

It’s only a few lines of code, or a button… pay up - bootload
http://www.lodsys.com/1/post/2011/05/q-its-only-a-few-lines-of-code-or-a-button-it-doesnt-make-sense-that-it-should-cost-additional-money-to-do.html

======
maqr
> Oil companies do not drill on land where they don’t have the rights. Movies
> aren’t released that don’t clear all the music rights. Clothing
> manufacturers license logos from Disney or the NFL to include them in their
> product.

It's pretty hard to drill on someone else's land, use someone else's music in
a production, or use someone else's logo without realizing it. Software
patents are nothing like this.

Software patents would be more akin to it being patented for an oil company to
drill with a very hard diamond bit, or a guitarist to hold their guitar a
certain way during a solo, or perhaps a clothing manufacturer to wash their
jeans for a more rugged look.

Maybe other industries do have patents like these, but I certainly never hear
about them.

~~~
bruce511
>> Oil companies do not drill on land where they don’t have the rights. Movies
aren’t released that don’t clear all the music rights. Clothing manufacturers
license logos from Disney or the NFL to include them in their product.

> Software patents would be more akin to it being patented for an oil company
> to drill with a very hard diamond bit

It's even worse than that.

If you want to drill for oil on some land, then you need to get rights to
drill on _that land_. A software patent though prevents you from drilling on
_any_ land. It's not a right to the oil that's in question, it's a right to
drill at all. A software patent is akin to "we've patented searching for oil".
No wait, why stop there, let's patent "Digging a hole in the ground". You
wanna plant a tree over there? Yeah, sure, digging a hole to put it in is
kinda obvious, but I've got the patent on digging holes.

The problem with patents is when they move from patenting a "true invention"
(and yes, that could be software, like say a better compression algorithm) to
patenting the "obvious". therein lies the rub - who determines the legal
standard for "obvious". Is Bitblt'ing obvious? Is Public-Private-Keys? Is
buying-something-with-a-click?

Given the impossibility of defining the "obvious" I'm in favor of just
dropping the whole sorry mess, and going back to the days when _machines_ were
protected, the implementation of ideas, not the ideas themselves. Yes programs
are copyrighted, but not code-snippets.

~~~
anamax
> A software patent is akin to "we've patented searching for oil". No wait,
> why stop there, let's patent "Digging a hole in the ground". You wanna plant
> a tree over there? Yeah, sure, digging a hole to put it in is kinda obvious,
> but I've got the patent on digging holes.

Actually, it's not, and that's the sort of thing that makes folks who actually
know about patents dismiss much of the software patent rants.

Take the RSA patent. It just covers the use of a specific set of algorithms to
do a specific task. It does not cover using those algorithms to do other tasks
or other algorithms for doing said task.

In that, the RSA patent just like the Viagra patent. If you can figure out how
to use the Viagra compound to shine shoes, you can patent that, and the pharma
patent doesn't apply.

~~~
jerf
Yes, it is like that. Consider when Amazon successfully sued Barnes and Noble
for the One-Click patent. In what way did Barnes and Noble infringe? They do
not share databases. They do not share implementations. They do not share
architectures. They each independently had to implement it, and given the
systems we can safely assume a minimum of hundreds of manhours of
implementation each, with the bulk of those hundreds of manhours not actually
being the "single click" implementation but drudgery of making it work with
their unique system. In each case I guarantee the relevant code in both
implementations is _orders of magnitude_ larger than the patent itself, which
by simple information theory means that the patent is only a small part of the
whole.

And yet, the patent is violated, and they had to stop.

Amazon does not have a patent on the implementation they have for One-Click
purchasing. They have a patent on the _idea_ of One-Click shopping. There
apparently exists no alternate implementation of One-Click shopping that will
not violate the patent, because by any remotely sensible standard that would
permit such an alternate implementation, Barnes and Noble _must_ be able to
meet it. (If somebody had cracked into Amazon's system and sold Barnes and
Noble the one-click implementation, _it would have been useless to them_.)
This is a fundamental perversion of the system. Patents are supposed to
encourage innovation by enticing people to create their own alternate
solutions, but in software, and more or less _only_ in software, you _can_
patent ideas.

And if you want to claim that this is not true, I would ask you to explain
exactly how Barnes and Noble violated the patent in any other manner, given
what I've said above.

I'd also observe that this patent probably falls under this rubric, too.
There's no way to implement "buying from within an app" that will not trigger
litigation. This is ridiculous. As I said yesterday, maybe programmers
overreact to patents vs. most other industries because we are being abused by
them, but I'm willing to try living without them and worry about any problems
that result later.

~~~
anamax
> Consider when Amazon successfully sued Barnes and Noble for the One-Click
> patent. In what way did Barnes and Noble infringe? They do not share
> databases. They do not share implementations. They do not share
> architectures.

So? The patent is on a mechanism for one click shopping. Like all patents, the
mechanism is described as abstractly as possible while avoiding prior art.
(The doctrine of equivalents is settled law wrt every other kind of patent.
Why do you think that it shouldn't apply to software?)

Implement one-click shopping with a different mechanism and the patent doesn't
apply. The patent also doesn't cover using one click for anything else.

> In each case I guarantee the relevant code in both implementations is orders
> of magnitude larger than the patent itself, which by simple information
> theory means that the patent is only a small part of the whole.

You write that like it's important - it isn't, at least not wrt any other kind
of patent. Why should software be different?

> They have a patent on the idea of One-Click shopping.

You seem to think that patenting an idea is somehow wrong. Since every patent
covers an idea ....

> There apparently exists no alternate implementation of One-Click shopping
> that will not violate the patent, because by any remotely sensible standard
> that would permit such an alternate implementation, Barnes and Noble must be
> able to meet it.

I haven't read the claims (and I'll bet that you haven't either), so I can't
say whether it covers every possible implementation, but even if it did, so
what? That's the goal of every other patent as well. Why should software be
different?

I suspect that you also think that "the abstract mechanism is obvious if
you're trying to do one-click shopping" is meaningful - it isn't. In every
other domain, novelty can come from asking a new question, such as "wouldn't
one-click shopping be a good idea?" Again - why should software be different.

> Patents are supposed to encourage innovation by enticing people to create
> their own alternate solutions, but in software, and more or less only in
> software, you can patent ideas.

The above is wrong on almost every detail.

Patents have nothing to do with encouraging people to create alternative
solutions. They're about disclosure and blocking free-riders. And, as I wrote
above, every patent is an idea patent.

~~~
jerf
"Implement one-click shopping with a different mechanism and the patent
doesn't apply."

 _What_ different mechanism? What different mechanism implements one-click
shopping that isn't one-click shopping?

I'm serious. Lay it out for me. Then, if you manage to get that far, explain
what your difference has that the B&N implementation didn't have. Don't just
handwave.

"I haven't read the claims(and I'll bet that you haven't either)"

Wrong.

In fact...

"They're about disclosure..."

If you have any programming skills, you should go read the patent and see just
how much is "disclosed". First, sit down and sketch out what you would need to
implement in order to create a one-click ordering system. No, seriously,
sketch out the basic systems on paper. Then go read the patent. Then boil out
the legalese. Then observer that your sketch and what the patent contains has
roughly the same amount of information.

You are at a disadvantage until you do this, by the way, because like I said,
I _have_ read this, and several other such patents. You need to read at least
one before continuing on. And ask yourself the question, exactly how much help
are these patent applications in implementing a solution to the given problem
to one "skilled in the art"? This is part of the reason software patents are
so stupid, they almost all completely fail this test. You cited one of the
handful of counterexamples already, but an exception it very much is.

"Patents have nothing to do with encouraging people to create alternative
solutions."

You need to brush up on your patent defenses if you're going to spend any time
defending them. They're for the purposes of _promoting_ innovation, and the
stimulation of alternate solutions is one of the big ways they do this. It is
only a recent perversion of the goals of IP that they are solely intended to
serve as property and create gatekeepers and therefore allow people to _block_
innovation as they see fit.

~~~
anamax
> What different mechanism? What different mechanism implements one-click
> shopping that isn't one-click shopping?

As I thought, you haven't read (or understood) the claims. The claims describe
the mechanisms that the patent covers. Do one-click shopping with a different
mechanism (that is, eliminate and/or replace one or more elements), and you're
home free.

I don't know, or care, what mechanism B&N was using. (I'm guessing that you
don't know either, so ....) I do know that some combination of B&N's lawyers
and a court decided that B&N had used a claimed mechanism. If so, that's the
result that we'd want from any other patent, so why is software different. (If
B&N didn't actually use a claimed mechanism, that's a different problem, but
again, that wouldn't be anything different about software patents.)

> If you have any programming skills, you should go read the patent

I've both (significant) programming skills and some familiarity with patent
law. (I've even written a couple.) Moreover, I have read the patent.

> You are at a disadvantage until you do this,

Not to anything that you've shown.

>> "Patents have nothing to do with encouraging people to c>reate alternative
solutions."

> You need to brush up on your patent defenses if you're going to spend any
> time defending them. They're for the purposes of promoting innovation,

You need to brush up on your understanding of basic English and/or logic.
"create alternative solutions" is not the same as "promote innovation". It is
one way, but it is not the only way, so whether a given patent encourages
"create alternative solutions" or not is irrelevant. Patents encourage
innovation by rewarding it.

> It is only a recent perversion of the goals of IP that they are solely
> intended to serve as property

That's simply absurd and has no basis in history. Patent assighment is not
new, and that's a fundamental characteristic of "property". Moreover, US
Patents have always worked by restricting what other people can do. That's how
they funnel money to inventors and the folks who support them.

There's a reason why I mentioned AG Bell. What do you think that the telephone
patent lawsuits were about if not "gatekeeping"?

It's perfectly reasonable to think that there might be more effective ways to
promote innovation or to reward inventors, but that doesn't entitle you to
misrepresent how patents actually work.

------
reitzensteinm
I could maybe buy this line of reasoning if the inventor in question was a
true visionary that foresaw in app purchasing, and laid out a roadmap for
everyone to follow.

But the thing is, the patent is an invention of something completely different
- customer satisfaction surveys on fax machines - and has to be interpreted in
the most general way possible to even approach covering what they're seeking
licenses for.

This patent has added zero value to the iPhone developers it is targeting.

~~~
flipbrad
The other thing is that I frankly don't see many reports of people using out-
of-date patents as roadmaps for anything!

------
extension
_"This ideation, as expressed in the patent, enabled a building block for
others to build on and create more value."_

And right in the next paragraph...

 _"Many industries study the IP landscape prior to releasing a product or
service and either design around or acquire necessary patent rights if they
need them to do their solution."_

So we need to hire lawyers to research whether we are inadvertently building
on the ideas of others?

The patent trolls are now justifying patents by explaining exactly why they
are unjustified.

~~~
jcromartie
This is the core of it: Dan Abelow's "ideation" has _absolutely no influence
whatsoever_ on the tech industry. Nobody _cares_ about his "inventions".
Nobody took any spark of inspiration from Dan Abelow.

But if I, sitting in a room with nothing but my own mind and a keyboard,
actually WRITE THE F&#@ING CODE that is covered by one of these patents, then
someone _who never did an ounce of work actually implementing it_ will come
along and demand a fee.

How can anybody think that's a reasonable system?

------
reader5000
I like these trolls trying to rationalize their trolling by attempting and
failing to sound intellectual. The thing is 99.9% of software patents were
obvious at granting and therefore invalid, this being one of them. I highly
doubt the creator of this patent invested anywhere near the resources to
actually "discover" the patented "invention" that these trolls are seeking to
extract through abuse of the legal system. I hope somebody in Congress is
paying attention to these hijinks, but I know Congress is too occupied with
making bittorrenters felons.

------
numeromancer
Do not take this article too seriously. It is not an article in the old-
fashioned sense, but an experiment in post-modern essaying. The paragraphs
were written by 9 separate undergraduate freshman, in separate places across
the English speaking world. The students had no contact with each other before
or after the essay.

------
AeroQ
Lodsys uses a web design from <http://andreasviklund.com/> without crediting
him!

------
dominikb
It's clear that their goal is to force Apple to acquire their patent
portfolio. Clever trolls.

~~~
Tyrannosaurs
You say that but it's not just Apple that's being talked about - they've
pointed out that Google and Microsoft have also licensed the technology and
other large companies such as HP have been contacted about the fact that they
haven't.

This isn't an Apple issue, this is an industry wide issue. Apple owning the
patent would make the issue go away for Apple but it might actually make it
worse for other app stores (if Apple decided to be a dick about it).

On the surface this feels remarkably broad and uninnovative as patents go
(similar to the Amazon one click one which I believe was recently said to be
invalid - potentially pending an appeal from them).

If this is the case (and it's hard to know without knowing more detail and
more law than I do) then it really needs to be fought and overturned.

It would be nice to see the big players - Apple, Google and Microsoft -
setting up some sort of fund to allow the small developers to fight this
properly for everyone's benefit.

The actions of patent trolls might be curtailed if they knew that there was a
distinct possibility that the next letter they sent off to a one man software
house was going to be met with an army of the most vicious lawyers money can
buy queuing up to kick your ass from here to kingdom come.

Does US law allow for 3rd party funding of such cases?

~~~
ZeroGravitas
Lodsys say that Apple, Microsoft and Google are "licensed", but they don't
make clear whether those companies actually paid for a licence, or if they
were granted it freely by Lodsys as part of a PR campaign to make them look
bad for abandoning their developers.

~~~
Tyrannosaurs
Lodsys don't care about making Apple look bad.

They're patent trolls, they care about making money. If anything they'd want
to avoid upsetting Apple because the minute Apple's legal and financial muscle
gets involved things are a lot lot harder if you're Lodsys.

~~~
ZeroGravitas
Not if Apple's "financial muscle" decides it's easier/quicker/cheaper to buy
Lodsys out than to let the uncertainty hang over their developer community.
They're fairly clearly communicating "we are only in this for the money" in
their blog posts. They clearly have been thinking of the best way for them to
make money from these patents (which IV used to own but clearly didn't feel
they could profitably licence or sue on the basis of) and creating PR problems
for Apple that can be solved at a high price seems pretty good to me.

------
jcromartie
"Dan Abelow is an independent inventor who visualized/created metaphors,
documented for the world to see (in exchange for exclusivity) and created
value for doing so."

Dan Abelow sounds like a self-aggrandizing jerk when he talks about himself in
the third person.

~~~
barrym
I'm not sure it's written by Dan Abelow -
<http://daringfireball.net/linked/2011/05/13/honan-lodsys> and
[http://www.lodsys.com/1/post/2011/05/q-what-is-dan-
abelows-i...](http://www.lodsys.com/1/post/2011/05/q-what-is-dan-abelows-
involvement-is-intellectual-ventures-behind-lodsys-or-controlling-lodsys-in-
some-way.html)

~~~
jcromartie
Then someone must just really like him, since he's mentioned by name on most
pages.

------
sudhirj
What happens if all the iOS developers gang up and file a class action suit to
have the patents reconsidered?

~~~
dominikb
It will take a year to reconsider. Apple needs to act quickly and aggressively
on this to show the public and media that they stand behind the developers.
They can't let the App Store become a feared, shady, legal-gibberish
ecosystem.

~~~
sudhirj
Very true. I find it disturbing that they haven't already issued a statement
about this - I would have thought they'd scramble to get out a statement
saying that they're aware of the situation and are considering options.

~~~
foobarbazetc
Only in magical HN land do companies "scramble" to address issues like this.
The best thing to do is to pretend these companies don't exist and you've
never heard of them, their patents, or what they're up to.

Once your patent lawyers have had time to study what's going on, then you're
ready to do something.

It's not "disturbing" at all. It's just common sense.

~~~
mechanical_fish
Yes. It is quite possible that Apple's patent lawyers _are_ scrambling. It's
just that scramble-speed in legal land is weeks, not hours.

Lawyers can read and write at superhuman speed, but it still takes time to
prepare all that material and do all that research. It's not a field that
rewards those who shoot from the hip.

------
Derbasti
This makes me sick. I don't care whether this is legal or not and whether this
is morally justified or not. It plain makes me sick.

