Software Patents: A Personal Story | Hacker News Reader

Software Patents: A Personal Story

thenoisychannel.com

24 pointszjj16 comments

I've had a similar experience with a company called 'Acacia', they claimed to have some broad ranging patent wrt to audio and video over the internet. I told them to either sue or get lost and never heard from them again. It probably helped a lot that I'm based in europe.

I have absolutely no respect for companies that use software patents as a way to either control their competition or, as seems to be the case here to use it to effect a take-over.

It's a pity these jerks aren't named because it would be quite neat to give them as much bad press as they could handle. Cowards.

Believe me, I'd love to give these guys bad press--TechCrunch or Gawker could do a nice story at their expense. But that's my friend's decision to make, not mine. The last thing I want to do is undermine his defense.

Keep in mind that those who silently capitulate don't just hurt themselves, they hurt all those who the companies go after later... and effectively, all of us.

Yes, but legal maneuverings are incredibly sensitive things, and anything officially entered into the public record becomes evidence. It's generally not a matter of silently capitulating, but if you want to fight back and have any hope of winning, you have to play by the rules.

I'm in exactly the same situation and it's incredibly frustrating, but the alternative is to open your mouth and potentially undermine your legal defense. About the best you can do is to fight the lawsuit to the best of your abilities, but that unfortunately requires that you route all public communication through your lawyers.

Also, my friend is reading this page, and I hope he'll reach out to folks who have volunteered to help. Bad patents hurt everyone--you never know if you'll be the next victim. Regardless of your stance on software patents in general, I hope you agree that that there are a lot of invalid software patents out there, and that their holders are wreaking havoc by what amounts to legalized extortion.

Fair enough. Please wish him best luck from me and let it be known wide if he sets up a defense fund, I'll certainly contribute.

My husband's company invited their IP lawyer to give a talk on software patents a few years ago. He compared them to the English enclosure movement of the 16-17th centures - no one really believes they're protecting innovation so much as providing a way for the established companies to declare their territory and ward off upstarts.

Of course, it didn't stop him from recommending that they look for patentable aspects of their software. The other benefit to holding patents is that the best way to prevent an infringement suit is to have the ability to counter-sue based on your own patent collection.

The counter-sue idea doesn't really work for patent troll companies though, which only hold patents for extortion, and don't do any productive work of their own.

This isn't completely correct. It does work if the counter-suit claims are valid and encompassing - sanctions in the legal process can provide significant leverage, especially because the "patent-trolls" are heavily involved with patent attorneys.

It doesn't work because of the portfolio effect.

"Reback often tells the story of how a team of IBM patent lawyers went to Sun Microsystems Inc. in the 1980s and claimed that the then start-up was infringing on seven of its patents. After Sun engineers explained why they were not infringing, the IBM lawyers responded that with 10,000 patents, they would be sure to find some infringement somewhere." -- The Washington Post

http://www.nosoftwarepatents.com/

The point is that patent trolls are pure IP companies that don't actually do anything; they can't possibly be infringing one of your patents because they have no products. That's why they're so much worse to deal with than other companies who could be counter-sued for infringement of your patents, or for theft of trade secrets, or for something else similar.

With patent trolls maybe you could counter-sue for tortious interference, but that's a pretty hard one to make stick, or you could get a judgment rendered that requires them to pay your fees if the suit is totally ludicrous, but I'm not sure I've ever heard of that happening in any kind of patent lawsuit.

I think it's interesting that everyone is assuming it's a bad software patent. Here's the chain of reasoning I see again and again, and I don't buy it:

1. Some software patents are vague, overbroad, or not novel. 2. This is a software patent. 3. This patent is vague, overbroad or not novel.

It doesn't logically hold up. You may want to argue that we shouldn't have software patents as a matter of principle, but pointing to examples of bad patents doesn't prove this. The guidepost for me is RSA. To me, if you have patents, then RSA should be patentable. It was novel, it was useful, and the fact that it could be implemented in software doesn't change that.

This being about software patents is coincidental. This same story could be told by a tool manufacturer, or an MP3 manufacturer, or anyone else. The real issues are whether the patent is valid, whether they are infringing, and then, if we find that we don't like the consequences when all is played out, figure out where the breakdown between what is really good for innovation and what is actually happening is.

If you want to say no software patents, then someone needs to come up with a strong argument why a new way to build an amplifier that improves sound quality should be patentable, but a new way to compress audio files that improves sound quality should not be.

There's a lot that could be done with patent reform to make things better, but doing away with software patents is orthogonal to this.

Business practice patents are a different story. Most of them don't patent a "how to do X", they patent a "wouldn't it be cool if we did X". My example is that Amazon One-click was trivial to implement. There was no "how". The proof of this is that B&N worked around it by going back in and adding a second click. You couldn't work around a good patent in this kind of way.

As a developer, the main problems with software patents are that 1) pretty much any combination of things you're doing could currently be patented by someone else, 2) it's impossible to tell if you're infringing something until you get sued, and 3) things that should be filtered out by the "obviousness" principle aren't, such that you're constantly in danger of stumbling onto a patent just by solving a problem.

A patent is a very, very, very sharp tool: it grants someone monopoly rights to that "invention" for 17 years (or 20, if it's international). Anything that most people could come up with inside 2 days, or even 2 weeks, of thinking about a problem shouldn't be patentable; that's ludicrous, and counts as "obvious" in my book. Things that are obvious combinations or extensions of existing inventions aren't supposed to be patentable.

So a lot of this software/business patent nonsense would go away if the patent office would apply a more ruthless standard of patent obviousness. Most software patents are things that at least 10% of the engineering population would come up with inside a week of trying to solve the same sort of problem; many of them are the sort of thing that 90% of engineers would come up with inside 4 hours. That doesn't apply to RSA, or to MP3, or to most algorithmic things, but it does apply to things like "method for holding online auction" or "method for allowing purchaser to assemble a shopping cart" or the other ludicrous sorts of things people patent.

So I totally agree, RSA should be patentable: it's a non-obvious invention, and if you're using RSA without their permission there's a 100% chance it's because you stole it/reverse engineered it. But most software patents are the sort of thing you accidentally stumble onto in the course of solving the same sets of problems, and patents were never intended to (and should not) preclude other people from solving those same problems. You can't patent the idea of holding an auction in meatspace, but suddenly because it involves software it's patentable? Etc. Most software patents are much closer to business process patents than to mechanical patents.

Personally, I'd settle for simple ruthless application of the obviousness principle. The USO PTO granted more than 40,000 software patents last year. If you only included things that were really novel, that a decent engineer wouldn't come up with on their own in a few days or weeks of thinking about a problem, and that you'd have a hard time accidentally infringing, I bet that number would be more like 500.

Keep in mind, there are plenty of other things that aren't patentable: story ideas, for example. So yes, you're going to draw an arbitrary line about what's patentable, but that's the job of congress and the patent office: to draw that line in the place it maximizes utility.Remember, there is no natural right to a patent in the US. Congress has the power to determine what's patentable and what's not, and is explicitly directed by the constitution to do so in a way that maximizes progress. The way it's done for software hinders progress right now.

You say that you approve of RSA because if someone is using it, its inevitable that they learned of it from RSA. I don't think you'd have to go that far to say what's worth patenting. I think that's the purpose of patents -- to make people disclose worthwhile discoveries so that others can benefit from them at a fee -- but they can't be structured that way legally, because unlike copyright, it's very hard to show the origin of ideas.

What makes a patent a bad patent is usually that it's on the idea of what's a good idea to do from a business perspective, and once you've realized that, hey, online auctions are a great idea, the mechanics of writing the code is pretty straightforward, as you say.

I'm not clear how things are de facto in European law, but from reading http://en.wikipedia.org/wiki/T_258/03 it looks like at least some people are on the right track -- you can patent something involving software, but only if you innovation is technical in nature, not a business innovation that involves a lot of technical details to implement.

I'm asserting that it's a bad software patent because I'm familiar with the details. You obviously don't have to take it on faith that my assertion is correct. Believe me, I'd love to share the details--and I will when my friend gives me the go-ahead.

I agree with you that not all software patents are vague, overly broad, or anticipated by prior art. I've been on the other side myself.

We've had the same thing happen to us, though in our case there was no attempt to negotiate beforehand or to buy us out: we found out we were being sued when the other company issued a press release about it. Classy. They're just trying to put us out of business through a combination of lawyer fees and scaring off potential customers. Thankfully, it's not working.

It's amazing how many resources lawyers suck up, and how long patent lawsuits last (we were sued in December 2007, and we're still nowhere near trial). It's easily the sort of thing that can cost millions of dollars to fight, which is obviously the sort of expense that can put a startup out of business.

However, I'm not too hopeful anything will get done about it any time soon: it seemed from the discussion the other day that the HN community wasn't even solidly against them, and if this kind of community isn't, then the anti-software-patent movement clearly isn't mainstream enough to make any kind of impact yet.

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