

Patent trolls put brakes on S.F. transit app - coloneltcb
http://www.sfgate.com/technology/dotcommentary/article/Patent-trolls-put-brakes-on-S-F-transit-app-4778304.php

======
ScottBurson
A patent is a deal the public makes with an inventor: publish your invention
and we'll grant you a time-limited monopoly on it. In order for this to be a
good trade, the invention has to make a real intellectual contribution to the
art. The problem we have is that no one is unambiguously empowered to ensure
that it does so. The PTO does some of this, but has neither the bandwidth to
do a good job nor a clear mandate to be hard-ass about it. And then once a
patent is granted, the courts tend to defer to the PTO on its validity.

I haven't read the patents in question here, but I nonetheless feel safe in
saying that "technologies for tracking vehicles and providing users with
electronic updates" cannot possibly make a contribution to the art significant
enough to counterbalance the societal cost of the monopoly the patent holder
has been granted. I'm sure there are thousands of engineers here on HN that
could design and build such a system using well-known techniques.

In some domains, the determination of how much of an intellectual contribution
an invention makes is fairly straightforward. If a novel molecule is
synthesized -- the chemical and pharmaceutical industries keep a record, I
gather, of all molecules whose structures have been worked out, so it's
possible to know when a new one appears -- and then proves useful for some
medical purpose, it's pretty clear that a contribution has been made, and what
that contribution consists of. In software, it's much harder. The field is
massive and sprawling, and no one can keep up with all of it.

That's why I'm convinced the only solution is to amend the patent laws to
require _objective evidence of nonobviousness_ \-- objective evidence that the
invention makes a real intellectual contribution -- in order for a patent
holder to successfully sue for infringement. Such evidence could come, for
example, in the form of publication in a peer-reviewed journal or conference
proceedings. Absent such evidence, the law should direct the court to
invalidate the patent.

An advantage of this approach is that it requires no special-case rule for
software patents, which run into the difficulty of defining the term "software
patent" precisely. Rather, in domains other than software, the required
evidence is generally not hard to come by. So the rule is domain-independent
in definition -- and defensible as such, I believe -- but would have by far
the greatest impact in the software domain.

~~~
dalke
"If a novel molecule is synthesized ... and then proves useful for some
medical purpose, it's pretty clear that a contribution has been made, and what
that contribution consists of."

That's not the case. There might be one person who thought of the scaffold,
another three involved with trying different variations of the side-group, a
fifth who had to solve problems when synthesizing it, and so on. Even on the
far end, after it's in trials, there's the chance that it's useful for some
other effect altogether. That's how Viagra's most notable use was discovered.

See [http://www.forbes.com/sites/johnlamattina/2013/07/17/will-
pa...](http://www.forbes.com/sites/johnlamattina/2013/07/17/will-payments-to-
scientists-for-new-drugs-improve-gsks-rd-productivity/) for a recent
commentary on the difficulty of figuring out who made "the" contribution.

~~~
ScottBurson
Oh, I'm well aware that it can be hard to figure out _who_ made the
contribution.

But I didn't say anything to contradict that. Reread the sentence you quoted:
all I said was that it was clear that a contribution _had been made_ : a
previously unknown molecule had been synthesized, and a medical use found for
it. This is all that matters for the question of _whether_ a patent should be
granted. The question of _to whom_ it should be granted is not one I'm
considering here.

~~~
dalke
I did misread your statement. I interpreted "a contribution has been made, and
what that contribution consists of" as "a contribution _by specific people_ "
not "a contribution _to humanity_." I apologize.

However, that does not change the overall intent of my reply, which is that
drug discovery is not so clear-cut as you make it out to be.

Take "A previously unknown molecule had been synthesized". Part of drug
development includes finding previously known molecules which have new and
unexpected actions. Again I point out sildenafil, which was synthesized for
use in hypertension and angina pectoris. It was a nurse, during phase I
trials, who discovered that was an effective against erectile dysfunction.

As another example, insulin is found in the body. It was first synthesized in
the 1960s, but diabetics had to use insulin from animal sources, which was
expensive and hard to acquire. Genentech, in 1982, started selling insulin
made using E. coli genetically modified with human DNA. Now insulin is
relatively inexpensive.

Insulin was not new. The medical use of the chemical was not new. But the
method of creating the chemical _was_ new, and for that Genentech received a
patent, and a lot of money. This case does not fit your description of how the
drug discovery market.

Then there's combination therapies, where the use of two different and already
existing drugs has a synergistic effect. Here's a list of some combination
therapies which were patented in 2011:
[http://sciclips.wordpress.com/2011/09/19/recent-
combination-...](http://sciclips.wordpress.com/2011/09/19/recent-combination-
therapy-patents/) . Again, these are known chemical compounds, while you've
twice asserted that the chemicals has to be "previously unknown" in order to
be patented.

To summarize: getting a drug patent does not mean that the chemical has never
been seen before.

Then again, your thesis doesn't require that it be unique. You point to drug
patents because you believe they must have an "objective evidence of
nonobviousness", and you want patents to have the same requirement.

However, that non-obviousness criterion is already required to get a patent.
Quoting from Wikipedia: "In modern usage, the term patent usually refers to
the right granted to anyone who invents any new, useful, and non-obvious
process, machine, article of manufacture, or composition of matter."

It looks like you want patents to have an additional burden of proof of non-
obviousness. For example, "publication in a peer-reviewed journal or
conference proceedings" may count. However, you don't realize how easy that is
to achieve. Peer review is a relatively low bar. There are any number of so-
called 'predatory journals' which are advertised as peer-review, and which
take your money and publish, but which don't have an meaningful peer-review
system. Someone who pays $10,000 to get a patent will not find it difficult to
spend another $1,000 to publish in one of these journals.

It's trivial to start a new academic journal, and have it staffed by friends
of yours. In that way, everyone can published peer-reviewed literature. And
"conference proceedings"? That's an almost trivial bar.

Your proposal is so easily gamed as to be worthless. How much do you know
about the patent system? How much do you know about drug development?

~~~
ScottBurson
I really need to write a much longer essay to develop my argument here. I was
trying to express its broad outlines very succinctly. That tends to work only
with a sympathetic audience.

My reference to drug patents was intended as an example of a typical case, not
an exhaustive exposition of how all such inventions are made.

> It looks like you want patents to have an additional burden of proof of non-
> obviousness.

Actually I want to shift the burden of proof. Instead of the PTO or a alleged
infringer having to prove that a patent is obvious, I want the burden to be on
the applicant to prove that it is nonobvious. I also want objective evidence
to be required so the question isn't just a judgment call.

The suggestion that publication could serve as _prima facie_ evidence of
nonobviousness was also an example. (For more examples, look up "Graham
factors".) That said, I don't accept your criticism. I think courts can tell
the difference between well-established, prestigious journals and fly-by-night
operations.

Do you have a counterproposal? What do you think should be done, if anything?

~~~
dalke
"My reference to drug patents was intended as an example of a typical case"

Drug patents are perhaps the most unusual type of patent. They have special
time extensions, in part because they have an extremely high burden of proof
before they can be released, and information about the drug is public long
before it can be sold. There are also special exceptions to allow countries to
use a patented drug in case of an epidemic.

So I don't think it's useful to regard drug patents as 'a typical case.'

"I want the burden to be on the applicant to prove that it is nonobvious"

As I said, that requirement is already present. In that Graham v John Deer
case you mentioned: "The determination of "nonobviousness" is made after
establishing the scope and content of prior art, the differences between the
prior art and the claims at issue, and the level of ordinary skill in the
pertinent art."

In that sentence you included "alleged infringer". I think you've mixed two
different phases. In the first phase, the patent office must be satisfied that
the patent is non-obvious. Once done, the applicant is granted the limited
monopoly and the right to sue infringers. The only defense of the alleged
infringer is to show that the patent office's determination was incorrect, and
one way is to show that it was obvious.

Why should the person with the patent grant have to re-establish non-
obviousness when the patent office has already certified that it's non-
obvious? More specifically, couldn't the patent grantee simply resend the same
information used to get the patent in the first place?

"I also want objective evidence to be required so the question isn't just a
judgment call."

Here's the relevant citation from Graham:

> This is not to say, however, that there will not be difficulties in applying
> the nonobviousness test. What is obvious is not a question upon which there
> is likely to be uniformity of thought in every given factual context. The
> difficulties, however, are comparable to those encountered daily by the
> courts in such frames of reference as negligence and scienter, and should be
> amenable to a case-by-case development. We believe that strict observance of
> the requirements laid down here will result in that uniformity and
> definiteness which Congress called for in the 1952 Act.

The courts seem to believe (at least in 1966) that the current factors _are_
reasonably objective.

This is all the more interesting because, on the topic of journals you wrote
"I think courts can tell the difference between well-established, prestigious
journals and fly-by-night operations."

I agree with you. But means that a court uses to make that judgement with a
journal is the same means that a court uses to judge non-obviousness in a
patent, so you've only redirected the burden of proof, not made it higher.

"Do you have a counterproposal?"

Most assuredly I do not. My attempts at understanding the complexity of the
patent system flounder every time.

For example, if the patent lifetime is reduced to 10 years, then I don't know
how to handle drug patents, which have a high cost and long public exposure
before they can be sold. Perhaps there's a viable alternative business model,
but it calls for a huge shift in the industry.

And so on, with more variations than I care to discuss.

~~~
ScottBurson
> I don't think it's useful to regard drug patents as 'a typical case.'

Okay, point taken.

> Why should the person with the patent grant have to re-establish non-
> obviousness when the patent office has already certified that it's non-
> obvious?

I already addressed that in my initial post (first paragraph).

There's another reason as well. One of the Graham factors is commercial
success. At application time, there has not been time to establish the
commercial value of the invention. The PTO has to give the applicant the
benefit of the doubt. Assuming that most patent litigation doesn't reach trial
until several years after the patent is granted, more information will be
available then.

> My attempts at understanding the complexity of the patent system flounder
> every time.

You're getting bogged down in details. You need to back up and look at the big
picture.

Anyway, if you don't like my proposal, here's another one by someone with
actual credentials[0]. They're not mutually exclusive, though, and I'm
inclined to think both could be valuable.

Gotta run -- more later.

[0]
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302)

------
kintamanimatt
In many ways the US patent system gives non-US software companies a leg up. It
seems as though foreign software companies are rarely (if ever) sued by these
"non-practicing entities".

Patent trolls are the #1 reason why I have no intention of opening up shop in
the US, at least until the software patent boogeyman goes away.

~~~
Grovara123
You can be sued anywhere for anything - you are just saying 'words' without
giving any facts. People are sued in many countries for intellectual property
issues. USA is not alone. The #1 reason you have no intention of opening up
shop in the US is probably something else - ie. you are not a US citizen or
you wouldn't even know how to incorporate if you tried - come on.

~~~
kintamanimatt
I'm very well aware of how to incorporate a company in multiple jurisdictions;
it's not hard and rarely expensive. Being a US-citizen isn't necessarily a
barrier to opening a company in the US either; there are are whole battery of
appropriate visa categories for entrepreneurs.

Indeed you can be sued anywhere for anything, but the matter of jurisdiction
arises quite quickly in many cases. Also, American patent trolls don't seem to
attempt to sue foreign companies that don't have a presence in the US.

~~~
Grovara123
Again - words - not facts.

"American patent trolls don't seem..." where did you pull that out of...
sounds pretty but you got nothing to back up that statement.

~~~
kintamanimatt
You're asking me to prove a negative. I can't find any instances of a US-based
patent troll suing, say, a British or Irish or German software company that
has no offices, etc in the US, and this is what I'm basing my non-absolute
statements on.

Anyway, you appear to be a troll of the internet variety, so I'll leave you in
peace because you're in no way trying to debate, but antagonize.

~~~
Grovara123
I'm a troll because I disagree?

Have you searched the US Court Databases?

As an attorney - I have. Check out lexisnexis for case law. There are hundreds
of cases of US owners of patents suing and litigating against international
infringers... literally hundreds.

Also, you are totally discrediting the monopolies that run the world and how
they have prevented other companies from entering their markets via other
aggressive methods or patent purchasing...

~~~
kintamanimatt
Those monopolies you're talking of (IBM, Oracle, Microsoft, Apple, etc) are
subject to US laws and courts because they are US corporations. Other large
companies likely also have a presence in the US, which again subjects them to
US laws and courts.

Why don't you cite a handful of recent cases (<5 years) in which a British or
German software company has been successfully sued in the US for infringing
upon a US-registered software patent by a US patent troll? I'm not saying
you're wrong, and of course just because I haven't found anything doesn't mean
it doesn't exist, but the odds of being successfully sued by a patent troll as
a foreign business are vastly less than being sued as a US company. Even if a
patent troll were successful in securing judgment (perhaps by default),
enforcing a judgment against a foreign company is vastly harder than a
domestic one; patent trolls like easy wins.

Nobody in Europe is complaining about US patent trolls suing them because to
the best of my knowledge, it doesn't happen. If it does, it's so infrequent
that it's a non-issue.

I assume you're a troll because of your comment history. I mean, c'mon, you
pretended to be able to read my mind and asserted that my lack of desire to
open up an office or business in the US was not because of the risk and costs
of a patent troll's attempt at a shake-down, but rather because I don't know
how to form a company, or that I'm not a US citizen! If you're really a lawyer
I doubt you'd be making such claims.

------
x0054
How about a crowd sourcing website for patent invalidation. Make it proactive.
You get sued or threatened. You go online and post the patent. Maybe other
people in the same situation, including once who have yet to be sued, can
pitch in. There is one thing that most patent trolls are terrified of, and
it's a well researched and filed invalidation claim.

My other suggestion, if you think you might get sued for a particular aspect
of your app, try to isolate it as much as possible. For instance, if you have
an app that makes money through ads. Form one company that makes the app and
another that pays a nominal fee to display ads in that app. One Company makes
the money, the other "infringes."

Finally, get any lawyer, any one that will agree to represent you and file a
declarative action in your jurisdiction to invalidate your claim.

Just my 2 cents. Maybe some real patent lawyers can chime in.

~~~
zuppy
Stack Overflow has a site for that:
[http://askpatents.com/](http://askpatents.com/)

They had their first (major) success:
[http://www.joelonsoftware.com/items/2013/07/22.html](http://www.joelonsoftware.com/items/2013/07/22.html)

------
zmmmmm
Such a depressing situation. I shudder to think of such a letter arriving to
my small (tiny) business. And yet I know it could happen any time. There's
simply no way for me to avoid it - I can't possibly anticipate what bogus
patent might be thrown at me, it may even be nothing to do with my business.
It would probably be game over, shut down, years of hard work down the drain.
And even then, I worry that they would sue for damages from past sales, so I
may still be screwed.

How do others deal with this risk? Just ignore it and hope for the best? Is it
still statistically low enough chance that that is a reasonable thing to do?
Incorporate and protect assets so if you are sued you can at least back out
without personal financial devastation?

~~~
genwin
Beware, IANAL. Yes, incorporate. Then, if the business isn't worth much and
it's just you, ignore any patent trolls. In the unlikely event any take you to
court, don't show up or otherwise waste your money on the suit, and if they
win then continue to ignore them. In the worst case you go out of business and
start another business with the same technology.

~~~
kintamanimatt
Ignoring a properly filed lawsuit is pretty much the dumbest thing you can do.
If they win by default (which is what happens if you ignore it) they can still
successfully come after assets.

~~~
genwin
It's not the dumbest thing you can do when acting on it costs more. They
cannot come after your personal assets in the case I described, and the
business is not worth much. They are smart enough to not spend more money than
they can seize in assets, so it's unlikely to happen.

~~~
Grovara123
No - it is the dumbest thing you can do. They can win by default... you
lose... you don't get to be 're-heard'

~~~
kintamanimatt
Are you sure you're a lawyer, as you've claimed elsewhere? I have strong
doubts given the way you debate and write.

As a lawyer you should know that (at least in the US) relief from a default
judgment is available. Such relief requires a showing of good cause, but the
standard for "good cause" doesn't appear to be especially high.

~~~
Grovara123
a lawyer and owner of a tech patent - not a troll-
[http://patents.justia.com/inventor/peter-a-
groverman](http://patents.justia.com/inventor/peter-a-groverman)

~~~
reitzensteinm
That patent is a fucking joke. You didn't invent anything, and the claims
section reads like a parody, buzzword combination without thought or insight.

So you want to profiteer on a broken system? Cool. But don't hang out here,
handing out advice and pretending that you're anything but part of the
problem.

------
kenster07
The complexity of software patents has grown beyond the capacity of the patent
system to properly evaluate them. As such, it this subsection of the patent
system is susceptible to rampant abuse, and can no longer effectively serve
the purpose for which it is originally intended.

If this were an engineering problem, the solution would be obvious.
Unfortunately, it is political, and therefore a well-dressed circus.

------
gotosleep
Intellectual property should be taxed. If a company is sitting on a patent
waiting for someone to violate it so they can sue for $X amount, the company
should be taxed for $X amount of property. It would make owning tons of
patents and doing nothing with them practically infeasible.

------
gavinpc
I thought BART trip planning was a solved problem, anyway:

[http://worrydream.com/bartwidget/](http://worrydream.com/bartwidget/)

~~~
ebiester
If I understood correctly, this included the whole MUNI bus system.

------
blackcat
Does anyone have practical advice for convincing business people not to pursue
software patents? Stating it will give you no real protection and is a waste
of money is not enough, even when coming from the attorneys.

~~~
Kliment
Here is a good resource:
[http://www.tinaja.com/patnt01.shtml](http://www.tinaja.com/patnt01.shtml)

------
Grovara123
The reality is this is the Patent Law of our Country - if we did NOT have it -
everyone here would be saying the exact opposite.

It is 100% necessary - and though there might be casualties such as what is
going on here - if we did not have Intellectual Property Rights - we would be
at a disadvantage.

My suggestion is anyone being sued connect with the individual suing them and
work out terms - everything is negotiable. Why not cut the owners of the
patents in on a % of revenues?

~~~
impendia
> My suggestion is anyone being sued connect with the individual suing them
> and work out terms - everything is negotiable.

You are condoning extortion. Perhaps, indeed, the individual should negotiate
terms -- but for the same reason that if the Mafia showed up to your doorstep,
packing heat, then it would be wise to take their demands seriously.

~~~
Grovara123
Extortion? No. Please. We have a legal process. It was created and it is
constantly being developed and reformed. I am supporting our legal process
which is not perfect but it is the best we have at the moment.

Love it or not - it is the rules of the game. Someone came up with the idea
before you and they registered that idea before you. Vague or not - they had
the foresight - and they are indeed entitled to being proprietary.

If you do not like it - challenge it. If you can not afford to challenge it -
negotiate for 'fair-use'.

If you think otherwise - you are an amateur.

~~~
gergles
> Love it or not - it is the rules of the game. Someone came up with the idea
> before you and they registered that idea before you. Vague or not - they had
> the foresight - and they are indeed entitled to being proprietary.

No, they aren't. Upthread you claimed to be an attorney -- you should know
better than to suggest that patents cover ideas. They don't. They cover
implementations. Having an idea and going "ME FIRST" does nothing to get you
protection.

Software patents are patents on ideas. They are a perversion of the patent
system and are a plague. Using them to try to get licensing deals is blatantly
extortion, and patent trolls know this; setting their settlement costs just
shy of what it would cost to mount a competent defense. There is nothing good
about this and it isn't even consistent with the rules of 'the game' you love
so much.

