Patent Troll Nathan Myhrvold Declares Patent Trolling To Be A Good Thing

from the i'm-here-to-justify-my-existence dept

Fri, Jul 22nd 2011 6:36am — Tim Cushing

In what is a hugely unsurprising move, Nathan Myhrvold of Intellectual Ventures has written a column touting the pros of the patent system as a way to keep tech companies "honest." And why shouldn't he? After all, Intellectual Ventures does nearly all of its business via settlement letters or courtroom appearances.

So, while Myhrvold's intentions are pure (as in, self-interestedly portraying patents as an "attempt to level the playing field"), his piece is a catastrophe of revisionist history and patent-troll whitewashing from word one:

Patents rarely make headlines, but they did this month when Nortel auctioned off its patent portfolio and drew an astonishing winning bid of $4.5 billion from a group of companies that includes both Apple and Microsoft.

Really? "Rarely make headlines?" I'm not sure what sort of rock (or cavern) Myhrvold has been living under/in, but recently patents have been making headlines left and right. Of course, they're usually the kind of headlines that Myhrvold would hate to publicly extol, what with the general gist of the stories being that non-practicing entities are very busy attempting to extract payments from actual innovators. (See also: Lodsys, Kootol, etc.)

From that point on, it goes from bad to worse to ridiculous to hilarious. First off, Myhrvold praises the Nortel auction as "a watershed in the maturity of intellectual property markets." He's right as far as a strict definition of "watershed" goes, but most appearances of this word are linked with positive steps forward, rather than an indication of the moment where things took a turn for the worse.

He takes a little time to offer up some backhanded praise for the innovators that often find themselves staring down the barrel of the troll-gun:

Most big tech companies inhabit winner-take-most markets, in which any company that gets out in front can develop an enormous lead... As a result, the tech world has seen a series of mad scrambles by companies wanting to be king of the hill. In the late 1980s, the battle was for dominance of spreadsheet and word-processing software. In the late 1990s, it was about e- commerce on the emerging Internet. The latest whatever-it-takes struggle has been over social networks, with enough drama to script a Hollywood movie.
In each case, the recipe for success was to bring to market, at a furious pace, products that incorporate new features. Along the way, inconvenient intellectual property rights were ignored.

In his haste to paint these innovators as the beneficiaries of the intellectual property of others, Myhrvold inadvertently throws himself (and other non-practicing entities) under the bus, as Glyn Moody points out:

I think he's absolutely spot on. In the 1980s and 1990s, companies successively carved out dominant shares in emerging markets, often becoming vastly profitable in the process. And how did they do that? Well, as Myhrvold says, "the recipe for success was to bring to market, at a furious pace, products that incorporate new features." Their rise and huge success was almost entirely down to the fact that they innovated at a "furious pace", which led to market success.
They did not, that is, innovate in order to gain patents, but in order to succeed. They did not even bother taking out patents, so busy were they innovating and succeeding. Indeed, Myhrvold himself says: "Along the way, inconvenient intellectual property rights were ignored." They were ignored by everyone, and the most innovative companies thrived as a direct result, because only innovation mattered.

But Nathan's not done being wrong yet. He also spends a little time bashing the innovators for their treatment of intellectual property, while inexplicably dragging copyright into the argument for all of two sentences:

Yes, copyright was almost religiously enforced. Copyrights are trivial to obtain (just type the "c" in a circle symbol), and software companies see them as essential to restraining piracy, which hurts revenue. Patents are a different story, however. It takes time for engineers to apply for patents and even more time if they diligently respect other people's patents. So technology companies typically did neither.
In fact, many tech companies forbid their engineers from checking whether their products incorporate others' patents. The practice amounts to an intellectual property version of "don't ask, don't tell." As tech giants commercialized ideas that had been pioneered by small companies and merged once-separate technologies into new products, they infringed other people's patents.

Yes, a copyright is easily obtained. (However, that "little c in a circle" hasn't been required for over three decades -- keep up, Nathan.) But for Myhrvold to pretend that enforcing it is somehow trivial compared to the patent "protection" process is completely ignorant. (And we'll just let the "piracy hurts revenue" line drift on by. Myhrvold is only using it as a bridge to what he really wants to talk about, rather than actually expressing concern for software companies.) Patent trolls, much like copyright trolls, exist only because the system has made it very easy for them to file massive lawsuits (often in friendly locations) and turn a settlement letter mass-mailing campaign into a viable business plan.

Not only that, but to insinuate that these patents (supposedly "pioneered by small companies") are being ignored by large tech companies is completely disingenuous. If there's a lack of due diligence on the part of tech companies, it's because the approved patents that tangle up tech innovators are rarely actual innovations. They often tend to be fairly obvious machinations that should never have been approved in the first place.

There's more:

The biggest companies, which have always touted their brilliant innovations to justify the billions of dollars in stock options they pay their executives, have been in the odd position of attacking the patent system and publicly deprecating the innovations of others. Patents attempt to create a level playing field, but the last thing an 800-pound gorilla of a company wants is a fair fight. After succeeding in part by stealing other people's inventions, they decry any inventors who have the temerity to ask for a share of the returns.

Myhrvold, you flatter yourself. Non-practicing entities aren't "inventors". They're like speed traps in the middle of a 20-degree downgrade. They don't make anything better and, quite often, make things incredibly worse.

And for all his concerns about "innovators" getting paid, there's little attention paid to the fact that all this patent activity (most of it taking place via lawsuits) does nothing to stimulate innovation. In fact, what has happened is that former innovators like Microsoft and Apple now seem to be equally as happy dispatching lawyers from place to place and eliminating competitors through legal attrition rather than through product innovation.

Apple, flush with the iPhone's success but understandably worried that it might wind up becoming the R&D outfit that prototyped ideas that made others rich, has recently sued HTC Corp., Samsung and others. Just last week, the company won a preliminary ruling from the International Trade Commission, which if upheld will prevent HTC from importing smart phones into the U.S., essentially wiping out its business here.

Wiping out a competitor through a lawsuit is "innovation?" How does that stimulate any sort of progress? What about all the "small companies" (like app developers) that saw the level playing field get yanked out from beneath them by Lodsys and Kootol? Who's protecting them?

And now that all this "watershedding" is done in regard to the Nortel patents, where do we, as the customers of these "tech giants" stand? Have things improved?

The result effectively retains the status quo. Google still has no strategic weapon to compensate for the patent liability inherent in Android, so the lawsuits will continue.

Wonderful. Status is still quo and "lawsuits will continue." I'm not sure how much more good news I can handle. Do go on:

More importantly, this sale validates the notion that patents will be a fundamental tool in the tech industry. They had been moving toward that position for years, but the magnitude of Nortel's sale shows that they have arrived.

Patents have been a tool for tech industries for years, Nathan. It's only recently that patent trolling has been a tool for tech industries, which is very disappointing.

Myhrvold has one final thought before he signs off:

What's next? The history of mergers and acquisitions suggests one possibility. Once upon a time in the clubby atmosphere of corporate America, hostile takeovers were rare; gentlemen just didn't do such things. Then, in the 1960s, the hostile takeovers came to be accepted as a legitimate business tool. Similarly, the strategic use of patents now appears to be accepted in the technology industry. If that's true, then Nortel is just the beginning.

And that's the sad truth. Formerly unacceptable business practices should never be welcomed this warmly. If the best business analogy you have for patent trolling is hostile takeovers, then your "business" is already the lowest common denominator. "Strategic use." What a laugh. What you're positing resembles a chess game where nearly every piece is a pawn and no one's allowed to move until the king ok's it.

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Filed Under: innovation, nathan myhrvold, patents
Companies: intellectual ventures

47 Comments

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Richard (profile), 22 Jul 2011 @ 6:55am

What is needed
If we can't get rid of the whole system then what we need to stop this in its tracks is an independent invention defence.

Since it is impossible for a small organisation to effectively search the millions of patents that exist everyone who does business is at risk of waking up to find that some little solution to a problem that they came up with has already been "bagsied" by a patent troll and now they either have to pay up or risk the business on a lawsuit.

With an independent invention defence it should be a simple matter to clear yourself by proving that you didn't get the idea from the patent.
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Woadan, 22 Jul 2011 @ 6:56am

Myhrvold gives trolls a bad name...
Myhrvold gives trolls a bad name...
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Woadan, 22 Jul 2011 @ 7:01am

Just make it that you have to incorporate your patent into a product your company makes, or must license it out. (Be proactively seeking licensees in fact). You must sue at first wrongful use (NTP waited years to sue Rim), and only after failure to agree to licensing terms. Licensing must be t reasonable rates. (50% f the sales price of a device is not reasonable.) Due diligence must be performed by the patentee (the patent holder must look for prior art, and show what sort of search was performed), and makers must also perform due diligence (ensue they aren't infringing).

Right now it's all dog eat dog.
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out_of_the_blue, 22 Jul 2011 @ 7:08am

Myhrvold being wrong doesn't mean Mike is totally right...
Mike's doesn't worry about monopoly. This article is a bit too squishy -- he ends up largely agreeing with Myhrvold -- but his views are clear here:

http://www.techdirt.com/articles/20100913/12231510990.shtml?threaded=true

"... seems to not realize that the purpose behind antitrust actions is to protect consumers, not just break up big companies for the hell of it (that's what Europe is for)."

YET, allowing monopolies (Google in that instance, a source of Mike's income) to exist AT ALL is to guarantee anti-consumer practices. Mike /seems/ to embrace libertarian goals, but always has a poison pill that undermines the rest.
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Richard (profile), 22 Jul 2011 @ 7:08am

In fact, many tech companies forbid their engineers from checking whether their products incorporate others' patents. The practice amounts to an intellectual property version of "don't ask, don't tell."

Think about what he is saying. What he is actually admitting is that most patents are obvious.

If most patents were not obvious then they would be a useful source of innovative information. Therefore "don't ask don't tell" would be a really bad strategy because it would mean that you were missing out on good ideas that you couldn't get by any other route. It would follow that diligently searching for patents and then licensing them would be cheaper than turning a blind eye and trying to do it all yourself.

The fact that companies do what he says - and succeed in the market place - more or less proves that the vast majority of patents are obvious and should never have been granted.

In short his own argument provers that he is wrong!
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Nicedoggy, 22 Jul 2011 @ 7:15am

Re: Myhrvold being wrong doesn't mean Mike is totally right...
I wonder if you know that the writer here in this article is not Mike.
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Anonymous Coward, 22 Jul 2011 @ 7:18am

Re: Myhrvold being wrong doesn't mean Mike is totally right...
Since when is Google a monopoly?

Search? Nope, there's Bing, Yahoo, DuckDuckGo, etc...

Email? Uh...No, there are still too many email providers...

Ah, maybe in the smartphone space with Android. Oh wait, there's iPhone and Windows phone (among others).

Sorry, I'm not following your logic here.
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Dark Helmet (profile), 22 Jul 2011 @ 7:20am

Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Oh, don't bother. OOTB has morphed into a pure troll on crack. I couldn't even get passed this first and nearly unreadable first sentence:

"Mike's doesn't worry about monopoly."

That's not even fucking english. OOTB will eventually end up in a psych ward somewhere after being caught humping lightposts in a gorilla suit. Some people are just batshit crazy....
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Nicedoggy, 22 Jul 2011 @ 7:21am

Re: What is needed
I think because it is getting so difficult to defend against such behavior the small actors in the play will start to band up together and create open pools of patents.

It may be the thing that is needed to bring open hardware to the fronts, just like Microsoft was able to annoy a vast portion of its user that turned their backs on the whole concept of closed source.
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Miratus (profile), 22 Jul 2011 @ 7:21am

Sad to see this...
[I work in the European patent industry as a litigator and advisor on protecting technical innovation, so be aware of both bias and possible experience in the following:] It always pains me to see the patent system so reviled that most tech blogs can easily draw a good crowd with some simple patent bashing. I blame patent trolls and their mouthpieces, like Myhrvold, much like I blame the US portrayal of justice on TV for a global loss of respect for the law.

Most patent cases I work on involve actual inventors bringing an invention to full development and market-readiness and getting remunerated for their invention by larger companies, precisely because they have filed a patent that protects both them (from their corporate partner) and the company that wishes to invest (from its competitors). I believe a patent-less society would actually be far more dog-eat-dog for small inventors/companies than the one we have now. That said, non practising patentees stretch a good - in my eyes - system to cover very extreme cases and Woadan's suggestions seem a good way to mitigate that behaviour.
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Nicedoggy, 22 Jul 2011 @ 7:22am

Most companies don't do a search for anything because they don't want to be liable for treble damages.
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Josh in CharlotteNC (profile), 22 Jul 2011 @ 7:26am

Re:
or must license it out. (Be proactively seeking licensees in fact).

That'll just add another layer for the lawyers to exact their tax on. Instead of shell patent holding companies, there would all so be shell licensing companies.
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Richard (profile), 22 Jul 2011 @ 7:29am

Re: Sad to see this...
). I believe a patent-less society would actually be far more dog-eat-dog for small inventors/companies than the one we have now.

I'm not sure about that - -its pretty dog eat dog as things stand.

Would you not think that an independent invention defence would be reasonable?

I can see where you're coming from, and I agree that there is a need to protect small inventors from potential partners turning down their proposals and then simply doing it anyway - I can also see some point in giving investors a piece of paper to hang their money on - but I have difficulty seeing how the present system achieves what you want. As things are the patent system is like a gun that you keep by your bed to defend against burglars - chances are that the burglar has a bigger gun and knows how to use it better than you do.

He may even take your gun and use it on you....
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Josh in CharlotteNC (profile), 22 Jul 2011 @ 7:36am

Re: Sad to see this...
If what you say is true, then you need to speak up against the bad actors that are tarnishing your profession's reputation.

I see two possibilities.

1) You are one of the tiny percentage of patent lawyers that remain reputable. Unfortunately, that means the rot has gone too far and the system really can't be saved.
2) You are actually in the majority. The silent majority. So stop being silent, speak up, and get these assholes that are ruining your reputation thrown out.
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Richard (profile), 22 Jul 2011 @ 7:40am

Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
"Mike's doesn't worry about monopoly."

That's not even fucking english.

Yes it is - it means Mike's not bothered by a certain board game... (probably true even)
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Chris Rhodes (profile), 22 Jul 2011 @ 7:48am

Re:
He's not only admitting that most patents are obvious, he's admitting that most ideas are independently invented.

If he's worried about big companies "stealing" the ideas of inventors, he just lost his own argument because he subsequently claims they haven't even seen the ideas they are supposed to have stolen.

Poor showing on his part.
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out_of_the_blue, 22 Jul 2011 @ 7:54am

Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Ad hom is all you've got. Well, vulgarisms too, standard cliches.

Oh, and a typo, while missing your own:
Couldn't get "passed", eh? When you meant "past".
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out_of_the_blue, 22 Jul 2011 @ 8:02am

Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
But you've been bothering, Tim, proving yourself a liar:

http://www.techdirt.com/articles/20110621/16071614792/misconceptions-free-abound-why-do-bra ins-stop-zero.shtml#c1869
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Anonymous Coward, 22 Jul 2011 @ 8:07am

Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Let me go after it then:

Google isn't a monopoly. If you think they are, you do not know the definition of the word.

Monopoly: The exclusive possession or control of the supply or trade in a commodity or service.
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Anonymous Coward, 22 Jul 2011 @ 8:12am

Re: Sad to see this...
Good on you. Here in East Texas where I live, patents are used as a looming threat. Either that, or they are there to destroy competition.

Guys like the Myhrvold are louder than anyone else about patent issues. They buy patents, or come up with broad ideas and use that as their main business model. These are the abuses that the tech community has a problem with. I consider myself part of the tech community, and I APPLAUD the kind of shit you do. I think it's fantastic. I also think that your voice has been drowned out by the constant yelling of inbred fucktards like Myhrvold.
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Dark Helmet (profile), 22 Jul 2011 @ 8:18am

Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Just out of complete morbididity, what exactly did I lie about?

And you're also wrong on passed vs. past, my friend. You use "passed" when it's the past-participle of the verb "pass" or to get by, which is how I used it. Past would be used if I was modifying another verb, but I wasn't. "Passed" was the verb....
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crade (profile), 22 Jul 2011 @ 8:35am

Re:
Reference? I don't know what company you work for, but the real reason around here is more because the search itself is a complete waste of time and money. And not a small waste either. It's not like it's one search, every tiny little step would require searching over and over and over and over until you find the needle in a haystack of obviousness that isn't patented. The work searching would eclipse all work done on reality.
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Anonymous Coward, 22 Jul 2011 @ 9:02am

Tim, you're wasting your breath. He doesn't understand that there's a difference between actual innovation and patent activity. He thinks they're the same thing.
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Anonymous Coward, 22 Jul 2011 @ 9:22am

Myhrvold cannot be serious. I think some introductions are in order:
http://www.trolltracker.org/2011/07/22/kettle-to-pot-you-mean-were-both-bl
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Anonymous Coward, 22 Jul 2011 @ 9:24am

I actually wonder if anyone has actually ever appeared in a courtroom representing IV.

Considering their number of licensees, they have sued very few people, and I'm not sure if any of those suits have actually required any courtroom appearances.
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Anonymous Coward, 22 Jul 2011 @ 9:35am

Re: Re:
Why bother calling it licensing, call it what it is... protection money. Shell 'licensing' companies could start selling 'protection' from being sued by the major corporations...

"Worried that your mom and pop software might be seen as competition by the big dogs in the industry? Sign up for our Corporate Protection package (only 25% of Gross Profits, or $1,000,000 dollars a year) and we'll guarantee that you will not be sued by our affiliated corporate sponsors (Google, Microsoft, Apple, Intellectual Ventures, blah, blah, blah, etc).

Come on, you should sign up now before something 'bad' accidentally happens to your company and you end up getting sued by all of our sponsors. You wouldn't want that to happen now would you?"

This message should be delivered by a large (at least 6'2", 300+ pounds) Italian guy named Guido...

This is my business model patent application, so pleas don't infringe on my business model patent, now I just need to locate a Guido and start raking in the bucks.
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Anonymous Coward, 22 Jul 2011 @ 9:54am

Re:
So you mean he's really just interested in 'shaking-down' the competition until they pay up, not actually litigating....

Inconceivable....

Yes, I'm using that word, and it means what I think it means...
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Mike Masnick (profile), 22 Jul 2011 @ 10:23am

Re:
I actually wonder if anyone has actually ever appeared in a courtroom representing IV.

They only just started suing a few months ago. There will be courtroom appearances soon enough. With lots more coming.
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Anonymous Coward, 22 Jul 2011 @ 11:12am

Re: Re:
I know IV would rather get licensing agreements without litigation, and they sue less than other nonpracticing patent holders, especially considering their size and the size of their patent portfolio.
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Anonymous Coward, 22 Jul 2011 @ 11:14am

Re: Myhrvold being wrong doesn't mean Mike is totally right...
"allowing monopolies (Google in that instance, a source of Mike's income) to exist AT ALL is to guarantee anti-consumer practices."

Fallacy of accident with an ad hominem thrown in between the parenthesis.
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Anonymous Coward, 22 Jul 2011 @ 11:15am

Re: Re:
"They only just started suing a few months ago."

I know

"There will be courtroom appearances soon enough. With lots more coming."

Well, we'll see. In comparison to other NPEs they certainly seem to prefer to get the deal done without litigation, so maybe they'll settle those cases before any actual courtroom appearances.

Anyway, I just thought the whole "Intellectual Ventures does nearly all of its business via settlement letters or courtroom appearances" was a little misleading, since I doubt they've had many (or maybe any) courtroom appearances, and only recently began suing folks after many years of licensing without litigation.
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Anonymous Coward, 22 Jul 2011 @ 11:17am

Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
He's using the EU definition of the term where if an overwhelming (read: more than 51%) majority of the consumers in a given market choose the same company even when there are other choices freely available it is 'monopoly.'
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A Dan (profile), 22 Jul 2011 @ 2:03pm

Re: Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
"morbididity"?
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Dark Helmet (profile), 22 Jul 2011 @ 2:20pm

Re: Re: Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Hmmm, that one I might have made up....
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A Dan (profile), 22 Jul 2011 @ 2:50pm

Re: Re: Re: Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
According to UrbanDictionary, someone else came up with it first. I guess you're no Shakespeare. Yet.
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Zot-Sindi, 22 Jul 2011 @ 6:15pm

Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
"OOTB will eventually end up in a psych ward somewhere after being caught humping lightposts in a gorilla suit"

well... that's not much longer, since he's already humping his keyboard in a gorilla suit everytime he makes a post
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Jose_X, 24 Jul 2011 @ 10:29am

Re: Re: What is needed
But copyright allows independent creation (software has worked this way). Basically mind your own and you are fine. Collaborate all you want. Patents are a different beast without independent invention (and this is not the only flaw by a long shot). How can you defend against the fact someone else might have done something first and patented it? There is no defense with current law if that person wants to exert monopoly (the patent troll). We would need a change in law or for the SCOTUS to wake up.

What makes this really bad is that the patents are broad. They are ideas. You don't get protection on an expression but on anything at all that is described by the patent. AND the inventiveness bar (and level of specificity) is extremely low: "non-obvious to a person having ordinary skill in the art". Key words: "non-obvious" and "ordinary". Do you know how many smart people (never mind geniuses) and even ordinary people working hard a patent meeting this low bar can block? Do you know how many software developers and electronics engineers there are? Have you heard of the "bell curve"? We are talking about a great many people that are above average in skill or in time they spend on a problem, all of whom can be beat to the punch by someone meeting a very low bar. Einstein would have been cut off by many with much wimpier (low detailed) ideas.

Also, as concerns independent invention. The key is promoting the progress, and this is achieved by collaboration, not by monopolies. Even allowing for independent invention is not enough to promote the progress because you would just be forcing everyone to try and hide in caves (something difficult to do if you want to be inspired or if you want to collaborate).

The SCOTUS needs to wake up and at least kill this software patent drain on our society. Software and other cheap process patents are very problematic and stifling.
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Jose_X, 24 Jul 2011 @ 10:40am

Re: Re: Re:
Part of the reason it boils down to protection money is because it's so incredibly likely that any complex product has several patents that it violates. The inventiveness bar to getting a patent is extremely low. If you have lots of money and pay many monkeys to crank out patents, you will cover many basic ideas and iterations that still meet this bar and will block much future progress. It's likely that the simple idea will be thought up before the complex one that takes off from it. A broad simpleton patent is likely because the simpler and more basic the more powerful it is and the easier it is to come up with that idea. And for the many complex products who "sneak" by, a patent troll just needs to look at where that project is headed and patent ahead of it a bit. Again, the bar is rather low, so you can mix existing art with a little tiny minutia of innovation really.
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Jose_X, 24 Jul 2011 @ 10:48am

Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
>> not bothered by a certain board game

Yes, there is no legal issue. Chez Mike's took a pass on handing out free burgers and fries to those coming in on the Reading Railroad, by way of Pennsylvania Avenue,or for a Board Walk.
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Jose_X, 24 Jul 2011 @ 11:00am

Re: Re: Re: Re: Re: Re: Re: Re: Myhrvold being wrong doesn't mean Mike is totally right...
Expect Dark Helmet to want to evade his $1,000,000 obligation to the rightful inventor,the $100,000 fine, and the 5 years behind bars for willful theft of property by arguing his was an "independent" invention.
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Jose_X, 24 Jul 2011 @ 11:06am

Re: Re:
Yup.
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Jose_X, 24 Jul 2011 @ 11:16am

Re: Sad to see this...
>> I work in the European patent industry as a litigator

Being from Europe, might you support patent rights as inalienable/natural/non-tradable rights?

From your comments, I think you might also support a patent law that cannot be used to end small-scale commercialization (or obviously, noncommercial use). The protection is against big companies with lots of resources and who go big. Anyone who has limited resources and stays small is just called healthy competition and won't "steal" any significant part of the market by definition. Also, at low scale, you lack certain economies of scale so are already disadvantaged. Meanwhile, the inventor can use the leverage to strike a deal with a major firm or to outright go big. The patent would be a patent of exclusivity only applicable at the large scale.

Also, wouldn't you agree that software is rather different than typical inventions? For example, you don't need a major investor (many hobbyist create decent software because they only need their heads (free), a computer (cheap), and internet access (very cheap)). Software is exceedingly complex, requiring use of many many ideas and components, ie, of collaboration and reuse.

And as a common sense change, would you also agree that the inventiveness bar should be rather high? In the US it is pathetically low: "non-obvious to a person having ordinary skill in the art".
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Jose_X, 24 Jul 2011 @ 11:21am

Re: Re: Re:
They also had a system in place I think I heard where the licensees are also investors (perhaps a bit like a pyramid scheme of sorts).

Phase two would be to sue those who did not or could not invest any significant amount in the firm (ie, where the majority of the money to pay back to the earlier paying licensees will come).

After phase one, you are very very large and ready to overwhelm virtually anyone.
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Jose_X, 24 Jul 2011 @ 11:24am

Re: Re: Re: Re:
I forgot to add. The licenses might be short-lived. This would allow many to sign up on easy terms initially (to help build a war chest). After raising the license fees, you might be more likely to find more that would resist simply paying up.
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Anonymous Coward, 25 Jul 2011 @ 4:55am

Re: Re: Sad to see this...
>> Being from Europe, might you support patent rights as inalienable/natural/non-tradable rights?

No, not really, although I support the alternative measures such as have been taken in the copyright/contract laws of several European countries to make it more difficult to deprive authors of their rights. This helps protect authors - and could be used to help inventors - against losing the rights too easily or all too one-sided transfer agreements.

>> From your comments, I think you might also support a patent law that cannot be used to end small-scale commercialization (or obviously, noncommercial use).

Yes, that is correct: non-commercial use is of course not covered by patents and as for small-scale commercialisation, this is called the 'de minimis' (smaller than significant) exception. I agree with several authors who have argued that such a defense should not just have a place in courts (for judges to with as they please) but also in the law (remember: apart from the UK, European countries put their legal rules in statutory, codified laws, making it less necessary to wade through endless amounts of case law.

>> Also, wouldn't you agree that software is rather different than typical inventions?

Yes, absolutely: I teach patent law and software protection at a technical university and I am myself an amateur programmer. Software IS different. EU patent law excludes software from patentability altogether. Sadly, the powerful lobby of tech-companies has led the European Patent Office to allow such patents regardless: the idea is to treat software inventions as any other, but with very high inventive step requirements and an 'person skilled in the art' who is a well-grounded software-developer. As long as that threshold is maintained (excluding all simple/obvious automatisation [is that a word, I don't think so] of known measures into software, we should still be largely alright.
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Miratus (profile), 25 Jul 2011 @ 4:56am

Re: Re: Sad to see this...
[Ooops, replied without logging in...]

>> Being from Europe, might you support patent rights as inalienable/natural/non-tradable rights?

No, not really, although I support the alternative measures such as have been taken in the copyright/contract laws of several European countries to make it more difficult to deprive authors of their rights. This helps protect authors - and could be used to help inventors - against losing the rights too easily or all too one-sided transfer agreements.

>> From your comments, I think you might also support a patent law that cannot be used to end small-scale commercialization (or obviously, noncommercial use).

Yes, that is correct: non-commercial use is of course not covered by patents and as for small-scale commercialisation, this is called the 'de minimis' (smaller than significant) exception. I agree with several authors who have argued that such a defense should not just have a place in courts (for judges to with as they please) but also in the law (remember: apart from the UK, European countries put their legal rules in statutory, codified laws, making it less necessary to wade through endless amounts of case law.

>> Also, wouldn't you agree that software is rather different than typical inventions?

Yes, absolutely: I teach patent law and software protection at a technical university and I am myself an amateur programmer. Software IS different. EU patent law excludes software from patentability altogether. Sadly, the powerful lobby of tech-companies has led the European Patent Office to allow such patents regardless: the idea is to treat software inventions as any other, but with very high inventive step requirements and an 'person skilled in the art' who is a well-grounded software-developer. As long as that threshold is maintained (excluding all simple/obvious automatisation [is that a word, I don't think so] of known measures into software, we should still be largely alright.
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staff (profile), 25 Jul 2011 @ 7:50am

legalizing theft
"patent troll"

Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: �we�re using your invention and we�re not going to pay�. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don�t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

For the truth about trolls, please see http://truereform.piausa.org.
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