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Patent troll claims ownership of interactive Web—and might win (arstechnica.com)
155 points by evo_9 2056 days ago | hide | past | web | 66 comments | favorite

The real issue here is the hegemony that gives a single coalition governments the ability dictate worldwide patent and copyright law.

It seems that if that didn't exist, people interested in innovating and creating great, new, things would just go to the countries that didn't have forcefully draconian IP laws.

Sure, maybe there are some advantages to having patents, but in their current form for software, they are a civil version of the thought police.

And mark my words, if MS and IBM and Apple get sued for copyright infringement, they did this to themselves. They are the ones for lobbied for this in an attempt to push the little guy out. And it was working until someone figured out that 'patent trolling' was possible.

In my opinion, patent 'trolling' is a good thing, (as long as it doesn't happen to me). Why? because the harder they troll, the more obviously broken the system will be, and the more likely it is to get fixed. Otherwise, patent litigation is basically restricted to people who already have their own huge legal departments.

In my opinion, patent 'trolling' is a good thing, (as long as it doesn't happen to me). Why? because the harder they troll, the more obviously broken the system will be, and the more likely it is to get fixed.

I think this is really naive. People who do dishonest things and get rich from them are not regarded as a problem in America - they're celebrated as clever guys and put on Forbes magazine's cover.

Any examples?

Mark Zuckerberg?

It doesn't matter where things are created; if they infringe US patents they can't be sold in the US. Most companies can't afford to ignore that market.

In the case of open-source are you held liable if you even use it inside the US?

Possibly, but you'd have to be making some real money for the trolls to bother targeting you.

MAFIAA doesn't wait for you to make some real money before targeting you. Greediness is a bottomless pit.

True, but that's copyright IP not patent IP.

In politics/activism, this is usually referred to as "heightening the contradictions". That strategy only works, however, if you have a fairly optimistic view of history and progress. If you don't, the strategy is just as likely to produce a dramatically worse outcome.

I was going to ask the GP, I'll ask you instead, can you think of concrete historical cases where pointing out a ton of problems led to a dramatic reform instead of just slight tweaking that ends up introducing more problems? Can you think of cases where (bad) --causes alone--> (worse) --causes alone--> (incredibly better)? (It seems to me it's more of an ebb and flow of good/bad.) The sentiment seems especially popular among nerds for some reason. To both charitably and caricaturely quote: "I hope SOPA passes; then everyone will use Freenet!" "I hope Facebook severely violates its users' trust, then people will care about privacy." "I hope someone blows up a security line at an airport, then we'll get rid of security theater." "I hope we have patent Armageddon, it will hasten the destruction of IP."

It's a bit unclear what you're asking - are you looking for historical examples where heightening the contradictions has actually led to a good resolution? Because I was definitely arguing against that. Or examples where it's made it worse? For the latter, the most event would probably be Nader.

Dramatic and successful reform has happened, of course. Look at Upton Sinclair, the Chicago meat-packers, and the rise of muckraker journalism: http://en.wikipedia.org/wiki/Muckraker

Sure, drawing from recent history in the US I'd say that 1986 tax reforms[1] the 1996 welfare reforms[2]. I don't think that they happen often enough that they should be relied on, though, and I'd say that they're pretty much impossible in the current US political climate. On the other hand, countries that aren't the US might have better luck, since most are smaller and more homogeneous, and have parliamentary systems with less veto points. But then again, smaller countries are by their very nature less able to take on the rest of the world in the resulting trade disputes, and the EU countries I believe have the EU itself dictating aspects of patent law.

[1]http://en.wikipedia.org/wiki/Tax_Reform_Act_of_1986 Sometimes called "The Second Reagan tax cut", but it ended up raising overall revenue so that's something of a misnomer. It eliminated a lot of loopholes and lowered the base rates. [2]http://en.wikipedia.org/wiki/Personal_Responsibility_and_Wor...

> In my opinion, patent 'trolling' is a good thing, (as long as it doesn't happen to me). Why? because the harder they troll, the more obviously broken the system will be, and the more likely it is to get fixed.

Unfortunately this is not realistic. A major problem of the current patents system is the amount of money invested ("zillions" of dollars); every step towards reforming it is essentially equivalent to burning (some) people's dollars in flames - there may be a good reason behind, but it's very unlikely to happen.

> the harder they troll, the more obviously broken the system will be, and the more likely it is to get fixed

You're betting that the fix won't be to do something that effectively restricts patent protection to a fixed number of companies, maybe restricting patent litigation to those companies in a patent collective that, no, you can't join.

It already does that, and I don't discount that it could actually get worse instead of getting better. However, I am an optimist.

(Assuming you have a legitimate patent). Can you personally realistically sue Microsoft for patent infringement and win? No. Can a small company? No.

Why? Because the litigation would bankrupt anyone without Microsoft's coffers, and Microsoft can likely afford a better lawyer than you can anyway.

(I recall there was a movie a few years back about the guy who invented intermittent wipers and had them basically stolen by the Detroit auto-industry, it gives an interesting perspective on the matter. Basically, fighting the auto-companies ruined his life, ended his productivity as an inventor, and bankrupted him. By the time he was rewarded for his invention, he was old).

So, it is already a one way street in that regard, with the exception of patent trolls, who are large entities with lots of money which actually have the ability to sue the likes of Microsoft and Google and have a realistic chance of winning.

It should also not be discounted that patent trolls exist on the same time-scale as megacorps (potentially immortal), where as humans are extremely feeble and limited in their life-spans (last time I checked).

I'm getting very devil's advocatey here, as I really think software patents are a bad idea, in general. Copyright is already enough protection for software, patents just give entrenched entities a big bunker to hurl grenades from.

The article contains at least one factual error. It states that Eolas never released a web browser of its own; in fact it did release one called WebRouser in 1995 (three years before the patent actually issued).

For that and other reasons, I don't think Doyle can properly be called a patent troll, if such is someone who sits on a patent until it becomes valuable and then springs out of nowhere to demand a cut of profitable businesses.

Doyle came out with his product before the patent actually issued, and offered the patent for license to the big players. They turned him down, then cried foul when he sued them for violating his patent. I don't think they can realistically claim to have been ambushed or trolled.

Reform of patent law may be a legitimate topic for debate, but Doyle played by the rules as he found them. He was up front and public about what he was doing the whole time. Every mortal effort and every conceivable argument have been made by the bigs to take him down, but the patent stands. Like everyone else, he deserves at least to have the truth spoken about him.

1995 was 17 years ago. Why did it take 17 years to start the suits? It's not like any of this was hidden in those 17 years. Google's been around since 1998. Amazon was from 1995. Yahoo was from 1995. What part of these companies took 14-17 years to finally bring a suit to? Until I see that, he's a damn dirty patent troll taking advantage of the status quo.

Eolas sued Microsoft in 1999 and the suit took almost a decade to go through all the appeals and such. After they finished taking down MS, Eolas started working on suing everyone else. This information is out there if you bother to look...

Isn't it companies like Microsoft and IBM that supported software patents in the first place? You live by the sword, you die by the sword.

That being said, I have a hard time believing that they patented the "interactive web". My legalese is poor, but from what I read, all you would need is prior art where you had a basic client-server application that displayed information from a server, and allowed interaction between the two, no?

We're talking about the web the year Mosaic was released. Before 1993 there were no web browsers that ran in Windows. There were no web search engines yet. There was little more than static hypertext webpages for research labs. There may well not have been other client-server applications yet...


Gopher and Archie and some remote identity/finger protocols already did most of the things the interactive web does today long before Mosaic showed up.

There have been many beautiful advances since then in usability, bandwidth, user base, and especially integration with outside services. None of those things constitute inventions in the sense of being technological, novel, and non-obvious.

Which doesn't stop absolutely everything from being patented, usually multiple times. That would require a competent patent office.

The number of patents the patent office receives has increased exponentially over the years and the patent office's resources have barely increased at all. They aren't even allowed to keep all of the patent filing fees they receive anymore, and Congress has dictated in its wisdom that they aren't allowed to let the backlog of unjudged patents grow. So don't blame the people at the patent office, blame our lawmakers.

A competent patent office would not be sufficient to evaluate software patents. The volume is just too great. Imagine trying to evaluate mechanical engineering patents if millions of people carried machine shops around in their backpacks.

No need to link to wikipedia articles on the web, I've been using it since you were probably still in elementary school.

RPC was around well before the web, as well as client-server programs. For the record, you don't need a Windows browser in order to invalidate the patent. If there are any X client-server apps that read instructions from a central server and displayed that information on its own client-side app, then my guess is that would invalidate the patent. I can think of at least one that originated in 1990 that could probably invalidate the patent.

This patent covers program objects embedded in HTML displayed in a browser. Client-server programs and X desktop apps would not be prior art for these claims. That's why they're suing Internet companies, not software companies.

Prior art would have to be something interactive that ran within a browser before the 1993 filing date. Lots of interactive network applications existed before then, but that's not what the patent claims to cover.

> I've been using it since you were probably still in elementary school.

This kind of quip does not add to the discussion or strengthen your argument. It just makes you sound arrogant and grumpy.

It was an ok quip, but even if you're right in your assessment about how he sounds...

Linking to a history of the World Wide Web on Wikipedia, on a post on Hacker News - how does that come across? It's pretty obnoxious.

It's just convenient. Not all of us are old enough to know/remember what happened twenty years ago.

What would it take, specifically, to bring about meaningful patent reform? I hear about the need for it almost daily, but I'm not sure how this sort of highly convoluted problem can be fixed.

Are there any existing bills or proposals that have put forward a viable solution to this issue?

Get rid of patents. Simple, effective. Nothing convoluted about it.

The internet is global, legal jurisdictions are national. If the business risk of infringing patents becomes too high in the US, it creates an incentive for companies doing business online to move legal jurisdictions, or for other countries to offer incentives to internet based companies by guaranteeing that they will not support software patents. Presumably at that point pressure for patent reform in the US would increase, but by then it may not matter.

In a different context, favorable regulations are one reason that e.g. The City (i.e., financial district on London) is a global financial hub.

If you wish to do business in the USA, you cannot ignore US patent law. Therefore moving out of the US is a hardship for you with absolutely no potential upside.

Fortunately for many people, the US is not the only country.

Millions of companies survive and thrive without doing business in the US. At this time in history, we are used to thinking of the US as being a favorable business climate; relatively free of corruption with clear rules and low cost of business formation. It is clear that unless current trends are reversed that this will not remain the case.

If the governments of the countries of Northern Africa (Algeria, Tunisia, Libya, Egypt and Morocco) were to form a regional economic initiative that created those conditions from the Suez Canal to the Atlantic Coast and created a clean Intellectual Property regime with automatic licensing they would attract a decent share of global technology investment if they could make it stick.

Automatic licensing in this context being the rule that no one can deny another the use of an invention, but proven priority and disclosure grants an automatic share of the license collected out of the VAT or other tax on finished goods.

Automatic licensing sounds like a very interesting way to balance IP creator interests with IP consumer interests.

Extend the same principle to copyright: Hollywood can't refuse to sell me a movie just because I don't live in a certain geographical area, and RIAA can't deny YouTube users the right to cover and remix their music as long as a reasonable fee is collected by some other means, whether privately or via a public distribution scheme.

Perhaps the law should define a nominal amount per work that relieves the payer of all IP-related liability. The amount could depend on the type of work, and/or proportional to the profit generated, so that hobbyists who only copy stuff for personal use pay at the lowest bracket and people who make a lot of money out of other people's IP pay more, just like taxes.

Are there any obvious downsides to the idea?

> If you wish to do business in the USA, you cannot ignore US patent law.

Maybe I'm missing something, but what's stopping anyone from accepting money from customers in the US if their servers are outside of the US?

See the recent kerfuffle about online gambling domain name seizures. If something is deemed illegal for US consumers, the DOJ works pretty hard to shut it down regardless of jurisdiction - although if I recall correctly, one of the triggers for seizure in the online gambling case was that the sites were clearly marketed as catering for the US consumer.

Would it make sense to only give patents to companies that are actively developing something and marketing a product?

On that note, although this wouldn't work for ebooks, how about restrictive copyright for readers is only present while the book is still being published and sold?

To address your first point about patents, I really think that would be a bad idea. Making the patent code more complicated just rewards the people who spend lots of effort on mastering its arcade rules and not making something people want. In this case, a requirement that your product had to be in production would be an easy thing to get around if you had money and know-how (just make a small run of the product that meets the bare minimum requirements), but could really mess up companies that don't have the money to do that, or haven't lawyered up and don't realize they have to.

I think we're watching it now, actually. Big companies get the short end of the stick on crappy patents. It won't be long before they're lobbying to get it fixed.

If a major company like Apple, Google, Microsoft or IBM sues a tiny company for violating an "obvious" patent, it gets all over the tech media and the big companies reputation suffers.

And there's not much money in suing small companies, so it's not worth it. And the other big companies have enough lawyers and safe guards to make sure they don't violate patents (or at least make sure nobody finds out), so there's no money there, either.

On the other hand, the big companies are major targets for patent trolls, as this case demonstrates.

>And there's not much money in suing small companies, so it's not worth it.

This is too simplistic. The patent system is the way it is because big companies like it that way. The reason they like it that way is they can strangle any nascent competition with patent lawsuits before that competition has a chance to grab market share.

And it doesn't even matter whether or not the claim is valid - small companies can't afford to defend themselves, whether or not they win in court. The point of suing a small company for patent infringement isn't to collect money, it's to put that company out of business.

Before you panic, read the claims. From claim 1, the most limiting element I can see is:

wherein said embed text format is parsed by said browser to automatically invoke said executable application to execute on said client workstation

So you are potentially in trouble only if you use text format to point to an executable that you then load to the client.

Indeed, what we used to do on the Internet around 1993 (Gopher, listserv, X11 remote), is not quite exactly the same.

So yes, maybe Java applets and Flash plugins are in trouble (although I don't really think so). Everything else, no worries.

PS: I just checked the patent date: Oct 1994, not 1993. By then, I remember we were already launching live videos from web links... Sounds like prior art to me.

There's a bit of a problem, however. The patent (5,838,906) has already been nullified, and then subsequently reinstated on an appeal.


Tim Berners-Lee has already written about it:



This is still a pretty interesting fight. It might do you some good to panic, just a little.

I wrote a framework for safely launching and controlling applications from web browsers in '93 - presented a paper on it at the first web conference at CERN in '94.

What's scary is that Pei Wei, had he obtained a patent, would probably be able to defend it.

Interesting to note, the law-firm representing Mr. Doyle pays new graduates a starting salary of $177,500. [1]

[1] www.mckoolsmith.com/careers-summer.html

Considering the insane hours legal associates have to work for several years for the do-or-die chance at making partner, I wouldn't begrudge them that salary.

Can't they just hire two people for half the price and make them work normal hours?

They largely could. My wife is a lawyer at one of the largest law firms in the world, and a lot of what the trainees are doing could've been done by a PA or secretary, and much of it is certainly trivial to partition.

I'm sure there are legitimate reasons for some people to work long hours sometimes, but especially for the larger firms and at the lower pay grades, it's mostly a question of what makes the firm more profitable.

The reason they don't put more people on it unless they absolutely have to is money. They bill out people by the hour, but pay them a flat rate unless they are equity partners in the firm.

The harder they work them, the more they bring in for pretty much the same cost (except free dinner and paid taxi home after certain hours...), and at the same time, there's rarely an incentive for them to get their staff to work fast, as long as quality is good enough - if they're exhausted and slow down and spend more hours, it's more money for the firm.

While trainee salaries at the firm she's at isn't that far off what was mentioned above, due to the number of hours, trainees there are in effect making less per hour than the secretaries, and it takes several years post qualification to get to a decent hourly rate.

The reason they stay? A combination of wanting to make partner, which in this firm will make you millions a year, and a culture that frames it as personal failure if you don't meet deadlines that makes it impossible to actually stick to your contracted hours.

EDIT: So to specifically your question, of why not two people at half the price. People going for these types of jobs are at least in part driven to go for the high salaries. Since the pay per hour is laughable for the amount of education, if they were to halve salaries and hire twice as many people, they probably would not have many applicants.

The lawyer's explanation for this is usually that law is the kind of subject that requires one person to centrally have access to all the facts. A distributed system won't work, unless it has shared memory which, given the fact that we're dealing with people instead of computers, isn't possible.

Think of it like surgery: would you want the brain surgeon to tap out after an 8-hour marathon session for the next guy coming in? No, because the guy who just worked 8 hours has intimate knowledge of everything relevant to the surgery in progress. The same is the case with law suits.

At least... if my friends who are layers are to be believed :)

The entire point is to make it difficult to become a lawyer so that wages stay high.

Can two women have one baby in 4.5 months? Many types of work are not parallelizable, law is one of them. I could elaborate but you'd do better to ask a lawyer out for a lunch to talk about it.

that would make too much sense

That's pretty normal for a top tier law firm.

Wouldn't it be easier for all these companies to pool together, pay these people off, and then come to some sort of agreement with the patent office and the judicial folks to stop giving trolls wings and venues? It seems that would be far simpler than to try to reform the patent system, which will probably happen as soon as pigs start flying.

Microsoft is probably making just as much off the patent system as any other troll. They get money from android because of thier patents.

As long as they target other software patent trolls like Microsoft and Apple I'd be perfectly fine with it. They could become the batman of the patent world.

Microsoft and by extension Nathan Myhrvold are the ones running wild with patent lawsuits and using patents to strong-arm software companies. Microsoft claims FAT32 is an important, patented invention, and is trying to wrestle back control of SMB through the same tactics. SCO's legal assault against Linux is part of all this.

They've also successfully fought against Android and are now exacting stiff taxes on a lot of the Android devices sold because of the "technology" that's being used.

Apple's litigation has recently centred around design patents, not software patents, presumably to push Samsung into making their own designs and not just copying everyone Apple like they used to copy RIM.

Apple surely has an enormous stockpile of software patents, but their lawsuit activity has been pretty limited. I hear lots of bitching about people not getting into the App Store, but not much a thing about individuals being sued by Apple over software patents.

Apple's royalty payments seem restricted to those regarding specifically negotiated rights such as for the enormous multitude of officially licensed iPod/iPad/iPhone accessories. You can hardly fault them for this when the accessory market is so profitable for the companies involved in it.

If Apple stopped making iPods the market would dry up, but conversely, Microsoft's "technology" has no bearing on the success or failure of things like Android.

>Apple surely has an enormous stockpile of software patents, but their lawsuit activity has been pretty limited.

Yes, $100 million on lawsuits in one year is pretty limited.


Clearly Apple does not use bargain basement lawyers.

Secondly, why is that surprising that the largest tech company gets some enormous legal bills? You think Google's budget is just a couple of million?

By the way, Google's going after a chunk of the iOS pie by claiming patent violations: http://www.tuaw.com/2012/02/09/google-after-2-25-of-every-ip...

So much for being "open".

No, I do not find it acceptable for anyone to have a dagger at my throat, whether I trust them to use it or not.

I've seen such a high percentage of laughably bad patents in the software space that the phrase "patent troll", in my mind, is becoming nearly redundant.

Clearly the patent is invalid: the Internet is represented as a bean, not a cloud.

I just love this. Lots of dick-swinging and heart-bleeding and whining and greed. There is no right side in this. Everyone just wants their way.

The web is not some inalienable right handed down from God for the betterment of humanity. It's a clever idea that lots of people find handy. Kleenex and eyeglasses are clever, too. I don't see a movement to free tissue paper.

Why is anyone shocked by the prospect that it may come at a cost, directly or indirectly?

Life's too short, and too beautifully wonderous, to waste fretting about who's greed is good and who's is bad or unfair. Drama, drama.

I'm mostly with you but can't you empathize more with the companies he's suing, who have developed the seed of an idea to an extraordinary level, than with him and his small shitty company, who just patented an abstraction and never did much with it?

The web is not some inalienable right handed down from God for the betterment of humanity. Yes, that's why I feel sad when the people who meaningfully brought us the web get sued by people who didn't.

Why should I buy into the sad delusion that everything has a pricetag? Ideas are free until someone wants to make a buck off of them.

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