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Patent troll stalks travel site Hipmunk (gigaom.com)
188 points by chewymouse on July 5, 2012 | hide | past | web | favorite | 82 comments

A few thoughts:

1. The complaint here presents Hipmunk as the developer of an innovative travel search engine that offers something great that no one has ever offered and, hence, as a rising star in its market. It contrasts this with i2z Technology, LLC, - a Marshall, Texas shell entity run by a Silicon Valley lawyer - that invented nothing through its own efforts, that took an assignment of a soon-to-expire 1992 patent in July, 2011, that sued a score of mostly-large companies in the fall of 2011 for allegedly infringing that patent, and that made a letter demand on Hipmunk to take a license from it or be immediately sued. It notes, very pointedly, that the innovation done by Hipmunk from which so many people stand to benefit has no connection whatever with the patent upon which i2z threatens to sue. It further notes that, on the face of it, the primary claim of the patent in issue deals with two-window configurations not even used by Hipmunk. And it identifies prior art that Hipmunk claims invalidates the patent. Finally, the complaint states that this demand came to Hipmunk only after it had raised significant VC funding for the purpose of continuing to grow and to innovate and, rather than use these funds to pay for a worthless "license," it has instead elected to fight to expose this for the bogus claim that it is.

2. The themes of the complaint are almost a template for what is wrong with U.S. software patents at their worst. Patents are supposed to protect and encourage innovation. They are supposed to take things that would otherwise remain secret and get inventors to disclose this secret know-how so that it can be absorbed into an ever-broadening public pool of knowledge for society's benefit and, as a trade-off, give the inventor a limited monopoly barring all others from using the invention for a limited time even if those others developed it entirely independently of the efforts of the inventor. To get this monopoly protection, the innovation has to be truly inventive and not such that those skilled in the relevant art would see it as obvious in light of prior art; and it must be practical and useful as applied to real-world activities and cannot be so abstract and vague that it amounts to an idea, a law of nature, or a mere concept. To benefit society, the monopoly protection must extend to a point deemed reasonable for rewarding the inventor but not so long as to give him a windfall at the longer-term expense of others. All of these concepts applied beautifully to an industrial age where inventions tended to be tied to heavy machinery or to other innovation tied to long and expensive development cycles and where the resulting inventions were discrete and significant departures from the analog-style forms of prior art that preceded them.

3. Digital technology, when first deployed, tended to fit within the historical patterns but not so with software. When it comes to software development, development cycles have become extremely rapid. The ability, or even the inventor's desire, to keep innovation secret and undisclosed has severely contracted and, in a sense, much of what is innovative in software is an open book, with a whole universe of developers drawing from the same or similar sources and deriving very similar outcomes without reference to one another's work. Change comes quickly and incrementally and knowledge of that change rapidly becomes widespread. Often such changes, when reduced to practice, can only be described in vague ways that might be applied in all sorts of surprising ways to future incremental changes and, hence, the monopoly rights tied to such vagaries hang like a menacing cloud over anything that anybody might do in those areas. And even things that truly might be classified as inventive in light of prior art can be seen as being of very limited value in the broader swirl of rapid technological change within even a few years of the time they are given patent protection and hence giving every appearance of society's having given the inventor a 20-year windfall over what should instead have been incremental stuff worthy of 3-year protection at most. Now add to the mix an underfunded and besieged patent office whose examiners are not particularly qualified to make consistent, astute judgments about innovation involving software and who are effectively under quota-pressure to keep the patent grants moving along in the system - add further an enforcement system that imposes multi-million dollar costs upon those who seek to enforce their patents and also upon those who seek to defend against claims of infringement and that produces widely variable results tied to a jury system in which those passing the ultimate judgment can easily be confused and bamboozled in evaluating technical claims - add further that the appellate review level concerning patents has been placed in the hands of a specialized court having exceedingly close and sympathetic ties with the patent bar and with the idea of broad-based patent enforcement remedies (including potentially crippling injunctions) - add further that a specialized judicial district in a backwater Texas area routinely provides favorable treatment for patent claimants even when claims are weak or frivolous - add further that patent rights, being freely assignable, can be gathered in the hands of shell entities having no connection with any form of innovation but being intimately tied to a system whose purpose is to play the enforcement system to its maximum value in order to force parties to pay up or get swept into a litigation mess - yes, added all together, this becomes one lethal brew whose poisons now maim or kill, rather than encourage, the innovation that the patent system was designed to foster.

4. I am by no means hostile to IP rights generally. These can and do protect various forms of creative effort in ways that can benefit society. Still, IP rights when abused are the worst form of perverseness in a technologically-driven society and can and do damage society in serious ways. You wind up with those who have not innovated a day in their lives making debilitating demands on those engaged in brilliant innovation in furtherance of a cynical shake-down process that amounts to a toll on innovation with no offsetting benefits. The patent system has served the U.S. well for over 200 years. Its structure was put in place with the pace and methods of innovation fostered by the industrial revolution. That structure did not envision digital technology as embodied in software and has in the past 20 years become corrupted. It is time for a rethinking of what it takes in the patent area to encourage and protect software innovation. The current system, as exemplified in the Hipmunk case, is absurdly broken.

This is a remarkably readable and succinct explanation of what's wrong with software patents. Thank you for taking time to write that.

I don't want to discourage intelligent discussion, but your penned thoughts are about 3x the wordcount of the original article.

Or - tl;dr

The TL;DR is that the patent system is horribly broken and this is a shell company from East Texas trying to take the VC money of a hot new startup (among others).

The more interesting question is whether or not they'll get stuck in EDT or not. People have found several tricks to escape that particular jurisdiction only to have the trolls invent new counters. It sounds like they've filed a Declaratory Judgement action here, but it's hard to tell. But DJAs can be quite complicated[1]. So you can practically have your case dismissed as not yet "ripe" only to have them turn around and sue you in a jurisdiction where they can get money out of you fast (usually East Texas).

What I'd like to know from grellas is whether this particular DJA appears likely to succeed? Because I wouldn't be surprised any more to see it fail due to some oddball procedural trick, only to have them file suit in their home court the very next day. I even remember one time where a patent troll even abused a quirky local court rule in East Texas to file a day early and gain priority. In fact, I think that was complications arising out of that case that led to the shuttering of the excellent Patent Troll Tracker blog.

[1] See, e.g. http://www.patentlyo.com/patent/2012/03/3m-v-avery-walking-t...

Black and white ideas can be expressed succinctly. Shades of gray require detail.

Short and sharp writing is like candy for the brain. It feels rewarding to consume, but ultimately has little educational merit.

Taking a chainsaw to grellas' posts would remove the detail that makes them fantastic and educational reads.

I've written short posts about patents before. One of them got 72 upvotes this week. Nobody learned a damn thing from it.

Hacker News needs more of grellas, and less of me. Don't look a gift horse in the mouth.

Although this is true, I think the post from grellas could be trimmed substantially without losing nuance. And what remains could be formatted much more readably.

Writing for the web is different than writing for print. If grellas wants to maximize the spread of his ideas, he would benefit from learning a new approach.

On the other hand, his approach was perfect for me. A matter of opinion maybe?

Sure, but in writing for a broad audience, you aim to cover the bulk of the readers despite differing tastes. If you look at the examples from Jakob Nielsen's work on writing for the web, you can see that people who are fine with the giant-wall-o'-text approach are also fine with something that shows more structure.

I down-voted your comment. I don't believe in down-voting without giving a reason for having done so. Here's mine:

Your post adds no value whatsoever. Think twice before hitting "reply" if all you are going to do is post a negative comment that is utterly irrelevant.

Same idea can be expressed succinctly or with a lot of verbiage. Some prefer the former.

The point of my post was asking the parent to consider this point.

That could have value. Did you take the time to study the matter and post a succinct explanation? I'd love to get a link to your post.

You'll note that your comment has no value except as author feedback. Isn't that exactly the value of the comment you downvoted?

I always prefer to leave a comment when I am downvoting, and I think that, at least in my head, it's beneficial in encouraging the type of behavior I would like to see more of on HN.

Simply put, I would MUCH prefer to see a long, well-thought comment by someone who has obviously put effort into their post than someone deriding them for having been so wordy.

Regrettably, I downvote so much more often than I used to (because there is, whether it's acknowledged or not, a battle between the 'old guard' and the new) that I am not able to leave commentary where I once would have, nor would my ire be appropriate by my own standard, so I often drive-by-downvote, all the while envisioning the day where HN will either be saved from those who prefer to make short, catchy quips than well thought diatribes, or I will leave.

I don't mean to make this all dramatic, as I will likely leave unnoticed when that day comes, but I wanted to give some sort of additional commentary before saying that I also downvoted each of Omron's posts, and I don't feel that sort of post is at all appropriate here.

Grellas' commentary is often invaluable on legal matters such as this, and I am visibly disappointed when I see legal threads where I could use some insight, and can't find a topical post by him on the matter as his posts are almost always the most enlightening for laypersons such as myself that are nevertheless interested.

Lastly, while I generally abhor the notion of judging people by account ages or karma values, I think Grellas deserves far better than to be asked to shorten his posts by someone with 82 karma, though I would be just as vocal if Oman had 20,000 karma.

Posting an explanation for a down-vote is very rare. It should be a requirement for the privilege of down-voting on HN. It is also, in my opinion, good manners.

I disagree. Personally, I try not to down-vote anything that I also respond to. I reserve down votes for comments that I don't think contribute to the conversation, and I don't want to give them more attention than they already have.

I'd be fine with requiring an explanation that was visible only to the down-voted poster. I actually wish that more people would down-vote more freely, in the hope that low-quality comments would be more discouraged than they currently are.

Perhaps the part that you are not seeing is that if the poster truly cares about engaging with the community he or she cares about understanding why their post is being down-voted. A lot of topics usher-in fanboi downvoting which is petty and unfair. A down-vote with an explanation is good because it will keep the down-voter from impulsive action and create a better relationship overall. It is possible that the down-vote isn't appropriate, which could come out of a discussion stemming from the down-vote comment.

HN could easily make down-voting comments a requirement and then add a simply feature by which down-vote comments are folded below the original post and not visible. You could then have a "view down-vote comments" link that would reveal that thread. In other words, keep them out of the main conversation so that they don't clutter things yet make them available for review by interested parties.

Perhaps the part that you are not seeing is that if the poster truly cares about engaging with the community he or she cares about understanding why their post is being down-voted.

I see that, but am prioritizing the good of the group over the re-education of the individual. I think the majority of new posters will catch on to the norms of the site quickly, and those that don't will likely move on if they don't get responses.

HN could easily make down-voting comments a requirement and then add a simply feature by which down-vote comments are folded below the original post and not visible.

Fine idea. I posted it as a feature request here: http://news.ycombinator.com/item?id=4209304

I would have thought that education of individuals is nearly always good for the group, otherwise an "us and them" attitude becomes prevalent.

This may be true if the group has fixed membership, but if participation is open to all there a limit to the returns of educating newcomers. Picture a advanced sports practice that attempts to include those who have never played before, or an graduate seminar that spends its time answering basic questions for the benefit of whomever happens to be in the room. The benefits for the existing group will be reduced. It shouldn't be a black and white "us and them", but a certain amount of elitism can elevate the dialog.

This is probably the most blatant anti-intellectualism I've seen on Hacker News.

I generally skim walls of text as well but the post was well-written and -reasoned.

The original wordcount to response word count ratio is not really relevant IMO— for example, people have written thousands of pages dissecting the Tao which is a mere couple dozen pages long.

However, better layout (ie. more paragraphs) would help.

"However, better layout (ie. more paragraphs) would help."

Yes. I saw that huge block of text after just reading the GigaOM article and just skipped right over it. I came here to see what people thought on the matter, but I wasn't about to invest it all on one post.

Still, downvoting the other guy that mentioned the length of the piece is pretty crappy. "It adds no value to the conversation". Hell it doesn't. His thought was exactly my thought and the cause of my reaction (to skip the War and Peace-length comment).

For a "comment that didn't add value" he sure got a lot of comments.

They were all worth reading though.

The average attention span of the internet is not the best guide for an informative writing style. I like the fact that you will get long thought-out posts on here as it means people are actually expressing themselves with some level of depth rather than worrying about the needs of the easily bored.

I've proposed this a couple of times on HN. I think the solution to these issues is for someone of note to start an organization dedicated to fighting patent troll cases. To be considered for protection you have to become a member and pay annual dues. Such an organization could potentially raise hundreds of millions of dollars and have top-notch legal horsepower available.

It's mission would be to defend members and, in all cases, seek the invalidation of the patents in question.

If something like that existed, trolls would know that the potential consequence of trying to enforce bullshit patents would be huge financial losses and the potential invalidation of their bullshit patents. How many trolls would go up against an organization with 10, 20, 50 or 100 million dollars available to take-on a case?

I am saddened to say that it is an arms race. Given that, true entrepreneurs and startups need bigger guns. It would behoove VC's and virtually all entrepreneurs and startups to help fund and support such an entity. It would be like patent reform approached in a very different way. Knowing that the "nuclear option" is on the table could very well bring reason to a landscape that is simply full of land-mines.

There would have to be a mechanism through which companies of a certain size (Google, Apple, etc.) are excluded from receiving free services from this organization. They would, however, be expected to support it with generous donations. If the large players in the tech would each donated ten million dollars a year (a rounding error in their revenue stream) to such an entity, the organization could easily raise hundreds of millions in no time at all.

In a similar vein, I feel what's needed is a patent evaluation committee supported by an industrywide organization and possessing some legal standing. It could set down principles by which its members would abide, mediate or arbitrate between them in cases of disputes over patents (according to sane pre-established rules), and defend against non-members seeking to attack members via patents (your idea).

Even better if it could seek out bullshit patents to take them down and send a signal. Or volunteer resources to the USPTO to help evaluate patent applications (with a layer of neutrality/anonymity of course). What's needed is (fair) industry input in patent granting, so there isn't a disconnect between what's obvious to USPTO reviewers and to industry members. Better yet, the organization would be much better positioned to throw up prior art for the USPTO, which would go a long way towards throwing out spurious patents.

Pipe dream, I know. Maybe the EFF needs a new branch.

Good idea, but how would you determine who is a "patent troll"? Some of them are more obvious, like i2z. But 1-click is also a bullshit patent. Big companies like Amazon like to use patents both defensively and offensively. They're not going to contribute to the legal fund if it could be used against them.

I think the idea is more workable if you start with recruiting small to mid-size companies + VCs. The big companies are more likely to join on a case by case basis, especially with someone else taking point.

The organization would have to put into place a process through which requests for help from members are evaluated. If the lawsuit in question is determined to fit the stated mission, purpose and standards of the organization they take over. There could also be staged levels of paid assistance whereby the organization might handle the case at a much-reduced cost when compared to going through other avenues.

I don't have all the answers. Legal minds far more capable than mine would design a set of rules and options that would make this a true resource and, to use the term again, a "nuclear option" against trolls. I don't have a problem with the reasonable enforcement of legitimate patents, but the bullshit patents need a way to hurt those using them to troll in a major way. All you need is a few cases of trolls getting utterly destroyed in court for the environment to change completely.

"They [Google, Apple, etc.] would, however, be expected to support it with generous donations. If the large players in the tech would each donated ten million dollars a year (a rounding error in their revenue stream) to such an entity, the organization could easily raise hundreds of millions in no time at all."

Based on my admittedly limited perspective, it seems that the Googles and Apples of the world actually benefit from having smaller companies getting picked off by patent trolls, by reducing the strength of their competition. Why would they want to fight on behalf of their competitors?

Isn't the problem that it is so asymmetrical? They could still bleed the money out of your large fund.

It's a stupid claim, and we're taking the most agressive action we can against it, which in this case means suing them first.

I agree. "Displaying data in multiple computer windows" is an absolutely ridiculous patent.

I know you guys can win this, best of luck! :)

"Displaying data in multiple computer windows" is an absolutely ridiculous patent.

It would indeed be ridiculous if someone had a patent on displaying data in multiple computer windows, but that's not what was patented.

Here's claim #1 -- the other claims are similar in their specificity:

1. A system for synchronizing the presentation of data on a digital computer display, comprising:

first and second window-controlling means, each of said window-controlling means displaying information in at least one display window, a synchronization control means, and means for communications between said synchronization control means and each of said first and second window-controlling means; wherein said first window-controlling means displays first information from a first source, and said second window-controlling means displays second information from a second source; wherein said first information and said second information have sections, and at least one section of said second information corresponds to a section of said first information; wherein said first window-controlling means sends a message to said synchronization control means over said means for communications indicating a change in viewing position to a new section of said first information; wherein said synchronization control means sends a message to said second window-controlling means over said means for communications requesting a change in viewing position to a section of said second information corresponding to said new section of said first information; and wherein said second window-controlling means displays said corresponding section of said second information on at least one display window.

Remember, patents cover methods, not purposes. This patent covers a specific method for displaying data in multiple windows, not the general concept of displaying data in multiple windows.

Mind you, I still think it's a dumb patent. But let's make sure we understand what we're lynching them for before we get out the torches and pitchforks, ok?

Translated from patentese:

- Two or more windows displaying data from different sources

- The sources have sections

- Sections from one source have corresponding sections in another source.

- Changing sections in one window makes other windows change to corresponding sections.

- Basic message-passing communication to implement the above.

Prior art: Smalltalk MVC. Reference: Krasner&Pope, 1990 [1]

[1] http://www.ics.uci.edu/~redmiles/ics227-SQ04/papers/KrasnerP...

So any online video game is prior art?

I think my current terminal window is prior art...

There must be hundreds of examples of prior art.

I wrote a split screen sprite editor for dos about 20 years ago. I bet it's still on a 720 floppy some place in my basement. In fact, I think I have a source printout filed away too..

>> But let's make sure we understand what we're lynching them for before we get out the torches and pitchforks, ok?

Have you ever used Hipmunk? It's user friendly and all, but it's not rocket science in the 50s. I think it's fair to assume that any patent they're violating is probably bullshit without too much research.

According to the article, the patent is for a

    method and system for synchronizing the presentation of 
    data from different, but related, sources in different 
    windows of a computer display
It looks like this is person patented having multiple windows display related data in an organized fashion. Just as ridiculous, but differently so! And almost as vague.

Not seeing any specific numbers in the complaint after a quick scan of it. Did they state in the letter (which wasn't in the link) the amount they are seeking for the license?

Love it.

We've taken the same approach. Suing first. The problem is that all you've done is declare venue. You'll still need to settle because not settling will cost you at least $1mm to fight this in court. And if you win, and find yourself not to be infringing, they can just find another patent and start the process all over again. You'll never get your legal fees back. That's not how patent suits work. That's why it's such a scam.

I'd just settle and view it as a tax on innovation while working on changing the larger patent system.

Can you reveal what the troll was asking for the license in your particular case?

Although I'm entirely opposed to patents, a way to limit the exposure of companies to patent trolls if if these trolls need to quantify their "damages" in terms of lost sales or lost opportunities. If they're not actively developing products, that is certainly going to be hard to prove.

This presents a problem for legitimate patents - researchers and others who develop technology would only be able to profit from it by bringing it to production themselves, rather than selling or licensing the technology to others and continuing to do research.

Can you write any description that reliably distinguishes between a patent troll and anyone else who does not use the patent themselves in production (commonly called a "non-practicing entity" (NPE))? If not, that should tell you something.

(Not that practicing entities can't resemble patent trolls too, as evidenced by the numerous ongoing smartphone lawsuits.)

The issue with patent trolls isn't how they use patents - it's the patents that they use. There's nothing wrong with a researcher suing a factory over a patent the researcher holds that the factory is using without license. There's also nothing wrong with the researcher selling the patent to a lawyer, so as to avoid dealing with the legal system, and that lawyer then suing the factory.

This works if the patent was issued for a meaningful advance. In fact, the researcher may not have been interested in doing the research (or at least in revealing his methodology) without patent protection. If the methodology were not revealed, other people would need to spend the time to develop their own process, when it would be easier for them to pay the researcher and then use his work.

The issue with software patents is that the methodologies covered are trivial, and the time needed to develop your own method is trivial as well. Because the patents are granted for obvious solutions, many people end up violating the patent without ever having seen it; this is why patents are not supposed to be granted for obvious developments.

To roughly recall a comment someone made to me on HN a while back, if it's profitable to think of ideas and do nothing with them until you can sue someone else independently coming up with the same idea, there's a problem with the patent system. The whole point of patents is that they're for ideas that it would be unlikely that someone else would come up with on their own.

The problem I see with software patents is that they're usually attempts to patent ideas, but ideas aren't patentable. The implementations of most of the ideas in question are obvious and therefore not patentable.

I don't think that we, as a society should decide to allow ideas to be owned, so I do think we should crack down on trivial patents.

>> we should crack down on trivial patents.

I think everyone is in agreement on this, but the definition of "trivial" is the sticking point.

What about a distinction between people who license a patent to only one company (e.g., a university researcher creates a fast-and-accurate HIV test, the university licenses it to a company to produce & market it) versus companies who hold a patent and try to collect licensing fees from every company under the sun, most of whom have no connection to another?

I would suggest the following informal definition: A patent troll files and seeks to enforce patents of questionable merits, often in large volumes, while engaging in markedly little good-faith research.

That's not precise enough to work as a legal standard, but I think it might be a good first step in that direction.

Is there another way to protect these pure inventors from having their genuine inventions stolen while avoiding the trap of having these non-inventions being used to significantly damage innovation in general?

One thing that's missing from the current patent system is having to provide a working implementation. This requirement was removed fairly early in the process since the patent office was being cluttered up with too many scale models or other contraptions.

For software patents, one thing that would go a long way would be to make it mandatory and to ensure that the patent describes only the specific innovations expressed in the software and not some hand-wavingly vague potential interpretations.

The patent here is so absurd that it's amazing it even got approved. I'm certain that all the techniques described in this document had been done decades prior on many other platforms such as early systems like Desqview, or even the Xerox Alto. The patent clerk must've just rubber-stamped it since it sounded plausible.

This is a 1994 patent. Looks like it should be expiring in Nov. Better hurry up with that suit, patent troll!

November 9 does in fact appear to be the expiration date, that is, 20 years after the first filing date [1, 2].

The patent owner can still sue for damages for pre-expiration infringement, going back six years (which is the statute of limitations). But damages for infringement won't continue to accrue after expiration.

In addition, any injunction against infringement would expire automatically with the patent.

[1] http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sec...

[2] http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_St...

I am getting on a plane and won't have internet access for days, but can someone please start a site like IAmATroll.com or whatever and compile a list - hopefully with profile pictures - of patent trollers, and who they're suing. I'd be happy to help promote and maintain it when I'm back.

If we can't win legally, let's at least try a grassroots approach. Perhaps shame will have some effect on these people.

Why would you think shame would have any effect? Shame does not lose court cases or reduce patent licensing fees. You can't stop a patent troll by any means that does not directly affect their revenue.

The "green" movement seems to be making some progress.

"Green" has successfully affected revenue: people value green products and green companies, and "green" affects purchasing decisions. Patent trolls, by definition, have no products to purchase and no interaction with consumers; how consumers view them will have no effect on their revenue. Name-and-shame tactics don't help.

Massive public opinion campaigns could still prove useful in this case, but only insofar as they affect the legislative and judicial systems that support patents and patent trolls.

Companies that have a history of using patents offensively should however be considered for a boycott (Oracle, Apple)

"Patent troll" is generally considered to mean a company that does not make or sell anything. They can't be boycotted or countersued for infringement.

From a very cynical perspective -- a lot of that is still profit driven.

If turning a profit and a moral goal are aligned, so much the better.

I hate patents, but sometimes I wish that judges would just say that yes, the software does infringe, but that the patent represents one itsy bitsy tiny part of what's needed to make a successful product. Then award the patent holder what their patent is worth- $1.

I often think that the issue isn't so much the patents, but the absurd amounts of money people are able to extract from them- the money is in no way representative of the importance of the invention.

It is time for compulsary licensing of patents - just like there is with songs. With compsary licensing there would be no need to talk with a patent owner, just pay the license fee. This is how any band can "cover" any song. Congress thought songs were so important to our culture no one person should be able to control them and forced song authors to license their works to anyone who asks.

The problem with the current patent system is that it treats all patents from various industries (software, manufacturing, biology, chemistry, science, business, etc) exactly the same across the board and applies the exact same rules to all of them. While an overhaul of the whole patent ecosystem is needed and long overdue, I think the quickest/easiest way we can get rid of majority of patent trolls is to start having different rules for different categories of patents.

A couple of examples I can think of:

1. A patent with a tangible product will last for 20 years but a software patent should only last for no more than 5 years.

2. A medical methodology process can only be patented by an individual/company after showing evidence of the research put into it by said individual/company where else a software methodology process can only be patented if the patent holder is actually utilizing the patent as part of their business.

3. Manufacturing patents can be granted without actually showing the actual real-life process (and obviously it needs to be a novel approach and has no prior art) but all software patents need to be developed and attached a demo of the software patent in action (not just pictures and descriptions) as part of the requirement for the patent to be granted.

What do you guys think? I believe setting different rules for different categories will quickly elevate majority of our tech patent woes.


#1 devalues genuine software innovation. If a software innovation is genuine, why is it worth less protection? I understand that software moves faster than tangible products, but that just means "innovation" means something different in software. As a programmer, I oppose any effort to devalue software relative to other intellectual pursuits.

#2 Devalues genius. If a genius only needs 2 weeks to produce real genuine medical innovation, it should not be measured against some arbitrary measured effort standard quantifying "evidence of research".

#2 Also enforces arbitrary business requirements on software-using firms. Why can't a firm invent a lot of stuff and not implement it all at once? They should have the same rights to use their inventions as firms that work in other pursuits. (Again, this is dependent on the innovations being genuine.)

#3 Devalues software relative to manufacturing by applying a different standard.

These are hard problems that I can't answer at the moment; I'll freely admit that. But I continue to be shocked that the programming community tends to put forth answers that devalue its efforts, so I feel the need to point out that software is as worthy of protection as other fields. (This is a shocking argument to have to make to software people!) If there's a problem with the patent system, fix it across the board: software is not the problem.

#1 devalues genuine software innovation. If a software innovation is genuine, why is it worth less protection?

While a good general argument, you have to ask what software which was developed 20 years ago is still relevant today. Most software 20 years old is not even available today, and even if you had stored a copy, it would probably not be possible to find hardware which would run it correctly or at all.

Basically, 20 years of computing-time represents several generations of products and innovations. 20 years for a patent may have been a relevant timeframe when products had a lifespan that long.

I think it would be hard to argue that this is still the case.

The solution is not to extend software patents to 20 years. The solution is to reduce patent-time to fit the lifespan of products within the category which for the patent is valid.

Which for software would mean an absolute maximum of 10 years, with 3 years much more reasonable.

TeX was first released in 1978. BSD UNIX in 1977. I don't know how much of that code is running today, but I'd be very surprised if the methods embodied in that code (the patentable parts) have changed very much in 20 years. There may well be chunks of code more than 20 years old in both those widely-used and absolutely relevant systems.

Lots of decades-old C, Fortran and Lisp code compiles and runs just fine today. Code has been quite well decoupled from architecture since the 1970s, if you choose to write it that way.

>> Which for software would mean an absolute maximum of 10 years, with 3 years much more reasonable.

This still devalues the creation of software that is genuine innovation. Think about mainframe software that controls factories, for instance, which can be bought over 10 years after creation. Also consider the prevalence today of Windows XP, which shipped in 2001 (and where any relevant patents would date to the 1990s when it was developed). Microsoft has reluctantly stopped selling it, but I'd argue that we still don't know how long the useful lifespan of WinXP will be. And we're probably ~15 years in from when patents in XP would have been filed.

Before artificially segregating software into a ghetto, ask this: would this innovation be worthy of protection if there were a purpose-built device that performs the same function? If the device would be worthy of protection, then it's going to be hard to argue that the software embodiment is somehow worth less protection. (At least it will be hard to argue this with me, but I'm a chauvinist for programmers.)

Finally, the argument that the old software becomes irrelevant is congruent with equal protection for software. If old software loses relevance, then so do the patents (and correspondingly their utility to patent trolls). I think you mean precisely the opposite: old innovations in software actually become more relevant, so that everyone wants to use them in their own wares. Nobody rushed to shorten the lifespan of vacuum tube patents because they became irrelevant.

I don't think it's reasonable to reduce software patent lifespans to shorter durations than that of the hardware the software runs on, or the cables used to transmit it.

This still devalues the creation of software that is genuine innovation. ... Before artificially segregating software into a ghetto

I'm not sure if it comes through in my post, but what I wrote I intended for all patents, not just software patents. If your product or category of product (software or not) only has a lifespan of 2 years, patents for that product or product-category cannot be made to last more than those 2 years.

In that sense I'm not devaluing software (or any other products for that matter) any more than the people producing them already do.

That may not fully satisfy you and your point of view, but it seems to me it would address some of your concerns. If you still find it objectionable, I guess that's fine by me. We are all entitled to our opinion.

Sometimes, even reasonable people cannot be made to agree ;)

Fair enough, and your position makes sense to me. (A lot more sense than those who would specifically curtail software protections.)

I think there's something to this approach, but I can't help wondering how anyone would define the lifespan of a product.

Also, I think reasonable definitions would be much longer than you'd like and closer to the existing 20 years. I kept my last mobile phone for 6 years, for instance, so I'd probably say 10+ years is reasonable for technology in a mobile phone. WinXP is 15 years into its invention cycle, etc.

It's a very dangerous precedent for the whole startup ecosystem. Much like a venture capitalist, the troll is trying to get a share of a growing stratup, except that it's using racketeering, rather than an investment as its tactics. This needs to be stopped decisively, ideally adding the troll to vexatious litigant list, so that it cannot racketeer again with another patent



Did anyone else cringe at Hipmunk's use of the phrase "hard-earned venture capital"?

Arg, I just read the 1992 era patent and I am not sure what exactly the novel part of it is. Possibly it claims to patent a specific implementation of model-view-controller. This stuff is written so obtusely it's hard to imagine what specific claims of the things it describes is it really patenting. Disturbing is the large number of other patents that reference it. No doubt anything we do in the course of developing software violates some claim made in some patent somewhere that few have even heard of.

I can only hope that VCs are clubbing together to give patent trolls a good thrashing. Partly through lobbying; Congress should be sympathetic to innovation and job creation, especially during a downturn. And partly through a vigorous collective defense. Patent trolls turn their extorted money into more patents and more lawsuits. Like any parasite, the smart approach is to kill them early.

The last patent reform bill really did nothing. Why can't congress pass useful bills.

One can only hope that the previous licensees included a clawback-if-invalidated clause in their agreements.

Trolls likely will settle out of court. I hope Hipmunk doesn't fall for this trap either.

Maybe we should all message this guy on linkedin and tell him what a scumbag he is.. Just in case he doesn't already know.

I really wish more people would spend more time doing something valuable in the world.

i2z Technology = Loser

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