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Name. And. Shame. I wish some enterprising young kids in the tech community could work out a technical or collective solution to the problem of patent trolls.

Name. And. Shame. I wish some enterprising young kids in the tech community could work out a technical or collective solution to the problem of patent trolls. They would be asking for punishment, to be sure. But I bet there are some really cool things that can be done here. * One naive idea: a subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. The more such companies that join, the more formidable its portfolio would become. * Another naive idea: publish information about patent cases underway in areas of the world that fall outside of the jurisdiction of a court imposing an injunction. I'm guessing this would need to be done by a third party so as not to prejudice the case of the business being sued by the troll, but I'm not a lawyer.

AnthonyMouse 13y ago
> One naive idea: a subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. The more such companies that join, the more formidable its portfolio would become. Patent portfolios don't work against trolls that don't have any business other than patent extortion. > Another naive idea: publish information about patent cases underway in areas of the world that fall outside of the jurisdiction of a court imposing an injunction. The court records are already public. It's the cases that settle that you never hear about, because the trolls demand that you sign an NDA. I don't know that publishing in a different country gets you out of the NDA. What we really need is to start a PAC to abolish software patents and have everyone contribute money to it, and provide them with lots of "ammunition" (i.e. thousands of testimonials from startup founders explaining how the patent system is ruining everything) to bring to Congress to get this fixed. Note that this isn't the EFF -- they do good work, but they're litigators, not lobbyists. This is a situation where what we really need are lobbyists to push to get the law changed, and grass roots lobbying by individuals to the same end.
- 3825 13y ago
  > What we really need is to start a PAC to abolish software patents and have everyone contribute money to it Can we really outspend IBM and Microsoft? I saw something on hacker news last week that said a relatively minor patent reform bill died in the house thanks to those two companies (and 3M and many others but mainly IBM and Microsoft). Name. and shame.
  - puppetmaster3 13y ago
    A solution: Out-bribe the corrupt congress. That is not feeding them?
- throwawaykf 13y ago
  How would you legally define "software patent"? If you figure it out, please let the Supreme Court, the CAFC and the USPTO know, because currently nobody really knows. As for "ammunition", look up the Berkeley Patent Survey [1]. The only damning thing you'll find in there, though, is that entrepreneurs in software on average don't think they present a competitive advantage, so "only" 60% of software startups file for patents. And it's typically because investors ask for them. Edit: I misremembered... It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049
  - AnthonyMouse 13y ago
    > How would you legally define "software patent"? Software patent: A patent that can be infringed by executing a software program on a general purpose computer. > It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. Which does tell you something, doesn't it? Unless VC-backed startups are an incredibly small percentage of startups, the patents filed by non-VC-backed startups would have to be significantly smaller than 24% (I assume 25% was a typo, see table on page 1277 of the report). Moreover, given the stark contrast in the numbers, query whether the VCs are interested in patents as patents vs. interested in them as a method for weeding out uncommitted startup founders. But I'm less concerned about the number of patents software startups are applying for. If nobody was applying for software patents at all, obviously the patent system wouldn't be doing any good there, but it wouldn't really be the strongest call for abolishing them -- no harm no foul, right? The problem isn't (just) the lack of usefulness or cost effectiveness of patents to innovators, it's the harm created by mass producing land mines. Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.
    - throwawaykf 13y ago
      > Software patent: A patent that can be infringed by executing a software program on a general purpose computer. Ever wonder why all the jurists all over the world have not stumbled upon such a simple and elegant definition? Herein lies just one problem: your definition of software patents may also include: - Control systems for automotive, industrial and robotic systems. - Signal processing methods for digital communications, audio processing, speech processing, image processing, video processing, automated control systems, and so on. - Microcode in processors - Embedded firmware in appliances and devices. - Mechanical watch designs. They are simply mechanical implementations of algorithms. - Digital circuits, chips and hardware that implements any of the above. The software / hardware equivalence makes simple definitions impossible. > Which does tell you something, doesn't it? It could tell me many things, depending on what assumptions I may apply. Let's see how many you disagree with. - The majority of software startups are not doing anything particularly technically innovative. - The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. - Patents are expensive to apply for and get, something a startup can't often afford. - Patents don't provide enough protection for software products anyway. (The last two are actually borne out by the study.) > query whether the VCs are interested in patents vs. interested in them as a method for weeding out uncommitted startup founders. Why wonder when there are studies on the subject? It's called "signaling". Of course VCs have no interest in IP itself, only what it means for their ROI. But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. > Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is. Again, why guess when there are studies :-) If you believe James Bessen it's actually manufacturing, industrial and semiconductor firms. (See his "A generation of software patents" paper. Flawed study, IMO, but a useful starting point.) If the answer surprises you, maybe you should consider that "software patents" are not easy to define.
acdha 13y ago
> subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. You might find this interesting: John Walker, one of the Autodesk founders, tried to popularize the same idea in the early 90s: http://www.fourmilab.ch/autofile/www/chapter2_105.html http://www.fourmilab.ch/autofile/www/chapter2_105.html Unfortunately, too many companies didn't want to give up the option to sue and the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds.
- allochthon 13y ago
  Thanks for the link. the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds. Wouldn't that get rid of the troll? Also, would it be possible to seek legal expenses from the shell corporation's creditors?
  - DougBTX 13y ago
    No, the first shell company just needs to sell the patent on to a new shell company, which can then start over.
  - acdha 13y ago
    > Wouldn't that get rid of the troll? That depends: in some cases it appears that they've tried things as blazen as having a shell company which licenses the rights to sue for a patent but doesn't actually own it. If the shell goes bankrupt, the only “asset” is that right to sue, not the actual patent, and the people involved are free to simply try again later. If you haven't looked at this before, This American Life had a two part series with a good general examination of the system – spurred by a troll running around suing everyone who podcasts: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack http://www.thisamericanlife.org/radio-archives/episode/441/w... http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two http://www.thisamericanlife.org/radio-archives/episode/496/w... > Also, would it be possible to seek legal expenses from the shell corporation's creditors? That's a really important question. The assumption has been no but there have been attempts to try RICO cases[1] and it sounds like the entire legal climate is getting more sympathetic to the idea that what we're seeing is extortion, pure and simple. Most of the legislation floating around Congress at least made some attempt to deal with this part of the problem but, of course, none of that counts until something is actually close to passing. 1. e.g. yesterday's story: http://arstechnica.com/tech-policy/2013/11/findthebest-destroys-matchmaking-patent-pushes-rico-case-against-troll/ http://arstechnica.com/tech-policy/2013/11/findthebest-destr...

AnthonyMouse 13y ago

> One naive idea: a subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. The more such companies that join, the more formidable its portfolio would become. Patent portfolios don't work against trolls that don't have any business other than patent extortion. > Another naive idea: publish information about patent cases underway in areas of the world that fall outside of the jurisdiction of a court imposing an injunction. The court records are already public. It's the cases that settle that you never hear about, because the trolls demand that you sign an NDA. I don't know that publishing in a different country gets you out of the NDA. What we really need is to start a PAC to abolish software patents and have everyone contribute money to it, and provide them with lots of "ammunition" (i.e. thousands of testimonials from startup founders explaining how the patent system is ruining everything) to bring to Congress to get this fixed. Note that this isn't the EFF -- they do good work, but they're litigators, not lobbyists. This is a situation where what we really need are lobbyists to push to get the law changed, and grass roots lobbying by individuals to the same end.

3825 13y ago
> What we really need is to start a PAC to abolish software patents and have everyone contribute money to it Can we really outspend IBM and Microsoft? I saw something on hacker news last week that said a relatively minor patent reform bill died in the house thanks to those two companies (and 3M and many others but mainly IBM and Microsoft). Name. and shame.
- puppetmaster3 13y ago
  A solution: Out-bribe the corrupt congress. That is not feeding them?
throwawaykf 13y ago
How would you legally define "software patent"? If you figure it out, please let the Supreme Court, the CAFC and the USPTO know, because currently nobody really knows. As for "ammunition", look up the Berkeley Patent Survey [1]. The only damning thing you'll find in there, though, is that entrepreneurs in software on average don't think they present a competitive advantage, so "only" 60% of software startups file for patents. And it's typically because investors ask for them. Edit: I misremembered... It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049
- AnthonyMouse 13y ago
  > How would you legally define "software patent"? Software patent: A patent that can be infringed by executing a software program on a general purpose computer. > It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. Which does tell you something, doesn't it? Unless VC-backed startups are an incredibly small percentage of startups, the patents filed by non-VC-backed startups would have to be significantly smaller than 24% (I assume 25% was a typo, see table on page 1277 of the report). Moreover, given the stark contrast in the numbers, query whether the VCs are interested in patents as patents vs. interested in them as a method for weeding out uncommitted startup founders. But I'm less concerned about the number of patents software startups are applying for. If nobody was applying for software patents at all, obviously the patent system wouldn't be doing any good there, but it wouldn't really be the strongest call for abolishing them -- no harm no foul, right? The problem isn't (just) the lack of usefulness or cost effectiveness of patents to innovators, it's the harm created by mass producing land mines. Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.
  - throwawaykf 13y ago
    > Software patent: A patent that can be infringed by executing a software program on a general purpose computer. Ever wonder why all the jurists all over the world have not stumbled upon such a simple and elegant definition? Herein lies just one problem: your definition of software patents may also include: - Control systems for automotive, industrial and robotic systems. - Signal processing methods for digital communications, audio processing, speech processing, image processing, video processing, automated control systems, and so on. - Microcode in processors - Embedded firmware in appliances and devices. - Mechanical watch designs. They are simply mechanical implementations of algorithms. - Digital circuits, chips and hardware that implements any of the above. The software / hardware equivalence makes simple definitions impossible. > Which does tell you something, doesn't it? It could tell me many things, depending on what assumptions I may apply. Let's see how many you disagree with. - The majority of software startups are not doing anything particularly technically innovative. - The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. - Patents are expensive to apply for and get, something a startup can't often afford. - Patents don't provide enough protection for software products anyway. (The last two are actually borne out by the study.) > query whether the VCs are interested in patents vs. interested in them as a method for weeding out uncommitted startup founders. Why wonder when there are studies on the subject? It's called "signaling". Of course VCs have no interest in IP itself, only what it means for their ROI. But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. > Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is. Again, why guess when there are studies :-) If you believe James Bessen it's actually manufacturing, industrial and semiconductor firms. (See his "A generation of software patents" paper. Flawed study, IMO, but a useful starting point.) If the answer surprises you, maybe you should consider that "software patents" are not easy to define.

acdha 13y ago

> subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. You might find this interesting: John Walker, one of the Autodesk founders, tried to popularize the same idea in the early 90s: http://www.fourmilab.ch/autofile/www/chapter2_105.html http://www.fourmilab.ch/autofile/www/chapter2_105.html Unfortunately, too many companies didn't want to give up the option to sue and the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds.

allochthon 13y ago
Thanks for the link. the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds. Wouldn't that get rid of the troll? Also, would it be possible to seek legal expenses from the shell corporation's creditors?
- DougBTX 13y ago
  No, the first shell company just needs to sell the patent on to a new shell company, which can then start over.
- acdha 13y ago
  > Wouldn't that get rid of the troll? That depends: in some cases it appears that they've tried things as blazen as having a shell company which licenses the rights to sue for a patent but doesn't actually own it. If the shell goes bankrupt, the only “asset” is that right to sue, not the actual patent, and the people involved are free to simply try again later. If you haven't looked at this before, This American Life had a two part series with a good general examination of the system – spurred by a troll running around suing everyone who podcasts: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack http://www.thisamericanlife.org/radio-archives/episode/441/w... http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two http://www.thisamericanlife.org/radio-archives/episode/496/w... > Also, would it be possible to seek legal expenses from the shell corporation's creditors? That's a really important question. The assumption has been no but there have been attempts to try RICO cases[1] and it sounds like the entire legal climate is getting more sympathetic to the idea that what we're seeing is extortion, pure and simple. Most of the legislation floating around Congress at least made some attempt to deal with this part of the problem but, of course, none of that counts until something is actually close to passing. 1. e.g. yesterday's story: http://arstechnica.com/tech-policy/2013/11/findthebest-destroys-matchmaking-patent-pushes-rico-case-against-troll/ http://arstechnica.com/tech-policy/2013/11/findthebest-destr...