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Comment by almightygod | Hacker News Reader

I get anxious every time I read another patent troll story wondering when my weekend creations will end up costing me $ when they accidentally infringe on a patent because I roll out some seemingly ubiquitous feature.

I'm deeply saddened by this mess and doubt it will ever be resolved. There is far to much money at stake now to revert things - money = lobbying.

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    > [...] they accidentally infringe on a patent

I hate to break it to you, but chances are that you infringe on hundreds, if not more, patents in the US. Nobody can tell you what or even how many patents you infringe on, though. Nobody has read all the patents and every single one is subject to interpretation. An interpretation, I might add, that has to be validated by a legal system that really doesn't care about correctness, technical validation or even fairness.

Patents in the software industry were historically held for defensive purposes. If you get large enough you start building a patent portfolio so other companies can't sue you because you'll sue them back. Everybody infringes on everybody else's absurd patents so suing is a Mutually Assured Destruction scenario (neither party wins and the lawyers take all the money that you could have invested in something worthwhile).

Companies like Lodsys and Intellectual Ventures are different. They only have patents and they have no product. So if they sue you for patent infringement you can't sue back even if you have patents because they don't have a product and by definition can't infringe on your patents (if you have them).

Patent fights between corporations are ugly enough, but are generally on a more-or-less level playing field. They happen in the courts between very well funded armies of lawyers.

Suits between, say, Lodsys (money + patents + lawyers + no product) and independent developers (no money + no patents + no lawyers + product) are so vastly uneven and unfair that most developers will just give up before this ever comes before a court. Even if you want to do it on principle it'll bankrupt your life. Just giving up and finding safer markets with (maybe) lower profit margins seems like the obvious way to go for anybody.

Also, there's value in sticking your head in the sand since if you know a patent exists but don't think you're infringing but then lose an infringement case, you're liable for treble damages (IIRC, IANAL, etc).

Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''

I wonder if there will be a "Finlandization" of software development (concept courtesy of Chris Crawford's classic "Balance of Power" game) where small devs and dev shops align with larger, protective entities that provide defensive protection in exchange for association with the aura of small, indy developers.

Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc.

Eh...

You mean ... like IBM's endorsement of Linux, and in partnership with Intel and others, forming the Linux Foundation?

Having the free guilds be sworn to some liege for protection while providing useful arts is hardly a new concept.

Just to set the record straight: a game developer didn't come up with the concept of Finlandization. The term was long used by scholars in geopolitics to refer to the situation of Finland, which although internally free, had aspects of its foreign policy more or less dictated by the Soviet Union.

You are correct...I should have said "my introduction to the concept" was courtesy of the game Balance of Power. Which is interesting, but perhaps not HN comment-worthy.

Sorry, firebones, "Balance of Power" Chris Crawford != "Patent 5771354" Chris Crawford. (Fwiw, I made the same assumption while I was listening to "This American Life" too.) I spent far too much time digging to get to the bottom of this identity question....the disambiguation is in the middle name/initial. On the patent filing, the inventor is Christopher M. Crawford. In video-game-Chris-Crawford's preface to his new self-published ebook on Amazon

http://www.amazon.com/Art-Computer-Game-Design-ebook/dp/B005...

he refers to himself as Christoper Charles Crawford. QED.

As usual, the only way to rectify the software patent situation is to hit the big guys where it hurts. If we want to software patents go away, we need to see that Microsoft, Apple, and other big players are sued and lose for patent infringement on a regular, expensive basis. If we can hit the big projects frequently enough they will give up, decide the patent regime costs more than it's worth, and get their cronies in politics to turn it off. It is not likely that things improve until this happens.

A couple of years ago a company called i4i got an injunction issued prohibiting the sale of Microsoft Office for (frivolous) patent infringement. Of course, Microsoft panicked and worked around the patent immediately, released a patch, and sent out new packages to suppliers -- expensive indeed but at least they avoided actually not being able to sell Office at all. If we have this kind of thing happen to multiple big companies even a few times a year I think we'll be on track to some serious patent reform. Until then, it's just too profitable to pillage the little guy and engage in mutual cross-licensing and suit settlements among competitors than it is to care that it is impossible to write software without violating hundreds of patents.

We know the saying: "the best way to get rid of a bad law is to enforce it". I've heard it attributed to Teddy Roosevelt but can't seem to find a good reference atm.

If we want to software patents go away, we need to see that Microsoft, Apple, and other big players are sued and lose for patent infringement on a regular, expensive basis.

That's pretty much what happened to Microsoft. It got sued and creamed repeatedly in the late 1990s and early aughts. Myrvold's venture is a very obvious outcome. Earlier foreshadowings included Microsoft's pressuring Wang to sue Netscape: http://www.v3.co.uk/v3-uk/news/1943376/wang-loses-lawsuit-ne... http://articles.baltimoresun.com/1995-04-17/business/1995107...

(One of many reasons those with long memories have little trust or love of the former Redmond giant).

(Edit: fixed italics on quoted text.)

"As usual, the only way to rectify the software patent situation is to hit the big guys where it hurts."

I do understand where you are coming form; I'd like to add my $0.2: The best way to fix patents is to get a better funded patent office so that they can process patents faster, updating laws and basically following the due process required to update the current system.

Accepting that things will change only if large corporate interests are hurt, is to be ruled by a broken, unjust and unfair system, one which will never value be 'fair' only to those with enough money to buy their way to power.

Actually, there may be a moral responsibility on all of us developers/hackers to make it obvious to the general public how ridiculous most sw patents are.

For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense.

ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.

Listen to the this american life story, they mention a piece of software used by patent lawyers which does basically that.

If it's any consolation, hearing from a patent troll means you've built a successful product.

And that you now own as little of the profits from it as they think you can survive on.

That's like saying that hearing from the Mafia means you now have a successful business. Hoorah, I guess...

Except you don't need to make a profit to be subject to a lawsuit. Hobby or weekend projects are just as liable.

Well sure. But from a practical standpoint, a patent troll is far less likely to bother with someone who doesn't have reasonably deep pockets.

While this is generally right, it is also fairly common for patent trolls to go after some small fish they claim are violating a patent first to set a precedent of wins (or settlements) against opponents with weak legal war-chests.

A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.

More like: you look like you've got enough resources to pay out, but not enough to put up a good fight.

One of the problems with patent enforcement: the patent holder has the right, but not the obligation, to pursue infringement. Or in plain English: they can pick their fights.

If IBM, Mac's Komputer Shoppe, and Western States Services, Inc. all infringe, odds are good that the PatTrollCo will skip IBM (able to defend) and Mac (no assets) but nail WSS (big enough to have assets, not big enough to have attorneys on retainer or a significant patent portfolio).

If you infringe a patent - isn't possible to get a fixed cost or is it a fraction of earnings? Can you be more out of pocket than what you earn? ie can you do

[1. Possibly cursory layperson check of existing patents ]

2. Weekend / hobby / small-scale project

3. Oh! People like it, it's making money / scaling!

4. Get lawyer in to do proper patent search before continuing?

(not that this is ideal either)

You can agree to license it for whatever the other party is willing to license it for.

It's the court costs that can pretty much bankrupt you.

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