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Apple And Microsoft Behind Patent Troll Armed With Thousands Of Nortel Patents (techdirt.com)
189 points by pooriaazimi on May 26, 2012 | hide | past | web | favorite | 88 comments

"Once again, we see that these two large companies are using the patent system not to innovate, but to stop up and coming competitors from innovating."

Apple and Microsoft aren't the only "large companies" involved here - Sony, Ericsson, and RIM shouldn't get a free pass just because they don't look as good in a title.

With Google pursuing Microsoft's Xbox via Motorola Mobility, all the cool kids are doing it.

For all the hand ringing, the technology industry has been doing this since the days of Mr. Bell (and as a footnote, helping startups file patents was one of the original marketing points of YC just a few years ago).

The Google/Motorola deal has been closed for all of ten minutes, so that doesn't seem accurate.

But that made Motorola interesting for Google in the first place.

Do you have a reference for the Google/Xbox claim? Just curious because I haven't heard anything about that.

It was being pursued by Motorola even before Google bought it. Its part of defense against Microsoft's shakeup of android manufacturers.


+1. I'd be interested to see a reference to this. Haven't heard anything about it.

> With Google pursuing Microsoft's Xbox via Motorola Mobility, all the cool kids are doing it.

Well, that was Motorola (at the time), not Google. Google may have done it if they had the chance, but it wasn't them.

This is really annoying. I lost track of what was happening with the government investigation into the Nortel bidding but apparently they silently let it slide. And now we have this.

Is there realistically any chance of the DoJ or FTC stepping in here again to make the parent consortium (i.e. MS, Apple, RIM, etc. not Rockstar) answer for this?

Patents are government granted monopolies, to expect the government to then go back and untangle the ensuing cartels might sound fair, but I suspect it is naive or over optimistic at best.

I could see why Microsoft would do something like this, but why Apple? Does anyone know?

This seems more like an Apple move than a Microsoft move. It's a pretty common opinion nowadays that Apple is the worst in the bunch; beating the pants off any unethical stuff Microsoft might be up to -- or was up to even back in the day. I'd imagine Microsoft just needed to be on board so that they didn't get left out and screwed over by this down the line.

I am completely mystified by how these companies get together and work with each other on things like this.

> It's a pretty common opinion nowadays...

Apple is not the worst of the bunch. You have nothing to qualify that statement other than a hand-waving gesture.

The undisputed #1 king of patent trolls is former Microsoft CTO Nathan Myhrvold's company Intellectual Ventures and its various holding companies that sue anyone and everyone with patents that contain no technology but do contain lots of language that's very lawsuit friendly as the claims are sweepingly broad. Recently they tried to sue a large number of small developers that were using "in app purchasing" technology.

Number two is Microsoft who is extorting upwards of $15 per Android phone sold from a number of vendors as part of their "fair licensing" program even though zero Microsoft code is used in those phones.

Number three would be Oracle if only they could get better lawyers and a more agreeable jury.

Apple has been fighting to push back at the tide of design violations put forward by companies like Samsung and others. If you can name even one instance of where Apple has directly sued a small company over a technology patent I would be surprised.

You seem to have absolutely no idea what Microsoft was up to "even back in the day" because it was far worse than anything Apple has ever done. Remember the bait-and-switch with OS/2? The pricing scheme where DOS was $60 and the very same DOS + Windows was $30? Where companies like Dell had to pay a license fee on every machine sold regardless of if it was sold with Windows or not? The way they would switch up Windows to "break" other competing applications like WordPerfect and Lotus 1-2-3?

You seem to have forgotten that it was an arms-length Microsoft deal that enabled SCO to turn zombie and threatening hundreds if not thousands of companies that were simply using Linux, not even developing their own software.

The reason you're completely mystified is because you haven't done any research.

"Remember the bait-and-switch with OS/2? "

Ah, one of my favorite topics. Why did it take ten years after Intel released the 386 before 32-bit protected mode apps become common? Yea, the MS/IBM JDA was not particularly good, but the alternative MS took was much worse.

There was Windows 386 but that hardly counts as it was for multi-tasking DOS applications, something Desqview had already done for years.

What was shocking, as you hint at, was how Microsoft, which had been encouraging OS/2 as their "serious" OS for years, dumped that and somehow managed to convince people that Windows 3.1 was better.

It was like going from a space ship to a party full of clowns. Wasn't it possible to write Windows apps in 16 bit mode then?

>Apple has been fighting to push back at the tide of design violations put forward by companies like Samsung and others. If you can name even one instance of where Apple has directly sued a small company over a technology patent I would be surprised.

Is this some sort of revisionist history? What about these ~20 patents? I'd like to know which ones you consider as design patents.


I am not even going to waste my time listing patents used to sue Motorola and Samsung because I believe you're the one trying to handwave things here.

>The pricing scheme where DOS was $60 and the very same DOS + Windows was $30

God forbid a company set the price of its own products according to competitive pressures. What next? Kindle Fire should be banned?

>The way they would switch up Windows to "break" other competing applications like WordPerfect and Lotus 1-2-3?

Care to elaborate or provide references? Is there really a case of WordPerfect and Lotus 1-2-3 running well on one version of Windows and breaking on the next?

>Number two is Microsoft who is extorting upwards of $15 per Android phone sold from a number of vendors as part of their "fair licensing" program even though zero Microsoft code is used in those phones.

Where are you getting this from? this has never been proven and is built on pure speculation. Without a doubt they're earning some money from patent deals, but 15$ per unit sold? unlikely.

>The pricing scheme where DOS was $60 and the very same DOS + Windows was $30?

What? Microsoft are evil because they sold products cheaper than the rest of the market? Please think about what you just wrote.

>The way they would switch up Windows to "break" other competing applications like WordPerfect and Lotus 1-2-3?

Microsoft "switched up" windows up with a newer objectively better version of there operating system, Why is it there fault that Novell couldn't adapt to already standard technology used in other operating systems? I don't remember Lotus 1-2-3 ever having an issue running on windows, perhaps you could fill me in because I only ran this software for 15 years.

Citation please. Your "common opinion" has never actually been backed up with any evidence that I've seen.

You want a citation that proves it's a common opinion now? People express that opinion on here all the time. You're not going to find them in the Apple threads, obviously. Or do you want me to painstakingly back up this opinion with citations of how their closed ecosystem, strong arming (or outright disallowing) of their competition in the app store, and patent bullying is making them evil?

He wants you to justify your claim. Obviously you can't so I guess loud noises are in order.

I don't owe him 30 minutes of my time. Simply because I don't choose to fulfill his request for information does not mean that I'm here to make "loud noises." If he was actually interested and not just challenging my point because he doesn't share my opinion then he could have done this...


...to get an idea of what I meant by common opinion. That "citation please" thing is a quick and easy way to try and derail anyone's argument who isn't willing to spend real time digging crap up. It's perfectly fine by me if this makes me "lose the argument."

OTOH a quick and easy way to make your argument is to claim everyone holds it.

Let's inspect your claim:

"It's a pretty common opinion nowadays that Apple is the worst in the bunch; beating the pants off any unethical stuff Microsoft might be up to -- or was up to even back in the day."

Let's examine your first piece of evidence: they have a closed ecosystem.

Let examine something MS is famous for doing back in the day: destroying Netscape

No one in their right mind would put these in the same league, I don't know why you nonchalantly claim not only that they are but Apple's worse and that this "beats the pants off" MS in the evilness department.

Let's examine another one of your pieces of evidence: the removal of RA's app because it reverse engineered a private API or something.

Let's compare this to something else MS was famous for back in the day: bankrolling SCO's attempt to kill linux.

Well clearly again if we had a scale of evilness with Nathan Myrvold being a 10 and Hitler 100, MS might be a solid 6-8 and Apple maybe a 1-3.

So you can keep defending what you said til the end of time but I'm going to call it total bullshit and be done with it here.

Let's see. I've heard this argument before. Oh, right, that's because it's on the Logical Fallacies chart (https://s3.amazonaws.com/yourlogicalfallacyis/pdf/LogicalFal...)!

It's the "bandwagon fallacy" where just because an opinion is popular it must be true.

It wouldn't be too far fetched to imagine that it's simply because Apple knows that some of the patents involved are ones which cover areas they're working in and so by being part of the consortium that owns them they're covering themselves against potential problems in the future.

Once you're part of consortium, you might as well be part of the group looking for potential infringers. It behoves you to protect your investment and it provides potential ways to protect yourself in the future by being able to force cross-licensing deals if it turns out that you're infringing on someone else's patent(s) - these are supposed to be fairly fundamental patents so there's a good chance that who ever is suing you is going to be infringing on one of them, or else licensing it already.

This is a far better article about it - http://www.wired.com/wiredenterprise/2012/05/rockstar/all/1

Oh, was it Steve's anger about Android copying iOS? I could see that sort of bitterness making a company behave in a way that would otherwise be out of character.

Is that the consensus about why Apple did this?

If it is, could Apple undo the damage now that it's in more moderate hands? Or have they effectively set off a giant, evil autonomous robot that can't be stopped?

I think, it's not out of character per se, but Apple will be very threatened by the rise of Android. Android now leads the market (afaik), which was Apples position for years. Now, they only have two options in the current system:

  - change strategy
  - sue
Obivously, a huge company like Apple won't just change its strategy. Just building the fancy products they do got them at this point but may not get them much further. To sue is (sadly) the only other way to hold off competition.

What that change in strategy may be, i don't know. Maybe more openness and try to break out of the walled garden they build..

There is only little space left in the niche that Apple occupies (selling expensive tech products to people that can afford it), especially when there is so much competition in the whole market. Apple had a major advantage for years in the market with the iPod and iPhone and i will be really impressed if they can think of the next big thing(tm). If Apple can't come up with the next big product and just keeps going, they may only be able to sue to hold off competition.

That's only talking about the mobile market of course.


I'm hoping for months now that all major companies just sue each other into checkmate until it becomes obvious to the governments that the patent system has to change. Please Apple, MS, Google, etc. sue until you are not allowed to sell any products anymore! I very much look forward to it.

I believe Android leads only in a pure device count kind of way. Apple leads (far and away) in terms of profit per device, and that is the interesting metric for all large corporations. Google's Android play has always seemed defensive to avoid getting locked out of search if usage patterns on mobile shifted to non-web based interactions. Google does NOT want Apple, Microsoft or anyone else stepping between them and their users, especially since they make money with ad targeting/serving. As for Apple selling luxury toys to the well heeled, I recall reading recently that tablet manufacturers have all but admitted they can't price compete with the iPad. If Apple starts lowering prices to move down market, with their impressive vertical integration, I think it would be a blood bath for people currently in those spaces. I suspect we will see moves like this before the year is out. Not a good time to be Dell, Asus, etc...

>Apple leads (far and away) in terms of profit per device, and that is the interesting metric for all large corporations.

And this is exactly why I find it quite baffling that Apple are suing like madmen in the recent years.

They have a position they feel is worth defending. I don't see this move (and to be clear, it is a distasteful move) as anything other than piling obstacles in the way of current or potential competitors. It is easier to prevent a competitor from rising up than it is to combat one that already has a foothold. I doubt this is a significant part of any strategy on their part other than "throw molotov cocktails all around to keep competitors busy/distracted". I would like companies to compete on merit and win by, you know, convincing consumers their offering is the best. Current corporate culture seems to view that kind of outlook as quaint or naive and prefers this kind of ass-hattery. I continue to hope for an eventual attainment of more sophisticated outlooks. The fact that such retarded, petty shit continues thousands of years into organized society is discouraging.

It goes back to their battles with Microsoft over the graphical desktop. Apple's hypersensitivity to perceived copying has been baked into their company DNA.

"Apples (sic) position for years?" Apple has NEVER held the market lead in smartphones. They've been a minority of the market since the introduction of the iPhone in 2007.

And your description of the "niche that Apple occupies" in nonsensical.

Yes, Apple has had a major advantage for years; the iPod was very well designed, as was the iPhone. And funny enough, you should be impressed because they've already thought "of the next big thing(tm)." It's called the iPad. You might have seen one here and there.

If you seriously think that Apple is successful because it builds fancy products, that their walled garden is anything but a success, and that there is "only little space left in the niche" for Apple to grow in, you haven't been paying attention.

That's your point of view. You may not have paid attention to the competition growth over the last years. Where is your reasoning that Apple will dominate the tablet space for the coming years? Do you seriously believe, that what happened in the mobile space, won't happen in the tablet space? Then you're just ignorant. And Apple knows that. Apple is arming itself and will defend itself in the court. That was my reasoning in my original post.

No, it's not my point of view, it's a fact. Apple has never held the majority of smartphone market share.

And my reasoning that Apple will dominate the tablet space is because they have sold arguably the best tablet in numbers that dwarf any other vendor, or all other vendors combined. With the iOS ecosystem supporting it, the chances of another vendor usurping the iPad's lead in the next five years is unlikely.

And what has happened in the mobile space? Apple introduces a smartphone with the goal of 10% of the market. They have had year over year growth in that market, and now are in the mid 30's of share percentage. They dominate the smartphone market when it comes to extracting profit, and have one singular competitor, Samsung, who is beating them in "shipped" units.

If Apple were so unfortunate to have the tablet market follow what it has done in the smartphone market, there will be a lot of happy Apple shareholders in the future.

I can almost see the Reality Distortion Field(tm) around you.

Ad hominem. Why not put up some facts to dispute what I'm posting?

The latter?

"Moderate" is always relative to standard industry practice. If patent trolling isn't standard industry practice quite yet, it's fast getting there. "Don't be evil" is a lot harder when evil is the norm.

I don't know any better than you, but it looks a lot like it's intended to harass Google (edit: without dragging down Apple's brand)

That was my first thought as well, but Rockstar is not just going after Google but carpet-bombing the entire technology world (phones, routers, etc - anything). So why would Apple be on board with that?

Collateral damage?

My knee-jerk response was "an escalation of Apple's holy war on Android," but perhaps this is the first phase in a deescalation. Tim Cook has said he prefers to settle rather than battle, and what better way to bring HTC and Samsung to the table than with the acquisition of a not-so-subtle guillotine forged from key LTE patents?

How is this really any different than all of these companies (and many others) investing in IV? or are those "investments" effectively just the licensing fees to the IV pool?

My understanding is the most of IV's "investors" didn't buy or otherwise provide the patents that IV uses (which does suggest the payments are closer to licensing fees than true investments). With Rockstar, we have specific players (Apple, Ericsson, Microsoft, RIM, Sony) buying the patents and funding the troll in the first place.

One odd thought crossed my mind - most proprietary software you use has a clause prohibiting reverse engineering in the license agreement, and here they are admitting to the world that they routinely ignore said license agreements. Are they making themselves liable for copyright infringement here since they're using the software without a license? How enforceable are those "no reverse engineering" clauses anyway?

Didn't they make a deal with DoJ and the judges from Canada that they won't do something like this, if they get the Nortel patents?

They seem to have found a loophole by creating a new company to own the patents.

I submitted a story midweek about this same topic and was wondering why nobody else seemed to be concerned. I'm happy to see that is not the case because I don't think anyone in our industry is helped by protectionist maneuvers like this.

People wonder why there are fewer hardware startups, but I can tell you the hardware guys I know have expressed concerns over patent issues for not helping me work on a low-power server (and I need their help because I'm too dumb to do board layout on my own).

What makes it to, and stays on, the front page has a large random component.

I'm quite happy for these trolls to go crazy on this one. Patents need to get so insane that eventually we might stop and say WTF are we playing at. Bed made lying in it. Software patents don't work, they never have.

I doubt there are many software patents in this portfolio. Most of these patents most likely cover the L1/L2 protocols for LTE and other wireless standards. These are normally available through FRAND agreements.

Disclaimer: I work for one of the companies that bought the patents.

I'm totally serious about this question: how do you feel about the company you work for doing this?

Personally I don't approve of _software_ patents but these ones don't bother me that much. I don't really see this different from all the other patent licensing deals we have with the rest of the (wireless) industry. These are part of the way these standards are developed (available under FRAND licenses) and licensed.

If you want to bring in a moral perspective I personally feel that a bigger problem is what to do about "legal intercept" features. Especially when selling equipment to countries with regimes that want to misuse them.

But lets say this included some trivial (or non-trivial) software patent and this jointly owned company started trolling a lot of individual developers and/or smaller companies. Then I would feel different about this.

> bigger problem is what to do about "legal intercept" features. Especially when selling equipment to countries with regimes that want to misuse them.

As an Iranian (whose government routinely and 'legally' intercepts everything and everyone), I can't agree more with this sentiment :)

What evidence would it take to convince naysayers that patents are generally a force for good?

1) Isolate the pros, isolate the cons.

2) Establish how to measure each.

3) Make detailed study to quantify pros and cons.

4) Sum pros and cons.

Step 2 is probably the hardest to find a common ground where both sides would agree on. Step 3 would be lengthier and most expensive. But if steps 1, 3 and 4 are done with scientific scrutiny, peer reviewed and reproducible. Then it's just a matter of each interest party adjust step 2 to whatever they agree on.

For software patents, I'm pretty sure you'd have to be so naive to believe the pros outweigh the cons that most of the anti-patent won't even bother going deeper. And most of the pro-patent wouldn't dare trying. Sure I would rather have a good study with a large data sample. But the anecdotes we see every day as developers, are so obviously biased to show patents are a net negative. That I doubt many of us would think a bigger data sample would revert that. At the end of the day, this isn't a problem of lack of scientific method, but a problem of individual interests having a louder voice than the interest of most.

Necessary but not sufficient: technology that wouldn't have been developed if not for the ability to patent it. There are plenty of examples for drugs, and approximately zero for software as far as I'm aware.

I'm not convinced about the drugs argument, there is plenty of evidence that the chemical and medical industries have worked very well without patents in the past.

See also this about patents in the pharmaceutical industry: http://levine.sscnet.ucla.edu/papers/ip.ch.9.m1004.pdf

In any case, what is beyond all doubt and all question is that patents in the software industry are a totally insane and extremely harmful thing, and is only getting worse.

How do you go about proving that (either way) ?

Stating the null hypothesis tends to greatly simplify questions like this.

In this case, the null hypothesis is: "Software patents do not allow the development of technology that would otherwise not be developed." (In other words, "they are not good")

It is important to note that null hypothesis's are never proven, only disproven. That means you won't prove that software patents do not help (failure to show otherwise could mean nothing more than you did not look hard enough), however you can trivially falsify the null hypothesis if you find a single case where software patents helped.

Of course in the event that you falsify the null hypothesis you haven't proved "software patents are good", but rather "software patents can be good". (If you want to go with "they are good", then that becomes your null hypothesis and to disprove it we nearly need to find a single case where they are not. If you want to roll with the 'generally' thing, then you should first start by defining exactly what generally means in this context then go from there.)

As for judging data points to determine what exactly they show? That's rather up in the air. Pick a case, state the facts, and argue why you think those facts indicate what you assert they do. This is really more of a soft science.

I'm not sure how valuable the bias from developer anecdotes is. Naturally patents are going to be annoying for the business that covets the technology they cover. If you have patents at all, you will have friction. Bit like how you can't have parking tickets without having people complain about parking tickets. The majority of users and developers the majority of the time have no trouble with patents. At which point you can argue that it's a hidden cost, something that affects all of us without being immediately obvious. And that's precisely my point... if it's a hidden cost, it could equally be a hidden benefit.

I just don't see much worthwhile dialogue going on in the patent debate, just shouting in both directions. For instance in this article, it's not clear to me what people are objecting to. Are people annoyed because someone is trying to enforce a patent? Or is it just because a group of large companies have acquired the patents? Does that imply that we're happy for small companies to have patents, because they'll probably never enforce them anyway, but unhappy for large companies to have them, because they'll actually put them to use? Or is it the nature of the patents (I don't see much analysis of what the patents really cover... they could conceivably be things which took a lot of R&D)? Or, indeed, is it the concept of patents in general? The article did mention stifling innovation, but that's a bit vague - it stifles business activity but that energy could arguably be used on alternative that would be more innovative.

> "I'm not sure how valuable the bias from developer anecdotes is..."

This is a legitimate concern, and something you have to contend with when you're engaging in the softer sciences. Someone with experience in something like sociology may be in a better position than most of the HN crowd to effectively study this topic in a rigorous fashion.

Anyway, (the way I see it) people are objecting, particularly in this article, because they view patents in software as something that can only do one of two things: nothing (read: sit in a companies portfolio never to be read or cared about, only padding the companies patent wallet), or harm the industry by stifling innovation and feeding the lawyers. Put briefly, they, unlike you it seems, do not accept the idea that patents in the software industry can actually do good.

It's not the concept of patents, it's not that large companies are using them, it's not that people are enforcing them, it's not any of that nonsense. It is more that none of these things have anything to do with improving the industry we have invested our lives in. I think you had a grasp on this concept earlier, but lost sight of it when you tried to analyse it too closely.

Patents in the software industry cannot actually do good - why? Because patents are wrong to start with and the conditions of the software industry (fast-moving, high volume of research/invention) magnify the problem? Because the patent office isn't sufficiently equipped to grant reasonable patents on software (judging 'obviousness' etc.)? Because all these HNers have personal experience of being constrained by patent issues? Because coming up with ideas for new software methodologies/techniques is not comparable with the R&D of other industries?

It's not the concept of patents, it's not that large companies are using them, it's not that people are enforcing them, it's not any of that nonsense...I think you had a grasp on this concept earlier, but lost sight of it when you tried to analyse it too closely.

This sounds a bit supercilious.

I'm going to be honest with you. You have me at something of a loss for words.

I think I have given you all the tools you need to understand this issue at this point. Remember that thing I wrote about the null hypothesis? Well people who disagree with you do so because they have yet to see that null hypothesis convincingly falsified.

If you want to disagree with that, then knock yourself out. It requires absolutely zero expended effort on your part to disagree; I disagree with uncountable things in this world every day for a grand total of zero calories burned.

If you want to disagree and convince others of your point of view, then you are going to need to put some back into it. Rationally and methodically state your case for the falsification of the null hypothesis. Write it up on your blog and post it to HN. If the community considers it worthy of discussion, they will address it.

You seem to be attempting some sort of 'know thy enemy' nonsense. Stop. You are clearly unable to or unwilling to wrap your head around concepts you disagree with, so stop wasting your time. Understanding why people think what they do is unimportant, just state your case. I've already told you how.

And do make an effort to post it as a new discussion when you do so, instead of attempting to hijack another discussion looking for a flamewar.

tl;dr: Our case: the null hypothesis has not been falsified. Your case: ???

I eagerly await your blog posting; I think we are done discussing this in this other person's article's comments.

Contradicting the null hypothesis is easy: any time a potential investor has asked a small company with a bright idea 'but what's to stop someone else just copying your idea after i've paid you to develop it?' and the developer replies 'well, we have patent protection' to reassure him/her, patents have been useful and supportive of innovation.

The problem is that the argument will immediately move on to the net benefit/detriment to the industry, at which point we need to establish the principles on which people object to software patents.

You are clearly unable to or unwilling to wrap your head around concepts you disagree with, so stop wasting your time.

Less condescension maybe?

Even if they are it doesn't matter. People aren't going to brush off the general badness of software patents by saying to themselves "But it's okay, patents are a good thing in the long run."

That's called denial, and it isn't just a river in Egypt.

I'd say anyone defending the patent system in general, or the application of patents in a specific field such as software or business methods, needs to answer a two-part question.

True or false: Everything that exists and that qualifies for patent protection has, in fact been patented.

True or false: This is a good thing.

Software patents, or patents in general?

Software patents, but not necessarily the current implementation of software patents. For instance is the patent office is really bad at examining software applications, that's not a problem with the patents concept, but a problem with the people in charge.

There seem to be different classes of industries where the benefits and harm of patents are different.

There are industries like pharma where the IP is difficult and expensive to create, but manufacturing (and reverse-engineering) it is relatively easy. Patents appear to be helpful in recouping R&D costs there (at least when and where they're enforced).

There are also industries where both the IP and the implementation are costly and time consuming, notably the microchip industry. Intel is the perfect example - they derive significant value and competitive moat from both their CPU designs and their manufacturing capability.

Do they need patents? I don't know the degree to which patents currently contribute to Intel's dominance, but it appears it would be difficult to catch up even with no patent protection on Intel IP whatsoever.

And then there are industries where the IP is cheap and the implementation can be either cheap or costly, like software. This appears to be where patents on IP do more harm than good. The article expresses the problem very well:

... There's also a ridiculous quote from Rockstar's CEO, John Veschi:

“A lot of people are still surprised to see the quality and the diversity of the IP that was in Nortel,” he says. “And the fundamental question comes back: ‘How the hell did you guys go bankrupt? Why weren’t you Google? Why weren’t you Facebook? Why weren’t you all these things, because you guys actually had the ideas for these business models before they did?’"

The real answer, of course, is because patents are meaningless. Ideas are worth nothing by themselves. Ideas only matter if you execute, and anyone who's ever actually executed on an idea will tell you that the original idea almost is never reflected in the final product. The process of going from idea to actual product is a process by which you learn that what matters is not what you thought mattered. And yet, for reasons that make no sense to anyone who has ever actually built a product, creating monopolies around the ideas only serves to create a massive tollbooth towards actual innovation. And that's what we have here -- and it's funded by Apple and Microsoft.

So, what would you consider an appropriate software patent? Let's say that some things, like logical addition, are not patentable. Would PageRank be patentable? How about swipe gestures on phones?

I dunno, engineers driving Ferraris around or something?

Oh no, they will be called 'patent trolls' then.

The only engineers with Ferraris that I know are either targets of patent trolls, or have successfully escaped any involvement with the patent system one way or the other.

Posted because of hypercritical.

Exactly! None of the previous submissions had made it to the front page, so I googled for "rockstar apple patent troll" and submitted this link and totally forgot about it afterwards. Now I woke up and saw it's on the front page and I'm very happy that many are now familiar with the issue :-)

The nightmare never ends.

You have an idea ? There is a patent for it! Apple.


When I first heard about the setuid patent, I thought it was pretty cool. That was, I don't know, 1989.

I think it was 1992 or so before it was really clear that patents were the true and final nemesis of my chosen profession. By "clear," I mean "obvious to anyone not in denial." Of course there's a lot of denial.

By 1999 I worked for a company that routinely filed what we called "linked list... on a phone!" patents. Unwired Planet - the geniuses behind WAP. In fact, I think there never would have been a WAP Forum if we hadn't muscled Motorola, Nokia and Ericsson with our HDML patents. (These crap patents probably provide most of the remaining market capitalization of UP's remnant, Openwave.)

Across this continuum, I have heard a continuous strand of discourse denying that there's a pit at the end of this tunnel. This discourse relies existentially on the belief that just because people could be evil, doesn't mean they will be evil. Which is true, but only in the short run. Facilis descensus Averni.

It is funny that the Unix team at Bell Labs ended up realizing the setuid was not such a good idea after all, and replaced it with a much better design in Plan 9 (meanwhile this has been pretty much ignored back in *nix land, where many limitations, like the lack of usable private namespaces, and security issues are due to setuid):


Somewhere there is a comment by Rob Pike (which I can't find now) about how it was ironic that the only thing patented in Unix early on turned out to be such a bad idea after all.

This historical notes aside, that we allow this software patent insanity to go on is scary and depressing. The billions of dollars being wasted (not to mention the amount of time and other precious resources) because of patents is staggering.

  I think it was 1992 or so before it was really clear
  that patents were the true and final nemesis of my
  chosen profession.
The real issue is that patents favor large players (even if they are 'branching out' and aren't an incumbent in a particular area) to the detriment of smaller players.

I think the REAL issue, is that they lock up IDEAS. Ideas by themselves are inherently worthless. It's the EXECUTION that matters. Everyone has ideas. Some are great, some suck. The idea by itself is really meaningless until someone does something with it. Ideas, to me, are like knowledge. They should never be locked up, and should be freely shared.

Patents aren't supposed to lock up abstract ideas, they are supposed to unlock concrete implementations of ideas (unlock by giving details of the implementation to the public in exchange for a short-term monopoly).

There are good arguments either way for whether this is a good idea, but make the ideas far more abstract (like software) and add incredibly short technology cycles (like software), and there is no doubt it's a bad idea.

Patents have never actually worked that way though. For instance, take a look at the history of the early US automobile industry sometime.

That is an excellent point! The way they are used vs. the way they are MEANT to be used, seem to be worlds apart.

Patent trolling as a business, which IV has proven is viable, relies on a precondition: patent litigation must remain expensive. In specific, it must be prohibitively expensive to determine whether each and every asserted claim in each and every patent asserted against an "infringer" is valid. This determination can only be done via patent litigation.

What happens if this precondition does not exist?

The patent trolling business will fail.

This is because everyone knows most, maybe even all, of the claims in the patent portfolios the patent troll has amassed are not valid. They are potentially worthless. Companies simply do not know which ones are valid and which ones are not. And it's too expensive to find out. So companies are willing to negotiate instead of engaging in patent litigation.

If we were to make patent litigation so inexpensive that anyone could afford to "call the patent troll's bluff", these ridiculous patents would never be filed for much less asserted. In other words, if we could have an inexpensive determination of what claims are valid and which ones are not valid, we could separate the wheat from the chaff. And these enormous patent portfolios would shrink down to size. Just the wheat. If there is any. It would be difficult to make hollow threats and engage in IV-style extortion.

It is only the expense of finding out whether a claim is valid (through litigation) that makes patent trolling a viable business.

Maybe patent lawyers managed to get the best of Myrvold while he was a CTO, and he believes by opening the gates for a vibrant patent trolling industry, he will make life easier for every technology company in the future. All they have to do is pay some protection money and their worries will be gone.

"the belief that just because people could be evil, doesn't mean they will be evil"

You might attribute the problem to immaturity. Behold the attitude in this thread: finger-pointing.

A patent is not a right or an obligation to produce anything.

In truth, it is a right to sue others.

But surely, that is not how most patent applicants think about patents when they apply for them. We expect they are have intentions to produce something. We expect they will have products or services to sell or license.

People on the web discussing patents are apt to mention government-granted monopolies and pull out quotes from the US Constitution about promoting the progress of useful science and the arts.

Clearly, these people are not just thinking about patents as rights to sue: "If I obtain a lot of patents I can start threatening to sue other companies." They are thinking about companies that are planning to produce something and bring it to the marketplace, and the competition those companies might face.

But the IT industry is showing us that indeed there are people who are thinking of patents as rights to sue. Thye even think this somehow constitutes a legtimate "business". Because that is the ONLY way they are using patents. "Patent troll" is a term coined by someone in the IT industry. That's where it was born. It's proliferation as a "business model" is being led by a former Microsoft employee.

As is true of technology, a patent portfolio is not inherently "evil". It depends on how it is used. The IT industry is showing us how to use patents in the very worst way.

I call it immaturity. Steve Jobs throwing a hissy fit and calling Eric Schmidt from Burning Man about Android.

The problem is not patents. It is how the IT industry is using them.

From the Wire article:

"It was run by friendly Canadians who did not want to antagonize partners and customers by suing them."

Oh well, the patents have found their way into the right hands now so it's all good. Let the American-style antagonism begin.

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