Anatomy of a patent troll who wants $1000 from every scanner user in America: patents are totally, utterly broken
Joe Mullin's Ars Technica piece, "Patent trolls want $1,000—for using scanners," is an excellent, blood-boiling piece detailing the ease with which the US patent system can be used for pure extortion. A company -- its identity is shrouded in mystery and hidden behind several layers of obfuscation -- has a series of junk-patents allegedly covering any time anyone scans a document over a network and attaches the scan to an email. That may not, in fact, be what the patents say, but they're written in such absolutely tortured fashion that it's impossible to say.
The company -- and its many alphnumerical subsidiaries -- send invoices to small and medium business, threatening to sue them if they don't pay a per-employee license fee. Any company that fights risks having to pay triple damages for "willful infringement," though the companies that do fight win -- the patents are garbage, there's tons of invalidating prior art. But they still have to pay thousands in legal fees for the privilege of fending off these creeps.
When patent-troll apologists tell you that the patent system is necessary to protect "invention," ask them why the acceptable cost for this protection is allowing any unscrupulous scumbag to use the court system to extract windfalls from productive companies on the basis of having claimed to invented commonplace, existing, obvious technologies.
Vicinanza was able to get in touch with several other Project Paperless targets, suggesting that Project Paperless lawyers were indeed targeting companies based on the list.
Reactions to the letters varied. “Without question, some people were livid,” said Vicinanza. “Some of the smaller ones were scared out of their wits, in addition to being livid.”
Some were ready to fight back, while others had no intention of doing so. One mid-sized Atlanta business in the process of being acquired by a major Silicon Valley tech company paid the Project Paperless demand, no questions asked. Some companies just ignored the letters; others talked to an attorney. It isn’t clear the companies that did speak to their lawyers about the situation actually fared better.
“The patent attorneys typically have a whole different set of objectives,” said Vicinanza. “Now they’re in settlement mode. If the company does end up getting sued and the lawyer said ‘ignore them,’ a company could find themselves paying treble damages. Even my attorneys told me, settle it, you’re crazy to fight.”
Broadcast.com founder Mark Cuban and Minecraft creator Markus Persson have donated $500,000 to the Electronic Frontier Foundation to endow the "Mark Cuban Chair to Eliminate Stupid Patents," which will be occupied by an attorney tasked with hunting down and destroying crappy patents that have been recklessly granted by the US Patent and Trademark Office to unscrupulous "inventors" who claim to have invented things that were obvious and/or already extant; and to pay for activists to fight for substantive patent reform:
Cuban's $250,000 donation also funds the hire of a new attorney experienced in patent reform and high profile patent litigation: Daniel Nazer, who will join EFF in January as a Staff Attorney. The rest of EFF's seasoned intellectual property team includes Intellectual Property Director Corynne McSherry, Senior Staff Attorney Kurt Opsahl, and Staff Attorney Mitch Stoltz. The team is also assisted by EFF fellows Michael Barclay and Jason Schultz.
Persson's separate donation of $250,000 cements EFF's ability to tackle the systemic problems with software patents. With a blend of lawyers, technologists, and activists, EFF will push for reform in the courts, through activism campaigns, and by educating the public and politicians about what is wrong with software patents and what needs to change.
"Temporary fixes aren't good enough – we need deep and meaningful reform to protect software development and keep it as free and democratic as possible," said Persson, creator of the popular videogame Minecraft. "New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. This is a dangerous path we're on, and I'm glad to help EFF move us in the right direction."
Dave Ng writes, "Tomorrow, the Government of Canada will go through the second reading of Bill C-398. This is essentially important discussion over the fate of a law that would allow a measured approached for the production of life saving generic medicines within Canada. These generics are life saving in the sense that with this law in place, meds that are needed but currently far too costly in developing world economies (due to patent protection) can reach those who dignity, and frankly their lives, are at stake. I've written about this before, but have updated this piece to reflect the current policy situation. I strongly feel all Canadians should read about this Bill. My post starts:
If you agree with the sentiment of the piece, he strongly urges you to sign this quick petition, which in turn is sent to the folks in Parliament who need to hear your voice.
On Wednesday, a very important piece of policy will be discussed in parliament. It's called Bill C-398 and it deserves our attention. It seems that it has been challenging for some to see its merits, and so, I'd like to take moment to clarify what it's all about. It turns out that it's not just important -- the narrative is compelling as well: it has a rich history of political intrigue; it is a story where viruses factor in prominently; it has a plot that involves armies of angry grandmothers; and above it all, learning about Bill C-398 can literally save lives.
This week, David Kappos, head of the US Patent and Trademark Office, gave a speech at the Center for American Progress where he dismissed critics of the patent system, telling them to "give it a rest already." He insisted that his office was doing a great job, and was the center of American innovation, citing various stats to back up his claim.
On Ars Technica, Timothy Lee does a masterful job of fact-checking the patent boss's claims, driving a Mack truck through the logical flaws in his argument:
"Our patent system is the envy of the world," Kappos said. In his view, the key question in the patent debate is "do we demand today's innovation on the cheap via a weaker patent system that excludes subject matter, or do we moderate today's consumption with a strong patent system so our children enjoy greater innovations?"
This argument ducks the central question in the software patent debate: do patents, in fact, provide a net incentive for innovation in the software industry? Many entrepreneurs say that just the opposite is true: that the disincentive to innovation created by the threat of patent litigation dwarfs any positive incentive effects created by the ability for a firm to get patents of its own.
Empirical evidence backs this up. For example, in a 2008 book, the researchers James Bessen and Michael Meurer found that for nonchemical patents, the costs of patent litigation began to exceed the benefits of holding patents in the 1990s. Software and business patents were particularly prone to litigation.
More recent research has estimated that litigation by patent trolls costs the economy at least $29 billion per year, and that figure may be as high as $83 billion.
Steven Levy's Wired magazine feature on the cancerous multiplication of patents has all the hallmarks of Levy's work: excellent, eminently readable, human-scale tech reporting that makes important issues comprehensible.
The rise of trolls came as a result of a court system that seemed to favor them every step of the way. The vagueness of the underlying patents, the ridiculous ease with which plaintiffs could file a suit, the high costs defendants faced, and the unthinkable consequences of losing—all created an environment in which trolls were routinely rewarded for filing frivolous suits. But by the late 2000s, courts and the legislature began slowly chipping away at these factors. In 2003 a company called MercExchange successfully sued eBay over the provenance of its Buy It Now button. When eBay appealed, MercExchange took the common step of asking for an injunction against the defendant, which would have barred eBay from using the disputed technology as long as the case remained open. This was intended to prevent firms from profiting unfairly from someone else’s invention. But all too often it further pressured companies to settle quickly so they could go back to business. Courts could be quick to grant such injunctions, but when the issue came before the Supreme Court in 2006, the justices determined that more care should be taken with that drastic step. This precedent made it harder for challengers to threaten a defendant’s entire business.
(Image: Brock Davis)
Microsoft patents spying on you with your TV's camera and fining you if there are too many people watching
Kotaku's Luke Plunkett delves into a newly disclosed Microsoft patent that covers spying on people in their homes using cameras attached to their TVs, in order to levy fines against them for allowing too many people to watch movies at once:
Basically, when you buy or rent something like a movie, you’ll only be granted a “license” for a certain number of people to watch it. If Kinect detects more people in the room than you had a licence for, it can stop the movie, and even charge you extra. So if Microsoft has its way, you won’t just be renting movies any more. You’ll have to decide how many people are watching, and no doubt pay more. And if one extra person turns up to your movie night? So help you God, you are going to pay.
Of course, big companies patent all sorts of stupid ideas, many of which never get incorporated into products. But hey, now you know that researchers at Microsoft sit around spitballing ideas like, "Wouldn't it be awesome to spy on our customers in their homes so that we could fine them for having too many people over to watch movies? Wonder if anyone is Hollywood would give us preferential access to movies if we could promise them that they could do nose-counts of people in their own homes?"
End software patent wars by making it always legal to run code on a general-purpose computer - Richard Stallman
Writing in a special Wired series on patent reform, Free Software Foundation founder Richard Stallman proposes to limit the harms that patents do to computers, their users, and free/open development by passing a law that says that running software on a general purpose computer doesn't infringe patents. In Stallman's view, this would cut through a lot of the knottier problems in patent reform, including defining "software patents;" the fact that clever patent lawyers can work around any such definition; the risks from the existing pool of patents that won't expire for decades and so on. Stallman points out that surgeons already have a statutory exemption to patent liability -- performing surgery isn't a patent violation, even if the devices and techniques employed in the operation are found to infringe. Stallman sees this as a precedent that can work to solve the problem. Though it seems to me that it might be easier to define "performing surgery" than "operating a general purpose computer."
This approach doesn’t entirely invalidate existing computational idea patents, because they would continue to apply to implementations using special-purpose hardware. This is an advantage because it eliminates an argument against the legal validity of the plan. The U.S. passed a law some years ago shielding surgeons from patent lawsuits, so that even if surgical procedures are patented, surgeons are safe. That provides a precedent for this solution.
Software developers and software users need protection from patents. This is the only legislative solution that would provide full protection for all.
We could then go back to competing or cooperating … without the fear that some stranger will wipe away our work.
When you pull out a laser pointer and get your cat to chase the dot of light around your house*, you are using a patented method of cat exercise. The rights are owned by Kevin Amiss and Martin Abbott (both of Virginia), who patented it in the early 1990s. In the abstract, they describe this method of cat exercise as:
A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct.
In other words, they own the rights on doing this with ferrets, as well.
This might also be a good time to note an NPR story from this week, which documents IBM and Halliburton attempting to patent the process of patent trolling.
Method of exercising a cat: United States Patent 5443036
*Fact: This game becomes more fun if you have a rug. Just run the light up to the edge of the rug and then turn it off. The cat will become convinced that the little red light has gone under said rug and you will get to amuse yourself watching your cat try to lift the corner of something heavy without the use of opposable thumbs.
Thanks, Sam Ley!
Days after CEO Thorsten Heins promised that Research In Motion was not "in a death spiral," it lost a patent litigation case filed by Mformation, maker of remote wireless management software. The jury awarded Mformation $147.2m.
The verdict on Friday in a San Francisco federal court comes at a bad time for RIM, whose stock has fallen more than 70 percent in the past year as customers abandon the BlackBerry in favor of Apple's iPhone and a slew of devices using Google Inc's Android software. Amar Thakur, an attorney for Mformation, said the jury directed RIM to pay an $8 royalty for every BlackBerry device connected to RIM's enterprise server software, which brings the total award to $147.2 million. The verdict only covers U.S. sales through trial, Thakur said, and not future or foreign damages.
When people use the term "death spiral", it implies the existence of a useful aerodynamic characteristic influencing the descent. RIM's looks more like a death plunge.
Hugh sez, "Today, EFF launched a new campaign against software patents. In this campaign, we outline seven proposals that we think will address some of the greatest abuses of the current software patent system, including making sure that folks who independently arrived at an invention can’t be held liable for infringing on a software patent. But our campaign isn't just about our proposals — we also want to hear, and amplify, the views of the technical community. Many engineers, researchers, and entrepreneurs have suggested that reform is not enough and that software should not be patentable, period. We want to record these views, which is why our Defend Innovation campaign is designed to solicit comments from all of the stakeholders. We'll incorporate what we learn into a formal publication that we can take to Congress that reflects the views of innovators, academics, lawyers, CEOs, VCs, and everyone else who is concerned about the software patent system."
Defend Innovation (Thanks, Hugh!)
Ars Technica's Jon Brodkin has an in-depth look at the "Defensive Patent License," a kind of judo for the patent system created by my former EFF colleague Jason Schultz (who started EFF's Patent Busting Project) and my former USC colleague Jen Urban (who co-created the ChillingEffects clearinghouse). As you'd expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It's a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you're ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.
“The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing,” Schultz said today in Boston at the Usenix conference on cyberlaw issues. “As long as they don’t offensively sue anyone else in that network, everything’s cool.”
The commitment is both daunting in that it requires submitting all of a member company’s patents to the pool, and forgiving in that members can still sue the pants off non-members. Schultz said his team thought long and hard about the exact implementation of the Defensive Patent License.
The “all-in” provision was put in place to prevent companies from joining the network while only providing their lamest patents. The ability of DPL members to sue non-members, meanwhile, preserves the right to monetize inventions. It also keeps members on a level playing field with non-members.