
Lessons from the Gnome Patent Troll Incident - rbanffy
https://blog.hansenpartnership.com/lessons-from-the-gnome-patent-troll-incident/
======
neiman
"One of the problems for the target is that once the patent is issued by the
USPTO, the court must presume it is valid...

...In the GNOME case, the sued project, shotwell, predated the filing of the
patent by several years, so it should be obvious that even if shotwell did
infringe the patent, it would have been prior art which should have prevented
the issuing of the patent in the first place.

Unfortunately such an obvious problem can’t be used to get the case tossed on
summary judgement because it impugns the validity of the patent. "

Facepalm.

~~~
beervirus
It would be facepalm if it were true. These are exactly the kinds of facts
that could potentially lead to summary judgment of non-infringement or even
invalidity.

There must be more to the story.

~~~
eternalban
This is addressed in the OP: it simply costs too much money to mount a defense
(here, using prior art) in court.

p.s. software engineers could form a non-profit that is funded to push back on
bogus software patents, to address the cost barrier, since most small players
and independents in the software space will benefit from it. Here GNOME could
have asked this hypothetical org to cover the legal cost and kill that patent
once and for all.

~~~
ikeboy
But OP falsely claims that summary judgment is impossible.

This just isn't right.

Summary judgment is possible whenever there's no genuine dispute about
material facts after discovery. If the facts show prior art, the judge can
absolutely grant summary judgment.

See e.g. [https://casetext.com/case/old-reliable-
wholesale-4](https://casetext.com/case/old-reliable-wholesale-4) for a case
invalidating a patent on summary judgment.

~~~
AnimalMuppet
That's true. But discovery isn't free, either. When the other side can ask for
you to produce a million pages of documentation, which you have to produce
before you can _get_ to summary judgment, that's an economic problem for
someone like Gnome.

~~~
ikeboy
Documents are supposed to be relevant. If you only want to fight on a core
legal issue and don't dispute the facts, you should be able to cut down
discovery significantly. Which may not be an advisable approach, if the facts
alleged are false.

------
sebastien_b
I think the best way to neutralize bogus patent claims would be to sue the
patent office, and the involved examiners themselves, once a patent is found
to be invalid (it shouldn’t have been granted in the first place).

Why? Because it shouldn’t be someone else’s burden (time, cost) to have to
clean up the mess they created (not to mention the waste in public money with
court proceedings).

But, as usual, government employees/agencies have “sovereign immunity”, which
means they can get away with doing a bad job any other type of private
employee would get fired for, without repercussions.

~~~
strombofulous
Literally nobody would work a job where you could sued for making a mistake
like this, especially when there is an entire industry based on actively
trying to get you to make a mistake

~~~
davidhyde
Sure, it’s unorthodox to sue the employees of a company but why can’t the
company itself be sued. Why does the patent office have immunity from being
sued?

~~~
bonoboTP
How about suing the court, whose decision gets overturned on appealing, for
having caused all that extra work?

------
dctoedt
American taxpayers will in effect be paying the patent owner, in the form of a
tax expenditure: Section 8 of the settlement agreement, at page 7, seems to
position the patent owner to take a tax deduction for the purported value of
the license that it "gave" to GNOME.

------
captainmuon
The takeaway for me is unfortunately:

* Never publish open source or anything else under your real name, if you can avoid it.

* There is no legal security in the US and personally, I find it too risky to do business there.

------
nl
_First, for all the lawyers who are eager to see the Settlement Agreement,
here it is. The reason I can do this is that I’ve released software under an
OSI approved licence, so I’m covered by the Releases and thus entitled to a
copy of the agreement under section 10, but I’m not a party to any of the
Covenants so I’m not forbidden from disclosing it._

Oh this is great and kind of funny.

The Rothschild settlement included a NDA, but somehow it didn't extend to
others it covered, but those people were entitled to get a copy.

I wonder if Rothschild realized this?

------
mbar84
Copying is not theft[1].

I know Copyrights != Patents, but the whole idea of intellectual property
should be abandoned. It is born out of rent seeking and any benefits it may
have were never justified by the costs of the patent system[2].

If you think the patent system needs to be fixed, rather than abolished,
please reconsider.

[1]: [https://questioncopyright.org/](https://questioncopyright.org/)

[2]: [https://www.amazon.com/Against-Intellectual-Monopoly-
Michele...](https://www.amazon.com/Against-Intellectual-Monopoly-Michele-
Boldrin/dp/0521879280)

------
Gehinnn
Did Gnome get back the lawsuit costs? Did the troll had to pay fines? The
article reads like they just agreed to stop trolling.

~~~
mcherm
Nope. They just had to agree to stop trolling _open source_ projects with
patents they _already own_.

They can still troll non-OSI-licensed projects with those patents and can
still troll open source projects with new invalid patents.

We could stop issuing invalid patents (I'm not holding my breath), develop a
legal defense fund to do this again (thus maybe scaring off future trolls) as
the article suggests, or change the law.

If we change the law we could do something minimal like the article suggests
(eg: allow proof the code being sued over predates the patent to be presented
at the summary judgment stage) OR (my favorite) something bigger like
eliminating software patents entirely.

~~~
z3t4
Or just stop doing software patterns. I live in a country where there is no
software patterns, and I dont miss them.

~~~
lolinder
The patent office has largely stopped granting software patents, from what
I've gathered, or they're at least being more careful. So we're just waiting
for the existing ones to expire.

~~~
derf_
As someone who files patents (and then gives away royalty-free licenses to
them), this has not been my experience.

------
j1elo
Would this even be a problem for projects based on Europe, where there are
less issues (or none at all) coming from software patents?

If so, I wonder why more Open Source projects don't get based on European
grounds and get immunity to the absurd state of things in the states.

~~~
guerby
Unfortunately there are plenty of software patents in Europe.

And patent lawyers are trying hard to establish a "unified patent court" so
software patents can snowball completely out of control:

[https://en.wikipedia.org/wiki/Software_patents_under_the_Eur...](https://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention)

~~~
raverbashing
> Under the EPC, and in particular its Article 52,[1] "programs for computers"
> are not regarded as inventions for the purpose of granting European
> patents,[2] but this exclusion from patentability only applies to the extent
> to which a European patent application or European patent relates to a
> computer program as such.

So, basically, you can't patent a program per se, but you can patent a
"device" that uses the program. It is limited in scope

~~~
bonoboTP
Which in practice seriously means that software patents describe the von
Neumann architecture and talk about how the RAM and CPU communicate, when it's
actually about a high level software solution. It's also always called a
"System and method for XYZ", implying the system is part of the invention.
Really look up some patents freely available online, they all do this which is
plain ridiculous.

------
LockAndLol
> Perhaps if the USPTO can’t stop the issuing of bogus patents it’s time to
> remove the presumption of their validity in court … or at least provide some
> sort of prima facia invalidity test to apply at summary judgment (like the
> project is older than the patent, perhaps).

This seems quite reasonable, but I have no idea how that could be achieved.
Opensource needs some kind political representation.

------
dctoedt
This is an example of several interacting phenomena:

1\. The U.S. patent statute, 35 U.S.C. § 102 [0], says that "[a] person _shall
be entitled_ to a patent _unless_ ...." (Emphasis added.) This puts the burden
on the patent examiner to prove _un_ -patentability and not the other way
around.

By comparison: Imagine a Ph.D. program in which the candidate was _entitled_
to a degree upon submission of a dissertation, with no need to do a literature
review, unless the candidate's committee could come up with anticipatory
research. That's how it is in the patent system: A patent applicant need only
disclose "material" information of which the applicant is aware; there's no
obligation to do a prior-art search.

2\. Usually, a single patent examiner (possibly supervised during his- or her
first few years) does the search and decides whether to allow a patent. The
USPTO does have pre-issuance review procedures, but in the main, _one, junior,
civil servant_ — who might or might not know much about the relevant industry,
as opposed to the relevant technology — 𝙞𝙣 𝙚𝙛𝙛𝙚𝙘𝙩 𝙢𝙖𝙠𝙚𝙨 𝙞𝙣𝙙𝙪𝙨𝙩𝙧𝙞𝙖𝙡 𝙥𝙤𝙡𝙞𝙘𝙮 𝙛𝙤𝙧
𝙩𝙝𝙚 𝙚𝙣𝙩𝙞𝙧𝙚 𝙐𝙣𝙞𝙩𝙚𝙙 𝙎𝙩𝙖𝙩𝙚𝙨.

Sure, there are procedures for the USPTO to revisit the question of
patentability. But those are expensive for challengers, as has been pointed
out in TFA and in the comments here.

3\. Patent law also requires that, if you want to invalidate a patent in
court, it's up to _you_ to prove the relevant facts — by "clear and convincing
evidence," the highest standard of proof in civil law.

Bottom line: The incentives provided by the patent system are not necessarily
needed in the 21st century. It's high time to revisit, as the Supreme Court
put it in 1966, "the underlying policy of the patent system that 'the things
which are worth to the public the embarrassment of an exclusive patent,' as
Jefferson put it, must outweigh the restrictive effect of the limited patent
monopoly."

[0]
[https://www.law.cornell.edu/uscode/text/35/102](https://www.law.cornell.edu/uscode/text/35/102)

[1] *Graham v. John Deere Co., 383 U.S. 1, 10-11 (1966),
[https://scholar.google.com/scholar_case?case=910565259149730...](https://scholar.google.com/scholar_case?case=9105652591497305710)

~~~
dredmorbius
Your text following "relevant technology -" does not render on many browsers.
Care to translate to standard ASCII?

~~~
dctoedt
"in effect makes industrial policy for the entire United States."

(I did it in bold italic using YayText --
[https://yaytext.com/](https://yaytext.com/) )

~~~
dang
Please don't do that - we try to avoid visual gimmicks in HN threads. As
[https://news.ycombinator.com/newsguidelines.html](https://news.ycombinator.com/newsguidelines.html)
and
[https://news.ycombinator.com/formatdoc](https://news.ycombinator.com/formatdoc)
explain, you can put asterisks around something to italicize it.

------
Pick-A-Hill2019
From a 2017 Ars article [1]-

The United States Patent and Trademark Office (USPTO) is funded by fees—and
the agency gets more fees if it approves an application.

Unlimited opportunities to refile rejected applications means sometimes
granting a patent is the only way to get rid of a persistent applicant.

Patent examiners are given less time to review patent applications as they
gain seniority, leading to less thorough reviews.

[1] [https://arstechnica.com/tech-policy/2017/12/these-experts-
fi...](https://arstechnica.com/tech-policy/2017/12/these-experts-figured-out-
why-so-many-bogus-patents-get-approved/)

------
user5994461
>>> Clause 11 prohibits GNOME or its affiliates from pursuing any further
invalidity challenges to any Rothschild patents leaving Rothschild free to
pursue any non open source targets.

Is that valid in US law?

For the the places I am aware of, it's not possible to give up rights to
defend in court when one has been wronged. Otherwise that would allow a party
to subdue others and ignore the law entirely.

------
valuearb
One solution is a loser pays legal system.

------
tssva
The lesson I learned was not to trust the Gnome project when they come asking
for money. They raised a large legal defense fund by loudly proclaiming they
would not settle and would fight until the courts declared the patent invalid.

~~~
grandinj
This was a battle in a larger war. Presumably, they made the most of the
available situation.

For example, judges do not look favourably upon Holy Crusades. They tend to
regard them as wasting the judges time. Which is an automatic strike against
you.

It is generally best to take the first victory that presents itself, and win
the war by increments.

~~~
tssva
That may be but they raised funds specifically stating that they would fight
in court until the patent was turned over.

------
rvnx
What about making patents valid only for 1 year or 2 from the commercial
release ? This is enough to foster / protect innovation

~~~
pbhjpbhj
Possibly, but I'd think 10 years as a minimum.

Another option for you: increase renewal fees proportional to revenue (or
simply exponentially). The patent deal is a balance between private and public
interests, weigh towards public interests with a bigger share of the proceeds.

~~~
dredmorbius
Neither patents nor copyrights in the US can be renewed.

Patents are filed for and valid from 20 years from filing, on grant, with no
renewal.

Copyright is automatic and extends for author's life + 70 years, or for
anonymous or works-for-hire, the shorter of 120 years from creation or 90
years from publication.

Copyright prior to 1976 was for a term of 28 years, extensible once, both
requiring registration.

~~~
rcxdude
For patents, you do need to pay maintenance fees up to the 20 years, however
(at 3.5 years, 7.5 years, and 11.5 years, with increasing costs, but they
aren't particularly high)

~~~
dredmorbius
Thanks. I think I may have known that, once.

