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The Patent Protection Racket (joelonsoftware.com)
190 points by doty on Apr 2, 2013 | hide | past | web | favorite | 94 comments

I just spoke with a friend about a time when his company was approached by a patent troll.

The patent in question was granted in 2002 [1]. He had himself worked on the technology under "patent" in 1998, and was able to find someone who had published material as far back as 1995, and who was willing to send supporting documentation and to, if necessary, testify.

He talked with his attorney, who agreed the prior art he'd found was spot on, and that in legislation they'd be almost certain to win. But that it would cost ~$3m.

The patent trolls also were going after names such as Amazon, Facebook, and other huge companies. The troll was asking for $200k for a license from each company. As far as my friend knows, they ALL settled (or at least many of them had).

There were 15-20 names on that list. If they'd simply put the $200k-$300k of "licensing fees" into a common pot and used that money to fight the troll, then it would have done a small amount of good in defeating one troll's patent.

But really the whole system does need serious reform. His suggestion was to cause the patent trolls to have to PAY for legal fees if they lose a patent challenge, though that would just encourage them to sue from individual corporations that would declare bankruptcy on losing.

But I think software patents should simply be disallowed, or the bar raised (somehow?) to exclude anything vague and hand-wavy. One thought I've had was to require an implementation of the process being patented. Then it would be far harder to claim that your patent covers something only vaguely related, and the patent would actually be useful for its original purpose, which was to put the knowledge into the public domain when the patent expires.

[1] I wouldn't swear to the dates; they're from memory. The approximate order/scale is correct, though.

If there is hard evidence of prior art, then filing an ex parte reexaminiation[1] is certainly not $3M.

[1] http://www.uspto.gov/web/offices/pac/mpep/s2210.html

I thought Blackberry/RIM actually WON one of those, but then ended up paying $300M anyway? The press reporting was unclear, but that's what it seemed like had happened, which never made any sense to me. Maybe it was still pending an appeal by the patent holder?

Again, I don't know enough of the specifics. I'll ping him and see if they did that.

>But that it would cost ~$3m.

Can you elaborate (if you have any idea) what this cost actually consists of?

Sorry, I don't know any more of the details. It was a casual conversation about patents and spurious lawsuits in general (they'd also been sued in a class-action, which they did fight and "win", in quotes only because apparently the attorneys for the plaintiffs are likely to appeal, meaning it's not over yet), and I've related what I remember from it.

Though I will say this: He absolutely wanted to fight. He completely hated the concept of paying the extortion. But as a representative of a VC-backed company, he couldn't in good faith spend $3M on a lawsuit that could be put to rest for $200k.

Could he pool resources with others affected by the same troll? Busting these patents would benefit all these victims, and coming up with $3M from many sources would be easier than pulling this through alone.

That was the essence of my suggestion above.

I mean, what prevented them from doing it, lack of trust in choosing one fighter?

I don't know. May have been simply lack of time to try to contact all the legal resources on the list, or some may have settled already.

EDIT: To be clear, he was telling me about this LONG after it had happened, so I don't even know whether he considered the option at the time.

If it's such an open-and-shut case, why hire a high-powered firm that'll cost $3M instead of some kid fresh out of law school who wants to make a name for himself and is willing to take ramen wages?

If it were a small start-up, that would one approach. Problem is that kid may screw things up and lose the case. Maybe not, but we're talking a VC-backed company with a board of directors and such. He did tell me that, looking at the list of other companies being sued, he felt that his company had "reached the big time." (The odds you've heard of his company are not very good -- I wouldn't have heard of it except that I know him, though I did run across it in an article in the last couple of months.)

The concept of hiring someone on the cheap to fight it isn't really one of the options on the table when you have investors and a board to keep happy.

The one reform this suggests is a requirement to list who else has has licensed a patent, or who has been sent a letter of "offer".

Can anyone here give (and defend) an example of a good patent? By that I mean one that is non-obvious, novel, and clear enough to be able to be used to build the claimed invention.

It was the patent on the field effect transistor that lead Bell Labs to invent the bipolar transistor: http://www.pbs.org/transistor/background1/events/patbat.html.

Also at Bell Labs, OFDM: http://www.google.com/patents?id=9ZFEAAAAEBAJ&printsec=a... (based on a paper published that year).

If you look at the implementation of something like LTE, there are a lot of non-obvious patented technologies in there: http://blogs.wsj.com/digits/2012/10/03/plan-to-pool-lte-pate....

Tesla has a boatload of patents and some of them are quite interesting: http://www.faqs.org/patents/assignee/tesla-motors-inc.

SpaceshipOne (which won the Ansari X-Prize) is patented. http://www.spaceref.com/news/viewsr.html?pid=23871. It's owned by what is basically an NPE, which serves as the investment vehicle for commercialization of the technology.

Fundamentally, you can't understand all sides of the patent debate unless you learn about how traditional engineering works. We're talking about fields where it takes $10 million to come up with a new idea, $100 million to do an MVP, and $1 billion or more to really put something complete on the market. E.g., here's a Rolls Royce gas turbine patent: http://www.faqs.org/patents/app/20130078582. I guarantee you they burned tens of millions of dollars figuring out what those numbers should be.

This is not a space conducive to startups. Thus the need to avoid a few million here in there in defending frivolous litigation is less important than the need to be able to propertize the results of R&D, so it can be traded, bought sold, shared in structured ways. Without patents, a company like Scaled Composites or ARM wouldn't exist, because they don't sell products, they sell the results of R&D. Getting rid of patents (and IP protections generally), force every company to produce tangible products, because there is no way to monetize things that aren't tangible products.

There is a lot of difference between software and process patents (which for most reasonable people look a lot like either copyright or WTF) and hardware patents that you have listed.

Even so things like non-obvious are a hard hurdle - most physicists know of the experiment where you fire a single proton at a half silvered mirror and it will be quantum-indeterminate whether it bounces back - that is truly random.  There is /was a patent on using that for generating random numbers and is the basis of most every poker site in the world.

It's getting to the point where patenting the business model of patent trolling is going to be the only solution

Edit Having read the GC patent I can see there is at least one software patent that might just pass muster - but really I struggle with the idea this is an invention.

Edit2 - just to clarify - look at the patent for Edisons  lightbulb (ignoring the fog of war surrounding patent claims). At the time the generation of light and heat from passing a current through a wire was well known - but edisons defensible patent is a specific description of how to build his lightbulb - vacuum, alloys, resistance etc.   To my non legal mind that is not a set of scientific principles, but a copyright in hardware form.  

Patents are for mechanisms, not principles.

Patenting quantum indeterminacy isn't possible. Patenting a machine that makes it possible to exploit that phenomenon is.

Every machine is reducible to mere physics. That doesn't mean there aren't inventive steps to make them practical.

I think my point was that almost every phd quantum physicist had actually done that experiment. Extending it to "generate a random number" was obvious. Which probably is a flaw in patent granting process than inherent in patents

I am mostly complaining that IMO a patent should be so narrow as to be hardware design ie copyright and as such it is much much harder to get broad applicability - which instantly reduces the ability to effectively patent principles

Lets take a well known example - the use of a cyclone induced to create a vacuum used to suck up dust (Dyson) - he could not patent that it is too broad so he had to patent exact angles of fan to cylinder and so forth - which were eventually gotten around via different manufacturers - but he held the patents on the well known means of generating cyclones, for vacuums.

> Extending it to "generate a random number" was obvious.

I am prepared to bet that the patent was not granted for the concept of a random number generator based on quantum phenomena. You can't patent ideas, you actually need to do some engineering with at least one inventive step.

Experiments in a lab are not manufacturable, reliable, productionised products. They're just not.

I think lisper's link refutes that - to my untutored eye, that is a bench experiment as a patent application.

Actually, Halliburton (among others) has a pending patent application covering patent trolling, "Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party": http://www.google.com/patents?id=lx-wAAAAEBAJ

> It's getting to the point where patenting the business model of patent trolling is going to be the only solution

This might be what you are looking for http://www.google.com/patents/US20100332285

That's hardware. What about software? Can you provide a specific example (i.e. a patent number) of a "good" software patent?

I would consider some of the LTE stuff "method patents" even if they are usually implemented in an ASIC. Other than that I don't have many examples. Most software patents are crap. That's largely because software designs are rarely capital incentive to produce (a good proxy for how "hard" coming up with any idea happens to be). That's the real argument against software patents imho. There is no capital investment to protect.

Presumably some codec patents (e.g. the technologies in MP3) would fit the bill, no?

Considering how many codecs there were before h.264 and Xvid became widespread, and considering the existence of http://xiph.org and Ogg, people would create codecs regardless of patent incentive. It may be research intensive, but it is definitely not capital intensive.

Sure, but those predecessors like MPEG-1 were patented too. And if they would've been created and shared anyway, why didn't Xiph and Ogg exist before MPEG? And even had they been created, would there have been the same incentive to do cross-vendor standardization? Without the patent, the monetization incentive is to keep everything under your own roof.

I'm not talking about MPEG-1. "mplayer -vc help" outputs 393 different video codecs. There's no way that every single one of them is unique and uniquely patentable, or that every one of those formats was created because of patents. The proliferation of codecs indicates that, if someone needed a video codec and a suitable one did not exist, they would make one. As for the incentive to standardize, the incentive would be the same as any other free market: interoperability allows your products to be used instead of someone else's.

Xiph and Ogg didn't exist before MPEG because Monty wasn't around to start them. Ogg Vorbis development was started in 1993, but was finished and popularized in response to an unexpected crackdown by Fraunhofer on implementations of the ISO MPEG standard.




The LZW patent. It caused us a lot of grief with .gif, but that was primarily because the code was published in various places without it being made clear that it was patented. The method was genuinely innovative (it's the sort of thing that might not have been thought of at all without those people's work - or might have been kept as a trade secret and then lost to society if their business failed - in other words, exactly what patents are meant to cover), and really advanced the state of the art. The RSA patent is similar, and even more dramatic in terms of its effect on what was possible.

(Also note that there are alternative methods for both compression and public-key encryption that do not infringe on the patents)

I didn't mean for my original post to come across as a challenge that there are no good patents (software or otherwise). I think the examples he gave are quite good.

I think most of his examples are pretty reasonable. I don't have a serious problem with hardware patents (though some economists argue they don't work either).

Software patents fail much more spectacularly. They seem to have little to no benefits even before you weigh the spectacular failures they create for start-ups and small businesses and their ability to mask collusion between large tech vendors.

Also, where do you put the google self driving car patents?

Which one? I imagine a good chunk of that is hardware. I wouldn't see a problem with a patent on, say, the RADAR device that maps the path of the car. (Though it may be that such a thing isn't novel and non-obvious, e.g. because aircraft do something similar or identical, so presuming no such thing was in the prior art.)

But software patents are still a problem. A self-driving car isn't a simple thing. The reason the engineering is hard is that you have to get a thousand things working together correctly. None of them individually is the key to making it work; all of them together are. And a software patent that claimed them all together would be useless because anyone could reinvent a minimum threshold of constituent parts and avoid infringement. So instead they claim each of the individual components in separate patents. Which leads to the general problem with software patents, which is that you multiply even a small possibility of independent invention by many thousands of patents and you effectively guarantee unintentional infringement by anyone trying to reach the same goal, which locks newcomers out of the market unless they can survive the costs of patent litigation.

Maybe you can solve this if you can find a way to separate the wheat from the chaff and stop issuing 98% of the software patents that are currently issued, but that seems to be much easier said than done. If it isn't possible or practical to do that then allowing 98% bad patents for the sake of 2% good ones is a pretty bad trade off.

As I understand it (IANAL), software patents are usually written with a number of claims, each claim is individually defensible and infringeable.

You draft it so even the broken version of the design is covered, because the first step at evasion is broken design + marketing.

I think I'm not being specific enough.

Suppose you want to make a self-driving car. It has to be able to distinguish between a stop sign and a red ball stuck in a tree. It has to be able to determine what color a traffic light is. It has to be able to account for a slick road surface. It should be able to parallel park. It needs to be able to merge into traffic on the highway. There are thousands of different things you need to engineer to make it work. Each of these things may have multiple sub-components that could be individually patentable.

If you tried to write a single patent with a claim covering every component, the claim would have thousands of elements and the permutations necessary to cover all the "broken versions" would require more dependent claims than there are atoms in the universe.

Naturally nobody does that. So instead of a patent claiming 'a self-driving car' comprising A, B, C, ... ZZZY, ZZZZ, you get a patent claiming A, a different patent claiming B, etc. Thousands of separate patents, each claiming a sub-component and its broken versions. So you get a patent thicket which is prohibitively expensive to enter not because any given patent is particularly great or difficult to work around, but because of the cumulative bureaucratic cost of identifying what needs to be avoided.

But that's how patents have always been. You can't patent an idea like "self-driving car" or "self-driving cars should stop at stop signs". You must patent the particular mechanisms. Someone who comes up with a different mechanism can patent theirs.

That it is expensive and difficult doesn't make the patent system wrong -- that makes it expensive and difficult. What makes it wrong is abuse.

Broken mechanisms are more of a problem in any system where you can have a degraded system that still "works". The classic is security mechanisms. You can patent a new kind of lock, but you'd also make claims over each part of the lock. It is the lock as a whole that makes the house secure -- but it is the claims as a whole that make the lock secure from patent shenanigans.


>But that's how patents have always been.

Not really. The problem with software is that even the specifics are abstract, because if software is patentable then there is no unpatentable thing to stand beneath the claimed invention, there is only layer upon layer of man-made code all the way down to the basic arithmetic operations, and all of that potentially infringing support scaffolding creates a completely unreasonable surface area for infringement.

It would be as though someone wanting to sell furniture would infringe patents on manufacturing dynamic braking resistor banks for locomotives only because some of the furniture is transported by rail using locomotives with components so manufactured.

The issue is that a software "process" or "method" has no chain of commerce. It all happens in one place. In physical reality if you buy a lamp to light your factory, the lamp manufacturer may be liable for a patent the lamp infringes, but the widgets you make in a factory illuminated by such a lamp don't transitively infringe the lamp patent. In software there is no lamp, there are only instructions that tell you how to make and use a lamp, how to build a factory illuminated by lamps, etc. So every software company inherits the liability of every supplier of every component, leading to a hopeless morass of infringement and prolific and unavoidable liability for everyone.

Of all those examples you gave, only the space ship is within the last half decade, and full fill the requirement of an non-obvious, novel, and clear enough patent where one can out of the patent produce something akind to the claimed invention.

the LTE link is a good example of BAD patents. Their best example MPEG LA patents, which is neither novel, non-obvious or patents written so that someone can produce the claimed invention.

I guess the moral of the story is: If you produce space ship designs, then maybe its worth patenting it.

The Rolls Royce one is this year. If you think the LTE patents are obvious, I'm not sure what to tell you. Qualcomm, NTT, Intel, etc, spend billions researching all this obvious stuff you could come up with in your basement.

The article about LTE patents present MPEG LA's patents as the best, so lets then list the actually patents in use: http://lists.whatwg.org/htdig.cgi/whatwg-whatwg.org/2009-Jul...

Lets pick the first one on the list... Afterall, MPEG LA's patents is the best example of LTE patents, so any ones of theirs must be good.

http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Se... A method and apparatus for variable accuracy inter-picture timing specification for digital video encoding is disclosed. Specifically, the present invention discloses a system that allows the relative timing of nearby video pictures to be encoded in a very efficient manner. In one embodiment, the display time difference between a current video picture and a nearby video picture is determined.

A great patent. Very novel. Very clear.

I'm not sure what the encoder patents have to do with LTE, other than the fact that MPEG LA is organizing an LTE patent pool. I was thinking more like this: http://www.google.com/patents?hl=en&lr=&vid=USPAT798....

I'll play: US20080002776.


Although I no longer work for the BBC and have already received my bonuses for the filing and granting (after I left the BBC) of this patent I have a personal curiosity as the core inventive step was (I believe) mine although it was greatly extended and improved by others with greater domain knowledge in MPEG encoding. As far as I know it was a novel idea and wasn't obvious in advance to experienced video encoding engineers.

The original idea was to treat encoding losses as errors/defects that can be fixed or patched by additional data distributed separately. This was extended to arbitrary enhancements and changes and potential implementations, consequences and techniques.

I believe that there was a real non-obvious inventive step in considering encoder losses as patchable bugs. Given that idea alone a (suboptimal) implementation is relatively easy to create but was not obvious if the task being discussed is using the early 2000's Internet to deliver better video quality than broadcast (SD) TV could.

I am not aware of any current usage of the ideas in this patent or what licenses the BBC may or may not have granted.

Edit: Time for me to sleep now, will check for any replies tomorrow.

This is where the patent process really falls down - subjectivity.

You consider the idea of treating compression loss as an error to be patched as non-obvious, whereas to most on HN (being generally technical, even if not in this field), that's probably, a "yeah, duh, and?" suggestion.

The implementation of that idea, and the techniques and technologies involved may ultimately be novel, non obvious and patentable, but your argument boils down to suggesting that "if it's broke, fix it" (in any particular subject domain) is sufficient to warrant a patent, so doesn't meet the criteria requested.

I think to be objective in answering the GP post you should probably suggest a patent that isn't your own.

I agree -- the subjective judgment of obviousness is a huge problem, particularly in software patents.

I think the law should be changed to require objective evidence of nonobviousness.

What would that mean in a case like this? Let's suppose, as appears to be the case, that the patent has not proven to be of either commercial or intellectual value. Commercial value would be demonstrated by someone using the patented method to gain a key advantage over a competitor. Intellectual value would be demonstrated by a peer-reviewed conference or journal paper. If the BBC were to sue someone for infringement, the question would become: how important is the patented method to the defendant's business? If it's central, the BBC might have a case, but if it just slightly improves the user experience without conferring a significant competitive advantage, the suit could not move forward.

The point I'm trying to get at is this: if the idea does not prove to be of much commercial value, then there was never much incentive for someone to come up with it in the first place. Therefore the (apparent) absence of prior art provides no evidence that the idea is not obvious; and if there isn't any other such evidence either, then, under the change that I suggest, the patent could not be asserted.

Under this regime, companies would still have to worry about patents on techniques central to their business models, but could be much less concerned about incidental infringement, especially that occasioned by independent reinvention.

Your point is a fair one and what is an obvious answer depends greatly on what question is asked and also to a degree on timing. For me the key was recognising that:

1) The lossy encoding could be regarded as bugs.

2) the losses are known by the broadcaster and preserved (without further loss in a digital transmission system) to the viewers home.

Once the nature of the problem is described this way the idea does seem obvious (at least to me with a largely Computer Science rather than video encoding background) but that is not how issues are initially presented and redefining the problem is a great deal of the inventive part.

I would still defend this patent's inventiveness but I fully agree that obviousness is quite subjective

Also, a lot of times it is difficult to avoid hindsight bias. It may arguably seem obvious now, in 2013, but it is hard to say what would have been obvious in 2004.

Nonobviousness is judged as of the filing date, a fact that many seem to forget.

That's a fair point, and hindsight bias can play a part in downplaying even recent innovations, which may seem obvious only after the fact. I don't think that applies in this case, but setting that aside, my main argument (that what counts as innovative, non-obvious etc. is subjective), I think still stands.

> You consider the idea of treating compression loss as an error to be patched as non-obvious, whereas to most on HN (being generally technical, even if not in this field), that's probably, a "yeah, duh, and?" suggestion.

I actually implemented this idea in some of my own software, was unaware that it had been patented in some context, and did not consider it particularly remarkable. I remember thinking "that's kind of neat", the way you do a few times a day when writing software.

'that's kind of neat' is exactly the feeling of an inventive step in my view when it is a new way of doing things. I do get some of that feeling when programming but that is usually discovering and picking tools put there by the language designers and I wouldn't expect to patent them.

This patent is inherently limited in the amount a license would be worth as it is possible to work around it by sending the full enhanced stream by the other distribution method. In practice this simple way of doing things has proved practical in most cases as available bandwidths have increased.

I also trust the BBC not to abusively troll small companies and startups. Unlike with trademarks you can ignore widespread infringement without losing your rights. The BBC (at the time, I don't know about now) was mostly interested in having a worthwhile patent portfolio for cross licensing mostly for defensive use.

I am personally curious about where you used this although it is probably wiser not to tell me. It may be that some detail makes it non-infringing. It may also be that the BBC would offer a reasonable license although approaching them may be risky in itself. I don't know if a lawyer or other intermediary could negotiate without revealing who the negotiation is on behalf of until agreement is reached.

Did you read the patent?

Why is my licence fee (basically a very regressive tax) being used to apply for further government-granted monopolies that can only be used to tax (or worse prevent) other corporations from delivering video services? What benefit is this providing the people of the UK?

Well I'm not sure the argument is any different than for the entirety of BBC Worldwide. Generated revenues from licensing and cost savings from cross licensing can make the license fee go further.

Pursuing patents isn't cheap especially when it is done in US and Europe as in this case so I expect someone foresaw the possibility of some return from this. There was some belief also that patents or at least applications were the formal way to get prior art into the record so that the ideas would not be patented by others in the future preventing the BBC from using them. I know that legally any publication becomes part of the prior art record but at the time of application for a patent it is principally the patent databases that are searched so there is some truth to the point that a patent is the best prior art.

At a glance that sounds like the "supplemental enhancement information" that H.263 had circa 2000, but the patent appears to have been filed in 2004 and issued in 2008. Am I wrong?

It is similar but not the same (I believe - I am not familiar with H.263).

The patent itself describes the difference between this idea and other Multi stream encodings. This idea can be applied to MPEG2 or any lossy codec and it also covers sending the enhancement data at different times and by different routes to the main data unlike other multistream/pyramid encoding approaches which expect simultaneous generation and transmission of the streams.

Interesting. I think my only issue would be with the clarity of the patent. I admit to not being skilled in the art of broadcast video but not completely ignorant of video compression ideas either. Still, the "legalized" writing style makes for very difficult reading. Did you have a working version before applying for the patent?

We didn't build a functioning sample but I'm not sure what the point would be. The implementation you would build for a real deployment would depend massively on the constraints of the system you were working in (what enhancement, existing encoding, receiver hardware capability - decoders, storage, mixing, bandwidth and latency of supplementary channel).

I don't read a lot of modern patents, for the obvious reasons: there are legal risks, and the patent texts are useless even if the invention isn't. But there used to be a time when a software patent wasn't necessarily an obfuscated hodgepodge of legalese with no apparent technical content.

Consider for example the (expired, so should be safe to read) mostly-copying GC patent: http://www.google.com/patents/US4907151

A system description doesn't get much better than that. If somebody couldn't implement a GC based on that patent, they're not a competent systems programmer. (It was also definitely novel. Non-obviousness is harder to argue 25 years after the fact).

Why on earth would there be legal risks to reading a patent? Contrary to copyright, whether you're infringing on a patent because you read it or because you happened to have the same idea is completely irrelevant. I know some free software guys are pretty paranoid about reading proprietary code, but I see no reason why this should transpose to patents.

(but IANAL, so perhaps I'm missing some subtle point)

https://en.wikipedia.org/wiki/Patent_infringement_under_Unit... 'If an infringer is found to have deliberately infringed a patent (i.e. "willful" infringement), then punitive damages can be assessed up to three times the actual damages. Legal fees can also be assessed.'

Right. It might be just a matter of legal departments cargo culting, but it's very common for companies to ask engineers not to read outside patents for this reason. One might think that it'd make sense to read through patents in order to avoid them, but that only works if the patents are actually even remotely understandable by a normal person.

There are situations where patents need to be read, but it's not going to be done by a random engineer.

I avoid reading all patents for this reason, even ones that are linked to by HN for being absurd.

Weak argument for obviousness: As I understand it, the basic idea is to use a copying GC that pins everything pointed to by stack or registers. I had the same idea earlier this week, after spending a few days' spare cycles thinking about GC and having read virtually none of the literature.

Agreed on the clarity of presentation, though.

This is a patent that covers something novel that was actually implemented and sold in a commercial product: http://www.google.com/patents/US7012997

The phone system this was implemented for had the unique property of tightly integrating the switch with what would normally be an "outboard" IVR system. It enabled a whole class of new features that could only be implemented on a switch of that nature, where the state of a call, or any interaction other than a call, like programming a feature button, could be interposed with arbitrary audio prompts.

If you read the patent and are "skilled in the art" you could implement it.

I'm pleased with this patent because it isn't obscure, it's easy to understand why it is novel, and it isn't trying to do anything underhanded, like making something obvious for a mobile device supposedly makes it novel and non-obvious.

The patent system is being gamed in order to exploit it. If the price of ending that exploitation is to exclude software from patent protection, so be it.

You mean software patents? Because if you meant any patent, there are loads of good examples in pharmaceuticals (and chemicals more generally), and they are pretty much textbook examples of being "hard to discover, easy to reproduce from description".

Just off the top of my head: Viagra, Teflon, aspirin (the latter of which has long since expired or been seized as war reparations, depending on where you live).

Viagra was an ineffective drug that now gets sold based on a side-effect noted during testing for it's initial purpose. Maybe that's technically "hard to discover" but it's not really what initially leaps to mind when I hear that phrase.

If a drug that does what Viagra does wasn't hard to discover, why wasn't it invented before? And why would they bother pursuing the ED applications in the first place if someone could copy the formulation the moment it was substantiated?

Btw, Viagra is effective.

There are many. Think of safety-pin? When it comes to software it is much harder. The thing I can accept are cryptographic algorithms, since as an outcome we get a product - encoded text. All these one-clicks, etc. are pure bullshit.

"The thing I can accept are cryptographic algorithms, since as an outcome we get a product"

Of all the things...

Cryptography is math in this day and age. Patents on crypto are patents on math, with only the measly "ON A COMPUTER!!!!" clause justifying their existence.

See, for example, Clifford Cocks who invented RSA before RSA did, but was unable to patent it, and thus didn't get the profits that RSA did.

He got a nice medal though.

If that's the case, then why wasn't the RSA patent revoked due to prior art?

Prior art has to be published.

For some strange reason, Her Majesty's cryptographers at GCHQ were loathe to give up all their classified goodies during the cold war. :)

But math isn't patentable. You shouldn't be able to sprinkle "math implemented as a computer program" on top of your patent application and be able to skirt this.

I just looked up the safety pin patent and it does look pretty good. I hope my original question didn't come off as confrontational. I do think we would be better off eliminating patents altogether, but I want to make sure I'm not discounting any positive effects patents may have.

The more pertinent question would be an example of a good software patent.

IMHO there isn't any. At the very least there isn't any that benefited society as a whole. (Again, I am only talking about software patents).

As I've written before, the point is not whether the patents covers a good idea, but rather whether the covered invention would not have seen the light of day without the promise of a legal monopoly (again, all in IMHO).

Pretty much any pharma patent is fronting a boatload of R&D expenses that went into developing the drug.

On a related note, this is one of the reasons I prefer to use, and make, Apache 2.0-licensed software. Its terms are similar to those of BSD and MIT but it also includes a patent licensing clause.

So does GPLv3.

GPLv3 patent licensing clause was created as a copy/fork of the clause from Apache 2.0 license, and then had an added statement about patent license agreements.

What if the startup uses a scorched-earth policy? Fight 'til the money runs out, liquidating your assets and closing down the business piece by piece, then if the troll wins, they get nothing because it's all been spent on lawyers and there's nothing left for them to take.

Then the startup loses. The troll assumes that the startup is rational and won't do that.

It would be interesting to see what effect a VC could have if they started a policy of not allowing their portfolio companies to settle with a troll and funding them to fight. It might be expensive at first, but in theory once they develop a reputation the trolls will know it will be an expensive and risky proposition to go after their portfolio.

In what way is self-destruction a viable defense? This kills the startup.

Patent protection rackets have been used for more than a business model: they have been used as tools to pressure large companies into entering partnership agreements.

Please see the second item of the list: https://news.ycombinator.com/item?id=5479381

Given the article's opening paragraphs (small businesses and startups falling prey to the trolls), I'm surprised there hasn't been an organized attempt to inform people of the problem. Maybe I don't know about it and the author doesn't mention it, but it seems like there should be a website that categorizes the various players and their actions, with forums so victims and potential victims can share their experiences. Once you have all the data being collected in one place, then you can get the word out (how?) so that people know to check online even before checking with their lawyer. It seems like patent trolling is something that could be partially defeated with better and more widespread information.

I expect it's standard for the troll's "pay up and sign here to avoid ruinous litigation costs" deal to include an NDA that would prohibit things along those lines.

Isn't what Microsoft is doing with all the Android manufacturers basically the same thing, too?

I'm fairly convinced that it's mostly marketing and hot-air. After all Barnes and Nobles managed to get 1/2 a billion dollars out of their legal fight with Microsoft, it seems unlikely that Samsung would just roll over.

But signing a bit of paper that makes it sound like a bad idea for competitors to enter Samsung's main money-making area and get some "marketing expenses" from a rich but strategy-bereft supplier makes good business sense.

He's goddamn right! Patent system needs to die. Now.

What's more important that even companies which actually produce something are also engaging in patent protection racket. Such as MS, Apple and others. That's why the term "troll" (i.e. racketeer) is not exactly the same as NPE.

Its so awesome that more and more medium-sized companies are paying attention to this! Patent racketeering needs to stop!

It sounds like we need "Kickstarter for Fighting Patent Trolls"...

I see ads all the time on TV and billboards for DUI and settlement and disability lawyers. "Get the result you deserve." I think many of them are national firms, although they look local.

It seems that patent troll victims would be a great area for a firm to break into.

It is very easy to say that a company should fight a patent lawsuit instead of paying it up but that's not always possible. In many cases pragmatism is going to be better than fighting in court for a small business, especially if the likely court costs for the battle are going to exceed your businesses accumulated lifetime revenue.

Are open web APIs becoming the new IT patents? http://api500.com/post/46951162382/apis-are-the-new-patents

I like the photo from the Seven Samurai. :-)

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