
Patent troll stalks travel site Hipmunk - chewymouse
http://gigaom.com/2012/07/05/patent-troll-stalks-travel-site-hipmunk/
======
grellas
A few thoughts:

1\. The complaint here presents Hipmunk as the developer of an innovative
travel search engine that offers something great that no one has ever offered
and, hence, as a rising star in its market. It contrasts this with i2z
Technology, LLC, - a Marshall, Texas shell entity run by a Silicon Valley
lawyer - that invented nothing through its own efforts, that took an
assignment of a soon-to-expire 1992 patent in July, 2011, that sued a score of
mostly-large companies in the fall of 2011 for allegedly infringing that
patent, and that made a letter demand on Hipmunk to take a license from it or
be immediately sued. It notes, very pointedly, that the innovation done by
Hipmunk from which so many people stand to benefit has _no connection
whatever_ with the patent upon which i2z threatens to sue. It further notes
that, on the face of it, the primary claim of the patent in issue deals with
two-window configurations not even used by Hipmunk. And it identifies prior
art that Hipmunk claims invalidates the patent. Finally, the complaint states
that this demand came to Hipmunk only after it had raised significant VC
funding for the purpose of continuing to grow and to innovate and, rather than
use these funds to pay for a worthless "license," it has instead elected to
fight to expose this for the bogus claim that it is.

2\. The themes of the complaint are almost a template for what is wrong with
U.S. software patents at their worst. Patents are supposed to protect and
encourage innovation. They are supposed to take things that would otherwise
remain secret and get inventors to disclose this secret know-how so that it
can be absorbed into an ever-broadening public pool of knowledge for society's
benefit and, as a trade-off, give the inventor a limited monopoly barring all
others from using the invention for a limited time even if those others
developed it entirely independently of the efforts of the inventor. To get
this monopoly protection, the innovation has to be truly inventive and not
such that those skilled in the relevant art would see it as obvious in light
of prior art; and it must be practical and useful as applied to real-world
activities and cannot be so abstract and vague that it amounts to an idea, a
law of nature, or a mere concept. To benefit society, the monopoly protection
must extend to a point deemed reasonable for rewarding the inventor but not so
long as to give him a windfall at the longer-term expense of others. All of
these concepts applied beautifully to an industrial age where inventions
tended to be tied to heavy machinery or to other innovation tied to long and
expensive development cycles and where the resulting inventions were discrete
and significant departures from the analog-style forms of prior art that
preceded them.

3\. Digital technology, when first deployed, tended to fit within the
historical patterns but not so with software. When it comes to software
development, development cycles have become extremely rapid. The ability, or
even the inventor's desire, to keep innovation secret and undisclosed has
severely contracted and, in a sense, much of what is innovative in software is
an open book, with a whole universe of developers drawing from the same or
similar sources and deriving very similar outcomes without reference to one
another's work. Change comes quickly and incrementally and knowledge of that
change rapidly becomes widespread. Often such changes, when reduced to
practice, can only be described in vague ways that might be applied in all
sorts of surprising ways to future incremental changes and, hence, the
monopoly rights tied to such vagaries hang like a menacing cloud over anything
that anybody might do in those areas. And even things that truly might be
classified as inventive in light of prior art can be seen as being of very
limited value in the broader swirl of rapid technological change within even a
few years of the time they are given patent protection and hence giving every
appearance of society's having given the inventor a 20-year windfall over what
should instead have been incremental stuff worthy of 3-year protection at
most. Now add to the mix an underfunded and besieged patent office whose
examiners are not particularly qualified to make consistent, astute judgments
about innovation involving software and who are effectively under quota-
pressure to keep the patent grants moving along in the system - add further an
enforcement system that imposes multi-million dollar costs upon those who seek
to enforce their patents and also upon those who seek to defend against claims
of infringement and that produces widely variable results tied to a jury
system in which those passing the ultimate judgment can easily be confused and
bamboozled in evaluating technical claims - add further that the appellate
review level concerning patents has been placed in the hands of a specialized
court having exceedingly close and sympathetic ties with the patent bar and
with the idea of broad-based patent enforcement remedies (including
potentially crippling injunctions) - add further that a specialized judicial
district in a backwater Texas area routinely provides favorable treatment for
patent claimants even when claims are weak or frivolous - add further that
patent rights, being freely assignable, can be gathered in the hands of shell
entities having no connection with any form of innovation but being intimately
tied to a system whose purpose is to play the enforcement system to its
maximum value in order to force parties to pay up or get swept into a
litigation mess - yes, added all together, this becomes one lethal brew whose
poisons now maim or kill, rather than encourage, the innovation that the
patent system was designed to foster.

4\. I am by no means hostile to IP rights generally. These can and do protect
various forms of creative effort in ways that can benefit society. Still, IP
rights when abused are the worst form of perverseness in a technologically-
driven society and can and do damage society in serious ways. You wind up with
those who have not innovated a day in their lives making debilitating demands
on those engaged in brilliant innovation in furtherance of a cynical shake-
down process that amounts to a toll on innovation with no offsetting benefits.
The patent system has served the U.S. well for over 200 years. Its structure
was put in place with the pace and methods of innovation fostered by the
industrial revolution. That structure did not envision digital technology as
embodied in software and has in the past 20 years become corrupted. It is time
for a rethinking of what it takes in the patent area to encourage and protect
software innovation. The current system, as exemplified in the Hipmunk case,
is absurdly broken.

~~~
omonra
I don't want to discourage intelligent discussion, but your penned thoughts
are about 3x the wordcount of the original article.

Or - tl;dr

~~~
robomartin
I down-voted your comment. I don't believe in down-voting without giving a
reason for having done so. Here's mine:

Your post adds no value whatsoever. Think twice before hitting "reply" if all
you are going to do is post a negative comment that is utterly irrelevant.

~~~
omonra
Same idea can be expressed succinctly or with a lot of verbiage. Some prefer
the former.

The point of my post was asking the parent to consider this point.

~~~
robomartin
That could have value. Did you take the time to study the matter and post a
succinct explanation? I'd love to get a link to your post.

------
robomartin
I've proposed this a couple of times on HN. I think the solution to these
issues is for someone of note to start an organization dedicated to fighting
patent troll cases. To be considered for protection you have to become a
member and pay annual dues. Such an organization could potentially raise
hundreds of millions of dollars and have top-notch legal horsepower available.

It's mission would be to defend members and, in all cases, seek the
invalidation of the patents in question.

If something like that existed, trolls would know that the potential
consequence of trying to enforce bullshit patents would be huge financial
losses and the potential invalidation of their bullshit patents. How many
trolls would go up against an organization with 10, 20, 50 or 100 million
dollars available to take-on a case?

I am saddened to say that it is an arms race. Given that, true entrepreneurs
and startups need bigger guns. It would behoove VC's and virtually all
entrepreneurs and startups to help fund and support such an entity. It would
be like patent reform approached in a very different way. Knowing that the
"nuclear option" is on the table could very well bring reason to a landscape
that is simply full of land-mines.

There would have to be a mechanism through which companies of a certain size
(Google, Apple, etc.) are excluded from receiving free services from this
organization. They would, however, be expected to support it with generous
donations. If the large players in the tech would each donated ten million
dollars a year (a rounding error in their revenue stream) to such an entity,
the organization could easily raise hundreds of millions in no time at all.

~~~
vellum
Good idea, but how would you determine who is a "patent troll"? Some of them
are more obvious, like i2z. But 1-click is also a bullshit patent. Big
companies like Amazon like to use patents both defensively and offensively.
They're not going to contribute to the legal fund if it could be used against
them.

I think the idea is more workable if you start with recruiting small to mid-
size companies + VCs. The big companies are more likely to join on a case by
case basis, especially with someone else taking point.

~~~
robomartin
The organization would have to put into place a process through which requests
for help from members are evaluated. If the lawsuit in question is determined
to fit the stated mission, purpose and standards of the organization they take
over. There could also be staged levels of paid assistance whereby the
organization might handle the case at a much-reduced cost when compared to
going through other avenues.

I don't have all the answers. Legal minds far more capable than mine would
design a set of rules and options that would make this a true resource and, to
use the term again, a "nuclear option" against trolls. I don't have a problem
with the reasonable enforcement of legitimate patents, but the bullshit
patents need a way to hurt those using them to troll in a major way. All you
need is a few cases of trolls getting utterly destroyed in court for the
environment to change completely.

------
spez
It's a stupid claim, and we're taking the most agressive action we can against
it, which in this case means suing them first.

~~~
iamandrus
I agree. "Displaying data in multiple computer windows" is an absolutely
ridiculous patent.

I know you guys can win this, best of luck! :)

~~~
cperciva
_"Displaying data in multiple computer windows" is an absolutely ridiculous
patent._

It would indeed be ridiculous if someone had a patent on displaying data in
multiple computer windows, but that's not what was patented.

Here's claim #1 -- the other claims are similar in their specificity:

 _1\. A system for synchronizing the presentation of data on a digital
computer display, comprising:

first and second window-controlling means, each of said window-controlling
means displaying information in at least one display window, a synchronization
control means, and means for communications between said synchronization
control means and each of said first and second window-controlling means;
wherein said first window-controlling means displays first information from a
first source, and said second window-controlling means displays second
information from a second source; wherein said first information and said
second information have sections, and at least one section of said second
information corresponds to a section of said first information; wherein said
first window-controlling means sends a message to said synchronization control
means over said means for communications indicating a change in viewing
position to a new section of said first information; wherein said
synchronization control means sends a message to said second window-
controlling means over said means for communications requesting a change in
viewing position to a section of said second information corresponding to said
new section of said first information; and wherein said second window-
controlling means displays said corresponding section of said second
information on at least one display window._

Remember, patents cover _methods_ , not _purposes_. This patent covers _a
specific method_ for displaying data in multiple windows, not the general
concept of displaying data in multiple windows.

Mind you, I still think it's a dumb patent. But let's make sure we understand
what we're lynching them for before we get out the torches and pitchforks, ok?

~~~
JoshTriplett
Translated from patentese:

\- Two or more windows displaying data from different sources

\- The sources have sections

\- Sections from one source have corresponding sections in another source.

\- Changing sections in one window makes other windows change to corresponding
sections.

\- Basic message-passing communication to implement the above.

~~~
mey
So any online video game is prior art?

~~~
wickeand000
I think my current terminal window is prior art...

~~~
GoodIntentions
There must be hundreds of examples of prior art.

I wrote a split screen sprite editor for dos about 20 years ago. I bet it's
still on a 720 floppy some place in my basement. In fact, I think I have a
source printout filed away too..

------
opendns
We've taken the same approach. Suing first. The problem is that all you've
done is declare venue. You'll still need to settle because not settling will
cost you at least $1mm to fight this in court. And if you win, and find
yourself not to be infringing, they can just find another patent and start the
process all over again. You'll never get your legal fees back. That's not how
patent suits work. That's why it's such a scam.

I'd just settle and view it as a tax on innovation while working on changing
the larger patent system.

~~~
larrys
Can you reveal what the troll was asking for the license in your particular
case?

------
astrodust
Although I'm entirely opposed to patents, a way to limit the exposure of
companies to patent trolls if if these trolls need to quantify their "damages"
in terms of lost sales or lost opportunities. If they're not actively
developing products, that is certainly going to be hard to prove.

~~~
karamazov
This presents a problem for legitimate patents - researchers and others who
develop technology would only be able to profit from it by bringing it to
production themselves, rather than selling or licensing the technology to
others and continuing to do research.

~~~
JoshTriplett
Can you write any description that reliably distinguishes between a patent
troll and anyone else who does not use the patent themselves in production
(commonly called a "non-practicing entity" (NPE))? If not, that should tell
you something.

(Not that practicing entities can't resemble patent trolls too, as evidenced
by the numerous ongoing smartphone lawsuits.)

~~~
karamazov
The issue with patent trolls isn't how they use patents - it's the patents
that they use. There's nothing wrong with a researcher suing a factory over a
patent the researcher holds that the factory is using without license. There's
also nothing wrong with the researcher selling the patent to a lawyer, so as
to avoid dealing with the legal system, and that lawyer then suing the
factory.

This works if the patent was issued for a meaningful advance. In fact, the
researcher may not have been interested in doing the research (or at least in
revealing his methodology) without patent protection. If the methodology were
not revealed, other people would need to spend the time to develop their own
process, when it would be easier for them to pay the researcher and then use
his work.

The issue with software patents is that the methodologies covered are trivial,
and the time needed to develop your own method is trivial as well. Because the
patents are granted for obvious solutions, many people end up violating the
patent without ever having seen it; this is why patents are not supposed to be
granted for obvious developments.

~~~
Zak
The problem I see with software patents is that they're usually attempts to
patent _ideas_ , but ideas aren't patentable. The implementations of most of
the ideas in question are obvious and therefore not patentable.

I don't think that we, as a society should decide to allow ideas to be owned,
so I do think we should crack down on trivial patents.

~~~
runako
>> we should crack down on trivial patents.

I think everyone is in agreement on this, but the definition of "trivial" is
the sticking point.

------
phil
This is a 1994 patent. Looks like it should be expiring in Nov. Better hurry
up with that suit, patent troll!

~~~
dctoedt
November 9 does in fact appear to be the expiration date, that is, 20 years
after the first filing date [1, 2].

The patent owner can still sue for damages for pre-expiration infringement,
going back six years (which is the statute of limitations). But damages for
infringement won't continue to accrue after expiration.

In addition, any injunction against infringement would expire automatically
with the patent.

[1] [http://patft.uspto.gov/netacgi/nph-
Parser?Sect2=PTO1&Sec...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-
bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/5345551)

[2]
[http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_St...](http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_States)

------
arturadib
I am getting on a plane and won't have internet access for days, but can
someone please start a site like IAmATroll.com or whatever and compile a list
- hopefully with profile pictures - of patent trollers, and who they're suing.
I'd be happy to help promote and maintain it when I'm back.

If we can't win legally, let's at least try a grassroots approach. Perhaps
shame will have _some_ effect on these people.

~~~
JoshTriplett
Why would you think shame would have any effect? Shame does not lose court
cases or reduce patent licensing fees. You can't stop a patent troll by any
means that does not directly affect their revenue.

~~~
arturadib
The "green" movement seems to be making some progress.

~~~
JoshTriplett
"Green" has successfully affected revenue: people value green products and
green companies, and "green" affects purchasing decisions. Patent trolls, by
definition, have no products to purchase and no interaction with consumers;
how consumers view them will have no effect on their revenue. Name-and-shame
tactics don't help.

Massive public opinion campaigns could still prove useful in this case, but
only insofar as they affect the legislative and judicial systems that support
patents and patent trolls.

~~~
mrich
Companies that have a history of using patents offensively should however be
considered for a boycott (Oracle, Apple)

~~~
runako
"Patent troll" is generally considered to mean a company that does not make or
sell anything. They can't be boycotted or countersued for infringement.

------
randomfool
I hate patents, but sometimes I wish that judges would just say that yes, the
software does infringe, but that the patent represents one itsy bitsy tiny
part of what's needed to make a successful product. Then award the patent
holder what their patent is worth- $1.

I often think that the issue isn't so much the patents, but the absurd amounts
of money people are able to extract from them- the money is in no way
representative of the importance of the invention.

~~~
asmithmd1
It is time for compulsary licensing of patents - just like there is with
songs. With compsary licensing there would be no need to talk with a patent
owner, just pay the license fee. This is how any band can "cover" any song.
Congress thought songs were so important to our culture no one person should
be able to control them and forced song authors to license their works to
anyone who asks.

------
kinkora
The problem with the current patent system is that it treats all patents from
various industries (software, manufacturing, biology, chemistry, science,
business, etc) exactly the same across the board and applies the exact same
rules to all of them. While an overhaul of the whole patent ecosystem is
needed and long overdue, I think the quickest/easiest way we can get rid of
majority of patent trolls is to start having different rules for different
categories of patents.

A couple of examples I can think of:

1\. A patent with a tangible product will last for 20 years but a software
patent should only last for no more than 5 years.

2\. A medical methodology process can only be patented by an
individual/company after showing evidence of the research put into it by said
individual/company where else a software methodology process can only be
patented if the patent holder is actually utilizing the patent as part of
their business.

3\. Manufacturing patents can be granted without actually showing the actual
real-life process (and obviously it needs to be a novel approach and has no
prior art) but all software patents need to be developed and attached a demo
of the software patent in action (not just pictures and descriptions) as part
of the requirement for the patent to be granted.

What do you guys think? I believe setting different rules for different
categories will quickly elevate majority of our tech patent woes.

~~~
runako
Feedback:

#1 devalues genuine software innovation. If a software innovation is genuine,
why is it worth less protection? I understand that software moves faster than
tangible products, but that just means "innovation" means something different
in software. As a programmer, I oppose any effort to devalue software relative
to other intellectual pursuits.

#2 Devalues genius. If a genius only needs 2 weeks to produce real genuine
medical innovation, it should not be measured against some arbitrary measured
effort standard quantifying "evidence of research".

#2 Also enforces arbitrary business requirements on software-using firms. Why
can't a firm invent a lot of stuff and not implement it all at once? They
should have the same rights to use their inventions as firms that work in
other pursuits. (Again, this is dependent on the innovations being genuine.)

#3 Devalues software relative to manufacturing by applying a different
standard.

These are hard problems that I can't answer at the moment; I'll freely admit
that. But I continue to be shocked that the programming community tends to put
forth answers that devalue its efforts, so I feel the need to point out that
software is as worthy of protection as other fields. (This is a shocking
argument to have to make to software people!) If there's a problem with the
patent system, fix it across the board: software is not the problem.

~~~
josteink
_#1 devalues genuine software innovation. If a software innovation is genuine,
why is it worth less protection?_

While a good _general_ argument, you have to ask what software which was
developed 20 years ago is still relevant today. Most software 20 years old is
not even available today, and even if you had stored a copy, it would probably
not be possible to find hardware which would run it correctly or at all.

Basically, 20 years of computing-time represents several _generations_ of
products and innovations. 20 years for a patent may have been a relevant
timeframe when products had a lifespan that long.

I think it would be hard to argue that this is still the case.

The solution is not to extend software patents to 20 years. The solution is to
reduce patent-time to fit the lifespan of products within the category which
for the patent is valid.

Which for software would mean an absolute maximum of 10 years, with 3 years
much more reasonable.

~~~
runako
>> Which for software would mean an absolute maximum of 10 years, with 3 years
much more reasonable.

This still devalues the creation of software that is genuine innovation. Think
about mainframe software that controls factories, for instance, which can be
bought over 10 years after creation. Also consider the prevalence today of
Windows XP, which shipped in 2001 (and where any relevant patents would date
to the 1990s when it was developed). Microsoft has reluctantly stopped selling
it, but I'd argue that we still don't know how long the useful lifespan of
WinXP will be. And we're probably ~15 years in from when patents in XP would
have been filed.

Before artificially segregating software into a ghetto, ask this: would this
innovation be worthy of protection if there were a purpose-built device that
performs the same function? If the device would be worthy of protection, then
it's going to be hard to argue that the software embodiment is somehow worth
less protection. (At least it will be hard to argue this with me, but I'm a
chauvinist for programmers.)

Finally, the argument that the old software becomes irrelevant is congruent
with equal protection for software. If old software loses relevance, then so
do the patents (and correspondingly their utility to patent trolls). I think
you mean precisely the opposite: old innovations in software actually become
more relevant, so that everyone wants to use them in their own wares. Nobody
rushed to shorten the lifespan of vacuum tube patents because they became
irrelevant.

I don't think it's reasonable to reduce software patent lifespans to shorter
durations than that of the hardware the software runs on, or the cables used
to transmit it.

~~~
josteink
_This still devalues the creation of software that is genuine innovation. ...
Before artificially segregating software into a ghetto_

I'm not sure if it comes through in my post, but what I wrote I intended for
all patents, not just software patents. If your product or category of product
(software or not) only has a lifespan of 2 years, patents for that product or
product-category cannot be made to last more than those 2 years.

In that sense I'm not devaluing software (or any other products for that
matter) any more than the people producing them already do.

That may not fully satisfy you and your point of view, but it seems to me it
would address some of your concerns. If you still find it objectionable, I
guess that's fine by me. We are all entitled to our opinion.

Sometimes, even reasonable people cannot be made to agree ;)

~~~
runako
Fair enough, and your position makes sense to me. (A lot more sense than those
who would specifically curtail software protections.)

I think there's something to this approach, but I can't help wondering how
anyone would define the lifespan of a product.

Also, I think reasonable definitions would be much longer than you'd like and
closer to the existing 20 years. I kept my last mobile phone for 6 years, for
instance, so I'd probably say 10+ years is reasonable for technology in a
mobile phone. WinXP is 15 years into its invention cycle, etc.

------
cft
It's a very dangerous precedent for the whole startup ecosystem. Much like a
venture capitalist, the troll is trying to get a share of a growing stratup,
except that it's using racketeering, rather than an investment as its tactics.
This needs to be stopped decisively, ideally adding the troll to vexatious
litigant list, so that it cannot racketeer again with another patent

<http://en.wikipedia.org/wiki/Vexatious_litigation>

<http://www.courts.ca.gov/12272.htm>

------
sneak
Did anyone else cringe at Hipmunk's use of the phrase "hard-earned venture
capital"?

------
droithomme
Arg, I just read the 1992 era patent and I am not sure what exactly the novel
part of it is. Possibly it claims to patent a specific implementation of
model-view-controller. This stuff is written so obtusely it's hard to imagine
what specific claims of the things it describes is it really patenting.
Disturbing is the large number of other patents that reference it. No doubt
anything we do in the course of developing software violates some claim made
in some patent somewhere that few have even heard of.

------
wpietri
I can only hope that VCs are clubbing together to give patent trolls a good
thrashing. Partly through lobbying; Congress should be sympathetic to
innovation and job creation, especially during a downturn. And partly through
a vigorous collective defense. Patent trolls turn their extorted money into
more patents and more lawsuits. Like any parasite, the smart approach is to
kill them early.

------
RedwoodCity
The last patent reform bill really did nothing. Why can't congress pass useful
bills.

------
kn0thing
Relevant:
[http://www.ted.com/talks/lang/en/drew_curtis_how_i_beat_a_pa...](http://www.ted.com/talks/lang/en/drew_curtis_how_i_beat_a_patent_troll.html)

------
rhizome
One can only hope that the previous licensees included a clawback-if-
invalidated clause in their agreements.

------
mapster
Trolls likely will settle out of court. I hope Hipmunk doesn't fall for this
trap either.

------
BryanB55
Maybe we should all message this guy on linkedin and tell him what a scumbag
he is.. Just in case he doesn't already know.

I really wish more people would spend more time doing something valuable in
the world.

------
Fando
i2z Technology = Loser

