Patent Trolls

[downunder]

Welcome to America, Spotify: Here's your first lawsuit.

Spotify has been available for a measly two weeks and it’s already getting its first taste of patent litigation. PacketVideo says that Spotify is infringing on its claims over streaming music. The San Diego-based company that launched more than 10 years ago and was one of the first to enable streaming video on mobile platforms.

While once one of the leaders of streaming, PacketVideo only has the right to file such litigation because it bought the patent covering “a device for the distribution of music information in digital form.” It did not originally file the patent or originate this innovation – it piggybacked off of a company it acquired which had ownership of the patent. This is incredibly common in the tech industry: Mergers and acquisitions gives manufacturers new rights and lay new claims, but there’s something about the timing and incredibly broad language of the patents that makes this feel like a dirty trick.

Sure, PacketVideo was at one point an innovator in this space, but streaming and subscription music models have only become so popular because of the work services like Pandora, Spotify, Mog, and a handful of others have done since then, as well as other digital progress that’s been made. Developments in bandwidth improvements and bringing record labels around were no easy tasks, and are two of the biggest reasons consumers are taking to the likes of Spotify.

PacketVideo, which is widely used for music and video streaming in a variety of products, very well could have just been waiting to pounce on Spotify once it launched in the US. The company wants an injunction against the just-introduced cloud-based music service as well as compensation for damages.

This is what Google meant when it said patents are killing innovation.

I know patent reform is a hot topic in the US - but with tech companies it just seems a race to buy as many as you can to stifle any future competition.

[keith]

I know patent reform is a hot topic in the US - but with tech companies it just seems a race to buy as many as you can to stifle any future competition.

So are you arguing that if a patent is sold to a third party it should become invalid?

The whole point of the patent system is to stifle future competition. After all if they didn't there wouldn't be much point to them .

[erooMynohtnA]

The problem, as I understand it, relates to software being patented rather than copyrighted. Unreasonably broad patents are awarded that never should be, and those ensure most startups will be sued into oblivion by the companies that collect these inappropriate patents with no intent to ever use the technology, only to sue those who do.

[OROD]

The patent system in the U.S. is horribly broken. Software patents in particular are a blight. The patent office seriously needs to do a better job not granting patents on ridiculously broad or obvious things. And yeah, it might be a good idea to not allow patents to be bought and sold, especially if the entity doing the buying doesnt plan on producing anything based on the patent.

As it is right now, patents are reducing innovation more than they are encouraging it. And they sure as hell dont stop anyone in China from copying anything and everything they see. Maybe Congress should get off their hands and do something about that. Oh, wait, they're really busy being useless in other more important ways. n/m

[jeff]

As somebody who has a software patent working its way through the system for years (I may retire before it gets accepted!) I take issue with the idea that software patents are inherently a "blight". If I come up with an idea, I should be able to exploit it commercially without the risk of other people immediately ripping off my innovation Copyrights don't provide the same protection, because somebody could copy the essence of whatever idea I invented without copying its expression. Whether my idea (which is actually quite specific) is a software construct or a new type of drug or widget is immaterial - there should be equivalent ability to protect it so the inventor can benefit. The problem is granting of patents to methods that are "unreasonably broad" - that's the complaint we can all agree to - not the existence of patents per se.

Yeah, the system is broken all right: they take so long that the moment (in my industry at least) in which they could be a differentiator can be long gone, and the nitwits have granted patents that are inexcusably broad, obvious, or in spite of obvious prior art. That patents have become an industry unto itself where trolls trap is a travesty (I'm going for "tr" alliteration), but not because the ideas being patented relate to software.

[erooMynohtnA]

What is the nature of your software that a sufficiently narrow patent could protect it, yet a copyright could not? (If you can talk about it)

[jeff]

<techie>
It's to use a feature of one OS (a diagnostic/introspection tool called DTrace) to measure progress of of arbitrary uninstrumented applications, and relate that to bottlenecks causing latency and to externally described service level objectives, such that a resource manager would shift CPU and other resources to meet the objectives.
</techie>

A particular implementation that implemented the intellectual property could be protected by copyright, so somebody couldn't simply copy the code and use it, but it would require patent protection to protect against somebody taking the idea and making their own implementation.

[Purple Fencer]

<techie>
It's to use a feature of one OS (a diagnostic/introspection tool called DTrace) to measure progress of of arbitrary uninstrumented applications, and relate that to bottlenecks causing latency and to externally described service level objectives, such that a resource manager would shift CPU and other resources to meet the objectives.
</techie>

A particular implementation that implemented the intellectual property could be protected by copyright, so somebody couldn't simply copy the code and use it, but it would require patent protection to protect against somebody taking the idea and making their own implementation.

You lost me about the middle of the first sentence....

[Nick]

If I understand correctly, and I probably don't, imagine that computer programs are dudes in a rowboat. Or chicks in a rowboat. That's hotter. ANYWAYS this thing looks for a chick who is lazy and not rowing enough and reports the chick who isn't doing work but is reaping the benefits of being rowed.

[jeff]

You lost me about the middle of the first sentence....

Well, then the "non-obvious" requirement is met

[keith]

The problem, as I understand it, relates to software being patented rather than copyrighted. Unreasonably broad patents are awarded that never should be, and those ensure most startups will be sued into oblivion by the companies that collect these inappropriate patents with no intent to ever use the technology, only to sue those who do.

The broadness of patents is hardly the issue, they are written that way to prevent someone looking at the invention* and then copying it with modifications. All patents are broad and cover any and all uses, modifications and applications etc etc ad infinitum. It isn't something specific to software.



*reverse engineering being a different case.

[erooMynohtnA]

The broadness of patents is hardly the issue

Yes it is?

[Gav]

The problem with software patents is that they patent a method.

I agree with others that there's already an existing mechanism for dealing with code - copyright. You should copyright code in the same way an author copyrights works of art.

The idea that you should be able to patent the method is ridiculous and is outside of the scope of what patents were originally created for. And is stifling competition. The only people who are actually benefiting are lawyers and the big commercial outfits who use it as a method of waging war on their competitors.

[OROD]

As somebody who has a software patent working its way through the system for years (I may retire before it gets accepted!) I take issue with the idea that software patents are inherently a "blight". If I come up with an idea, I should be able to exploit it commercially without the risk of other people immediately ripping off my innovation Copyrights don't provide the same protection, because somebody could copy the essence of whatever idea I invented without copying its expression. Whether my idea (which is actually quite specific) is a software construct or a new type of drug or widget is immaterial - there should be equivalent ability to protect it so the inventor can benefit. The problem is granting of patents to methods that are "unreasonably broad" - that's the complaint we can all agree to - not the existence of patents per se.

Yeah, the system is broken all right: they take so long that the moment (in my industry at least) in which they could be a differentiator can be long gone, and the nitwits have granted patents that are inexcusably broad, obvious, or in spite of obvious prior art. That patents have become an industry unto itself where trolls trap is a travesty (I'm going for "tr" alliteration), but not because the ideas being patented relate to software.

I'm sticking with my initial assessment. As it happens, I'm co-inventor on a software patent as well. In my case, however, the patent is owned by Microsoft. So I know a little about how companies like MS go about this. I also know how patent trolls exist like vampires sucking on the body of the software industry. They produce nothing, they only take, like parasites. In fact there was a story on NPR just last week about this subject.

I'm not saying that software patents in general dont have a place. If you have a unique, specific, and complex enough idea, then sure. But for the most part we get overly broad patents that should never be granted. Part of the problem is that patents are written in such a way as to obfuscate the inherent simplicity or generality of what's being patented. Hell, this applies to the patent with my name on it. Neither I nor my co-inventor wrote it. I just wrote up a document with the description of the process and submitted it with some images to illustrate it, and then some dude at MS wrote it up adding a bunch of other crap to fluff it up. Hell, most (or, all) of what we did that was patented was a fairly obvious way to do what we wanted done, and possibly had already been done in the past. I have no idea. But, I cant blame the patent office in this case, I wouldnt expect them to understand most of the stuff in that patent document.

[OROD]

Well, then the "non-obvious" requirement is met

Well I think you're being facetious here, but I should point out that it has to be non-obvious to someone knowledgeable in the field. Being non-obvious to PF is not enough.

[jeff]

Of course - that was just a little joke. And with any luck the patent reviewers won't harass PF over refereeing!

To your serious point: it seems that all complaints are about overly broad patents granted for "inventions" that are either obvious or prior art, which enables patent trolls. To that extent we're in agreement, and we both feel the same about the trolls. I just don't think the problem is specific to software. It's really a quality control problem on the part of the patent examiners who should be rejecting those applications.

[keith]

Yes it is?

Why? Seriously, the argument is that overly broad patents hamper innovation, yes? Of course if patents for software where limited to copyright level protections you might find that the enthusiasm for backing software startups would be reduced. After all you have two ways of making money in the current system.

As to no patents on methods - a manufacturing process is a method, a diagnostic test is a method; should these also be exempt from patents?

[keith]

It's really a quality control problem on the part of the patent examiners who should be rejecting those applications.

Sensible but can you imagine that ever getting through? Putting bureaucrats in charge of innovation!

Far better to really on the lawyers.

[OROD]

Far better to really on the lawyers.

I'm not sure if this last statement is to be taken as a joke or not.

[keith]

I'm not sure if this last statement is to be taken as a joke or not.

It is the American way.