Apple faces $600m damages claim
bbc.co.uk
bbc.co.uk
For Apple to have caused "Mirror Worlds" any harm, they would have to be competing with each other. For Mirror Worlds to compete with ANYBODY, a good start would be appearing to be a real business in any way shape or form.
Maybe I don't really understand patent law, but David Gelernter just sounds like a total scumbag here. I've read some of his stuff before, and he seems like a smart guy. What gives?
Edit: apparently this is Mirror Worlds' product website: http://www.scopeware.com/
Nothing. Vaporware.
The company I work for designs antennae for cell phones, wifi, GPS receivers etc. We barely have a website, just a couple of PhDs and a lawyer. We rely on licencing our designs and file a lot of patents. It's judgements like this that stop cell phone makers deciding that it's cheaper to just copy our inventions than pay us a licence fee.
The fine is supposed to be a dtterent - to say that it should be limited to what the company was bought for is like saying the fine for murdering a child should be limited to the hospital maternity bill.
Not that I'm accusing you guys, I'm just not sure how I can readily draw the line between the two.
Patent trolls file suits against cool hip trendy geek friendly companies like Apple and Google.
IP companies protect their investment when it's stolen by big evil companies like Microsoft or Sony.
The big problem to me are patents, common in software, that do the following:
1) They target a new problem that didn't exist before.
2) Have a trivial solution to this new problem.
3) Then one can claim that this patent is non-obvious since no one else has done this before.
The interesting thing is not the actual patent, but the problem it is solving. In SW this happens because the industry changes so quickly, but the patented ideas are obvious, its just that the problems are new.
I propose that we add a new test to patentability -- prior art that this problem has been attempted or struggled with. Thus if your solution is the first one to ever been attempted on a given problem its defacto non-patentable.
A quick example is in order: SMS comes out with 148 character limits. Someone then instantly patents URL shorteners to fit in the 148 character limit. Patent denied as there is no prior attempted solutions or struggles fitting URLs in it. (Note, if the patenter can find articles written by practitioners about how SMS is not useful because of link lengths then that would be applicable as prior attempt).
We use our 20years each of studying physics, software we spent a lot of time and money writing, and a lot of expensive test gear - to design a clever pattern of copper.
That's all we sell - the shape of that patch of copper.
ARM sell the shape of some layers of photoresist - same difference.
If your sole source of revenue is licensing the patents that you've created, you're a patent troll. The initial patent wasn't intended for this.
The patent wasn't originally intended for this. It was there to protect small inventors as they brought their ideas commercial. When Edison brought is light bulb to the market, only he could create light bulbs. This helped protect him from larger, more established firms, from copying his design so he could get his business bearings.
What you are doing is not that. You research some idea, patent it, then pocket it away until it's handy for you. If you make no attempt to show your patents, seek funding, or otherwise try to commercialize the idea, then you're a patent troll.
Isn't that essentially ARM's business model?
ARM aggressively markets their products and chip designs, showing benchmarks of their technologies. Most patent trolls fly under the radar, trying not to get noticed, so a major corporation can violate the patent in a huge, best-selling product. Then, they can claim "well, you should have checked all available technologies" - which is a huge waste of effort.
There's no incentive for patent trolls to aggressively market their products, b/c that doesn't bring the biggest returns. Look at this suit that just went against Apple - if Apple had negotiated a long-term license with them back in 2004, it would have been on really bad terms - no one knew that the iPhone would be this successful (except for maybe Apple).
There are perverse incentives in place to try and "hide" the patent as much as possible, and then wait for the biggest fish to show up. One really big fish is worth a thousand smaller fish, and when a really big fish falls, it discourages all the small fish from entering the marketplace all together - to the detriment of everyone.
Also, how do you propose the patent office make sure that I am actually going to build something? Isn't the workflow "invent, patent, produce"? Or should I alter that workflow and go with "invent, produce, patent"? If so what happens to everyone that imitates me in the produce phase once I get my patent? Seems to me I'd be much more of a troll then.
I have no idea what he(?) is telling you, but I'm telling you YES. The problem here is that you couch it as coming up wit the whole thing from start to finish. Think instead of how many hundreds or THOUSANDS of patents might cover a commercially viable cold fusion reactor.
Imagine if NONE of the patent holders want to invest a few billion to build it, they each wait around for some other sucker to invest a billion dollars and then try to "extract value" with their patent trolling lawsuits.
Result? No cold fusion for humanity, because nobody wants to invest a billion dollars building something that requires permission from hundreds or thousands of venal "inventors."
It is obvious that we do not need patents to protect the creation of a billion dollar reactor. The billion dollar cost to build one protects it. If you come up with the idea, but you don't have a billion dollars, do what everyone else is doing, go pitch it and raise money. If you don't have a billion dollars and you can't convince anyone else to give you a billion dollars, why should you get rich?
There is no moral imperative to reward inventors for pure thinking, and furthermore there is NO evidence at the moment that patents serve as an incentive to get smart people like you to invent cold fusion instead of making money trading derivatives or playing professional poker.
So you figured out how to build a cold fusion reactor. If you had done that you would have built a cold fusion reactor.
If one looked only at sweat equity, I'd wager that the creation and invention of the product in your average million-dollar-revenue company is dwarfed by everything else that needs to be done.
If you can't do any of those things, is the patent worth anything? Maybe it's cost prohibitive - maybe, in that instance it would be better to turn over the idea to humanity - maybe someone can run with it and make a commercially viable idea for $500,000,000, instead.
This is a bit of a strawman's argument - something this revolutionary would involve a thousand incremental steps, along with a thousand potential revenue streams along the way. If you can't produce a viable business from the idea, aside from the patent itself, is the idea really that revolutionary to begin with?
The problem with this model is now, "how do you define "actively trying to commercialize?" Patent trolls would then just move to doing the bare minimum to qualify for this category. If we make it prohibitively expensive, however, we may eliminate some of the patent trolls.
Some ideas in this direction:
1) IP companies must notify any infringing company within 3 months of the infringing product's release. IP companies can't wait until something like the iPhone blows up to sue.
2) If a company wants to maintain a patent, it must either be a commercial product or be willing to license it for a reasonable fee. Some IP companies refuse to license at first, in order to drive up the price.
3) Every 3 years that you have the patent, you must show progress towards commerciality (commerciality remains to be defined in this thought experiment).
4) The patents for ideas, strategies, etc. should either be banned outright, or the lengths made much, much shorter. There's no reason that Amazon should still have a patent over "one-click" in 2010.
My problem with "no one would believe you" is that it remains purely hypothetical. Capitalism and the marketplace has proven time and time again to be the great equalizer. If you had a working cold fusion experiment that you could patent, why wouldn't they believe you if you could prove it in a laboratory setting?
So no stealth startups then?
> 2) If a company wants to maintain a patent, it must either be a commercial product or be willing to license it for a reasonable fee. Some IP companies refuse to license at first, in order to drive up the price.
Who defines reasonable? I understand that the market can determine this, but the market can't then go to the patent office and say "Yeah, this patent should not be allowed."
> 3) Every 3 years that you have the patent, you must show progress towards commerciality (commerciality remains to be defined in this thought experiment).
Show progress to whom? The patent office? How do you define progress? Then we are back at square one: the patent office holds all the keys.
> 4) The patents for ideas, strategies, etc. should either be banned outright, or the lengths made much, much shorter. There's no reason that Amazon should still have a patent over "one-click" in 2010.
Agreed. Patents on software == patents on mathematical concepts. By the same token patents on strategies.
Here is a solution that can be implemented as an algorithm:
1. The inventor registers a patent and is required to set a licencing fee.
2. If within a year nobody licenses, the idea, the licensing fee is dropped to at least half the original or lower if the inventor chooses to do so.
3. This repeats until the fee is less than $1. Then the patent expires and everything is public domain.
4. If a patent is licensed from day one at the asker's price, it still has the usual time limit on expiration.
5. As long as a new licensee was signed on in the past year, the inventor may raise the licensing fee once for that year for any new licensees.
This is not a perfect system and obviously can still be gamed in various ways. But a system like this one could use markets to determine what an idea is really worth and for how long.
A) The licensing price is non-negtioble. That is, you can't get an offer from Apple to license it for less and take them up on it (although you can have bulk license pricing).
B) The license fee has to be reasonable with respect to the invention. This is tricky, because who determines what is reasonable. But it avoids the problem that Apple says, "Coverflow license is $1B/license". They have no desire to ever license it, but want it to take a while to hit the public domain.
Unless something changes drastically, I'm not sure how you pull this off. Most products aren't released on stage with Steve Jobs saying it will change the world. At this point the only companies who are likely to ever recoup any damage are companies like MS and Google, who can effectively build mini-companies that will track and analyze every product released. This simply is infeasible for most companies, including virtually every startup.
The problem then is that cell phone makers would have a monopoly, since no small company could come up with a better antennae, or better screen etc without also having all the other parts of a cell phone.
The original idea of the patent was to grant the inventor a limited monopoly in return for the invention being published and adding to the set of human knowledge - rather than a maker keeping it a secret part of their product.
Wow, that was a long sentence.
Anyway, that's the whole point behind patents in the first place. It's to allow the inventor to be able to stand up to a big company and negotiate on at least somewhat equal footing, and finding an agreeable set of licensing terms.
Then you could be an inventor instead of a builder, and come up with ideas that others can use to build stuff.
You're suggesting that there should not be any such thing as an inventor who doesn't build stuff, because you're proposing that such individuals are invariably shot in the back.
"If your sole source of revenue is licensing the patents that you've created, you're a patent troll."
False. An inventor's sole source of income might well be licensing patents -- such a person is making a living by inventing things. Hence the term "inventor" ;))
A patent troll is someone who abuses that aspect of the system, like IBM. They try to make their patents as broad as possible, and then use them to prevent other companies from making progress, rather than making the licensing process into a collaboration between entities -- allowing the inventor to create the shoulders atop which the builders stand.
When they "copy" your "inventions", are they actually reading your patents and building exactly the same thing? Or are they solving the problem in a way that is straightforward for skilled engineers, thereby producing a design that resembles yours even though they've never seen it? If it's the latter, and you're suing them for it, then yes, you're working for a patent troll.
Not so. The harm done is in one's granted patent monopoly being infringed upon. In principle this is patents protecting the little guy's invention from being exploited by the big guy without compensation. There is of course a fine line between that and patent trolling.
What gives?
Probably one or both parties declined to enter a licensing agreement.
Nothing. Vaporware.
Scopeware was around in the early 2000s. If I remember correctly it had some traction in the legal profession, but fell very short of the vision described in Gelernter's books. That's why you've never heard of it.
http://en.wikipedia.org/wiki/Linda_%28coordination_language%...
He's got quite a few essays on edge.org of some repute, including this one from 2000 in which he eerily and in detail predicts the move to event stream-based information presentation. Quantity, not quality, he says.
http://news.ycombinator.com/item?id=1759763
In any case, all the Mirror Worlds patent trial documents are available here:
http://news.ycombinator.com/item?id=1759843
From the summary there:
The document display lawsuit involved Apple's Cover Flow, Time Machine, and Spotlight displays. Plaintiff Mirror Worlds LLC alleges that Defendant Apple, Inc. infringed on U.S. Patent Nos. 6,006,227 and 6,638,313 B1 entitled "Document Stream Operating System" and 6,725,427 B2 entitled "Document Stream Operating System with Document Organizing and Display Facilities," 6,768,999 B2 entitled "Enterprise, Stream-Based Information Management System".
How could a jury of 12 non-technical people possibly be qualified to judge if a patent is valid? I would not feel qualified to judge if an automotive patent is valid, so how can a non-developer judge a software patent? The system is broken.
An example is in some average lawsuit where someone is hurt by something and unable to work.. let's say they can never work again... Now if we assume the company, or person, responsible would only have to pay for their hospital bills (200k maybe?) and their lifetime salary (50 years of working at the US avg of 50k a year) we only get to about 2.7 mil... In these cases the courts generally find that the compensatory damages aren't large enough to provide the dis-incentive necessary... Or so I understand it.
You know, the way patents are usually handled.
1. If the patent owner can establish that it would have made the sales that the infringer did, then the patent owner is entitled to the profits it would have made from those sales. (That's often hard for a patent owner to prove, especially if it is a "non-practicing entity.") Not surprisingly, this is referred to as lost-profits damages.
2. Otherwise, the patent owner is entitled to a "reasonable" royalty on the sales the infringer made that are covered by one or more valid patent claims. The royalty is supposed to be determined by assessing -- in hindsight -- what a reasonable licensor and reasonable licensee would have agreed to before the infringement began. (There are variations on, and complications in, the analysis that I won't go into here.)
3. Usually what happens at trial is that each side puts an expert witness on the stand to walk the jury through his or her analysis of what a reasonable royalty would have been. Opposing experts' analyses can vary wildly.
4. All of these determinations are made by a preponderance of the evidence. That is, jurors are instructed by the judge that they are to determine whether the patent owner has submitted evidence sufficient to make the patent owner's damages claim "more likely than not." [EDIT: As a practical matter, jurors often can be influenced by which expert witness they found more believable and/or likable, and by their perception of who is the good guy and who the bad guy.]
5. See http://www.virginiaiplaw.com/2010/03/articles/patent-litigat... for a summary of some recent contentious issues in the patent-damages area.
6. If the jury finds that patent owner has proved, by clear and convincing evidence (not just a preponderance of the evidence), that the infringement was "willful," then the judge (not the jury) has the authority:
a) to increase the damage award up to treble damages; and/or
b) to find that the case was "exceptional" and award the patent owner its reasonable attorneys' fees and expenses of litigation.
7. As a practical matter, any prospective juror who knows anything about the subject matter is likely to be excluded. [EDIT: That's because patent-owner lawyers don't want jurors to have pre-conceived notions about what is or isn't patentable in that field.]
FOOTNOTE: It's not well-known that lawyers don't pick a jury, they unpick it. Usually, prospective jurors are randomly assigned sequential numbers from 1 to N. Jurors can be excluded "for cause" (e.g., because they know one of the parties, etc.), or by the lawyers' using their limited number of peremptory strikes. The first 12 people remaining (or six people in some cases) become the jury.
8. EDIT: The discussion above presupposes (i) that the patent owner has proved that at least one claim in the patent has been infringed, and (ii) that the accused infringer has not proved, by clear and convincing evidence, that all infringed claims are invalid.
These judgments are really hard to stomach. Perhaps, though, if enough powerful companies get hit with them, they'll lobby to stop the insanity. That's how the legislative process works, isn't it?
For example, they might lobby to require the invention be a "real product", defined as N x 100,000 units or $N million dollars revenue. While that would eliminate patent trolls, it would also destroy small companies and individual inventors.
I could sympathise if Mirror Worlds were the originators of the patent, but as they bought it, then I get the impression that the whole thing stinks.
http://arstechnica.com/apple/news/2010/10/apple-loses-patent...
Gelernter himself is not a troll. If all this is based On Linda (I havent dug deep enough), it would be based on work he did at least as far back as 1983. Google "Gelernter Linda", He published a book "Mirror Worlds". which I read decades ago. He tried to commercialize it, but had only modest, if any, success. OTOH he sold his patents to a patent troll.
If the patent package was recently sold, doesn't that do a pretty good job of establishing the value of the patents, and thus, the appropriate judgment against Apple?
What would the idea of the iPod have been worth in the 90s? The then value of Apple's consumer electronics sales (ie 0) or the current and future value of Apple?
Very little indeed.