
Introducing EFF's Stupid Patent of the Month - scrollaway
https://www.eff.org/deeplinks/2014/07/inaugural-stupid-patent-month
======
chrismonsanto
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.

~~~
zak_mc_kracken
> 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.

~~~
shmerl
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.

~~~
zak_mc_kracken
All you're doing with the cherry picking is showing that the system isn't
perfect, not that it's broken.

~~~
Natsu
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...](http://kotaku.com/two-melons-just-sold-for-us-15-730-in-
japan-509988661)

~~~
axman6
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.

~~~
shmerl
_> 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.

~~~
zak_mc_kracken
> > 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.

~~~
AnthonyMouse
> 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.

~~~
Loughla
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.

~~~
AnthonyMouse
> 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.

------
josho
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.

~~~
zak_mc_kracken
> 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?

~~~
shmerl
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.

~~~
zak_mc_kracken
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.

~~~
stephen_g
> 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.

------
netcan
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?

------
x0054
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.

~~~
eli
Sadly all the good ideas have already been taken:
[http://www.npr.org/blogs/money/2012/08/01/157743897/can-
you-...](http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-get-a-
patent-on-being-a-patent-troll)

------
minikomi
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.

------
edpichler
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.

------
merraksh
_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?

~~~
AnimalMuppet
Doesn't the recent Supreme Court ruling destroy this patent, then?

------
dewiz
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.

~~~
scrollaway
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)

~~~
coldpie
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.

------
api
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.

------
mullingitover
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?

~~~
chc
"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.

~~~
mullingitover
> 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.

~~~
marcosdumay
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).

------
higherpurpose
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-reveals-
microsofts-secret-list-of-android-killer-patents/)

------
TeMPOraL
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.

------
mhlakhani
Given the volume of patents out there, wouldn't it be more appropriate to have
something like "stupid patent of the day"?

~~~
georgemcbay
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.

------
rrggrr
Prior art is probably this:
[http://www.rapidremedy.com](http://www.rapidremedy.com)

------
Ihategod
Am I the only one that advocates the complete elimination of patents and
copyrights?

~~~
ArtDev
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.

~~~
lostcolony
Man, if that's the only alternative to patents, I wonder how we managed to
bootstrap the idea of a patent system.

~~~
sliverstorm
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.

------
mjt0229
I'm sure they'll be hilarious. Hope one of mine isn't one of them.

------
locusm
I wonder what the cost of getting a frivolous patent like this is? Anyone?

~~~
rhino369
USPTO fees are about 400 to apply. Another 450 if it's approved. More if you
have a ton of extra stuff.

The real cost is having some draft it and prosecute it. That's like 15-20k.

