Linked by Thom Holwerda on Tue 4th Jun 2013 12:45 UTC
Legal Ah, patents - the never-ending scourge of the technology industry. Whether wielded by companies who don't actually make any products, or large corporations who abuse them because they can't compete in the market place or because they're simply jerks, they do the industry a huge disservice and are simply plain dangerous. According to The Wall Street Journal (circumvention link), president Obama is about to take several executive actions to address patent trolls - which may seem like a good idea, but I am very worried that all this will do is strengthen the positions of notorious patent system abusers such as Apple and Microsoft.
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Exactly correct
by andydread on Tue 4th Jun 2013 12:59 UTC
andydread
Member since:
2009-02-02

The same exact alarm bells went through my mind. Couldn't have said this any better than Thom has written here. Microsoft and Apple are currently the biggest abusesers of software-patents in the tech industry. Something tells me they will be left unscathed and can continue their campaign to use dubious and flimsy software patents to take ownership of other people's code.

Reply Score: 11

RE: Exactly correct
by hallambaker on Tue 4th Jun 2013 13:47 UTC in reply to "Exactly correct"
hallambaker Member since:
2013-06-04

I think he is way off there.

One of the biggest problems with the Patent Office melt down is that their incompetence in the 1990s forced everyone to apply for patents and acquire patent licenses to protect their own positions.

Microsoft did go out and aggressively force anyone who started building their own portfolio of defensive IP to cross license. But their volume is so much larger than everyone else they ended up making net payments in all the cases I have heard of. They are spending several billion dollars a year to protect themselves against the risk that one of those projects craters and they end up with a patent lawsuit or a SCO type situation.

Apple is a different matter. I think the attack on Atari GEM was dreadful, especially as everyone knew that Apple had stolen the ideas from Xerox. The attack on Google is more of the same. But now that Google has the Motorola patents there is a stalemate.

There is a big risk that the big corporations will use the threat of patent litigation to establish a cartel. But so far we haven't seen that realized in the software space.

I certainly can't see how any of the changes proposed put a legitimate patent holder/licensor at a disadvantage.

Reply Score: 1

RE[2]: Exactly correct
by themwagency on Thu 6th Jun 2013 18:38 UTC in reply to "RE: Exactly correct"
themwagency Member since:
2013-03-06

>"especially as everyone knew that Apple had stolen the ideas from Xerox"

Apple purchased this from Xerox.

Reply Score: 3

RE: Exactly correct
by butters on Tue 4th Jun 2013 14:54 UTC in reply to "Exactly correct"
butters Member since:
2005-07-08

We can't start from the assumption that these measures will benefit big companies over small companies. We can only start with the assumption that they will probably benefit prospective defendants over prospective plaintiffs.

From here, if we want to consider the plight of software startups, we have to investigate whether their vulnerability to infringement outweighs their vulnerability to claims of infringement.

This is not an easy question to answer, but at the front lines of the software industry, I bet that most developers would favor more rigorous standards for claims of patent infringement -- if for no other reason than it's unreasonable to expect developers to avoid infringing patents that aren't embodied in any products which would be familiar to those in their field.

If we believe that the patent system favors big companies, than why would these measures to constrain the patent system also benefit big business?

Reply Score: 4

RE[2]: Exactly correct
by Valhalla on Wed 5th Jun 2013 01:01 UTC in reply to "RE: Exactly correct"
Valhalla Member since:
2006-01-24


If we believe that the patent system favors big companies, than why would these measures to constrain the patent system also benefit big business?


I don't think the proposed changes will make it worse for small companies, but they likely won't make things much better either.

For big companies though, this would eradicate the only real downside with software patents.

These huge companies have amassed large amounts of software patents, they can use them as protection against other companies, or to patent extort them (particularly if they don't fear the patent arsenal the other company posesses, which is usually the case with smaller companies).

So big companies with lots of patents LOVE the software patent system, patents are easily granted no matter how obvious they are, heck you can just add 'on a mobile device' and anything is accepted no matter how much prior art there is, fantastic!

Hence these big companies are issuing software patents by the truckloads, the broader (and hence vaguer) the better, as it makes them harder to circumvent and also harder to predict as an outcome in court.

And then these patent can be wielded against competitors, and if they are small and can't afford to challenge the patents in court (very costly), so much the better.

But there is one caveat, it's those darn companies with only patents and no products (known as patent trolls), because when they are sued by such entities these huge companies can't use their massive patent arsenal to counter-sue.

What to do, what to do?

Solution, lobby the politicians/government and have them legally neuter the 'patent trolls' so that the huge companies can continue to (ab)use their huge amount of patents without the aforementioned threat. Problem solved.


The software patent system is crap, not only are the patents being passed with what is practically zero scrutiny, they then have to be protested through very expensive court proceedings which again favours huge companies as anyone who can't affort going to court against them simply has to fold.

The only thing that could have caused a worthwhile patent reform would be the continued threat that patent trolls pose to these big companies, but as one would expect these companies have no intention of removing the worth of their own patent arsenals, so instead we will see laws tailored to only target 'patent trolls' with the rest of the utterly broken software patent system left intact.

Reply Score: 5

Gee, thanks Obama
by andrewclunn on Tue 4th Jun 2013 13:12 UTC
andrewclunn
Member since:
2012-11-05

Executive order that doesn't really fix the problem, adds more layers of complexity, and has competition killing side effects? Par for the course.

Reply Score: 2

RE: Gee, thanks Obama
by grat on Tue 4th Jun 2013 15:12 UTC in reply to "Gee, thanks Obama"
grat Member since:
2006-02-02

OK, you fix it. Remember the following guidelines:

1) Congress will not support any idea you have, and will actively oppose it on the off chance you might do something useful.
2) Big business will lobby against it, and you.
3) Half the internet will consider you an uninformed, idiotic, paid shill, without actually reading any of your proposals.
4) The other half of the internet will think you went too far, or not far enough.

Good luck!

Reply Score: 14

RE[2]: Gee, thanks Obama
by tidux on Tue 4th Jun 2013 17:57 UTC in reply to "RE: Gee, thanks Obama"
tidux Member since:
2011-08-13

First step: instruct the USPTO to deny software patent applications. Let's stop the bleeding before we attempt surgery.

Reply Score: 6

RE[3]: Gee, thanks Obama
by Alfman on Tue 4th Jun 2013 18:24 UTC in reply to "RE[2]: Gee, thanks Obama"
Alfman Member since:
2011-01-28

tidux,

"First step: instruct the USPTO to deny software patent applications. Let's stop the bleeding before we attempt surgery."

That's a logical answer, but the flaw is assuming that *fixing* the system was ever a genuine goal in the first place. The only reason for toothless laws like the America Invents Act of 2011 is for appearances only. If they actually fixed laws every generation, there would be far less profit in litigation and it would significantly lower the legal burdens on businesses, especially small ones. While this seems like a good outcome to most of us, it's a nightmare scenario for the lawyers and lobbyists who would find themselves milking a dry cow.

Reply Score: 4

RE[3]: Gee, thanks Obama
by JAlexoid on Wed 5th Jun 2013 08:58 UTC in reply to "RE[2]: Gee, thanks Obama"
JAlexoid Member since:
2009-05-19

No... The first step is to define a software patent.
As is, there are no software patents granted by USPTO. The patents go through as process patents.

Reply Score: 3

RE[4]: Gee, thanks Obama
by Kivada on Wed 5th Jun 2013 09:27 UTC in reply to "RE[3]: Gee, thanks Obama"
Kivada Member since:
2010-07-07

Still wrong:

First step, invalidate all software and gene patents and block any from ever being filed again.

You can't patent math or life.

2nd step

All energy generation and storage as well as transportation patents that are older then 5 years of age and haven't been brought to market or will not be put to market within 2 years are invalidated and put to the public domain for US manufacturing companies only as a matter of national security.

Edited 2013-06-05 09:33 UTC

Reply Score: 2

RE[5]: Gee, thanks Obama
by tidux on Wed 5th Jun 2013 12:11 UTC in reply to "RE[4]: Gee, thanks Obama"
tidux Member since:
2011-08-13

Don't forget asinine "business process" and design patents. Hell, discard all patents that do not cover the manufacture of physical objects.

Reply Score: 3

RE[2]: Gee, thanks Obama
by andrewclunn on Thu 6th Jun 2013 19:06 UTC in reply to "RE: Gee, thanks Obama"
andrewclunn Member since:
2012-11-05

Claiming that bad solutions are fine because good solutions are politically impossible only works if you first attempted to get the good solution through. Assuming it doesn't is just a tactic for justifying pushing through bad legislation, or worse yet "executive orders." This is common practice with the current administration.

Reply Score: 0

RE[3]: Gee, thanks Obama
by Soulbender on Fri 7th Jun 2013 03:31 UTC in reply to "RE[2]: Gee, thanks Obama"
Soulbender Member since:
2005-08-18

So enlighten us; what's the good solution?

Reply Score: 3

Comment by Nelson
by Nelson on Tue 4th Jun 2013 14:23 UTC
Nelson
Member since:
2005-11-29

Nothing that is rumored to be done today by the Obama Administration would hurt small business or legitimate inventors. If there is a specific, legitimate worry about the executive orders when they're announced, then that will be a different thing. At this point we're just commenting on nothing but speculation.

The Microsoft stuff is obviously nonsensical baseless red meat, so there's not much to say about that.

Reply Score: 2

Comment by Tractor
by Tractor on Tue 4th Jun 2013 14:46 UTC
Tractor
Member since:
2006-08-18

It might be a bit too soon to be alarming.
Let's have a look at proposal first, then counter proposals can come up.

Also, note that sometimes, trying to reach several goals simultaneously might be difficult, if not impossible. Such as "protect the poor little guy !" and "let's not accept that a clever guy abuse the protection provided to little guys like himself". Finding the right balance can be a delicate exercise.

Edited 2013-06-04 14:46 UTC

Reply Score: 4

Wait, what???
by leonalpha on Tue 4th Jun 2013 16:29 UTC
leonalpha
Member since:
2011-02-02

For instance, those sanctions can be imposed when a court deems a lawsuit to be abusive. Now, for whom will those fees be crippling, a small company with 10 employees barely able to keep their head above water, or Apple, which has 130 billion dollars stashed away safely in tax havens? On top of that, who has the resources to spend on a top-notch legal team to convince the judge that a lawsuit is frivolous?


The sanctions are said to be aimed at patent trolls. Patent trolls. Patent trolls. A "small company with 10 employees barely able to keep their head above water" is NOT a patent troll, at least not in my mind.

This is how you're seeing things:

Small Company: "Your honor, I'm a small company with only 10 employees barely able to keep my head above water. I only have this one single patent, which I used to protect THIS product which I invented. Apple, however, is using my patent in product X".

Judge/Court: "This lawsuit looks very abusive to me, and without a doubt you're a patent troll. You must pay $13.96 million in cash to proceed.

And since the poor small company can't shell out the cash, Apple wins.

WTF!?

That's the scenario you're painting.

But again, the sanctions are meant to be for patent trolls — companies with patents and no products who engage in suing just for the fun of it. A patent trolls is NOT small company with 10 employees barely to able to keep its head above water.

If the sanctions are applied to non-patent trolls, then that's a different scenario (one which you are prophesying will undeniably happen), but I'll refrain from judgement until then.

Geez, stop being so negative!

Reply Score: 6

RE: Wait, what???
by Alfman on Tue 4th Jun 2013 17:59 UTC in reply to "Wait, what???"
Alfman Member since:
2011-01-28

leonalpha,

"The sanctions are said to be aimed at patent trolls. Patent trolls. Patent trolls. A 'small company with 10 employees barely able to keep their head above water' is NOT a patent troll, at least not in my mind. "


Some people have some vague ideological image of what a "patent troll" is, but the distinction is arbitrary in terms of mitigating the harm caused by abusive lawsuits. This topic has been covered numerous times before, so I'll just link to a prior discussion:

http://www.osnews.com/thread?531375

There you've got a very real scenario where it's unclear whether to classify an entity as a "patent troll" or not. Personally I'd label every patent abuser a patent troll based on their offensive legal actions period. Otherwise by attempting to sanction just the "patent trolls", they'll obviously adopt and use their legal expertise to wriggle out from under the official patent troll classification by symbolic rather than substantive changes:

http://www.osnews.com/thread?531346

Now I'm as anxious as anyone to see what exactly the administration is going to come up with here, but as usual I expect the lawyers and big companies to benefit from additional complexity at the expense of everyone else.

Reply Score: 3

RE[2]: Wait, what???
by Nelson on Tue 4th Jun 2013 18:25 UTC in reply to "RE: Wait, what???"
Nelson Member since:
2005-11-29

The solution is to leave it up to the courts and have a Judge determine the true spirit of the law. If a patent holder is being genuinely abusive, then punitive action can be taken.

This is more or less how it works today with Judges doing a pretty good job of tossing out frivolous suits and applying scrutiny to patents.

Reply Score: 2

RE[3]: Wait, what???
by Alfman on Tue 4th Jun 2013 18:40 UTC in reply to "RE[2]: Wait, what???"
Alfman Member since:
2011-01-28

Nelson,

"The solution is to leave it up to the courts and have a Judge determine the true spirit of the law. If a patent holder is being genuinely abusive, then punitive action can be taken."

What does the "spirit of the law" have to say about somebody independently coming up with an invention? Or using an existing "invention" for compatibility's sake? Or patent holders who deliberately patent every possible permutation of an idea in order to exclude others from the market?


"This is more or less how it works today with Judges doing a pretty good job of tossing out frivolous suits and applying scrutiny to patents."

I'd hope for us to aim for higher standards than what we've got today.

Edited 2013-06-04 18:45 UTC

Reply Score: 5

RE[4]: Wait, what???
by Nelson on Tue 4th Jun 2013 18:56 UTC in reply to "RE[3]: Wait, what???"
Nelson Member since:
2005-11-29


What does the "spirit of the law" have to say about somebody independently coming up with an invention?


Independently of the original inventor? I guess it would give them a pat on the back and wish them good luck in negotiating a license.


Or using an existing "invention" for compatibility's sake?


You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility.

Compatibility is a nice end to strive for, but it is secondary to intellectual property rights.

If an IP holder is inclined to provide his IP for the sake of compatibility, then he is within his rights to do so. I am not in favor of compelling IP holders to relinquish their rights for the sake of compatibility. That's not the right trade off to me.

In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard.

This is the single most deliberate attack of compatibility and interoperability in recent memory. Small executive orders against shell companies are not going to change this.


Or patent holders who deliberately patent every possible permutation of an idea in order to exclude others from the market?


Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge.


I'd hope for us to aim for higher standards than what we've got today.


I guess my point is that all laws suffer from this same issue. If you apply a set of regulations based on a classification, you rightly stated that they can and will wiggle out of it. This is why it is important to let a Judge decide what the intent of the law is, and apply his own discretion when deciding who to punish.

Judges exist for this very purpose. I also don't think the current system is terribly bad, and a lot of hyperbole gets understandably thrown around during discussions like this.

Reply Score: 3

RE[5]: Wait, what???
by bnolsen on Wed 5th Jun 2013 12:47 UTC in reply to "RE[4]: Wait, what???"
bnolsen Member since:
2006-01-06

Lets go judge shopping. I'm sure one or more can be found that will agree with me. Sorry judges aren't special superhuman integrous people. And they are lawyers by trade, not much more. There's not enough of these people (lawyers) at the bottom of the ocean.

The fun part is they have the power to gum up the works and make you spend a bunch of time and money screwing around. Companies with paid legal departments love this answer. Small companies? Well they are dying out.

Reply Score: 1

RE[5]: Wait, what???
by Alfman on Wed 5th Jun 2013 14:57 UTC in reply to "RE[4]: Wait, what???"
Alfman Member since:
2011-01-28

Nelson,

"Independently of the original inventor? I guess it would give them a pat on the back and wish them good luck in negotiating a license."

Yes, but this flies in the face of the justification for patents in the first place, which is the (wrong) assumption that without patents nobody would bother to develop the idea into something tangible. It's possibly true for things like medical drugs, but it's never been the case for software.


"You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility."

Frankly patents are becoming less and less about inventing and more and more about developing corporate arsenals, ergo the quotation marks.

Also, regarding software compatibility, being compatible doesn't imply freeloading in any sense of the word. If anything being compatible with complex software systems can be more difficult than not being compatible. Consumers expect software to be compatible with defacto standards for interoperability, like DVDs or word processing software. Software which is incompatible due to patent infringement would force users to live on a digital island, isolated from everyone else. I predict your attitude will be "too bad, pay the royalties", which is your prerogative, however when patents are used this way, it's intentionally anti-competitive and does nothing to promote innovation. Ie, all the harms of patents with non of the benefits.



"In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard."


I'm no fan of google, so I find your comment ironic. My rational is driven by behaviour and not identity. Why can't I be critical of all companies who participate in patent abuse?


"Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge."

I find there's not much consistency in rulings, and having a patent system in which one honestly cannot know whether one will be found to infringe or not is extremely bad. I'm linking this case because I think you'll disagree with the ruling as well, the repercussions of which went well beyond microsoft.

http://www.h-online.com/open/news/item/XML-patent-US-Supreme-Court-...


Courtroom judges shouldn't even be part of the patent process. Having to go to court is the result of a broken patent system in the first place. The courtroom itself is becoming a viable weapon against those who cannot afford to see the trial through and have no choice but to settle or go bust.

http://tips.vlaurie.com/2011/09/the-cost-of-patent-lawsuits/

Edited 2013-06-05 14:59 UTC

Reply Score: 3

RE[5]: Wait, what???
by The1stImmortal on Thu 6th Jun 2013 11:18 UTC in reply to "RE[4]: Wait, what???"
The1stImmortal Member since:
2005-10-20

You can drop the quotations around invention. There are legitimate patent holders who have invested billions of dollars in research and development and deserve compensation for it. Others should not be able to free load off of the work of others for the sake of compatibility.

"Deserve"? No.
If someone's willing to pay them for that R&D great, but it's expecting welfare to claim one "deserves" compensation for unasked-for work. If I go out in the garden and dig a hole no-one is going to claim I deserve compensation for that hole (in fact the real estate agent would probably be quite upset heh) - even if someone would find that hole useful there'd have to be some kind of agreement in place for them to be expected to compensate me for it.

Compatibility is a nice end to strive for, but it is secondary to intellectual property rights.

Intellectual property (in its various forms), being a legal fiction in the first place, comes in exactly the place the government (acting as agents of the population in democratic states) chooses to place it. Currently Patents trump interoperability but interoperability trumps copyright (and usually trademarks where the trademark is an essential part of interoperability).
If a government chooses to rearrange that order (although this would take legislation rather than an executive order in the US I believe) then that order changes.

If an IP holder is inclined to provide his IP for the sake of compatibility, then he is within his rights to do so. I am not in favor of compelling IP holders to relinquish their rights for the sake of compatibility. That's not the right trade off to me.

Once again, this is dependent on law. The law created those rights (they're not inherent natural rights) so the law can make them cease to exist, or moderate their use. If the law involves compulsory licensing then so be it (this has come up in the context of pharmaceuticals for example - some governments feel it is immoral to grant a monopoly on life saving chemicals if the monopoly holders therefore restrict the use/sale/supply of those chemicals)

In fact, if you truly care about this, you should have deep concern for Google's actions which negatively impacts the previously amicable situation around FRAND. They've done an incredible amount of damage by going after injunctions on the basis of essential IP included in a widely implemented standard.

This directly contradicts your immediately previous paragraph. You are saying on one hand that no-one should be able to restrict the patent holders' rights, but then saying that courts should be able to restrict the rights of patent holders to prevent others using their patents when those others refuse to license them according to normal procedure. FRAND does not mean free (as in beer). It means Fair and Non-Discriminatory. FRAND also has no legal basis - it's an industry practice not a legal status. If someone isn't licensing the patents properly, under current law, they're violating the patent.


Judges have shown to be pretty good about tossing out the more absurd patents. I smile every time I see a patent troll getting taken to task by a Judge.

I'd personally say that judges have been pretty hit-and-miss about this - some are on the ball, others not so much. Juries are even more unpredictable (depending on geographical area)

I guess my point is that all laws suffer from this same issue. If you apply a set of regulations based on a classification, you rightly stated that they can and will wiggle out of it. This is why it is important to let a Judge decide what the intent of the law is, and apply his own discretion when deciding who to punish.

Generally a good idea yes, but in this case the subject matter itself is created via law, so the law is the only "natural" source of regulation on the matter. One thing people keep forgetting here is that Patent rights are entirely artificial rights - you can't exercise moral discretion and talk about the "spirit" of the law about Patents as they wouldn't even exist were it not for those laws - the laws entirely define them and regulate them, so there should be very little room for interpretation (on the patents themselves that is). Obviously it doesn't work this way, but it should.
That's not to say patent lawsuits should be cut and dried - there's other issues involved in them (such as contract law or timing etc) but the patents per se should be entirely a matter of law once outside of the patent office

Reply Score: 3

RE[6]: Wait, what???
by Nelson on Sat 8th Jun 2013 14:10 UTC in reply to "RE[5]: Wait, what???"
Nelson Member since:
2005-11-29


"Deserve"? No.
If someone's willing to pay them for that R&D great, but it's expecting welfare to claim one "deserves" compensation for unasked-for work. If I go out in the garden and dig a hole no-one is going to claim I deserve compensation for that hole (in fact the real estate agent would probably be quite upset heh) - even if someone would find that hole useful there'd have to be some kind of agreement in place for them to be expected to compensate me for it.


Uh, you're being misleading. The inventors would like credit for their work when you use it. Hindsight is 20/20. One man's "obvious invention" is another mans R&D breakthrough, so people walk into this thing with skewed perspectives.

And please, please let's stop the ridiculous false equivalencies and oversimplifications. Patents are not real estate.

If that's how you mentally picture it in order to make it easier to grok, then so be it, but know that you miss out on essential context.


Intellectual property (in its various forms), being a legal fiction in the first place, comes in exactly the place the government (acting as agents of the population in democratic states) chooses to place it. Currently Patents trump interoperability but interoperability trumps copyright (and usually trademarks where the trademark is an essential part of interoperability).
If a government chooses to rearrange that order (although this would take legislation rather than an executive order in the US I believe) then that order changes.


Obviously, but I was speaking in terms of the statutory reality, not under some imagined reality. In the US especially, property rights are especially important, and IP ties into that pretty handily.

I don't think we're in disagreement here that IP is ranked above compatibility and that compatibility is the prerogative of the IP holder, so I'll leave this topic be.


Once again, this is dependent on law. The law created those rights (they're not inherent natural rights) so the law can make them cease to exist, or moderate their use.


No right is inherently natural, only what society (and therefore Governments) deems to be natural. From that lens, IP rights and something like the right to speech are on the same footing.

Just as IP rights can be litigated away, Constitutional bodies can be amended (and have been historically).


If the law involves compulsory licensing then so be it (this has come up in the context of pharmaceuticals for example - some governments feel it is immoral to grant a monopoly on life saving chemicals if the monopoly holders therefore restrict the use/sale/supply of those chemicals)


That is on them, I wasn't really speaking from a moral high ground, only attesting to the current reality.


This directly contradicts your immediately previous paragraph. You are saying on one hand that no-one should be able to restrict the patent holders' rights, but then saying that courts should be able to restrict the rights of patent holders to prevent others using their patents when those others refuse to license them according to normal procedure.


No, you perhaps strongly wish it contradicted my previous paragraph. FRAND is obviously a distinct category within patents, in that an explicit deal is struct. IP holders have their IP included in a standard in exchange for a legally binding promise to license of FRAND rates.

The issue at hand is who negotiated in bad faith. There are a variety of things that play into that such as the royalty rates, reciprocity, etc.


FRAND does not mean free (as in beer). It means Fair and Non-Discriminatory. FRAND also has no legal basis - it's an industry practice not a legal status. If someone isn't licensing the patents properly, under current law, they're violating the patent.


A FRAND defense entails a series of equitable defenses and has been a doctrine that's been reinforced by the courts (in the US and the EU). The DoJ and EU have laid into Google pretty severely for their FRAND patent aggression.

I think some of the confusion stems from the fact that some companies hold that the patents are invalid, uninfringed, FRAND, or a combination of the three. They're not mutually exclusive.


I'd personally say that judges have been pretty hit-and-miss about this - some are on the ball, others not so much. Juries are even more unpredictable (depending on geographical area)


I generally don't think Juries are a good idea for patent cases period. This is one area imho that needs to change.


you can't exercise moral discretion and talk about the "spirit" of the law about Patents as they wouldn't even exist were it not for those laws - the laws entirely define them and regulate them, so there should be very little room for interpretation (on the patents themselves that is). Obviously it doesn't work this way, but it should.


But we're not talking about patents, only the classification of entities as patent trolls. The point was that they could easily wriggle out of this classification. My counter point was to let the classification be up to the discretion of the judge when he notices a trend of abuse.

Reply Score: 2

Comment by MOS6510
by MOS6510 on Tue 4th Jun 2013 17:09 UTC
MOS6510
Member since:
2011-05-12

Just wondering which small companies have been "trolled" by Apple and its patents.

I see a lot of Apple inspired products in shops made by a number of rather unknown brands, yet I never see any news of Apple sueing any of them.

They did go after Samsung, which one can hardly describe as an easy helpless target.

Reply Score: 3

RE: Comment by MOS6510
by WorknMan on Tue 4th Jun 2013 18:04 UTC in reply to "Comment by MOS6510"
WorknMan Member since:
2005-11-13

Just wondering which small companies have been "trolled" by Apple and its patents.

I see a lot of Apple inspired products in shops made by a number of rather unknown brands, yet I never see any news of Apple sueing any of them.


Ya, I'm not saying that it never happens, but all I ever see these giant commercial bastards do is sue one another, and then nerds around the world are screaming about how this is harmful to small businesses. And unless these big businesses who are getting sued are also lobbying hard for severe patent reform, I don't feel sorry for them. You want to play that game, don't whine like a bitch if you lose.

Even if some small company were put out of business by a frivolous patent lawsuit, there can only be so much of this. If company x worth $1 billion started going after mom and pop shops with gusto, the bad PR would stack up pretty quickly, and bad PR is like kryptonite to these companies ;)

Whatever the case, I hope there's one thing that comes out of this, and that is if a business is going to threaten somebody else with ominous patent violations, they either have to put up or shut up.

Reply Score: 2

RE[2]: Comment by MOS6510
by MOS6510 on Tue 4th Jun 2013 20:33 UTC in reply to "RE: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

Why waste money, time and energy on small companies that cause you little harm.

If you sow thousands of seeds and the birds steal 100 of them would you invest in a WiFi linked scarecrow defense grid?

Apple could go after these small companies that sell imitation products, but they don't do much damage, it won't win Apple much and take one out and three new ones arise.

People who buy these cheep crappy gadgets would never buy an Apple product anyway.

But I see my original post got its first down vote, but nobody has been able to name one single small company yet. Oh well.

Reply Score: 2

RE[3]: Comment by MOS6510
by WorknMan on Tue 4th Jun 2013 21:00 UTC in reply to "RE[2]: Comment by MOS6510"
WorknMan Member since:
2005-11-13


But I see my original post got its first down vote, but nobody has been able to name one single small company yet. Oh well.


Yeah, I was actually agreeing with you ;)

Reply Score: 2

RE[4]: Comment by MOS6510
by MOS6510 on Tue 4th Jun 2013 21:21 UTC in reply to "RE[3]: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

And I thank you for that!

As a reward I'll tell you not to watch the last episode of Game of Thrones. It's rather shocking.

I'm sure I can't sledp now.

Reply Score: 2

RE[5]: Comment by MOS6510
by WorknMan on Wed 5th Jun 2013 00:59 UTC in reply to "RE[4]: Comment by MOS6510"
WorknMan Member since:
2005-11-13

I must confess... I have never seen Game Of Thrones :-| Then again, I gave up on TV over a decade ago.

Reply Score: 2

RE[6]: Comment by MOS6510
by MOS6510 on Wed 5th Jun 2013 04:27 UTC in reply to "RE[5]: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

If I would live alone I wonder if I'd get a TV.

The series I watch I download. Only Formula One is something I watch on TV.

My wife watches a lot more, but she also watches a lot on Internet via her iPad. So no real TV, set no VCR.

We, in general, can do very well without TV save for live broadcasts. Well, if Formula One isn't on BBC I find a live stream.

Reply Score: 2

RE[7]: Comment by MOS6510
by Kivada on Wed 5th Jun 2013 09:55 UTC in reply to "RE[6]: Comment by MOS6510"
Kivada Member since:
2010-07-07

Just get a cheap TV tuner card and a slap together a hoverman antenna. It's useful for those of us that almost never watch TV but occasionally want to see something on the local news or have company over that wants to watch a sporting event.

I own a TV connected to my gaming rig, but the built in tuner sucks and I like being able to record what little I do want to watch and play it back without the commercials. Great for when you have a friend or relative over to help out with car or home repair, they aren't so antsy about leaving the project to catch the game if they know it's recording and they can skip the crap and catch up quickly.

Reply Score: 2

RE[3]: Comment by MOS6510
by kwan_e on Wed 5th Jun 2013 02:07 UTC in reply to "RE[2]: Comment by MOS6510"
kwan_e Member since:
2007-02-18

Why waste money, time and energy on small companies that cause you little harm.

If you sow thousands of seeds and the birds steal 100 of them would you invest in a WiFi linked scarecrow defense grid?


Suing small companies means a potentially easier win, which can set a precedent so that you can take down larger companies easier.

So imagine you want to stop birds from stealing your seeds (with a kitten), and that the larger birds take the most seeds, but you can't go after the larger birds because they peck and scratch at your kitten. They'll prosecute the pussy. So you set your kitten onto the smaller birds first to eat them, so that it grows large enough to be able to take down the bigger birds.

Reply Score: 4

RE[4]: Comment by MOS6510
by MOS6510 on Wed 5th Jun 2013 04:22 UTC in reply to "RE[3]: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

It sounds like a credible theory, but does it apply to Apple? I know of the big birds they've gone after, but it is suggested, again and again, that they go after small birds too yet so far none is named.

Reply Score: 2

RE[5]: Comment by MOS6510
by JAlexoid on Wed 5th Jun 2013 09:17 UTC in reply to "RE[4]: Comment by MOS6510"
JAlexoid Member since:
2009-05-19

Yes, it does. Apple is no exception to the precedent case law application. Apple is not the only one, though.

Your focus on Apple is very much misplaced, since you can say the same about Microsoft and most other big players. In fact, Microsoft has spawned more than Apple can dream of in small businesses and jobs. Their business partner programme is second to none.

PS: Apple "trolled" in Europe - a Spanish tablet maker and a German one. Much smaller targets than Microsoft's targets were/are.

Reply Score: 3

RE[6]: Comment by MOS6510
by MOS6510 on Wed 5th Jun 2013 09:35 UTC in reply to "RE[5]: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

My focus is on Apple because someone else keeps saying Apple does this or that, but without giving any examples. It has reached a dogmatic state.

I don't know about those cases you mentioned, but if Apple sues them it's most likely those companies made rather exact copies of Apple products.

Apple tends to go after companies that pose real threats or misuse the Apple brand, product names or logos. I don't think that's unreasonable, although I think they sometimes go to far with anything that starts with a small i. It's probably their legal department acting on their own rather than a CEO call.

That haven't said a thing about HP and their new line of Apple product look-a-likes. Go to a toy store and you'll find media players and tablets that are obviously Apple inspired. If they weren't so crappy I might even buy some just for the fun of it.

Reply Score: 2

RE[7]: Comment by MOS6510
by Kivada on Wed 5th Jun 2013 10:03 UTC in reply to "RE[6]: Comment by MOS6510"
Kivada Member since:
2010-07-07

My favorite was always that early Chinese knockoff of the iPod, where they cloned it completely but also improved upon it by adding support for every codec the hardware supported and adding an FM tuner. They even cloned the silhouette ads for their product.

I never did get one though, but it was very tempting since without comparing audio and build quality, the knockoff was the better buy.

Reply Score: 3

RE[7]: Comment by MOS6510
by JAlexoid on Wed 5th Jun 2013 15:00 UTC in reply to "RE[6]: Comment by MOS6510"
JAlexoid Member since:
2009-05-19

I don't know about those cases you mentioned, but if Apple sues them it's most likely those companies made rather exact copies of Apple products.

Obviously you don't otherwise you wouldn't say that they don't sue. Also rationalising the actions, that contradict your own statements... classic sign of a fanboi.

Here is the link with the pic of the "infringing" tablet: http://www.phonearena.com/news/Small-Spanish-tablet-maker-wins-Appl...

Reply Score: 4

RE[4]: Comment by MOS6510
by zima on Fri 7th Jun 2013 21:15 UTC in reply to "RE[3]: Comment by MOS6510"
zima Member since:
2005-07-06

So imagine you want to stop birds from stealing your seeds (with a kitten), [...]

Kitten analogies?! I kinda like the idea...

Reply Score: 2

RE: Comment by MOS6510
by JAlexoid on Wed 5th Jun 2013 09:06 UTC in reply to "Comment by MOS6510"
JAlexoid Member since:
2009-05-19

Apple itself is not the problem. Neither is Samsung or Microsoft, or IBM, or any other big player.

Problem is that they are opposing changing of the rules that allow them to battle it out... the side-effect of those rules is that medium sized companies or small trolls can use the same rules to scare and attack the small guys.

Their opposition to change of patent laws, what they see as a valuable legal tool, results in a massive negative side-effect on small and medium business.

In fact, now the pharmaceutical companies are against the rules that they helped to introduce... the rules that are to vague and allowed a vast set of "inventions" to be patented.

Complaining about any of the big boys is like complaining about a manager that is adamant that he cannot change an arbitrary rule that he introduced himself and has no legal obligation to enforce.(I had such an argument recently)

Edited 2013-06-05 09:08 UTC

Reply Score: 3

RE[2]: Comment by MOS6510
by MOS6510 on Wed 5th Jun 2013 09:28 UTC in reply to "RE: Comment by MOS6510"
MOS6510 Member since:
2011-05-12

I don't think they should be able to oppose anything, they don't have a vote in congress nor do they pay taxes (joke)!

I don't like the patent system, but I think a middle way can be found. First get rid of companies with patents and no products. If one doesn't make anything one can't complain of others doing it.

Make patents expire rather quickly, let's say 2 years. Two years is a LONG time in tech. Plenty of time to do your thing with the advantage of being first. After that you either innovate, which is what we want, or be one of the many companies that produce products with your expired patent.

Also get rid of silly patents. Once that are silly, too obvious or prior art.

Reply Score: 2

RE[3]: Comment by MOS6510
by JAlexoid on Wed 5th Jun 2013 15:04 UTC in reply to "RE[2]: Comment by MOS6510"
JAlexoid Member since:
2009-05-19

First get rid of companies with patents and no products. If one doesn't make anything one can't complain of others doing it.


You are aware that organisations like NASA and a lot of universities hold patents on technologies but produce no products, are you?

What should we do? Make sure that they don't get the funds for the work of their staff?

Also get rid of silly patents. Once that are silly, too obvious or prior art.

Talk to any lawyer and he will make sure that any "silly" patent sounds like serious business. The patents seem silly when they start being leveraged against someone. They are rarely silly on paper, when going though the application process.

Reply Score: 2

RE[4]: Comment by MOS6510
by kwan_e on Thu 6th Jun 2013 07:37 UTC in reply to "RE[3]: Comment by MOS6510"
kwan_e Member since:
2007-02-18

"First get rid of companies with patents and no products. If one doesn't make anything one can't complain of others doing it.


You are aware that organisations like NASA and a lot of universities hold patents on technologies but produce no products, are you?
"

NASA and universities are companies?

And actually, NASA does actually use its inventions to create stuff that they use themselves, so they technically have products.

Reply Score: 2

RE[5]: Comment by MOS6510
by JAlexoid on Thu 6th Jun 2013 17:01 UTC in reply to "RE[4]: Comment by MOS6510"
JAlexoid Member since:
2009-05-19

Universities are most definitely companies(aka legal entities)

Reply Score: 3

RE[6]: Comment by MOS6510
by kwan_e on Fri 7th Jun 2013 02:28 UTC in reply to "RE[5]: Comment by MOS6510"
kwan_e Member since:
2007-02-18

Maybe then change the scope to "companies with patents but no regular R&D".

Reply Score: 2

Comment by M.Onty
by M.Onty on Tue 4th Jun 2013 17:18 UTC
M.Onty
Member since:
2009-10-23

How about passing a law that clarifies that making a demand for patent payment in writing has to follow certain rules. Nothing strenuous for companies with genuine grievances; something like stating the name of patent holder, history of patent, explanation for quoted figure that they want paid, examples where they believe the accused has infringed their patents. If someone or organisation receives a letter that doesn't broadly follow these rules (you don't want small companies taken to court for not putting a full enough patent history, for example) then the letter can be considered evidence of extortion in court, should it come to that.

Of course that doesn't really effect big companies much. That's another issue.

Reply Score: 2

The actual proposed measure
by Tony Swash on Tue 4th Jun 2013 19:02 UTC
Tony Swash
Member since:
2009-08-22

These are the five executive actions, some look quite good.

Tighten functional claiming: requiring patent applicants to explain their inventions better and to limit those inventions to a specific way of accomplishing a task, as opposed to all ways of accomplishing a task. This is an important (and obvious) fix that should help stem the tide of overbroad software patents and increase patent quality.

Fix transparency: requiring patent owners to update records at the Patent Office with the patent's real owner. Taking away secrecy takes away one of the patent troll's favorite weapons.

Empower downstream users: ending the abuse associated with targeting end users, such as small businesses, startups, and even individuals who find themselves facing lawsuit threats and licensing demands for simply using everyday products. As the White House puts it: "End-users should not be subject to lawsuits for simply using a product as intended, and need an easier way to know their rights before entering into costly litigation or settlement." We couldn’t agree more.

Expand dedicated outreach and study: working with members of the community, including third-party stakeholders, to address flaws in the system. This would include increasing scholarly programs at the Patent Office, something that if done right could have a direct positive effect on patent quality by bringing in big thinkers to address systemic problems at that office.

Strengthen enforcement of exclusion orders: streamlining procedures for imported goods that are found to infringe U.S. patents.

In addition to the executive actions there are also seven legislative proposals

Edited 2013-06-04 19:02 UTC

Reply Score: 3

RE: The actual proposed measure
by JAlexoid on Wed 5th Jun 2013 09:23 UTC in reply to "The actual proposed measure"
JAlexoid Member since:
2009-05-19

What about continuations? They have been shown to be a good tool to broaden a patent, by "Oh... we actually meant that, not this".

End-users should not be subject to lawsuits for simply using a product as intended

That is not necessarily true. Consumer products most definitely have to be under such rules, however it gets tricky with commercial and industrial equipment.

Reply Score: 2

Abolition.
by UltraZelda64 on Wed 5th Jun 2013 03:04 UTC
UltraZelda64
Member since:
2006-12-05

That is the one and only "true" way of eliminating software patent problems. Simple as that.

Reply Score: 2

So will this make Obama
by TM99 on Wed 5th Jun 2013 06:10 UTC
TM99
Member since:
2012-08-26

more willing to veto this ruling or not?

http://money.cnn.com/2013/06/04/technology/mobile/apple-samsung-itc...

I am sure this will turn out as well as the ACA did. The ACA was a big win for the insurance corporations. I am sure this will be a big win for the mega tech corporations like Oracle, Apple, and Microsoft.

Reply Score: 2

Obama?
by roracle on Wed 5th Jun 2013 10:32 UTC
roracle
Member since:
2009-05-14

Obama can't do anything, have you seen the past four and a half years?

Executive orders are nothing, and he talks about them as if they are law by pen stroke. He has no power, that's the point of the USA: our leaders have very little power, they aren't monarchs, and we aren't a monarchy.

Reply Score: 2

bolomkxxviii
Member since:
2006-05-19

Not sure if these measures will make things better or worse.

Pure patent trolls should be shot, hanged, flayed, keel hauled and burned. Not necessarily in that order.

What would these changes do to the Apple-Samsung fight?

Reply Score: 2

Patent trolls
by SonicMetalMan on Thu 6th Jun 2013 14:24 UTC
SonicMetalMan
Member since:
2009-05-25

I admit that something needs to be done with the US patent system but I greatly fear anything that the current administration would attempt to do. So far the track record is not good with these guys, you need only to look at the debacle of Obamacare. The "fix" causes more damage than the original problem.

Maybe my outlook is too simplistic but I would love to see sitting judges just tossing out the lawsuits from the big boys. Appeals can be handled the same way. How many millions of dollars and thousands of man-hours have been spent between Microsoft, Apple, and Samsung suing each other? What a travesty of the justice system in the US.

The taxpayers and the consumers are getting soaked by bad behavior.

Edited 2013-06-06 14:25 UTC

Reply Score: 1