Meet the nice-guy lawyers who want $1,000 per worker for using scanners | Hacker News Reader

Meet the nice-guy lawyers who want $1,000 per worker for using scanners

arstechnica.com

137 pointsjnand80 comments

I might have worked on some prior art related to this. In 1993 I worked on a project for a "superfax" system for the NCSU library. It was basically a scanner hooked up to a Mac that would send the resulting tiff files over FTP. It was a great learning experience (well... scsi scanners can blow me, tiff is nuts, the ftp protocol is way over-complicated, but I was doing real internet socket programming in 1993, for money!). It was certainly a one-click scan-and-send solution. Maybe we can get this fucker overturned. (If the email angle isn't essential, which now that I think about it, it probably is.)

That might be close enough prior art to get the patent ruled obvious.

I mean, it ought to have been discarded as obvious in any case, but maybe sticking this in the PTO's face would help. Do you have any evidence?

I was building distance learning systems in 1997 and 1998 that included the ability to send faxes across a TCP/IP network. There were two devices (already on the market) that allowed you to push the send button on the fax machine, and forward it another similarly configured fax machine.

The intermediate format was to send a TIFF file to an e-mail server ... this sure sounds a lot like the patents being foisted upon small businesses today. Unfortunately I can't remember the name of either device, but I've got a picture of me hiking with my kids in one of these company's t-shirts. More to come!

I bought a Canon scanner in 1996. It had a one click email button on it. I hooked my computer to the net so... does this mean I should really hold the patent?

I think the software was called canoscan.

NeXTmail had some very similar scan/fax/email integration, but it might not have been until a couple of years later than that --- I don't remember.

Prior art for this predates the World Wide Web. The physics arxiv and SPIRES database were doing this in the 80s.

Yes, contact the author so he can put you in touch with the proper lawyers

I seem to recall that telecom gold (dialcom in the us) had an experimental email/fax gateway back in the 80's.

"I'd appreciate you not running a photo of me, anywhere," said Rust. "You know how photographs work, with copyright and all. If there's a photograph up online of me, I own it."

I guess lawyers don't read the terms and conditions when they use websites, either.

He's not a very good lawyer. The photographer owns the copyright interest in any photos they take. the subject may have an interest based on their 'right of publicity,' but that's something quite different.

In our copyright class in school, we were taught that photographers do give up copyright in the specific case of work-for-hire (with all the criteria for determining work-for-hire that entails; a la CCNV vs Reid).

I've certainly had to get "work-for-hire" verbiage stricken from client contracts, but I'd love to be wrong about that.

As far as I'm aware though, except for that, copyright is granted to the "artist" who created the work[1].

[1] With one famous exception: http://www.techdirt.com/articles/20110713/11244515079/can-we...

But what patent troll cowboy was trying to assert is that if he is depicted in a photo then under copyright law he "owns" the photo. Although as the person you were replying to pointed out there is some basis for this notion under common law right to publicity, this is distinct from federal statutory copyright law (and in any case would not apply in the context of a news article).

Since his assertion has no basis in copyright law either: (a) he has an honest confusion regarding how that area of the law works or (b) he was relying on the reporter's assumed ignorance of the law to engage in some good old fashioned baseless legal intimidation in order to get his way. But that's not something a patent troll would do.

Another reading of what he was saying is that he believes that there are no photos of him which he doesn't own that are online.

If I were in his business I don't think I'd want my picture out there either. You can probably steal from people like this and 99.99% of those people do the "smart" thing and just get on with their lives. But if you send enough extortion letters, eventually you'll roll over a nutcase like a landmine and life will get "interesting" after that.

Who'd dare mess with a guy who poses in a hat like that?

He knows that he's such an asshole, he doesn't want his image out there in case of reprisal.

He does seem to have a nice smile, and probably has a firm handshake.

ugh.

If it wasn't clear; that statement is blatantly false.

I don't know who first made this observation, but the best way to get a dumb law changed is to enforce it strictly. I can't help thinking that this is a good thing...

"The best way to get a bad law repealed is to enforce it strictly." - Abraham Lincoln

I really don't think Lincoln said that (assuming he did, Lincoln certainly didn't try to apply that to the question of slavery, so under what context did he say it?). My sense of history smell is calling shenanigans and a quick search shows it's one of those things that was probably made up as I couldn't easily find an actual source.

Sorry to be slightly off-topic here, but it grinds my gears when using a made up quote by someone famous who didn't say actually it (and never likely did historically) doesn't add any real value to a conversation.

"Its a popular quip on reddit to give a knowingly wrong quote and attribute it to someone famous, particularly dead presidents."

-JFK

Indeed, that's why I was uncertain -- I've definitely seen it attributed to Lincoln, but that alone is not enough to convince me that he was actually the originator of the observation.

I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. — http://en.wikiquote.org/wiki/Ulysses_S._Grant

Could an enterprising lawyer file a class action suit against the printer manufacturers on behalf of the letter recipients? They have mass marketed items that violate patents to unwitting consumers.

I don't think this is any less unethical that what the patent trolls are doing, but at least it may force the issue to come to a head.

And he was formerly involved in a Ponzi scheme. Why is it so hard for these people to make an honest living?

Did you read the bit about how he escaped any penalty previously? Nothing's taught him otherwise.

its a two way street. these companies would do the vary same thing the second it becomes profitable.

US patent law applies to any company that runs in the US - or to any company that operates in the country where the patent was filed.

Does anyone know how this applies to online companies that are registered and operated outside of the US, but still make a portion of sales from US customers?

I'd assume many startups are susceptible to infringing on patented ideas that were never implemented; and leave them vulnerable to this sort of stupidity.

Excellent. Harassing hundreds of small-to-medium business people (likely friends and contributors of lawmakers) is an excellent plan. I'm in favor of it.

So the anonymous owners of these companies are actually disgustingly taking advantage of the US patent system not to make a profit but simply express its brokenness and to encourage reform?

That's a good conspiracy theory :)

Actually, the way he repeated "you should contact an IP attorney, he'll explain you how it all works" throughout the whole interview made me think that.

Or maybe it's the way he justifies (rationalizes?) his actions to himself.

No, it's a way of him acting disarming and helpful by falling back on an option that the person can pursue to "validate" the issue at hand. It's definitely not some scheme to trojan horse takedown patent trolls... like himself.

It's a form of intimidation. Like when someone is blackmailing you and says "...or if you're uncomfortable with this then, you know, we can always talk to police about it".

According to the article, he says that because he believes most people will pay up after taking to an attorney.

I sort of really hope this is actually the case. As long as no one actually ends up paying them any money.

The hidden costs for the whole US society/economy must be huge due to broken laws. (Stalled innovation, reduced efficiency, etc.)

There are some really smart people in the USA, but sadly this doesn't apply to their leaders. The only thing they're good at is running massive propaganda campaigns (to the point where some people think they're proud to work two jobs and barely have something to eat).

The funny thing is that most people who actually meet their political representative in person will tell you that this really is an honest, hard-working guy with the best interests of everyone in mind, totally different from all those crooked idiot politicians...

You don't get to be a politician without some charisma and the ability to tell believable lies. I'm not saying these aren't useful skills, but putting too much power in such people is generally a bad idea.

Actually my interpretation is that actual good intentions and hard work are indistinguishable from corruption and incompetence when seen in aggregation from afar in an environment of conflicting interests.

That, and reporting bias.

Nope. Actual hard work and good intentions remain visible at any level - the Nordic countries are famous for their sane politics, even though we're looking at them from a distance. Facts are just facts and the distance only helps.

Reporting bias can be effectively eliminated by collecting your data from multiple sources, i.e. visiting different web pages. Of course, you could then introduce your own bias by choosing which sites to visit, but you can at least try to be consciously aware of this and avoid it as much as possible.

> Reporting bias can be effectively eliminated by collecting your data from multiple sources, i.e. visiting different web pages.

Not when there is a systematic "newsworthiness bias" that all of the suffer from. People just doing their job never gets reported. People doing their job exceptionally well gets rarerly reported, but horror stories of incompetence and corruption are certain to make the headlines.

The patent quoted in the article has to do with software api compatibility.

Other than a repeated reference to an OCR wrapper, I don't see how this has to do with email, printing or using a single button to send. In fact, it seems like Mr. Klien is asserting that he has discovered middleware. In 1998.

Is there some other non-referenced case law that narrows the scope of this patent to the above printer scenario?

At least people outside of tech are starting to notice there is a problem with patent law. Check out the "Tabarrok curve":

http://marginalrevolution.com/marginalrevolution/2012/09/pat...

It would be interesting to see if these groups of small companies could band together and share resources to fight something like this. On their own, a small company has no shot but everyone that received the letter together might.

Anything but nice guys. With a fake smile, their message to small companies is to pay up or they'll break your knuckles... these people are about as socially useful as a bunch of rats making a living from raiding food stores.

I think they know that there is a very good chance this will be invalidated if it found its way to a case.

Unless I was running a massive company I would ignore this. It would be nowhere near lucrative enough for them to risk the case.

I used to know Bryan Farney quite well; we were partners in the same IP litigation firm. (I haven't been in touch with him in probably 15 years.)

Do not underestimate Bryan. He's a brilliant and highly competent lawyer, a seasoned litigator, and a very focused individual. He knows the tech industry from the inside; in one incarnation, he was general counsel at Micron Technology. IIRC correctly, after that he was a partner in Brobeck's Austin office before that firm imploded. Personally Bryan is indeed a nice guy, but by no stretch of the imagination is he a pushover.

And why are the users and not the printer companies being sued for this?

That is the heart of patent trolling.

With a weak patent you do not want a single victim with deep enough pockets to fight it. You want a large number who will pay you something to go away and stop ruining their lives.

If you actually read the article simple questions like this will be answered.

Nobody's being sued. They want settlements, not litigation. The printer companies would refuse to pay the settlement offers, so the lawyers get nothing. The 10-employee companies can't afford litigation, so there's a chance they'll pay off the troll to avoid it.

So it's basically extortion?

"It'd be a shame if something happened to your little business..."

Yes it is. And unfortunately the laws allow it.

If I were running a business that got one of these "settlement" letters, I say, "sue me." Then I'd turn right around and sue the printer company for failing to indemnify me for using their products and basically, force them into the fight.

Well gather up all your money + several hundred thousand more and burn it. All cause you didn't read the EULA of your scanner, the patents in question, or have a clue about US law.

Suing for indemnification is what I would do after filing ethics complaints against Jay Mac Rust and Brian Farney.

exactly, class action suit from everyone that got a letter too. make it match the thousands that are being trolled.

I want to know the same thing. Doesn't the printer manufacturer license these patents so each user does not have to themselves? I just can't understand how this bs is allowed.

It's in the article.

I couldn't find that addressed in the article, could you be a little more specific about where?

About halfway on the 2nd page:

"Second: Farney said that his client is going after scanner users, not to avoid doing battle with big scanner makers like HP and Canon but because there’s no other use for the patents. Because of the way the patents are written, MPHJ actually can’t go after scanner manufacturers. Only the whole “system”—putting the scanner together with a network—infringes.

“The devices can be used in plenty of non-infringing ways," Farney explained. "Several of the major manufacturers have talked to us about these patents, and they agree with us. The product they sell is not infringing. It’s putting the whole system together. If you have an office scanner that scans with one button, is hooked up to a network, and can send e-mail—you infringe.""

The article goes into that. The idea is that it infringes only at the moment the device is hooked up to a network.

How is that really inventing anything? They're either following instructions to use a product, or doing something completely obvious.

Maybe I'm misunderstanding the intent of patents, but I would've thought they protected the interests of the inventor against competition by other inventors rather than users of an invented product?

I don't know the specifics of this man's legal claims, but the article makes his stance pretty clear: the combination of scanning, emailing, LAN and one-button operation is the thing that is patented. The point is not that the user is inventing something, it's that somebody else has invented this combination, and the user must now (again, according to this man) pay a license fee to use this specific invention.

"or doing something completely obvious."

This is also discussed in the article. Many things that many people (especially engineers) would consider 'obvious' or 'simple' really aren't under patent law (again, this mans claims), and in some cases, things that are 'obvious' now weren't when the invention was done. Which, to some degree, is true.

"Maybe I'm misunderstanding the intent of patents, but I would've thought they protected the interests of the inventor against competition by other inventors rather than users of an invented product?"

No, the point is to protect inventors by giving them a way to control under what circumstances (i.e., in most cases, after how much money has been paid) their invention can be used. Patents aren't about preventing other from inventing the same thing again, it's about having a monopoly on using/commercializing the invention.

Inventing ... Is not the issue. There are several ways to infringe a patent, and one of them is "practicing" it. This is likely the legal theory for finding infringement here.

If a company pays the licensing fee to get the patent troll off its back, and the patent is later invalidated ... does the company have any way of recovering the licensing fee it has paid?

Maybe patents should have restrictions on transferal? This kind of problem would be less frequent if the original inventor had a period where the patent was non-transferable.

What might happen? Would this decrease patent hoarding and trolling? Would options to buy make waiting periods ineffective?

Likely that would just mean that the troll company would pay the same upfront sum to the owner for the right to "represent" them and sue other companies and keep any revenues.

Also, consider when StartupX is bought by BigCo., and BigCo wants to simply keep the company running exactly as it was. Clearly someone else is controlling the patents than the original owner of the company.

Patent trolling is probably unavoidable, but I'd say much less likely when it's initiated by individuals. Legitimate claims must be accessible, and the courts need to be the test.

Your second point cuts to the heart of the issue, should patents be treated as traditional assets? One possibility: Once you sell your patent, it loses legal protection and becomes merely a trade secret.

How can you patent an action? Could some one please clarify what it is that was patented? The sequence of pressing a set of particular buttons? Really?

Isn't it fairly trivial to get around this patent? Instead of 'one-click' to scan a document and email it, just scan the document to a file and then attach the file to an email.

Training employees to do this would cost less then $1000/employer that the patent holder is asking.

It certainly sounded that way from his careful description on the phone call:

"If you said you hooked it up to the Internet, and in one button, you can scan and e-mail directly out—yes, you have violated the patent that we own."

I don't believe you actually have to use a thing for the thing to be in violation of patent. Just having created the thing (connecting network to scanner with 1 click scan to email) is in violation of patent.

What I'm interested in is how they determine someone is one-click scanning to email. Do they just bulk mail to businesses and hope their targets use this system?

not patenting an action but a system. In this case, as the article specifies, the combination of a scanner, LAN, and application software that allows a user to one button send a scanned image to email. Yes these are patentable under current law.

Certain "processes" can be patented.

Did NOT expect patent troll cowboy.

But seriously, these people should be disbarred.

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