Our first patent troll
mycroft.ai
mycroft.ai
I remember looking the jury in the eye during my testimony and thinking "these people are tired, they are bored and they don't really have a clue about any of the technology involved here". Sure, it's the lawyers job(s) to try to make sure they do, and that they decide in the "right" direction. But seriously - taking a semi-random set of 12 jurors, sitting them them for 1-2 weeks of court room "education" in network technology, protocols, filesystems, cookies, URL structure and so much more, and then expecting them to come to an "informed" decision?
This is not a justice system worth defending. In the last case, no jury of "peers" - ie. other engineers who actually understand what the patents are about - would ever have found for the plaintiffs. But you end up in court with a very different jury than that, and at that point, the battle has just started.
There was a U.S. Supreme Court case called Diamond v Diehr such that if its precedent were followed, software patents like the one in the comment above would never be granted. Somehow lower courts confused things enough that software patents started being granted again.
Once you open up patents to a super broad and prolific field like software, it's impossible to maintain enough expertise to assess novelty and non-obviousness. And at that point the system completely breaks down. A presumption of validity when the USPTO cannot reasonably be expected to judge validity basically means that people are being denied due process when sued for patent infringement.
We have a legal system not a justice system.
Those in poverty and without power have known this for sometime.
Read: Gideons Trumpet by Anthony Lewis
Follow: @innocence
Patent trolls typically have almost no overhead, just a small office in a cheap venue (Marshall Texas) and time.
Its simple math, 1) it’s cheaper to settle out then litigate (by far) so boards usually want to settle, and 2) its too expensive to litigate, ie you don't have 1-2 million to fully fight a patent troll.
Good for you for fighting. Ultimately thats what we've done and its the only way to stop the Trolls. (Shout out to Lee Cheng formerly from NewEgg)
There are some patent defense consortiums that you can join that will share the burden if you are sued by a troll making you a much less appealing target.
Good Luck!
So do you happen to know if the troll needs to prove that the company violated a claim, or does the company need to prove that it DID NOT violate the claim?
That's how you hunt trolls. Merely proving you didn't violate their patent is not helping the next guy (and actually, you might have violated the patent, who knows with these frivolous things). Killing their patent does.
0. making it harder to get a patent (not adding arbitrary bureaucracy, but ensuring examiners maintain high and fair standards) 1. making it harder/shorten the time to keep a patent
EFF, ACLU, etc. might nibble around the edges on this issue, but there's no one going after the politicians with lobbyists, a bucket of money and a deep bench of patent attorneys funded by something like a Kickstarter/IndieGoGo and/or subscription model to the tune of a Bernie Sanders-equivalent funding level.
Software is kind of unique (and even moreso now with the prevalence of cloud providers) with its otherwise low barrier to entry; as capital expenses are extremely low compared to other industries.
So based on Alice, etc, where a lot of software patents got invalidated. If a patent got issued pre-Alice, can a defendant invoke Alice as a defense?
Is there a way to do that without going to trial?
So to file a motion to dismiss, is there a USPTO process that one can follow, or there must be a real trial?
My goal is to find the fastest (and the cheapest) way to starve the troll.
So if I think about it correctly, there are three ways to dismiss it.
1) Invalidate the patent on the basis of novelty (101).
2) Invalidate the patent of the basis of the prior art.
3) Invalidate the claim on the basis of non-infringement.
[ Am I missing something? ]
Which one do you think is the best strategy (with the most chance of success? Or based on your experience, what will likely work.
[1] https://www.engadget.com/2017/05/22/supreme-court-location-p...
Did this troll not get the memo?
https://www.thisamericanlife.org/radio-archives/episode/441/... (2011)
follow up: https://www.thisamericanlife.org/496/when-patents-attack-par... (2013)
> It looks like Tod “accidentally” filed in the wrong venue so after we’ve changed the venue ( and recovered our attorney fees from Tod for the required effort).
So perhaps the troll did miss the memo; perhaps they were hoping that most defendants would miss the memo.
Can you legally claim "hostile regulatory environment" or something like that for denying service?
Cloudflare, FAANG, etc are a position to seriously mess with mobile services and website traffic to all of East Texas. They're free drop service for any legal jurisdiction they want, right?
The "regulatory environment" there might not withstand the public pressure of those services getting denied. Ie, if its citizens felt serious pain of companies refusing to do business there, maybe they'd drop the rules aiding the trolls.
https://patents.google.com/patent/US9794348B2/en
Abstract A method of using voice commands from a mobile device to remotely access and control a computer. The method includes receiving audio data from the mobile device at the computer. The audio data is decoded into a command. A software program that the command was provided for is determined. At least one process is executed at the computer in response to the command. Output data is generated at the computer in response to executing at least one process at the computer. The output data is transmitted to the mobile device.
It is worth noting (based on Google...) that they are the first ones against which this patent asserted in court. Based on its broad applicability they are clearly following a strategy of getting a few wins against weaker targets before taking on the rest of the world.
Alexa, Siri please help!
this is revolutionary. are they taking investors?
> A method of remotely accessing and controlling a computer from a mobile device, comprising:
> receiving audio data from the mobile device, at the computer, at an audio command interface; the audio command interface decodes the audio data into a command;
> the audio command interface selects, from two or more applications, one application the audio command interface decides is the appropriate application to execute at least one process in response to the command, wherein in deciding which application to select the audio command interface uses biometric data;
(This step is likely the basis for any claim of patentability over the prior art. Interestingly, the patent doesn’t use the term “biometric” in the specification. So there might be a written description or enablement problem. Caveat: I’m a lawyer but this is not legal advice, just entertainment.)
> executing with the selected application the at least one process in response to the command;
> generating output data in response to the selected application executing the at least one process;
> and transmitting the output data to the mobile device.
We just threw it in the trash and moved on with our lives and that was that. No follow-up, of course.
Ah, the delights of Pure Intellectual Research in the ivory towers of academe, right?
Many schools try to make money by licensing patents, even giant public schools (oddly). Faculty and research staff are pressed to make invention disclosures of ongoing research that hasn't been published yet, and the school decides if it can make money patenting it. If they do, the inventor gets a cut.
In terms of ownership, all govt funding of the research means is the govt itself gets a free license to use it, not the public.
I understand the whole 'ownership of govt funded stuff' well enough; I don't think I am entitled to ride around in a tank. And yet it doesn't seem entirely like the public good that was trying to be achieved, especially this kind of spammy approach, where they clearly had no idea of which patent we might be "infringing" or interested in licensing.
I think they aren't.
Having a patent system gives people the wrong impression that there's some special nugget of knowledge that is crucial to creating value. You often hear people who aren't in the entrepreneurial space talk about how they just need a "good idea". In practice, there's very few things that work that way. Every time I've started a business, there's been a lot of work that isn't so much developing "the idea" as much as finding ways to connect it economically the rest of the world. Whereas the naive view would be something like "once we invent fusion, it will be easy to sell".
For similar reasons, exclusivity is not necessarily a good way to reward innovators. Essentially my thinking is that innovating is actually only half the work, if even. Say you invent the cure for coronavirus. How useful is that actually, without a plan for making it at scale and distributing it? And what is the chance that the guy who spent his life building cures for viral diseases is also the guy who can build factories and delivery networks? The retort to that may be that the innovator can outsource those things, but why would we give them the exclusive right to do that, when he'd only gotten one piece of the puzzle?
Patents also allow incumbents to create costs that deter new entrants. They seem to be so loosely defined that any suitably large corporation that feels threatened can throw them at any other player and the lawyers win, like this article is talking about. It's great that they are fighting but there's a problem if the troll has deep pockets.
One big issue that is mentioned is that the troll doesn't need to produce anything working. So basically they don't need to show that they are making anything of value. No customers needs to ever have benefitted from the patent. So somehow the system would still punish an honest player who tries to be useful to other people.
Finally, the thesis itself of how patents are supposed to work needs evidence to support it. I don't see any evidence other than thought experiment to say that something was invented because the patent system existed. All I see is that if you can patent something, you do. Not that you try to invent something because patents exist.
The patent system is designed to reward the publication of technologies, not their development.
This is another way of saying "actors in less advanced economies ignore IP protections until they've more or less caught up".
That was the US IP strategy, which it now decries when others follow it. Enabled by faster international feedback loops, China is, er, innovating on the strategy, simultaneously weaponizing IP law while also expropriating through various means.
If a technology can be reasonably be kept as trade secret, a patent system provides an incentive to publish it as a patent instead (25 years guaranteed exclusivity instead of exclusivity until it somehow leaks or somebody else figures it out).
But some technologies are easy to figure out once you have the consumer device in your hand. In that case a patent system might help incentivize commercializing that technology at all. After all, why would you develop something only to invite everybody else to sell a cheaper version.
This depends on the business. I know some people who work in an area (developing calibration systems for low-cost sensors), where an entire company's competitive advantage can be written down in one or two equations which took years of work to develop. That said, they don't patent these things, they keep them as trade secrets.
Of course they don’t work perfectly, as drugs off patent sometimes don’t see price reductions, but generally prices come down once off patent.
Disclaimer: Not from US.
edit: The real problem is the lack of limits on marketing and advertising of drugs in the US. That's what's driving up the cost of drugs more than anything. Of course, without it drugs for rare conditions will never get made since there's no way to communicate their existence to patients. Ah well, nothing in life is perfect.
Yes, so outsource the trials to academic hospitals or specialized companies. Pay them properly and don't grant them a patent based on just doing the trials (they are a lot of work but they are not an inventive step).
This is often true of software industry startups. Not so true of many other industries. If you invent a higher temperature turbine blade, for example, figuring out the market for it is trivial. The same is undoubtedly true of fusion.
When I worked at a startup, we knew the military would basically buy our technology, if we could get it working in the first place. The company has been working at it for more than 10 years.
One of the benefits of the patent system is that it allows monetary separation between investors and distributors. ARM doesn’t need to know how to build cell phones or how to market them to consumers. It can focus on chip design and sell IP. That’s specialization at work. And it’s of enormous economic value. If you can’t protect inventions, every company is basically judged on the success of manufacturing/marketing efforts. (That happens anyway, but devaluing IP would accelerate that.)
I imagine the IBM Simon would be an example of prior art being first demonstrated in 1992.
First of all, based on my understanding of Mycroft architecture, voice recognition is done on the device itself, as well as application selection.
Hence, the voice command AND the command logic is done on the mobile device, and DO NOT access a remote computer.
Also, the prior art is likely very strong as evidenced in the patent itself:
"from a mobile device to remotely access and control a computer are known in the art. However, such prior art systems are application-specific, meaning they are configured to allow the person to use voice commands from a mobile device to remotely access and control a specific application at a computer. Therefore, the prior art systems 25 require the person to have multiple mobile devices and/or systems to remotely access and control the different applications at a computer. Additionally, the prior art systems limit the audible and visible feedback the person can receive from a computer while using voice commands from a 30 mobile device to remotely access and control the computer. "
So the patent admits that prior art exists for sending commands to specific applications, but not for general application? , I fail to see the difference.
All voice commands are sent for a specific application.
Hence, since any voice command is for a specific applications, I fail to see how Mycroft violated the current claim.
If you want an example of the prior art, here is a very famous system (from 2006)
http://www.speech.cs.cmu.edu/letsgo/
In general, the patent shows its age, such that it confines itself to a simple client-server architecture, where the mobile device gets the audio, and the remote computer (the server) does speech recognition and command selection.
However, if you do the speech recognition on the mobile device, as well as the app selection, I think that the patent is no longer valid.
Overly specific claims are signs of patent's quality and probable issues, but they don't necessarily make it invalid.
I.e. that they avoid sending any audio to some central server.
It is possible:
The case portrayed in the TV show "Silicon Valley" was illustrative: "best just to settle because it'll cost us less", because the mere act of suing itself financially damages the victim, often severely, given lawyers' typical rates.
But not so under the "English rule": it costs you nothing if they lose.
Basically if you get sued your insurance company will send their in-house lawyers, and in the end send a large bill to whoever filed the frivolous lawsuit. Very bad economical model to go and sue large groups of you're not going to win, because the defendant's legal costs will quickly bankrupt you.
Or if you're the size of Cloudflare, bully them in other ways. In this example it's an operation setup by just two lawyers, easy to make them regret going after you if you make their work impossible. You could for example hire away their legal staff, delay things for ages, screw with the personal life of the two founders. They can't keep a small business afloat for very long if you dedicate some resources to screwing with their operations.
Might even just sue their clients for something else (one of your patents for example). In this case the client is a small firm in Germany, they would be in a very bad place if they got sued in the US home district of Cloudflare and had to defend. High probability that they would put pressure on the lawyers to drop the troll suit.
I don't think the risk is really that high of dealing with a patent troll. Competing firms are much more likely to sue you in my experience. To "insure" against these you need your own patent portfolio to counter sue them with. Or license some technology from a giant company that protects it for you. Or, again, just pay them off.
Either way, the goal isn't to shut you down but to bleed you of some of that money you are making. So it's a good problem to have in a sense.
Let me see if I can find a reference and I'll update this comment.
EDIT https://www.eff.org/deeplinks/2017/05/supreme-court-ends-tex...
Over time, they were bribed with public amenities by large companies. You know, the usual.
Now some litigants are moving elsewhere to avoid the above.
They made a business of it
The district is also not as random as people make it out to be. It’s a few hours east of Dallas, and includes some of the rich suburb/satellite cities like Plano. It’s got a significant oil and chemical industry.
Patents make vastly more sense when applied to physical artifacts.
No. It never makes sense. You cannot justify the Intellectual Slavery system, anymore than you can justify the Human Slavery system. It's a restriction on human freedoms; it's incompatible with actual property rights (as it restricts what I can do with my own physical property); it's a subsidy to those who were born into it (when you follow the money that flows to copyrights and patents holders, you see the majority goes to inherited wealth).
It's economically bad and morally wrong, is as much as you can have something morally wrong. Here is a classic example of what the Intellectual Slavery industry has brought us: https://qz.com/1125690/big-pharma-is-taking-advantage-of-pat... half a million Americans dead from a "novel" patent.
The system is utter garbage. We need to shatter the brainwashing that these things make sense.
While you obviously can't "win" in a legal sense, you can at least make it know to his family and friends what he does for a living. If he does unethical things in his jobs, he probably does other unethical things in his real life and people should be warned about him.
Who are the Goller's? https://www.kentucky.com/news/local/news-columns-blogs/tom-e...
Jewish deli owner family. Now making a living as trolls.
Here's a photo of them: https://www.kentucky.com/news/local/news-columns-blogs/tom-e...
doctor? wat?
This is very naive. Patent trolls get paid because they are highly effective at weaponizing the legal system.
This is the perniciousness of the petty injustice. It's the small fees, the little charges, the nickels and dimes that we all ignore because life is too short, and they add up to great fortunes. It's wrong and should be illegal, but that's how the world works right now.