Trollzilla

by on July 12, 2006 · 42 comments

Michael Perelman of Against Monopoly points out this Business Week story about probably the world’s largest patent troll invention company, Intellectual Ventures:

Nathan Myhrvold, Microsoft’s first chief technology officer, has a plan for Intellectual Property. First he gathers leading scientists and patent attorneys to brainstorm and come up with ideas that his company, Intellectual Ventures, can license to others. They plan to produce nothing but patents. You know what comes next.

The company also offers to “immunize” corporations from patent suits for a $50 million fee. The company will go around and buy patents before other patent trolls do, thereby “protecting” the clients. Others, of course, will have to face the consequences of not having ponied up the $50 million.

Does the word “blackmail” have any relevance here?

An excellent question! I found the phrase “culture of infringement” particularly chilling. Companies in the software industry don’t infringe because they’re uninterested in doing the right thing. They infringe because they realize that finding and paying off everyone who holds a patent that describes something they could do is logistically impossible. “Ending the culture of infringement” in the software industry means ending the freedom to develop software without spending tens of thousands of dollars on legal advice first.

Which, in practice, means limiting the software industry to a handful of large companies staffed mostly with lawyers. Hey, come to think of it, that sounds a lot like Intellectual Ventures!

  • http://www.WhatToFix.com Daniel Markham

    Tim.

    Keep in mind that there are little guys like me developing work that might or might be truly revolutionary. Please don’t throw the baby out with the bath water. Intellectual protection is the only thing the little guy has in the game. Given, of course, that there’s something truly there, which in 99% of the cases is not true.

  • http://www.WhatToFix.com Daniel Markham

    Tim.

    Keep in mind that there are little guys like me developing work that might or might be truly revolutionary. Please don’t throw the baby out with the bath water. Intellectual protection is the only thing the little guy has in the game. Given, of course, that there’s something truly there, which in 99% of the cases is not true.

  • http://www.techliberation.com/ Tim Lee

    Daniel,

    Thanks for commenting. Could you please elaborate on how software patents help the innovative “little guy?” Most of the startups I’ve read about succeeded by being smarter and nimbler than the big guys, not by winning a patent lawsuit against them.

    Also, if the tub is 99 percent bath water and 1 percent baby, is it possible the baby’s not worth saving? Even assuming there are a few good software patents out there (And I’m skeptical of that), I don’t know how you’d come up with a rule that allows patent examiners to tell the difference.

  • Anonymous

    If you agree that 99% of software patents are baseless, then why do you still support software patents?

    As far as “intellectual protection” being the only thing the the “little guy” has in the game…well what’s your point? All organizations, regardless of size, have lots more to worry about than intellectual protection.

    Any well-designed competitive strategy is multi-layered, and patent or not, competition via substitute is often far more dangerous to the little guy. [Google the "five forces" for more information on competition via substitution unless you're already familiar.] In fact, we can also include competition from the status quo as another danger not covered by intellectual protection. Lots of potential customers simply choose to do nothing. A patent won’t help the little guy when the customer decides not to license and instead chooses to co-exist with whatever “problems” could be solved by a patented software product.

    A patent doesn’t really offer much protection against the external forces that operate on an organization, regardless of size. That’s just a fallacious argument.

  • http://www.techliberation.com/ Tim Lee

    Daniel,

    Thanks for commenting. Could you please elaborate on how software patents help the innovative “little guy?” Most of the startups I’ve read about succeeded by being smarter and nimbler than the big guys, not by winning a patent lawsuit against them.

    Also, if the tub is 99 percent bath water and 1 percent baby, is it possible the baby’s not worth saving? Even assuming there are a few good software patents out there (And I’m skeptical of that), I don’t know how you’d come up with a rule that allows patent examiners to tell the difference.

  • http://www.WhatToFix.com Daniel Markham

    I’d like to make a couple points here.

    First — do not confuse the free market and intellectual property. The open market rewards good businesspeople, not necessarily new ideas. The IP system we have is a trade between society at large and any individual or corporation. The trade is about encouraging innovation from the masses. A simple review of the history of IP can show how a lot of little guys were rewarded for teaching society something valuable. That principle, I believe, is not in question. Whether the trade is a good one is all about the application evaluation system, not the idea itself. You save the baby by draining the water! Not by throwing the whole thing out or forcing absolute decisions.

    Anonymous — I must confess that I miss your point entirely. Are you trying to argue that business value is the same as intellectual value to a society? Sounds kind of short-sighted to me. The whole purpose is the decoupling of the two — the competitve forces are for the businessperson to wrestle, not the inventor. The guy who makes a collection of bottlecaps cure cancer doesn’t have to worry about any of those factors. He’s not supposed to.

    It seems to me the whole “kill the software patents” movement is rather more emotional than intellectual, hence the absolutist positions, the horror stories, and the mis-reading of patent applications. One of those “read the book and join the movement!” kind of deals. Whatever floats your boat. I will add one example here for your consideration.

    Let’s suppose that I just stepped off a time machine from the year 3400. I have, in my knowledge, the way to make computers truly sentient. So I sit down and write an instruction book on how to do it: how to assemble the various bits and bytes into a system that creates intelligence.

    A couple of interesting things happen, almost immediately. First, whatever my instructions, they will involve re-assembly of obvious primitives: arrays, indexes, loops, CPUs, etc. So one group will immediately come out and say, “hey! There’s nothing new here! He’s just re-assembling old stuff and trying to pawn it off as something new! Patent troll!”

    Likewise, whatever my approach, it will likely mirror other approaches that haven’t (and won’t for hundreds of years) be successful. But aside from that inconvenient point, those parties who were generally correct will be clamoring that their work “anticipated” my patent.

    Still another group will read the patent, understand how it works (that’s the whole point) and claim that it’s really just a simple concept. Completely obvious. The best inventions always are — in retrospect.

    At the end of the day, boys and girls, it’s all just ones and zeroes. The entire future advancement of our society will depend on ones and zeroes. Our economy, our military, our livlihoods, and our leisure. Simple stuff. Put together in more and more complex and useful ways. Now you can take the extreme, and rather anarchist, position and state that none of our intellectual future can be patented — that the social contract with inventors is over as far as software. Or you can try to find a better way to sort the BS from the good stuff.

    Oddly enough, the argument I hear the most about letting the market decide it tends to reward huge businesses with business managers and market power. It’s a well known fact that large, resourceful entities can sell crap and stomp the little guy. If you really feel that mega-corporations can manage our future better, I’d like to hear that argument. I know, I know — the nimble, little, creative companies will innovate and survive. But let’s not kid ourselves: how many Pkzips do you think it takes to be a Microsoft? Do you really want the Microsofts of the world stealing whatever they want without any recourse at all?

  • Ned Ulbricht

    Please don’t throw the baby out with the bath water.

    Daniel,

    In my opinion, the American public would be better served by abolishing the entire patent system than by continuing on without serious patent reform. The current cost to American innovation and competitiveness from this out-of-control patent insanity is greater than the benefit.

    Sorry.

  • http://www.techdirt.com/ Mike Masnick

    Tim,

    There’s even more to this story, which we covered a few weeks ago:

    http://www.techdirt.com/articles/20060626/1011256.shtml

    First, it was odd that both Business Week and Fortune ran almost identical articles on Intellectual Ventures on the same day. People at both magazines must be pissed off about that.

    Second, the issue isn’t just that they offered “protection money” for a $50 million investment, but the whole thing seemed like a bait & switch. Originally it was pitched as a protection deal, and then it became something else, once the money was in the bank.

    The whole thing is really sketchy.

  • http://www.WhatToFix.com Daniel Markham

    Ok.

    So this Intellectual Ventures — where’s the fire? I see all of the smoke. But where are the investors, the profits, the return?

    Sounds like a coop for patent litigation attorneys. Welcome to the world of mass commercial products, guys. It ain’t bean bag. Try learning about building and selling airplanes or firearms and come back and tell me about legal risk.

  • Anonymous

    If you agree that 99% of software patents are baseless, then why do you still support software patents?

    As far as “intellectual protection” being the only thing the the “little guy” has in the game…well what’s your point? All organizations, regardless of size, have lots more to worry about than intellectual protection.

    Any well-designed competitive strategy is multi-layered, and patent or not, competition via substitute is often far more dangerous to the little guy. [Google the "five forces" for more information on competition via substitution unless you're already familiar.] In fact, we can also include competition from the status quo as another danger not covered by intellectual protection. Lots of potential customers simply choose to do nothing. A patent won’t help the little guy when the customer decides not to license and instead chooses to co-exist with whatever “problems” could be solved by a patented software product.

    A patent doesn’t really offer much protection against the external forces that operate on an organization, regardless of size. That’s just a fallacious argument.

  • http://www.techliberation.com/ Tim

    Daniel,

    I believe we’ve had this argument before. I analyzed your “AI from the 35th century” scenario here:

    http://www.techliberation.com/archives/039663.php

    I don’t think my opinion has really changed after a second reading.

    Can you point me to a real-world example of a meritorious software patent? Or do those only come along every 1300 years?

  • http://www.blindmindseye.com MikeT

    So the blackberry is an innovative idea because it combines two mundane technologies into a glorified gameboy? Daniel, we wouldn’t be so cynical were it not for the fact that there is so much abuse of the system. RedHat is being sued now by a company that claims it invented the idea of mapping relational databases to OOP code. Their patent is basically like this, from the parts I read. “Write a mapping that defines a relationship between a table and an object.” It’s absurd. They’re all but claiming ownership of Hibernate over this.

  • Ned Ulbricht

    Can you point me to a real-world example of a meritorious software patent?

    Tim,

    I think you’re just asking the wrong question. Pharma appears to make one of the best cases for patents. The question should be:

    What would a sui generis system for the pharmaceutical industry look like, consistent with the constitutional goal of advancing progress?

  • http://www.WhatToFix.com Daniel Markham

    I’d like to make a couple points here.

    First — do not confuse the free market and intellectual property. The open market rewards good businesspeople, not necessarily new ideas. The IP system we have is a trade between society at large and any individual or corporation. The trade is about encouraging innovation from the masses. A simple review of the history of IP can show how a lot of little guys were rewarded for teaching society something valuable. That principle, I believe, is not in question. Whether the trade is a good one is all about the application evaluation system, not the idea itself. You save the baby by draining the water! Not by throwing the whole thing out or forcing absolute decisions.

    Anonymous — I must confess that I miss your point entirely. Are you trying to argue that business value is the same as intellectual value to a society? Sounds kind of short-sighted to me. The whole purpose is the decoupling of the two — the competitve forces are for the businessperson to wrestle, not the inventor. The guy who makes a collection of bottlecaps cure cancer doesn’t have to worry about any of those factors. He’s not supposed to.

    It seems to me the whole “kill the software patents” movement is rather more emotional than intellectual, hence the absolutist positions, the horror stories, and the mis-reading of patent applications. One of those “read the book and join the movement!” kind of deals. Whatever floats your boat. I will add one example here for your consideration.

    Let’s suppose that I just stepped off a time machine from the year 3400. I have, in my knowledge, the way to make computers truly sentient. So I sit down and write an instruction book on how to do it: how to assemble the various bits and bytes into a system that creates intelligence.

    A couple of interesting things happen, almost immediately. First, whatever my instructions, they will involve re-assembly of obvious primitives: arrays, indexes, loops, CPUs, etc. So one group will immediately come out and say, “hey! There’s nothing new here! He’s just re-assembling old stuff and trying to pawn it off as something new! Patent troll!”

    Likewise, whatever my approach, it will likely mirror other approaches that haven’t (and won’t for hundreds of years) be successful. But aside from that inconvenient point, those parties who were generally correct will be clamoring that their work “anticipated” my patent.

    Still another group will read the patent, understand how it works (that’s the whole point) and claim that it’s really just a simple concept. Completely obvious. The best inventions always are — in retrospect.

    At the end of the day, boys and girls, it’s all just ones and zeroes. The entire future advancement of our society will depend on ones and zeroes. Our economy, our military, our livlihoods, and our leisure. Simple stuff. Put together in more and more complex and useful ways. Now you can take the extreme, and rather anarchist, position and state that none of our intellectual future can be patented — that the social contract with inventors is over as far as software. Or you can try to find a better way to sort the BS from the good stuff.

    Oddly enough, the argument I hear the most about letting the market decide it tends to reward huge businesses with business managers and market power. It’s a well known fact that large, resourceful entities can sell crap and stomp the little guy. If you really feel that mega-corporations can manage our future better, I’d like to hear that argument. I know, I know — the nimble, little, creative companies will innovate and survive. But let’s not kid ourselves: how many Pkzips do you think it takes to be a Microsoft? Do you really want the Microsofts of the world stealing whatever they want without any recourse at all?

  • Ned Ulbricht

    Please don’t throw the baby out with the bath water.

    Daniel,

    In my opinion, the American public would be better served by abolishing the entire patent system than by continuing on without serious patent reform. The current cost to American innovation and competitiveness from this out-of-control patent insanity is greater than the benefit.

    Sorry.

  • http://www.techdirt.com/ Mike Masnick

    Tim,

    There’s even more to this story, which we covered a few weeks ago:

    http://www.techdirt.com/articles/20060626/10112

    First, it was odd that both Business Week and Fortune ran almost identical articles on Intellectual Ventures on the same day. People at both magazines must be pissed off about that.

    Second, the issue isn’t just that they offered “protection money” for a $50 million investment, but the whole thing seemed like a bait & switch. Originally it was pitched as a protection deal, and then it became something else, once the money was in the bank.

    The whole thing is really sketchy.

  • http://www.WhatToFix.com Daniel Markham

    Ok.

    So this Intellectual Ventures — where’s the fire? I see all of the smoke. But where are the investors, the profits, the return?

    Sounds like a coop for patent litigation attorneys. Welcome to the world of mass commercial products, guys. It ain’t bean bag. Try learning about building and selling airplanes or firearms and come back and tell me about legal risk.

  • http://www.techliberation.com/ Tim

    Daniel,

    I believe we’ve had this argument before. I analyzed your “AI from the 35th century” scenario here:

    http://www.techliberation.com/archives/039663.php

    I don’t think my opinion has really changed after a second reading.

    Can you point me to a real-world example of a meritorious software patent? Or do those only come along every 1300 years?

  • http://www.blindmindseye.com MikeT

    So the blackberry is an innovative idea because it combines two mundane technologies into a glorified gameboy? Daniel, we wouldn’t be so cynical were it not for the fact that there is so much abuse of the system. RedHat is being sued now by a company that claims it invented the idea of mapping relational databases to OOP code. Their patent is basically like this, from the parts I read. “Write a mapping that defines a relationship between a table and an object.” It’s absurd. They’re all but claiming ownership of Hibernate over this.

  • Ned Ulbricht

    Can you point me to a real-world example of a meritorious software patent?

    Tim,

    I think you’re just asking the wrong question. Pharma appears to make one of the best cases for patents. The question should be:

    What would a sui generis system for the pharmaceutical industry look like, consistent with the constitutional goal of advancing progress?

  • http://www.WhatToFix.com Daniel Markham

    Peace guys.

    You are correct. I have used this example on this board before. What your argument was, honestly, I did not check up on. I’ll try to do better.

    “Pharmaceuticals deserve patents, but then again, a pharmaceutical company can’t patent the idea of an anti-inflammatory drug or the idea of an ant-cancer drug. Yet so very many software patents aim to patent the equivalent of an anti-inflammatory drug … heck lots of them basically try to patent the idea of a drug itself”

    You are misreading the patents if you believe this. Yes, there are broad and bold claims. But the enabling text — the meat of the patent. Is about an instruction book for doing something. This instruction book must be specific — if it is generic the instructions have no value.

    This is the thing you are missing. The claims for patents are all over the map and are a mess. But once you get to the litigation, you have to discover exactly what the patent enables — what it teaches that hasn’t been taught before.

    Like I said, I think you’re confusing the nature of our litigious society, a misreading of the nature of the patents involved (due to a poor approval process and overly broad claims) and fears of “I can’t do anything” mainly coming from the big guys, not joe coder. (The big guys have deep pockets. Joe Coder does not) Basically the system is broken due to the fact that many patents are approved that shouldn’t be, and the claims are all over the place. These issues are all settled in litigation, and the truth will out. That’s not the way it is supposed to work, but it still works. The big companies end up paying for litigation that restricts the claims of bad patents granted by the government.

    I’d like to ask a rhetorical question. How much have you guys studied exactly what patents are and how to get and use them? I know you know the horror stories, but do you really know how it all works? Before you announce the system broken beyond repair, it might be a good idea to really understand what you are talking about. Any patent attorneys here? I’ve read about a dozen books. I don’t know much, but I understand and agree that changes need to be made.

    I’ll say it again, in the hopes it might sink in. The ability for anybody with a great idea and a few thousand bucks to stake an intellectual claim and ownership of an idea that improves society is a powerful force of innovation. This is true in all areas. Intellectual Property and intellectual solutions are where all of the societal value of the future is. That means that, as a society, we have to learn how to deal with abstract intellectual advancements. Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts. Let’s fix the problems we have, instead of over-generalizing. In my opinion, we have a great problem with lawsuits for a number of reasons: medical malpractice, smoking, selling fat foods, etc, that are also going way too far. If you think about it, as our society abstracts the value it has into intellectual concepts, we’re going to carry all the same old bad things we did before into the new age. It’s not just patents, it’s everything. We had some good models in the old paradigm. Perhaps they need tweaking a bit in the new one, but that’s okay.

  • http://www.techliberation.com/ Tim

    Daniel,

    I haven’t read a dozen books about the patent system, but I have read a lot of software patents, and I have yet to find one that struck me as meritorious. So I repeat my question: can you give me an example of a good software patent? If not, how can you be so sure they exist?

  • http://www.WhatToFix.com Daniel Markham

    Peace guys.

    You are correct. I have used this example on this board before. What your argument was, honestly, I did not check up on. I’ll try to do better.

    “Pharmaceuticals deserve patents, but then again, a pharmaceutical company can’t patent the idea of an anti-inflammatory drug or the idea of an ant-cancer drug. Yet so very many software patents aim to patent the equivalent of an anti-inflammatory drug … heck lots of them basically try to patent the idea of a drug itself”

    You are misreading the patents if you believe this. Yes, there are broad and bold claims. But the enabling text — the meat of the patent. Is about an instruction book for doing something. This instruction book must be specific — if it is generic the instructions have no value.

    This is the thing you are missing. The claims for patents are all over the map and are a mess. But once you get to the litigation, you have to discover exactly what the patent enables — what it teaches that hasn’t been taught before.

    Like I said, I think you’re confusing the nature of our litigious society, a misreading of the nature of the patents involved (due to a poor approval process and overly broad claims) and fears of “I can’t do anything” mainly coming from the big guys, not joe coder. (The big guys have deep pockets. Joe Coder does not) Basically the system is broken due to the fact that many patents are approved that shouldn’t be, and the claims are all over the place. These issues are all settled in litigation, and the truth will out. That’s not the way it is supposed to work, but it still works. The big companies end up paying for litigation that restricts the claims of bad patents granted by the government.

    I’d like to ask a rhetorical question. How much have you guys studied exactly what patents are and how to get and use them? I know you know the horror stories, but do you really know how it all works? Before you announce the system broken beyond repair, it might be a good idea to really understand what you are talking about. Any patent attorneys here? I’ve read about a dozen books. I don’t know much, but I understand and agree that changes need to be made.

    I’ll say it again, in the hopes it might sink in. The ability for anybody with a great idea and a few thousand bucks to stake an intellectual claim and ownership of an idea that improves society is a powerful force of innovation. This is true in all areas. Intellectual Property and intellectual solutions are where all of the societal value of the future is. That means that, as a society, we have to learn how to deal with abstract intellectual advancements. Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts. Let’s fix the problems we have, instead of over-generalizing. In my opinion, we have a great problem with lawsuits for a number of reasons: medical malpractice, smoking, selling fat foods, etc, that are also going way too far. If you think about it, as our society abstracts the value it has into intellectual concepts, we’re going to carry all the same old bad things we did before into the new age. It’s not just patents, it’s everything. We had some good models in the old paradigm. Perhaps they need tweaking a bit in the new one, but that’s okay.

  • http://www.techliberation.com/ Tim

    Daniel,

    I haven’t read a dozen books about the patent system, but I have read a lot of software patents, and I have yet to find one that struck me as meritorious. So I repeat my question: can you give me an example of a good software patent? If not, how can you be so sure they exist?

  • http://www.WhatToFix.com Daniel Markham

    First I acknowledge that I can not come up with a good example. I have not tried to find one, however. If I run across one, I will let you knwo. But searching a zillion patents? Not going to happen.

    I have read several patents that seemed very ingenious to me. Patents that combined several old concepts in new ways to create products that did not exist before.

    But you’re kind of making my point, Ted. If you are reading patents without a foundation to understand what you are reading, quite frankly you are part of the problem and not part of the solution. When I started reading patents I went beserko too. But it’s the enabling text. Read the enabling text.

    The claims are crazy. I’ve read patents in the last couple of years that tried to claim database technology, for goodness sake.

    You guys are all welcome to stop by my blog. I’m trying to keep it light, but serious posts are welcome.

    Thanks for the good material over here! I’ve only been reading the RSS feed once a month, but I plan to bump it up some. I enjoyed the conversation.

  • http://dr-flippy.livejournal.com/ Lewis Baumstark

    But searching a zillion patents?

    I think you just validated the anti-software-patents’ stance. It looks to me that the overhead of searching through existing patents (whether it’s to find something useful to license or simply to cover-your-posterior) has become more costly than simply building it yourself.

  • http://www.techliberation.com/ Tim

    So you don’t have time to read through enough patents to find even one good one, but you think it’s reasonable to expect an entrepreneur to read through thousands of patents to make sure he’s not infringing any of them? I don’t think you’re helping your case any.

  • Anon

    From Mr. Markham:

    Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts.

    In theory, yes. Practice however is a lot different. For example, Red Hat is being threatened at the moment over claims that I believe center around object db software (extracting from/sending to). I could be wrong, but I think that’s the gist of it. As was mentioned earlier, this is kind of like patenting “A drug ingested into the body, through being absorbed into the blood stream, which, when brought into contact with carcinogens, impedes their ability to grow in population, thus killing off the cancer.” Lame right? Because you haven’t really invented anything, and monopolized the mere idea of invention that could be. This kind of stuff fails obviousness and prior art, so it should be struck down in court.

    However, getting back to RH, now they have to spend legal costs to fight this. And if the system keeps piling up, how many more companies will the same thing happen to? And that’s even if the court is sane. I admit, I haven’t really researched this, but isn’t the East Texas District infamous for upholding just about anything related to IP holders? It would nice if we could reform software and business method patents, but is there any pragmatic system that would be effective, given the situation?

    Also, I’d like to take this chance to comment on something I read on this blog. Can’t remember who the author was, maybe Tim? He or she was saying that most classes of IP are protected by either copyright or patent. Art by copyright and invention by patent. Software is protected by both, however. Having software protected by copyright seems ok to me.

    Tim, about your question about a good software patent, this is one I’ve thought about but never gotten around to really researching, and I’d like to get some others’ perspective on it: the RSA patent. Can we be sure it wouldn’t have been discovered without software patents? It seems like the nature of science and scientists to publish their findings. And isn’t science what RSA really is? Not invention, not even the “art” of programming, but science. Should we really be patenting science?

  • http://www.WhatToFix.com Daniel Markham

    First I acknowledge that I can not come up with a good example. I have not tried to find one, however. If I run across one, I will let you knwo. But searching a zillion patents? Not going to happen.

    I have read several patents that seemed very ingenious to me. Patents that combined several old concepts in new ways to create products that did not exist before.

    But you’re kind of making my point, Ted. If you are reading patents without a foundation to understand what you are reading, quite frankly you are part of the problem and not part of the solution. When I started reading patents I went beserko too. But it’s the enabling text. Read the enabling text.

    The claims are crazy. I’ve read patents in the last couple of years that tried to claim database technology, for goodness sake.

    You guys are all welcome to stop by my blog. I’m trying to keep it light, but serious posts are welcome.

    Thanks for the good material over here! I’ve only been reading the RSS feed once a month, but I plan to bump it up some. I enjoyed the conversation.

  • http://www.techliberation.com/ Tim Lee

    Anon: an excellent question! I don’t know much about the RSA patent myself, although I know it’s one of the most-cited examples of a good one. Perhaps I’ll look into it for a future post.

  • http://dr-flippy.livejournal.com/ Lewis Baumstark

    But searching a zillion patents?

    I think you just validated the anti-software-patents’ stance. It looks to me that the overhead of searching through existing patents (whether it’s to find something useful to license or simply to cover-your-posterior) has become more costly than simply building it yourself.

  • http://www.techliberation.com/ Tim

    So you don’t have time to read through enough patents to find even one good one, but you think it’s reasonable to expect an entrepreneur to read through thousands of patents to make sure he’s not infringing any of them? I don’t think you’re helping your case any.

  • Anon

    From Mr. Markham:

    Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts.

    In theory, yes. Practice however is a lot different. For example, Red Hat is being threatened at the moment over claims that I believe center around object db software (extracting from/sending to). I could be wrong, but I think that’s the gist of it. As was mentioned earlier, this is kind of like patenting “A drug ingested into the body, through being absorbed into the blood stream, which, when brought into contact with carcinogens, impedes their ability to grow in population, thus killing off the cancer.” Lame right? Because you haven’t really invented anything, and monopolized the mere idea of invention that could be. This kind of stuff fails obviousness and prior art, so it should be struck down in court.

    However, getting back to RH, now they have to spend legal costs to fight this. And if the system keeps piling up, how many more companies will the same thing happen to? And that’s even if the court is sane. I admit, I haven’t really researched this, but isn’t the East Texas District infamous for upholding just about anything related to IP holders? It would nice if we could reform software and business method patents, but is there any pragmatic system that would be effective, given the situation?

    Also, I’d like to take this chance to comment on something I read on this blog. Can’t remember who the author was, maybe Tim? He or she was saying that most classes of IP are protected by either copyright or patent. Art by copyright and invention by patent. Software is protected by both, however. Having software protected by copyright seems ok to me.

    Tim, about your question about a good software patent, this is one I’ve thought about but never gotten around to really researching, and I’d like to get some others’ perspective on it: the RSA patent. Can we be sure it wouldn’t have been discovered without software patents? It seems like the nature of science and scientists to publish their findings. And isn’t science what RSA really is? Not invention, not even the “art” of programming, but science. Should we really be patenting science?

  • http://www.techliberation.com/ Tim Lee

    Anon: an excellent question! I don’t know much about the RSA patent myself, although I know it’s one of the most-cited examples of a good one. Perhaps I’ll look into it for a future post.

  • http://www.blindmindseye.com MikeT

    Daniel,

    Your concerns about the little guy are valid, but there is the problem of what happens if you are the little guy being sued? Sure, you might win a phyrric victory over your richer opponent, but what happens if you have to lay off most of your employees to cover legal fees and lose critical R&D time?

    Every software patent I have looked at has been a blatant attempt to patent an idea itself, such as the Hibernate example. I too have yet to see a single one that isn’t obvious on its face or would be the practical solution that would first come to mind to any developer needing to create that solution. It’s not a matter of hindsight is 20-20, it’s a matter of it being so obvious that if someone said “how would you do this,” that a typical developer with a few years of experience could rattle off essentially the text of the patent without even knowing the patent exists or having heard of the product(s) it’s based on.

  • http://www.blindmindseye.com MikeT

    Daniel,

    Your concerns about the little guy are valid, but there is the problem of what happens if you are the little guy being sued? Sure, you might win a phyrric victory over your richer opponent, but what happens if you have to lay off most of your employees to cover legal fees and lose critical R&D; time?

    Every software patent I have looked at has been a blatant attempt to patent an idea itself, such as the Hibernate example. I too have yet to see a single one that isn’t obvious on its face or would be the practical solution that would first come to mind to any developer needing to create that solution. It’s not a matter of hindsight is 20-20, it’s a matter of it being so obvious that if someone said “how would you do this,” that a typical developer with a few years of experience could rattle off essentially the text of the patent without even knowing the patent exists or having heard of the product(s) it’s based on.

  • http://zgp.org/~dmarti/ Don Marti

    99% of mutations are harmful, but we shouldn’t require mutagenic chemicals in food to be restricted or disclosed on the label. After all, 1% of mutations give you MUTANT POWERS.

  • dmarti

    99% of mutations are harmful, but we shouldn’t require mutagenic chemicals in food to be restricted or disclosed on the label. After all, 1% of mutations give you MUTANT POWERS.

  • Anonymous

    If the USPTO granted five software patents a year, I’m sure we wouldn’t hear much about this. But there are hundreds of thousands or perhaps millions of software patents in the United States and elsewhere. US patent laws certainly weren’t written with the idea that the system should be abused so egregiously. And there isn’t just a small amount of abuse. Abuse is rampant.

    To me, there are similarities with the free speech argument, although I am not trying to connect two unrelated issues. You have the right to free speech as long as it doesn’t impinge on my rights. Thus you cannot yell “fire” in a crowded theater unless there is really a fire. Nor can you make false statements about others with the intent to damage someone’s reputation.

    The patent system should consider the concepts outlined in our right to free speech. Fine if you get a valid patent. But no one should get a bull excrement patent and use it to limit the rights of anyone else. Yet that’s what happens and the problem is getting worse. Mr. Markham has pointed out the “emotional” aspect of those who oppose software patents. I think the emotional aspect is rooted in the correct belief that baseless or broad software patents limit the rights of others, while promoting the rights of the patent holders who received these “special rights” by abusing the system.

  • Anonymous

    P.S. Expecting the courts to sort this out is about as intelligent as asking your average collection of non-software developers to make technical decisions about application design.

    Ask your average non-programmer:

    “We have a decision to make: we can design this application as a minimal shell and implement the rest of the application as external modules. However, if we do that, we have to be careful because if any module, including a user-implemented module, wants to access certain functionality then the user-defined module has to be linked to the module containing said functionality.”

    Or:

    I’m not sure if we should implement this functionality in the base class or the sub-classes. If we implement this functionality in the base class, then we don’t have to copy and paste a bunch of code. If we implement this functionality in the sub class then we have to copy and paste a bunch of code. What seems like the more logical decision? Yet any programmer knows it’s not always that simple.

  • Anonymous

    If the USPTO granted five software patents a year, I’m sure we wouldn’t hear much about this. But there are hundreds of thousands or perhaps millions of software patents in the United States and elsewhere. US patent laws certainly weren’t written with the idea that the system should be abused so egregiously. And there isn’t just a small amount of abuse. Abuse is rampant.

    To me, there are similarities with the free speech argument, although I am not trying to connect two unrelated issues. You have the right to free speech as long as it doesn’t impinge on my rights. Thus you cannot yell “fire” in a crowded theater unless there is really a fire. Nor can you make false statements about others with the intent to damage someone’s reputation.

    The patent system should consider the concepts outlined in our right to free speech. Fine if you get a valid patent. But no one should get a bull excrement patent and use it to limit the rights of anyone else. Yet that’s what happens and the problem is getting worse. Mr. Markham has pointed out the “emotional” aspect of those who oppose software patents. I think the emotional aspect is rooted in the correct belief that baseless or broad software patents limit the rights of others, while promoting the rights of the patent holders who received these “special rights” by abusing the system.

  • Anonymous

    P.S. Expecting the courts to sort this out is about as intelligent as asking your average collection of non-software developers to make technical decisions about application design.

    Ask your average non-programmer:

    “We have a decision to make: we can design this application as a minimal shell and implement the rest of the application as external modules. However, if we do that, we have to be careful because if any module, including a user-implemented module, wants to access certain functionality then the user-defined module has to be linked to the module containing said functionality.”

    Or:

    I’m not sure if we should implement this functionality in the base class or the sub-classes. If we implement this functionality in the base class, then we don’t have to copy and paste a bunch of code. If we implement this functionality in the sub class then we have to copy and paste a bunch of code. What seems like the more logical decision? Yet any programmer knows it’s not always that simple.

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