Comment by throwawaykf05 | Hacker News Reader

Comment by throwawaykf05 | Hacker News Reader

Parent Full thread

Sigh, par for the course for any patent-related reporting on Ars.

1. The headline is pure clickbait, and is obvious from the article itself. From a quick glance, the patents concern a specific feature of Bluetooth 2.0 that enable selecting different modulation schemes, one with a higher data rate, based on a header. Whether that's novel or non-obvious depends on the prior art, which isn't discussed in TFA. In any case, it's a far cry from a claim on "owning Bluetooth".

2. The article and comments paint the plaintiff as a troll. But nobody asks, let alone bothers to answer, what somebody should do if they devise such type of an improvement to existing systems. "They are trolls because they make no products", is the argument. Well, what product would you build in this situation? Wireless communications are heavily regulated and standardized. Build an entire new protocol and standard around a single improvement? And then get people to build chips for that? Who's going to adopt your standard when there are powerful network (literally) effects in place? And how does that help when this improvement could be applied to any other protocol? Others can simply adopt this improvement in their own products and completely ignore yours.

I haven't seen anybody attempt to answer these questions. It doesn't take much thought to call someone a troll, though.

3. HNer DannyBee, a patent lawyer, had once (jokingly?) suggested that defendants may start faring well in ED Texas if they, say, built a stadium in Marshall. Looks like somebody at Samsung is thinking along the same lines. Though it didn't help in this case, I guess it may help in the longer term, especially given that Samsung is not an American company, something jurors may be consciously or subconsciously biased against.

For point 2, there are a few factors that go into distinguishing a non-manufacturer patent holder vs. a patent troll. First, is the use of low quality patents. A low quality patent is one or more of the following:

* Overly broad

* Describes the problem space, and claims all possible solutions to that problem

* Written in such a way that you can't implement the covered technology based on the patent description

* Covers existing practice, or what is destined to become standard practice in a new field, but worded in such a way to make it appear more novel

* Doesn't pass the non-obviousness test (need to be careful with this one, because a lot of patent-worthy inventions are obvious in hind site)

Also, a patent troll typically waits till a technology is well established before suing, in order to maximize payout (see submarine patents). Another soft clue to identifying a patent troll, is if the party being sued had came to knowledge of the covered technology by way of the patent or patent holder/inventor. If it is independent invention, then that could indicate that the patent fails the non-obviousness test.

It seems like most of your points are already addressed in patent law. A good patent litigation counsel on the opposing side should be able to dig up prior art to invalidate any overly broad or obvious claims, and should be able to invalidate any patent that does not sufficiently teach how to make and how to use the invention due to lack of enablement.

> Sigh, par for the course for any patent-related reporting on Ars.

Honestly, I think there's a quality drop all around and not just in patent-related articles. Reading the comments on any legal-related articles is as much fun though as people watching in the homeopathy section of Whole Foods.

On 1, I didn't look at the cited references, but it'd be interesting to see if any of the Bluetooth-related patents were included.

On 2, I guess the only objection I have to NPEs are the type operating through shell corporations wherein their risk-exposure is so low that they can fill the courts up with frivolous crap. It'd be interesting to see if there was a way to curb that behavior (like putting up a bond or something). Are you aware of any proposals?

There is a lot of talk about patent reform, as TFA mentions, and it contemplates disincentives along the lines you mentioned, e.g. fee-shifting and requiring plaintiffs to be more specific in laying their case up front.

"the patents concern a specific feature of Bluetooth 2.0"

That's not a "feature" of Bluetooth 2.0+, it's a fundamental part of the Bluetooth spec. Without it you couldn't have Bluetooth. So the headline is correct.

> ... it's a fundamental part of the Bluetooth spec...

The key word being "part", so the headline is incorrect.

> Without it you couldn't have Bluetooth.

While it was the main innovation in 2.0, EDR was optional in the spec.

'The key word being "part", so the headline is incorrect.'

That's a ridiculous argument. Parsing the spec like that is meaningless.

"While it was the main innovation in 2.0, EDR was optional in the spec."

Can't argue with non-reasoning like that.

You can implement Bluetooth 2.0 without EDR, so how is it meaningless? If you explain, maybe we'll see if indeed pointing out "optional" is the opposite of "fundamental" is indeed "non-reasoning".

2. I think generally if you want to use your patent you call people and offer them the use of your technology (there must be some standard business practices for this). Then at least you can be reasonable that you claim they stole it from you. Doing nothing until someone else figures out the same thing and then saying they owe you is just unreasonable. I don't know the specifics of this case but that's how I'd classify a patent troll vs someone who did their best to improve the world with an invention.

And that's how licensing usually worked, whether you were a practicing entity or not. Lawsuits typically only happened if negotiations broke down, because they are expensive and/or risky for both sides. This may or may not have happened in this case, as TFA does not mention it.

However, licensing is risky these days. The Medimmune v Genentech decision (http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_I...) significantly changed the calculus of licensing negotiations. Essentially, it enabled potential and current licensees to preemptively sue the licensor for "Declaratory Judgment". This is bad for licensors because 1) any tentative approach for licensing can blow up in their face, and 2) if it does, the licensor will have to expend considerable resources fighting a lawsuit they didn't want, 3) in a venue that then becomes wherever the DJ is filed, which may be unfavorable to the licensor for many reasons, such as not being EDTexas.

Ok, I was just picking on EDTexas (Delaware is just as common), but the venue matters for many reasons, including the state of the docket, local laws and the primary political leanings (and other biases) of the judges and jury pool. As a simplified example, you don't want to sue an automotive company in Detroit. Forum-shopping is something that should not exist, but is an unfortunate reality of the current system. My personal belief is we should do away with jury trials entirely for patent cases.

Reply on news.ycombinator.com