Patent troll tales: Lee Cheng, Newegg
blog.unpatent.co
blog.unpatent.co
So one of the problems you have to solve if you create a NATO-like network of companies, is that one of your members might decide they want to go up against Apple. Now your organization has to decide what counts as a "troll" case and what counts as "you should've known". And since some industries are at a higher risk of trolling than others, those more expensive members will inevitably drive out the safer members who foot the bills but don't benefit very much.
So in the end you have problems somewhere in between an insurance company and...NATO :p
If a NATO nation gets 'attacked' by somewhat provoking a war, NATO must ultimately make some sort of decision about whether or not to jointly act (and foot the bill).
http://www.nato.int/cps/en/natohq/topics_110496.htm
_Collective defence means that an attack against one Ally is considered as an attack against all Allies._
It has been invoked once. In 2001.
what counts as a "troll" case
Most companies avoid patent litigation in all but the most severe instances, because so many people hold patents for the most obvious of things that they might well get counter-sued by the company they're suing. Mutually Assured Destruction in patent form.
NPEs don't have this concern, so they can send out all sorts of dubious claims without fear of countersuit.
An alliance against NPEs (with a rule preventing NPEs from joining) might well be worthwhile.
"We made a batch of 10 'somethings' last year, so we are not an NPE or a troll!"
If you have deep pockets and a grudge, you would pay your legal team to try and have every single one of their patents/revenue streams invalidated.
He certainly has a way with words, this made me laugh.
[0] https://en.wikipedia.org/wiki/Software_patents_under_United_...
Federal Circuit: Software and Data Structures Are Not Inherently Abstract
http://patentlyo.com/patent/2016/05/structures-inherently-ab...
The examiner then would be under pressure to glance over a lot of applications and just let the courts sort it out later.
(1) Is the patent directed at an abstract idea or law of nature? If not, it is subject-matter eligible.
(2) If the patent is directed at an abstract idea, does the patent add any "inventive concept" so that the patent isn't just an attempt to monopolize the abstract idea itself? For purposes of this second step, simply performing the abstract idea on a computer is insufficient. If the patent adds something extra, it's subject-matter eligible.
"Abstract idea" almost certainly means something narrower to the courts than it does to many programmers. The Supreme Court declined the opportunity in Alice to rule that all algorithms are abstract ideas that are patent ineligible.
Say I come up with a circuit that controls engine timing to minimize emissions. If I use an electronic circuit, that's definitely patentable. Under broad definitions of "abstract idea," if I replace the circuit with a general purpose processor, then suddenly that's not patentable. The Supreme Court has tried very hard to avoid that result. Something isn't patent eligible just because you run it on a computer, but something also isn't patent-ineligible just because it runs on a computer.
As to your example, I suspect he answer is still "no." It's not enough to just "add something" to the abstract idea--the thing you add has to have an "inventive concept." Field of use limitations ("quicksort to sort birthdays") or post-solution activity ("quicksort then you do something else") do not make the abstract idea patentable. Routine activity--and arguably, adapting algorithms to different data formats is routine in programming--aren't sufficient either.
One thing that's left unsaid in the cases but that matters in practice is that the patent has to "seem like a real invention" that produces a useful result. Courts deny that they do this, but post-Alice there has been a tendency to inject elements of obviousness and novelty into the issue of patentability. If your algorithm doesn't seem like it was hard to come up with, or it just produces numbers that are not directly useful to the end user, it's going to get labeled "abstract idea."
E.g. consider an algorithm for distributed reference counting. That'll get dinged as an abstract idea. However, if you come up with a way to manage image/video resources in a distributed cache that happens to use a distributed reference counting algorithm, that might pass muster.
Finally, the law has changed a lot in the last 6-7 years. But there are still lots of patents out there from back when the law was laxer that are getting litigated (and often invalidated in light of Alice).
That said, it's hard to say that any other jurisdiction has a far simpler or better test for software implemented inventions. It's just a hard question.
If you have any questions or comments let us know and we will put them his way!
I don't think rewarding patent owners is a goal, except that we already decided the way to reward inventors was patents and selling them (perhaps to those that can realize the value better, build a product and market it etc).
My question is where are the inventors that want a patent system of any sort?
I was under the impression that patents are a tool for lawyers and wealthy corporations to collect fees and maintain monopolies respectively.
What inventor wants to patent their idea and why do they want to do such an awful thing?
I spent the early part of my career at a startup working on cognitive radio technology. Basically, algorithms to allow radios to use spectrum opportunistically, and to allow networks of such radios to maintain connectivity while dynamically changing radio channels.
Like everyone else in that field, our company patented its inventions. It's expensive paying roomfuls of PhDs to work on network algorithms. At the same time, cognitive radios are not a consumer product you can launch overnight to a billion people. It's not a market where first-mover advantage or network effects have any value. It's not a market where you can hide your "secret sauce" behind a web API. In fact, you usually have to deliver source to your customers. It takes years to get into the market, and competitors waiting for you to do all the work and reverse engineering your design would eliminate any possible return on investment.
Moreover, as a startup we had no expertise in manufacturing radios. Nor did it make any sense for us to get into that business--there are tons of companies that have the manufacturing expertise to build those radios. We could never compete with them on that front. The idea was always to develop the technology, then sell it to someone whose expertise was building radios.
To me, this parallels the question: where are the artists that want a copyright system of any sort?
The consensus seems to be that automation will abolish most drudgery over the next few generations. Won't the succeeding economy be founded exactly on creative and inventive intellectual labor? The intellectual property system as we know it may not be the mechanism to support it, but it seems like there should be some way of identifying and rewarding creators and inventors.
Inventors can profit from their invention by selling products, and keeping the invention details a Trade Secret. For example, Coca-Cola is protected as trade secret, rather than by patent.
Naturally this is less useful for something that can be reverse-engineered fairly easily, like, say, something in tech.
What inventor wants to patent their idea and why do they want to do such an awful thing?
It still amazes me that extortion via lawsuit is legal.
I guess my point is never underestimate "incentive-caused bias"
On a related note, I also find it incredible how people can make a living out of these kind of businesses and sleep well at night...
What we do is legal, therefore it is not unethical; if it were unethical, it would be illegal.
Also, see irony.
Many people follow what I call Godfather's I ethics. Vito Corleone cares about his family and friends and will do rather mean things to those who threaten the well being of those around him.
Tribalism has stayed with us over the millennia and is unlikely to go away any time soon.
You can do unethical things using legal loopholes without it being necessarily illegal.
I'm guessing this is a good example of Poe's law.
There's no real way for the defenders to make a profit, since getting damages out of the troll is basically impossible. And unfortunately, that means that even with pooled resources, trolls are purely a drag on the economy. But at least this way, they tend to lose and stop being a drag for the next guy.
Of course, it's hard because paying the opponent's fees opens up other kinds of abuse. If you get sued by Coca Cola, you can't just judge what lawyer you can afford, you have to realize that even a small decision against you could come with the million dollars in costs they paid to take the thing to court. I don't really know a good answer to "litigation is expensive, and that produces abuse".
Sanctions or frequent invalidation of patents would be great, though. One other thing I would love to see is a change to the choice-of-venue rules - this would be less of a problem if we weren't seeing every case fought in East Texas where summary judgement is impossible to get.
If the government can't put together competent reforms, maybe they could put up some money to reward people who get bad patents struck down? Hell, maybe some percentage of infringement winnings could be directed into a reward pool for patent strikedowns.
It'd decrease the overall value of patents, but I'm pretty ok with that.
Many times these groups takes immortal stances because of their detachment from reality. For example there is a huge correlation in people who don't care about the suffering global warming causes and religion. Its not really hard to understand either, many modern day american think Jesus will come in their lifetime, so why bother caring about 100 years from now.
It even works for things directly against rules in the book. Churchgoers are more likely to be for the death penalty even "thou shall not kill" is most of those religious books.
I am not saying all religious people are bad, just that religion does not filter out bad people or bad behavior effectively.
But, the idea that morality is tied to or because of religion is, erm, pure applesauce. To me, morality appears to be the moving zeitgeist of opinions on what makes a proper society.
At the risk of derailing this topic, the concept we have of privacy as a moral issue is likely to change as well. The common current idea (which I hold as well, please don't misunderstand) is that one's personal privacy, especially as related to communication, is sacrosanct.
But, in a world where it's getting easier and easier to just not give a shit about that and (generally, for 99.9% of the population's personal lives) have no ill effects, people are going to care less and less about data privacy and security, and the zeitgeist will shift.
I think that it will be the defining issue of the 21st century, and I have no idea how things will look coming out the other end.
Because in a world with no privacy, the only people who are going to be squeaky clean are thoae whose lives have been curated from day 1, either through privilege and iron-fisted parent s or through single-mindedness verging on psychosis.
People who should in no way be taking power.
If AI programmers determined the AIs' decisions, that would negate the point of AI.
I can easily write a bunch of code you can't readily predict the outcome to but I can predict with 100% certainty. The easiest way is to cheat and inject code you don't readily see: http://c2.com/cgi/wiki?TheKenThompsonHack
2) ???
3) ???
[...]
3.468^10128) ???
Most countries aside from the USA are pretty blase about their politicians' personal behavior and morality. It's this silly idea that politicians should be paragons of personal virtue, independent of their public and political virtues, that gets the US in such hypocritical binds.
Privacy is a fairly modern invention. I'm not saying you're wrong, but I think it assumes too much to take the concept of sacrosanct privacy as axiomatic.
(Source: Skepticon.)
No idea, and I'm not sure it even matters. Such charities tend to help anyone afflicted by the plight they chose to alleviate.
> Are they giving to their church and it's called charity?
Since it was coming from a LessWrong contributor in Skepticon, I'd say this is improbable. Most likely, he scanned the study for such errors.
What?
It's not literally the worst charity - that probably belongs to Susan G. Komen - but it is pretty terrible.
"Giving to charity" is not necessarily a good thing. Before giving to a charity, a person ought to skeptically evaluate the charity. Many charities exist to exploit our desire to feel good about ourselves while benefiting those who run the charity. People who don't apply skeptical thinking are easy targets.
If our goal is to use our money to make the world a better place, in some cases it may in fact be better to invest in a local small business than to give to charity.
...and the ones who are against death penalty for criminals often support abortion. So much for the idea that life is "hallowed".
(FTR: I am personally against both.)
Also : we are way off topic and I don't want to continue this thread.
there are ~1m abortions a year, 3.2% after 18 weeks; Which is about 32,000.
In absolute terms, this is dwarfed by pre-18wk abortions, more than half happen before week 8.
Hence it may be relatively rare, but:
a) The law allows late-stage, hence 100% of abortions are allowed to be late stage.
b) those figures might change, but in absolute and % terms. Early abortions are the more common now, no guarantees how that may change.
I think the many pro-lifers see the distinction as a slippery slope.
Clarification since there is a misunderstanding about my understanding: No, I know most of them are not this type. I also think there is a difference between late and early although I personally would advice against both. I am not a lawmaker though.
A little background: yes, I grew up in a pro life family and while I was always personally against I didn't really start bothering until that piece of news struck me from one of the major newspapers that day. Knowing this kind of cruelty actually happens on a more or less regular basis (well known by nurses even in the small country I live in) and on the scale of 88/day * botch_factor it is now hard not to care.
That said, yes, from a pragmatic perspective just getting rid of most of those 32000 late ones would be mighty good. I would believe a number of you could agree with that.
There is now and has been for some time a somewhat healthy debate around death penalty. Unfortunately IMO it seems that the right to kill innocent children before (or, if necessary because procedure failed, after ) birth is somehow sacred and cannot be discussed publicly.
Why would going to church be evidence that they are good people?
Look at how people act, not what they say. When you look at crime rates, divorce statistics, and so on, atheists seem to behave more morally than evangelical Christians.
I guess my point is never underestimate "incentive-caused bias"
Take that a step farther. When you already believe yourself to be a worthless sinner who has a blank check of forgiveness from Jesus, what incentive do you have to not act like a worthless sinner?
Do you have data source for this?
Don't put too much weight on this.
If you identify evangelical Christians by self-identification, my statement is clearly true. Digging into the difference between self-identification and religious practice is not something that I saw before, and is a fascinating data point.
The bar chart is comparing divorce rates per marriage, and does not find that religious affiliation affects divorce rate; but churchgoing does, at least in some religious groups.
I've heard from a Skepticon talk that some studies show that it is. They give more to charity, participate more in their communities, things like that.
At the very least, going to Church is most probably evidence that one is either striving to be a good person or already think of themselves as good persons. That last hypothesis would explain how they can sleep at night.
> Take that a step farther. When you already believe yourself to be a worthless sinner who has a blank check of forgiveness from Jesus, what incentive do you have to not act like a worthless sinner?
Aren't you supposed to make amends first? At the very least, show some contrition, and promise you won't do it again?
Now to not strawman the argument, it is more complex than that. The wiki link does an OK job explaining some of it.
https://www.biblegateway.com/passage/?search=James+2%3A14-26...
This is mentioned again and again and again by Jesus and the apostles and it is a mystery how anyone can get away with saying anything else.
Why would that be amazing? Another set of rules to be co-opted and exploited against their fellows must be like catnip for this type of personality. Its the first place I'd go looking for them.
Remember that the Jesus that they claim today was so unpopular for showing up at their churches and throwing down with exactly that type of personality in his day that they had him killed.
Of course it is bad, even ugly, when someone who has pledged to be follow Christ is an @$$, but do not however try to pretend like Christianity is what causes it.
For any so-called Christian scumbag there is an even worse non-believer, just read up on the reign of terror or the various communist regimes. (And don't get me started on mainstream Christinity and its refusal to, - and I quote "Teaching them to observe all things whatever I have commanded you[...]")
If the Christians followed Christ everything would be great. The first thing Christ did was head for the church, point out the legalism and say "you're doing it all wrong."
That Jesus was quite radical in a number of ways though, all the way from being way stricter than the religious elite at the time ("It has been said... But I say to you...", going above and beyond what was commonly thought to be good behavior and into what people even today think is close to impossible), to pointing out how their hypocrisy was wrong - to then go ahead and die for them(!), so almost by definition the life of anyone who honestly tries to follow his teachings are still today quite unlike anything that passes for normal.
That said I mostly don't bother anyone else with it, hoping instead that if my life stands out in a good way, those who are interested might ask.
I do however defend my faith, I won't let people thrash the thing that has turned my and so many others life around for the better. That is the least I can do.
(I hold this opinion weakly, so please argue me out of it if it's dumb.)
That's quite a claim! I also don't see how that doesn't apply to virtually every law surrounding civil cases. If I pay for a service and you don't give it to me, I have to sue you. Why is that any less like officially sanctioned vigilantism than if I sue you over patent claims? Do you also advocate breach of contract being made legal?
There is a literature on this:
I don't see why this would be amazing. Many terrible people go to church. Some even use it as a form of moral self licensing to rationalize doing evil.
https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee...
> "Nearly every Western democracy other than the United States follows the English rule."
Does anyone know why the US decided on this system? It seems obviously unfair.
1. The English system doesn't necessarily protect a litigant. A well funded patent troll or a poorly funded but well meaning patent violator is now potentially on the hook for both damages and attorney fees. This is especially problematic when the law favors the accuser (as it seems to do in the American patent system).
2. It's a system that favors the "big guy", the party that has retainers for research, potential suit identification and preparation, not someone who might be accused. This forces smaller parties to invest at least some of their resources in "CYA" rather than doing what they are built to do (make products, for example).
3. It could affect supply of attorneys available to take a case or their fees. Say you feel there's a good chance of beating a wealthy litigant, so you charge more and misjudge? Or you don't feel you could be paid by the opposing party? Grant it, this likely cuts both ways. In the case of patent trolls, it might be beneficial, but perhaps not in others?
While the defendant in a patent lawsuit might feel they have an airtight case, it is never certain what will happen in a courtroom. You might lose and need to pay the damages PLUS attorney's fees for the plaintiff.
Result: no one sues Megacorp for small amounts of money. Megacorp can get away with lots of things that they would otherwise be sued for.
(I don't know if this happens in reality, but I do think it's a legit thing to worry about.)
That way Megacorp can hire 100 barristers if they want but if you lose you pay ordinary levels of costs. It might still bankrupt an individual but Megacorp can't just financially pressure all opponents in giving up in cases when Megacorp will obviously lose no matter who represents them in court.
Also, Small Claims (which I think USA has too), has very limited awards of costs, I'd usually contended just on paper and covers small charges. Allowing you to sue Megacorp by filling out a simple form and not even enlisting a lawyer.
A system with an assumption of awarding reasonable costs seems most preferable.
As for fairness: loser pays disincentivizes bringing lawsuits, whether meritless or meritorious. Under loser pays, certain frivolous lawsuits would not be brought, but meritorious cases that are often uphill battles would not be brought either. If you're in the business of going after polluters (like the Sierra Club), or challenging national security policies (like the EFF), the law is not on your side, even if your cause is just.
As a practical matter, you can't just take the English rule and import it into the U.S. Europe is an "ask for permission first" place, while the U.S. is "ask for forgiveness later." That allows U.S. companies to move faster, but puts the legal system in the position of being a backstop for unsafe products, financial fraud, pollution, unfairness in hiring, etc. So for example, it would be unfair to make it untenable for individuals to bring lawsuits for wrongful termination without giving them the protections against arbitrary dismissal European workers enjoy.[1]
Much of the support for loser-pays in the U.S. is an attempt by businesses to have their cake and eat it too. They don't want plaintiffs lawyers' bringing privacy lawsuits, but they're not exactly clamoring for that system to be replaced with European-style data protection laws administered by regulatory agencies.
[1] Which model is more efficient is debatable. I think in areas where causation is difficult to prove (environmental, product safety, employment discrimination), "ask for permission first" does a better job protecting the public at lower cost. But it also gives tremendous additional power to the government to micromanage the economy.
A lot of complaints about the legal system seem centered around particular cases where things seem unfair, but it's important to bear in mind that the legal system as a whole tries to optimize multiple, sometimes-contradictory objectives, and every design choice represents a tradeoff.
* The tradeoff between discouraging frivolous lawsuits vs. discouraging legitimate lawsuits is one case
* Another common complaint is that laws and regulations are complex and inscrutable -- but the tradeoff is that a simpler, shorter law will be more ambiguous and therefore actually less predictable in practice until it's been thoroughly litigated
Sometimes it surprises me that professional software engineers deal with systems design tradeoffs every day in their own work, but then fail to see that systems design logic also applies to human institutions.
I think it's because the equilibriums look much worse. Even if your system is a pile of hacks on top of hacks, it might at least be good enough right now. Not to mention that sometimes you engineer something that works pretty well. Meanwhile the legal system often fails even for the exact situations considered when the rules were made, and there's pretty much no one would feel there isn't some gross injustice happening within it quite frequently (though the injustice may vary).
Interesting to see you advocate for "ask forgiveness later", one could render that as "if you're rich the legislature is happy as long as you give it a cut". You might as well ditch all corporate application of the law and just increase business taxes, same result but more economical.
You can settle with one troll and still keep your business, but not a non-stop stream of them. At least when the mafia extorted you for "protection" they wouldn't let anyone else muscle in on their turf.
Out-of-court settlement is awesome.
The real problem is that laws are complicated and variably enforced, making it extremely unclear who is right. Thus high legal fees.
The legal system is worse than the shittiest legacy code base you have ever seen, composed almost entirely of buggy exceptions, written with no thought toward future maintainers, beyond the comprehension of any mortal man, and gluing centuries old defunctness to poorly conceived addendum patching over the peeling layers. No one has interested in remove features, just adding more to the mountain of rubble.
You haven't seen the legacy code I have. One of the apps I worked on was modelling financial legal agreements. That was some truly shitty code. One function was over 50 printed pages with indentation levels I can't even begin to describe. It was also C++ written like Java. Tons of new's - no deletes or use of smart pointers. Leaked memory like you would not believe. Thankfully it was a batch-process. Even then, the server it ran on was allocated more that 128 GB of RAM because the hardware was cheaper than fixing the software.
The FBI could say, "rat on so and so and we will decrease your sentence by X, otherwise we will push for full sentence" and happens all the time.
But, if FBI said, "give us the password to Bitcoin wallet or you get decades in jail under retarded computer law" and the agent transfers Bitcoin to his offshore account, that is illegal.
Edit: But yes, their anti-patent troll activities are something I appreciate.
If I search for USB splitter by price on Amazon, I'm going to get flash drive cases, then USB cables, then flash drives, then I'll get into splitters. Newegg knows I didn't mean that, and that "products like this" shouldn't include everything with a USB connector on one end.
I'm not sure what Newegg is doing (apart from specializing), but it works damn well.
Here's more background on the case: https://www.propublica.org/article/a-colorblind-constitution...
And here are the two amici that Cheng co-authored:
http://www.asianamericanlegal.com/images/AALFAmicusBriefs/AA...
http://asianamericanforeducation.org/wp-content/uploads/2015...
This is an excellent strategy, a unifying strategy, and one that seems lacking in today's social media driven activism.
I like --> "Execution is the most critical element to success."
time and time again in high stress environments I see that there are people able to continuously execute and implement and those who tend to freeze or request help.
I think thriving under pressure is critical as well.
A lot of smaller startups seem to fit this description. I wonder which large companies he has in mind though. He named Alcatel as one, I guess. Maybe AT&T as well? IBM? Oracle? I don't know. Oracle is making a ton of cash.
I can't see any realistic reform here. Its not even an issue in this or the past few elections. I suspect this is going to be the status quo for a very long time. The system as-is serves big companies and the government.
Big tech companies take advantage of the system. Microsoft has made billions of dollars out of licensing Android related patents, Apple applied for a paper bag patent recently and Google has "patent parties" when (as I have been told by Google friends) they encourage engineers to work with attorneys in filing patents on anything they worked on that could be patentable.
Fix the "asinine patent policies"