Xiph.org's "Monty" on codecs and patents [LWN.net]

Xiph.org's "Monty" on codecs and patents

Posted Nov 10, 2011 1:31 UTC (Thu) by gmaxwell (subscriber, #30048)
Parent article: Xiph.org's "Monty" on codecs and patents

With respect to things being "business as usual", it's informative to note that QTL has been peppering many RFCs with identically worded IPR 'disclosures', including decade old standards like SIP (RFC 2543).

The interplay between standards bodies and patent-miners like QTL is a increasingly complicated and hot area.

In many cases a standard depends on low barriers to adoption in order to provide value especially for software and protocols which have no intrinsic marginal cost to hide licensing fees in and it's actually pretty easy to find inventors who are willing to give away infrastructure technology simply because it'll enable other business. Which is also why you see groups like Mozilla or Google sponsoring the development of unencumbered web technology in order to build the next generation of awesome stuff (commercial or otherwise) we need quality common infrastructure and we need it to be as widely available as possible.

The existence of patents themselves aren't really a barrier to this but the patent system and some of its users manage to create significant barriers as collateral damage.

In addition to the innocent patent holder who would just prefer not to give away their inventions, who's inventions must be tediously discovered and avoided, there is also a backdrop of parasites. Things like trolls buying up shaky patents and extorting people who can't afford to litigate or the risk of non-participating patent holders sneaking some trivial but essential patented technique into a standard, or following the procedings and filing applications around the groups' work, and thereby "capturing" the standard and allowing them to extract a rent from all its users. (Both are inequitable conduct which would bar their patent claims if you can prove it and wait the two technology generations it would take to go through the courts!)

No one seems to know how this tension should be resolved, not the regulators, the standards bodies, or the patent holders. This results in some rather schizophrenic behavior from all involved as they try to act based on their interpretation of what the law is (or will be!).

Earlier this year the FTC recently put out a call for comments on the interaction of patents and standards bodies and Xiph.Org was one of the respondents and offered a number of thoughts on improving the situation.

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Xiph.org's "Monty" on codecs and patents

Posted Nov 11, 2011 9:27 UTC (Fri) by michaeljt (subscriber, #39183) [Link]

> If the proceedings are published and date-stamped immediately, wouldn't that make it fairly simple to invalidate the patent? Easier than proving inequitable conduct, anyway.

Out of interest, can a defendant in a patent case counter-sue for malicious behaviour (or whatever) with any chance of success if there is prior art sufficiently obvious that the original litigant should have known about it if they did their homework? I can imagine that if one patent troll was put out of business in that way it would make a few people stop and think.

Xiph.org's "Monty" on codecs and patents

Posted Nov 11, 2011 10:41 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]

the problem is that a patent troll doesn't have much if the way of resources, so even if you win, the people behind the troll move on and pick up another patent, form another troll company and repeat the process.

you may slow down the activity around a particular patent, but you won't hurt the people behind the troll much.

personal accountability

Posted Nov 11, 2011 11:32 UTC (Fri) by pdundas (subscriber, #15203) [Link]

What you really need (to avoid this limited-liability shuffle) is to establish that the perpetrators are guilty of criminal conduct, rather than a mere civil wrong. Then there is the potential for personal fines or the risk of a custodial sentence, which are harder to avoid by dissolving a company and moving on.

In the UK, it is possible for someone to be barred from acting as director of a company, if their misconduct is sufficiently bad. There may be rules like this in other jurisdictions as well.

Also, if you can show that someone has infringed the rules of their professional body (if they have one), there is a small chance that they may be struck off, expelled, or prevented from practising (at least in theory).

personal accountability

Posted Nov 11, 2011 11:51 UTC (Fri) by ekj (guest, #1524) [Link]

But it's not plausible that that'll happen to patent-trolls.

Afterall they can say: "Look, the patent-office, staffed by competent people that aren't us, examined the patent and granted it. Surely, if the patent was *obviously* bad to the point where believing it to be valid and demand that infringers pay is criminal, the fine folks at the patent-office would have denied the patent."

It's really tricky to argue that the patent-office saw the patent as valid, yet that anyone else who *also* sees it as valid, are acting with criminal neglect and/or malevolence.

personal accountability

Posted Nov 11, 2011 12:11 UTC (Fri) by michaeljt (subscriber, #39183) [Link]

> It's really tricky to argue that the patent-office saw the patent as valid, yet that anyone else who *also* sees it as valid, are acting with criminal neglect and/or malevolence.

How much are the (US) patent office expected to know about the current state of the art? Given the number of applications relative to the number of examiners, they would have to be sufficiently familiar with every field they deal with to have an idea off the top of their head about whether or not it is original if they are to spot prior art without help. Is this really what courts assume about them?

personal accountability

Posted Nov 11, 2011 12:48 UTC (Fri) by ekj (guest, #1524) [Link]

They're supposed to be quite competent in the fields where they evalutate patent-applications.

They'd have to be, afterall, because the chief criteria are first that it's novel, and second that it's non-obvious. The definition of the latter vary somewhat by jurisdiction, but for USA it means that:

"the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art to which the subject matter pertains."

In other words, if the technique being patented would have been obvious to a person who has knowledge of formerly used techniques *and* ordinary skill in the subject-area, then that technique is not patentable.

That's what the law says - offcourse in practice it doesn't work like that. It *is* obvious to a person of ordinary skill in developing payment-solutions for webshops that shopping can be made with one click if the required information has been stored previously - and it's equally obvious how to implement this. Nevertheless the patent was granted.

A patent-examiner, in principle, has examined the application and determined that it is novel, non-obvious and useful. It's gonna be really tricky to make it stick that believing his conclusions amounts to criminal neglect.

If you *could* make it stick: "Nobody in their right mind could believe this", then you could conceivably also sue the patent-office for criminal neglect, since they'd be guilty of the same mistake.

That'd be the day -- but I ain't holding my breath.

Xiph.org's "Monty" on codecs and patents

Posted Nov 11, 2011 11:46 UTC (Fri) by ekj (guest, #1524) [Link]

Doesn't tend to work.

You're sued by a patent-troll that is single-purpose, produce nothing, and own nothing other than the patent they are suing you over. Thus even if you could manage, after a long and expensive battle, to get them convicted of something or other, it'd not help.

They'd simply fold. A judgement awarding you costs, and also some kinda damages, is worth nothing when the judgement is against a company that holds nothing of value.