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Patent Troll: Anyone Using WiFi Infringes; Won't Sue Individuals 'At This Stage' (techdirt.com)
220 points by profitbaron on Oct 3, 2011 | hide | past | web | favorite | 94 comments

Hams have been doing packet radio since the 70's in earnest and it's been around far longer.


There is clearly prior art. When you make this big a nuisance of yourself, clearly exploiting the system at society's expense, you should be permanently disbarred. You are a clear and present danger to the continued operation of the justice system.

Edit: Might a flood of complaints to the bar association do some good here?

Say what you will about the trolls; these guys have it figured out. They're targeting people with enough cash to make it go away, but not enough to mount a proper defence. Prior art doesn't enter the picture, as the trolls' targets are unlikely to retain counsel. When it costs as much to retain a lawyer as it does to make the issue go away, it's perfectly rational for the small business owner to pay up and move on. Tragedy of the commons at its finest. It's cynical, reprehensible, and evil, but it's a pretty solid business model.

An acquaintance of mine goes by bars, small stores and coffee shops in his town. He tells them that he knows the neighbourhood pretty well, and that for the low, low fee of $400 a month, he can make sure that their store doesn't burn down or get trashed. It's cynical, reprehensible, and evil, but it's a pretty solid business model.

Nobody's saying it isn't a protection racket, just that it makes more sense for individual business owners to pay the extortion than to tangle with the mob, even if the net result is everyone having to pay extortion to a powerful mafia.

Is it just bluffing?

The existence of packet radio doesn't necessarily constitute prior art. The patents are far more likely to be on certain very narrowly defined processes that are arguably implemented in a WiFi system than on a very broad field like "digital communication over radio". If the hams didn't use the particular techniques at issue, then that wouldn't constitute prior art.

You really need to read the specific claims in the patents themselves to figure out how to invalidate or avoid the patents.

The book "Against Intellectual Monopoly" is highly recommended reading for the question of patents (and other intellectual property). The authors make a mostly empirical survey of the effects of intellectual property laws and of their absence in a wide range of industries, and conclude that their effect is a stifling rather than an encouragement of innovation. I think it's especially appropriate because, while my own opinion on the issue comes from moral reasoning (and it's generally frustrating to try to argue that side), this book presents a wealth of stories and statistics that are just plain interesting to anyone who cares about the issue.


Intellectual property and patents are not the problem, the problem is the broken system around them that allows these types of abuses.

The book would disagree with you there.

(I could close with that bald assertion, but I won't.) Its basic thrust is that the patent system is "broken" to the extent that it does what it's designed to do: grant to an inventor a time-limited privilege to restrict his competitors so that he can earn monopoly profits that will reward him for his invention.

The book opens with the story of James Watt. Watt made a series of improvements to the design of a steam engine and obtained a patent, which he used to interfere with his competition. In particular, he used the legal system to crush Jonathan Hornblower and his superior engine design; the rest of his competitors had made further improvements, but simply waited for Watt's patent to expire (which had been extended to a 32-year period) before putting them into production. Watt himself was forced to use a technically inferior design element in his engines for some years to avoid infringing on someone else's patent. When Watt's patents finally expired and his competitors could freely enter the market, the number of steam engines being produced and the rate at which their efficiency improved both exploded; furthermore, Watt's company continued to increase production and make a profit for years despite the disappearance of the patent protection.

It seems clear that the overall effect of Watt's patent protection was to greatly slow down both the development and the wide-scale adoption of improved steam engines--and, as a footnote, that it may not even have been necessary to ensure that Watt made a profit. Note that Watt was using the patent system exactly as it had been intended. In the book, we see this happening over and over in detail and across a wide range of industries.

Did you even read some of the book before responding?

Nope. The problem is granting monopolies and expecting to encourage growth. It's nonsensical.

Even if our courts were up to it, and we see time and hand again that they are not, you simply cannot consistently enforce incoherent laws.

All IP laws other than trademark are harmful to society and the economy and need to be abolished.

You think that if I were to write a song and post a recording of it on YouTube, then it would be perfectly acceptable for anyone, from the grandmother down the street to the ultra-mega business in the big city, to take my lyrics and melody and make mounds of money from it without compensating me in the least?

Absolutely. You got your compensation already when you learned about music from everyone else. And even if not, it's just morally wrong and nigh impossible to contain ideas.

How do you think the ultra-mega-corp is going to get unreasonably huge without monopoly control of creation or distribution though? And with tiny profit margins because their competitors can just copy them.

I also don't think you should get government help in keeping secret the method you use to do anything. It's possible to look at you and see what you're doing - if you do it where people can see you they'll just naturally be able to copy you. We'd have to lobotomize them or set up some ridiculous bureau of ideas to check everything for originality. Both nonsensical. A society can't afford to handicap its creators.

I've read that the possibility to patent genes led to the explosion of the field some years back. Are there such positive examples discussed in the book?

They led to an explosion of patents on genes, not to an explosion of applicable research. The research would have happened anyway, maybe a bit later or maybe not as patent directed.

It's the "maybe a bit later" part I wished I'd find better researched. I remember the source I found was pretty trustworthy, but still just one data point.

Leeches. Someone should destroy these folks. Legally and peacefully, of course. But they must be destroyed.

I'd honestly prefer someone did it with a MOAB at this point.

I'm currently finding myself question my own disapproval of capital punishment. Every single one of the board members of this company could be put to an incredibly painful death by lethal injection and I just might bake a cake.

You know that death by lethal injection is actually not painful? Not that I support your hyperbole (if it is hyperbole), just clarifying the facts.

It is meant to be a bit painful in all circumstances. It isn't a pleasant way to die, but it doesn't look all that bad to watch, which is why it is used. Pain and trauma free measures like nitrogen asphyxiation aren't used for that reason; pro-death penalty advocates want to keep it painful.

Of course it is, that's why they like to use it. It's the perfect crime really, paralyze the guy so he can't protest then dump salt into his heart.

If they wanted it to be painless, they'd just throw in more of the barbiturate, which they're using already anyway. There is a reason we kill animals like that. Or, as another of your respondents pointed out, nitrogen asphyxiation. That one is so impossible to mess up it's absurd.

Occasionally it is. I remember there have been instances where the sedative in the cocktail didn't work, but the paralyzing and killing agent did. Wasn't obvious from the outside, but it must have been a pretty awful death...

Not keen on the word "folk" being used to describe them because it has a more homely feel to it, for a common purpose, etc. These people are scum.

It would probably be more effective and work faster if victims of this nonsense just started showing up at these people's houses with ski masks and baseball bats.

I really hope they do start suing individuals. Congressmen, and judges specifically.

Patent trolls may be evil, but they're not stupid. The best we can hope for is for them to sue a close friend of a congressman or judge.

Maybe not stupid, but I think their hubris is steadily growing.

At some point a patent troll is going to fly too high and set fire to the entire business model.

I wonder if a possible defense would be to intentionally trigger some political response via some patent trolling of your own.

Dang, this is a REALLY good idea. Get a whole slew of companies to combine patents and start suing "influential" people. Call it lobbying with teeth. The EFF could be the "troll" and could take the extras as contributions.

This is very nice!

Politicians will only solve a problem after it becomes a calamity. If the problem gets bad enough, they might start paying attention.

I thought politicians just made things worse after problems become calamities. The calamity just alerts them to the fact that there is money to be made being part of the problem.

Watch for campaign contributions to start flowing before these companies start suing regular people.

Politicians created the problem by creating IP laws. If they "solve" it, they will undoubtedly just introduce some new problem.

That's a really cynical view, isn't it? Implying that the people, through their democratically elected governments, can't ever improve upon things that have come before.

Government isn't effective, democratic or otherwise. But I'm not a cynic. I have high hopes for humanity, long term. The sooner we get rid of the institutionalized use of force (government) the better.

I don't normally press people for alternatives, but extraordinary claims require extraordinary evidence.

If we were to get rid of "institutionalized use of force", what would we replace it with? Can you give me a single example of a large-scale society without effective government that hasn't devolved into a nightmare scenario?

You wouldn't replace it with anything. You'd need a cultural change where people recognized that stealing is always wrong, even if they call it taxes and declare it legal. Police and courts would be businesses like any other and not funded by force.

As for examples, America was founded in liberty. Unfortunately the nightmare scenario is playing out in real time as the US evolves from the tiny government of two centuries ago into the police state of tomorrow (today?). All libertarian societies I'm aware of eventually give way to the nightmare of the state. So, nope, I can't give you any examples of a libertarian society that lasted indefinitely. But brief liberty is better than none.

The only way I can see liberty playing out in a sustainable way is if the entire planet becomes libertarian so that there are no giant concentrations of force capable of taking it over and turning it back into a state. And I think this will eventually happen since it would continue the slow but steady moral advance of humanity.

Are you really making the claim that we have less liberty today than we did two hundred years ago? Maybe if you're a white male landowner. For everyone else, things have been getting progressively better over the last few hundred years.

Things have gotten better for most people because of moral advances and technological advances. But government has gotten worse and has slowed down progress.

> America was founded in liberty.

Does this mean anything?

The way I see it, when I read the constitution, it is fairly clear that the government was engineered to be a sort of anti-government. Something put into place to fill the power vacuum to prevent other "real" (defined as pretty much every other government they were familiar with at the time) from moving in and taking control.

Of course, I'm an anarchist, so I might be projecting... I think they also failed miserably though, because they forgot about human nature. Noble attempt, worthy of some praise, but ultimately it failed. Neat parallel to those who say communism failed because it forgot to consider human nature I think ;)

So founded in liberty? Basically just describes the mindset of the designers. What they were going for.

Of course, I'm an anarchist, so I might be projecting..

You're totally projecting. The constitution is pro-liberty and anti-tyranny, but it isn't really anti-government. One example: Patent protection is in the constitution, not exactly an anti-government stance.

Liberty for some, I'd say. Just to give an example: Lots of the founding fathers were happily owning slaves.

>Can you give me a single example of a large-scale society without effective government that hasn't devolved into a nightmare scenario?

Of course not. Any time it has been tried (e.g. Spain, some of those under Lenin), other governments have recognized the danger and responded immediately to destroy the movement before it can take off.

Cynicism is rarely proven wrong in cases like this.

The cynic can only take pleasure in saying "I told you so," but can never take credit for any improvement, which does occasionally happen against all odds.

Maybe so, but I can think of a few high profile examples where things did change for the better. Think civil rights, women's suffrage.

I honestly feel that this current patent perversion is a temporary thing. It just can't be sustainable in its current state.

Warning US-centric Content. If you're not from the US, then you might not know this.

Patents are the only thing that are specifically addressed in the US Constitution besides the form and function of the Federal government. It was and is a pretty big deal.

Politicians would notice more quickly if they were ever reliant on coffee shop wireless and not working from expensive Blackberry accounts.

This is actually a very good development. This will help that even general public start understanding "patent troll" problem which, in turn, will get some ears in in Washington.

I hope that more and more opportunistic lawyers join the "patent troll" bandwagon. Eventually, some of them will not say "wont sue individuals" because they will understand that changes in IP laws are going to happen soon: make money now or never (very similar to what was happening just before the housing crash of 2008). Then the politicians will act. Hopefully, giving bailouts and not doing reforms will not work for this issue.

Is there anything we can do to speed up this process?

Of course - only sue politicians, the media and anyone else with political influence. Give them 2 options:

1. Pay - where all proceeds will be used to acquire more frivolous patents and lawyers to sue them again

2. Change the law to ban all software patents

While I hate what you are saying, I completely agree with it.

It sounds like they're going after small business owners individually, so not necessarily "any old joe." Still, this gives me hope given how hot small businesses are in the current political climate. Perhaps targeting one or two of the wrong (read: noisy and politically-connected) owners will result in an outcome at least slightly positive for patent reform?

Do the descendants of Joseph Guillotin still hold the patent on his invention? I fancy a scenario unfolding in today's environment that might vastly enrich his heirs.

> While its initial lawsuits against coffee shops and restaurants did focus on the central corporations, with the hotels, Innovatio appears to be focusing on individual franchisees. Yes, the small businesses who own individual hotels and probably have no idea how to deal with a patent infringement lawsuit -- all because they dared to offer WiFi somewhere in their hotels. To make it "easy" of course, Innovatio's lawyers will let them settle for between $2,300 and $5,000. In almost every case, that's going to be cheaper than hiring a lawyer to just get started dealing with this -- which I'm sure is exactly what Innovatio intends.

Isn't this precisely the sort of thing that can be forwarded to corporate? Someone who owns a Motel 6 would surely expect the corporation to help them with this, no?

Ya but your local B&B can't deal with this. They need to mobilize now and pool together to buy good legal defense.

I sort of imagine that the large chains would smack these trolls down pretty hard. Hilton and Marriott and Starbucks aren't exactly mom-and-pop.

Which is why, I imagine, they'll either stay far, far away from the biggest players (Caribou is several orders of magnitude smaller than Starbucks) and just harass companies too small to take a stand. The system works again!

It's nice to see that Innovatio IP is focused democratizing the opportunity to license their patents. Patent trolling isn't just for the Fortune 500 anymore.

Look who's talking: a patent troll himself. http://news.ycombinator.com/item?id=3058876

Have you considered law school?

Your insights into the actionability of patent applications would be highly informative to the majority of legal scholars and practicing lawyers.

I'm not a lawyer, so my question is simple - say that you receive a citation from Innovation and you simply ignore this. What then ? They will actually take you to court ?

Well, if you ignore it and they get a default judgement against you (i.e. they find that you are infringing) then they can do lots of things to make sure you pay up. IANAL so you would want to talk to one if this happens.

This is exactly what I have been wondering. The case has no merit: they can't sue me for buying a Linksys router, can they?

The way the US legal system works, if you are sued then the plaintiff and you go to the court and make your arguments. If you don't show up, then they automatically win all arguments they make. Even if the argument is wrong. So you automatically lose, and then it moves to the collections stage.

tl;dr; Yes, they can sue you for buying a router. And win, if your high-priced lawyer doesn't show up in court on the appointed day.

A couple of things:

1. If you get sued and don't show up, the judge might or might not enter a default judgment. Think of a lawsuit as a road rally. The plaintiff has to hit a number of checkpoints. In federal court, one of the first checkpoints is that the complaint---that is, the plaintiff's formal statement of its claim---must allege enough facts to set out a plausible case entitling the plaintiff to relief. (This is the Twombly/Iqbal standard established by the Supreme Court a couple of years ago.) Even if the defendant doesn't show up, usually the judge and his or her law clerk will still read the complaint, to see if it passes the smell test, before granting a default judgment.

2. They can sue you for buying a router, but under section 2-312(2) and (3) of the Uniform Commercial Code [1], absent a proper warranty disclaimer you would normally be able to pass the buck to the seller, by filing a cross-claim for breach of the implied warranty of noninfringement. Of course, that too would require paying a lawyer, unless the seller stepped up and voluntarily assumed the defense of the infringement suit (which is not uncommon; vendors want to stay on customers' good side).

[1] http://www.law.cornell.edu/ucc/2/article2.htm#s2-312

Does anyone know what these patents claim to cover? "wifi" seems a bit broad


Clearly invalid. Prior use dates back to X BC when gestures by cavemen were used.

[Edit] Or are they going to be chasing anyone that uses light in some fashion?

What is this patent actually for? I was looking up wifi, and the precursor to 802.11 came out in '91. That's well over 17 years ago.

US Patent 6714559 is one they sued several hotels over. It was filed in 2001 but was a string of 6 continuations of a patent filed November, 1991.

After getting sued a good course of action would be to sue the manufacturer for loses incurred. At least that would get their attention. Somebody could start a class action lawsuit agains the manufacturer.

They should be suing the manufacturers in the first place. Even if we were to assume for a moment that this patent has any validity whatsoever, it would not be the users of the wireless router than owe them a royalty payment, but the router manufacturers. And I seriously doubt that a fair royalty on a single router (such as what you might find in one of these small coffeeshops that they are suing) is in the thousands of dollars.

I know, you know, the manufactures know, the lawyers know, but unfortunately the lawyers do not care. They just want to make easy money. This might be a good way to shift the pain to the manufactures.

Why? It's not just the implementation of a patented idea that's protected; it's also the use.

Don't consumers have some protection here? I mean, they probably bought the wifi at a common store. You don't normally walk out of Walmart with a box containing a product you expect to not legally be able to use.

Legally I believe that's an issue between the consumer and the merchant and/or manufacturer.

Legally, it depends. A bit of web searching did turn up (so far) one LinkSys router that explicitly disclaims implied warranty of non-infrigement. If that is disclaimed, then yes, it falls to the consumer to deal with it.

Someone needs to set up a Patent Troll company and patent a bunch of processes for political methods / action / campaigning / etc.

Then start trolling politicians.

It's about time the CSIRO (http://en.wikipedia.org/wiki/Commonwealth_Scientific_and_Ind...) got some money for their invention.

I have seen a few US writers attempt to call CSIRO a patent troll. Somewhat amusing. This article isn't talking about the CSIRO patent though.

The patent is from 2004. http://www.google.com/patents?id=zi8SAAAAEBAJ&printsec=a...

I hope their greed gets the best of them. Here's a poll I created to get general feedback on this subject. It's so infuriating to me, but a lot of people seem to be indifferent on the subject of patents: http://www.wepolls.com/p/3363896/

If they applied for the patent in 2001, how can they possibly sue users of wifi? 802.11 has been around longer than that.

It's possible that the patent(s) are only alleged to apply to 802.11g and/or 802.11n implementations. At least one of the patents appears to relate to MIMO, which would apply only to 802.11n.

Good luck with that one Trolls.

Surely this?

I wouldn't think they could ever win anything. One of the rules with patents is you can't just kick back and wait for your competitor's product to grow and sue 10 years later.

Considering WiFi is almost 20 years old, and has practically surpassed 'ubiquity', I'd say that ship sailed.

That's the beauty of the scheme. They don't HAVE to win anything. They threaten to sue for $2,000 to $5,000 which is less than the cost of hiring a lawyer to defend. 98% of the people threatened pay up. Some miniscule percentage are incredibly cussed individuals who are willing to spend thousands of dollars just to be right... maybe they'll lose those cases. It doesn't matter: they're still making huge amounts of money.

The only threat to the scheme is having your lawyers be sanctioned for unprofessional conduct. If there was NOTHING behind the threat, this would be a real possibility (like, say, if you tried this scheme when you didn't even HAVE a patent). But as long as it's a plausible case, the threat works and it's highly profitable.

It makes me wonder how this is not extortion? Pay up or we'll make your life miserable and/or more expensive.

Never heard of that rule. Perhaps you are confusing with trademarks, which you must defend?

Or you are confused about the damages - you can't collect damages on anything that happened before you told the victim "you are infringing, now stop or pay me $XXX". But you definitely can collect from that point on (triple damages, if willful infringement is established)

Gah, you're right, I was thinking of trademarks. I need to stop mixing trademarks, patents and copyright up in my head.

IIRC, you could argue in court that the patent-holder knew that infringement was happening, yet only decided to come out of the woodwork in the 11th hour. I think that this defense has worked in the past, but you would need to spend a bunch of money to get to that point though.

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