A Software Entrepreneur On The Madness Of Software Patents and Trolls(feld.com)
feld.com
A Software Entrepreneur On The Madness Of Software Patents and Trolls
http://www.feld.com/wp/archives/2012/08/a-software-entrepreneur-on-the-madness-of-software-patents-and-trolls.html
7 comments
Unfortunately, the best response to realworld muggings is the same -- hand over your wallet.
Eh, all it takes is one random country with low taxes saying they don't respect IP laws. Cue US having a hissy fit, which in turn simply notifies other countries that it's a tactic that actually works. I look forward to that hydra rising.
Many countries do respect IP laws... they just do not have software patents. For example EU countries - huge, developed market, technologically advanced with well educated people. Their start-ups used to go to the Valley because that was the best place to be for start-ups... but now when Americans managed to create such toxic anti-innovative legal environment maybe this will change.
Couldn't you just ignore the lawsuit? Presumably they are after big bucks, and it is a pain and huge cost to continue with legal proceedings. And you are probably one of a thousand threats they send out. They are in-business too and don't want to waste their time on cases that don't pan out. Do you really think they will actually take you to court? I suspect they may just drop it if you ignore it, unless you are a big name startup with deep pockets. For the patent trolls, this is just a numbers game. If you send out a lot, a certain percentage will settle... Note: I am not a lawyer and this does not constitute legal advice.
For the troll, legal is their business, and the costs much lower because the ARE the lawyers. And they will not easily back off because that news would spread and suddenly everyone would ignore them, which would make their business much harder. It's not the same as frauds that send out tens of thousands of fake invoices for $50 in the hope that many will pay out of laziness and without spending time on research. Patent troll "license fees" are too high for that.
Although trolls are lawyers, there is still a "cost", and in this cost is time and the opportunity cost of spending time elsewhere. Going to court, getting a judgement and collecting fees is a huge time sink. Patent trolls are not dumb. They will litigate when you are a big fish.
Or when they want to keep the threat of litigation credible in order to extort out-of-court settlements.
Could one then attack their standing as a lawyer, i.e. pursue seeing them disbarred?
Lawyers are disbarred either for violating their professional duties or for committing felonies.
I don't see how that would work. A patent troll's actions are generally perfectly legal; they're exploiting structural weaknesses in the patent system (low cost of getting a patent) and legal system (high cost of defending against a patent lawsuit).
I don't see how that would work. A patent troll's actions are generally perfectly legal; they're exploiting structural weaknesses in the patent system (low cost of getting a patent) and legal system (high cost of defending against a patent lawsuit).
In principle, their professional duties could in some way preclude trolling. In practice, we'd have to get a bunch of lawyers to agree to pass on a crapton of money. But still, it may or may not be easier than getting politicians to pass on a crapton of donations to get the laws themselves changed...
Ultimately, what makes patent trolls so dangerous is that they're an asymmetric threat: one troll needs only the resources to fight one lawsuit to be able to make thousands of companies pay the extortion fee, and while only one of them would have to fight and win, it isn't rational for any one of them to do so
Could that be sthe solution? Victims setting up shared defense funds to get the patents overturned, where each victim only has to pay a few thousand dollars?
It's even worse. The way things currently are incentivizes patent trolls to NOT create anything. Because then the companies they're suing might have a defensive patent they could use against the troll to exact a settlement. Patent trolls are incentivized to not create any value lest that value be used against them.
It seems to me that the US patent law is a system for transferring money from those who actually do stuff to those who don't.
This is huge burden on business. Fear of getting sued to death is not the best motivation for creating new and exciting things - are you not afraid that start-ups will start to move out of US jurisdiction?
I know that Silicon Valley is the best place for start-ups and whatnot... but is it still worth it? Seeing lawsuit after lawsuit... I would never incorporate in the US - would you?
This is huge burden on business. Fear of getting sued to death is not the best motivation for creating new and exciting things - are you not afraid that start-ups will start to move out of US jurisdiction?
I know that Silicon Valley is the best place for start-ups and whatnot... but is it still worth it? Seeing lawsuit after lawsuit... I would never incorporate in the US - would you?
> It seems to me that the US patent law is a system for transferring money from those who actually do stuff to those who don't.
This is not surprising from an economic point of view once you realize that the patent system is basically a system of government granted monopolies.
This is not surprising from an economic point of view once you realize that the patent system is basically a system of government granted monopolies.
But that "system of government granted monopolies" was supposed to channel money to those who create stuff, not from them. The problem with patent law is not that its government granted monopoly but that it's granted to those who do not bring anything to society and is used against those who do.
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Intellectual Ventures, at least, is structured as tens of thousands of theoretically independent corporations each owning one or a small number of patents. The idea is to have as few assets as possible in the suing agent so that there's no point in countersuing for any misconduct in the proceedings like barratry: http://en.wikipedia.org/wiki/Barratry_%28common_law%29 Misconduct may not be the best phrase, since there are a million ways to be liable that don't involve wrongdoing, but the idea is the same - you want to construct an artificial you that's as poor as possible so you have that much less to lose.
It's why the RIAA does the suing rather than the record companies themselves - you've got a long lawsuit to prove that anyone pierced the corporate veil before you can get anywhere near touching the entity with the actual monetary stake.
IANAL, so don't go too crazy with this.
It's why the RIAA does the suing rather than the record companies themselves - you've got a long lawsuit to prove that anyone pierced the corporate veil before you can get anywhere near touching the entity with the actual monetary stake.
IANAL, so don't go too crazy with this.
Here's the thing: this guy probably didn't care all that much about software patents before his company was sued and it became a personal issue for him. The public at large is unlikely to be moved by something as abstract and (ostensibly) abstruse as software patents unless a clear case can be made about what's really at stake. This difficulty is compounded by the fact that the big companies can afford to license and defend if need be, so the stifling effects of software patents are even harder to see. How can we measure what might have been?
Imagine if Pythagoras, Leibniz, and Newton were able to receive patents for their formulas. What if the quadratic formula was patented? In fact, why not?
Actually, I retract that argument. The average software patent nowadays does not even begin to approach the caliber of the aforementioned discoveries.
Actually, I retract that argument. The average software patent nowadays does not even begin to approach the caliber of the aforementioned discoveries.
> What if the quadratic formula was patented? In fact, why not?
Because it's math, and math isn't patentable.
And no, software patents aren't patenting math. They're patenting specific mechanisms used to perform specific tasks.
Here's another way to think of it. You can't patent physical phenomena. However, you can patent a process that uses heat to cure rubber.
Because it's math, and math isn't patentable.
And no, software patents aren't patenting math. They're patenting specific mechanisms used to perform specific tasks.
Here's another way to think of it. You can't patent physical phenomena. However, you can patent a process that uses heat to cure rubber.
And that is why there are no software patents in Poland - software is math. In fact every software ever created could be written as math formula in lambda calculus.
> software is math
No, it's not. Math does not have side-effects. Software does have side-effects since it runs on physical devices connected to the physical world.
No, it's not. Math does not have side-effects. Software does have side-effects since it runs on physical devices connected to the physical world.
Side effects are included in the absurd legal-patent-weaving language, to get around the pesky thou-shalt-not-patent-abstract-or-natural-ideas rule, but the side effects are not germane to the patent.
There is a logical dilemma with allowing patents based on software side-effects.
Patent attempt #1 is some computation made to effect side effect A.
Patent attempt #2 is the same computation made to effect side effect B.
If you grant both patents, you have acknowledged that the computation is irrelevant to the patent. The side effect, which is often the goal that was set out to be achieved through computation, is not a secret in need of patent protection to encourage public disclosure, so the patent rationale fails.
If you grant only the first patent, you claim that the computation in part affects the novelty of patents, therefore the novelty of math affects the novelty of patents.
This is taken to the extreme where the non-math portion of a patent is a general purpose computer. The meaningful parts of a patent are the math. The general-purpose computer that handles all the side effects is necessary, but uninteresting, and not in the least bit novel.
Most of the time, specific side effects aren't even mentioned in the patents. Here's an MP4-related patent:
http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sec...
The patent, like other software patents, tries to tie the completely functional core (mathematical) idea to a physical computer, but what the trick amounts to is
any arbitrary math function + specification of a general purpose computer + money => patent
(insofar as the math function is novel and not trivial in the opinion of a patent examiner)
There is a logical dilemma with allowing patents based on software side-effects.
Patent attempt #1 is some computation made to effect side effect A.
Patent attempt #2 is the same computation made to effect side effect B.
If you grant both patents, you have acknowledged that the computation is irrelevant to the patent. The side effect, which is often the goal that was set out to be achieved through computation, is not a secret in need of patent protection to encourage public disclosure, so the patent rationale fails.
If you grant only the first patent, you claim that the computation in part affects the novelty of patents, therefore the novelty of math affects the novelty of patents.
This is taken to the extreme where the non-math portion of a patent is a general purpose computer. The meaningful parts of a patent are the math. The general-purpose computer that handles all the side effects is necessary, but uninteresting, and not in the least bit novel.
Most of the time, specific side effects aren't even mentioned in the patents. Here's an MP4-related patent:
http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sec...
The patent, like other software patents, tries to tie the completely functional core (mathematical) idea to a physical computer, but what the trick amounts to is
any arbitrary math function + specification of a general purpose computer + money => patent
(insofar as the math function is novel and not trivial in the opinion of a patent examiner)
Here is problem. Patented algorithms/software usually don't have any physical world implementation. Thus it is math by your definition.
< Patented algorithms/software usually don't have any physical world implementation.
Huh?
Take the "apple bounce" patent. I can see images move on a screen. How did that happen without a "physical world implementation"?
Note that the "cure rubber with heat" patent mentioned abouve covered a process, a set of steps. It wasn't a patent on a rubber curing machine.
Huh?
Take the "apple bounce" patent. I can see images move on a screen. How did that happen without a "physical world implementation"?
Note that the "cure rubber with heat" patent mentioned abouve covered a process, a set of steps. It wasn't a patent on a rubber curing machine.
I would argue that Math does have side effects: it runs on mathmaticians brains.
After all math is a chain of logical equivalencies based on a set of axioms (I'm not a mathmatician so that is most probably not a very complete definition). Every computer can trivially spit out many, many such logical equivalencies - what makes math interesting is the human factor:
www.xamuel.com/mathematics-objective-or-subjective/
Mathmaticians are doing this incredibly well, when you think of the fact that a lot of math was discovered decades before its applications. The idea that maths is somehow completely decoupled from the guys 'running it' seems slightly false to me.
You could obviously argue that brains are not computers, but then you'll find yourself in an argument with a lot of angry singularists.
Please don't downvote me if I'm completely wrong, this is partially fishing for an interesting argument.
I suppose you never learned about monads and monoids.
But seriously: what is patentable in video codecs? Isn't it just math function? Give input in the domain of function and you get output.
Beside side-effects are only reading input and writing output - nothing else is side-effect. We already figured I/O almost 50 years ago - nothing novel here (the moment you get touchscreens is the moment kbd on touchscreen is created as it is obvious)
But seriously: what is patentable in video codecs? Isn't it just math function? Give input in the domain of function and you get output.
Beside side-effects are only reading input and writing output - nothing else is side-effect. We already figured I/O almost 50 years ago - nothing novel here (the moment you get touchscreens is the moment kbd on touchscreen is created as it is obvious)
> But seriously: what is patentable in video codecs? Isn't it just math function? Give input in the domain of function and you get output.
It's akin to asking "what is patentable in a medication; it's just a chemical formula, a diagram on paper".
It's a function satisfying non-trivial constraints, like: size of the output should be smaller than the size of the input [ideally, ratio is adjustable by the user]; regardless of the quality ratio, the output should be similar to the input [really, how do you define "similarity"? -- simple RMS difference won't do]; etc, etc.
Finding such a function is a rather big research endeavour, and IF it has been privately funded, then by all means, there should be away to ensure that the researcher(s) have exclusive rights to the exploitation of their results.
I agree though that the patent system is very faulty, but I am NOT for totally abolishing mechanisms for IP protection.
It's akin to asking "what is patentable in a medication; it's just a chemical formula, a diagram on paper".
It's a function satisfying non-trivial constraints, like: size of the output should be smaller than the size of the input [ideally, ratio is adjustable by the user]; regardless of the quality ratio, the output should be similar to the input [really, how do you define "similarity"? -- simple RMS difference won't do]; etc, etc.
Finding such a function is a rather big research endeavour, and IF it has been privately funded, then by all means, there should be away to ensure that the researcher(s) have exclusive rights to the exploitation of their results.
I agree though that the patent system is very faulty, but I am NOT for totally abolishing mechanisms for IP protection.
In many countries (India for example) medication itself is not patentable - but means of its production are.
There are many mathematical functions that have to satisfy non-trivial constraints and none of them are patentable. Why is it so that when you change the domain of use for function from one branch of math to another (CS is branch of math too) you suddenly can patent it?
I'm NOT for totally abolishing IP protection but there are things that shouldn't be patented, especially in very innovating areas of industry (i.e. what is patented today in CS in next 5 years will be obvious thing... while protection will last for 20, thus stifling innovation)
There are many mathematical functions that have to satisfy non-trivial constraints and none of them are patentable. Why is it so that when you change the domain of use for function from one branch of math to another (CS is branch of math too) you suddenly can patent it?
I'm NOT for totally abolishing IP protection but there are things that shouldn't be patented, especially in very innovating areas of industry (i.e. what is patented today in CS in next 5 years will be obvious thing... while protection will last for 20, thus stifling innovation)
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He says his company has zero revenue but is being sued by a patent troll.
That doesn't make much sense without some more details.
What does the troll want?
Maybe it's not cash upfront?
That doesn't make much sense without some more details.
What does the troll want?
Maybe it's not cash upfront?
It's a shame the courts can't revoke some of these patents that are completely full of shit. You'd think if a troll would just lose once, it'd be over.
The problem is that it takes someone fighting a lawsuit for hundreds of thoudsands of dollars to get a patent declared invalid (and it's never a sure thing) , but only a few hundred or thousand dollars to get a new patent.
This is kind of important. We spend a lot of time worrying about the patent. Its the least important part of the equation. The important thing to understand is that you're being mugged, and the police aren't coming. They know its bad, but there are much bigger things on their plate than petty crime. The actual patent is just the gun/knife used in the mugging, a completely common and non-unique weapon.
What the entrepreneurial community needs is a common sense guide to surviving a legal mugging just like the ones that address realworld muggings. There are simple things that a person can do as the victim of street crime that can greatly improve their chances of survival while minimizing loss. What might these best practices look like for startups facing trolls?