One of the worst patents ever just got upheld in court | Hacker News Reader

One of the worst patents ever just got upheld in court

washingtonpost.com

192 pointsalsothings109 comments

Ah, this decision is from the U.S. Court of Appeals for the Federal Circuit. Totally expected, and we need to get rid of that court.

For those unfamiliar with the history, that is the court that all patent cases go to. They've been co-opted by patent lawyers, and decide very much in favor of patent holders. Every so often the Supreme Court takes the time to review one of their decisions, and inevitably overrules them. So in their next ruling they find a way to pay lip service to the Supreme Court while ignoring what that court said.

So the rhythm goes like this. You go to your local court, and win or lose based on the jury. Then if the patent holder does not like the decision, you go to the U.S. Court of Appeals for the Federal Circuit. And pretty much inevitably will win. If the challenger is very, very lucky, the Supreme Court will have time to hear the case. And you'll get a balanced decision for the challenger. (I mean that literally. The Supreme Court does not have time to hear many of these, so they just pick the most egregious, and issue a balanced decision. But since they picked egregious cases, the patent holder always loses.)

If we could just replace the one court in the middle with one that actually listened to the Supreme Court, then patent trolling would be dealt a fatal blow. I shudder to think of how much its existence costs legitimate business in this country every single year.

The CoA for Federal Circuit operates very much like the FISC for patents.

Except that's not remotely the case, at all. The Court of Appeals for the Federal Circuit issues precedent binding on all the lower federal courts in the country, to the exclusion of any of the other Courts of Appeal. The FISC issues precedent binding on... no one (other than itself).

Apologies for not being excessively explicit--I was referring only to the fact that given their caseload and decisions, the CAFC often appears as a rubber stamp court for patent litigation.

I was not speaking about establishing binding precedent. However, even on that note, your argument rings hollow--the FISC has established precedent that has very much become the prevailing understanding of "legal" where its cases are concerned. That's why we've arrived at the mess we're in. Whether the precedent is binding or not is debatable, as nobody I've yet heard of is quoting FISC decisions in other law enforcement actions/cases. But when we have every official from the President onward declaring that everything is "legal" because it has been reviewed and decided upon repeatedly over the last few decades by "the courts", I think trying to make a technical argument on the binding nature of the precedents established is misguided.

FISC precedent is not binding on any federal court but FISC itself. I have never seen a FISC opinion cited to support some point of law (and only one FISA Review Court opinion so cited: 310 F.3d 717), so I think it's ridiculous to say that "the FISC has established binding precedent that has very much become the prevailing understanding of 'legal' where its cases are concerned."

FISC precedent is important in the sense that it guides FISC itself, and it guides grants of foreign intelligence warrants, but at the end of the day, if the government wants to use information collected pursuant to a FISC warrant to prosecute you, it has to do so in a regular U.S. District Court, and that court is not bound in any way by the FISC's interpretations of the law. In contrast, in a patent litigation, all the U.S. District Courts are absolutely bound by the Federal Circuit's precedent.

Are we talking past each other here, or are you just imagining a disagreement here and continuing to press a completely unrelated point?

You've said nothing materially different from me on the point that I made. You are pinpointing and continuing to dispute an off-hand comment about rubber-stamping with drawing upon the establishment of precedent and its binding nature on other courts, and again, I wasn't saying anything about that issue at all.

If I was to hazard a guess, I'd say you misunderstood the intent of my jab and are carrying forward an inconsistent comparison, cherry picking one minor detail to dispute the jab, and creating a bit of a straw man here that is completely pointless.

Here, I will say it again:

I was referring only to the fact that given their caseload and decisions, the CAFC often appears as a rubber stamp court for patent litigation. I was not speaking about establishing binding precedent [on any other courts].

Sheesh, friend. You're barking up the wrong tree here.

First, you did say something about the precedent issue, because you claimed in your second paragraph that the FISC was creating binding precedent that shaped the law in its area. That's true for the Fed. Cir., but not for FISC.

Second, and this is more pointing out an implication of your point rather than a disagreement, FISC being a rubber stamp is much less of a problem than Fed. Cir. being a rubber stamp. FISC being a rubber stamp only affects warrant requests that come in front of FISC itself. Fed. Cir. being a rubber stamp has ripple effects throughout the entire court system because it creates precedent binding on every district court and appellate court in the country.

Are you just here for trolling?

I've tried to be very polite, but we're getting nowhere because we're talking past each other (most charitable reading I have).

My original statement, to which you replied with particulars about binding precedence, said absolutely zero about establishing precedents that bind other courts. Who cares if one court's rubber stamp affects a wider court radius than the others if they are both operating as rubber stamps for a particular kind of case and that is all that was being said?

If you want to have an exchange and dispute whether or not the CAFC operates as a patent litigator's rubber stamp in much the same way that the FISC operates as a spy agency's rubber stamp, then please do so. If not, then by the universe, stop changing the subject to something that is not of primary concern when evaluating whether or not the CAFC is a rubber-stamp patent troll's court. We have nothing to discuss on the precedent issue because I sincerely do not disagree or care to dispute the ways in which the FISC "shaped law in its area", as it is not at all related to the current thread.

[edit: removed strongly-worded-out-of-exasperation language. my apologies.]

> My original statement, to which you replied with particulars about binding precedence, said absolutely zero about establishing precedents that bind other courts.

Your original statement also said absolutely zero about rubber stamping. Your second statement had two paragraphs: one about rubber stamping, one about binding precedent. It's not "changing the subject" if I fail to read your mind about what the subject happens to be.

If you fail to read my mind? Certainly not.

If you fail to read my comment, in which I explicitly state, "Here is what I meant and my intention", and then continue to argue something on which we are not in disagreement? Absolutely.

I made it ridiculously clear what my statement meant.

All of the 'rayiner comments on this thread confine themselves to the ideas on the thread itself. It's your comments that assault the people writing the comments, first by inventing a motive their authorship, and now by calling the author a troll.

I typically respect and appreciate your comments, so thanks for interjecting.

I am not assaulting people writing comments. Of course, perhaps in your opinion using strong language equates with assaulting the eyes of the readers. I don't hold that view, but I'm happy to apologize if you've been offended.

I have not invented motives for rayiner's authorship. I have repeatedly asked what rayiner's motivation is because I am trying to understand why we're talking past each other when we don't have material disagreement on the precedent issue (while repeatedly calling attention to the fact that is not what I was referring to).

Just the other day, I read through a very lengthy exchange between you and other commenters doing the same thing--you asked a question that deserved answering, and everyone else changed the subject, diverted attention, attempted to get into your personal opinions and how that had fuck-all to do with your original question. You went what seemed like a dozen rounds continually asking people talking about different things why that had anything at all to do with what you were asking, and reiterating your question. I don't have the interest in going a dozen rounds with the same person to keep saying, "That is not what I was talking about. We do not disagree."

I made a jab at the CAFC, and have now wasted several comment rounds on trying to repeatedly explain to the same person exactly what I meant, that rayiner and I are not in material disagreement on the issue of precedents (though perhaps on our interpretation of precedent existing in FISC decisions, irrespective of their reach to other courts), that the issue of precedents is not at all related to the act of being a rubber-stamp, and apparently we can't get away from continually making pointless comments about precedents.

As for calling the author a troll? No, sorry. You're incorrect there. I asked if the author was here for trolling. It was an honest question, not an accusation. By the time we'd gone into the third round of saying the same things, I was seriously wondering if I was just being trolled for pedantic quibbles over how a particular word or set of words was interpreted.

I see both sides of this somewhat pointless argument.

The core issue is this. You are probably not a lawyer. Thus "rubber stamp for a vested interest" is enough to qualify two courts as being very much like each other.

By contrast rayiner IS a lawyer. (And one who is well-known on this site.) To a lawyer the key characteristics of a court are what it has jurisdiction over, and who its precedence binds. Because that is what matters in litigation. On these measures, the two courts are about as unlike as it is possible to be. FISC binds itself only. By contrast CAFC binds every court in the country that can hear a patent case except the Supreme Court.

I believe that this whole argument could have been avoided if you had realized that he was fundamentally right about the precedence issue (which he is), and limited yourself to the similarity of both being rubber stamps.

Ah, but what is frustrating is that I DID limit myself to the similarity of both being rubber stamps only (albeit, sadly, in my followup, not original, comment where I tried to be explicit about my intended meaning). I even attempted to give a passing remark on that precedent issue, but only insofar as it was precedent within FISC, not any other courts (by mentioning in my first remark on the precedence issue that nobody I know of has cited FISC decisions in non-FISC cases/actions). I reiterated that limitation how many times?

The core issue is not that I am not a lawyer (although I am not; academics were political theory; ditched law/grad school route for programming). It is, rather, that I used "operates very much like" in a way that would spur a lawyer to step in and want to quibble over words, without pausing to reflect on the context in which the "operates very much like" was made. The primary fault is mine for being vague and leaving such a wide-ranging statement open to too much misinterpretation.

That rayiner made his first statement was understandable, and is why I offered the followup explanation. That we continued to further spiral around issues of precedence, which I understand, and with which I was not disagreeing, left me wondering what was going on. Had I suggested that FISC decisions bind other courts, I could completely understand. But I did not. Because it was rayiner commenting, who I know well from his otherwise very sensible comments here, left me wondering if he was trolling me for fun or something.

Anyway, this has hit the level of absurd for me. I'll back out because I respect and upvote all three of your guys' statements on the regular (you, rayiner, & tptacek), and I had zero expectation and no remaining interest in arguing over a stupid jab I shouldn't have made in a thread about a court decision.

Thanks for feedback.

That isn't really what gp was talking about, but your point ignores the ways decisions propagate other than hierarchical appeals.

Since the Supreme Court has created large good faith effort holes in the exclusionary rule for law enforcement, any source of reliable warrants creates an unlimited opportunity for mischief. Other courts will have to admit evidence first suspected because of information obtained through any apparently valid FISA warrant.

And since FISC is a no-work sinecure for ultra-right judges to draw a salary and benefits for occasionally showing up to rubber stamp secret warrants, it blows a hole in any restrictions on search and seizure for anyone in any court with access to FISC.

That isn't what the article says, though: 'As patent scholar Mark Lemley put it on Twitter, “we’ve got two Federal Circuits on this issue, and it seems to depend on the luck of the draw"'. Mark Lemley is a high profile (sceptical) patent scholar. If he is correct, then there are some voices of sanity on the Federal Circuit. The question is, is the influence of the voice of sanity increasing or decreasing?

I am sure he knows better than I. However from my point of view, those two positions are likely to be "extreme" and "very extreme".

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Also a random note in case anyone gets confused. There is only one such court, but cases are often heard by a subset of the justices. So what result you get can depend on which justices hear the case. Mark Lemley's claim is that there is a sharp divide between the justices.

> There is only one such court, but cases are often heard by a subset of the justices.

To be specific, like all U.S. Courts of Appeal, the Federal Circuit hears cases in panels of three judges, drawn from the overall pool. In certain circumstances (notably, anything that requires a prior panel opinion to be overruled), a majority of the judges on the court may vote to rehear a matter en banc, in which case all the judges on the court vote on the outcome.

If I recall correctly, the panels are assigned randomly as the cases come in, so if there is a marked division in opinions within the court, the outcome can depend heavily on the luck of the draw.

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Justice Stevens wrangled four votes on the Supreme Court for that proposition as recently as 2010. If we could replace some of the pro-software patent majority (Roberts, Scalia, Kennedy, Thomas, Alito) in the Bilsky decision, maybe Breyer could wrangle five votes someday.

Of course, the CAFC might just overrule the Supreme Court if that ever happens.

(You say the CAFC can't overrule the Supreme Court? Wrong-o! [0] Don't read the link unless you're in a profanity-safe environment; not because it contains profanity, but because you're likely to shout some.)

[0] http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

Sadly, since 2010 the mountain has gotten a bit higher: the "no software patents" side has lost Stevens' vote and his replacement Kagan's position is unclear.

Patent lawyers tend to be significantly more in favor of patents than Justice Stevens.

As for courts, given currently binding precedent for software patents, barring changes in legislation, no court other than the Supreme Court should decide that software patents should not be allowed. Given that the Supreme Court failed to come to that conclusion, it is hard to find a court that would say that. :-(

It's about the same. At least one of the newly appointed (in the past 3 years) judges is rabidly pro-patent

In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.

How do i know this?

He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.

Silly me, of course, always thought courts were there to decide law, not have policy goals.

In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court. Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.

He also cites his completely ridiculous reasoning from CLS Bank:

  At bottom, with a claim tied to a computer in a specific 
  way, such that the computer plays a meaningful role in the 
  performance of the claimed invention, it is as a matter of
  fact not likely to pre-empt virtually all uses of an   
  underlying abstract idea, leaving the invention patent  
  eligible

I'm not even sure how he can say this with a straight face.

Preempting virtually all uses of the underlying abstract idea is a rationale for not making abstract ideas non-patentable, not the test for what is a non-patentable abstract idea.

I don't disagree, but Radar in fact, cites it as one good test for whether something is a non-patentable abstract idea. Repeatedly.

If I'm understanding you correctly, he's using it as a necessary test for being an non-patentable abstract idea rather than as a sufficient one?

Couldn't such words as what he said in your class be evidence that he is in some form of contempt of court for not ruling unbiasedly?

In the theoretical world where ethics is as it is on the bar exam: Maybe? Hard to say, you'd probably need a bit more facts. i'm sure with enough data from speeches he has given, yes.

However, In the real world, where manufacturing evidence against people gets you nothing, or repeatedly encouraging clients to lie under oath, and helping them, gets you suspended for 9 months (http://overlawyered.com/2013/05/n-y-p-i-lawyers-are-suspende...), no, it would not make any difference.

(I agree, btw, that maryland would have disbarred those guys. I'm licensed there, and it's one of the few states that takes ethical obligations seriously)

There is nothing unbiased about having a judicial philosophy. "Bias" means you unfairly favor one party in a particular case over the other. Lack of bias does not require that you approach each case as a tabula rasa.

For example, I imagine lots of people on this website would be happy if a judge took an expansive view of the 4th amendment and asserted that was important for courts to strengthen 4th amendment protections. And that would be totally okay.

The CAFC handles more than patent cases. It also deals with federal employee disputes and some international trade law.

The judges are appointed not just from the patent bar but all the areas of jurisdictional experience.

Today there are six patent lawyers and four others on the CAFC with one of each awaiting confirmation. There is a rumor that Obama's patent lawyer appointment is actually better than average, but we won't know for a while; the Senate isn't approving new judges much anymore and vacancies continue to accumulate throughout the system.

The CLS bank v. Alice decision this spring came down 5-5. The Alice patent was one of those egregiously bad, transparently fraudulent, and obviously invalid ones we hear about so often. It claimed a monopoly over most any kind of traditional escrow process organized by a third party over a computer network. The CAFC found it valid initially and then threw it out -- barely and over the technicalities of a tie vote.

The final decision was five patent lawyers in favor of validity and four non-patent lawyers joined by one patent lawyer finding invalidity. The dissenting opinions were particularly virulent and nasty in defending the patentability of everything you can imagine and wanting every bad and destructive monopoly to be found valid and granted repeatedly forever.

It's a funny thing; I once thought the way to clean up medical malpractice litigation would be a board of expert judges or advisors who knew when the science was real or just made up for the case. In fact, now I see that system would be even worse. There might be fewer decision made by juries on the basis of gross scientific illiteracy, but the new judges would become throughly corrupt and abuse the system mercilessly. In fact, every kind of special purpose court is probably worse than the cost of ignorance and random wrong decisions that generalist courts make.

I am fully aware that they handle a lot more than patent cases. However most of the decisions that they make which I have an opinion on do involve patents. So I tend to focus on what they do there.

My inclination is to assume that they are likely to be as bad on other areas as they specifically are for patents. However I don't pay attention to that, so I really don't know.

> They've been co-opted by patent lawyers, and decide very much in favor of patent holders.

Co-opted? It's been run by patent lawyers pretty much from the start. See http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea... for a history of the place.

The first few lines of the article speak to the closest snake to kill for patent legislation: You don't have to patent an invention, just an idea. This goes above and beyond the typical patent trolling of, "Well we bought the patent for x from whomever built it first, even though that technology is ubiquitous..." to "Let's see what general concepts are so obvious that no one has bothered to patent them."

My brother was starting a real estate app company and was sued for breaching the patent that allowed one to "find an address using a mobile device." The patent was filed in 1989, with no technology behind it whatsoever, just someone saying, "You know, I bet in the future someone will..."

You could patent "a car that flies in the air without touching the ground" today without having any idea how to build it (except I'm sure that's been patented). That should be step one for legislators to kill.

A patent is technically also required to teach to a person skilled in the prior art on how to build the invention.

Here is an excerpt from [1]: "Second, if the inventor did possess a best mode, it must be determined whether the written description disclosed the best mode such that a person skilled in the art could practice it."

I have heard that the recent changes to the US patent laws have weakened this [2], though I have never read the details.

[1] http://www.uspto.gov/web/offices/pac/mpep/s2165.html

[2] http://www.patentlyo.com/patent/2013/05/best-mode-only-mostl...

This problem won't be solved until software engineers organize, go to Washington DC, and demand reform. If we don't do that, our competitiveness over the next decade is going to take a hit. Its not like everyone in the world is loaded down with the same kinds of legal costs that we suffer here in the states. Chinese, Indian, Australian, New Zealand, Latvian, Estonian, and Brazilian startups are not a huge threat to us now ... in the future they will eat our lunch if our country fucks us in the ass like this moving forward. Why is an investor going to give me money in Silicon Valley, knowing I'm going to get taxed by a dozen or more trolls. He's going to take his money and shop for a foreign team first ... not now ... but in the future when economic incentives bring those teams into existence abroad. Little things like this start the snowballs rolling down the mountain that turn into an avalanche. We think we are the center of the world right now. We sleep on our success, tomorrow someone else will eat our lunch.

Right now these patent laws are being used to tax engineers in order to pay lawyers. The lawyers produce nothing. The laws are set up so we can't do business without shelling out thousands and thousands of dollars to them monthly. This makes it so its harder for us to bootstrap. When we try to get to MVP our attention is divided from the things that matter to all this other bullshit that the lawyers have cooked up. If you are lucky to get a good lawyer, maybe you don't have much of a headache.

But even with the best lawyer, if you see some modest success, the leeches come out of the swamp to suck at your blood ... I mean the patent trolls, and various other lawsuits. The laws make you a criminal no matter how honestly you do your work. You could sit in a clean room and make something all on your own. When you emerge, the leeches will still be granted a right to suck at your revenues. That's how this blasted patent system works today.

Are we going to organize ever and reverse this trend? Probably not. We are all too busy trying to run businesses. You know who isn't busy? You know who has every incentive to spend every waking hour in Washington DC to make sure nothing changes? The patent trolls and the patent lawyers.

As we say after playing a game of Starcraft: GG.

Appealing to the "engineers versus lawyers" dichotomy is a predictable play, but not really one rooted in reality. To use copyright law as an example, it wasn't the copyright trolls that created the modern "copyright infringement is a crime!" regime--it was Adobe and Microsoft and all the engineering companies that lobbied to get software pirates treated like arms traffickers. Similarly, it wasn't patent trolls and patent lawyers that created the modern patent regime--it was the IBMs and GEs and Mercks of the world.

I do agree about your general point, which is that the new generation of engineering companies should lobby for reforms that they think necessary. Though I'd be interested to see if they have the same sort of principled objections to the trademark regime that is the bedrock of the advertising industry that is now their lifeblood.

Trademark? Why would that be a problem? Sure, any complex system has some bad cases, but we don't see thousands of innovative companies shaken down and destroyed for the corrupt benefit of trademark litigators.

Likewise there are problems with copyright, but -- unless you're really an infringer -- not on one thousandth the scale of patents. And boat hull registratons, trade secrets, plant breeders' rights, design patents, and trade dress are similar. It's only utility patents that are rotten and systematically corrupted.

"Are we going to organize ever and reverse this trend? Probably not. We are all too busy trying to run businesses. You know who isn't busy? You know who has every incentive to spend every waking hour in Washington DC to make sure nothing changes? The patent trolls and the patent lawyers. "

This is in fact, why I went to law school after getting my CS degree, and why i'm a patent lawyer. Because I hope that some day, maybe there will be more of us than there are of them.

However, it would be a great start if, rather than rail against this stuff on the internet, people actually showed up to do something about it when push came to shove. Instead, they complain that they shouldn't have to, and the problem should simply solve itself, and then go back to burying their head in the sand.

Existing advocacy efforts by organizations (EFF, etc) and companies (Google, etc) would be enhanced 100x if they could get even 100k people to give enough of a shit on a regular basis to write a congressman.

"Wahh wahh we're too busy running a business to make our voice heard in Congress, wahh wahh."

The cost of a successful lobbying presence is measured in the tens of millions of dollars a year, which is chump change for an industry as big and influential as the tech industry. Heck, construction companies have a much more organized and effective lobby, and they basically make no money at all (see the article on the front page about their 1% margins). Really, it's not that much money. Raise it on Kickstarter or whatever.

There is a bizarre mental block/persecution complex/"I'm going to take my balls and go home" phenomenon at play in the tech industry that's makes no sense to me. Silicon Valley isn't a special snowflake and Congress isn't going to divine its needs and tend to them. You've got one side telling Congress that absolutely everything needs to be patentable to keep the Chinese from stealing all our technology, and nothing but deafening silence in response. What exactly do you expect to happen in that circumstance?

Construction gave ~55M; they have low margins but vast revenue, probably more than the tech industry.

Complaining to DannyBee about the tech lobbying presence is missing the point. In terms of what he might be able to influence, Google actually has a significant (and growing) lobbying presence on a number of issues:

http://www.opensecrets.org/lobby/clientsum.php?id=d000022008...

And, last I heard, software patents were a prominent issue on Google's list. The point he's making is that the EFF and Google and the few others directly pushing on this aren't enough and that "enough" people who care enough to regularly write congressmen could make a big difference.

More generally, it is worth underlining that the tech industry is not unanimous on this issue. Should the anti-software patent side start to get some traction in Congress, you could expect pro-software patent players to push back - not just patent lawyers and trolls but probably also companies benefiting from the current regime (e.g. IBM, Microsoft and Apple). In that sort of situation, I suspect the organized lobbying on both sides starts to cancel out and engaged voters start to make an even bigger difference.

" and nothing but deafening silence in response. What exactly do you expect to happen in that circumstance?"

Saying this tells me you have literally no idea what the tech industry is doing in Washington. I've been there. I've watched them up close, fighting patent fights. There is no deafening silence on the part of large companies, or lobbyists, only on the part of people and small business owners The reason the construction industry is more effective is because the unions and other organizing efforts are effective at getting people involved.

In the end, if it's just a bunch of companies pissing on each other, congress mostly doesn't care. If you start getting constituents involved, they start to care.

That the court doesn't find these claims any more broad or abstract than any other is more a condemnation of the status quo for these kinds of patents.

Because, truly, this one isn't egregiously bad in its phrasing. It's at least as well-defined as any number of such patents that have held up under re-examination.

And therein lies the larger problem.

Exactly. This is a typical "business method" patent.

Wait? I thought patents required a working prototype. If that's not the case I'm going to patent everything, but with quantum computers. And then everything, but with nanotechnology.

You probably could, but you'd need pretty deep pockets to get decent coverage — it costs in excess of $1000 per patent. Filing dumb patents is a lot like a lottery.

"Wait? I thought patents required a working prototype."

Not since 1880.

"If that's not the case I'm going to patent everything, but with quantum computers. And then everything, but with nanotechnology."

This is essentially what patent troll corporations do -- patent obvious mashups of New Technology X with Old Use Case Y. This sort of idea canvassing has been going on for a very long time.

Note: IANAL

>> I'm going to patent everything

See my comment here: https://news.ycombinator.com/item?id=5934890

The following are the requirements for filing a patent:

1. Usefulness

2. Novelty: The invention must not have existed from before

3. Non-obviousness: The invention must not be obvious to those skilled in the prior art.

When filing a patent application, you are required to describe the invention in full, including the best mode.

So while a working prototype is not required, satisfying 1, 2 and 3 above is still theoretically hard and requires a lot of work for filing a good patent. The issue is that the system is abused as each one of 1, 2 and 3 are subjective more or less.

While not explicitly stated, I believe the concept described in the application must be correct [1]! Since a prototype is not required, it is sometimes the case that things that do not even work the way inventors thought get the patent granted anyways.

Finally, just for completion sake, there are things that cannot be patented like laws of physics, theorems in mathematics, and material that is a subject for copyrights instead.

[1] I am not sure of this. There may or may not be specific legal criteria on this.

It sounds like this court is saying:

A. Abstract and not patentable: "Instead of charging your audience for your service, allow others to advertise to them via your service and charge the advertisers."

B. Patentable and not abstract: "Instead of charging website users for the use of your website, allow others to display advertisements on your website and charge the advertisers."

There is something about patents that seems to melt the brains of certain judges.

A can apply to anything, like car wash or cinema. B is limited to websites.

Not that this patent makes sense even then, but B is much more limited.

So, let me preface this by saying I'm well aware this isn't the most important issue here, by miles.

Having said that, is anyone else bothered by the (to my ear) misuse of "let alone"? The phrase "Not X, let alone Y" is supposed to have Y be more extreme than X, right? Implying "certainly not Y, because not even X, so we can let Y alone and not even talk about it."

Yep. People hear idioms, like the way they sound, and repeat them without stopping to understand what they mean. In this case it's clear what he meant, but sometimes people will string together a bunch of these occurrences and it can become extremely confusing. I've read comments on HN where people are mistakenly arguing the exact opposite of the point they're trying to argue, because they're using their idioms the wrong way around.

Normally I'd be upset that another patent troll was winning in court - but come on, this is about a slimy patent troll that will be suing even more slimy advertising scum. I have to say I'm on the fence on this one.

Except WildTangent isn't scrappy ad farm, it's a games company.

Regardless, I don't side with advertising models, they're what got us into this whole collecting data as a business hole, so if these scumbags can prevent companies from getting revenue from ads and thus encourage them to seek actual decent business models (as a non-intended adaptative collateral effect), I'd think it's one evil doing us good.

You are against all ad revenue?

Taking the internet as a whole, I think what ads contribute negatively more than offsets what small businesses and independent publishers gain from, well, existing and surviving because of ads. If that wasn't an option, we'd be forced to come up with more intelligent business models that would also tend to respect more the end user (i.e. so I'm not the product).

Making ad revenue, e.g. from Google, means you're reinforcing the big corporations who really need to market themselves through ads--those are the ones who could not live without ads (they need the constant intrusive, paid-for flow of unwilling eyeballs to keep their investors happy), not the independ publishers (who I think could.) Niche ad networks are alright, but nevertheless they contribute to making it easy not to think hard (and work hard) to pursue alternate business models.

Advertising is a two-sided market. As a business with a product/service to be advertised, how would I go about acquiring customers without ads? Everyone from credit card companies to the local dentist has the need to market.

Instead of looking from the point of view of business, why don't you try to look from the point of view of the consumer and see where it gets you?

That's the approach taken by the people behind Project VRM and Doc Searls' Intention economy[1].

[1]: http://en.wikipedia.org/wiki/Intention_economy

It has its merits, but can't completely supplant the value of advertising.

The biggest need is brand advertising. If Coca Cola reduced their brand advertising, their sales would go decline. Maybe I'm not imaginative, but I don't see an intention economy product for beverages, where the transaction cost is low and the switching cost is zero. People don't actively think, "what would I like to drink today?"

Another need is driving awareness. Movie releases depend upon heavy ad campaigns to ensure that people know when a movie is coming out. A different example is changing service providers, like a cell phone or car insurance. Sure you might one day decide to comparison shop, but Sprint's new unlimited plan, or Geico's "save 15% or more" campaign are effective at encouraging a switch when it wasn't within consideration.

I don't drink soft beverages whenever I can buy/order beer. And whenever I can order several types of beer, I think "what would I like to drink today?", so I don't see the problem. It's actually a pretty fun decision.

"Brand advertising" means making companies far more rich they than needed to be. I'd prefer an economy where companies actually rely on their product being good and people telling each other (see craft beers), and no, I don't think it's healthy for them to grow into mega-corps (which they wouldn't be able to do without ads.)

As for awareness and changing service providers, again, word of mouth and spontaneous sharing of links and stories on the internet.

Movie releases depend upon heavy ad campaigns to ensure that people know when a movie is coming out.

Again, that's the seller's perspective. Under the buyer's, they could make their intention of knowing about the new releases if they wanted to. Better yet, they could announce what kind of films they want to know about, instead of being drowned in ads for Fast and Furious 348.

A different example is changing service providers, like a cell phone or car insurance. Sure you might one day decide to comparison shop, but Sprint's new unlimited plan, or Geico's "save 15% or more" campaign are effective at encouraging a switch when it wasn't within consideration.

You shouldn't need to comparison shop. The point of the Intention economy is that you announce to the market of your intentions and desires, and let it come to you with bids that fit what you need.

A generic "I want to know about offers that are strictly better than my current plans" would in fact be a decent intent to announce, but it should be at one's discretion and adjust itself to one's conditions (for example, no point in getting such information if you're locked in a contract).

To be clear, I think that IE can be a good complement to advertising in some industries and use cases, but I think it's a poor wholesale replacement.

I just think customers are bad at describing what they like/want. They need to see it. That's why product demos, movie trailers, and coupons are an effective call to action.

But no reason to believe me -- anyone's free to test with an IE-driven offer. No reason why it can't coexist with advertising.

(oops, replied to my own post instead of hitting edit)

Collecting data is not part of the patented business model. You don't have to show ads to collect and sell user data.

Every TV show, magazine or newspaper you liked, watched or read is the result of advertising. The internet is no different except that it is a larger market where you make less with advertising. Yes old model ads suck even on Hulu Plus you get them, but content costs are high without them or may not even exist. Many a good shows would have not existed. Advertising has been an engine to creative entertainment + information.

I haven't read newspapers or magazines in a long, long time, and TV shows I could easily live without (don't watch any in close to a year), especially if we had indie shows with interesting business models to replace them. I'd gladly pay for my content, but I think there's other models to be explored without appealing to ads. Ads are everywhere because they're easy to put to work, and the payout is potentially really high (if you're ok with helping big corps, their investors, and the centralization of wealth.)

There have been a lot of indie shows popping up via Kick starter funding. Here are two off the top of my head:

http://www.kickstarter.com/projects/freddiew/video-game-high...

http://www.kickstarter.com/projects/pemberleydigital/the-liz...

It has. It's also the reason why alternative ways of financing the content aren't being widely explored. And it's not like you're not still paying for those TV shows and magazine's, indirectly and inefficiently and fueling the brainscrambling agencies along the way. TANSTAAFL.

> Every TV show, magazine or newspaper you liked, watched or read is the result of advertising.

No it isn't. Aside from that which I pay for through Netflix (no ads), I pretty much only watch and listen to the various BBC outlets (no ads, and I pay my license fee). I pay for Spotify and Audible and I buy CDs. I like paying money for things because I also hate advertising.

> Every TV show, magazine or newspaper you liked, watched or read is the result of advertising.

Unless you like/watch/read (for example) TV shows on premium cable, Consumer Reports, etc.

You think premium cable doesn't have advertising? Even putting aside shilling for their own shows, what do you think "sneak peeks" at new movies are?

"Has advertising" and "is the result of advertising" aren't the same thing. There's a big difference between things like network TV or most newspapers/magazines where the main thing paying the bills is advertising, and things where advertising is a very distantly behind other revenue sources.

WildTangent? Aren't they an ex-spyware firm?

A "gaming company" that has knowingly developed and distributed spyware.

These media providers may have to pay licensing fees to show ads. The margins are so slim, some media could become paid content or just stop being produced.

Google, YouTube, Twitter, Facebook, Gmail, Wordpress, and over half of the top websites in the world are slimy advertising scum?

Yes.

Exactly what is so terrible about advertisement, may I ask?

No.

Google, YouTube, and Gmail are all the same company.

Thankfully, one's legal rights don't depend on how "slimy" you are and abuses of the law remain abuses even when slimy entities are the ones abused.

Let me suggest you are not thinking straight. Advertising, like it or not, is what keeps the internet alive. Without this revenue stream it would collapse. The internet doesn't run on idealism, it runs on money. Before making statements like that go start a non-trivial internet-based based business and gain some understanding.

I think what crowdfunding has been showing us is that we have gone through a dark ages of internet business models (ads), in that the ease of marketing through ads blindsided people to pursuing more creative (and yes, often more laborious) business models.

I disagree ads are what keeps the internet alive. What keeps it alive are hackers and artists. They share this: an itch to create. They will create even for free. But we would have been so much ahead in creative business models that they could explore (see Kickstarter) in an alternate reality where ads did not exist.

Unreality. You can't run a business on Kickstarter money. It's a kick start. After that you need money from somewhere. Or do you expect people to eat bits?

If you are going to create an internet-based business that will support more than a few people (both users and employees with their families) you need money. Lots of it.

The user side is simple: As the user base grows your infrastructure requirements grow as well. And, at certain milestones these needs grow in large capex bursts. Flexible services such as AWS have made scaling far cheaper, more linear and less expensive, but it it still very expensive once you cross certain business-dependent thresholds. Hardware is hardware, whether you own it or not.

Of course, the team will scale based on other parameters. More engineers, more designers, customer service, accounting, operations, whatever. More people. Not working for peanuts of feel good hippie thoughts but for money. They need it to live, rent or buy a place to live, feed themselves and their families, save, invest, have fun, etc.

Given that internet culture quickly --from the very early days-- levitated to free and add-supported free most internet users only want to pay for their connectivity. Nobody wants to pay for anything on the internet. That's just a fact. Pick any service, say LinkeIn, far more free users than paid users. It's like that across the board.

Hell, it's even like that in mobile. Unless you get lucky it's nearly impossible to make money with paid apps. Make them free and then sell them something from within the app or support it with ads.

I stand by my original sentiment: The internet would collapse tomorrow if advertising was banned. That doesn't mean I prefer it that way. I am simply reflecting reality.

While I don't necessarily agree with the grandparent post, we should think back to the early days (in the early '90s) before the Net's full-scale commercialisation. It was a different Internet, much smaller and more uneven, but not necessarily a worse one. People paid for their own web hosting or used space provided by educational institutions/government.

The Internet didn't always run on big business - business gradually shaped it into the way it is today.

What about this? Why not only grant a patent if you can prove that you invested a considerable amount of time and/or money to come up with the invention? This protects the often cited expensive research done by pharma companies and puts a stop to all the patents on problems with trivial solutions once you have to deal with the problem. And you still have the first-on-market advantage if you are the first to come up with a trivial idea although you have no patent for it.

Can you think of good examples where this will not work, where we really should grant the patent but coming up with the invention was neither time consuming nor expensive? Of course, proving how much the invention cost you and that it could not have been done with considerably less effort is a non-trivial problem on its own.

The U.S. Court of Appeals for the Federal Circuit is the equivalent of a bicycle with no wheels or chain: completely useless and I think we need to get rid of it. For those who are familiar with the Court of Appeals in this instance, this decision will hardly surprise you. Comedic incompetence at its finest here, folks.

When newspapers + magazines used to fund content by showing ads before TV existed, imagine showing TV ads as a patented innovation and how that would have destroyed lots of content. It was an obvious progression to fund content online supported by ads. This decision is absolutely wrong. Greed over real innovations.

Suppose I wanted to create a startup and not have to worry about infringing software patents. What would be a sensible way of going about it? Or would I have to move to a different country?

Sell out the the first big tech company interested?

Make sure one of the co-founders is a kick-ass patent lawyer?

Don't?

Moving to another country is problematic. Other countries have their own software patent quagmires too (though, admittedly usually less developed ones). You're also probably going to want to sell to US customers at some point and then...

In the past, I'd have said don't make money, but in a world where patent trolls target end users of things like scanners, I no longer think that's enough.

More seriously, there's just too much risk and uncertainty with software patents. I think the only realistic option is to accept that risk and move on with the rest of your startup.

how long until building a site is patented?

That's why it's so good the vast majority of web technologies are open/open source. I can't imagine an Internet where most of the technologies would be proprietary. It's for the same reason why I'm so up in arms against proprietary video codecs, and why I hope we'll move to an open source one sometimes soon.

Daala just came out (hopefully DarkShikari will evaluate and speak up on it). What would be even better is to at least take RMS's suggestion regarding how to handle existing software patents while we wait for the legal system to finally get rid of them.

That may be a good thing, but open source doesn't mean non-patent infringing.

It often does. When an OSS establishes a new system/standard, prior art invalidates any future patent on it.

Most possible system/standards are already covered by multiple patents. "A system for electronic transfer of information", for example. I made that up, but there are many super broad patents like that.

If one is careful you can even take steps to actively invalidate prior art. You don't need to just make a new standard either, we've already seen people get away with patently new ways to do the same old thing.

Look up Open Invention Network when you get a chance. The idea is to simply publish the general techniques you use to solve a given problem in a fashion that's easy to search, as a defense against people later trying to patent the same idea.

Yes, for sure. However, it may infringe on existing patents, and it's often quite difficult to determine that in advance. But I agree, among OSS's many virtues are that it establishes what's known and prevents future patents on those techniques.

It's basically already been done. You can't make a site without violating dozens of patents.

Done. How long until breathing is patented?

See my comment here: https://news.ycombinator.com/item?id=5934976

The concept has to be novel to be patentable. You cannot get a patent on something that is already publicly known.

Existence of information on a publicly accessible website (even if not indexed by a search engine or behind a pay wall like for a journal publication) is considered to be public knowledge and a patent cannot theoretically be obtained on the concepts covered by that website.

Yes. However, what's novel is subjective. The patent clerk may not care and has only a few hours to look up prior art. Once you've got the patent you get a jury in Eastern Texas to decide; that's where many of the cases end up. Something that's obvious to us will often be novel to them.

Those are indeed the practical issues the system is facing.

>> Something that's obvious to us will often be novel to them.

It should be noted though that the requirements for patentability include the invention being non-obvious to those "skilled in the prior art". The jury deciding upon a case may not be skilled in the prior art themselves, but they need to judge if those actually skilled in the prior art would have found it obvious at the time of the patent's priority date. But again, that's just theory facing the practical issues you noted.

Note: IANAL

Hmm... that makes me wonder what would happen if the system required the jurors to be skilled in the relevant art. I suspect that even if they limited that to people listed as inventors on at least one patent in the relevant area, that the result would be dramatically anti-software patent compared to the status quo.

AFAIK, people skilled in prior art are often called into courts in order to arrive at the decision.

>> the result would be dramatically anti-software patent compared to

While I am still trying to understand what you mean, I do not yet see a connection of this to the anti-software patents view.

> AFAIK, people skilled in prior art are often called into courts in order to arrive at the decision.

Well, yes, but they're typically experts from both sides whose goal is to promote their side's case, not accurately inform the jury. That's different from a jury having a direct understanding of the practitioners point-of-view.

> While I am still trying to understand what you mean, I do not yet see a connection of this to the anti-software patents view.

I'm saying that actual practitioners are likely (and, in my view, correctly) to see more things as obvious, fewer things as novel and so on than a layperson or a patent lawyer. The impact on patent lawsuits should be obvious.

Makes sense.

Okay, here's my argument against computer software patent trolls. Since IANAL, attacks from knowledgeable readers are requested although I can't promise a good response because I know next to nothing about patent law although am learning and if my start up works may have to learn.

Dear Patent Court Judge:

Don't worry, I'm not going to throw rotten tomatoes at you now. And, no, I didn't slash the tires on your BMW 7 Series.

But here's what's wrong with likely most software patents (or patents on devices consisting of routine computer hardware but with some new software).

We start with three parts: (1) Real problem to be solved. (2) Some "abstract" ideas for how to solve the problem. (3) Using the abstract ideas, some software to solve the problem. The users/customers use the software.

Okay, now we understand that solving real problems (1) is important but that we can't patent abstract ideas (2).

For more clarity an abstract idea might be just how to manipulate some data in a way a clerk could be taught to do. We can't patent the clerk or their work, right?

Well, for more, the abstract idea might be some applied math or some of the math of physics or engineering. Since that's abstract stuff, we can't patent it, right? Moreover, before computers, mathematicians and scientists commonly did such mathematical manipulations by hand arithmetic, that is, with paper and pencil. No opportunity for patents there, right?

So, on to the software (3): Assume, as is usually the case, the software is just something routine (for software) to have a computer do the data manipulations specified by the abstract idea, what we could teach a clerk, what's in the math, or what the person with the abstract idea 100 years ago likely did with paper and pencil. That is, the person with the abstract idea 100 years ago could tell a clerk how to do the data manipulations and not get a patent but now can tell a computer how to do the same data manipulations but get a patent? Something's fundamentally wrong here.

In particular, assume that without the abstract idea, the clerk would have no idea at all how to do the data manipulations and the computer programmer would have no idea at all how to write the software. So, all that's crucial or original is just the abstract idea and not the routine software. That is, between (2) the abstract idea and (3) the computer software, only (2) is crucial or original and (3) is routine.

So, with this scenario, why the heck grant a patent on the computer software (3) when we can't get a patent on the abstract idea (2)?

But not all software is like that. Instead, some software is tricky stuff. E.g., how the heck to backup a relational database while it is being used and changed? One might argue that just how to do that could be, and really should be, written up as an abstract idea and maybe even some form of math and, thus, not be patentable, but sometimes all there is is the computer software. So, maybe, maybe, I'm not fully sure, such software, or a computer with it, could deserve a patent.

Generally, then, I conclude that most software patents have to be based on bad thinking when we can't patent the crucial, logically prior abstract idea.

Finally, let me be helpful: When you get a case of a software patent, just rule right away that the patent is invalid and take a nice long vacation with the time you would have spent listening to nonsense about that case! Take along some good hiking shoes or a good book!

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