
Software Patents: A Personal Story - zjj
http://thenoisychannel.com/2009/10/03/software-patents-a-personal-story/
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jacquesm
I've had a similar experience with a company called 'Acacia', they claimed to
have some broad ranging patent wrt to audio and video over the internet. I
told them to either sue or get lost and never heard from them again. It
probably helped a lot that I'm based in europe.

I have absolutely no respect for companies that use software patents as a way
to either control their competition or, as seems to be the case here to use it
to effect a take-over.

It's a pity these jerks aren't named because it would be quite neat to give
them as much bad press as they could handle. Cowards.

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dtunkelang
Believe me, I'd love to give these guys bad press--TechCrunch or Gawker could
do a nice story at their expense. But that's my friend's decision to make, not
mine. The last thing I want to do is undermine his defense.

~~~
joe_the_user
Keep in mind that those who silently capitulate don't just hurt themselves,
they hurt all those who the companies go after later... and effectively, all
of us.

~~~
akeefer
Yes, but legal maneuverings are incredibly sensitive things, and anything
officially entered into the public record becomes evidence. It's generally not
a matter of silently capitulating, but if you want to fight back and have any
hope of winning, you have to play by the rules.

I'm in exactly the same situation and it's incredibly frustrating, but the
alternative is to open your mouth and potentially undermine your legal
defense. About the best you can do is to fight the lawsuit to the best of your
abilities, but that unfortunately requires that you route all public
communication through your lawyers.

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gamble
My husband's company invited their IP lawyer to give a talk on software
patents a few years ago. He compared them to the English enclosure movement of
the 16-17th centures - no one really believes they're protecting innovation so
much as providing a way for the established companies to declare their
territory and ward off upstarts.

Of course, it didn't stop him from recommending that they look for patentable
aspects of their software. The other benefit to holding patents is that the
best way to prevent an infringement suit is to have the ability to counter-sue
based on your own patent collection.

~~~
barrkel
The counter-sue idea doesn't really work for patent troll companies though,
which only hold patents for extortion, and don't do any productive work of
their own.

~~~
rtrunck
This isn't completely correct. It does work if the counter-suit claims are
valid and encompassing - sanctions in the legal process can provide
significant leverage, especially because the "patent-trolls" are heavily
involved with patent attorneys.

~~~
Create
It doesn't work because of the _portfolio effect_.

"Reback often tells the story of how a team of IBM patent lawyers went to Sun
Microsystems Inc. in the 1980s and claimed that the then start-up was
infringing on seven of its patents. After Sun engineers explained why they
were not infringing, the IBM lawyers responded that with 10,000 patents, they
would be sure to find some infringement somewhere." -- The Washington Post

<http://www.nosoftwarepatents.com/>

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kevinpet
I think it's interesting that everyone is assuming it's a bad software patent.
Here's the chain of reasoning I see again and again, and I don't buy it:

1\. Some software patents are vague, overbroad, or not novel. 2\. This is a
software patent. 3\. This patent is vague, overbroad or not novel.

It doesn't logically hold up. You may want to argue that we shouldn't have
software patents as a matter of principle, but pointing to examples of bad
patents doesn't prove this. The guidepost for me is RSA. To me, if you have
patents, then RSA should be patentable. It was novel, it was useful, and the
fact that it could be implemented in software doesn't change that.

This being about _software_ patents is coincidental. This same story could be
told by a tool manufacturer, or an MP3 manufacturer, or anyone else. The real
issues are whether the patent is valid, whether they are infringing, and then,
if we find that we don't like the consequences when all is played out, figure
out where the breakdown between what is really good for innovation and what is
actually happening is.

If you want to say no software patents, then someone needs to come up with a
strong argument why a new way to build an amplifier that improves sound
quality should be patentable, but a new way to compress audio files that
improves sound quality should not be.

There's a lot that could be done with patent reform to make things better, but
doing away with software patents is orthogonal to this.

Business practice patents are a different story. Most of them don't patent a
"how to do X", they patent a "wouldn't it be cool if we did X". My example is
that Amazon One-click was trivial to implement. There was no "how". The proof
of this is that B&N worked around it by going back in and adding a second
click. You couldn't work around a good patent in this kind of way.

~~~
akeefer
As a developer, the main problems with software patents are that 1) pretty
much any combination of things you're doing could currently be patented by
someone else, 2) it's impossible to tell if you're infringing something until
you get sued, and 3) things that should be filtered out by the "obviousness"
principle aren't, such that you're constantly in danger of stumbling onto a
patent just by solving a problem.

A patent is a very, very, _very_ sharp tool: it grants someone monopoly rights
to that "invention" for 17 years (or 20, if it's international). Anything that
most people could come up with inside 2 days, or even 2 weeks, of thinking
about a problem shouldn't be patentable; that's ludicrous, and counts as
"obvious" in my book. Things that are obvious combinations or extensions of
existing inventions aren't supposed to be patentable.

So a lot of this software/business patent nonsense would go away if the patent
office would apply a more ruthless standard of patent obviousness. Most
software patents are things that at least 10% of the engineering population
would come up with inside a week of trying to solve the same sort of problem;
many of them are the sort of thing that 90% of engineers would come up with
inside 4 hours. That doesn't apply to RSA, or to MP3, or to most algorithmic
things, but it does apply to things like "method for holding online auction"
or "method for allowing purchaser to assemble a shopping cart" or the other
ludicrous sorts of things people patent.

So I totally agree, RSA should be patentable: it's a non-obvious invention,
and if you're using RSA without their permission there's a 100% chance it's
because you stole it/reverse engineered it. But most software patents are the
sort of thing you accidentally stumble onto in the course of solving the same
sets of problems, and patents were never intended to (and should not) preclude
other people from solving those same problems. You can't patent the idea of
holding an auction in meatspace, but suddenly because it involves software
it's patentable? Etc. Most software patents are much closer to business
process patents than to mechanical patents.

Personally, I'd settle for simple ruthless application of the obviousness
principle. The USO PTO granted more than 40,000 software patents last year. If
you only included things that were really novel, that a decent engineer
wouldn't come up with on their own in a few days or weeks of thinking about a
problem, and that you'd have a hard time accidentally infringing, I bet that
number would be more like 500.

Keep in mind, there are plenty of other things that aren't patentable: story
ideas, for example. So yes, you're going to draw an arbitrary line about
what's patentable, but that's the job of congress and the patent office: to
draw that line in the place it maximizes utility.Remember, there is no natural
right to a patent in the US. Congress has the power to determine what's
patentable and what's not, and is explicitly directed by the constitution to
do so in a way that maximizes progress. The way it's done for software
_hinders_ progress right now.

~~~
kevinpet
You say that you approve of RSA because if someone is using it, its inevitable
that they learned of it from RSA. I don't think you'd have to go that far to
say what's worth patenting. I think that's the purpose of patents -- to make
people disclose worthwhile discoveries so that others can benefit from them at
a fee -- but they can't be structured that way legally, because unlike
copyright, it's very hard to show the origin of ideas.

What makes a patent a bad patent is usually that it's on the idea of what's a
good idea to do from a business perspective, and once you've realized that,
hey, online auctions are a great idea, the mechanics of writing the code is
pretty straightforward, as you say.

I'm not clear how things are de facto in European law, but from reading
<http://en.wikipedia.org/wiki/T_258/03> it looks like at least some people are
on the right track -- you can patent something involving software, but only if
you innovation is technical in nature, not a business innovation that involves
a lot of technical details to implement.

------
akeefer
We've had the same thing happen to us, though in our case there was no attempt
to negotiate beforehand or to buy us out: we found out we were being sued when
the other company issued a press release about it. Classy. They're just trying
to put us out of business through a combination of lawyer fees and scaring off
potential customers. Thankfully, it's not working.

It's amazing how many resources lawyers suck up, and how long patent lawsuits
last (we were sued in December 2007, and we're still nowhere near trial). It's
easily the sort of thing that can cost millions of dollars to fight, which is
obviously the sort of expense that can put a startup out of business.

However, I'm not too hopeful anything will get done about it any time soon: it
seemed from the discussion the other day that the HN community wasn't even
solidly against them, and if this kind of community isn't, then the anti-
software-patent movement clearly isn't mainstream enough to make any kind of
impact yet.

