Indie developer organizing against Lodsys, patent trolls with 'Operation Anthill' - Page 2

Frankly, I don't have the in-depth experience to argue one way or the other about what a lot of you are saying in this forum. However, Rick V makes the one point that no one seems to be discussing, and is the one that always seemed to be the biggest problem to me (with my limited knowledge). The fact that patents are awarded for things:

With prior art
That are extremely obvious (like the downloading example Rick presented)

is what I've always thought to be the biggest problem with the current patent system. To me, the reals trolls were the ones who managed to get patents in these cases and then suing ppl.

Again, my firsthand knowledge about these problems is extremely limited; and is largely presented to me through Slashdot, which has a pretty obvious bias.


Can anyone respond to these problems? Isn't this a real issue?

LOL. Ya, I was little harsh on AppleLover2. And yes, your joke was funny.

I actually have pretty thick skin. AppleLover2's joke didn't bother me...I was just in the mood to take him to the tool shed. I was up all night (literally) working on an Office Action response to the patent office and the Examiner's obviousness rejection was driving me nuts. I was trying to articulate why one of skill in the art wouldn't use the N-oxide of compound as an intermediate in a drug synthesis process.

My apologies to anyone in the forum that I may have offended in my rage last night.

One Fine Line,
I can understand your confusion. The problem is that the determination of obviousness is a really hard thing to do. It takes about $5,000-$10,000 worth of work for a patent attorney and a patent examiner to do a quick and dirty job at determining patentability. In court, the parties will spend millions. I find it highly unlikely that a blogger on Slashdot would have any clue whether a claim was obvious or not. It wouldn't surprise me if the guy saying something is "extremely obvious" hasn't even read the patent claim. My point in all of this is that people are making emotional decisions. The really polarizing statements by software developers are made without an understanding of the patent law.
Let me give you an example of how obviousness works. Everyone likes to think of Thomas Edison as a genius for "inventing the lightbulb." However, using the standards that the software industry uses, Edison's lightbulb would have been "extremely obvious." Other people had been making light bulbs, but they burned out. Edison used Tungsten. It is perfectly reasonable for me to argue that it was "extremely obvious to use Tungsten." If the problem with the light bulbs was that they burned out it is extremely obvious to go to the periodic table and pick out the element with the highest melting point. Tungsten, which was discovered in the 1700s melts at 6,170 °F. You're telling me that was genius? Seems pretty darn obvious to me.
......see my point?

I'm pretty sure I could make a decent argument that every invention ever made is "obvious". Hindsight is always 20:20. The inventor had to put the pieces together somehow and if I know how he put it together I can go make and reconstruct it in a way that looks obvious. This problem with hindsight has been dealt with in the patent law and somewhat settled through 225 years of jurisprudence.

I have no problem with software engineers proving claims invalid, but they need to do it in the context of the law to avoid the problem of hindsight. I see so many software engineer types saying that that they are an exception to the rules and that patent laws don't apply to them and they understand the patent laws and the laws shouldn't apply to software and their situation is different than everyone else's ....bla bla bla. The fact is, Anti-patent propaganda has existed since our forefathers debated the issue in the 1700s. Software engineers aren't going to get a pass in my book.

With regard to my motivation for these comments.....it isn't that I want more money. I actually do a lot of work for big companies that benefit from getting rid of the little guy. In fact, I hate to admit it, but my firm does a lot of work for an infamous firm in Redmond. My issue is that I see the patent rights of the little guy being erroded away in the attempt to fight the "patent trolls" and "patent brokers". However, the irony is that the patent trolls and patent brokers only exist because greedy corporate america has found a way to take small inventor's technology and not pay them for it. They do it using lawyers. Corporate america (e.g., RIM) will spend 5 million on litigation to avoid paying a patent holder 1 million in licensing fees. It didn't use to be this way. Companies use to fight to buy up the little guys patent.

It seems so obvious to me that the patent trolls aren't the problem. The patent trolls are filling a need created by greedy corporate America who knowingly rip off inventors and then fight them by causing huge legal bills. The people behind this consortium have swallowed corporate america's sob story line hook and sinker. I hope more people will realize that the solution is for companies to start competing in buying up these patents. If corporate america will start buying the patents from the small inventors, the patent trolls will disappear. The patent trolls thrive on the fact that they have resources to litigate and the little guys do not. Also, the patent brokers and patent trolls are much more ruthless than individual inventors. Most individual inventors would never have done what lodsys did, which was to license Apple and then sue Apple's developers to "get a second bite at the Apple". Patent trollers and patent brokers are just the flip side of greedy corporate america. The real tragedy are the individual inventors who had a dream and spent the time and effort to create something new and get a patent on it. It seems nobody but me is looking out for those guys.

The way patents work is that the market determines which patents are valuable. A good inventor will rush to be first where he sees value. There is nothing wrong with this. That is how the system is suppose to work. The race actually creates huge wealth. In this process, Apple will undoubtedly infringe some patents. Is it really that unreasonable to think that Apple shouldn't have to make a reasonable payout to dome of it co-collaborators. Think of the patent system as a tax on the market maker to incentivize the creation of the market. If Apple saw an opportunity to create 76 billion in cash, it goes without saying that there were many inventors (including Apple) that rushed to get a piece of the pie. The patent system taxes Apple because they are the ones reaping the rewards. The patent system is a pretty fair tax if you ask me. The system created the opportunity for Apple. Without the system, Steve Jobs is a nobody. Since Apple exploited the system they have gotten the biggest piece of the pie and they deserve it. However, that doesn't mean other small contributors aren't entitled to a portion. It would be naive to think that Apple's good fortunes had nothing to do with the entrepreneur environment. In fact, many of the patent holders are probably now Apple employees.

I'm not saying everyone should just roll over and pay any inventor anything they want. It's a fight. It's a race. However, I disagree with Consortium because I think it is cheating and destructive to use money and politics to change the game when you are losing.

Ash,
The problem with your example is that you use a very specific example: Tungsten works better than previous materials. That's a discovery, and is patentable.

If you were to apply what's happening in the software world today to lightbulbs of yesteryear, you'd have a patent that would read something like, "the use of energy to pass through a material for the means of creating light and/or heat." See? That's too broad, and could be used against anything from a lightbulb to a stove to a furnace.

And that's what's happening today on the Internet, incredibly broad patents worded to capture as many transgressors as possible. Copying files is obvious, moving files over a network is obvious. Updating software is obvious.

-Rick

When the Unisys company decided to exercise its right to collect royalties on it's patented invention of internally-compressed files (this is commonly known as GIF files, to most of us), they only could target their own unique file format. They did not try to go after every conceivable internally compressed file format (for example, ZIP or JPG). But that's exactly what the patent trolls are trying to do.

Go listen to the "Patent Troll" story on NPR:
http://www.npr.org/blogs/money/2011/...patents-attack

-Ricl

Actually there isn't supposed to be a balance at all - the founders clearly intended for the Federal Government to be minimal and the real authority and responsibility for governance at the State level.

If you told them that there was a Department of Education they would probably smack you!

Seriously, people really need to read the constitution. Many of the issues we have wouldn't be issues if they were left to the states instead of being perverted at the federal level.

Your argument re-enforces the need for real reform - such as getting intelligent prior art inserted into the patent granting process - rather than just throwing patents out entirely.

Maybe someone raised this earlier and I skipped over it, but something is missing from this debate. A patent gives the innovator the right to pursue legal redress when someone else TAKES HIS WORK and profits from it without compensating him. Did the developers of apps with in-app purchasing have an ahha moment after studying Lodsys patents? Did they take Dan's work and build a lucrative product using it? If so then they couldn't have been surprised to be handed a bill.
But I don't think this is what happened. The so-called infringers did the same thing Dan did; thought through the implications of the technology and implemented an obvious feature. They didn't take anything from Lodsys. They had no awareness of the patents in question.
If non-obviousness is an attribute of patentability it seems to me this distinction needs sharpening. In this case perhaps the underlying technology is non-obvious, which is something the Lodsys patents don't even address, but once the work of building the underlying tech is done - where having the idea and building it are the same thing - the implications are obvious and shouldn't be patentable. US patent office should not have determined that someone buying something from somebody was non-obvious just because it occurred using what was then non-existent technology.

It is well-established law that patent infringement does not require copying. Copying can be evidence of willful infringement, but copying is not a requirement to establish infringement. In fact, the infringer doesn't even have to be aware of the patent. There are lots of reasons why the law is this way and this forum isn't the place to discuss them.

As for your comments about independent inventorship.....Two people can invent the same thing. In fact, simultaneous inventing might happen more often then not. However, that doesn't make it obvious. The standard for obviousness has nothing to do with whether someone else was capable of inventing the same thing. If we take that approach nothing would be patentable. I'm sure everything that has been invented could have been invented by someone else. Inventing takes time and money, just like any other business activity. However, it is extraordinarily risky. When you start a project, you don't actually know you will be able to solve the problem and even if you invent something, someone else may have invented it first. The reason we have a patent system is because we need some way to incentivize people to take this risk.

There are a lot of people in this world that think their skills are unique, but my experience tells me otherwise. Everyone is replaceable.

The problem is money. The Patent Office generates plenty of revenue to do a good job but Congress uses the patent fees as its personal piggy bank to fund project that have nothing to do with patents. The patent office raised fees a few years ago and Congress said "thanks, we could use the extra cash". This is quite infuriating. The patent office has a hard time retaining good examiners. Many of the good ones leave after a few years and go to law school. Private patent lawyers make between $150,000 - $500,00 per year (Of course some make in the millions). You have an imbalance in resources between the patent examiners and the attorneys prosecuting the patents. It is frustrating for the patent attorneys because often times you'll get a bone headed Examiner that won't allow something that should be allowed and then other times you'll get a bone headed examiner that allows something that shouldn't be allowed.

Still, you have to give the Examiner's some credit. The determination of obviousness is a really hard thing to do. It requires a good understanding of scientific principles and hard legal concepts. In general the Patent Office does a good job. It isn't perfect and there is certainly room for improvement, but the solutions are not simple. Letting the Patent Office keep the revenue it generates would go a long way to fixing many of the problems. If you really care about the quality of patents, you'll talk to your Senator or Representative and tell the to quite swiping money from the coffers of the Patent Office. The USPTO isn't the treasury. The PTO actually has a job to do and they need their money to do it. There is currently legislation pending before Congress that should address this issue. I'm not sure whether the fee diversion issue has been cancelled from the bill or not. Hopefully not.

You are correct that the States had a lot more power at the Founding of the country. However, I'm not sure that everyone thought it should be that way. The Federalists clearly anticipated the Federal government being very powerful. In fact, many of the states feared the Constitution gave the Federal government too much power, which is why we have the Bill of Rights.

The attempt to get rid of small inventors (or non-practicing inventors) has caused the "patent trolls" to enter the fray. I agree that many of their practices are less than noble. However, those that tried to ruin the patent system are getting their just reward. The rule of unintended consequences is at play here. I think Apple is leading the way back to reality by being willing to buy up patents. The trolls are only effective if nobody competes for purchasing patents. The solution is to buy valid patents and fight invalid patents. In the past, the Software industry has tried to invalidate valid patents in an attempt to bleed the patentee of cash. That has to stop.

Rick, there are most definitely patents out there that are invalid. In fact, the more ambiguous a patent is, the more likely it will be litigated. The clearly defined patents tend to get licensed because both sides know the outcome without litigation. If a patent is invalid, then invalidate it. If it isn't, then license it if you want to practice it. If someone doesn't want to deal with patent issues, then may I suggest that person not work in high technology in the U.S.? If you don't want to deal with IP issues, go work in Russia. All you need there is to be friends with the Mafia.

I think it is worth mentioning again that software is protected by copyright.

Can anyone please explain why software needs both patent protection and copyright protection? How come copyright isn't good enough for protecting software? It's good enough to protect novels, movies, and songs, etc.

If I copy a Beatles melody and claim it is my own, I can get sued if I make it public. If I am a developer that copies Angry Birds' slingshot, birds, and pigs, I can get sued if I claim it as my own and make it public. I think I would be sued if I was making money with an Angry Birds clone that was also very close to the playability of the product, Angry Birds. Right? I guess I better not copy Angry Birds. Copyright works (even for software)!

If I were in favor of software patents, I guess I would say that Angry Birds' slingshot deserves a patent.

e.g.
http://gawker.com/5063427/iphone+app...?tag=valleywag