances of a patent getting through or you dying on in a plane crash are miniscule, but successful flights and genuine inventions are rarely worth writing about.
I guess it depends on what one's of "high" is with respect to false positives. I think he's arguing that the costs associated with these false positives are such that even an "extremely low" absolute number (like one in a thousand) is unacceptable.
Consider, for example, if airplanes carried tens of thousands, rather than hundreds, of passengers. Then our acceptable false positive rate may change by an order of magnitude.
Consider, for example, if airplanes carried tens of thousands, rather than hundreds, of passengers. Then our acceptable false positive rate may change by an order of magnitude.
Exactly right. If 1% of 100 patents are bad, there's 1 bad patent out there. If 0.001% of 100,000,000 patents are bad, you have 1,000 bad patents and the problem is 1,000 times worse due to scale, because you only got a thousand times better and you needed to be a million times better to keep pace with the problem.
And no, you can't sensibly distribute the costs of that across the population in a case like this. Patents can be asserted against everyone independently, so a larger population makes things worse, no better, as it gives trolls more victims, rather than distributing the cost. It's not as if patent litigation is over for a patent once they've sued one person (though it is interesting to imagine a model where a patent might be 'exhausted' once the holder collected 'enough' money through litigation).
And no, you can't sensibly distribute the costs of that across the population in a case like this. Patents can be asserted against everyone independently, so a larger population makes things worse, no better, as it gives trolls more victims, rather than distributing the cost. It's not as if patent litigation is over for a patent once they've sued one person (though it is interesting to imagine a model where a patent might be 'exhausted' once the holder collected 'enough' money through litigation).
> even an "extremely low" absolute number (like one in a thousand) is unacceptable.
Like herd immunity in epidemology?
The really large corporations are mostly immune, because they have the resources to fight the disease from the carriers. Everyone else is subject to ill effects. With luck the carriers die off before they can infect the non-immune population.
When you get more carriers, the spread of the disease increases exponentially.
In case of patents we see two things playing out at the same time: the race to get more bad patents issued, and more actors trying to abuse the existing ones.
The herd immunity is long gone, and everyone suffers.
Like herd immunity in epidemology?
The really large corporations are mostly immune, because they have the resources to fight the disease from the carriers. Everyone else is subject to ill effects. With luck the carriers die off before they can infect the non-immune population.
When you get more carriers, the spread of the disease increases exponentially.
In case of patents we see two things playing out at the same time: the race to get more bad patents issued, and more actors trying to abuse the existing ones.
The herd immunity is long gone, and everyone suffers.
No. Exactly by providing examples which are explained clearly, one can argue that the system is broken if it passes such examples through. Saying that it's broken with theoretical explanation is not enough. Practical examples demonstrate what is broken.
I am not sure if it will result in any real change, if anything it may deflect criticism as it gives far too many a cheap out; slacktivism is common amongst sites like this one where angst and such is acted out but results in very little actual change. The resulting discussion becomes the extent of effort most will put forward, nodding of heads and screams of me too.
There are many similar sites raising issues that are important to society but the result seems to be the same, people come to blow off steam and get sated.
It might be fun if the EFF could post a threshold for investigating patents, perhaps taking suggestions and pricing it. Let people buy the patent shaming. I know they take blanket donations but targeted ones might get more people interested. Sally Struthers style, for only a one time donation of, we can expose a patent.
There are many similar sites raising issues that are important to society but the result seems to be the same, people come to blow off steam and get sated.
It might be fun if the EFF could post a threshold for investigating patents, perhaps taking suggestions and pricing it. Let people buy the patent shaming. I know they take blanket donations but targeted ones might get more people interested. Sally Struthers style, for only a one time donation of, we can expose a patent.
> I am not sure if it will result in any real change
Policy makers might be somewhat burdened by pure abstract arguments about how broken the system is, or not give them enough thought at all. Providing such clear examples helps them to make educated decisions and convince others as well. So I definitely see a value in such articles.
Here is a good post on the similar subject:
https://www.techdirt.com/articles/20140729/05504028040/if-yo...
Policy makers might be somewhat burdened by pure abstract arguments about how broken the system is, or not give them enough thought at all. Providing such clear examples helps them to make educated decisions and convince others as well. So I definitely see a value in such articles.
Here is a good post on the similar subject:
https://www.techdirt.com/articles/20140729/05504028040/if-yo...
All you're doing with the cherry picking is showing that the system isn't perfect, not that it's broken.
Each "cherry" survived for years of (re)examinations. They should have been inspected at least as well as this fruit [1] and tossed if bad.
[1] http://kotaku.com/two-melons-just-sold-for-us-15-730-in-japa...
[1] http://kotaku.com/two-melons-just-sold-for-us-15-730-in-japa...
Do you honestly think that it even possible that examiners spend years examining cases? I can tell you with 100% certainty they do no, and the cost to the tax payer of doing so would be astronomical. Most bad patents are rejected, but you never hear any news about that do you? Selection bias is clearly at play here, and only idiots would think that examples of a few poor partents are evidence the system is broken. There are definitely issues with the system, but the system is not completely broken as some who have no knowledge of the issue would have you believe.
> Do you honestly think that it even possible that examiners spend years examining cases?
It would be silly to suppose that they spend the entire time in examination. That's why it should be obvious that I think they have ample time to correct their mistakes.
You do have a point insofar as the entire "game" of patent grants is rigged, such that the examiners are graded on how many patents are processed, while the examinees are allowed to resubmit filings as many times as they like until they pass (subject to fees, of course).
It would be silly to suppose that they spend the entire time in examination. That's why it should be obvious that I think they have ample time to correct their mistakes.
You do have a point insofar as the entire "game" of patent grants is rigged, such that the examiners are graded on how many patents are processed, while the examinees are allowed to resubmit filings as many times as they like until they pass (subject to fees, of course).
> but the system is not completely broken
That's demagogy. Completely or not completely is irrelevant. If it's passing through tons of patents like that and doesn't provide adequate means to prevent patent abuse - it requires a thorough reform. Those who claim that the system is not broken want to keep the status quo, because they benefit from the junk patents and patent abuse.
That's demagogy. Completely or not completely is irrelevant. If it's passing through tons of patents like that and doesn't provide adequate means to prevent patent abuse - it requires a thorough reform. Those who claim that the system is not broken want to keep the status quo, because they benefit from the junk patents and patent abuse.
> > but the system is not completely broken
> That's demagogy.
Uh... what? I think the claim that the system is not completely broken is very fair. If you want to prove it wrong, show that 90%+ of the patents are junk.
> Completely or not completely is irrelevant. If it's passing through tons of patents
It doesn't matter which patents pass, what matters is which absurd patents go to court and win.
So, let's see, how many court cases have we seen this past decade where absolutely absurd patents ended up winning in court?
Don't get me wrong, I think the system has problems, I just don't think it's broken and needs to be completely abolished.
We need to find a way to eradicate patent trolls and there are a lot of potential solutions to this. For example, if company A acquires company B, then company B's patents become void and null unless A can prove these patents are applicable to its business. Blam. All patent trolls vanish.
Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
> That's demagogy.
Uh... what? I think the claim that the system is not completely broken is very fair. If you want to prove it wrong, show that 90%+ of the patents are junk.
> Completely or not completely is irrelevant. If it's passing through tons of patents
It doesn't matter which patents pass, what matters is which absurd patents go to court and win.
So, let's see, how many court cases have we seen this past decade where absolutely absurd patents ended up winning in court?
Don't get me wrong, I think the system has problems, I just don't think it's broken and needs to be completely abolished.
We need to find a way to eradicate patent trolls and there are a lot of potential solutions to this. For example, if company A acquires company B, then company B's patents become void and null unless A can prove these patents are applicable to its business. Blam. All patent trolls vanish.
Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
> Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
Eliminating patent trolls would eliminate that problem for large corporations, although it would still cost them million of dollars to apply for patents solely to cancel out others' patents through cross-licensing. Start ups are even more screwed because all of the large incumbents still each have a huge arsenal of broad software patents and can bury any software start up in litigation who tries to compete with them. This also makes having a software patent essentially useless for a start up because any attempt to assert it against an incumbent would only result in counterclaims and ruinous litigation costs. The idea that a small practicing entity can realistically assert a software patent against a large tech corporation is beyond belief. And that's before you even consider the six-figure cost of paying lawyers to get a patent through the patent office, which then generally isn't even issued until the technology at issue is either obsolete and disused or so common and ingrained in the status quo that issuing an effectively retroactive patent on it without prior notice to those who have since adopted it is inherently unreasonable.
Software patents are fundamentally useless and should be abolished.
Eliminating patent trolls would eliminate that problem for large corporations, although it would still cost them million of dollars to apply for patents solely to cancel out others' patents through cross-licensing. Start ups are even more screwed because all of the large incumbents still each have a huge arsenal of broad software patents and can bury any software start up in litigation who tries to compete with them. This also makes having a software patent essentially useless for a start up because any attempt to assert it against an incumbent would only result in counterclaims and ruinous litigation costs. The idea that a small practicing entity can realistically assert a software patent against a large tech corporation is beyond belief. And that's before you even consider the six-figure cost of paying lawyers to get a patent through the patent office, which then generally isn't even issued until the technology at issue is either obsolete and disused or so common and ingrained in the status quo that issuing an effectively retroactive patent on it without prior notice to those who have since adopted it is inherently unreasonable.
Software patents are fundamentally useless and should be abolished.
If you will excuse my directness, all of these arguments come across as 'it isn't fair that they're bigger than we are.' If large incumbents didn't have broad software patents to bury start-ups, they would use their market coverage. If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence. If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground.
Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform. That's what we need (in many more systems than patents as well; education, I'm looking at you).
Life isn't always binary. There are more answers than all or nothing.
Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform. That's what we need (in many more systems than patents as well; education, I'm looking at you).
Life isn't always binary. There are more answers than all or nothing.
> If you will excuse my directness, all of these arguments come across as 'it isn't fair that they're bigger than we are.'
Fairness has nothing to do with it. It's obvious that large entities have more power than small entities, but that's hardly an excuse to give them more. Especially when the argument being made is that it will help small entities which it empirically does not.
> Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
There should be corollary to Godwin's law that anyone who describes the tech industry as the wild west automatically loses the argument. There are no gunslingers here. You've already listed plenty of reasons why Microsoft is not going to be felled overnight by some startup in the absence of software patents.
> Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform.
There is nothing to reform. The essential failure isn't in the specifics of the law, it's in the concept of patenting what is fundamentally information. Under the same law the patent system works largely as it's expected to in the pharmaceutical industry or the auto industry. It fails spectacularly in the software industry because software is not supposed to be patentable subject matter.
Fairness has nothing to do with it. It's obvious that large entities have more power than small entities, but that's hardly an excuse to give them more. Especially when the argument being made is that it will help small entities which it empirically does not.
> Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
There should be corollary to Godwin's law that anyone who describes the tech industry as the wild west automatically loses the argument. There are no gunslingers here. You've already listed plenty of reasons why Microsoft is not going to be felled overnight by some startup in the absence of software patents.
> Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform.
There is nothing to reform. The essential failure isn't in the specifics of the law, it's in the concept of patenting what is fundamentally information. Under the same law the patent system works largely as it's expected to in the pharmaceutical industry or the auto industry. It fails spectacularly in the software industry because software is not supposed to be patentable subject matter.
"If large incumbents didn't have broad software patents to bury start-ups, they would use their market coverage." I'm not sure what you mean by market coverage but if you mean their incumbent product then that's exactly what a startup usually seeks to disrupt (successful or not this is the challenge the startup is taking on anyway).
"If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence." In a way this is exactly what the current patent system accomplishes. Except it's through litigation, not legislation (but it's legislation allowing for the grounds of litigation).
"If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground." Now you're just being absurd.
"Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous." What we have now is a wild-west scenario where submarine patents and overly broad patents allow trolls (and even practicing entities looking to squash competition) can simply litigate at will and the costs of defending overwhelm their competition (unless they're equally large or play the same game with cross licensing patents).
"If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence." In a way this is exactly what the current patent system accomplishes. Except it's through litigation, not legislation (but it's legislation allowing for the grounds of litigation).
"If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground." Now you're just being absurd.
"Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous." What we have now is a wild-west scenario where submarine patents and overly broad patents allow trolls (and even practicing entities looking to squash competition) can simply litigate at will and the costs of defending overwhelm their competition (unless they're equally large or play the same game with cross licensing patents).
You are a small businessman. You get a letter demanding $5000 because you are infringing on this stupid patent. How often would you choose to spend $1M or more to fight the patent? Don't you see how ludicrous your test for correctness is?
"Do you honestly think that it even possible that examiners spend years examining cases?"
It would be if they hadn't already broken the system by letting so many frivolous patents through.
The original view of patent eligibility from those who encoded the system into the US Constitution was VERY different than that of today.
See, for example:
http://www.temple.edu/lawschool/dpost/mcphersonletter.html
If Jefferson had any idea of what the current patent system would look like and how little it had to do with bringing to bear really novel inventions with high social value (compared to being mostly a rent seeking mechanism used to make a quick buck via iffy, vague claims on all sorts of obvious ideas), I'm absolutely certain he would never have allowed for the creation of the system on his watch.
It would be if they hadn't already broken the system by letting so many frivolous patents through.
The original view of patent eligibility from those who encoded the system into the US Constitution was VERY different than that of today.
See, for example:
http://www.temple.edu/lawschool/dpost/mcphersonletter.html
If Jefferson had any idea of what the current patent system would look like and how little it had to do with bringing to bear really novel inventions with high social value (compared to being mostly a rent seeking mechanism used to make a quick buck via iffy, vague claims on all sorts of obvious ideas), I'm absolutely certain he would never have allowed for the creation of the system on his watch.
"Not perfect" means broken, since such cherry picking can easily pile up to hundreds and thousands like EFF said in the post. There is no doubt about the amount of bad patents. Demonstrating what is bad is however very useful.
I don't know what system you have in mind to replace software patents, but I'm pretty sure it won't be perfect either, which, by your own definition means that your solution is just as broken.
Surely we can agree that "not perfect" is not equivalent to "broken"?
Surely we can agree that "not perfect" is not equivalent to "broken"?
Yes, it's hard to make a perfect system, because it's not easy to define what should not be patentable (since it's broader than just software and criteria should be more generic to be applied well). Declaring software unpatentable can solve part of the problem, but it's not a generic solution, rather a workaround.
However it's clear that banning software patents at least would already improve it. I.e. such workaround is better than the current level of broken.
However it's clear that banning software patents at least would already improve it. I.e. such workaround is better than the current level of broken.
A single patent can bring a business to its knees or stifle a whole potential new industry. When it comes to patents, "not perfect" means "very broken".
So what's your perfect system?
None at all.
[deleted]
What's your evidence that it's perfect?
For example, a startup with hardly any funding comes up with a very innovative idea to tackle a problem, they start working on it with very little funding. Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
What's the incentive for the next innovators to create a startup in such conditions?
"What's the point of trying to create something novel since Facebook or Apple will just copy us and crush us".
Not exactly a perfect system now, is it?
For example, a startup with hardly any funding comes up with a very innovative idea to tackle a problem, they start working on it with very little funding. Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
What's the incentive for the next innovators to create a startup in such conditions?
"What's the point of trying to create something novel since Facebook or Apple will just copy us and crush us".
Not exactly a perfect system now, is it?
Even if the startup had the patent, it is unlikely they would have the millions it would take to enforce it against Facebook. Far more likely the opposite. Facebook collects hundreds of patents and uses rotten lawyer tricks to avoid ever competing with startups bringing real innovation.
> Even if the startup had the patent, it is unlikely they would have the millions it would take to enforce it against Facebook
They wouldn't have to, it's much cheaper and faster for Facebook to just acquire them.
Make no mistakes: whenever you read in the news that Big Company just acquired Small Company, a lot of this is justified by the patents that Small Company filed. It is much faster and cheaper for Big Company to acquire that company, its patents, its team and its products than spending years in court suing them.
They wouldn't have to, it's much cheaper and faster for Facebook to just acquire them.
Make no mistakes: whenever you read in the news that Big Company just acquired Small Company, a lot of this is justified by the patents that Small Company filed. It is much faster and cheaper for Big Company to acquire that company, its patents, its team and its products than spending years in court suing them.
> Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
That makes an assumption that software patents should be used for preventing others from "grabbing the idea". That's invalid. You can protect your software with copyright, or for example make it open and ensure contributions from derivative works with copyleft. But to be competitive one doesn't need software patents which cause all kind of crooked damage.
That makes an assumption that software patents should be used for preventing others from "grabbing the idea". That's invalid. You can protect your software with copyright, or for example make it open and ensure contributions from derivative works with copyleft. But to be competitive one doesn't need software patents which cause all kind of crooked damage.
It's unlikely the hypothetical startup would be protected from that sad outcome by the current system.
> Not really: you don't condemn an entire system by pointing out individual bad examples of it.
To prove that software patents are bad, it is necessary, but perhaps not sufficient to point out bad examples. Then again I never said the only way of condemning the patent system was through examples?
To prove that software patents are bad, it is necessary, but perhaps not sufficient to point out bad examples. Then again I never said the only way of condemning the patent system was through examples?
Abolished != reform.
And I don't think your comparison is in any way fair, but to address your point: if HN's quality vs quantity ratio dipped significantly then there would be calls to reform the submission and peer moderation system as well since HN would start to lose visitors over it. In fact constant reform is exactly how most of the top sites have managed to stay relevant in the fickle online world.
And I don't think your comparison is in any way fair, but to address your point: if HN's quality vs quantity ratio dipped significantly then there would be calls to reform the submission and peer moderation system as well since HN would start to lose visitors over it. In fact constant reform is exactly how most of the top sites have managed to stay relevant in the fickle online world.
In my startup we are knowingly violating two other companies patents and it scares me. The patents are stupid (tagging a photo--ie. circle part of a photo to highlight where something is, and the second is adding GPS data to a record, so that you can find it later).
One of the companies is even litigious having field two patent suits this year. The only thing saving us at this point is we are a Canadian company and haven't entered the US market yet.
So, here is a concrete case of patents discouraging innovation and competition. We want to enter the US market because the competitors are selling backward solutions. We have an alternative that is 10x better, yet our company could be killed in an instant through one of these patents.
One of the companies is even litigious having field two patent suits this year. The only thing saving us at this point is we are a Canadian company and haven't entered the US market yet.
So, here is a concrete case of patents discouraging innovation and competition. We want to enter the US market because the competitors are selling backward solutions. We have an alternative that is 10x better, yet our company could be killed in an instant through one of these patents.
Just go ahead and do yourself a favor right now and delete this comment.
'knowingly violating' is not a phrase you want attributed to you in court.
'knowingly violating' is not a phrase you want attributed to you in court.
We are examining the patent in detail and finding ways that we can workaround the claims. The claims are wrapped in industry jargon and detail, so we feel we can add or remove steps to get around it.
But, the core point is the patent did nothing to further the state of the art, nor does it provide information that someone in the field would use to implement the patent. As I understand those are the two reasons for the patent system, so by that standard the patent is worthless.
I wonder if patents in other industries are actually useful, eg would a chemist ever refer to older patents to further their own lab work?
But, the core point is the patent did nothing to further the state of the art, nor does it provide information that someone in the field would use to implement the patent. As I understand those are the two reasons for the patent system, so by that standard the patent is worthless.
I wonder if patents in other industries are actually useful, eg would a chemist ever refer to older patents to further their own lab work?
Please listen to the parent and delete all your comments in this thread. Also look up, "Willful Infringement" to understand why you need to erase your comments here.
You need to hire someone to do a patent opinion for you. Don't pay a ton of money (so don't hire MoFo or something crazy like that), but don't cheap out either. Interpreting claims isn't something you can do on your own, especially when some patents have extremely broad sounding means-plus-function claims that are in actuality much narrower.
Patents don't have to further the state of the art, but they must teach a person skilled in the art how to practice the claimed invention.
Patents don't have to further the state of the art, but they must teach a person skilled in the art how to practice the claimed invention.
Have you looked into prior art for the asserted patents? That's one way to get it abolished.
Are you that brazen? This one, single post, that you could have deleted, could be the difference between your company being sued off the face of the earth and you going bankrupt, and you having appropriate time to analyze the situation and plot a reasonable course without the patent holder know you were coming.
I don't give a shit how superfluous the patent may be, or what chemists do. You just openly admitted that you knowingly infringed on a patent. Further, even if the patent was complete bullshit, by you openly acknowledging that you are infringing on it, you are admitting not only guilt, but you are validating the patent. IANAL, but I could easily see a court using that as the evidence it needed to validate a patent that otherwise stood no chance.
I don't give a shit how superfluous the patent may be, or what chemists do. You just openly admitted that you knowingly infringed on a patent. Further, even if the patent was complete bullshit, by you openly acknowledging that you are infringing on it, you are admitting not only guilt, but you are validating the patent. IANAL, but I could easily see a court using that as the evidence it needed to validate a patent that otherwise stood no chance.
I enjoy this forum as we can have an intelligent discourse. I appreciate your concern for my situation, but remind you that most folks here are pretty smart, so please remember that before calling people brazen and implying they don't know what they are doing.
When we became aware of the patents we consulted with counsel and put a plan in place. I misspoke earlier, for dramatic effect, we are not violating the patent as we haven't entered the US market, and we don't plan to until we've addressed this issue.
Furthermore, my account here is pseudo-anonymous, so you would need some serious google mastery to pull enough information together to make the connections required.
When we became aware of the patents we consulted with counsel and put a plan in place. I misspoke earlier, for dramatic effect, we are not violating the patent as we haven't entered the US market, and we don't plan to until we've addressed this issue.
Furthermore, my account here is pseudo-anonymous, so you would need some serious google mastery to pull enough information together to make the connections required.
> You just openly admitted that you knowingly infringed on a patent.
US patents have no baring in Canada, they currently haven't done anything wrong at all.
US patents have no baring in Canada, they currently haven't done anything wrong at all.
Fine. "You just openly admitted that you are planning on knowingly infringe on a patent."
OP said they are coming into the US market at some point. At which time, they will be infringing, and then everything I said applies.
OP said they are coming into the US market at some point. At which time, they will be infringing, and then everything I said applies.
fleitz makes a very good point. You'll be getting hit with treble damages which you definitely don't want.
While I definitely agree that making a statement like that makes no sense, if the 1x damages would already bankrupt your company, tripling that really matter all that much. In that case, your only hope may be invalidating the patent.
It makes sense if you want to demonstrate -- concretely -- how the system is broken. Heroes do what's right despite potential personal risk.
If that's your most pressing concern about expanding the business you should probably consider challenging the validity of the patent if it's truly as obvious as it seems.
http://info.legalzoom.com/challenge-patent-21969.html
http://info.legalzoom.com/challenge-patent-21969.html
Or just abandon the US because the regulation is a pain in the ass. It's not Josho's obligation to keep the US from turning into a technological ghetto.
No, don't challenge the patent, minimize infringement, amass cash.
Challenge it after being sued hopefully with enough cash to defend yourself.
Challenge it after being sued hopefully with enough cash to defend yourself.
Or maybe, don't infringe the patent and innovate by creating your own approach to the problem?
If the patents really are as josho characterized them, what kind innovations would those be? How do you "innovate" storing GPS data in a database?
Wouldn't a database be prior art? If a general solution to an entire problem domain exists (in this case, databases solve the general problem of adding computer representable data to a record) and predates a patented application of that general solution to a specific instance, then the general solution seems like a very good candidate for prior art. At least it seems to stand to reason that applying a general solution to a specific domain can't be considered novel. The novel solution is the general one, if it exists. Since the oldest databases have existed much longer than 20 years, it would be impossible for an active patent for a solution within this problem domain to not have prior art.
I like the way you think. The problem is that it is quite expensive to invalidate a patent. In fact anything to do with a patent is quite expensive, which is part of the problem itself. As to file a strong patent that can't easily be worked around costs a lot of money, so much money in fact that a lot of small companies don't bother. So, it's only bullies and large companies that have patents. While the guys focused on doing the real innovation often don't any.
Let's start with concrete facts: what patent are we talking about exactly? A simple link to the USPTO web site will do.
Then we can brainstorm and see if we can innovate.
Then we can brainstorm and see if we can innovate.
I appreciate your offer to help, but I won't be providing that detail. But, for the spirit of the discussion assume that it is similar to what the EFF described in their article.
But, to make the exercise a bit more fun!? Don't read the EFF's summary, go read the patent and try to make sense of it. If you were an e-health company how would you work around that patent?
But, to make the exercise a bit more fun!? Don't read the EFF's summary, go read the patent and try to make sense of it. If you were an e-health company how would you work around that patent?
Poor solution when the USPTO allows people to toll the public domain of obvious solutions.
You didn't read the article, did you?
> adding GPS data to a record, so that you can find it later
You might want to nominate this patent
You might want to nominate this patent
> So, here is a concrete case of patents discouraging innovation
It seems to be just the opposite, though: the patent system is telling you "You are copying something that exists, instead you should innovate and create something new".
So why don't you innovate instead of copying something that already exists?
It seems to be just the opposite, though: the patent system is telling you "You are copying something that exists, instead you should innovate and create something new".
So why don't you innovate instead of copying something that already exists?
Their product is presumably not photo tagging or recording GPS data. These are just components they need for their actual product to work.
When you talk about "innovating" here you are actually saying "finding way of achieving something that's different enough from the most convenient way (because someone has already thought of that)". That's no innovation at all; all that would do would be stopping them from launching their product until they figure out a way around the problem. By blocking entrepreneur's paths, patents prevent them from releasing their possibly innovative products, thus preventing innovation.
> So why don't you innovate instead of copying something that already exists?
The fact is that the two are not only not mutually exclusive, they're interdependent. Nothing is ever 100% entirely new. Every innovation builds on what came before.
The problem is not that people won't innovate. People are innovating. The problem is that someone has invented a new traction control system which they can't sell because someone else was granted a patent on the wheel. In 2011. And your solution is for the actual innovator to reinvent the wheel.
The fact is that the two are not only not mutually exclusive, they're interdependent. Nothing is ever 100% entirely new. Every innovation builds on what came before.
The problem is not that people won't innovate. People are innovating. The problem is that someone has invented a new traction control system which they can't sell because someone else was granted a patent on the wheel. In 2011. And your solution is for the actual innovator to reinvent the wheel.
What the patent system should say in theory is very different from how the patent system is used by patent abusers. Which directly indicates that the patent system itself requires a reform, since otherwise it would have prevented such abuse to begin with.
If something is obvious, it should have been unpatentable. If the patent system says that it is patentable - the patent system is broken.
If something is obvious, it should have been unpatentable. If the patent system says that it is patentable - the patent system is broken.
You are changing the subject, patent trolls are a totally different matter.
Here, we have an example of a company that is knowingly copying something that exists instead of coming up with their own solution to the problem, so I'm claiming that in this particular example, software patents are encouraging innovation. The company in question is simply choosing the easy way out of copying instead of innovating.
Here, we have an example of a company that is knowingly copying something that exists instead of coming up with their own solution to the problem, so I'm claiming that in this particular example, software patents are encouraging innovation. The company in question is simply choosing the easy way out of copying instead of innovating.
> Here, we have an example of a company that is knowingly copying something that exists
No we aren't. Not sure how you got that idea. The patents in question are for small and obvious methods that is required for the larger product.
What you are saying is sort of like saying that somebody who invented the motor car is just copying something that already exists if someone else had a patent for the ball bearing.
Innovation requires building on things that already exist. It would be delusional to think anything is completely original and thought of from scratch.
No we aren't. Not sure how you got that idea. The patents in question are for small and obvious methods that is required for the larger product.
What you are saying is sort of like saying that somebody who invented the motor car is just copying something that already exists if someone else had a patent for the ball bearing.
Innovation requires building on things that already exist. It would be delusional to think anything is completely original and thought of from scratch.
> You are changing the subject, patent trolls are a totally different matter.
Patent abuser can even produce something useful. But if the patent is bad (obvious, abstract, claims a function, etc.) then such producing entity can ban all kind of competition which should exist because that thing should not be patentable in the first place. Because of that, term "troll" can be extended to any abuser. Not necessarily NPE. Even PE one.
Copying is a natural thing in many cases. Preventing copying by patenting abstract ideas is crooked and should not be allowed.
Not to mention cases, when some things were developed independently (so obviously not copied), but still are banned by patents.
Patent abuser can even produce something useful. But if the patent is bad (obvious, abstract, claims a function, etc.) then such producing entity can ban all kind of competition which should exist because that thing should not be patentable in the first place. Because of that, term "troll" can be extended to any abuser. Not necessarily NPE. Even PE one.
Copying is a natural thing in many cases. Preventing copying by patenting abstract ideas is crooked and should not be allowed.
Not to mention cases, when some things were developed independently (so obviously not copied), but still are banned by patents.
Every piece of software is copying hundreds of little "somethings that exist".
The registration form uses a captcha to prevent bot registrations? The user is emailed with a link with a secret code that when clicked, verifies they control that email address. The IP address used to make the web requests are recorded (using a computer) and are later used to infer the users physical location from it. A webpage includes a map with a dot in places where users registered. The size of the dot depends on the number of users.
Which of the above is an invention that already exists for which we need to invent our own solution to?
The registration form uses a captcha to prevent bot registrations? The user is emailed with a link with a secret code that when clicked, verifies they control that email address. The IP address used to make the web requests are recorded (using a computer) and are later used to infer the users physical location from it. A webpage includes a map with a dot in places where users registered. The size of the dot depends on the number of users.
Which of the above is an invention that already exists for which we need to invent our own solution to?
Also, the glaziers in your town will profit if I drive down your street throwing bricks through windows. That doesn't mean that any economic value is being created, of course.
Just because there is a patent, doesn't mean that it exists, or even can exist. It's just some document someone paid the patent office a bunch of money to stamp. Some patents are even impossible. Look up the patents on perpetual motion machines for example.
In most countries those aren't valid because they aren't a Manner of Manufacture. If it's a physical impossibility, it's not allowable.
They "scan to email" patent they mention at the start is famous largely because the owner is extremely aggressive, they even go after end users. IE, they might sue any company that has a scanner so their list of targets is basically the phonebook.
“Method and Apparatus for Indirect Medical Consultation” was issued on June 24, 2014. Presumably there is already a software/companies/people doing this that started before last month. If they are targeted, what happens? IE, if software published before June 24 is accused of violating this patent is there any possible case for it? Would it still cost huge amount of money to defend against this attack? Would losing the claim automatically invalidate the claim?
“Method and Apparatus for Indirect Medical Consultation” was issued on June 24, 2014. Presumably there is already a software/companies/people doing this that started before last month. If they are targeted, what happens? IE, if software published before June 24 is accused of violating this patent is there any possible case for it? Would it still cost huge amount of money to defend against this attack? Would losing the claim automatically invalidate the claim?
Wow, so by example I should file this patent:
Method and Apparatus for Making Lots of Money
1. File an over broad patent by (a) describing an everyday procedure currently commonly preformed by humans and (b) adding "performed by a computer" to your claim. Alternatively, purchase a similar over broad patent from someone else.
2. Identify companies which utilize procedures which may fall under your patent.
3. Identify other companies that may utilize procedures slightly (or even barely) resembling those covered by your patent.
4. Determine prevailing legal fees for a patent defense case in the given area for each of the companies identified in steps 2 and 3.
5. Call all of those companies identified in steps 2 and 3 and threaten to sue them unless they settle for the sum of 80% of the prevailing legal fees identified in step 4.
6. Preform steps 1 through 5 using a computer.
Method and Apparatus for Making Lots of Money
1. File an over broad patent by (a) describing an everyday procedure currently commonly preformed by humans and (b) adding "performed by a computer" to your claim. Alternatively, purchase a similar over broad patent from someone else.
2. Identify companies which utilize procedures which may fall under your patent.
3. Identify other companies that may utilize procedures slightly (or even barely) resembling those covered by your patent.
4. Determine prevailing legal fees for a patent defense case in the given area for each of the companies identified in steps 2 and 3.
5. Call all of those companies identified in steps 2 and 3 and threaten to sue them unless they settle for the sum of 80% of the prevailing legal fees identified in step 4.
6. Preform steps 1 through 5 using a computer.
Sadly all the good ideas have already been taken: http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-...
Please don't submit it, it may just go through! ;-)
Maybe someone should make a "patent or not patent?" game, where it describes mundane things and you have to guess if it's patented or not.
In Brazil you simply can't patent abstract ideas, game rules, techiquies and operation methods, software, math methods, etc, and "ways to do things" like this on the eff.org
I'm not sure if this is equal for other countries.
I'm not sure if this is equal for other countries.
the original claim 1 [...] had not claimed a computer. The examiner correctly issued a rejection, saying the claim was abstract and thus wasn’t something that could be patented. In response, the applicant added element (g) (“providing a computer, the computer performing steps “a” through “f””). And the rejection went away.
I see this happen in peer-reviewed research. A reviewer rejects the paper/patent based on a flaw that is perhaps not as gross but is at least concrete. When the flaw is removed (in this case the use of computer), the reviewer almost has no choice but to accept it. Can't the reviewer reject it for other reasons?
I see this happen in peer-reviewed research. A reviewer rejects the paper/patent based on a flaw that is perhaps not as gross but is at least concrete. When the flaw is removed (in this case the use of computer), the reviewer almost has no choice but to accept it. Can't the reviewer reject it for other reasons?
Doesn't the recent Supreme Court ruling destroy this patent, then?
Someone please fund EFF and make this a weekly event. If there is a chance of fixing the law, the cost of documenting its flaws is miniscule compared to the millions in damages done.
If you want to donate, just donate! The EFF always puts the money to excellent uses.
https://supporters.eff.org/donate
https://supporters.eff.org/donate
Strongly consider a monthly donation, too. Nonprofits really like recurring donations because it gives them a relatively stable funding base to use for future planning.
Another question is why do companies get them?
Software and other ephemeral businesses lack physical assets. That's scary to quite a few MBA types, especially those brought up outside this industry. A patent is something that makes software look on the balance sheet as if it's a physical asset that the company holds.
It's all an illusion, but it's a security blanket for these types.
Software and other ephemeral businesses lack physical assets. That's scary to quite a few MBA types, especially those brought up outside this industry. A patent is something that makes software look on the balance sheet as if it's a physical asset that the company holds.
It's all an illusion, but it's a security blanket for these types.
Is there any kind of logic to granting stupid patents? It seems like if their approval was really harmful to the industry, it would manifest itself in reduced tax revenues. No government wants that. So is the government increasing its revenues by granting these arbitrary technology fiefdoms?
"The government" is not a coherent entity. The government is made up of many self-interested groups who largely don't care and possibly don't even know about one another. The relevant agency here, the Patent and Trademark Office, is not funded by tax dollars — it's funded by fees from people or businesses seeking patents and trademarks.
> The relevant agency here, the Patent and Trademark Office, is not funded by tax dollars — it's funded by fees from people or businesses seeking patents and trademarks.
Sure, but their actions have ramifications that could impact revenues. If the patent system was smothering the market and therefore tax revenues, one would think that the government might eventually act in its own interests and legislate a solution. On the other hand, if the current scheme is actually boosting revenues, there might be some hesitation in fixing something that, for the government, isn't a problem at all.
Sure, but their actions have ramifications that could impact revenues. If the patent system was smothering the market and therefore tax revenues, one would think that the government might eventually act in its own interests and legislate a solution. On the other hand, if the current scheme is actually boosting revenues, there might be some hesitation in fixing something that, for the government, isn't a problem at all.
If you take a look, you'll discover that almost nobody in a typical government even thinks about tax revenues (except when they are paying it).
Decisions can be motivated by lots of things other than maximizing tax revenue. For example, political beliefs/agendas of various relevant parties, lobbying, bureaucratic lock-in, and so on.
There's a great list here they can start with:
http://arstechnica.com/tech-policy/2014/06/chinese-govt-reve...
http://arstechnica.com/tech-policy/2014/06/chinese-govt-reve...
Is there any way to make challenging stupid patents directly profitable? I would love to see someone figuring out how to make a business model out of it and using VC money to bankroll the process.
Given the volume of patents out there, wouldn't it be more appropriate to have something like "stupid patent of the day"?
Even with stupid patent of the day I suspect they would have enough content to keep going long after I am dead, even if they only consider patents that were issued up until today... but it would require a lot more effort to find, read, understand and write about them than a once a month thing.
Prior art is probably this: http://www.rapidremedy.com
Am I the only one that advocates the complete elimination of patents and copyrights?
I hope so.
Have you ever been to China or India? This is the opposite extreme and it is worse. No one invents anything novel.
Every product is cheap replica of something else. Its a race to the bottom.
Much worse.
Every product is cheap replica of something else.
...and often has improvements that are practically useful. There, innovation happens bottom-up, with incremental changes to an existing product, and there's far more design sharing and competition since exclusivity doesn't last.
...and often has improvements that are practically useful. There, innovation happens bottom-up, with incremental changes to an existing product, and there's far more design sharing and competition since exclusivity doesn't last.
Man, if that's the only alternative to patents, I wonder how we managed to bootstrap the idea of a patent system.
It was harder to rip off somebody else's design hundreds of years ago, and the USA has not spent much time without patents. IP is even discussed in the Constitution.
[deleted]
I'm sure they'll be hilarious. Hope one of mine isn't one of them.