9 ms·

When Patents Attack

435 points by simon_weber 15y ago

slug 15y ago
http://news.ycombinator.com/item?id=2795743 http://news.ycombinator.com/item?id=2795743 http://news.ycombinator.com/item?id=2796906 http://news.ycombinator.com/item?id=2796906
- AdamTReineke 15y ago
  Yup, it's a repost, but I'm okay with it because the MP3 is now available (came out Sunday @ 7pm). Take note, it's only available for free this week. After that, I think you can find it on iTunes or Amazon for a buck or three.
  - simon_weber 15y ago
    Yikes, sorry about that. My search for "npr patents" only brought up a mention in a comment.
    - georgefox 15y ago
      I'm glad you re-posted, actually, since the original links (when posted) didn't include audio.
almightygod 15y ago
I get anxious every time I read another patent troll story wondering when my weekend creations will end up costing me $ when they accidentally infringe on a patent because I roll out some seemingly ubiquitous feature. I'm deeply saddened by this mess and doubt it will ever be resolved. There is far to much money at stake now to revert things - money = lobbying.
- monochromatic 15y ago
  If it's any consolation, hearing from a patent troll means you've built a successful product.
  - deleted 15y ago
    [deleted]
  - Harkins 15y ago
    And that you now own as little of the profits from it as they think you can survive on.
  - MikeCapone 15y ago
    That's like saying that hearing from the Mafia means you now have a successful business. Hoorah, I guess...
  - smashing 15y ago
    Except you don't need to make a profit to be subject to a lawsuit. Hobby or weekend projects are just as liable.
    - monochromatic 15y ago
      Well sure. But from a practical standpoint, a patent troll is far less likely to bother with someone who doesn't have reasonably deep pockets.
      - georgemcbay 15y ago
        While this is generally right, it is also fairly common for patent trolls to go after some small fish they claim are violating a patent first to set a precedent of wins (or settlements) against opponents with weak legal war-chests. A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.
- mpk 15y ago
  > [...] they accidentally infringe on a patent I hate to break it to you, but chances are that you infringe on hundreds, if not more, patents in the US. Nobody can tell you what or even how many patents you infringe on, though. Nobody has read all the patents and every single one is subject to interpretation. An interpretation, I might add, that has to be validated by a legal system that really doesn't care about correctness, technical validation or even fairness. Patents in the software industry were historically held for defensive purposes. If you get large enough you start building a patent portfolio so other companies can't sue you because you'll sue them back. Everybody infringes on everybody else's absurd patents so suing is a Mutually Assured Destruction scenario (neither party wins and the lawyers take all the money that you could have invested in something worthwhile). Companies like Lodsys and Intellectual Ventures are different. They only have patents and they have no product. So if they sue you for patent infringement you can't sue back even if you have patents because they don't have a product and by definition can't infringe on your patents (if you have them). Patent fights between corporations are ugly enough, but are generally on a more-or-less level playing field. They happen in the courts between very well funded armies of lawyers. Suits between, say, Lodsys (money + patents + lawyers + no product) and independent developers (no money + no patents + no lawyers + product) are so vastly uneven and unfair that most developers will just give up before this ever comes before a court. Even if you want to do it on principle it'll bankrupt your life. Just giving up and finding safer markets with (maybe) lower profit margins seems like the obvious way to go for anybody.
  - dsimms 15y ago
    Also, there's value in sticking your head in the sand since if you know a patent exists but don't think you're infringing but then lose an infringement case, you're liable for treble damages (IIRC, IANAL, etc). Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''
  - firebones 15y ago
    I wonder if there will be a "Finlandization" of software development (concept courtesy of Chris Crawford's classic "Balance of Power" game) where small devs and dev shops align with larger, protective entities that provide defensive protection in exchange for association with the aura of small, indy developers. Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc. Eh...
- gord 15y ago
  Actually, there may be a moral responsibility on all of us developers/hackers to make it obvious to the general public how ridiculous most sw patents are. For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense. ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.
  - semiquaver 15y ago
    Listen to the this american life story, they mention a piece of software used by patent lawyers which does basically that.
- dodo53 15y ago
  If you infringe a patent - isn't possible to get a fixed cost or is it a fraction of earnings? Can you be more out of pocket than what you earn? ie can you do [1. Possibly cursory layperson check of existing patents ] 2. Weekend / hobby / small-scale project 3. Oh! People like it, it's making money / scaling! 4. Get lawyer in to do proper patent search before continuing? (not that this is ideal either)
  - Natsu 15y ago
    You can agree to license it for whatever the other party is willing to license it for. It's the court costs that can pretty much bankrupt you.
danvideo 15y ago
it's time this issue got more exposure than just the tech world... reporters aren't worried about their company being sued out from under them.
preinheimer 15y ago
As a co-founder of a startup, my most worrying thoughts are not finding customers or improving the product. They're "when will I get a scary legal letter that asks for millions over a patent I've never heard of".
- deleted 15y ago
  [deleted]
- null_para 15y ago
  I agree with you and I feel the same! As a co-founder, I recently did risk analysis for next iteration of our product; for everything we had risk mitigation strategy in place. But for "getting sued"; we will be screwed and shut down the business (if its hundreds of thousands dollar claim)
- kenjackson 15y ago
  Really? I never ever think about patents. Ever (except when reading HN). It's just not a real day to day issue.
  - cbetz 15y ago
    The biggest part of the problem is that companies (and founders) are forbidden from speaking up after licensing deals are made. Perhaps you could post anonymously, but you'd still be violating the NDA in spirit and you'd be punished if discovered. In other words, if three companies down the block signed millions away to Intellectual Ventures, you would have no idea. Maybe the risk is overblown. Unfortunately we have no idea of knowing. They try to hammer this point home in the podcast. It occurred to me there is simple legislation that might chip away at all this shadiness: Pass a law that forbids NDAs in patent licensing deals.
    - kenjackson 15y ago
      You'd know it if it happpened. Management may not do a PR, but people talk. Remember the lawsuit and NDA agreement are proceeded by talks. At the very least you'd know they were approached and then suddenly went silent on the matter. If it did work it would be the greatest conspiracy ever pulled off. A company extracting a billion hostile dollars and people not even posting on anonymous sites? So not likely. The genius of IV's NDAs isn't that they have millions of companies paying them, but that they can create the mythology that they might. And you might be next. I'm literally about 100x more worried that my architect gets hit by a bus than I am of being sued over patents.
clc 15y ago
I actually just heard this story over NPR Radio. It's concerning to think about how companies like this can strong-arm smaller startups. But at the same time that doesn't mean that we should hide in fear. We've got to keep on doing what we do best: developing innovative products and solutions for users everywhere. Torpedoes be damned.
andreyf 15y ago
In the audio version, they mention several times that patent law is founded in the constitution. I wish they would actually read it though, as it's not very complicated: The Congress shall have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
- loup-vaillant 15y ago
  Oddly enough, that is not enough to make patent law mandatory by the constitution: the text you cite has the structure "The congress shall have Power To […] promote X by using the mean Y". First, it is not written that the congress has to exercise that power. Second, what if Y does not promote X? What if it hinders X? It is written that the congress is allowed to promote X (through Y), not doing nothing about X (through Y) and certainly not hinder X (through Y). I understand how one might assume that a patent system is a good (best? only?) way to promote the Progress of Science and useful Arts, especially back then. Nevertheless, I think this was a mistake: they wrote the mean in the same stone they did the goal. (Of course, goals themselves can turn out to be means to higher purposes, but in this case it is quite obvious from the beginning.)
enduser 15y ago
Is this an issue for companies owned by HNers? Poll: http://news.ycombinator.com/item?id=2809951 http://news.ycombinator.com/item?id=2809951
lukejduncan 15y ago
Intellectual Ventures recently posted a rebuttal http://intven.com/newsroom/insights/11-07-25/Disruption_Invites_Controversy.aspx http://intven.com/newsroom/insights/11-07-25/Disruption_Invi... They like to say things like "ideas have value" and that they are "disruptive." Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong. And who, or what, do they think they are disrupting? Isn't IV the incarnation of the status quo? Reading their website feels like reading a politicians...
- lukejduncan 15y ago
  it took me a minute to find it, but here is the "ideas have value" quote http://www.geekwire.com/2011/intellectual-ventures-responds-american-life-expos-we-fundamentally-disagree http://www.geekwire.com/2011/intellectual-ventures-responds-...
  - lukesandberg 15y ago
    heres a quote: "Many of the world’s leading technology companies are beginning to recognize that patents are a strategic asset worth billions of dollars. " At least in the technology companies ive worked for, the strategic value of patents comes purely from the fact that having them can keep frivolous lawsuits at bay.
  - Produce 15y ago
    I guess they've never heard the phrase - "ideas are a dime a dozen".
- loup-vaillant 15y ago
  > We at Intellectual Ventures fundamentally disagree with [the notion that patents have a negative impact on innovation], which flies in the face of centuries of evidence. I know of a rather serious source that says patents are a net evil, baked up by… centuries of evidence: http://www.dklevine.com/general/intellectual/against.htm http://www.dklevine.com/general/intellectual/against.htm About the values of ideas, it is quite evident that most patents' ideas are extremely valuable. The more obvious the idea, the more valuable it is. The artificial scarcity created by the patent system merely shows how valuables simple ideas actually are. Imagine for instance that breathable air becomes scarce. How much would you be willing to pay for it if it meant your life?
vacri 15y ago
Admittedly I stopped reading the article when I got to "IV isn't a patent troll, we're simply just a big patent market connecting suppliers to consumers" No, you're not simply a 'market'. A market doesn't come and sue you for buying your milk somewhere else.
- zinkem 15y ago
  You might want to finish the article.
  - vacri 15y ago
    I get that the article is against the patent process, and the downmodders don't seem to get that I was referring to IV's characterisation of itself, not npr's characterisation of IV - I thought it was clear where I was directing it due to the phrase "you're not a market". I wasn't using 'patent troll' or any of the other terminology. I was pointing out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000 word article. I'm now about halfway through and have scanned the rest of the article... and I don't see anything that invalidates my claim above. IV is not the 'market' that it says it is. If anything, I am supporting what npr is saying. HN moderation is weird.
    - evmar 15y ago
      The subject of article is more or less how IV's reasoning is flawed. Picking a quote from the beginning and saying "that is flawed" is just echoing the bulk of the article. I would guess your downmodders think you're not adding to the discussion.
      - vacri 15y ago
        I don't buy that argument - why aren't many of the other short comments in this page getting the same treatment when they're not adding to the discussion either?
        15y ago
parallel 15y ago
Is this sort of thing an issue in other countries. I'm a tech founder in Australia. I don't think we have the same level of anxiety about being sued for unknowingly breaching a software patent. Can anyone comment on this? Is our patent system different or can we expect to see our industry similarly affected in the future?
- alkimie 15y ago
  Patents are territorial. That is, unless someone has filed an application (or designated Australia as part of a national phase of a Patent Cooperation Treaty (PCT) patent application, nothing will issue in Australia. Generally, companies try to figure out where their likely markets are, and where the expense can be justified. Australia is becoming more and more relevant, but it was not nearly as common to file there a few years ago. (Full disclosure, I'm a U.S. patent attorney (but I'm actually a good guy!).)
  - AgentConundrum 15y ago
    That's a bit reassuring to me. I'm not anyone special, but I've got some ideas I want to code up that likely won't get anyones attention. After seeing patent topics popping up here on HN so often, I'm seriously terrified of even being a programmer anymore. This stuff makes me want to give up and find a job digging ditches or something, Office Space style. But, I'm Canadian. Your comment makes me feel a bit safer, but I have the feeling that little things like hosting the site in the US or collecting money from Google AdSense or an Amazon Affiliates account could make me horribly liable. I know that rationally this practically a non-issue, since I'm such a low value target, but the fear is still there, lurking beneath the surface, scaring the hell out of me.
dangrover 15y ago
What if you could pay for some kind of insurance product to protect against patent lawsuits? Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?
- phillmv 15y ago
  >What if you could pay for some kind of insurance product to protect against patent lawsuits? Heh. Programmers' malpractice insurance. The premiums would be ridiculous, though. >Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario? That's more or less the shitck Intellectual Ventures uses to justify that they're not patent trolls (they point it out in TFA). In the podcast they point out that their need for a good ROI doesn't allow them to sit idle. How do you defend against patent trolls, though? It's not like they make anything that can be infringed on. Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
  - pyrhho 15y ago
    > Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for. Nice idea! > It's not like they make anything that can be infringed on. Or, require the patent holder to prove 'damages'. Since they don't make anything and don't actually use their patents there are no damages lost.
- cageface 15y ago
  You can. rpxcorp.com
daimyoyo 15y ago
There is a simple solution to this problem. Make maintenance fees payable yearly, and make a requirement of getting the patent renewed proof that you're actually using it. People filing patents only to sit and wait until someone else infringes is a cancer on American innovation.
- thedragon4453 15y ago
  Definitely like the second part. It would seem that if you aren't actually using your patent, the patent's purpose is lost. I also think there should be oversight on the patents that are granted. Right now you can patent something that has 20 years of prior art with relative ease. That's silly.
  - dredmorbius 15y ago
    There _is_ the doctrine of laches, a defense in the case of suits brought after a long period of non-enforcement. As with most defenses, this entails lawyering up and going to court, part of what makes this process so expensive. There were also reforms in the 1990s which extended the life of a patent (from 17 years to 20), but started the clock at filing time, not grant. This was due to a slew of patents issued to Jerome Lemelson which he kept appealing to the patent office. These were eventually granted, a practice termed "submarine patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties (he's also got a wing of the Smithsonian named after him). But the system's still pretty messed up.
dedicated 15y ago
I'm curious as who are the VC's who invested in IV? Are these typical tech VC's, or are they more of the private equity type that relish in making money off these so called opportunities or arbitrages that don't require actual productive work.
pom 15y ago
For some reason, every time I read the name Intellectual Ventures I sound it in my mind as Intellectual Vultures.
adorton 15y ago
One of the best TAL episodes in recent memory. The story mentions that modern patents (specifically software patents) lack the novelty that the patent system was originally designed to encourage. Did patent laws change at some point in history to allow this to happen?
- kogus 15y ago
  The audio version of the story mentions that it was a decision by the patent office, not specific legislation. Sometime in the 1980s they went from copyrighting software (i.e., treating it like literature or art) to patenting it.
  - bgruber 15y ago
    No, the audio version mentions that the patent office used to operate on the principle that software could be copyrighted but not patented, but sometime in the 80s the judiciary indicated in several instances that was not the case and the patent office complied.
- MartinCron 15y ago
  One of the best TAL episodes in recent memory. Absolutely. While listening to it, one of my thoughts was "I can't wait to read the discussion of this over on HN". I'm going to use this opportunity to remind people to donate to their local public radio station, TAL/WBEZ Chicago, or both.
cpenner461 15y ago
Serious question: can/do patent trolls go after open source projects? I'm not thinking of businesses who sell/support open source software (e.g. Red Hat), but would it be a viable "defense" for an indie dev to simply release their project as open source? I've got an idea for a "weekend project" or two that I could conceivably make a few bucks with, or I could release them as open source so that I can at least benefit from the idea without worrying (as much?) about being sued for violating a patent. On the one hand if I'm not making any money from it one would think that the trolls would go elsewhere, but then again... Just looking for a general idea here, I'm not looking for official legal advice here... :-)
- bergie 15y ago
  The Debian patent FAQ is pretty good for this: http://www.debian.org/reports/patent-faq http://www.debian.org/reports/patent-faq
  - cpenner461 15y ago
    Very useful - thanks for the link!
spenrose 15y ago
Can someone please tell me what Myrvolhd actually DID when he was leading MS Research? I remember no innovations from MS in that era.
- gruseom 15y ago
  He wrote long memos and famously pooh-poohed the internet. http://www.kenauletta.com/themicrosoftprovocateur.html http://www.kenauletta.com/themicrosoftprovocateur.html Correction: this was before he was sent (banished, the article makes it seem) to Microsoft Research.
- dredmorbius 15y ago
  When you look up who's at MSFT Research (and there are some truly great minds there -- Leslie Lamport of LaTeX fame for one, I find a certain credence to the theory posited by some that its main function was to take talent off the market.
deleted 15y ago
[deleted]
dstein 15y ago
As the article only touched on, this is precisely why the next computing giant will not come from Silicon Valley or anywhere in the US. The current software patent situation has ensured it.
- skrebbel 15y ago
  I doubt it. The next computing giant will want to sell in the US, too. Patent laws don't cover where you're from, they cover where you sell (or where you give away free stuff but make money from ads). You'd have to block all US visitors from your site to avoid the US patent system. I've been thinking about workarounds. Could a "I confirm that I'm from Malaysia" button do the trick?
  - meow 15y ago
    May be the future companies will price products higher in US markets.
moultano 15y ago
Throwing an idea out there: Software patents should last no more than 1 year. If you come up with something worth patenting, you get a year lead on competitors. That's it.
- mckoss 15y ago
  I think a better solution is a mandatory licensing process. The threat of absolute exclusion is too damaging to the industry. AND, the patent office needs to start DOING THEIR JOB and stop granting patents for obvious inventions.
  - MartinCron 15y ago
    Honestly, if the patent office would just do their job and not grant bogus patents based on obvious inventions or inventions with prior art, that would probably be enough. Software patents aren't the problem, bad software patents are the problem.
    - Terry_B 15y ago
      Can you name an example of a good software patent?
      - recoiledsnake 15y ago
        http://math.uic.edu/~jlong/MCS425Fall10/RSA-patent.pdf http://math.uic.edu/~jlong/MCS425Fall10/RSA-patent.pdf
      - MartinCron 15y ago
        As long as it meets the non-obvious and no-prior-art tests, I don't see a problem with the concept. Something like mouse gestures feel like a patentable innovation worthy of a temporary government-enforced monopoly.
        Kliment 15y ago
daniel-cussen 15y ago
It's interesting to see more mainstream media outlets (npr and This American Life (public radio?)) talk more about patent trolling lately. As of a few weeks ago lay people I talked to had no idea programmers generally disliked patents.
vinced 15y ago
The solution is very simple. Create a simple how to patent template website, then have every developer apply for patents on any business and software process that they can dream of. Within two years you'll choke the entire system into change. Make it impossible for anyone to do anything. 1st idea, the collection, aggregation, and transmittal of electronic messaging data during a waste evacuation process. (i.e. checking your email while on the toilet)
- Symmetry 15y ago
  To the extent that the system is choked it means that the Patent Office grants patents without having the time to look at them, not that a backlog develops. You might notice that this has already happened.
  - vinced 15y ago
    of course that is happening. Even worse is that the people examining the patents are not best and under qualified to review software patents.
danshapiro 15y ago
Did anyone else click the "someone patented toast" link and actually read the claims? It's for toasting bread at 2,500-4,500 degrees, with specialized infrared ovens.
- joshmaker 15y ago
  http://home.howstuffworks.com/toaster1.htm http://home.howstuffworks.com/toaster1.htm
- cma 15y ago
  2500-4500 degrees sounds impressive, I can't believe how NPR manipulated me! Wait... http://www.vendian.org/mncharity/dir3/blackbody/ http://www.vendian.org/mncharity/dir3/blackbody/ Pretty sure a standard household toaster is well into that range.
- joejohnson 15y ago
  "specialized infrared ovens" That's cute. Toasters, you mean? Toasters work by heating a coil to somewhere in that range (2.5k - 4.5k degrees), and then the radiation from the coils toasts the bread.
- VMG 15y ago
  I have read somewhere that patent description are often deceitful. The abstract can be intentionally misleading and the wording in your case seems to be too.
crizCraig 15y ago
Poll: What's you take on Intellectual Ventures with regard to innovation? http://wepolls.com/1510009 http://wepolls.com/1510009
dredmorbius 15y ago
If you're looking for an organization which is actively working to fix the software patent problem, you can look to End Software Patents: http://endsoftpatents.org/ http://endsoftpatents.org/
perfunctory 15y ago
Is it fair to call Intellectual Ventures an arms dealer.
kanetrain 15y ago
Well, this was timely. http://news.ycombinator.com/item?id=2808110 http://news.ycombinator.com/item?id=2808110
shmulkey18 15y ago
Two very interesting Econtalk podcasts on IP issues and economics, both of which argue that innovative industries can thrive in legal regimes which offer very limited IP protections: Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm... Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.html http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm... pg groupies may also want to check out the Econtalk interview with Paul Graham. Finding it is left as an excercise for the reader, primarily to encourage people to check out this amazing resource.
arvinjoar 15y ago
I wonder why people waste their time and money on defending themselves in court, why don't they hire Tony Soprano to fix their problem instead? It would be a pretty appropriate response.

435 points by simon_weber 15y ago

slug 15y ago

http://news.ycombinator.com/item?id=2795743 http://news.ycombinator.com/item?id=2795743 http://news.ycombinator.com/item?id=2796906 http://news.ycombinator.com/item?id=2796906

AdamTReineke 15y ago
Yup, it's a repost, but I'm okay with it because the MP3 is now available (came out Sunday @ 7pm). Take note, it's only available for free this week. After that, I think you can find it on iTunes or Amazon for a buck or three.
- simon_weber 15y ago
  Yikes, sorry about that. My search for "npr patents" only brought up a mention in a comment.
  - georgefox 15y ago
    I'm glad you re-posted, actually, since the original links (when posted) didn't include audio.

almightygod 15y ago

I get anxious every time I read another patent troll story wondering when my weekend creations will end up costing me $ when they accidentally infringe on a patent because I roll out some seemingly ubiquitous feature. I'm deeply saddened by this mess and doubt it will ever be resolved. There is far to much money at stake now to revert things - money = lobbying.

monochromatic 15y ago
If it's any consolation, hearing from a patent troll means you've built a successful product.
- deleted 15y ago
  [deleted]
- Harkins 15y ago
  And that you now own as little of the profits from it as they think you can survive on.
- MikeCapone 15y ago
  That's like saying that hearing from the Mafia means you now have a successful business. Hoorah, I guess...
- smashing 15y ago
  Except you don't need to make a profit to be subject to a lawsuit. Hobby or weekend projects are just as liable.
  - monochromatic 15y ago
    Well sure. But from a practical standpoint, a patent troll is far less likely to bother with someone who doesn't have reasonably deep pockets.
    - georgemcbay 15y ago
      While this is generally right, it is also fairly common for patent trolls to go after some small fish they claim are violating a patent first to set a precedent of wins (or settlements) against opponents with weak legal war-chests. A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.
mpk 15y ago
> [...] they accidentally infringe on a patent I hate to break it to you, but chances are that you infringe on hundreds, if not more, patents in the US. Nobody can tell you what or even how many patents you infringe on, though. Nobody has read all the patents and every single one is subject to interpretation. An interpretation, I might add, that has to be validated by a legal system that really doesn't care about correctness, technical validation or even fairness. Patents in the software industry were historically held for defensive purposes. If you get large enough you start building a patent portfolio so other companies can't sue you because you'll sue them back. Everybody infringes on everybody else's absurd patents so suing is a Mutually Assured Destruction scenario (neither party wins and the lawyers take all the money that you could have invested in something worthwhile). Companies like Lodsys and Intellectual Ventures are different. They only have patents and they have no product. So if they sue you for patent infringement you can't sue back even if you have patents because they don't have a product and by definition can't infringe on your patents (if you have them). Patent fights between corporations are ugly enough, but are generally on a more-or-less level playing field. They happen in the courts between very well funded armies of lawyers. Suits between, say, Lodsys (money + patents + lawyers + no product) and independent developers (no money + no patents + no lawyers + product) are so vastly uneven and unfair that most developers will just give up before this ever comes before a court. Even if you want to do it on principle it'll bankrupt your life. Just giving up and finding safer markets with (maybe) lower profit margins seems like the obvious way to go for anybody.
- dsimms 15y ago
  Also, there's value in sticking your head in the sand since if you know a patent exists but don't think you're infringing but then lose an infringement case, you're liable for treble damages (IIRC, IANAL, etc). Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''
- firebones 15y ago
  I wonder if there will be a "Finlandization" of software development (concept courtesy of Chris Crawford's classic "Balance of Power" game) where small devs and dev shops align with larger, protective entities that provide defensive protection in exchange for association with the aura of small, indy developers. Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc. Eh...
gord 15y ago
Actually, there may be a moral responsibility on all of us developers/hackers to make it obvious to the general public how ridiculous most sw patents are. For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense. ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.
- semiquaver 15y ago
  Listen to the this american life story, they mention a piece of software used by patent lawyers which does basically that.
dodo53 15y ago
If you infringe a patent - isn't possible to get a fixed cost or is it a fraction of earnings? Can you be more out of pocket than what you earn? ie can you do [1. Possibly cursory layperson check of existing patents ] 2. Weekend / hobby / small-scale project 3. Oh! People like it, it's making money / scaling! 4. Get lawyer in to do proper patent search before continuing? (not that this is ideal either)
- Natsu 15y ago
  You can agree to license it for whatever the other party is willing to license it for. It's the court costs that can pretty much bankrupt you.

danvideo 15y ago

it's time this issue got more exposure than just the tech world... reporters aren't worried about their company being sued out from under them.

preinheimer 15y ago

As a co-founder of a startup, my most worrying thoughts are not finding customers or improving the product. They're "when will I get a scary legal letter that asks for millions over a patent I've never heard of".

deleted 15y ago
[deleted]
null_para 15y ago
I agree with you and I feel the same! As a co-founder, I recently did risk analysis for next iteration of our product; for everything we had risk mitigation strategy in place. But for "getting sued"; we will be screwed and shut down the business (if its hundreds of thousands dollar claim)
kenjackson 15y ago
Really? I never ever think about patents. Ever (except when reading HN). It's just not a real day to day issue.
- cbetz 15y ago
  The biggest part of the problem is that companies (and founders) are forbidden from speaking up after licensing deals are made. Perhaps you could post anonymously, but you'd still be violating the NDA in spirit and you'd be punished if discovered. In other words, if three companies down the block signed millions away to Intellectual Ventures, you would have no idea. Maybe the risk is overblown. Unfortunately we have no idea of knowing. They try to hammer this point home in the podcast. It occurred to me there is simple legislation that might chip away at all this shadiness: Pass a law that forbids NDAs in patent licensing deals.
  - kenjackson 15y ago
    You'd know it if it happpened. Management may not do a PR, but people talk. Remember the lawsuit and NDA agreement are proceeded by talks. At the very least you'd know they were approached and then suddenly went silent on the matter. If it did work it would be the greatest conspiracy ever pulled off. A company extracting a billion hostile dollars and people not even posting on anonymous sites? So not likely. The genius of IV's NDAs isn't that they have millions of companies paying them, but that they can create the mythology that they might. And you might be next. I'm literally about 100x more worried that my architect gets hit by a bus than I am of being sued over patents.

clc 15y ago

I actually just heard this story over NPR Radio. It's concerning to think about how companies like this can strong-arm smaller startups. But at the same time that doesn't mean that we should hide in fear. We've got to keep on doing what we do best: developing innovative products and solutions for users everywhere. Torpedoes be damned.

andreyf 15y ago

In the audio version, they mention several times that patent law is founded in the constitution. I wish they would actually read it though, as it's not very complicated: The Congress shall have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

loup-vaillant 15y ago
Oddly enough, that is not enough to make patent law mandatory by the constitution: the text you cite has the structure "The congress shall have Power To […] promote X by using the mean Y". First, it is not written that the congress has to exercise that power. Second, what if Y does not promote X? What if it hinders X? It is written that the congress is allowed to promote X (through Y), not doing nothing about X (through Y) and certainly not hinder X (through Y). I understand how one might assume that a patent system is a good (best? only?) way to promote the Progress of Science and useful Arts, especially back then. Nevertheless, I think this was a mistake: they wrote the mean in the same stone they did the goal. (Of course, goals themselves can turn out to be means to higher purposes, but in this case it is quite obvious from the beginning.)

enduser 15y ago

Is this an issue for companies owned by HNers? Poll: http://news.ycombinator.com/item?id=2809951 http://news.ycombinator.com/item?id=2809951

lukejduncan 15y ago

Intellectual Ventures recently posted a rebuttal http://intven.com/newsroom/insights/11-07-25/Disruption_Invites_Controversy.aspx http://intven.com/newsroom/insights/11-07-25/Disruption_Invi... They like to say things like "ideas have value" and that they are "disruptive." Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong. And who, or what, do they think they are disrupting? Isn't IV the incarnation of the status quo? Reading their website feels like reading a politicians...

lukejduncan 15y ago
it took me a minute to find it, but here is the "ideas have value" quote http://www.geekwire.com/2011/intellectual-ventures-responds-american-life-expos-we-fundamentally-disagree http://www.geekwire.com/2011/intellectual-ventures-responds-...
- lukesandberg 15y ago
  heres a quote: "Many of the world’s leading technology companies are beginning to recognize that patents are a strategic asset worth billions of dollars. " At least in the technology companies ive worked for, the strategic value of patents comes purely from the fact that having them can keep frivolous lawsuits at bay.
- Produce 15y ago
  I guess they've never heard the phrase - "ideas are a dime a dozen".
loup-vaillant 15y ago
> We at Intellectual Ventures fundamentally disagree with [the notion that patents have a negative impact on innovation], which flies in the face of centuries of evidence. I know of a rather serious source that says patents are a net evil, baked up by… centuries of evidence: http://www.dklevine.com/general/intellectual/against.htm http://www.dklevine.com/general/intellectual/against.htm About the values of ideas, it is quite evident that most patents' ideas are extremely valuable. The more obvious the idea, the more valuable it is. The artificial scarcity created by the patent system merely shows how valuables simple ideas actually are. Imagine for instance that breathable air becomes scarce. How much would you be willing to pay for it if it meant your life?

vacri 15y ago

Admittedly I stopped reading the article when I got to "IV isn't a patent troll, we're simply just a big patent market connecting suppliers to consumers" No, you're not simply a 'market'. A market doesn't come and sue you for buying your milk somewhere else.

zinkem 15y ago
You might want to finish the article.
- vacri 15y ago
  I get that the article is against the patent process, and the downmodders don't seem to get that I was referring to IV's characterisation of itself, not npr's characterisation of IV - I thought it was clear where I was directing it due to the phrase "you're not a market". I wasn't using 'patent troll' or any of the other terminology. I was pointing out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000 word article. I'm now about halfway through and have scanned the rest of the article... and I don't see anything that invalidates my claim above. IV is not the 'market' that it says it is. If anything, I am supporting what npr is saying. HN moderation is weird.
  - evmar 15y ago
    The subject of article is more or less how IV's reasoning is flawed. Picking a quote from the beginning and saying "that is flawed" is just echoing the bulk of the article. I would guess your downmodders think you're not adding to the discussion.
    - vacri 15y ago
      I don't buy that argument - why aren't many of the other short comments in this page getting the same treatment when they're not adding to the discussion either?
      - 15y ago

parallel 15y ago

Is this sort of thing an issue in other countries. I'm a tech founder in Australia. I don't think we have the same level of anxiety about being sued for unknowingly breaching a software patent. Can anyone comment on this? Is our patent system different or can we expect to see our industry similarly affected in the future?

alkimie 15y ago
Patents are territorial. That is, unless someone has filed an application (or designated Australia as part of a national phase of a Patent Cooperation Treaty (PCT) patent application, nothing will issue in Australia. Generally, companies try to figure out where their likely markets are, and where the expense can be justified. Australia is becoming more and more relevant, but it was not nearly as common to file there a few years ago. (Full disclosure, I'm a U.S. patent attorney (but I'm actually a good guy!).)
- AgentConundrum 15y ago
  That's a bit reassuring to me. I'm not anyone special, but I've got some ideas I want to code up that likely won't get anyones attention. After seeing patent topics popping up here on HN so often, I'm seriously terrified of even being a programmer anymore. This stuff makes me want to give up and find a job digging ditches or something, Office Space style. But, I'm Canadian. Your comment makes me feel a bit safer, but I have the feeling that little things like hosting the site in the US or collecting money from Google AdSense or an Amazon Affiliates account could make me horribly liable. I know that rationally this practically a non-issue, since I'm such a low value target, but the fear is still there, lurking beneath the surface, scaring the hell out of me.

dangrover 15y ago

What if you could pay for some kind of insurance product to protect against patent lawsuits? Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?

phillmv 15y ago
>What if you could pay for some kind of insurance product to protect against patent lawsuits? Heh. Programmers' malpractice insurance. The premiums would be ridiculous, though. >Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario? That's more or less the shitck Intellectual Ventures uses to justify that they're not patent trolls (they point it out in TFA). In the podcast they point out that their need for a good ROI doesn't allow them to sit idle. How do you defend against patent trolls, though? It's not like they make anything that can be infringed on. Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
- pyrhho 15y ago
  > Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for. Nice idea! > It's not like they make anything that can be infringed on. Or, require the patent holder to prove 'damages'. Since they don't make anything and don't actually use their patents there are no damages lost.
cageface 15y ago
You can. rpxcorp.com

daimyoyo 15y ago

There is a simple solution to this problem. Make maintenance fees payable yearly, and make a requirement of getting the patent renewed proof that you're actually using it. People filing patents only to sit and wait until someone else infringes is a cancer on American innovation.

thedragon4453 15y ago
Definitely like the second part. It would seem that if you aren't actually using your patent, the patent's purpose is lost. I also think there should be oversight on the patents that are granted. Right now you can patent something that has 20 years of prior art with relative ease. That's silly.
- dredmorbius 15y ago
  There _is_ the doctrine of laches, a defense in the case of suits brought after a long period of non-enforcement. As with most defenses, this entails lawyering up and going to court, part of what makes this process so expensive. There were also reforms in the 1990s which extended the life of a patent (from 17 years to 20), but started the clock at filing time, not grant. This was due to a slew of patents issued to Jerome Lemelson which he kept appealing to the patent office. These were eventually granted, a practice termed "submarine patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties (he's also got a wing of the Smithsonian named after him). But the system's still pretty messed up.

dedicated 15y ago

I'm curious as who are the VC's who invested in IV? Are these typical tech VC's, or are they more of the private equity type that relish in making money off these so called opportunities or arbitrages that don't require actual productive work.

pom 15y ago

For some reason, every time I read the name Intellectual Ventures I sound it in my mind as Intellectual Vultures.

adorton 15y ago

One of the best TAL episodes in recent memory. The story mentions that modern patents (specifically software patents) lack the novelty that the patent system was originally designed to encourage. Did patent laws change at some point in history to allow this to happen?

kogus 15y ago
The audio version of the story mentions that it was a decision by the patent office, not specific legislation. Sometime in the 1980s they went from copyrighting software (i.e., treating it like literature or art) to patenting it.
- bgruber 15y ago
  No, the audio version mentions that the patent office used to operate on the principle that software could be copyrighted but not patented, but sometime in the 80s the judiciary indicated in several instances that was not the case and the patent office complied.
MartinCron 15y ago
One of the best TAL episodes in recent memory. Absolutely. While listening to it, one of my thoughts was "I can't wait to read the discussion of this over on HN". I'm going to use this opportunity to remind people to donate to their local public radio station, TAL/WBEZ Chicago, or both.

cpenner461 15y ago

Serious question: can/do patent trolls go after open source projects? I'm not thinking of businesses who sell/support open source software (e.g. Red Hat), but would it be a viable "defense" for an indie dev to simply release their project as open source? I've got an idea for a "weekend project" or two that I could conceivably make a few bucks with, or I could release them as open source so that I can at least benefit from the idea without worrying (as much?) about being sued for violating a patent. On the one hand if I'm not making any money from it one would think that the trolls would go elsewhere, but then again... Just looking for a general idea here, I'm not looking for official legal advice here... :-)

bergie 15y ago
The Debian patent FAQ is pretty good for this: http://www.debian.org/reports/patent-faq http://www.debian.org/reports/patent-faq
- cpenner461 15y ago
  Very useful - thanks for the link!

spenrose 15y ago

Can someone please tell me what Myrvolhd actually DID when he was leading MS Research? I remember no innovations from MS in that era.

gruseom 15y ago
He wrote long memos and famously pooh-poohed the internet. http://www.kenauletta.com/themicrosoftprovocateur.html http://www.kenauletta.com/themicrosoftprovocateur.html Correction: this was before he was sent (banished, the article makes it seem) to Microsoft Research.
dredmorbius 15y ago
When you look up who's at MSFT Research (and there are some truly great minds there -- Leslie Lamport of LaTeX fame for one, I find a certain credence to the theory posited by some that its main function was to take talent off the market.

deleted 15y ago

[deleted]

dstein 15y ago

As the article only touched on, this is precisely why the next computing giant will not come from Silicon Valley or anywhere in the US. The current software patent situation has ensured it.

skrebbel 15y ago
I doubt it. The next computing giant will want to sell in the US, too. Patent laws don't cover where you're from, they cover where you sell (or where you give away free stuff but make money from ads). You'd have to block all US visitors from your site to avoid the US patent system. I've been thinking about workarounds. Could a "I confirm that I'm from Malaysia" button do the trick?
- meow 15y ago
  May be the future companies will price products higher in US markets.

moultano 15y ago

Throwing an idea out there: Software patents should last no more than 1 year. If you come up with something worth patenting, you get a year lead on competitors. That's it.

mckoss 15y ago
I think a better solution is a mandatory licensing process. The threat of absolute exclusion is too damaging to the industry. AND, the patent office needs to start DOING THEIR JOB and stop granting patents for obvious inventions.
- MartinCron 15y ago
  Honestly, if the patent office would just do their job and not grant bogus patents based on obvious inventions or inventions with prior art, that would probably be enough. Software patents aren't the problem, bad software patents are the problem.
  - Terry_B 15y ago
    Can you name an example of a good software patent?
    - recoiledsnake 15y ago
      http://math.uic.edu/~jlong/MCS425Fall10/RSA-patent.pdf http://math.uic.edu/~jlong/MCS425Fall10/RSA-patent.pdf
    - MartinCron 15y ago
      As long as it meets the non-obvious and no-prior-art tests, I don't see a problem with the concept. Something like mouse gestures feel like a patentable innovation worthy of a temporary government-enforced monopoly.
      - Kliment 15y ago

daniel-cussen 15y ago

It's interesting to see more mainstream media outlets (npr and This American Life (public radio?)) talk more about patent trolling lately. As of a few weeks ago lay people I talked to had no idea programmers generally disliked patents.

vinced 15y ago

The solution is very simple. Create a simple how to patent template website, then have every developer apply for patents on any business and software process that they can dream of. Within two years you'll choke the entire system into change. Make it impossible for anyone to do anything. 1st idea, the collection, aggregation, and transmittal of electronic messaging data during a waste evacuation process. (i.e. checking your email while on the toilet)

Symmetry 15y ago
To the extent that the system is choked it means that the Patent Office grants patents without having the time to look at them, not that a backlog develops. You might notice that this has already happened.
- vinced 15y ago
  of course that is happening. Even worse is that the people examining the patents are not best and under qualified to review software patents.

danshapiro 15y ago

Did anyone else click the "someone patented toast" link and actually read the claims? It's for toasting bread at 2,500-4,500 degrees, with specialized infrared ovens.

joshmaker 15y ago
http://home.howstuffworks.com/toaster1.htm http://home.howstuffworks.com/toaster1.htm
cma 15y ago
2500-4500 degrees sounds impressive, I can't believe how NPR manipulated me! Wait... http://www.vendian.org/mncharity/dir3/blackbody/ http://www.vendian.org/mncharity/dir3/blackbody/ Pretty sure a standard household toaster is well into that range.
joejohnson 15y ago
"specialized infrared ovens" That's cute. Toasters, you mean? Toasters work by heating a coil to somewhere in that range (2.5k - 4.5k degrees), and then the radiation from the coils toasts the bread.
VMG 15y ago
I have read somewhere that patent description are often deceitful. The abstract can be intentionally misleading and the wording in your case seems to be too.

crizCraig 15y ago

Poll: What's you take on Intellectual Ventures with regard to innovation? http://wepolls.com/1510009 http://wepolls.com/1510009

dredmorbius 15y ago

If you're looking for an organization which is actively working to fix the software patent problem, you can look to End Software Patents: http://endsoftpatents.org/ http://endsoftpatents.org/

perfunctory 15y ago

Is it fair to call Intellectual Ventures an arms dealer.

kanetrain 15y ago

Well, this was timely. http://news.ycombinator.com/item?id=2808110 http://news.ycombinator.com/item?id=2808110

shmulkey18 15y ago

Two very interesting Econtalk podcasts on IP issues and economics, both of which argue that innovative industries can thrive in legal regimes which offer very limited IP protections: Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm... Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.html http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm... pg groupies may also want to check out the Econtalk interview with Paul Graham. Finding it is left as an excercise for the reader, primarily to encourage people to check out this amazing resource.

arvinjoar 15y ago

I wonder why people waste their time and money on defending themselves in court, why don't they hire Tony Soprano to fix their problem instead? It would be a pretty appropriate response.