
One of the worst patents ever just got upheld in court - alsothings
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/24/one-of-the-worst-patents-ever-just-got-upheld-in-court/
======
btilly
Ah, this decision is from the U.S. Court of Appeals for the Federal Circuit.
Totally expected, and we need to get rid of that court.

For those unfamiliar with the history, that is the court that all patent cases
go to. They've been co-opted by patent lawyers, and decide very much in favor
of patent holders. Every so often the Supreme Court takes the time to review
one of their decisions, and inevitably overrules them. So in their next ruling
they find a way to pay lip service to the Supreme Court while ignoring what
that court said.

So the rhythm goes like this. You go to your local court, and win or lose
based on the jury. Then if the patent holder does not like the decision, you
go to the U.S. Court of Appeals for the Federal Circuit. And pretty much
inevitably will win. If the challenger is very, very lucky, the Supreme Court
will have time to hear the case. And you'll get a balanced decision for the
challenger. (I mean that literally. The Supreme Court does not have time to
hear many of these, so they just pick the most egregious, and issue a balanced
decision. But since they picked egregious cases, the patent holder always
loses.)

If we could just replace the one court in the middle with one that actually
listened to the Supreme Court, then patent trolling would be dealt a fatal
blow. I shudder to think of how much its existence costs legitimate business
in this country every single year.

~~~
ajb
That isn't what the article says, though: 'As patent scholar Mark Lemley put
it on Twitter, “we’ve got two Federal Circuits on this issue, and it seems to
depend on the luck of the draw"'. Mark Lemley is a high profile (sceptical)
patent scholar. If he is correct, then there are some voices of sanity on the
Federal Circuit. The question is, is the influence of the voice of sanity
increasing or decreasing?

~~~
DannyBee
It's about the same. At least one of the newly appointed (in the past 3 years)
judges is rabidly pro-patent

In this case, the decision is by chief judge radar, who believes the court's
goal should be to strengthen intellectual property protections.

How do i know this?

He told me (and the rest of the class) this, when I took his class on the
federal circuit in law school many years ago.

Silly me, of course, always thought courts were there to decide law, not have
policy goals.

In any case, this is one of a long line of the federal circuit giving the
middle finger to the supreme court. Judge radar and others basically believe
the supreme court is not helpful to them when they are trying to create rules
practitioners can follow, so he tries to ignore them when possible.

He also cites his completely ridiculous reasoning from CLS Bank:

    
    
      At bottom, with a claim tied to a computer in a specific 
      way, such that the computer plays a meaningful role in the 
      performance of the claimed invention, it is as a matter of
      fact not likely to pre-empt virtually all uses of an   
      underlying abstract idea, leaving the invention patent  
      eligible
    

I'm not even sure how he can say this with a straight face.

~~~
inafield
Couldn't such words as what he said in your class be evidence that he is in
some form of contempt of court for not ruling unbiasedly?

~~~
rayiner
There is nothing unbiased about having a judicial philosophy. "Bias" means you
unfairly favor one party in a particular case over the other. Lack of bias
does not require that you approach each case as a tabula rasa.

For example, I imagine lots of people on this website would be happy if a
judge took an expansive view of the 4th amendment and asserted that was
important for courts to strengthen 4th amendment protections. And that would
be totally okay.

------
austenallred
The first few lines of the article speak to the closest snake to kill for
patent legislation: You don't have to patent an _invention_ , just an _idea_.
This goes above and beyond the typical patent trolling of, "Well we bought the
patent for x from whomever built it first, even though that technology is
ubiquitous..." to "Let's see what general concepts are so obvious that no one
has bothered to patent them."

My brother was starting a real estate app company and was sued for breaching
the patent that allowed one to "find an address using a mobile device." The
patent was filed in 1989, with no technology behind it whatsoever, just
someone saying, "You know, I bet in the future someone will..."

You could patent "a car that flies in the air without touching the ground"
today without having any idea how to build it (except I'm sure that's been
patented). That should be step one for legislators to kill.

~~~
alok-g
A patent is technically also required to teach to a person skilled in the
prior art on how to build the invention.

Here is an excerpt from [1]: "Second, if the inventor did possess a best mode,
it must be determined whether the written description disclosed the best mode
such that a person skilled in the art could practice it."

I have heard that the recent changes to the US patent laws have weakened this
[2], though I have never read the details.

[1]
[http://www.uspto.gov/web/offices/pac/mpep/s2165.html](http://www.uspto.gov/web/offices/pac/mpep/s2165.html)

[2] [http://www.patentlyo.com/patent/2013/05/best-mode-only-
mostl...](http://www.patentlyo.com/patent/2013/05/best-mode-only-mostly-
dead.html)

------
TheMagicHorsey
This problem won't be solved until software engineers organize, go to
Washington DC, and demand reform. If we don't do that, our competitiveness
over the next decade is going to take a hit. Its not like everyone in the
world is loaded down with the same kinds of legal costs that we suffer here in
the states. Chinese, Indian, Australian, New Zealand, Latvian, Estonian, and
Brazilian startups are not a huge threat to us now ... in the future they will
eat our lunch if our country fucks us in the ass like this moving forward. Why
is an investor going to give me money in Silicon Valley, knowing I'm going to
get taxed by a dozen or more trolls. He's going to take his money and shop for
a foreign team first ... not now ... but in the future when economic
incentives bring those teams into existence abroad. Little things like this
start the snowballs rolling down the mountain that turn into an avalanche. We
think we are the center of the world right now. We sleep on our success,
tomorrow someone else will eat our lunch.

Right now these patent laws are being used to tax engineers in order to pay
lawyers. The lawyers produce nothing. The laws are set up so we can't do
business without shelling out thousands and thousands of dollars to them
monthly. This makes it so its harder for us to bootstrap. When we try to get
to MVP our attention is divided from the things that matter to all this other
bullshit that the lawyers have cooked up. If you are lucky to get a good
lawyer, maybe you don't have much of a headache.

But even with the best lawyer, if you see some modest success, the leeches
come out of the swamp to suck at your blood ... I mean the patent trolls, and
various other lawsuits. The laws make you a criminal no matter how honestly
you do your work. You could sit in a clean room and make something all on your
own. When you emerge, the leeches will still be granted a right to suck at
your revenues. That's how this blasted patent system works today.

Are we going to organize ever and reverse this trend? Probably not. We are all
too busy trying to run businesses. You know who isn't busy? You know who has
every incentive to spend every waking hour in Washington DC to make sure
nothing changes? The patent trolls and the patent lawyers.

As we say after playing a game of Starcraft: GG.

~~~
rayiner
Appealing to the "engineers versus lawyers" dichotomy is a predictable play,
but not really one rooted in reality. To use copyright law as an example, it
wasn't the copyright trolls that created the modern "copyright infringement is
a crime!" regime--it was Adobe and Microsoft and all the engineering companies
that lobbied to get software pirates treated like arms traffickers. Similarly,
it wasn't patent trolls and patent lawyers that created the modern patent
regime--it was the IBMs and GEs and Mercks of the world.

I do agree about your general point, which is that the new generation of
engineering companies should lobby for reforms that they think necessary.
Though I'd be interested to see if they have the same sort of principled
objections to the trademark regime that is the bedrock of the advertising
industry that is now their lifeblood.

~~~
WildUtah
Trademark? Why would that be a problem? Sure, any complex system has some bad
cases, but we don't see thousands of innovative companies shaken down and
destroyed for the corrupt benefit of trademark litigators.

Likewise there are problems with copyright, but -- unless you're really an
infringer -- not on one thousandth the scale of patents. And boat hull
registratons, trade secrets, plant breeders' rights, design patents, and trade
dress are similar. It's only utility patents that are rotten and
systematically corrupted.

------
roc
That the court doesn't find these claims any more broad or abstract than any
other is more a condemnation of the status quo for these kinds of patents.

Because, truly, this one _isn 't_ egregiously bad in its phrasing. It's at
least as well-defined as any number of such patents that have held up under
re-examination.

And therein lies the larger problem.

~~~
gweinberg
Exactly. This is a typical "business method" patent.

------
DanBC
Wait? I thought patents required a working prototype. If that's not the case
I'm going to patent everything, but with quantum computers. And then
everything, but with nanotechnology.

~~~
alok-g
Note: IANAL

>> I'm going to patent everything

See my comment here:
[https://news.ycombinator.com/item?id=5934890](https://news.ycombinator.com/item?id=5934890)

The following are the requirements for filing a patent:

1\. Usefulness

2\. Novelty: The invention must not have existed from before

3\. Non-obviousness: The invention must not be obvious to those skilled in the
prior art.

When filing a patent application, you are required to describe the invention
in full, including the best mode.

So while a working prototype is not required, satisfying 1, 2 and 3 above is
still theoretically hard and requires a lot of work for filing a good patent.
The issue is that the system is abused as each one of 1, 2 and 3 are
subjective more or less.

While not explicitly stated, I believe the concept described in the
application must be correct [1]! Since a prototype is not required, it is
sometimes the case that things that do not even work the way inventors thought
get the patent granted anyways.

Finally, just for completion sake, there are things that cannot be patented
like laws of physics, theorems in mathematics, and material that is a subject
for copyrights instead.

[1] I am not sure of this. There may or may not be specific legal criteria on
this.

------
skwirl
It sounds like this court is saying:

A. Abstract and not patentable: "Instead of charging your audience for your
service, allow others to advertise to them via your service and charge the
advertisers."

B. Patentable and not abstract: "Instead of charging website users for the use
of your website, allow others to display advertisements on your website and
charge the advertisers."

There is something about patents that seems to melt the brains of certain
judges.

~~~
flixic
A can apply to anything, like car wash or cinema. B is limited to websites.

Not that this patent makes sense even then, but B is much more limited.

------
dllthomas
So, let me preface this by saying I'm well aware this isn't the most important
issue here, by miles.

Having said that, is anyone else bothered by the (to my ear) misuse of "let
alone"? The phrase "Not X, let alone Y" is supposed to have Y be more extreme
than X, right? Implying "certainly not Y, because not even X, so we can let Y
alone and not even talk about it."

~~~
itsybitsycoder
Yep. People hear idioms, like the way they sound, and repeat them without
stopping to understand what they mean. In this case it's clear what he meant,
but sometimes people will string together a bunch of these occurrences and it
can become extremely confusing. I've read comments on HN where people are
mistakenly arguing the exact opposite of the point they're trying to argue,
because they're using their idioms the wrong way around.

------
vonskippy
Normally I'd be upset that another patent troll was winning in court - but
come on, this is about a slimy patent troll that will be suing even more slimy
advertising scum. I have to say I'm on the fence on this one.

~~~
moomin
Except WildTangent isn't scrappy ad farm, it's a games company.

~~~
goldfeld
Regardless, I don't side with advertising models, they're what got us into
this whole collecting data as a business hole, so if these scumbags can
prevent companies from getting revenue from ads and thus encourage them to
seek actual decent business models (as a non-intended adaptative collateral
effect), I'd think it's one evil doing us good.

~~~
drawkbox
Every TV show, magazine or newspaper you liked, watched or read is the result
of advertising. The internet is no different except that it is a larger market
where you make less with advertising. Yes old model ads suck even on Hulu Plus
you get them, but content costs are high without them or may not even exist.
Many a good shows would have not existed. Advertising has been an engine to
creative entertainment + information.

~~~
goldfeld
I haven't read newspapers or magazines in a long, long time, and TV shows I
could easily live without (don't watch any in close to a year), especially if
we had indie shows with interesting business models to replace them. I'd
gladly pay for my content, but I think there's other models to be explored
without appealing to ads. Ads are everywhere because they're easy to put to
work, and the payout is potentially really high (if you're ok with helping big
corps, their investors, and the centralization of wealth.)

~~~
ShawnBird
There have been a lot of indie shows popping up via Kick starter funding. Here
are two off the top of my head:

[http://www.kickstarter.com/projects/freddiew/video-game-
high...](http://www.kickstarter.com/projects/freddiew/video-game-high-school-
season-two)

[http://www.kickstarter.com/projects/pemberleydigital/the-
liz...](http://www.kickstarter.com/projects/pemberleydigital/the-lizzie-
bennet-diaries-dvdand-more)

------
danbruc
What about this? Why not only grant a patent if you can prove that you
invested a considerable amount of time and/or money to come up with the
invention? This protects the often cited expensive research done by pharma
companies and puts a stop to all the patents on problems with trivial
solutions once you have to deal with the problem. And you still have the
first-on-market advantage if you are the first to come up with a trivial idea
although you have no patent for it.

Can you think of good examples where this will not work, where we really
should grant the patent but coming up with the invention was neither time
consuming nor expensive? Of course, proving how much the invention cost you
and that it could not have been done with considerably less effort is a non-
trivial problem on its own.

------
DigitalSea
The U.S. Court of Appeals for the Federal Circuit is the equivalent of a
bicycle with no wheels or chain: completely useless and I think we need to get
rid of it. For those who are familiar with the Court of Appeals in this
instance, this decision will hardly surprise you. Comedic incompetence at its
finest here, folks.

------
drawkbox
When newspapers + magazines used to fund content by showing ads before TV
existed, imagine showing TV ads as a patented innovation and how that would
have destroyed lots of content. It was an obvious progression to fund content
online supported by ads. This decision is absolutely wrong. Greed over real
innovations.

------
atarian
Suppose I wanted to create a startup and not have to worry about infringing
software patents. What would be a sensible way of going about it? Or would I
have to move to a different country?

~~~
fpgeek
Sell out the the first big tech company interested?

Make sure one of the co-founders is a kick-ass patent lawyer?

Don't?

Moving to another country is problematic. Other countries have their own
software patent quagmires too (though, admittedly usually less developed
ones). You're also probably going to want to sell to US customers at some
point and then...

In the past, I'd have said don't make money, but in a world where patent
trolls target end users of things like scanners, I no longer think that's
enough.

More seriously, there's just too much risk and uncertainty with software
patents. I think the only realistic option is to accept that risk and move on
with the rest of your startup.

------
zk2
how long until building a site is patented?

~~~
mtgx
That's why it's so good the vast majority of web technologies are open/open
source. I can't imagine an Internet where most of the technologies would be
proprietary. It's for the same reason why I'm so up in arms against
proprietary video codecs, and why I hope we'll move to an open source one
sometimes soon.

~~~
hmahncke
That may be a good thing, but open source doesn't mean non-patent infringing.

~~~
muyuu
It often does. When an OSS establishes a new system/standard, prior art
invalidates any future patent on it.

~~~
mpyne
If one is careful you can even take steps to actively invalidate prior art.
You don't need to just make a new standard either, we've already seen people
get away with patently new ways to do the same old thing.

Look up Open Invention Network when you get a chance. The idea is to simply
publish the general techniques you use to solve a given problem in a fashion
that's easy to search, as a defense against people later trying to patent the
same idea.

------
graycat
Okay, here's my argument against computer software patent trolls. Since IANAL,
attacks from knowledgeable readers are requested although I can't promise a
good response because I know next to nothing about patent law although am
learning and if my start up works may have to learn.

Dear Patent Court Judge:

Don't worry, I'm not going to throw rotten tomatoes at you now. And, no, I
didn't slash the tires on your BMW 7 Series.

But here's what's wrong with likely most software patents (or patents on
devices consisting of routine computer hardware but with some new software).

We start with three parts: (1) Real problem to be solved. (2) Some "abstract"
ideas for how to solve the problem. (3) Using the abstract ideas, some
software to solve the problem. The users/customers use the software.

Okay, now we understand that solving real problems (1) is important but that
we can't patent abstract ideas (2).

For more clarity an abstract idea might be just how to manipulate some data in
a way a clerk could be taught to do. We can't patent the clerk or their work,
right?

Well, for more, the abstract idea might be some applied math or some of the
math of physics or engineering. Since that's abstract stuff, we can't patent
it, right? Moreover, before computers, mathematicians and scientists commonly
did such mathematical manipulations by hand arithmetic, that is, with paper
and pencil. No opportunity for patents there, right?

So, on to the software (3): Assume, as is usually the case, the software is
just something routine (for software) to have a computer do the data
manipulations specified by the abstract idea, what we could teach a clerk,
what's in the math, or what the person with the abstract idea 100 years ago
likely did with paper and pencil. That is, the person with the abstract idea
100 years ago could tell a clerk how to do the data manipulations and not get
a patent but now can tell a computer how to do the same data manipulations but
get a patent? Something's fundamentally wrong here.

In particular, assume that without the abstract idea, the clerk would have no
idea at all how to do the data manipulations and the computer programmer would
have no idea at all how to write the software. So, all that's crucial or
original is just the abstract idea and not the routine software. That is,
between (2) the abstract idea and (3) the computer software, only (2) is
crucial or original and (3) is routine.

So, with this scenario, why the heck grant a patent on the computer software
(3) when we can't get a patent on the abstract idea (2)?

But not all software is like that. Instead, some software is tricky stuff.
E.g., how the heck to backup a relational database while it is being used and
changed? One might argue that just how to do that could be, and really should
be, written up as an abstract idea and maybe even some form of math and, thus,
not be patentable, but sometimes all there is is the computer software. So,
maybe, maybe, I'm not fully sure, such software, or a computer with it, could
deserve a patent.

Generally, then, I conclude that most software patents have to be based on bad
thinking when we can't patent the crucial, logically prior abstract idea.

Finally, let me be helpful: When you get a case of a software patent, just
rule right away that the patent is invalid and take a nice long vacation with
the time you would have spent listening to nonsense about that case! Take
along some good hiking shoes or a good book!

