
The Patent Protection Racket - doty
http://www.joelonsoftware.com/items/2013/04/02.html
======
SomeCallMeTim
I just spoke with a friend about a time when his company was approached by a
patent troll.

The patent in question was granted in 2002 [1]. He had himself worked on the
technology under "patent" in 1998, and was able to find someone who had
published material as far back as 1995, and who was willing to send supporting
documentation and to, if necessary, testify.

He talked with his attorney, who agreed the prior art he'd found was spot on,
and that in legislation they'd be almost certain to win. But that it would
cost ~$3m.

The patent trolls also were going after names such as Amazon, Facebook, and
other huge companies. The troll was asking for $200k for a license from each
company. As far as my friend knows, they ALL settled (or at least many of them
had).

There were 15-20 names on that list. If they'd simply put the $200k-$300k of
"licensing fees" into a common pot and used that money to fight the troll,
then it would have done a small amount of good in defeating one troll's
patent.

But really the whole system does need serious reform. His suggestion was to
cause the patent trolls to have to PAY for legal fees if they lose a patent
challenge, though that would just encourage them to sue from individual
corporations that would declare bankruptcy on losing.

But I think software patents should simply be disallowed, or the bar raised
(somehow?) to exclude anything vague and hand-wavy. One thought I've had was
to _require_ an implementation of the process being patented. Then it would be
far harder to claim that your patent covers something only vaguely related,
and the patent would actually be _useful_ for its original purpose, which was
to put the knowledge into the public domain when the patent expires.

[1] I wouldn't swear to the dates; they're from memory. The approximate
order/scale is correct, though.

~~~
binarymax
If there is hard evidence of prior art, then filing an ex parte
reexaminiation[1] is certainly not $3M.

[1] <http://www.uspto.gov/web/offices/pac/mpep/s2210.html>

~~~
SomeCallMeTim
I thought Blackberry/RIM actually WON one of those, but then ended up paying
$300M anyway? The press reporting was unclear, but that's what it seemed like
had happened, which never made any sense to me. Maybe it was still pending an
appeal by the patent holder?

Again, I don't know enough of the specifics. I'll ping him and see if they did
that.

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te_platt
Can anyone here give (and defend) an example of a good patent? By that I mean
one that is non-obvious, novel, and clear enough to be able to be used to
build the claimed invention.

~~~
josephlord
I'll play: US20080002776.

[[http://appft1.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Se...](http://appft1.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220080002776%22.PGNR.&OS=DN/20080002776&RS=DN/20080002776)]

Although I no longer work for the BBC and have already received my bonuses for
the filing and granting (after I left the BBC) of this patent I have a
personal curiosity as the core inventive step was (I believe) mine although it
was greatly extended and improved by others with greater domain knowledge in
MPEG encoding. As far as I know it was a novel idea and wasn't obvious in
advance to experienced video encoding engineers.

The original idea was to treat encoding losses as errors/defects that can be
fixed or patched by additional data distributed separately. This was extended
to arbitrary enhancements and changes and potential implementations,
consequences and techniques.

I believe that there was a real non-obvious inventive step in considering
encoder losses as patchable bugs. Given that idea alone a (suboptimal)
implementation is relatively easy to create but was not obvious if the task
being discussed is using the early 2000's Internet to deliver better video
quality than broadcast (SD) TV could.

I am not aware of any current usage of the ideas in this patent or what
licenses the BBC may or may not have granted.

Edit: Time for me to sleep now, will check for any replies tomorrow.

~~~
scoot
This is where the patent process really falls down - subjectivity.

You consider the idea of treating compression loss as an error to be patched
as non-obvious, whereas to most on HN (being generally technical, even if not
in this field), that's probably, a "yeah, duh, and?" suggestion.

The implementation of that idea, and the techniques and technologies involved
may ultimately be novel, non obvious and patentable, but your argument boils
down to suggesting that "if it's broke, fix it" (in any particular subject
domain) is sufficient to warrant a patent, so doesn't meet the criteria
requested.

I think to be objective in answering the GP post you should probably suggest a
patent that isn't your own.

~~~
josephlord
Your point is a fair one and what is an obvious answer depends greatly on what
question is asked and also to a degree on timing. For me the key was
recognising that:

1) The lossy encoding could be regarded as bugs.

2) the losses are known by the broadcaster and preserved (without further loss
in a digital transmission system) to the viewers home.

Once the nature of the problem is described this way the idea does seem
obvious (at least to me with a largely Computer Science rather than video
encoding background) but that is not how issues are initially presented and
redefining the problem is a great deal of the inventive part.

I would still defend this patent's inventiveness but I fully agree that
obviousness is quite subjective

~~~
scromar
Also, a lot of times it is difficult to avoid hindsight bias. It may arguably
seem obvious now, in 2013, but it is hard to say what would have been obvious
in 2004.

Nonobviousness is judged as of the filing date, a fact that many seem to
forget.

~~~
scoot
That's a fair point, and hindsight bias can play a part in downplaying even
recent innovations, which may seem obvious only after the fact. I don't think
that applies in this case, but setting that aside, my main argument (that what
counts as innovative, non-obvious etc. is subjective), I think still stands.

------
NotUncivil
On a related note, this is one of the reasons I prefer to use, and make,
Apache 2.0-licensed software. Its terms are similar to those of BSD and MIT
but it also includes a patent licensing clause.

~~~
law
So does GPLv3.

~~~
belorn
GPLv3 patent licensing clause was created as a copy/fork of the clause from
Apache 2.0 license, and then had an added statement about patent license
agreements.

------
csense
What if the startup uses a scorched-earth policy? Fight 'til the money runs
out, liquidating your assets and closing down the business piece by piece,
then if the troll wins, they get nothing because it's all been spent on
lawyers and there's nothing left for them to take.

~~~
paulgb
Then the startup loses. The troll assumes that the startup is rational and
won't do that.

It would be interesting to see what effect a VC could have if they started a
policy of not allowing their portfolio companies to settle with a troll and
funding them to fight. It might be expensive at first, but in theory once they
develop a reputation the trolls will know it will be an expensive and risky
proposition to go after their portfolio.

------
rbanffy
Patent protection rackets have been used for more than a business model: they
have been used as tools to pressure large companies into entering partnership
agreements.

Please see the second item of the list:
<https://news.ycombinator.com/item?id=5479381>

------
205guy
Given the article's opening paragraphs (small businesses and startups falling
prey to the trolls), I'm surprised there hasn't been an organized attempt to
inform people of the problem. Maybe I don't know about it and the author
doesn't mention it, but it seems like there should be a website that
categorizes the various players and their actions, with forums so victims and
potential victims can share their experiences. Once you have all the data
being collected in one place, then you can get the word out (how?) so that
people know to check online even before checking with their lawyer. It seems
like patent trolling is something that could be partially defeated with better
and more widespread information.

~~~
AnthonyMouse
I expect it's standard for the troll's "pay up and sign here to avoid ruinous
litigation costs" deal to include an NDA that would prohibit things along
those lines.

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mtgx
Isn't what Microsoft is doing with all the Android manufacturers basically the
same thing, too?

~~~
ZeroGravitas
I'm fairly convinced that it's mostly marketing and hot-air. After all Barnes
and Nobles managed to get 1/2 a billion dollars out of their legal fight with
Microsoft, it seems unlikely that Samsung would just roll over.

But signing a bit of paper that makes it sound like a bad idea for competitors
to enter Samsung's main money-making area and get some "marketing expenses"
from a rich but strategy-bereft supplier makes good business sense.

------
Nux
He's goddamn right! Patent system needs to die. Now.

------
shmerl
What's more important that even companies which actually produce something are
also engaging in patent protection racket. Such as MS, Apple and others.
That's why the term "troll" (i.e. racketeer) is not exactly the same as NPE.

------
samspenc
Its so awesome that more and more medium-sized companies are paying attention
to this! Patent racketeering needs to stop!

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abfan1127
It sounds like we need "Kickstarter for Fighting Patent Trolls"...

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nonamegiven
I see ads all the time on TV and billboards for DUI and settlement and
disability lawyers. "Get the result you deserve." I think many of them are
national firms, although they look local.

It seems that patent troll victims would be a great area for a firm to break
into.

------
dantiberian
It is very easy to say that a company should fight a patent lawsuit instead of
paying it up but that's not always possible. In many cases pragmatism is going
to be better than fighting in court for a small business, especially if the
likely court costs for the battle are going to exceed your businesses
accumulated lifetime revenue.

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mehdim
Are open web APIs becoming the new IT patents?
<http://api500.com/post/46951162382/apis-are-the-new-patents>

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mathattack
I like the photo from the Seven Samurai. :-)

