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Abolish The Patent, Vanquish The Troll (rackspace.com)
442 points by grimey27 on Apr 12, 2013 | hide | past | web | favorite | 131 comments

I've been thinking about the connection between biological signaling and advertising; like colored plumage or a large chest cavity, a multi-million ad campaign is a hard-to-fake signal, and in a way, such campaigns are as much about overt displays of power than the contents of the ad.

In that sense, this move is the pinnacle of the best form of advertising. Whether they are acting out of pure altruism or pure strategy (it's probably both), they are demonstrating their values with non-trivial risks and resources, thereby earning genuine trust with current and prospective customers. Awesome.

Actually, there's another similarity to biology. This also advertises to any other patent trolls thinking of suing them 'We are willing and able to fight back'. So patent trolls will pick on some other company that's more likely to pay up.

Some species of antelope, when pursued by a predator, will suddenly leap high into the air, jumping from all four feet at once. This is called stotting, and the best theory for why they do it is to signal to the predator: 'look, I can afford to waste energy doing this while you're chasing me; better focus on something a bit slower and weaker'.

Your fantastic description/imagery prompted me to look this up :)

"A chance to see springbok antelopes, the most successful grazing animals in the Southern African Kalahari desert as they attempt to ward off a family of hungry cheetahs by jumping up to two metres into the air. "


That sounds very cool! Although the rationalization for it sounds rather contrived - to me at least any of these explanation would sound at least as plausible: 1) The sudden vertical movement may cause a predator that is used to tracking its prey horizontally to lose sight of the specific animal in the flock, thus making it harder to run it down. 2) Statistically, the jump may prove to evade a certain percentage of pounces from the predator, that happen to coincide with it. 3) The split second of "rest" while in the air allows the muscles to "recharge" enough energy to enable another small sprint, thus giving the antelope a lifeline. 4) "Look, I could just as well be kicking you in the head if you get too close"

Other details suggest 1 & 2 are unlikely - they tend to make this manoeuvre when the predator is still some way off, and at least one species (Thomson's Gazelle) won't stot when a predator is within about 40 metres. It seems unlikely that the rest would outweigh the effort needed to jump 2 metres in the air (3), and I doubt a lion is worried about a kick from a gazelle (4).

But yes, other explanations have been proposed. There's a list on Wikipedia if you look up Stotting.

The problem with getting rid of patents also has a biological analogue, unfortunately. Particularly beyond a certain age/career rank, patents are used to "signal" one's merit as an engineer. Obviously it's a false signal from a technical perspective but the social aspect is ironclad. There is a pecking order among old-school engineers, and the first number they pull out in any discussion from a polite professional argument to a Usenet dick-waving contest is the number of patents they hold.

Put bluntly, a lot of old farts are going to have to retire and/or die before we come to our senses and stop granting monopolies on ideas.

Nowhere in the article (unless my reading skills have gone to pot...which is possible) did Rackspace propose destroying the patent system. They are talking about invalidating a particular patent, thereby de-clawing a particular troll.

It's also interesting that, in my nearly 20 years in the industry, I've never met anybody who actively bragged about their patents. I think there might be a little agism coming through in your comment...

I have, but they're also 25. They're slightly sheepish about the number of patents that they hold, but only to a degree. It is still a point of pride as well.

I've also worked for a large telecom that had each and every patent granted at each office up on the wall so that you could see it as you walked in.

It's a complicated issue, but glad that a company like Rackspace is taking a strong stance against patent trolls. It's not necessarily the patents that are the problem, but the companies leeching off of and taking advantage of the system.

There's nothing wrong with invention and although it would be a great world if we were all altruistic and willing to share these ideas with one another for free, it's not that wrong to believe that inventors should be rewarded for their efforts. Unfortunately the current system is broken, and needs fixing.

"thereby earning genuine trust with current and prospective customers"

I don't disagree with that in general but I will raise the issue that you would need to know the percentage of current and future customers that really care about things like this to know the effect that it will have on their business in dollars.

Consumers and business are fickle. Good will has a value but people will drop you in a dime if the next shiny ball comes along with a better product and/or lower pricing. My guess is that the community that cares about this relative to their sales volume is not as significant as your statement suggests.

As an similar example, people on HN regularly hate on godaddy but they are still a giant in the domain business and end users that use them (I deal with those end users since gd is a competitor of ours) don't care about any of the shenanigans. And the "tech guys" that feed business to gd in general seem to be pretty happy with the relationship judging by transfer rates.

I think this will positively affect potential applicants to the company much more than potential customers.

All things being equal, we all want to do good with our time and support organizations that do good.

Funny that you mention domains, because, while there might be some public good in patents, it's much harder to say about domain name squatters. Why have we not put adequate regs in place to eliminate squatters? I liked a particular domain name for a new startup. I approached the domain name owner -- a FB engineer no less -- who had bought the domain, and I offered him a price that would have yielded him 7500 in profit. He turned us down and continues to squat on the domain and do nothing with it. We ended up going with a dotme domain, which isn't ideal.

Now, as a lean startup we probably shouldn't have been looking for an expensive domain name in the first place. But ineffective squatter rules (10K for an arbitration!) are preventing the marketplace from making the most of attractive, catchy domain names, and instead we're settling on domains that do not adequately describe the business.

So let me see if I understand your point. You are saying "they aren't using it so therefore we should be able to use it" and are somehow comparing that to what patent trolls do?

Further you are saying that someone who holds a domain name (or any property) should have to satisfy a requirement of "use" of that property or domain name? And if not they should sell it to you for a price that you find acceptable or maybe just give it to you?

If that is the case then please tell me who will be in charge of determining what "use" of a domain name is?

What do you define as a squatter? Because it's not someone who registers a domain name and just holds it although that is the popular culture interpretation of the word.

By the way there is no such thing as "arbitration" with domain names. There is the filing of a UDRP (which costs much much less and you can file on your own) but to do that you would have to have some basis. I can assure you that if you have just formed a startup you don't meet the requirements for filing a UDRP. It isn't meant to protect people who "just want a particular domain and the seller isn't being reasonable" it's meant to protect those with true intellectual property interests (from what I'm reading in your comment you don't meet this in any way).

The mistake is in thinking that domain names should be property. They're not property, they're address space. Imagine if trademarks worked this way -- right now to get a trademark you have to actually use it (or certify that you intend to use it), you can't just squat on a thousand different names and hope somebody is eventually willing to pay you for one of them.

And the solution should be the same. You can't sell a trademark. What you can do is sell the goodwill it has accrued and transfer the mark along with it. That sounds like the same thing, right? But if you haven't used it there is no goodwill -- in fact, if you stop using a trademark then you eventually lose the rights to it. It shuts down the squatters but not anyone else, which is why we don't have trademark squatters the same as we do domain name squatters.

Define "using" a domain name. I have a couple of domain names where my primary reason for holding them is for email addresses, or an inside joke with friends.

Admittedly, no-one is clamoring for these domain names, let alone offering me $7500 for them for their business, but just because you can't see the use doesn't mean that they're not being used.

Yes, domain name squatters suck, but they're making money, so they'll keep doing it, and there's no way to fairly stop them that doesn't take away my right to hold stupid domain names.

Nobody has to stop you from holding stupid domain names. Hold them all you like. You are using them for something. Nobody said "something" has to be hosting a website. But don't try to sell them without having built any value into them -- you should only be able to profit from the transfer if you're transferring it incident to something of value you've created, like an email service or website with actual users. And yes, that means some of the squatters are going to try to create sham transactions and commit fraud, but at least then you can prosecute it where you can prove it, rather than allowing their useless, irritating, wasteful arbitrage-based businesses to continue lawfully.

Completely agree AM. I would have no problem if the person were using our domain, but they're not. They're squatting because they realize that someone ELSE will want the name. They have accomplished nothing from an innovation point of view, they've only seen some stroke of potential innovation -- which is why I compare it to a patent troll. Patent trolls don't actually innovate, and neither do people who buys what they know will ultimately be a catchy domain.

What's the difference between squatting and building your app? So you're doing to take my domain whilst I'm in startup phase?

the signalling isn't primarily to current and prospective customers, it's to other trolls out there. The $75k (negotiable) offer of compromise is on the low end of such demands and the signal to other NPEs thinking about suing Rackspace is Be Prepared for War.

That customers think this is a good thing and burnishes Rackspace's reputation for being on the side of developers, etc. is a nice bonus.

In that light, the strongest anti-patent-troll signaler has got to be Newegg and their legal team:

"Then they pop up and say, "Hello, surprise! Give us your money or we will shut you down!" Screw them. Seriously, screw them. You can quote me on that." -- Newegg Chief Legal Officer Lee Cheng


Exactly. And further, if you go to war with us and lose, it'll cost you, because we'll go after your patents.

Right. Even if they are doing it solely to look good, it's heartening to their customers (and potential customers) that they understand that it does make them look good, and why.

"IPRs can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire."

Clearly the patent system is defective and needs to be fixed radically (or patents entirely eliminated in the software space, which I personally believe is preferable).

Nevertheless the above suggests a possibility for a shorter-term fix. If companies could proactively band together in some kind of association to fund IPRs for every single troll attack, spreading out the costs of the IPR amongst the member companies, it would seem that this would make life for the trolls much harder. Indeed, simply listing your company membership in such an association on your website might be sufficient to ward them off, same as sticking alarm decals on car windows wards off many would-be car thieves.

Check out John Walker's PATO proposal from 1993, following Autodesk getting hit with a bogus patent: http://www.fourmilab.ch/autofile/www/chapter2_105.html

God damn; PATO is exactly my proposal. I shall sue him, having come up with it 15 years after his publication... ;-)

Except it doesn't work.

Here's what really happens:

PatentHoldingShellCompany60852, Inc. files a lawsuit. They have no products and no services and so cannot be countersued for any conceivable infringement. Even if you do manage to sue them successfully, the company's only asset is the patent. It declares bankruptcy, nobody involved in setting it up gets hurt, and tomorrow PatentHoldingShellCompany60853, Inc. is filing in East Texas to try to shakedown somebody else.

I think the modern wrinkle would need to be establishing a common defense fund with the goal of funding all the way through invalidating bad patents, not just settling a suit. Right now most of these players simply risk losing their time investment, not the grounds for future extortion or possibly even invalidating other settlements.

A well-funded, well-known legal team could have an easier time doing filing to consolidate cases, making the strategy of repeatedly going after small companies less one-sided.

But you can invalidate the patent with an IPR suit. That would be an effective deterrent against patent trolls.

Oracle Corporation has taken a public stand against the patentability of software and has forsworn use of its own patents except to counter-sue in infringement claims.

Now this is really a great quote from that article!

Wondering about a) antitrust issues with that and b) standing to file the IPR from an entity such as an association.

(Question, not a statement to which I know the answer.)

A way to get around b) would be to have the association merely provide financial help, or possibly have the association be a group of lawyers such as the EFF where they will represent the company who does have standing to sue.

I don't see the relevance of either. Antitrust deals with breaking up colossal monopolies like AT&T and Standard Oil... not sure how that relates to this in any way. IPRs are a new concept to me, but I don't see why any entity can't challenge the validity of any patent. If there's a problem with that, which I doubt, the company receiving the troll attack could presumably be the challenger, with the association reimbursing its fees.

"Antitrust deals with breaking up colossal monopolies like AT&T and Standard Oil."

Not true there is also collusion to consider, price setting, dividing markets etc. For example web hosting companies can't band together to set pricing or to determine certain things as a group. (Obv. companies get together to set standards etc and other things).

I'm just raising the issue but I know this from back at the beginning of ICANN registrars we had to be concerned with what we did and what we said to each other when we had group meetings on the advice of attorneys in our registrars constituency. And I'm not saying that the lawyers weren't over reaching or that particular behaviors had merit I'm merely mentioning it as a point of discussion and consideration.

FTA: [The IPR is] a new proceeding made available under the America Invents Act.

The new patent legislation is very recent, and patent trolls are still operating under the older model. I think it's worth seeing whether and how this fix operates.

I totally applaud Rackspace's dedication to the public good. But I think their response is their best move economically too, despite the initial cost. They are basically saying "Troll me, and you risk losing the whole patent." It's like dealing with a playground bully. Once you display a willingness to fight, they go pick on someone less assertive.

ditto Newegg

"Newegg Crushes Patent Troll in Online 'Shopping Cart' Suit"


edit: better article link:


Nothing makes me want to become a rackspace customer more than posts like this. I adore integrity.

Exactly. And I also try to avoid companies that settle. I totally understand why they do it but still... in my eyes it's like supporting terrorism. I feel it's wrong to give terrorists any money even when it's advantageous to your business or even when you are threatened by them.

That's a fine ideology but when trolls are diverting precious resource and focus away from actual innovation over protracted and expensive legal inventions, settling can be a pragmatic choice for just getting on with life. I'd love to be in RackSpace's position of being able to hammer down these worthless parasites.

Once you settle, other trolls see you as a target. Kipling's Dane-Geld [1] explains this pretty well. "Getting on with life" is not something that paying extortionate patent settlements will always allow you to do.

By spending more resources to not only defend themselves, but also destroy the weapon that the patent troll is using, Rackspace is advertising that not only do other trolls risk spending money in court, but they also risk the invalidation of their patents. Anyone trolling is unlikely to want to risk that.

1: http://www.poetryloverspage.com/poets/kipling/dane_geld.html

IMO it's more like "negotiating with terrorists" than outright support (which is bad enough).

The psychology/poli-sci experts have agreed on "don't negotiate terrorists" for a reason, and I think that attitude applies perfectly in this patent troll situation.

I'm also a RS customer but how do you see this as "integrity" as opposed to a regular business decision done with the intent to prevent future problems?

(Noting also that there is the PR value of spending money this way as your comment proves!)

For example, they could offer to buy the patent from the current holder, and finance an attack on their competitors.

But they chose a higher road.

Countless other companies in their position would pay the settlement and sign an NDA. We can never know the extent of this problem unless companies like RackSpace speak up.

Yes, it is also an indicator to me that if I am a RackSpace customer, and other issues come up (could be patents, could be government surveillance, or something else) that will affect me as a developer, Rackspace is more likely to be on my side than against me.

Obviously, I expect Rackspace to pursue its own business self-interest, but often there are multiple ways to do that, and not all of them are win-win for both the hosting company and for its customers.

It may be both. And since Rackspace is loudly publicizing that their actions are based on their beliefs, if they were to ever act contrary to their established brand, they'd lose even more than if they were to do nothing at all.

I wish the best of luck to Rackspace.

As an independent Android developer, I live with the slight fear that one day I'm going to eventually be hit with one of these absurd patent lawsuits. I only program for Android as a hobby aside from my day job as a web programmer. What can an independent/hobbyist developer like myself do when we are eventually challenged with something we can by no means defend ourselves against without loads of money? Reform is needed, soon.

If you are independent, then can't you defend yourself in court?

It's not that, it's that I wouldn't have sufficient money to do it. Or bankrupt myself in the process.

On the topic, this is quite an interesting TED talk given by Drew Curtis.

"You need to know that the average patent troll defense costs $2M and takes 18 months... when you win."

Drew Curtis: How I Beat a Patent Troll


Drew is exaggeration. I took on Acacia, it cost me nothing more than the travel, and time away from my primary business.

Lawyers cost a lot of money, but for something like "the ability to rotate a mobile screen" that rackspace is fighting you don't need a lawyer.

Prior art exists for rotating screens on desktops and tablet PCs. Feature parity on Mobile is not innovative. Obviousness is the challenge to a patent and the defense against its infringement.

This is not a "risky" case. It is not a case that requires 4 lawyers for a year. It is a case for 1 guy part time for a year. Which if he is $400k a year could be $75k but it doesn't need to be that.

I believe the keyword here is "average". There are probably examples of cases on both ends of the spectrum: cases that dragged on to be very expensive and others that were resolved with a phone call or letter.

Yes a billion dollar fight would skew the average a lot. Several fights between porn companies and streaming media changed the numbers as they were in the hundreds of millions range at that seriously messed with the average. The typical need not be so high.

To me, this is a strong sign that the patent holder should at least run a substantial risk of getting charged for legal costs if they lose. It might require a bit more due diligence on the part of the patent holder in genuinely enforceable patents, but it would all but eliminate the motivation of patent trolls when they know their patent is dubious.

I applaud Rackspace for this act of charity to the community, but it should not be necessary. Let's root for Rackspace, but it's more important to fix the system.

At some point it should be more than legal costs. Threatening someone with a patent that is manifestly not applicable should be considered a form of fraud in extreme cases, just like it is if I send you a false invoice in the mail demanding payment. We need to raise the risk factor enough that patent trolls can't simply write off their losses against all their successes. They'll keep going as long as the benefits outweigh the risk.

That's the goal of the SHIELD act, which will not pass, unfortunately.

If you cannot understand how people could possible think that software patents are acceptable, I recommend reading this article. [1] Not because it will convince you that software patents are good — it won't. But it will help you understand the thought process of lawyers who do think that there should be some software patents. For example, Goetz writes that he supports "patents where the preferred implementation of an inventive machine process is in software (via a computer program), hardware (via circuitry), or a combination of both software and hardware."

[1] http://www.patentlyo.com/patent/2010/09/in-defense-of-softwa...

Personally, I support software patents. I'm just against idea patents, as opposed to invention patents.

Screen rotation is no invention. It's an idea; once you have it, it's trivial to implement. That, IMO, does not afford patent protection. However, certain things can, and should be patents. RSA, for example. It's a non-trivial procedure that was non-trivial to invent and there are not very many alternatives.

There's an interesting question about just what an invention is, though. At least in software, actual implementations are covered by copyright, and I can't see any hard and fast distinction between ideas and inventions.

For instance, determining the optimum layout of a mail application for a four inch screen probably takes a lot of tweaking and user testing. But there's no way that you can call it an invention, and your competitors are free to copy the layout, so long as they change the style enough that customers can clearly distinguish the products.

On the other hand, using a magnet to hold a power connector to a laptop seems like a really obvious idea once you've seen it. You don't have to study detailed documents to see how you could make it. But calling it an 'invention' seems reasonable - and it is patented. And it's perhaps the only thing that attracts me about Apple laptops, but that's not important right now.

I've seen these magnetic power cords on water boilers for a long time. We got one from Asia in the 90s. http://www.zojirushi.com/products/cvdyc

That may have merited a patent (if it wasn't already invented, and I suspect it was), but Apple's implementation does not.

RSA is actually kind of a bad example. It's an eminent example of almost-pure number theory ported over to a software domain, and mathematics is explicitly non-patentable. Next you'd be telling me that Fourier transforms should be patentable.

I get that it's difficult to incentivize the development of truly difficult abstract ideas, but mathematicians and physicists have been doing exactly that for centuries and they appear to be doing alright.

> I get that it's difficult to incentivize the development of truly difficult abstract ideas, but mathematicians and physicists have been doing exactly that for centuries and they appear to be doing alright.

So I was an aerospace engineering major in undergrad. For my professors, financial support came from: 1) government; 2) tuition and fees from students looking to get jobs at Lockheed, Honeywell, Raytheon, etc.

The former is mostly subsidized by the military, while the latter is subsidized directly and indirectly by companies who definitely do leverage patents and trade secrets laws to monetize their developments.

So its a "pick your poison" situation.

That's exactly the issue. Anything that qualifies as not an "idea" patent, like you're using the term, would be an algorithm, which are not patentable. The only thing software patents cover are "idea patents".

Would you have been okay if Feynman diagrams were patented?

I've worked as a patent prosecutor for a top ranked patent prosecution firm; and I know first hand that most patents are 'pencil patents' worthless subtle distinctions that are allowed because 'obvious' arguments do not stand up.

However, some innovations, maybe 1 in 1000, are really worthy. And if the inventor did not have some way to protect their research - google or microsoft or anyone else could usurp the idea from the average joe who spent a lot of research and effort to resolve the invention. just my 2 cents.

It's much more likely that google or microsoft would absolutely annihilate the average joe with a countersuit rather than license anything from them. They hold a much bigger patent portfolio and can afford to pump money into a case for several years. There is absolutely nothing that makes patents attractive to the "lone inventor" type. The innovations may be worthy, but patents do nothing to help there.

I really hope this is successful. I will begrudgingly admit that some patents probably are useful (that's a separate argument), but in the specific case of software, so many were granted at a time when general knowledge was very naive and so were unintentionally made to broad sweeping. Eliminating them is the best course of action.

The fact that it will take an independent committee up to 1 year to do so for each one is rather less encouraging.

> Patent litigation typically costs defendants between $1 million and $5 million just to stay in the fight.

A battleground where only the rich can win a fight. There doesn't seem to be any justice left in the American courts :(.

The only way to win is to not play their game. It's probably cheaper to buy a shotgun and show up at the doorstep of the person suing you with the message: "I know where you live" :S

You got it wrong. "It's probably cheaper to HIRE someone"

Patent and copyright laws are both in serious need of radical reform in the US and globally. Thank you Rackspace for not caving in to the patent trolls, but as you wrote, it has become a never-ending game of "whack-a-troll".

That's because with existing legislation, the patent troll business model is financially very sound if also inherently corrosive to society as a whole. "The dynamics of local vs. global optimization" is jargon from the team-building and process-design communities that applies here: a successful business strategy for the patent trolls is a huge failure for the community as a whole. This could also be considered a perverse incentive http://en.wikipedia.org/wiki/Perverse_incentive

There are perverse incentives in both copyright and patent law that undermine the original Constitutional goals of "promot[ing] the Progress of Science and useful Arts..." that are especially powerful in our age of ever-increasing innovation where digital computers and The Internet have created a radically different "landscape" than that which existed when the first such laws were drafted.

Ideally, thoughtful legislative reforms would prevent such perverse incentives in the future so that both copyright and patent law would once again be aligned to serve the common good rather than the good of a few.

Large and democratic communities (such as those Joel Spolsky helped create) full of good questions and answers could go a long way towards helping to craft such thoughtful legislative reforms. See Ask Patents http://patents.stackexchange.com for such a community on patents, and http://goo.gl/5YDHa for such a proposed community on copyright.

Anyone who feels strongly about these issues, please go get involved by "Follow"ing the proposed CopyrightX community and submitting 5 Example Questions. With enough voting and other participation, the CopyrightX community proposal can graduate to an actual community like Ask Patents.

And with two vibrant communities full of good questions and answers related to IP law, perhaps future legislation will be free of perverse incentives, and we can once again rely on our laws to serve ALL of our best interests.

In the interim, thanks again Rackspace for being willing to continue the costly game of "whack-a-troll" on behalf of all of us.

>Patent trolls then follow each filing with a settlement demand “at a price far lower than the cost to defend the litigation.” (Id. at 1326.) This allows trolls to use the high cost of litigation as a club against operating companies.

This smells like another ugly practice by "rightsholders". Namely, the RIAA/MPAA litigation against individuals.

It's a common pattern in almost any litigation, not specific to IP rightsholders.

I guess you're right. Even when "people" sue companies, they typically just settle out of court.

Patent trolls suck. But with out patents there is no incentive for innovation. The issue is not that Patents are bad, it is that you can patent a "unique way to swing on the playground" and be awarded a patent. Patent officer often don't know what they are awarding a patent for.

This is supposed to be kept in check by the fact that you can fight a patent.

I think that if you file a patent, sue someone over it, and lose you should be forced to pay 8X the amount you were suing for. That would severely limit who would try.

I also think that patents should only be allowed to be resold twice. This would limit the number of patents which could be used to extort money.

Lastly I think you should only be able to sue for patent infringement if you have a product using the patent currently in the market.

Those 2 simple rules would remove a lot of trolling.

"But with out patents there is no incentive for innovation."

What a merry little idea. Has it occurred to you that there are a large number of people who invent, innovate, and develop because it's simply not an option not to? That it is a sort of compulsion, a reason for being?

In a market without patents, I'm sure capitalists will find a way to keep making money, just as I'm sure that inventors and makers will continue to keep inventing and making.

It totally depends on the field. In software, perhaps this would work nicely, because rapid iteration and expansion prevails.

That said, in the pharmaceutical or material science worlds, the cost and pace of research require that protection be afforded to those who choose to invest and disclose the fruits of their labor to the world.

It's not so black and white that there are no incentives for disclosed innovation, but patents are a big booster in some areas, for good reasons.

There was plenty of invention before patents existed as a legal concept.

Patents exist because some people who came up with clever ideas thought (properly) that it was in their best interest to be granted a legal monopoly on the implementation of their ideas and lobbied lawmakers to grant them these monopolies.

Patents did not come into being because we, as a society (speaking as an American), determined that our pace of innovation was too slow and decided that we needed to do something about it.

This idea, that patents encourage innovation, is the justification, not the motivation, for the legal construct that is the patent. There were no experiments done to test this hypothesis. In fact, I think the history of invention before patents suggests quite strongly that they are not needed; that, in fact, people will invent simply because we are tool builders and tinkerers.

EDIT: To testify to the fact that people invented before patents: http://bibliodyssey.blogspot.com/2011/12/machine-power.html

A book from 1606 showing illustrations of gear and hydraulic powered devices. Some are fanciful, others less so, but they all clearly show humankind figuring out every last way to apply a technology to the tasks of every day life.

Have you researched the history of patents? I'm no expert, but my understanding is that they were established in response to the guild system, in which a lot of technical knowledge was kept secret. Invention may have been occurring, but it didn't benefit the larger society the way it could have.

One legal theory behind patents is that they were a tool to incentivize immigration. It benefited the United States even before it was the United States, as people was encouraging to stay in the country during the duration of exclusivity, and gave the country a working model of the invention so people could learn. Before patents, many invention was treated as city or state secret.

I can recommend a very interesting talk by Professor Eben Moglen, who teach law history and actually read discussions that happened between the people who wrote and worked with the first implementation of the US patent law (https://www.youtube.com/watch?v=LPzpBn-XGxw).

As far as I am aware, there is no compulsory license in the United States patent system, so while patents aren't more restrictive of the _spread_ of technical knowledge, they certainly could prevent the _use_ of technical knowledge. So, like, what's the point? Seems like a lacking solution to the problem you propose.

Also, I am skeptical that guilds were historically the major impediment to the spread of technical knowledge. After all, once ideas are lodged in your mind, nobody can unlodge them, whether by force or persuasion, not even your own self.

I would look instead to the historically enormously high cost of travel and book printing. Since people and books are the carriers of ideas (historically, at least; now we have the Internet), this seems like a more direct explanation.

It's not 8x, but Rackspace is lobbying[1] for a bill that would allow courts to make patent trolls pay for all of the cost incurred by the defending party in a failed suit[2].

[1] http://www.rackspace.com/blog/patent-trolls-make-them-pay/ (last paragraph) [2] http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.845%3A

But trolls are usually shell companies, aren't they?

What's to stop them from declaring bankruptcy and wash their hands of the whole thing?

Since the troll's targets would probably have to pay their lawyers upfront, I don't see how this bill would make any difference.

That's why I would advocate patent trolling in - extreme cases, where the trolling company knows the patent is invalid or not applicable - should be considered a form of fraud. Then the directors should be liable for criminal sanctions.

"But with out patents there is no incentive for innovation."

Aren't all of the tech companies who are supposedly violating these patents proof that the patents aren't needed for innovation?

Isn't making a better product so you can have a leg up on your competition incentive enough?

For obvious things like this, there shouldn't have been a patent issued. If I however invent the first hyperspace engine, You shouldn't be able to buy one, take it a part and make your own.

That is what patents are supposed to protect. Cotton Gins, and Hyperspace engines. Not Rotate your screen on your phone like you do on your tablet.

"If I however invent the first hyperspace engine, You shouldn't be able to buy one, take it a part and make your own."

Why not? What is special about non-obvious ideas, that they should not be as freely transmitted as obvious ones?

Also, why should the first person to file for a patent on an idea be the person who gets the monopoly on the idea? With 7 billion minds on this planet, even for non-obvious ideas, it seems highly likely that other people will independently come up with the same idea. It seems so arbitrary that the first person to file some paperwork is the only person to be rewarded.

What is special about non-obvious ideas, that they should not be as freely transmitted as obvious ones?

The sometimes-vast sunk costs of the discoverer.

Sure, but, as you say, ideas are discovered, and because they are discovered as opposed to created, their existence is not dependent on the specific person discovering them. So why assign legal ownership? How are ideas different than a discovery in mathematics?

When you're arguing from definitions like this (discovery vs creation) that's a good sign something is wrong with your argument. One could just as easily say 'X has created a hyperspace drive' as 'X has discovered it.' Discovery is rarely so fortuitous as walking along and stumbling across something of value, as if it were a gold nugget lying on the ground. Most 'accidental discoveries' come after lengthy failed searches, much as most 'overnight success' is actually the result of years of hard work.

what you're arguing is basically a sort of teleological justification for communism; if innovations of one sort or another would be found anyway, their finding must be part of an inevitable progression and the identity of the individual finder is incidental, thus we should only reward labor in terms of time spent. Since there's now way to predict where the next discovery will come from, we may as well reward everyone's labor equally on the basis of time rather than productivity.

I don't mean this as an ideological criticism, if that's what you happen to believe is ideal; I'm just pointing out that that's where you argument goes and I'm not sure if that was where you intended it to do.

Why do people continue to claim that without state intervention of granted government monopolies, no one would ever create new things?

A patent, meaning a state enforced monopoly, meaning a method of taxation outside congress, is a method for the government to redistributive wealth. By artificially increase price and distribute that money back to investors, government argue that future investing is incentivized.

One is free of course to argue if such incentives actually happens or not, but I do not see how that could ever mean that no more intervention would ever happen if the government intervention stopped. Where does this insight come from, and is there any data to support it? Are the IT market really that unstable that it must get a constant flow of government generated money to justify investing in new products?

And why is this state granted monopolies granted with an exact 20 years duration with no thought of maximizing efficacy of government funded incentivies? Could 10 years give 90% as much incentives as 20? Is there alternative ways maybe thats less costly to society but as effective? Surely, improving the process in how the government intervene in the market is a noble goal?

> But with out patents there is no incentive for innovation.

In some areas, perhaps, but not when it comes to software.

This is easy to show. Software was not always patentable or was rarely patented, and innovation was no less rapid than it is now.

The underlying reason is that the marginal cost of R&D for software is lower than in any other field. In principle, it just requires a person and a computer (which is what you need for any kind of R&D). No expensive labs, no clinical trials, etc. If you have a person and a computer, you're a potential inventor; if you have a bunch of them, you're virtually guaranteed to invent something. If you have a bunch of such companies (or college departments), you're virtually guaranteed to constantly reinvent what somebody else has already figured out.

When Oracle sued Google, almost all of their patent claims were thrown out on reexamination; and those weren't trivial patents. It just so happened that practically all of them had already been figured out by somebody else; and we only know because Google was willing to throw a few thousand hours at researching prior art.

This is why reinvention in computer science is so common; this is also why patent trolls can flourish: Because reinvention is common, they have plenty of victims to target. If innovation were not so easy in computer science (at least relative to the standards of the USPTO), patent trolls in their current form could not sustain themselves.

But with out patents there is no incentive for innovation.

This is quite obviously false, as there was innovation before patents were invented and not all innovations nowadays are patented. It isn't even at all clear that the existence of patents increases innovation.

Without patents, there is indeed innovation, but it's not "controlled".

Patents allow the existing power structure to sanction, spur and hobble innovation.

Patents are all about control.

> Patent trolls suck. But with out patents there is no incentive for innovation.

Tell it to Larry and Sergei.

Without patents, where would they be?

My guess is, just about where they are now. Plus a compounded increment for not having to pay patent lawyers along the way!

"I also think that patents should only be allowed to be resold twice. This would limit the number of patents which could be used to extort money."

I think patents should be entirely non-transferable. You should be able to license them to others, and perhaps designate a third-party that can manage the patent and license it on behalf of the owning entity.

The right to sue over the patent should never leave the original inventor.

All that said. RackSpace (who I do use for some of my hosting) has several patents. And it is kind of a Pot/Kettle scenario since they have used those on smaller companies in the past.

You are right, we do have some patents.

We have never used them against others.

Unfortunately, we feel like we need to be prepared for when other patent-holding entities come knocking. We know they will, because they already have.

We don't make the mistake of confusing "patents" with "innovation." The majority of what we create, we release under open source licenses, including a patent license.

If people and companies want to play nice with us, we will play nice. We believe that we can compete, and win, in the marketplace. We are only preparing ourselves for the challenges of those who don't want to compete in the marketplace.


(Rackspace VP of IP)

"IPRs can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. "

Would love to have the breakdown of where the legal fees are going to file the inter parties review. To me seems like several hundred hours of legal work involved. (75000/400 approx.)


(Wondering also whether the IPR stays any legal proceedings that have started or prevents any legal proceedings.)

Why should reexaminations be so expensive?

I think this is an area where Google could really be useful. With their database and search algorithms, it'd be doable for them to put together a service to do prior art searches. Maybe use text analysis to summarize prior patents into English (since they're written in a fairly structured way to begin with).

It doesn't need to be advanced AI. Anything they came up with would certainly be better than whatever process the USPTO uses now.

I like this approach. I would be mathematically surprised if there exists any patent that cannot be invalidated via prior art. It seems there is a strong correlation between the amount of information online and the probability of there existing easily accessible prior art for any arbitrary patent.

In other words, if the amount of information on the web doubles every year, the probability of finding prior art that can invalidate any patent doubles as well. By this point in time, with the amount of information that has been moved online, the probability of having a patent not subject to prior art claims seems astronomically low.

As an anecdote, I just saw "The Mother of All Demos" (1968 - http://www.youtube.com/watch?v=JfIgzSoTMOs), for the first time the other day. That video alone contains dozens of inventions that I thought were relatively recent.

The "information" on the web is not doubling. The number of accessible bytes are.

Ten million cat videos don't constitute prior art against RSA, for example.

No, but it certainly increases the possibility you might see a cat chasing a laser pointer:



There's an unsettling trend in startups today on IP protection. A lot of incubators/accelerators seem to think that having a protectable IP = innovation.

By placing more focus on patents rather than on real innovation, we are far from acting as a catalyst to promote innovation in developing countries like India. Intellectual monopolies in the developed world prohibit SMEs in developing countries from growing to the point where they are able to compete in global markets with the western IP heavyweights. It is imperative that developing countries like India and China place careful thought before committing to restrictive FTAs that are specifically designed to keep them at a lower level of technological development.

If IPR for screen-rotation ends up with nullifying the patent, can organizations like EFF start doing that pro-actively for other ridiculous patents like One-Click-Buy and Swipe-to-Unlock? Or does the patent-holder have to be proven as a troll?

I would guess that there are asymmetries that make this an untenable approach, long term.

First, there is the asymmetry of cost, ie. it probably costs less money to file for and be granted a bogus patent than it costs to invalidate said patent.

Secondly, there is the asymmetry of motivation, ie. patent trolls have greater financial motivation to file for bogus patents than other parties have financial motivation to invalidate these patents.

These asymmetries are really the root of the problem. What's really needed is a lobbying group to pass legislation that changes the incentive structure, including, in my opinion, abolishing patents.

The problem here is that many of the organizations who could fund such a lobbying group (like Apple, Google, Microsoft, etc.) have been coopted by the patent system, because they themselves are patent holders.

Actually, its worse than that; they seem convinced that their patents have actual intrinsic value, which kind of makes sense. They spend a lot of money doing research and development, so of course they want to believe that a legal mechanism for preserving the value of that R&D is legitimate.

This whole thing is frustrating...

> Actually, its worse than that; they seem convinced that their patents have actual intrinsic value, which kind of makes sense. They spend a lot of money doing research and development, so of course they want to believe that a legal mechanism for preserving the value of that R&D is legitimate.

Is it not? Should Apple, Google, etc, do the industry's R&D for free? Google's self-driving car is patented. Should Kia be allowed to come along and reverse-engineer the firmware and free-ride on their efforts?

I'm not being confrontational, I'm genuinely interested to hear your viewpoint.

Yeah, I think it'll all be okay for them. Apple does fine, despite the fact that every phone looks like an iPhone, every tablet looks like an iPad, and every laptop looks like a MacBook Air. Companies have been dealing with knock-offs for ages, the club they wield is Brand. Look no further than the fashion industry to see how effective Brand is at combatting knock-offs.

Regarding Google's self driving car: anybody reverse engineering Google's firmware is going to incur enormous R&D costs of their own. The only way they could avoid these is if they could use a copy of the source code, but that's protected by copyright (which, unlike patents, I agree with, since it protects implementations, not ideas).

My issues with patents are these:

1. I just don't think ideas should be ownable. A primary purpose of language, one of the characteristics that defines us as a species, is to transmit ideas from one person to another. In other words, we have evolved to allow one person to have an idea, then make some utterance which takes this idea and makes a copy of it in the mind of another person, instantaneously. To me, this points unavoidably to the fact that sharing of ideas is part of what makes us human. To put restriction on this fundamental human-ness strikes me as deeply wrong. Or, at the very least, good for a few at the expense of the many (AIDS drugs in Africa, etc.).

2. Even if you think ideas should be ownable, patents attempt to reward the first person who comes up with an idea, but being the first to an idea is incredibly arbitrary. As an example, I don't get to invent 1-Click Purchase because I just started developing software 2 years ago. Seems unjust.

The patent holder would have to sue someone first or there would be no standing to bring a case.

Anyone can file a re-examination request ex parte. The EFF have done this occasion, without an actual filed lawsuit from the Patent Assertion Entity(PAE="troll") but it still costs thousands of dollars in fees and the EFF lawyers time.

On that point, how does the patent holder typically learn of cases of infringement? Would it be as simple as a surreptitious email? Or do you need something like a writeup in a publication, so they will see you as a potential goldmine?

I'm wondering what it would take to force a fight on crap patents - create something that infringes on a patent, contact the NPE through some untraceable channel to inform them, then await the lawsuit (or "licensing offer").

Without a doubt, one of the most honourable deeds that a company can do for the rest of the world. The courage and altruism displayed by Rackspace should serve as a reminder to any company:

We cannot afford to let patent trolls win.

I'm not a lawyer but this patent troll litigation would seem to be a textbook case for estoppel by acquiescence. [1] These patent trolls are deliberately waiting until the patents are firmly established norms in the industry so that finding alternatives are that much harder. Furthermore, the trolls wrongly allow time to go by so that they can claim a higher damage reward than they otherwise would have.

[1] http://en.wikipedia.org/wiki/Estoppel_by_acquiescence

Question to the Rackspace guys:

Why don't you make a kickstarter project to pay for the IPR?

As you said, other companies are interested in sharing the cost, as trolls go after them too. Why not sharing the cost too?.

Companies that are affected by trolls are acting like independent entities, witch makes them extremely vulnerable to big companies and capitalized trolls.

You need to unite!

Small and medium business are most of America's or European business, but if you act alone and divided you will be easily defeated(divide and conquer)

When I read the title I thought they were talking about abolishing patents altogether, which I think is not such a bad idea. At least for software patents I definitely think they should be eliminated.

Eliminating this one patent is pretty useless. Admirable in a certain sense, but there are thousands of other ridiculous patents. You can't fix the entire system one patent at a time.

This sounds like it could be a good PR move for Rackspace. I've heard from quite a few developers who, for whatever reason, have a negative opinion of Rackspace. Does this action change your opinion of them?

But perhaps it ultimate comes down to their service, the products they offer, and price.

Just curious why you've found that people don't like rackspace?

We've used them for a while without any major complaints.

These sort of things are scary to me, I am planning on starting a business, using money from my own pocket and the fact that random companies are going to sue me just cuz they they can makes me not want to start one which just lowers then innovation that takes place.

This type of behavior is commendable. Cheers Rackspace.

Rackspace is really smart here. By making it a public policy they're showing patent trolls that they're out of luck trying their antics with them.

If you abolish the patent, you would then become like China and Russia and a few of the other countries where lots of STEALING takes place...Hence, a dive in creativity would happen, just like you see in China and Russia for the last 100 or so years since socialism and communism.

Also, China, only very very few are rich, definitely less than the USA's 1 percent. And only those in power make the decisions, those little guys ideas are easily walked on by a number of "market competition" methods.

If you abolish the patent, you would then become like China and Russia and a few of the other countries where lots of STEALING takes place...Hence, a dive in creativity would happen,

You have no way of proving this connection. Practice even shows completely the opposite - absence of software patents increases creativity. "Stealing" is using the patents to extort money. Or should I rather call it robbing to sound more appropriate? So abolishing software patents will reduce robbing.

Soviet Russia was pretty inventive in high tech.

As a matter of fact, they did have patents in the Soviet Union, although those were more like a commendation badge, not a monopoly to reap the benefits; but it seemed to work.

I wonder if there are any active patent trolls outside of the US, or is it just not viable.

Coming from the company that put a "TM" after every mention of the generic word "Cloud Server" on their website.

A trademark is different from a software patent. A trademark addresses specific product branding in a specific market; a software patent -- at least the ones in question -- address a generic process that's not limited to a specific market. Consider the trademark on the Wikipedia name versus a (hypothetical) software patent on "a method for storing and displaying user-generated content."

Ok. If i want to start a cloud server company, can i use the generic word Cloud Server? if i do, will Rackspace sue me? Even if they are different things, seems like they reach the same outcome.

INAL, but my understanding is that you can use a generic phrase like "cloud servers", where both "cloud" and "servers" have pre-established meanings in the space, as long as you don't use the name for a product competing in the same space. E.g., you could call a service providing base images for clouds "Image Marketplace," but not "AWS Marketplace".

You don't need to kill patents to kill the troll: modify the law so that the only way patents can be transferred is when the company gets acquired.

This makes patents a valuable asset for start ups while completely killing the patent troll business.

Patents can be useful, don't throw the baby out with the bath water.


In the short term, I'd like the government to start with RMS's plan--anything done in software is math and cannot be targeted by patents. They (apparatus for performing X patents) are overly broad, most are not non-obvious, and the system is retarding far more innovation than it enables. Especially when we consider the pace and relative lack of cost in software development.

Specifically: just because you thought of an idea, does not give you any moral prerogative to go stealing other people's real property because 1) you got to the government bureaucrat first and 2) they happened to think of it too.

Patents are morally reprehensible. If society is going to have some vaguely patent-like thing, it's going to have to be radically different from what we think of when we think of patents, something far more modest than this insane binding of other people's thoughts for the sake of the childish whine: "but I thought of it first!"

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