
Open-source Patent Troll - azoff
I've been writing open-sourced software for a few years now, and never in all these years past have I ever had another person threaten me with patent action on something that I provided for free - for the developer community. Just because I feel bad for this guy, I am not going to post his email address or name, but I will share the email that he sent me:<p>"""<p>Azoff,<p>My name is [ Mr. Troll ]. I am writing you from a company called RazDog.com. We have several patents pending for the rights to navigate like a smart phone on any web content deployed through a browser. We have software which we have had publically available for some time.<p>We have been made aware of your software which appears to potentially breach our patents pending.<p>I need you to call me to discuss options ASAP.<p>Your valuable time is appreciated.<p>"""<p>In case you are wondering, the software referred to by Mr. Troll is most likely a jQuery plug-in I currently maintain called OverScroll (http://github.com/azoff/overscroll). I first released it into the public domain back in 2009 (see: http://plugins.jquery.com/node/8738), about the same time RazDog was apparently in the music business and had nothing to do with user interaction on the web (see: http://web.archive.org/web/20090503201355/http://razdog.com/consumers_info.aspx).<p>Never, ever, in my time as a professional developer did I ever think I would have to deal with this blatant disregard for open-sourced contribution and innovation.<p>Mr. Troll, you are a vulture.<p>- Azoff
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wavesplash
Issued patent != patent pending. Patent pending has no legal standing and is
non-defensible. It just means something was submitted and may or _may not_ be
approved sometime in the future (possibly years from now). Talk to a lawyer,
but I'm pretty sure they'll tell you to ignore him. If the troll in question
hasn't actually submitted a patent you could sue for damages.

If you were hit with an actual patent claim, the first question you ask is
what is the patent # and which specific claims are they referencing. Then go
back to any referenced patents and see if the claims are unique to the new
patent. Of the unique claims then you can make a case if your product
infringes or not.

~~~
kronusaturn
As I understand it, defending a patent suit is _not_ cheap even if you're
completely in the right.

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wkearney99
Also note it's a crime to claim patent pending without an actual patent in the
process. Of which there would be a number. They really frown on making false
patent claims.

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gnok
Please do this the right way. Any issue concerning IP and claims of
infringement or violation of rights requires due diligence on both sides. At a
very minimum, you should read the transcript of Andrew Tridgell's talk on
patent defense at <http://news.swpat.org/2010/03/transcript-tridgell-patents>.

That your software is open-source is entirely orthogonal to the issue of
infringement.

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sorbus
So, they have pending patents. And they think that your software is infringing
on those pending patents. Those pending patents, which, being pending, have
not yet been granted, and are therefor useless as far as litigation goes.
Which makes your existing software prior art. Hmm.

Depending on how you're feeling, either tell the guy to fuck off, or try to
get those (pending) patents invalidated.

~~~
danbmil99
You're missing the crucial point of submarine patents: if approved, they are
enforced as of the date they were filed. So pending patents can in fact be
used as a cudgel, to get licensees to pay for a guarantee that if the patent
is approved, they won't be socked with outlandish royalty demands. It's like
insurance. To a first approximation, the value of a pending patent is
proportional to the probability that it will eventually be approved.

I'm reminded of Tony Soprano to an unhappy customer: "Satisfaction guaranteed,
or double your garbage back!"

ps: recent rule changes mean that some patents (those that will be filed
outside of the US) will be published 18 months after filing, even if they are
not yet approved. Possibly not relevant here, as the troll would presumably
want you to see the pending patent to prove the legitimacy of his threat.

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lynxed
I'm not a patent lawyer, but from what I can pull up from my patent law class
notes: Troll is quite possibly blocked by the public use doctrine. Anything
that's been in public use without being patented for a year or more goes into
the public domain (35 usc 102(b) for anyone who cares). If he filed on or
after June 23, 2010, he failed.

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ceejayoz
Anyone tried out RazDog.com? It's basically an entire site as a JavaScript
carousel - if anyone can dig up info on the pending patent it should be
incredibly easy to shoot down with prior art.

Horrific usability, too.

~~~
woodall
They also hold another patent, filed in 2007, for an online media player with
very vague detailings. I am a fan of patents, but this company is over
shotting their bounds.

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genbattle
Having a patent pending is a scare-tactic use by alot of companies to scare
off competitors. Some companies will keep re-applying for a patent even after
being turned down, simply so they can keep displaying a "patent pending" mark
on their product.

I'm no expert on patent law, but I would enquire as to which patent
applications he's referring to (an ambiguous "we has patents" statement
doesn't get them anywhere), and then I would check the applications and the
filing party's previous filing history. If they're a pending troll, ignore and
move on. If they don't have any actual pending patents relative to your work,
ignore and move on. If your work predates his patent application, file a prior
art declaration with the patent office against his patents, and move on.

Personally I dislike software patents to the extreme. I believe copyright is
enough for software. If people want patent protection on their software, they
should have to demonstrate working code that shows their concept in action,
and they should submit the full source code with build tools and instructions.
The point of patents is that 50 years after a patent is granted, the public
should be able to pick up the patent and exactly replicate the original
invention from the patent materials alone. I know that is certainly not the
case for most modern patents, especially software patents.

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tvon
That you write OSS is fairly irrelevant to the situation, so far as I can
tell. IANAL, granted.

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woodall
Have you read over the afore mentioned patent?

~~~
azoff
No, because no reference was ever provided in the original email

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noonespecial
Don't ignore him! Its would be a very good thing if you'd just call him and
explain the prior art to him and gently steer him toward not wasting his time
and money pursuing a patent that won't be granted.

Of course you might head off the serendipitous granting of a ridiculous patent
that might fall into the hands of a real troll ala Lodsys later. If he refuses
to listen to reason, you might look into sending the prior art to the patent
office in reference to his application.

~~~
noonespecial
Downvote? Really? I just thought that maybe the guy might actually not be the
awful troll that we instinctively leap to the conclusion that he is. He might
just be a guy who really doesn't grok how all this works.

Could a simple call to find out really be that bad. (seriously IANAL so I
really don't know)

I think he's just an idiot who happens to be inadvertently trolling. Not a
professional troll. It seems like he really does want to sell his goofy cloud
motion and probably thinks he's the new new. Whatever.

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sukuriant
IANAL, but it may be good to get the patents he claims to have claim to, and
discuss this with a lawyer.

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cperciva
I had an email along these lines last year -- someone accusing me of violating
his patent application.

Just junk it.

------
azoff
Wow, thanks for all the feedback.

I'm happy there are others who have dealt with this before. I hate to sound
like a bleeding heart, but it is really sad that any troll can effectively axe
an open-sourced project like this. I really hope that it won't come to
litigation.

------
azoff
UPDATE: Mr. Troll decided to email me again today, slightly different tone:

"""

Azoff,

There are several options available to you along with an opportunity for you
and or your company to make some money regarding your software. Please call me
by Wednesday at [ Mr. Troll Hotline ].

Regards,

[ Mr. Troll ]

"""

~~~
gallerytungsten
If it's allowed in your jurisdiction, I'd suggest calling him and recording
the call. Write a "script" beforehand of the things you want to say, and have
a fallback line such as "I'm not sure of the answer, I'll have to follow up
with you on that" if he tries to get you to admit to anything. Meanwhile, try
to get him to over-reach in his claims and statements.

You might wind up getting some useful ammunition for later use; or if nothing
else, a hilarious recording for further public shaming.

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madmaze
I think this is where the discussion comes in about whether or not to abolish
software patents. It is disgusting that patent trolls go after OpenSource.

~~~
tobylane
Open source doesn't really make a difference, there's still ownership, and
there's still often corporate use. Someone suing over the GCC could sue Apple,
Oracle, IBM, RedHat, etc, but wouldn't bother suing Linus or Stallman.

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dools
"In fact, the most common reaction we hear is Wow! literally."

Strike 2, RazDog.

