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Comment by josho | Hacker News Reader

In my startup we are knowingly violating two other companies patents and it scares me. The patents are stupid (tagging a photo--ie. circle part of a photo to highlight where something is, and the second is adding GPS data to a record, so that you can find it later).

One of the companies is even litigious having field two patent suits this year. The only thing saving us at this point is we are a Canadian company and haven't entered the US market yet.

So, here is a concrete case of patents discouraging innovation and competition. We want to enter the US market because the competitors are selling backward solutions. We have an alternative that is 10x better, yet our company could be killed in an instant through one of these patents.

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Just go ahead and do yourself a favor right now and delete this comment.

'knowingly violating' is not a phrase you want attributed to you in court.

fleitz makes a very good point. You'll be getting hit with treble damages which you definitely don't want.

While I definitely agree that making a statement like that makes no sense, if the 1x damages would already bankrupt your company, tripling that really matter all that much. In that case, your only hope may be invalidating the patent.

It makes sense if you want to demonstrate -- concretely -- how the system is broken. Heroes do what's right despite potential personal risk.

We are examining the patent in detail and finding ways that we can workaround the claims. The claims are wrapped in industry jargon and detail, so we feel we can add or remove steps to get around it.

But, the core point is the patent did nothing to further the state of the art, nor does it provide information that someone in the field would use to implement the patent. As I understand those are the two reasons for the patent system, so by that standard the patent is worthless.

I wonder if patents in other industries are actually useful, eg would a chemist ever refer to older patents to further their own lab work?

Please listen to the parent and delete all your comments in this thread. Also look up, "Willful Infringement" to understand why you need to erase your comments here.

Are you that brazen? This one, single post, that you could have deleted, could be the difference between your company being sued off the face of the earth and you going bankrupt, and you having appropriate time to analyze the situation and plot a reasonable course without the patent holder know you were coming.

I don't give a shit how superfluous the patent may be, or what chemists do. You just openly admitted that you knowingly infringed on a patent. Further, even if the patent was complete bullshit, by you openly acknowledging that you are infringing on it, you are admitting not only guilt, but you are validating the patent. IANAL, but I could easily see a court using that as the evidence it needed to validate a patent that otherwise stood no chance.

> You just openly admitted that you knowingly infringed on a patent.

US patents have no baring in Canada, they currently haven't done anything wrong at all.

Fine. "You just openly admitted that you are planning on knowingly infringe on a patent."

OP said they are coming into the US market at some point. At which time, they will be infringing, and then everything I said applies.

I enjoy this forum as we can have an intelligent discourse. I appreciate your concern for my situation, but remind you that most folks here are pretty smart, so please remember that before calling people brazen and implying they don't know what they are doing.

When we became aware of the patents we consulted with counsel and put a plan in place. I misspoke earlier, for dramatic effect, we are not violating the patent as we haven't entered the US market, and we don't plan to until we've addressed this issue.

Furthermore, my account here is pseudo-anonymous, so you would need some serious google mastery to pull enough information together to make the connections required.

Have you looked into prior art for the asserted patents? That's one way to get it abolished.

You need to hire someone to do a patent opinion for you. Don't pay a ton of money (so don't hire MoFo or something crazy like that), but don't cheap out either. Interpreting claims isn't something you can do on your own, especially when some patents have extremely broad sounding means-plus-function claims that are in actuality much narrower.

Patents don't have to further the state of the art, but they must teach a person skilled in the art how to practice the claimed invention.

If that's your most pressing concern about expanding the business you should probably consider challenging the validity of the patent if it's truly as obvious as it seems.

http://info.legalzoom.com/challenge-patent-21969.html

No, don't challenge the patent, minimize infringement, amass cash.

Challenge it after being sued hopefully with enough cash to defend yourself.

Or maybe, don't infringe the patent and innovate by creating your own approach to the problem?

Poor solution when the USPTO allows people to toll the public domain of obvious solutions.

You didn't read the article, did you?

If the patents really are as josho characterized them, what kind innovations would those be? How do you "innovate" storing GPS data in a database?

Let's start with concrete facts: what patent are we talking about exactly? A simple link to the USPTO web site will do.

Then we can brainstorm and see if we can innovate.

I appreciate your offer to help, but I won't be providing that detail. But, for the spirit of the discussion assume that it is similar to what the EFF described in their article.

But, to make the exercise a bit more fun!? Don't read the EFF's summary, go read the patent and try to make sense of it. If you were an e-health company how would you work around that patent?

Wouldn't a database be prior art? If a general solution to an entire problem domain exists (in this case, databases solve the general problem of adding computer representable data to a record) and predates a patented application of that general solution to a specific instance, then the general solution seems like a very good candidate for prior art. At least it seems to stand to reason that applying a general solution to a specific domain can't be considered novel. The novel solution is the general one, if it exists. Since the oldest databases have existed much longer than 20 years, it would be impossible for an active patent for a solution within this problem domain to not have prior art.

I like the way you think. The problem is that it is quite expensive to invalidate a patent. In fact anything to do with a patent is quite expensive, which is part of the problem itself. As to file a strong patent that can't easily be worked around costs a lot of money, so much money in fact that a lot of small companies don't bother. So, it's only bullies and large companies that have patents. While the guys focused on doing the real innovation often don't any.

Or just abandon the US because the regulation is a pain in the ass. It's not Josho's obligation to keep the US from turning into a technological ghetto.

> adding GPS data to a record, so that you can find it later

You might want to nominate this patent

> So, here is a concrete case of patents discouraging innovation

It seems to be just the opposite, though: the patent system is telling you "You are copying something that exists, instead you should innovate and create something new".

So why don't you innovate instead of copying something that already exists?

What the patent system should say in theory is very different from how the patent system is used by patent abusers. Which directly indicates that the patent system itself requires a reform, since otherwise it would have prevented such abuse to begin with.

If something is obvious, it should have been unpatentable. If the patent system says that it is patentable - the patent system is broken.

You are changing the subject, patent trolls are a totally different matter.

Here, we have an example of a company that is knowingly copying something that exists instead of coming up with their own solution to the problem, so I'm claiming that in this particular example, software patents are encouraging innovation. The company in question is simply choosing the easy way out of copying instead of innovating.

> You are changing the subject, patent trolls are a totally different matter.

Patent abuser can even produce something useful. But if the patent is bad (obvious, abstract, claims a function, etc.) then such producing entity can ban all kind of competition which should exist because that thing should not be patentable in the first place. Because of that, term "troll" can be extended to any abuser. Not necessarily NPE. Even PE one.

Copying is a natural thing in many cases. Preventing copying by patenting abstract ideas is crooked and should not be allowed.

Not to mention cases, when some things were developed independently (so obviously not copied), but still are banned by patents.

Also, the glaziers in your town will profit if I drive down your street throwing bricks through windows. That doesn't mean that any economic value is being created, of course.

> Here, we have an example of a company that is knowingly copying something that exists

No we aren't. Not sure how you got that idea. The patents in question are for small and obvious methods that is required for the larger product.

What you are saying is sort of like saying that somebody who invented the motor car is just copying something that already exists if someone else had a patent for the ball bearing.

Innovation requires building on things that already exist. It would be delusional to think anything is completely original and thought of from scratch.

Every piece of software is copying hundreds of little "somethings that exist".

The registration form uses a captcha to prevent bot registrations? The user is emailed with a link with a secret code that when clicked, verifies they control that email address. The IP address used to make the web requests are recorded (using a computer) and are later used to infer the users physical location from it. A webpage includes a map with a dot in places where users registered. The size of the dot depends on the number of users.

Which of the above is an invention that already exists for which we need to invent our own solution to?

Just because there is a patent, doesn't mean that it exists, or even can exist. It's just some document someone paid the patent office a bunch of money to stamp. Some patents are even impossible. Look up the patents on perpetual motion machines for example.

In most countries those aren't valid because they aren't a Manner of Manufacture. If it's a physical impossibility, it's not allowable.

Their product is presumably not photo tagging or recording GPS data. These are just components they need for their actual product to work. When you talk about "innovating" here you are actually saying "finding way of achieving something that's different enough from the most convenient way (because someone has already thought of that)". That's no innovation at all; all that would do would be stopping them from launching their product until they figure out a way around the problem. By blocking entrepreneur's paths, patents prevent them from releasing their possibly innovative products, thus preventing innovation.

> So why don't you innovate instead of copying something that already exists?

The fact is that the two are not only not mutually exclusive, they're interdependent. Nothing is ever 100% entirely new. Every innovation builds on what came before.

The problem is not that people won't innovate. People are innovating. The problem is that someone has invented a new traction control system which they can't sell because someone else was granted a patent on the wheel. In 2011. And your solution is for the actual innovator to reinvent the wheel.

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