
When Patents Attack - simon_weber
http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack
======
almightygod
I get anxious every time I read another patent troll story wondering when my
weekend creations will end up costing me $ when they accidentally infringe on
a patent because I roll out some seemingly ubiquitous feature.

I'm deeply saddened by this mess and doubt it will ever be resolved. There is
far to much money at stake now to revert things - money = lobbying.

~~~
monochromatic
If it's any consolation, hearing from a patent troll means you've built a
successful product.

~~~
smashing
Except you don't need to make a profit to be subject to a lawsuit. Hobby or
weekend projects are just as liable.

~~~
monochromatic
Well sure. But from a practical standpoint, a patent troll is far less likely
to bother with someone who doesn't have reasonably deep pockets.

~~~
georgemcbay
While this is generally right, it is also fairly common for patent trolls to
go after some small fish they claim are violating a patent first to set a
precedent of wins (or settlements) against opponents with weak legal war-
chests.

A string of these small victories makes it much easier for them to shake down
the big targets later... So while you PROBABLY won't be the target of a
lawsuit unless you're very successful, there's a bit of a lottery that happens
pretty often with these cases where some small percent of small targets _do_
get run over by the patent holders on the road to the bigger guys. And if you
happen to draw the short straw on that, it sucks to be you.

------
daimyoyo
There is a simple solution to this problem. Make maintenance fees payable
yearly, and make a requirement of getting the patent renewed proof that you're
actually using it. People filing patents only to sit and wait until someone
else infringes is a cancer on American innovation.

~~~
thedragon4453
Definitely like the second part. It would seem that if you aren't actually
using your patent, the patent's purpose is lost.

I also think there should be oversight on the patents that are granted. Right
now you can patent something that has 20 years of prior art with relative
ease. That's silly.

~~~
dredmorbius
There _is_ the doctrine of laches, a defense in the case of suits brought
after a long period of non-enforcement. As with most defenses, this entails
lawyering up and going to court, part of what makes this process so expensive.

There were also reforms in the 1990s which extended the life of a patent (from
17 years to 20), but started the clock at filing time, not grant. This was due
to a slew of patents issued to Jerome Lemelson which he kept appealing to the
patent office. These were eventually granted, a practice termed "submarine
patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties
(he's also got a wing of the Smithsonian named after him).

But the system's still pretty messed up.

------
moultano
Throwing an idea out there: Software patents should last no more than 1 year.

If you come up with something worth patenting, you get a year lead on
competitors. That's it.

~~~
mckoss
I think a better solution is a mandatory licensing process. The threat of
absolute exclusion is too damaging to the industry.

AND, the patent office needs to start DOING THEIR JOB and stop granting
patents for obvious inventions.

~~~
MartinCron
Honestly, if the patent office would just do their job and not grant bogus
patents based on obvious inventions or inventions with prior art, that would
probably be enough.

Software patents aren't the problem, bad software patents are the problem.

~~~
Terry_B
Can you name an example of a good software patent?

~~~
MartinCron
As long as it meets the non-obvious and no-prior-art tests, I don't see a
problem with the concept.

Something like mouse gestures feel like a patentable innovation worthy of a
temporary government-enforced monopoly.

~~~
Kliment
Sure, but not for a decade or more. The timescale of patents is simply
incompatible with the timescale of software.

~~~
MartinCron
I totally agree on that front. Five years seems like a reasonable upper limit
to how long software patents should last.

------
dstein
As the article only touched on, this is precisely why the next computing giant
will not come from Silicon Valley or anywhere in the US. The current software
patent situation has ensured it.

~~~
skrebbel
I doubt it. The next computing giant will want to sell in the US, too. Patent
laws don't cover where you're from, they cover where you sell (or where you
give away free stuff but make money from ads). You'd have to block all US
visitors from your site to avoid the US patent system.

I've been thinking about workarounds. Could a "I confirm that I'm from
Malaysia" button do the trick?

~~~
meow
May be the future companies will price products higher in US markets.

------
preinheimer
As a co-founder of a startup, my most worrying thoughts are not finding
customers or improving the product. They're "when will I get a scary legal
letter that asks for millions over a patent I've never heard of".

~~~
kenjackson
Really? I never ever think about patents. Ever (except when reading HN). It's
just not a real day to day issue.

~~~
cbetz
The biggest part of the problem is that companies (and founders) are forbidden
from speaking up after licensing deals are made. Perhaps you could post
anonymously, but you'd still be violating the NDA in spirit and you'd be
punished if discovered.

In other words, if three companies down the block signed millions away to
Intellectual Ventures, you would have _no_ idea. Maybe the risk _is_
overblown. Unfortunately we have no idea of knowing.

They try to hammer this point home in the podcast.

It occurred to me there is simple legislation that might chip away at all this
shadiness: Pass a law that forbids NDAs in patent licensing deals.

~~~
kenjackson
You'd know it if it happpened. Management may not do a PR, but people talk.
Remember the lawsuit and NDA agreement are proceeded by talks. At the very
least you'd know they were approached and then suddenly went silent on the
matter.

If it did work it would be the greatest conspiracy ever pulled off. A company
extracting a billion hostile dollars and people not even posting on anonymous
sites? So not likely.

The genius of IV's NDAs isn't that they have millions of companies paying
them, but that they can create the mythology that they might. And you might be
next.

I'm literally about 100x more worried that my architect gets hit by a bus than
I am of being sued over patents.

------
danshapiro
Did anyone else click the "someone patented toast" link and actually read the
claims? It's for toasting bread at 2,500-4,500 degrees, with specialized
infrared ovens.

~~~
joshmaker
<http://home.howstuffworks.com/toaster1.htm>

------
lukejduncan
Intellectual Ventures recently posted a rebuttal
[http://intven.com/newsroom/insights/11-07-25/Disruption_Invi...](http://intven.com/newsroom/insights/11-07-25/Disruption_Invites_Controversy.aspx)

They like to say things like "ideas have value" and that they are
"disruptive."

Are there examples where the patents they own and monetize actually represent
valuable "ideas" and not after the fact claims of invention? I'm guessing not,
but open to being proven wrong.

And who, or what, do they think they are disrupting? Isn't IV the incarnation
of the status quo?

Reading their website feels like reading a politicians...

~~~
pkulak
That entire article rests on the assumption that software patents have some
value outside of the ability to sue someone else with them or to ward of
lawsuits by someone else. They want you to think of a software patent like
it's a piece of music or a motion picture. They're just like Netflix or
Spotify for patents! I don't know how anyone working for that company can
sleep at night.

~~~
dolphenstein
In movies you can't have a patent for action cop movies with a surprise plot
twist. That would be absurd. Just like generic software patents.

~~~
noonespecial
Don't look now but...

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

They've actually been trying for some time now.

------
adorton
One of the best TAL episodes in recent memory. The story mentions that modern
patents (specifically software patents) lack the novelty that the patent
system was originally designed to encourage. Did patent laws change at some
point in history to allow this to happen?

~~~
kogus
The audio version of the story mentions that it was a decision by the patent
office, not specific legislation. Sometime in the 1980s they went from
copyrighting software (i.e., treating it like literature or art) to patenting
it.

~~~
bgruber
No, the audio version mentions that the patent office used to operate on the
principle that software could be copyrighted but not patented, but sometime in
the 80s the judiciary indicated in several instances that was not the case and
the patent office complied.

------
slug
<http://news.ycombinator.com/item?id=2795743>

<http://news.ycombinator.com/item?id=2796906>

~~~
AdamTReineke
Yup, it's a repost, but I'm okay with it because the MP3 is now available
(came out Sunday @ 7pm). Take note, it's only available for free this week.
After that, I think you can find it on iTunes or Amazon for a buck or three.

~~~
simon_weber
Yikes, sorry about that. My search for "npr patents" only brought up a mention
in a comment.

~~~
georgefox
I'm glad you re-posted, actually, since the original links (when posted)
didn't include audio.

------
dedicated
I'm curious as who are the VC's who invested in IV? Are these typical tech
VC's, or are they more of the private equity type that relish in making money
off these so called opportunities or arbitrages that don't require actual
productive work.

------
enduser
Is this an issue for companies owned by HNers? Poll:
<http://news.ycombinator.com/item?id=2809951>

------
shmulkey18
Two very interesting Econtalk podcasts on IP issues and economics, both of
which argue that innovative industries can thrive in legal regimes which offer
very limited IP protections:

Boldrin on Intellectual Property
[http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...](http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html)

Blakley on Fashion and Intellectual Property
[http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...](http://www.econtalk.org/archives/2010/06/blakely_on_fash.html)

pg groupies may also want to check out the Econtalk interview with Paul
Graham. Finding it is left as an excercise for the reader, primarily to
encourage people to check out this amazing resource.

------
daniel-cussen
It's interesting to see more mainstream media outlets (npr and This American
Life (public radio?)) talk more about patent trolling lately. As of a few
weeks ago lay people I talked to had no idea programmers generally disliked
patents.

------
pom
For some reason, every time I read the name Intellectual Ventures I sound it
in my mind as Intellectual Vultures.

------
andreyf
In the audio version, they mention several times that patent law is founded in
the constitution. I wish they would actually read it though, as it's not very
complicated:

 _The Congress shall have Power To [...] promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries._

~~~
loup-vaillant
Oddly enough, that is not enough to make patent law mandatory by the
constitution: the text you cite has the structure _"The congress shall have
Power To […] promote X by using the mean Y"_.

First, it is not written that the congress _has_ to exercise that power.

Second, what if Y does not promote X? What if it _hinders_ X? It is written
that the congress is allowed to _promote_ X (through Y), not doing nothing
about X (through Y) and certainly not hinder X (through Y).

I understand how one might assume that a patent system is a good (best? only?)
way to promote the Progress of Science and useful Arts, especially back then.
Nevertheless, I think this was a mistake: they wrote the _mean_ in the same
stone they did the _goal_. (Of course, goals themselves can turn out to be
means to higher purposes, but in this case it is quite obvious from the
beginning.)

------
parallel
Is this sort of thing an issue in other countries. I'm a tech founder in
Australia. I don't think we have the same level of anxiety about being sued
for unknowingly breaching a software patent. Can anyone comment on this? Is
our patent system different or can we expect to see our industry similarly
affected in the future?

~~~
alkimie
Patents are territorial. That is, unless someone has filed an application (or
designated Australia as part of a national phase of a Patent Cooperation
Treaty (PCT) patent application, nothing will issue in Australia. Generally,
companies try to figure out where their likely markets are, and where the
expense can be justified. Australia is becoming more and more relevant, but it
was not nearly as common to file there a few years ago. (Full disclosure, I'm
a U.S. patent attorney (but I'm actually a good guy!).)

~~~
AgentConundrum
That's a bit reassuring to me. I'm not anyone special, but I've got some ideas
I want to code up that likely won't get anyones attention. After seeing patent
topics popping up here on HN so often, I'm seriously terrified of even being a
programmer anymore. This stuff makes me want to give up and find a job digging
ditches or something, Office Space style.

But, I'm Canadian. Your comment makes me feel a bit safer, but I have the
feeling that little things like hosting the site in the US or collecting money
from Google AdSense or an Amazon Affiliates account could make me horribly
liable.

I know that rationally this practically a non-issue, since I'm such a low
value target, but the fear is still there, lurking beneath the surface,
scaring the hell out of me.

------
danvideo
it's time this issue got more exposure than just the tech world... reporters
aren't worried about their company being sued out from under them.

------
vinced
The solution is very simple. Create a simple how to patent template website,
then have every developer apply for patents on any business and software
process that they can dream of. Within two years you'll choke the entire
system into change. Make it impossible for anyone to do anything.

1st idea, the collection, aggregation, and transmittal of electronic messaging
data during a waste evacuation process. (i.e. checking your email while on the
toilet)

~~~
Symmetry
To the extent that the system is choked it means that the Patent Office grants
patents without having the time to look at them, not that a backlog develops.
You might notice that this has already happened.

~~~
vinced
of course that is happening. Even worse is that the people examining the
patents are not best and under qualified to review software patents.

------
spenrose
Can someone please tell me what Myrvolhd actually DID when he was leading MS
Research? I remember no innovations from MS in that era.

~~~
gruseom
He wrote long memos and famously pooh-poohed the internet.

<http://www.kenauletta.com/themicrosoftprovocateur.html>

Correction: this was before he was sent (banished, the article makes it seem)
to Microsoft Research.

------
clc
I actually just heard this story over NPR Radio. It's concerning to think
about how companies like this can strong-arm smaller startups. But at the same
time that doesn't mean that we should hide in fear. We've got to keep on doing
what we do best: developing innovative products and solutions for users
everywhere. Torpedoes be damned.

------
cpenner461
Serious question: can/do patent trolls go after open source projects? I'm not
thinking of businesses who sell/support open source software (e.g. Red Hat),
but would it be a viable "defense" for an indie dev to simply release their
project as open source? I've got an idea for a "weekend project" or two that I
could conceivably make a few bucks with, or I could release them as open
source so that I can at least benefit from the idea without worrying (as
much?) about being sued for violating a patent. On the one hand if I'm not
making any money from it one would think that the trolls would go elsewhere,
but then again...

Just looking for a general idea here, I'm not looking for official legal
advice here... :-)

~~~
bergie
The Debian patent FAQ is pretty good for this:
<http://www.debian.org/reports/patent-faq>

~~~
cpenner461
Very useful - thanks for the link!

------
dredmorbius
If you're looking for an organization which is actively working to fix the
software patent problem, you can look to End Software Patents:
<http://endsoftpatents.org/>

------
dangrover
What if you could pay for some kind of insurance product to protect against
patent lawsuits? Or perhaps some kind of co-operative that owned a bunch of
bullshit patents to be used for defensive purposes in such a scenario?

~~~
phillmv
>What if you could pay for some kind of insurance product to protect against
patent lawsuits?

Heh. Programmers' malpractice insurance. The premiums would be ridiculous,
though.

>Or perhaps some kind of co-operative that owned a bunch of bullshit patents
to be used for defensive purposes in such a scenario?

That's more or less the shitck Intellectual Ventures uses to justify that
they're not patent trolls (they point it out in TFA). In the podcast they
point out that their need for a good ROI doesn't allow them to sit idle.

How do you defend against patent trolls, though? It's not like they make
anything that can be infringed on.

Maybe here's a valid, easy-to-swallow change to the patent system - everytime
a patent changes hands you halve the amount of time it is valid for.

~~~
pyrhho
> Maybe here's a valid, easy-to-swallow change to the patent system -
> everytime a patent changes hands you halve the amount of time it is valid
> for.

Nice idea!

> It's not like they make anything that can be infringed on.

Or, require the patent holder to prove 'damages'. Since they don't make
anything and don't actually _use_ their patents there are no damages lost.

------
kanetrain
Well, this was timely. <http://news.ycombinator.com/item?id=2808110>

------
perfunctory
Is it fair to call Intellectual Ventures an arms dealer.

------
arvinjoar
I wonder why people waste their time and money on defending themselves in
court, why don't they hire Tony Soprano to fix their problem instead? It would
be a pretty appropriate response.

------
crizCraig
Poll: What's you take on Intellectual Ventures with regard to innovation?
<http://wepolls.com/1510009>

------
vacri
Admittedly I stopped reading the article when I got to "IV isn't a patent
troll, we're simply just a big patent market connecting suppliers to
consumers"

No, you're not simply a 'market'. A market doesn't come and sue you for buying
your milk somewhere else.

~~~
zinkem
You might want to finish the article.

~~~
vacri
I get that the article is against the patent process, and the downmodders
don't seem to get that I was referring to IV's characterisation of itself, not
npr's characterisation of IV - I thought it was clear where I was directing it
due to the phrase " _you're_ not a market".

I wasn't using 'patent troll' or any of the other terminology. I was pointing
out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000
word article. I'm now about halfway through and have scanned the rest of the
article... and I don't see anything that invalidates my claim above. IV is
_not_ the 'market' that it says it is. If anything, I am _supporting_ what npr
is saying.

HN moderation is _weird_.

~~~
evmar
The subject of article is more or less how IV's reasoning is flawed. Picking a
quote from the beginning and saying "that is flawed" is just echoing the bulk
of the article. I would guess your downmodders think you're not adding to the
discussion.

~~~
vacri
I don't buy that argument - why aren't many of the other short comments in
this page getting the same treatment when they're not adding to the discussion
either?

~~~
ahlatimer
If you had cut out the "Admittedly I stopped reading the article when I got
to" part of your comment, you probably wouldn't have been downvoted. I think
the general perception is that it's difficult to add to the discussion of an
article if you didn't even bother to read that article, especially when your
comment merely echoed the article.

~~~
vacri
I, too, think it is that particular phrase, and I disagree with the sentiment
of downmodding this kind of admission instead of actual content.

I've seen this elsewhere - if someone says they're being sarcastic, they're
downmodded to hell... but people in the same thread saying the same thing in
the same sarcastic manner, but without the admission, are left alone.

I find this inconsistency annoying - it appears that downmod-friendly HNers
are more interested in making a pretense to politeness than actually
moderating content. It only takes a single dissenter and your words are
already diminished on the page.

