Patent trolls put brakes on S.F. transit app
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I haven't read the patents in question here, but I nonetheless feel safe in saying that "technologies for tracking vehicles and providing users with electronic updates" cannot possibly make a contribution to the art significant enough to counterbalance the societal cost of the monopoly the patent holder has been granted. I'm sure there are thousands of engineers here on HN that could design and build such a system using well-known techniques.
In some domains, the determination of how much of an intellectual contribution an invention makes is fairly straightforward. If a novel molecule is synthesized -- the chemical and pharmaceutical industries keep a record, I gather, of all molecules whose structures have been worked out, so it's possible to know when a new one appears -- and then proves useful for some medical purpose, it's pretty clear that a contribution has been made, and what that contribution consists of. In software, it's much harder. The field is massive and sprawling, and no one can keep up with all of it.
That's why I'm convinced the only solution is to amend the patent laws to require objective evidence of nonobviousness -- objective evidence that the invention makes a real intellectual contribution -- in order for a patent holder to successfully sue for infringement. Such evidence could come, for example, in the form of publication in a peer-reviewed journal or conference proceedings. Absent such evidence, the law should direct the court to invalidate the patent.
An advantage of this approach is that it requires no special-case rule for software patents, which run into the difficulty of defining the term "software patent" precisely. Rather, in domains other than software, the required evidence is generally not hard to come by. So the rule is domain-independent in definition -- and defensible as such, I believe -- but would have by far the greatest impact in the software domain.
In fact, "objective evidence of nonobviousness" is already a well-established concept in patent law [0]. The change I am proposing is, where currently patents are presumed valid until challenged, under my proposal they would be presumed invalid until evidence of nonobviousness were presented that the court found satisfactory.
I don't think we're going to get rid of patents altogether. No patent system is perfect, but I think my proposal would make for a massive improvement.
[0] https://en.wikipedia.org/wiki/Inventive_step_and_non-obvious...
That's not the case. There might be one person who thought of the scaffold, another three involved with trying different variations of the side-group, a fifth who had to solve problems when synthesizing it, and so on. Even on the far end, after it's in trials, there's the chance that it's useful for some other effect altogether. That's how Viagra's most notable use was discovered.
See http://www.forbes.com/sites/johnlamattina/2013/07/17/will-pa... for a recent commentary on the difficulty of figuring out who made "the" contribution.
But I didn't say anything to contradict that. Reread the sentence you quoted: all I said was that it was clear that a contribution had been made: a previously unknown molecule had been synthesized, and a medical use found for it. This is all that matters for the question of whether a patent should be granted. The question of to whom it should be granted is not one I'm considering here.
However, that does not change the overall intent of my reply, which is that drug discovery is not so clear-cut as you make it out to be.
Take "A previously unknown molecule had been synthesized". Part of drug development includes finding previously known molecules which have new and unexpected actions. Again I point out sildenafil, which was synthesized for use in hypertension and angina pectoris. It was a nurse, during phase I trials, who discovered that was an effective against erectile dysfunction.
As another example, insulin is found in the body. It was first synthesized in the 1960s, but diabetics had to use insulin from animal sources, which was expensive and hard to acquire. Genentech, in 1982, started selling insulin made using E. coli genetically modified with human DNA. Now insulin is relatively inexpensive.
Insulin was not new. The medical use of the chemical was not new. But the method of creating the chemical was new, and for that Genentech received a patent, and a lot of money. This case does not fit your description of how the drug discovery market.
Then there's combination therapies, where the use of two different and already existing drugs has a synergistic effect. Here's a list of some combination therapies which were patented in 2011: http://sciclips.wordpress.com/2011/09/19/recent-combination-... . Again, these are known chemical compounds, while you've twice asserted that the chemicals has to be "previously unknown" in order to be patented.
To summarize: getting a drug patent does not mean that the chemical has never been seen before.
Then again, your thesis doesn't require that it be unique. You point to drug patents because you believe they must have an "objective evidence of nonobviousness", and you want patents to have the same requirement.
However, that non-obviousness criterion is already required to get a patent. Quoting from Wikipedia: "In modern usage, the term patent usually refers to the right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter."
It looks like you want patents to have an additional burden of proof of non-obviousness. For example, "publication in a peer-reviewed journal or conference proceedings" may count. However, you don't realize how easy that is to achieve. Peer review is a relatively low bar. There are any number of so-called 'predatory journals' which are advertised as peer-review, and which take your money and publish, but which don't have an meaningful peer-review system. Someone who pays $10,000 to get a patent will not find it difficult to spend another $1,000 to publish in one of these journals.
It's trivial to start a new academic journal, and have it staffed by friends of yours. In that way, everyone can published peer-reviewed literature. And "conference proceedings"? That's an almost trivial bar.
Your proposal is so easily gamed as to be worthless. How much do you know about the patent system? How much do you know about drug development?
My reference to drug patents was intended as an example of a typical case, not an exhaustive exposition of how all such inventions are made.
> It looks like you want patents to have an additional burden of proof of non-obviousness.
Actually I want to shift the burden of proof. Instead of the PTO or a alleged infringer having to prove that a patent is obvious, I want the burden to be on the applicant to prove that it is nonobvious. I also want objective evidence to be required so the question isn't just a judgment call.
The suggestion that publication could serve as prima facie evidence of nonobviousness was also an example. (For more examples, look up "Graham factors".) That said, I don't accept your criticism. I think courts can tell the difference between well-established, prestigious journals and fly-by-night operations.
Do you have a counterproposal? What do you think should be done, if anything?
Drug patents are perhaps the most unusual type of patent. They have special time extensions, in part because they have an extremely high burden of proof before they can be released, and information about the drug is public long before it can be sold. There are also special exceptions to allow countries to use a patented drug in case of an epidemic.
So I don't think it's useful to regard drug patents as 'a typical case.'
"I want the burden to be on the applicant to prove that it is nonobvious"
As I said, that requirement is already present. In that Graham v John Deer case you mentioned: "The determination of "nonobviousness" is made after establishing the scope and content of prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art."
In that sentence you included "alleged infringer". I think you've mixed two different phases. In the first phase, the patent office must be satisfied that the patent is non-obvious. Once done, the applicant is granted the limited monopoly and the right to sue infringers. The only defense of the alleged infringer is to show that the patent office's determination was incorrect, and one way is to show that it was obvious.
Why should the person with the patent grant have to re-establish non-obviousness when the patent office has already certified that it's non-obvious? More specifically, couldn't the patent grantee simply resend the same information used to get the patent in the first place?
"I also want objective evidence to be required so the question isn't just a judgment call."
Here's the relevant citation from Graham:
> This is not to say, however, that there will not be difficulties in applying the nonobviousness test. What is obvious is not a question upon which there is likely to be uniformity of thought in every given factual context. The difficulties, however, are comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development. We believe that strict observance of the requirements laid down here will result in that uniformity and definiteness which Congress called for in the 1952 Act.
The courts seem to believe (at least in 1966) that the current factors are reasonably objective.
This is all the more interesting because, on the topic of journals you wrote "I think courts can tell the difference between well-established, prestigious journals and fly-by-night operations."
I agree with you. But means that a court uses to make that judgement with a journal is the same means that a court uses to judge non-obviousness in a patent, so you've only redirected the burden of proof, not made it higher.
"Do you have a counterproposal?"
Most assuredly I do not. My attempts at understanding the complexity of the patent system flounder every time.
For example, if the patent lifetime is reduced to 10 years, then I don't know how to handle drug patents, which have a high cost and long public exposure before they can be sold. Perhaps there's a viable alternative business model, but it calls for a huge shift in the industry.
And so on, with more variations than I care to discuss.
Okay, point taken.
> Why should the person with the patent grant have to re-establish non-obviousness when the patent office has already certified that it's non-obvious?
I already addressed that in my initial post (first paragraph).
There's another reason as well. One of the Graham factors is commercial success. At application time, there has not been time to establish the commercial value of the invention. The PTO has to give the applicant the benefit of the doubt. Assuming that most patent litigation doesn't reach trial until several years after the patent is granted, more information will be available then.
> My attempts at understanding the complexity of the patent system flounder every time.
You're getting bogged down in details. You need to back up and look at the big picture.
Anyway, if you don't like my proposal, here's another one by someone with actual credentials[0]. They're not mutually exclusive, though, and I'm inclined to think both could be valuable.
Gotta run -- more later.
[0] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302
Patent trolls are the #1 reason why I have no intention of opening up shop in the US, at least until the software patent boogeyman goes away.
Indeed you can be sued anywhere for anything, but the matter of jurisdiction arises quite quickly in many cases. Also, American patent trolls don't seem to attempt to sue foreign companies that don't have a presence in the US.
"American patent trolls don't seem..." where did you pull that out of... sounds pretty but you got nothing to back up that statement.
Anyway, you appear to be a troll of the internet variety, so I'll leave you in peace because you're in no way trying to debate, but antagonize.
Have you searched the US Court Databases?
As an attorney - I have. Check out lexisnexis for case law. There are hundreds of cases of US owners of patents suing and litigating against international infringers... literally hundreds.
Also, you are totally discrediting the monopolies that run the world and how they have prevented other companies from entering their markets via other aggressive methods or patent purchasing...
Why don't you cite a handful of recent cases (<5 years) in which a British or German software company has been successfully sued in the US for infringing upon a US-registered software patent by a US patent troll? I'm not saying you're wrong, and of course just because I haven't found anything doesn't mean it doesn't exist, but the odds of being successfully sued by a patent troll as a foreign business are vastly less than being sued as a US company. Even if a patent troll were successful in securing judgment (perhaps by default), enforcing a judgment against a foreign company is vastly harder than a domestic one; patent trolls like easy wins.
Nobody in Europe is complaining about US patent trolls suing them because to the best of my knowledge, it doesn't happen. If it does, it's so infrequent that it's a non-issue.
I assume you're a troll because of your comment history. I mean, c'mon, you pretended to be able to read my mind and asserted that my lack of desire to open up an office or business in the US was not because of the risk and costs of a patent troll's attempt at a shake-down, but rather because I don't know how to form a company, or that I'm not a US citizen! If you're really a lawyer I doubt you'd be making such claims.
Buying and litigating patents is A LOT of work.
I am not supporting them - but you can't discredit their work just because you don't believe in what they legally are entitled to do.
I don't support big oil or old-school-energy monopolies - but that doesn't mean I discredit what they do.
That's not an argument. Make-work is not valuable.
you can't discredit their work just because you don't believe in what they legally are entitled to do
Well, sure you can. Just because it's legal does not mean it's ethical. You're a lawyer, you should understand that.
My other suggestion, if you think you might get sued for a particular aspect of your app, try to isolate it as much as possible. For instance, if you have an app that makes money through ads. Form one company that makes the app and another that pays a nominal fee to display ads in that app. One Company makes the money, the other "infringes."
Finally, get any lawyer, any one that will agree to represent you and file a declarative action in your jurisdiction to invalidate your claim.
Just my 2 cents. Maybe some real patent lawyers can chime in.
They had their first (major) success: http://www.joelonsoftware.com/items/2013/07/22.html
How do others deal with this risk? Just ignore it and hope for the best? Is it still statistically low enough chance that that is a reasonable thing to do? Incorporate and protect assets so if you are sued you can at least back out without personal financial devastation?
As a lawyer you should know that (at least in the US) relief from a default judgment is available. Such relief requires a showing of good cause, but the standard for "good cause" doesn't appear to be especially high.
So you want to profiteer on a broken system? Cool. But don't hang out here, handing out advice and pretending that you're anything but part of the problem.
The fact you're a patent troll with a software patent for an "innovation" that (according to this comment's sibling comments) is super trivial, obvious, and certainly not new puts your perspective into perspective! I hope it gets invalidated!
As a point of note, I'm not clicking on that link so I can remain ignorant of that patent. I hear that's the best course of action for developers ... just in case!
Also, I just watched your TED application video: people sometimes go to the US with empty suitcases for the purposes of shopping because it's cheaper to buy the same or similar products in the US than it is to buy them locally. More importantly, it's fun. They also do the same in other countries too!
If this were an engineering problem, the solution would be obvious. Unfortunately, it is political, and therefore a well-dressed circus.
It is 100% necessary - and though there might be casualties such as what is going on here - if we did not have Intellectual Property Rights - we would be at a disadvantage.
My suggestion is anyone being sued connect with the individual suing them and work out terms - everything is negotiable. Why not cut the owners of the patents in on a % of revenues?
You are condoning extortion. Perhaps, indeed, the individual should negotiate terms -- but for the same reason that if the Mafia showed up to your doorstep, packing heat, then it would be wise to take their demands seriously.
Love it or not - it is the rules of the game. Someone came up with the idea before you and they registered that idea before you. Vague or not - they had the foresight - and they are indeed entitled to being proprietary.
If you do not like it - challenge it. If you can not afford to challenge it - negotiate for 'fair-use'.
If you think otherwise - you are an amateur.
No, they aren't. Upthread you claimed to be an attorney -- you should know better than to suggest that patents cover ideas. They don't. They cover implementations. Having an idea and going "ME FIRST" does nothing to get you protection.
Software patents are patents on ideas. They are a perversion of the patent system and are a plague. Using them to try to get licensing deals is blatantly extortion, and patent trolls know this; setting their settlement costs just shy of what it would cost to mount a competent defense. There is nothing good about this and it isn't even consistent with the rules of 'the game' you love so much.
Hardly; most newsworthy cases are of patents that have sufficient prior art in academia and industry that they should have been rejected in the first place, and/or are so blindingly obvious that every failed Y2K-era dot com considered and rejected them as a pivot while they were shredding their stock for use as packing material.
I wish I had the foresight to created idea/feature patents like 'Allowing users to reply in a forum-like setting in order to generate even more conversation'. That way, I could sue Y-Combinator for 'profiting wildly from my idea.' Perhaps the good folks over at Y-Combinator can take a page from your book and give me a percentage stake in every single start-up they help to seed.
If you do this, you'll be labelled a sucker and get bombarded by more patent trolls. Unless you're an Apple or Google, your business is sunk then. Most every business violates hundreds if not thousands of patents. Simply owning a computer means you've violated many patents.