A victory for the trolls

By Jonathan Corbet
April 25, 2011

For many years we have heard warnings that software patents pose a threat to the free software community. Repeated warnings have a tendency to fade into the noise if they are not followed by real problems; to many, the patent threat may have seemed like one of those problems we often hear about but never experience. The recent ruling in the US that Google is guilty of infringing a software patent held by a patent troll named "Bedrock Computer Technologies" serves as a reminder that the threat is real, and that solutions will not be easy to come by.

The patent in question is #5,893,120 - "Methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data." The independent claims from the patent are short and simple; #3 reads like this:

A method for storing and retrieving information records using a linked list to store and provide access to the records, at least some of the records automatically expiring, the method comprising the steps of:

accessing the linked list of records,
identifying at least some of the automatically expired ones of the records, and
removing at least some of the automatically expired records from the linked list when the linked list is accessed.

Needless to say, numerous people who are "skilled in the art" have concluded that there is little that is original or non-obvious in this claim. In its defense, Google argued that the technique is, indeed, obvious (to the point that it should be invalidated under the Bilski ruling), that the patent is invalid due to prior art, and that Linux did not infringe upon the patent in any case. All of those arguments were pushed aside by the jury, which found Google guilty and granted an award of $5 million, a small fraction of the $183 million requested by Bedrock.

The full set of docket entries - almost 800 of them - are listed on the net. Many of the interesting ones are sealed, though, and unavailable to the public. We are all affected by this ruling, but we are unable to read most of testimony that led up to it. Instead, the bulk of the publicly-available information has to do with the various bits of legal jousting which set timetables and which control the evidence that can be presented. Thus, for example, we learn that a late attempt to bring in Alan Cox to testify on his early routing table work was pushed back and eventually abandoned. Still, there are some interesting things to be learned by plowing through these documents.

The code

The code in question is that which maintains the networking stack's routing cache - some of the oldest code in the kernel; it can be found in .../net/ipv4/route.c. This code maintains a hash table of linked lists containing routing entries; as the world changes, entries must be added or deleted. Bedrock claims that its patent is infringed by this code, though even Bedrock has, more or less, admitted [PDF] that any infringement will have been done inadvertently, with no knowledge that the patent existed. The various defendants (Google is only one of the companies targeted) have made various arguments, starting with the claim that the code does not use the algorithm described in the patent at all; see this brief [PDF] for a summary of that argument:

The accused instrumentalities - servers using versions of the Linux kernel prior to 2.6.25 - do not meet all elements of the '120 patent because: (1) removal of records does not occur "when the linked list is accessed" ('120 patent claims 1, 3, 4, 5, 7, and 8); (2) the removed records are not "expired" ('120 patent claims 1, 3, 5, and 7); (3) there is no "dynamically determining maximum number" of expired records to remove ('120 patent claims 2, 4, 6, and 8) (for all accused versions); (4) the accused code does not remove an expired record while using the record search means to search for a record to delete (for all accused versions); and (5) there is no evidence that the accused code has ever executed, as required by all asserted claims.

What one learns early on is that how terms like "when the linked list is accessed" are defined is crucial in a decision regarding infringement. That is where the "claim construction" process comes into play; for the full, gory details of how it was done in this case, see docket #369 [PDF]. There was a big fight, for example, over whether "removing from the linked list" required deallocation of the entry that was removed; Bedrock won that one and got a ruling that deallocation is a separate operation. The biggest fight seemed to be over whether removal "when the linked list is accessed" meant that the structure needed to be removed during the traversal of the list; Bedrock seemed to think that removal at some later time qualified, but the court disagreed. That should have been a decisive victory for the defense, but it appears to not have been enough.

Invalidation attempts

There was also a determined effort to have the patent ruled invalid due to prior art. It is interesting to note that, in early 2010, a separate challenge to this patent was raised at the US Patent and Trade Office, citing four other patents as prior art; the patent was, in fact, invalidated by the PTO last July. But Bedrock was then allowed to tweak the wording of the claims until the PTO agreed that the modified patent was, once again, valid. This history shows why attempts to kill patents so rarely achieve the desired results: patents can never truly be killed this way. Instead, the owner is allowed to make changes, resulting in zombie patents that return from the dead to terrorize again and again. A second challenge to the patent was filed in January of this year; it cites two more patents as prior art; a ruling has not yet been made in this case.

The defendants' attempt to invalidate the patent does not depend on that prior art at all, interestingly; instead, this challenge [PDF] is based on the Linux code itself. They claim that the code in route.c has not changed materially since the 1.3.x days and that, in particular, the 2.0.1 version was quite close to what we have now. These prior versions, it is claimed, include all of the claims of Bedrock's patents, and thus serve as prior art invalidating the patent. One might find some amusing irony in the claim that older code implemented the patented technique while current code - said to be about the same - does not. The point is, of course, that if the current code is said to infringe, the older code should be said to implement the patent in the same way. Either both versions implement the patented algorithm (in which case it's invalid due to prior art) or neither does.

The argument seems strong enough. We cannot know how Bedrock argued against this reasoning, though - its response is sealed and inaccessible. It is also worth noting that the US PTO has not considered older Linux releases as prior art when reevaluating this patent; it would appear that the challengers have not asked it to.

In the midst of all this, Red Hat has filed a suit of its own against Bedrock. It seems that some Red Hat customers have been getting nervous about Bedrock's activity and asked for help; Red Hat responded by filing a preemptive suit asking that the patent be ruled invalid and that Red Hat's products be deemed to be non-infringing. That case is still in the works; Red Hat also tried to jump into the Google et al. case [PDF], but that attempt was denied by the judge. In reading the filings, one also learns the Match.com (another defendant in the suit) made a deal with Bedrock and was allowed to drop out.

Now what?

This verdict has been widely publicized as a big defeat for Linux. Perhaps it is, but not for the reasons being cited - this particular patent is not a huge problem, but the fact that patent trolls can win judgments against Linux is problematic indeed. If need be, the kernel's routing table code can be tweaked to avoid infringing Bedrock's patent; indeed, Docket #445 [PDF] lets slip the fact that Google has already changed its kernels to that effect. There could be a case for past infringement, but there need be no real fear that Bedrock will be out there collecting rents from Linux users in the future, even if the ruling stands.

We can hope that the ruling will, in fact, not stand. If Red Hat prevails in its separate case, the verdict against Google will have to be reevaluated. Even in the absence of a victory there, Google's defense was strong enough to warrant an appeal. Google is just one of a number of companies which cannot let it be thought that Linux is an easy target for shakedowns by patent trolls; there is a strong incentive for the company to keep on fighting, even if that fight is likely to cost more than the (relatively small) $5 million it has been told to pay Bedrock. For all of our sake, we must hope that all of the companies involved in this case find it worth their while to get the ruling reversed.

If Bedrock loses in the end, other potential trolls will hopefully be deterred from jumping in with suits of their own. But there can be no doubt that more of these cases will come along; that is really just the nature of the software patent system. Until we can get some sort of high-level reform, we will always have to fear trolls wielding patents on elementary techniques.

to post comments

A victory for the trolls

Posted Apr 25, 2011 21:47 UTC (Mon) by shapr (subscriber, #9077) [Link] (50 responses)

Terrifying... is there any realistic route to fixing the patent troll problem?

Yes, fix the patent system

Posted Apr 25, 2011 21:59 UTC (Mon) by david.a.wheeler (subscriber, #72896) [Link] (30 responses)

Yes, it's called "fix the patent system". The current system seems to be designed to extract rent from the innocent. In particular, the notion that prior art (in the VERY SAME CODE) is automatically ignored shows how broken the system is.

I don't think it's as hopeless as some think. There are now enough organizations with deep pockets that are vulnerable that they can start to cause changes. Ideally, it'd get rid of software patents, but if not, making them less dangerous would be a start.

Yes, fix the patent system

Posted Apr 25, 2011 23:04 UTC (Mon) by boog (subscriber, #30882) [Link]

I'd tend to agree that things aren't so hopeless in the longer term. Let's see where this case leads. Certainly Oracle and the smartphone bun fight are also beginning to focus a few minds. I think if you grouped Linux users, including android people, they would be able to wield some serious political clout. The conditions imposed on the purchase of Novell's patents were a clear sign.

That said and speaking as a *complete* non-expert, I'd really expect this decision to be overturned, if only for the screaming defence of the code not having changed since before the patent. But also it seems that inventions that aren't linked to specific machines (rather than a general purpose computer) may be in trouble after Bilski.

Yes, fix the patent system

Posted Apr 25, 2011 23:08 UTC (Mon) by butlerm (subscriber, #13312) [Link] (23 responses)

A more realistic fix is: Eliminate the patent system. Reforming it is a fool's errand. There is not a lot than can be done.

We would all be better off in the long run if patents didn't exist. The only possible exception I can see is pharmaceuticals, where a patent is perhaps a reasonable tradeoff for years of government required tests.

Yes, fix the patent system

Posted Apr 26, 2011 1:48 UTC (Tue) by tterribe (guest, #66972) [Link] (15 responses)

And how many of those drugs being tested were developed using government-provided research funding? I believe that something like 30-40% of all medical research in the US is federally funded. That seems like a much more productive way to redress that particular burden.

Yes, fix the patent system

Posted Apr 26, 2011 8:28 UTC (Tue) by drag (guest, #31333) [Link] (11 responses)

>And how many of those drugs being tested were developed using government-provided research funding? I believe that something like 30-40% of all medical research in the US is federally funded. That seems like a much more productive way to redress that particular burden.

That may be true in terms of % of money spent, but that does not mean that it's actually produced anything of value. But really, no, the government is hugely terrible at doing any sort of real research or producing products.

I can go into the economics behind it and how the lack of profit motivation and the ability to do proper accounting makes it impossible to accurately gauge the demand and usefulness of products, but most people would have no clue what I am talking about. It's not 'government is teh suxor', but simply a result of a facet of human nature.

One of the major problems we have in the USA is that the FDA is making it increasingly impossible to bring new drugs and procedures to market. The amount of red tape and regulatory burden is extreme. It's beyond belief for most people.

I had to have a operation done a couple years ago. In order to get it done I had to sign up to it as a 'research project'.

Why? Because due to our regulatory system it makes innovation almost impossible. The FDA never approved the operation I needed and the medical devices that were being used in the operation. Even though this operation has been successfully done on numerous people for a decade (and the basis for the procedure has been around for decades longer, this is a improvement to a established practice and nothing radical) and millions of dollars was pored into the research and development of the medical devices.

Right now we exist in a society with a medical system and regulatory environment that would rather see people die from cancer and other diseases then let them have access to life saving drugs and operations because those drugs and operations are deemed too new and too risky by mindless bureaucratic government processes. Then to make up for the fact that it takes millions of dollars to simply deal with government red tape, beyond just developing the products in the first place, we compensate corporations through the patent system which further restricts access and keeps medical advances outside the ability for most people to afford it.

Yup...

Posted Apr 26, 2011 8:54 UTC (Tue) by khim (subscriber, #9252) [Link]

Well, if you studied the problem you've seen that FDA regulations are the problem patents are supposed to solve.

More then 90% of funds needed to "develop" new drug are spend in FDA-mandated tests. If you eliminate that part patents are suddenly not needed. Do you propose to abolish testing? Of course not! But this is mandated testing - in can be paid different ways, there are no need to issue patents to support it. It's artificial "problem", it can be solved using many different approaches, I doubt patents are the most effective approach anyway.

Yes, fix the patent system

Posted Apr 26, 2011 10:07 UTC (Tue) by dpc (guest, #74012) [Link] (5 responses)

I can understand economy well. I understand what you mean. However I disagree. The pharmacy does not have to be post-paid.

Sick people (their friends, families and foundations around them) are vitally interested in paying for the fact of researching. They would pay companies with good previous record of drag researching and publishing solutions for the promise that when the cure is found it would be "open-sourced"/"more or less free for anybody to produce", etc.

If selling medicine after successful research would be impossible (due to lack of patents), these companies would have to switch to a model which is more or less Open Source in medicine. Companies would be run for profit (selfish motivation, good!), would compete between them-selfs (good!) and once something is discovered everyone can benefit instantly (think about poor countries) and other drugs can be researched without licensing and patenting issues.

I see no reason why this model would be anyhow less efficient than current post-paying. But I'm opened for discussion.

Yes, fix the patent system

Posted Apr 26, 2011 11:45 UTC (Tue) by sorpigal (subscriber, #36106) [Link] (4 responses)

People are rarely so forward thinking as to fund research that isn't likely to be complete before they succumb to their own illness, much less to do so proactively on the chance that they will develop a given disease.

"Why should I fund cancer research? I don't have cancer!" -- young, cancer-free person.

I'm not saying that it couldn't work, I'm just doubting whether voluntary funding like this would be sufficient to raise the necessary cash. That's the advantage of government funding; governments are more suited to long term investments and rewards.

I've often thought that it would be great to crowd-source funds for e.g. a TV show or a movie, but it really is very difficult to raise that kind of money on the promise that the donators will like the result. Medical research is the same kind of problem (only more expensive).

Yes, fix the patent system

Posted Apr 26, 2011 13:16 UTC (Tue) by drag (guest, #31333) [Link]

> People are rarely so forward thinking as to fund research that isn't likely to be complete before they succumb to their own illness, much less to do so proactively on the chance that they will develop a given disease.

That's what entrepreneurs are for. They search out new opportunities and seek to fulfill society's needs with the least amount of resources used (and, as a result, highest profits)

> governments are more suited to long term investments and rewards.

The bad thing about governments is that they are insulated against failures, have a poor ability to properly account expenses and lack a feedback mechanism that can properly assess society needs (democratic politics are proven to not be effective). All this means is that they are wasteful with resources and that expenditures are governed by politics and not needs.

Yes, fix the patent system

Posted Apr 26, 2011 21:57 UTC (Tue) by rahvin (guest, #16953) [Link]

<blockquote>I've often thought that it would be great to crowd-source funds for e.g. a TV show or a movie, but it really is very difficult to raise that kind of money on the promise that the donators will like the result. Medical research is the same kind of problem (only more expensive).</blockquote>

Showtime, HBO and others are examples of what you seek. They survive on subscriber funds, they produce new and innovative entertainment and IMO the best shows on television now. They do so without commercials (and the interference they bring) and without (AFAIK) government intervention or assistance. So you shouldn't need to wonder as it already exists, but costs considerably more than commercial television.

Yes, fix the patent system

Posted Apr 28, 2011 9:14 UTC (Thu) by dgm (subscriber, #49227) [Link] (1 responses)

> "Why should I fund cancer research? I don't have cancer!" -- young, cancer-free person.

Quite true. Healthy people tend to behave like that, but what about ill people? Most behave just the other way around, funding research and creating foundations, generally trying to help. Paradoxical, isn't it? One may say that for ill-free people, having to chose between one or other cause finally leads to helping nobody. All that changes once life pushes you in certain direction. Human nature, I guess.

This is very similar to what happens with OSS, indeed. What makes anybody start collaborating with a project? And why do people start projects? Often they have a need to fulfill, or someone with that need is paying them.

So, the problem with Open Source Drugs is not people. It's a economical (and thus technological) problem. Such a project needs to be started by one person alone, or an small group, with very little funding. What's needed is not ways to raise more cash, but mechanisms to lower that need of cash, so many small projects can be started -and continued- by the people with the skills and interest. That and knowledge about the "Open Source" way of doing development, of course.

Yes, fix the patent system

Posted Apr 29, 2011 6:19 UTC (Fri) by rahvin (guest, #16953) [Link]

Open Source Drugs? Are you serious? This isn't a simple field, that's like suggesting that people should engage in nuclear or particle physics research in their basement including full blown experiments that could lead to catastrophic consequences. There are several ways to help drug research, the protein folding distributed computing application is one, although some professionals doubt it will ever lead to a single drug.

You don't just create a drug and start testing on people. Drugs go through computer models, animal research and many other steps before a single human takes the chemical. This is a highly specific field requiring controls and methods that are going to be economically beyond all but the most advanced and they are already working in the field. Please consider that if you start making drugs and someone dies you will end up in jail for a very long time. There is a reason government highly regulates this stuff, it's an area where even with full safety measures and a lot of experience people can still be killed by drugs that have previously proven safe.

I work in a profession that requires a professional license to work in it, I like to think that gives me perspective that some things just aren't meant for amateurs to work on because of the potential for fatalities. Maybe there are areas where ordinary people can help in the research but I just don't see it.

Yes, fix the patent system

Posted Apr 26, 2011 19:20 UTC (Tue) by b7j0c (guest, #27559) [Link]

i love it how people trot out this argument as a patent defense, as if disease would wipe out humanity without patent law

really? i see an unending stream of mood pills, pills to grow your hair back, pills to provide boners for 90 year old men, pills to make women horny, pills to deal with life threatening issues like yellow toenails...and lets not even talk about the number of pills out there to address poor nutritional choices

the biotech industry has increasingly relied on feel-good, lifestyle drugs, while actually dropping many product lines that deal with actual illness since they just aren't profitable enough

i'm done with "too big to fail" reasoning. get rid of patents and let the chips fall where they may.

Yes, fix the patent system

Posted Apr 26, 2011 19:53 UTC (Tue) by Kluge (subscriber, #2881) [Link]

>But really, no, the government is hugely terrible at doing any sort of real research or producing products.

Really? My impression is that government funded research is quite good at producing the basic knowledge upon which applied research can be based. And applied research is essentially what the pharmaceutical/biotech sector is supposed to do. We can disagree with why they haven't, over all, been doing a very good job of it lately. Certainly complying with FDA regulations does cost time and money, but it's hard to see how we can do without some regulation of drugs. Recent history is replete with examples of selective publication of data, mismarketing of drugs, etc by pharma.

If you have a point to a more detailed discussion of your position, I'd love to see it.

Yes, fix the patent system

Posted Apr 27, 2011 20:47 UTC (Wed) by tzafrir (subscriber, #11501) [Link] (1 responses)

If the only issue were the FDA regulations in the US, I would expect to see some off-shoring of the medical research. Indian people are cheap due to their permissive regulations, so drugs could be developed there first and only re-developed later in the US (to satisfy the FDA requirements) once they have proven themselves useful.

This has happens with?

Yes, fix the patent system

Posted May 5, 2011 4:47 UTC (Thu) by Hausvib6 (guest, #70606) [Link]

A highly advanced country with lots of resource use a developing country as drug testing subject, nice...

Yes, fix the patent system

Posted Apr 26, 2011 15:32 UTC (Tue) by cowsandmilk (guest, #55475) [Link] (2 responses)

Universities (where most of this "federal funding" occurs) only originate 24% of pharmaceuticals, and trust me, the amount they're spending pales in comparison to what drug companies spend. See http://pipeline.corante.com/archives/2010/11/04/where_dru... for a pointer to where drugs come from.

Yes, fix the patent system

Posted Apr 26, 2011 19:22 UTC (Tue) by b7j0c (guest, #27559) [Link] (1 responses)

that is because universities don't fund drugs to give old people boners or make sad housewives more interested in smiling.

the biotech industry pushes more mood altering/lifestyle pills than that guy on the corner

Yes, fix the patent system

Posted Apr 26, 2011 22:10 UTC (Tue) by rahvin (guest, #16953) [Link]

Drug companies also push a significant amount of research into very serious conditions that rob people of their lives. Government does very little research into arthritis (and it's many variants including Rheumatoid) compared to the private sector. The major drug companies are spending billions every year trying to discover the cause and treatment for these conditions because they are extremely lucrative due to the damage they reap on a persons life. People will literally sell their own mothers to gain access to drugs that will reverse the course of these conditions. The proof of this is the shear number of snake oil (herbal) treatments for the same.

In addition the primary driver of Cancer research (the #2 killer) and Heart/BP/Circulatory (Heart disease is the #1) research is in the private sector. Entire companies like Myriad Genetics spend their entire research budget on Cancer research from identifying the cause and genes responsible to developing treatments including one-off genetic treatments that cost $50K a pop and they will never make money on.

You make serious light of depression in your post, something I have a serious problem with as it is a very serious disease that results in death far too often and something one of my loved ones suffers from. You might not think depression or ED is a serious problem but that doesn't give you the right to belittle the problem and decide that no money should be spent on it until whatever pet cause you have is cured.

Yes, fix the patent system

Posted Apr 28, 2011 8:09 UTC (Thu) by ekj (guest, #1524) [Link]

That's throwing out the baby with the bathwater. There's some fields where patents, or something similar to it, seem needed. Namely fields where there's high research-costs, and *low* copy-costs. Nobody would shoulder the research-costs, if upon completion their competitors immediately just copy the results.

But software is not such a field. It's expensive to produce software, true. But copyright already gives -more- than adequate protection for the result. (indeed even that probably gives too much as in you could give significantly less protection and NOT see a significant release in development-effort)

Yes, fix the patent system

Posted Apr 29, 2011 3:35 UTC (Fri) by jtc (guest, #6246) [Link]

"A more realistic fix is: Eliminate the patent system."

That's pretty damn ambitious. Less ambitious (and, IMO, more practical) would be to eliminate patents for software. That's hard enough. Eliminating all patents, it seems to me, is almost as hard as eliminating world poverty.

Yes, fix the patent system

Posted May 3, 2011 19:44 UTC (Tue) by vonbrand (subscriber, #4458) [Link] (1 responses)

Sorry, but abolishing patents isn't realistic at all. First of all, it would have to be world-wide to be of any use (good luck with that!). And then it would mean that suddenly IBM, say, would be worth a bunch of billions of dollars less. The result could make the dotcom crash look tame...

Yes, fix the patent system

Posted May 5, 2011 18:47 UTC (Thu) by chad.netzer (subscriber, #4257) [Link]

Presumably "abolish" would (hypothetically) be a "phase out". Existing patents would expire at the same time (unless invalidated), but new ones would have new terms.

I tend to agree that software patents won't ever be a abolished; I'd be content to see them reduced to a term of 5-7 years. In this field, it's insane to give someone a monopoly on *anything* for two decades.

Yes, fix the patent system

Posted May 7, 2011 3:13 UTC (Sat) by CycoJ (guest, #70454) [Link] (2 responses)

Can we please stop the myth that pharmaceutical patents are the great example for justification of patents.

The pharmaceutical industry is probably so "evil" patent trolls pale in comparison.

1. Pretty much all Pharma companies have significantly higher marketing than R&D budgets (that's not evil, but still proves a point).
2. They are also one of the most profitable industries, so doesn't seem like they really need patents.
3. They research is mainly on the "diseases" of the rich. For example the amount of money they invest into researching a cure for Malaria pales compared to the research into something like diet pills
4. They have been the main companies behind the push to extend patentability, who do you think are the main industry who are pushing ACTA?
5. They are also the companies who are the main drivers behind the US government pushing draconian trade agreements, onto developing nations. Which often leaves the poor in these countries without access to cheap generics.
6. They are extensively abusing the patent system, by creating perpetual patents, i.e. when a patent expires they apply for a new patent where some compound is slightly changed, the trick is you can't make the old patented medicine, without violating the new patent.
7. They have been caught multiple times paying for favourable publications/studies.
8. Their patents actually only start after FDA approval, so they possibly get 20+x years of patent time. Even worse, as part of TRIPS (I think it was), this applies again to other countries. So they have FDA approval in the US, but they think country X (usually a developing nation) is not wealthy enough, so they don't apply for approval there. Now at a later state country X has become wealthier and they apply for approval, they get 20 years of patent. So even if the patent has expired in the US, they people in country X cannot get the cheap generics, because in their country the patent is still valid.

If you start reading up on what BigPharma is doing, it just makes you sick.

Yes, fix the patent system, but also your argumentation :-)

Posted May 7, 2011 7:42 UTC (Sat) by spaetz (guest, #32870) [Link] (1 responses)

Not that I like Pharma very much or want to defend patents pretty much, but this argumentation is pretty bad:

> 1. Pretty much all Pharma companies have significantly higher marketing than R&D budgets (that's not evil, but still proves a point).

It's not evil, but I fail to see which point it proves. That pharma firms do a lot of marketing compared to R&D is related to patents how? The same is probably true for many other industries.

> 2. They are also one of the most profitable industries, so doesn't seem like they really need patents.

Their profitability "is a clear sign that patents work", would a proponent of patents claim. If there were none, they would be not profitable because copied, so no incentives to innovate, blabla. We don't know what would happen in such a case, so there is no point to make here without further justification.

> 3. They research is mainly on the "diseases" of the rich. For example the amount of money they invest into researching a cure for Malaria pales compared to the research into something like diet pills

Again, this is true but I fail to see how this is related with patents. Do you think, that pharma firms would suddenly all become very altruistic and start researching Malaria and other "fringe" (sorry) diseases when you abolish patents?

> 4. They have been the main companies behind the push to extend patentability, who do you think are the main industry who are pushing ACTA?

Yes, but what point does it make? That the (big) firms in the industry believe that patents work? How does it make patents bad? You'll need more arguments to support your logic.

> 5. They are also the companies who are the main drivers behind the US government pushing draconian trade agreements, onto developing nations. Which often leaves the poor in these countries without access to cheap generics.

This shows rather that pharma firms go ruthlessly after money wherever they can, not that patents are bad.

> 6. They are extensively abusing the patent system, by creating perpetual patents, i.e. when a patent expires they apply for a new patent where some compound is slightly changed, the trick is you can't make the old patented medicine, without violating the new patent.

Right, but companies abusing the patent system does not necessarily imply that patents are bad in general, merely that the system needs some loopholes fixed.

> 7. They have been caught multiple times paying for favourable publications/studies.

So has the tobacco industry, the wine industry, the coffee industry, and the candy industry. It is related to patents how?

> 8. Their patents actually only start after FDA approval, so they possibly get 20+x years of patent time.[...]

Well, those firms would tell you that they get to use the patented drug for 20 years on the market, and not longer. After all, if the FDA takes 20 years to approve a drug, the patent would have been worthless. So, I can see why that was implemented. The problem with other countries filing later (and therefore prolonging protection) would be solved by "global patents" by a patent proponent, I guess.

I am not saying you are wrong, but these arguments did not convince me.

Yes, fix the patent system, but also your argumentation :-)

Posted May 7, 2011 20:44 UTC (Sat) by njs (subscriber, #40338) [Link]

One can imagine a number of different ways for the public to fund drug development, and one of those is the current patent system. The idea is that by granting companies temporary monopolies which they can exploit to make money, the company's incentive to create profit will as a side-effect produce a public benefit (the availability of new drugs that save people's lives, etc.).

For this to be an effective/efficient solution, we want the drug company's incentives to line up *well* with the public good. But it isn't at all clear that they do. Some of the arguments being cited here are evidence that they don't.

For example: The massive marketing budgets are presumably paid for by increased profits from people buying the drug in question as a result of the marketing -- but those new sales are probably mostly from people who otherwise would have been happy with a generic, or nothing at all. So we could say oh well, sucks for the people who end up paying too much; they should have been smarter. But first, it strikes me as horribly immoral to expect every member of the public to be more educated about the state of the art in medical care than the professionals who are trying to fool them into spending too much. And secondly, since health care costs are spread out over everyone (by insurance premiums, by prices set on the assumption that assume some people won't pay, by public health coverage), those people who pay too much are hurting everyone. (Indeed, part of that marketing budget now goes to these clever rebate schemes for new drugs, whose whole purpose is to re-create the "moral hazard" that American insurance companies try to avoid by having higher co-pays on brand name drugs versus generics. The result is that my wife's *brand name* drugs are *cheaper* -- for us, out of pocket -- than generics would be. But the insurance company is still paying full price and getting screwed, which eventually comes out in everyone's premiums.) So here the patent-based develop-drugs-to-make-money system doesn't serve the public interest.

Basically the same thing is happening every time the drug companies do some profit-driven horrible thing (denying drug availability to dying poor people, declining to research important but less profitable conditions -- malaria was mentioned, and apparently in the UK the drug companies have just said eh, screw it, and fired all their neuroscience researchers, etc., etc.).

So while profit-driven free-market enterprise is a very efficient way to get certain things done, it's far from clear that it's actually the best way to develop drugs. Other systems -- like, say, taking the same amount of money from taxes and giving it to non-profit research institutions -- obviously would have their own problems, but not these ones, and these ones are pretty horrible.

Either fix the patent system or allow the US economy to suffer

Posted Apr 26, 2011 9:50 UTC (Tue) by copsewood (subscriber, #199) [Link] (4 responses)

Allowing software development and use to become more expensive in the US will be the price you have to pay if you don't fix your patent system. From this side of the Atlantic we have our own threats to counter in relation to preventing development of a similar patent regime in Europe, and the worse it gets in the US the more the campaign against poor quality patents in Europe is strengthened. From this side of the pond, US specific patent problems can seem a somewhat localised issue, especially given that the litigation can occur parochially in the state jurisdiction with the most patent friendly courts. I can't begin to imagine why trade throughout the US relating to the patent in dispute should be dictated by the outcome in a state court in any case.

Either fix the patent system or allow the US economy to suffer

Posted Apr 26, 2011 10:51 UTC (Tue) by drag (guest, #31333) [Link] (3 responses)

It's not up to us. If it was then it would be a solved problem.

The court system is it's own system with law based on precedent. It's independent from any sort of democratic influence. It would require a major legislative effort to change this and that is not going to happen any time soon.

What is really required is that if you have a project or a company that wants to be innovative or produce competitive products then the best thing that can be accomplished is to not base it in the USA.

Either fix the patent system or allow the US economy to suffer

Posted Apr 29, 2011 3:42 UTC (Fri) by jtc (guest, #6246) [Link] (2 responses)

"What is really required is that if you have a project or a company that wants to be innovative or produce competitive products then the best thing that can be accomplished is to not base it in the USA."

Is the US really that much worse than other developed nations? I thought the EU, for example, also had problems with software patents. Is their system much less problematic than ours (US)? I'm asking because I'm really not very familiar with the situation outside of the US.

Either fix the patent system or allow the US economy to suffer

Posted Apr 29, 2011 8:56 UTC (Fri) by copsewood (subscriber, #199) [Link] (1 responses)

There are efforts to introduce software patents into Europe. In some cases inventions are patentable due to a combination of software and hardware. I'm sure patent officers and lawyers would love to have a similar software patent regime in Europe to the US. But by and large, software patents have been resisted in Europe, with the EU parliament opposing introduction of software patents the last time this was voted on, with the commission (which tends to be more professional lobbyist influenced) having tried to open the way for software patents.

Either fix the patent system or allow the US economy to suffer

Posted May 5, 2011 21:47 UTC (Thu) by Wol (subscriber, #4433) [Link]

Software patents are actually EXplicitly FORBIDDEN by the European Patent Treaty.

So unless they can get round it by claiming it's "not a pure software patent", then any software patent has been illegally issued. That doesn't stop them, though :-(

Cheers,
Wol

A victory for the trolls

Posted Apr 25, 2011 21:59 UTC (Mon) by MisterIO (guest, #36192) [Link] (8 responses)

Yes, stop making software in the USA.
No, but seriously, this is so annoying that I'm tempted to start to make troll posts like this!

Why do you think it's "troll post"?

Posted Apr 25, 2011 22:57 UTC (Mon) by khim (subscriber, #9252) [Link] (4 responses)

To me it looks like quite logical and real solution. Compare with "hot new industry of XIX century": chemistry. By the 1862 British firms controlled 50% of the market and and French firms controlled 40%. They had quite good patent protection. It was so good in fact that in 11 years time they lost most of the market (German companies had 50%). Later Germans were convinced to enact limited patent law so process slowed down: by 1913 they only had 80% of the market. More information here.

It'll be interesting to see how fast software development will be moved out of US - and what exactly will be moved first.

Why do you think it's "troll post"?

Posted Apr 26, 2011 0:16 UTC (Tue) by klbrun (subscriber, #45083) [Link] (2 responses)

Youtube is not permitted in China; neither is Facebook. I don't see software development of these products moving to China. Google has had other issues with China as well.

Russia is similarly authoritarian, Africa lacks in infrastructure, Latin America has various nationalisms that are coming to the fore, Canada lacks the population. People have predicted software would leave the US for India for over 30 years; hasn't happened yet.

There is a reason things are the way they are. Changes would be against inertia.

Why do you think it's "troll post"?

Posted Apr 26, 2011 1:04 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

Why not Europe? Western and Eastern Europe have fairly sane laws and not many software patents (yet).

Why do you think it's "troll post"?

Posted Apr 26, 2011 4:45 UTC (Tue) by FlorianMueller (guest, #32048) [Link]

You are wrong about the European situation: there are large numbers of software patents in Europe (many tens of thousands, if not hundreds of thousands), the courts uphold them, and there's also some litigation going on, such as Apple suing Nokia in the UK and in Germany over 9 European software patents.

Also, more fundamentally, patents regulate target markets, not countries of origin. If a company is based in a no-software-patents jurisdiction, it is still affected by them once it tries to serve markets that have software patents.

Why do you think it's "troll post"?

Posted Apr 26, 2011 2:50 UTC (Tue) by njs (subscriber, #40338) [Link]

But it doesn't matter where the software is developed -- for patents, what matters most is where the market is. Probably in the long term the US market will be less important, and as that happens we USians will have to accept inferior software (or illegal downloads, cf. mplayer) so long as our patent system remains more broken than that in other places.

A victory for the trolls

Posted Apr 26, 2011 1:13 UTC (Tue) by lakeland (guest, #1157) [Link] (2 responses)

It wouldn't help.

Where the software is made is irrelevant - you would have to go one step further and stop selling software in the US. Given the exceedingly broad definition of selling, I would suspect you would have to - at least on paper - ban distribution in the US entirely.

A victory for the trolls

Posted Apr 26, 2011 7:31 UTC (Tue) by jengelh (subscriber, #33263) [Link]

>one step further and stop selling software in the US.

That reminds me of the following wording in Microsoft-style EULAs: "The Software is licensed, not sold."

And a license could be bought over Internet, i.e. buying in another country and importing it yourself.

Sure, but this is minor issue

Posted Apr 26, 2011 12:08 UTC (Tue) by khim (subscriber, #9252) [Link]

You can sign a deal with someone who'll sell your programs in US. Since only proven-good software will be sold there expenses will be slimmer. Since you still will amass US patents to cripple efforts of US competitors they will feel the full impact.

Basically the threshold is the point where it's pointless to even try to create new startup for it will be destroyed by overseas competitors before it'll reach the stage where it can be IPOd.

This will require few more years and some more high-profile defeats (like the one under discussion today).

P.S. This why I said China and not India: you need strong internal market for the effect to take hold. If the YouTube and/or Facebook are illegal there... well it just means that development in these directions will still be concentrated in US and will lag behind other developments.

Yes, solution is underway...

Posted Apr 25, 2011 22:40 UTC (Mon) by khim (subscriber, #9252) [Link] (5 responses)

Yup. It's not even hard, really - in fact the process is well underway. Move the software development to countries like China where software patents are largely ignored and only buy patents from other companies for the products which must be exported to US.

Of course it's hard problem (you should first make sure US is forbidden from just printing money) but it goes along quite well. If nothing changes then I think in about 15-20 years time software development in US will be history and software patents will not bother anyone.

Of course there are small probability that US congress will see the forest for the trees, but the probability is small indeed: while patents are crippling for the industry then are actually beneficent for individual companies.

Yes, solution is underway...

Posted Apr 25, 2011 23:14 UTC (Mon) by butlerm (subscriber, #13312) [Link] (1 responses)

while patents are crippling for the industry [they] are actually beneficent for individual companies.

It is sad that such arguments carry sway. One might equally say while crime is crippling for society, theft is beneficial for actual thieves.

Yes, solution is underway...

Posted Apr 26, 2011 0:20 UTC (Tue) by Trelane (subscriber, #56877) [Link]

It's not the argument but the campaign contributions.

China has lots of software patents, too

Posted Apr 26, 2011 4:50 UTC (Tue) by FlorianMueller (guest, #32048) [Link]

Software patents are not at all ignored in China. The only major emerging market in which there are relatively few of them is India.

Yes, solution is underway...

Posted Apr 29, 2011 4:00 UTC (Fri) by jtc (guest, #6246) [Link] (1 responses)

"while patents are crippling for the industry then are actually beneficent for individual companies."

I'm not convinced that this is true overall. If you weight the benefits vs. the drawbacks with respect to the patent system for each company, where the result is > 0 if there are more benefits than drawbacks and < 0 if more drawbacks, and then you average this value out for each company, will you get a positive or a negative value? I suspect the odds are good that it will be negative, or positive but so close to 0 as to not make much difference.

If that's so and if you then add the obvious negative consequences to FOSS developers and users, I think you could have a strong argument that software patents, like legalized slavery, are detrimental to society and should be abolished. (Yes, the degree is less than that of slavery, but the harm may still be demonstrable.)

Well, it's more complex...

Posted Apr 29, 2011 9:06 UTC (Fri) by khim (subscriber, #9252) [Link]

If you weight the benefits vs. the drawbacks with respect to the patent system for each company, where the result is > 0 if there are more benefits than drawbacks and < 0 if more drawbacks, and then you average this value out for each company, will you get a positive or a negative value?

Of course it's negative! But it does not matter one jot. You see: patents are net negative and long copyright extensions are net negative (because they stimulate ever-increased harassment of "copyright violators" by authors who did nothing interesting in last 10-20-30 years and not creation of new interesting works) but they are net positive for the people who can actually pay for congressmen campaigns!

If that's so and if you then add the obvious negative consequences to FOSS developers and users, I think you could have a strong argument that software patents, like legalized slavery, are detrimental to society and should be abolished.

You have an argument, but you have noone to even voice it, let alone fight for it. If you are small startup then usually you don't have money and time to fight patents. Most startups fail (and it'll be true with or without patents), but some survive and grow large and rich. At that stage they have both money and power to fight patents - but why should they? Patents are net positive for large behemots.

Slavery was abolished not because it was "morally right to do", but because there was powerful lobby which wanted to abolish it. Industrial North needed consumers - and slaves are poor consumers. It was "morally wrong" for centuries, but it was only abolished when powerful interests needed to abolish it.

I don't see powerful forces which need to abolish patents today so even if it's net drag on the economy they'll remain and they'll straighten over time.

A victory for the trolls

Posted Apr 26, 2011 4:58 UTC (Tue) by b7j0c (guest, #27559) [Link] (1 responses)

yes, move out of the USA or just thumb your nose at the law and hope you don't get caught. if the problem gets worse, this will be the state of affairs.

A victory for the trolls

Posted Apr 28, 2011 8:16 UTC (Thu) by ekj (guest, #1524) [Link]

This *is* the state of affairs.

There's so many so trivial patents on obvious software-techniques today that it's virtually guaranteed that any software above a certain complexity-treshold will infringe on a number of them.

There is precisely no way at all to write a non-trivial program, and be reasonably sure that you can legally sell it, without infringing any patent.

Thus the best thing you can do about it is either not to write programs, or to do so while ignoring patents alltogether and hoping for the best.

A victory for the trolls

Posted Apr 27, 2011 10:21 UTC (Wed) by wookey (guest, #5501) [Link]

Fixing the damages so that they were proportionate to the contribution of the patent in question, rather than being '25% of the product value', which is, I understand the normal rule of thumb (not sure in which jurisdictions that is). The total disconnect between proportionality of damages and the value of patents is what makes the troll business model work. If they only got their fair share (1/10,000th or so of product value in most cases, rather less in the case of the kernel), then it wouldn't be worth bothering with and the problem would (at least mostly) evaporate.

The advantage of this idea is that it seems plausible to make happen (as opposed to totally dismantling the patent system, which would be better, but seems a pretty remote prospect still). I know some people have high hopes that one outcome of the massive smartphone patent war going on at the moment would be some recognition that damages are ludicrously out of proportion to patent value.

We shall see.

Challenge the business model

Posted Apr 27, 2011 19:29 UTC (Wed) by thomas.poulsen (subscriber, #22480) [Link]

If the compensation patent holders could claim had to be related to a direct loss due to patent infringement, the business model of patent trolls would be less appealing.
If the troll does not sell products or do R&D, but only license patents, they should not be entitled to more compensation than they originally paid for the patent.
Arguments along these lines might be more appealing to the general public than direct attacks on software patents per se.

A victory for the trolls

Posted Apr 25, 2011 22:12 UTC (Mon) by Trelane (subscriber, #56877) [Link]

> Red Hat has filed a suit of its own against Bedrock. It seems that some Red Hat customers have been getting nervous about Bedrock's activity and asked for help; Red Hat responded by filing a preemptive suit asking that the patent be ruled invalid and that Red Hat's products be deemed to be non-infringing. That case is still in the works; Red Hat also tried to jump into the Google et al. case [PDF], but that attempt was denied by the judge.

I'm glad to see Red Hat working on the problem too!

"Red Hat responded by filing a preemptive suit"

Posted Apr 25, 2011 23:28 UTC (Mon) by cesarb (subscriber, #6266) [Link] (1 responses)

This is a sentence where I would have expected a link. Is there more information about RedHat's preemptive suit anywhere?

"Red Hat responded by filing a preemptive suit"

Posted Apr 26, 2011 4:53 UTC (Tue) by FlorianMueller (guest, #32048) [Link]

Red Hat's suit was reactive, not pre-emptive. The case number is 6:09-cv-00549, same court (Eastern District of Texas), but justia.com refers to PACER.gov for access to the documents. I downloaded some of the filings.

A victory for the trolls

Posted Apr 25, 2011 23:34 UTC (Mon) by tao (subscriber, #17563) [Link]

Funny, when I read the summary about a victory for the software patent trolls, my first thought was "Hmmm, what mischief has Florian been up to now?".

A victory for the trolls

Posted Apr 25, 2011 23:43 UTC (Mon) by ajb (subscriber, #9694) [Link] (10 responses)

We know software patents are a bad idea. How do we convince non-experts?

There is an example which we can learn from, which is how Hernando de Soto persuaded the Peruvian government to reform their (real) property system. De Soto set up an experiment, in which his team of lawyers attempted to operate a small business to the letter of the law. This brought the absurdities of the official system into sharp relief: For example, to wade through the red tape necessary to register the business, took 289 days.

This sort of concrete example is much more persuasive than the kind of statistics or abstract reasoning which come from academic reformists, for all their good will.

Can this be applied to software patents? I think it can, but it would require some investment from the larger companies affected. An outline of such an experiment would be:

Obtain a moribund piece of proprietary software which no-one cares about, eg, from a bankrupt company (other than SCO..). [1]
Measure how long it takes to find out what patents it might infringe. Ideally, produce a graph of lawyer-hours versus survey accuracy.
Try to figure out how much it would cost to licence all the patents, if it would even be possible.

This won't be quite as convincing as De Soto's experiment, for various reasons, but I think it's well worth doing.

I go into more detail about this in my submission to the UK IP review. Which also notes an unexpected (to me, at least) connection between software patents and the halting problem...

[1] We probably don't want to do this exercise on software we care about, because it might cause legal problems for users.

A victory for the trolls

Posted Apr 26, 2011 1:49 UTC (Tue) by wahern (subscriber, #37304) [Link] (6 responses)

This might be possible to do without having a huge wallet. The IP assets of your typical run-of-the-mill IT company are almost worthless. Larger companies don't buy moribund software companies for their software or patents, but usually for their employees. So an IT company that no longer has any employees is almost completely worthless, with no hope of paying off creditors.

And if we target a company whose primary business wasn't even software, but where software was merely collateral to their primary "business innovation", then it should be even easier to acquire, and more effective an example. Then we're showing that you can't do *anything* without paying these exorbitant fees.

One problem with this approach, though, is that it presumes the law expects compliance. To the contrary, most legal scholars would readily admit that as regards patent and copyright, most behavior is "unlawful". This doesn't just apply to patent and copyright. We commit torts all the time. Imagine how expensive it would be to ensure that we never illegally trespassed, or never committed a battery? It's implicit that we all make cost+benefit analyses regarding our behavior. This is ultimately the difference between civil and criminal law. It's not inherently wrong to "illegally" use a patent, or to break copyright law. But *if* you get caught, the law allows a transfer of assets. So you modulate your activity based on your expected risk of getting caught, and the law doesn't frown on this balancing act.

The only question then isn't whether you're forced to break the law. The question is whether the transactional costs--e.g. erroneous discounting of your liability (i.e. poor calculation of `damages x chance of getting caught')--are so enormous that the cost is unjustified. This is the case with the property regime in much of Latin America and elsewhere, according to de Soto. (IIRC The Mystery of Capital correctly.)

It's not clear this is the case with software patents. Or rather, given the presumed [if erroneous] benefits that policy makers believe software patents create it's not clear that the transactional costs are disproportional. Arguing that most businesses ignore software patents undercuts our argument. And even if we show high costs then the easiest solution, practically speaking, would be to make enforcement for software patents more difficult and not necessarily to make software patents more difficult to acquire, or scrapping them altogether.

So ultimately we're still left with showing that the absolute benefits created by software patents are illusory.

A victory for the trolls

Posted Apr 26, 2011 2:36 UTC (Tue) by jone (guest, #62596) [Link]

I guess you could illustrate the issue closer to home with something like recipe patents .. then open a restaurant, throw a party, or put together a recipe book that deals solely with infringed recipes. The temporal nature of food consumption seems sufficient to perhaps help illustrate the illusory nature around "intellectual property" patents.

What I find humorous in much of this is the almost deliberate taunting of the system. For example the Microsoft case a couple years ago against i4i (eye for an eye?) that claims infringement on an integrated XML editor in Microsoft Word but can't seem to even successfully use XML on their company website. And now Bedrock (Flinstone's reference?) that took some old patents from Bell Labs to try and cash in on a few foundational concepts in computing (funny how they reference Knuth 1973 - but nobody cries prior art.) Almost like suing a construction company for their use of a quarry.

A victory for the trolls

Posted Apr 26, 2011 6:40 UTC (Tue) by ajb (subscriber, #9694) [Link] (4 responses)

The huge wallet is to pay all the lawyers to read patents.

Part of the point of this experiment is that even if it were cheap to license all the patents, the cost of actually figuring out which patents you probably infringe is enormous. This is actually a significant difference between software and, for example, medicines. Medicines have a natural etymology - the chemicals that make them up. That means that keyword searching is a reliable means of narrowing down from the whole patent database to a short list of possibles to read. Keyword searching is much harder in software. A program's logic is in its structure, not the names of its variables. There are frequently several English words which can be used for the same concept (find, get, look up, retrieve, etc). Different communities often reinvent the same technique and call it by different names. Areas which have been around longer, such as automotive, settle on the same terminology over the years.

In principle, you could set up a system whereby pharmaceutical patents were described in a machine readable form, and you could search it to see if your new invention is already there, without paying any lawyers at all. Try to do the same for software, however, and I think you run into the halting problem (or more accurately, Rice's theorem: http://en.wikipedia.org/wiki/Rice%27s_theorem)

The fundamental question is whether the patent system, seen as a datastructure, *scales*. The real property system scales as the number of properties increases, because in the event of disputes, you only have to consider neighbouring properties, not potentially all other properties in the registration system.

A victory for the trolls

Posted Apr 26, 2011 8:58 UTC (Tue) by wahern (subscriber, #37304) [Link] (3 responses)

You have to discount the costs by the chance of enforcement. Discounting by risk is then the prospective cost, excluding transactional costs. If your potential liability is $5m for breaking the patent, but the chance of enforcement is only 1 in 10,000, then the prospective economic cost is $500. If executing a patent search costs more than $500, then just don't do the search. You might say that individuals don't think this way, but we do at least behave this way; and venture capitalists, with dozens or hundreds of investments do think in terms of probabilities and risk.

How many times have you turned around on a side street by poking the front-end of your car into someone's driveway? This is trespass, and the owner could sue you. But a court would probably only ever award a one-time offender $1 in damages. If a chance of suit is 1 in 1,000,000, then your cost is infinitesimal, and taking the risk is absolutely worth it. That explains why you never think about it. If the potential repercussion was death, you'd be doing a heck of a lot more curb-side three point turns.

The fact that you could be sued, and that it would be absurd in the grand scheme of things to actually be sued, doesn't mean we should modify the property regime to take this into account. There's no need to write in an exception for using driveways to turn around. The fact that enforcement is not absolute, and the limit of damages proportional to some real economic value, solves the problem for us. The homeowner will only sue when his potential return is worth the effort; and the fact that he's oblivious to most driveway incursions is significant as well--it's manifestly evident that he's only going to pursue a conspicuous offender deriving significant benefit from infringing his right.

So, when you speak with a policy maker about the "costs" of patents, you can't simply point to the costs of fastidiously avoiding infringement; how the garage inventor is oppressed by the specter of a corporation suing him in Federal Court. That's because the whole regime is predicated on the notion that enforcement is lax, and on the whole only people for who it's economically worthwhile to seek a license will do so, and conversely patent holders will only seek enforcement on a small subset of infringers capable of paying. The risk of that garage inventor being sued is miniscule, and he knows it; the same way nobody in this thread realistically believes he's going to be personally sued by Bedrock for using Linux.

Patent holders rarely sue small start-ups because it makes sense to wait for them to be gobbled up by a bigger fish, and *then* sue the bigger fish. We tend to think this is an absurdity and evidence of how illogical the system is, but in fact this is exactly how things are expected to work. If the small fish understand this, then it means there's not as much reduction in innovation as we might think. The small fish will infringe, and the bigger fish will expect to be taxed if and when they eat the small fish.

Now, that's the general model. Once you crunch the numbers, of course, most of us would agree that on the whole it's not worth it. Also transactional and collateral social costs (e.g. people overestimating their risk of suit and reducing economic activity more than what is warranted) can overwhelm the social benefit of the system, but it's not as easy to show as one might think.

This entire analysis applies equally to the real property regime. Once you start to break real property interests into all the different kinds of estates, like life and leaseholds, and interests, like tenancies and contingents, then the complexity explodes from the trivial model you're implying. And, again, it works because perfection (solving the halting problem, if you will) is not the goal. If it's difficult to determine or enforce a property right, then it will indeed be enforced much more rarely and lightly, and the value and potential costs of that right will be diminished accordingly. Consider that if you sell a house with a warranty deed you can charge a higher price than if you sell a house with a quit claim deed (where you don't warrant clean title). The value of the right to both seller and buyer is diminished by the risk of enforceability of the right.

A victory for the trolls

Posted Apr 26, 2011 17:29 UTC (Tue) by ajb (subscriber, #9694) [Link]

Low probability of enforcement is evidence that the system is not working correctly, for a couple of reasons:

You can't simply factor out the probability of enforcement, because uncertainty also has a cost. And it's a cost to the system as a whole, not just a transfer between parties, because uncertainty causes friction. (It may seem peculiar to say that uncertainty is a problem for entrepreneurs - aren't they supposed to be all about taking risks? But we want them to spend their risk-taking capacity on innovation, not working round legal uncertainty).

This degree of uncertainty over property ownership is not seen in other areas of property. Yes, discounting by risk occurs in real property, but the vast majority of real properties - at least in the developed west - have much more certain ownership; with discounting only used to get rid of residual risk. We have seen from the recent mortgage debacle that it causes huge stress if too much uncertainty is allowed into the system. In developing countries, uncertainty over property ownership is a huge drag on the economy. Even in patents, in other industries, such as pharmaceuticals, small companies rely much less on assuming that enforcement will not occur, and actually do licence. That is why the issue in pharma is whether there is a 'patent anticommons'.

You make the same argument that Paul Graham makes (http://www.paulgraham.com/softwarepatents.html), that trolls are content to wait for the bigger fish to buy up the smaller ones. We can assume that he knows what he is talking about. But we can't assume that it will continue that way. Not all smaller companies are bought by bigger ones; in fact, small companies make up a large proportion of the economy. Trolls will want to monetise them if they can, and we can expect them to become more efficient at doing so over time (eg, via exchanges such as http://www.ipxi.com, which is implementing the ideas in Lemley and Myhrvold's "How to make a Patent Market (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012726)). Also, it is not necessarily the case that infringing a patent simply incurs some percentage 'tax' on profits. In a perfectly efficent world, each troll would negotiate separately with each infringer, but that can't happen, so we see fixed prices which prevent certain uses, such as in the MPEG pool. So the liability created by patents can make some businesses uneconomic, and this will become a larger effect once smaller companies are drawn into the system.

Secondly, the uncertainty is not just due to the low probability of enforcement, but due to the inaccuracy of determining whether you are infringing a patent. This inaccuracy dilutes the incentive effect that is supposed to be the reason for patents.
You are right that we can't obtain perfect accuracy, but the interesting question is how much does it const to obtain enough certainty for the system to actually work. That's why I suggest measuring how much information you can get for a given cost.

Also, from a political point of view, it's worth challenging the simple narrative that proponents of software patents push - in which software patents are a 'no-brainer' benefit to the economy. Exposing the real situation is well worth doing.

A victory for the trolls

Posted Apr 26, 2011 18:07 UTC (Tue) by copsewood (subscriber, #199) [Link]

Bankruptcy administrators are obliged to monetise the bankrupt's assets including patents. This might most conveniently occur through sale of the patent to a third party, but if no-one wants to buy it the administrator is obliged to enforce the patent against potential licensees. If the startup offered a license can afford neither to license it nor to litigate it, the administrator is likely, if it takes the matter to court, to obtain the startup business and it's assets as it stands. In this situation the only strategy available to the startup owner to avoid losing the business is to threaten to spend all assets attempting to defend the suit until the business is worthless, in which event the administrator will see a negative asset value due to unrecoverable legal costs. But this is a dangerous bluff if considered as such and called. I've heard of once such case where a US small software business owner took this line and lost everything in the process.

A victory for the trolls

Posted Apr 28, 2011 8:30 UTC (Thu) by ekj (guest, #1524) [Link]

This makes sense up to a certain point, but there's huge problems with handing nuclear weapons out on the *assumption* that those getting them will generally tend to not use them against small fish often.

The *law* is supposed to decide who is punished and who isn't. (offcourse modified by the fact that the chance of getting caught ain't 100%)

But increasingly, we have laws where "Everyone is a criminal, few are prosecuted, but the penalties for those few who are -- are enormous."

This hands a lot of power to the people deciding who to prosecute. Power they're not supposed to have. A big company with many patents, say IBM, can at any time decide to destroy any small software-company they dislike by claiming patent-violation. They can do this for any reason whatsoever, though you're presumably right that most of the time economical considerations will be the most common reasoning.

It's not a good thing for competition to have an environment where any of the big can, at any time, take out any of the small. Offcourse being big they might be able to do that in any number of ways, but that's no argument in favor of giving them even -more- ammunition than they've already got.

A victory for the trolls

Posted Apr 26, 2011 4:59 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (1 responses)

Sorry to say so, but this approach won't impress political decision-makers in the slightest. First of all, it's just a hypothetical thing in terms of the licensing cost. In practice, not every patent is asserted against every potential infringer (not even in the smartphone space, though there's a lot of enforcement going on there). Politicians don't care about what might theoretically happen if it doesn't happen in practice. If the likelihood of this kind of total patent enforcement scenario is so low that maybe one software company will go out of business every 150 years, they won't care. Moreover, the problem you point to could also be solved through other means than abolition, such as ensuring that the total amount of damage awards to all patent holders is only a certain percentage of a product's overall economic value.

I explained a while ago right here on LWN that politicians won't abolish software patents until they see that software companies really suffer and approach them with calls for abolition, and that those calls aren't just based on filling out a web form in five minutes but that there's a serious effort bein made. In terms of the constituency that politicians would care about, I mentioned what a staffer of the conservative group in the European Parliament told an anti-software patent activist years ago. He said: bring on those middle-aged closed-source entrepreneurs with beards, bellies and glasses.

A victory for the trolls

Posted Apr 26, 2011 7:12 UTC (Tue) by ajb (subscriber, #9694) [Link]

Indeed, but I think such an experiment would play a useful part in persuading closed-source entrepreneurs of the dangers of software patents. In the long term, it is the growth of trolls which will do this, but we need them to understand before the trolls actually win. (If patent markets such as http://www.ipxi.com/ become entrenched, it will be impossible to reform the system).

I don't think closed source people quite understand their potential exposure right now. That is what this kind of experiment can change. We need to show them that the software world is effectively living in a 'black economy' - like the third world entrepreneurs who can't register their property.

One of the things about a black economy, is that businesses can't appeal to the law to protect themselves. We are not quite to that point in the software world, but you can imagine analogous problems. For example, businesses are often concerned about the 'disgruntled employee' problem. If a disgruntled employee offers a rival company his employers trade secrets, they will usually report him to the police, because they would get into legal trouble otherwise. But suppose instead a disgruntled employee offers evidence of patent infringement. This kind of thing already happens in the copyright world, with 'shop your employer' lines for software licenses. It's not much of a stretch to imagine it happening over patents.

A victory for the trolls

Posted Apr 26, 2011 17:42 UTC (Tue) by fritsd (guest, #43411) [Link]

Sell your commercial software under two licenses: one, normal priced, with a sticker "not for sale or use in the USA and Japan", and another one, 100x more expensive, without that sticker and with lots and lots of pages of legalese about the kind of software patents infringements that the software license doesn't indemnify, and why you should be careful using software in "software-patent-land".

Once this price differential has come to the attention of corporate buyers in the USA, it won't be very long before their software patent laws suddenly are not a problem anymore :-) Because it suddenly puts a visible price tag on the problem.

Patent recourse via government redistribution

Posted Apr 26, 2011 3:02 UTC (Tue) by ccurtis (guest, #49713) [Link] (7 responses)

Sticking my little toe into the patent pond here ...

Does the U.S. government redistribute Linux anywhere (mirror.anl.gov perhaps)?

If so, what are the implications around this fact, 28 USC 1498 (which allows the government right to any U.S. patent without payment to the holder), and the patent grant section 6 of the GPL v2?

Can the argument be made that people getting Linux from government sites are thereby entitled to whatever license the government is using in order to not be beholden to the patent troll?

Patent recourse via government redistribution

Posted Apr 26, 2011 3:53 UTC (Tue) by jspaleta (subscriber, #50639) [Link]

Careful. The government's right to use may not extend to cover the government's right to redistribute. And then we get into the question of whether the government must comply with copyright laws which underpin the GPL language. It's an interest thought, but I don't think you can count on it as a defense for non-governmental use until that argument has been found valid in a court of law. I'm not aware of any court precedent which would suggest that such an argument has been found valid in any other context so far.

-jef

Patent recourse via government redistribution

Posted Apr 26, 2011 4:02 UTC (Tue) by wahern (subscriber, #37304) [Link] (4 responses)

(a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture. ...

This doesn't grant the government a license. All it does is define the terms upon which it allows itself to be sued. Otherwise sovereign immunity would preclude the ability to sue the government, regardless of whether your claim was with merit. With rare exceptions--4th Amendment Takings, so-called Bivens Actions for 5th Amendment violations, etc--you cannot sue the government, even if what it's doing is illegal, unless the government passes a law specifically submitting itself to suits. The same concept of sovereign immunity applies to States, except it gets messier because of Federalism issues. Sovereign immunity is the rule the world over, more-or-less. Immunity doesn't imply the immune person is in the right, only that they're untouchable.

Without knowing anything specific about the case law, it would seem to preclude injunctions, but clearly not monetary relief. And I see no implication here that a private entity would be protected except in so far as they're acting as an agent of the government:

... For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.

Patent recourse via government redistribution

Posted Apr 26, 2011 4:13 UTC (Tue) by rahvin (guest, #16953) [Link] (3 responses)

It's been a long time since I looked but I thought I remember other sections in the US code that allowed the US military free use of any invention, patented or otherwise with or without compensation entirely at the discretion of the military. I can't remember the sections or the quotes but I thought it was in the sections governing the military.

Patent recourse via government redistribution

Posted Apr 26, 2011 21:03 UTC (Tue) by david.a.wheeler (subscriber, #72896) [Link] (2 responses)

I don't think that's true at all; the U.S. military DOES have to pay attention to patents. There's a LOT of stuff involving patents and the military that might be related to what you're thinking about, so I'm not sure what you're alluding to.

You might be referring to title 10's section 2354. Contracts: indemnification provisions. There it says that "With the approval of the Secretary of the military department concerned, any contract of a military department for research or development, or both, may provide that the United States will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract...". But notice that this is NOT blanket permission. Instead, this transfers risk from the contractor to the government. ALSO note that only happens when the Secretary of a military department approves; this is NOT a routine grant.

The Defense Federal Acquisition Regulation Supplement (DFARS) is the master instruction book and template set for most Department of Defense (DoD) acquisitions; take a peek there to see what you have in mind. You especially want to look at part 227 ("PATENTS, DATA, AND COPYRIGHTS"). There's a LOT there, but usually if you take government money to build something and there's a patent, the government gets a right to use the patent for government purposes. It's a LOT more complicated than that, but even so, it's not the case that "the military can ignore patents".

Clarification

Posted Apr 26, 2011 21:11 UTC (Tue) by david.a.wheeler (subscriber, #72896) [Link] (1 responses)

What I meant in my previous post was that if (1) a contractor takes government money to build something, and (2) the contractor patents an invention in the course of that contract, then the government typically gets a patent license to use it for government purposes. For example, the stock clause 252.227-7038 "Patent RightsOwnership by the Contractor (Large Business)" item (d)(2) says, "If the Contractor retains ownership of any subject invention, the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on behalf of the United States, the subject invention throughout the world." There are other clauses that may be used instead, depending on the circumstance, but let's use that one for now.

I hope that makes sense. Basically, if the government pays someone to do some work, then the government gets a number of rights on the result. It's way more complicated that this; I'm trying to simplify something rather complicated. I am not a lawyer (IANAL)!

Clarification

Posted Apr 26, 2011 22:27 UTC (Tue) by rahvin (guest, #16953) [Link]

That's what I remember was that section, I remember a discussion about how the government could buy a single patented invention then use that invention in some top secret skunk works project without worrying about an infringement claim. Although this makes me wonder if they don't pay and just not tell the companies what it's for.

It's sort of like the following story. My wife's family is from Lincoln county Nevada. Area 51 is in Lincoln county and it's a very small county (population wise that is). Business and professional taxes are levied by the county on any business operating within the county. The county was aware that there was commercial activity taking place at Area 51 airbase by sub-contractors and began making inquires with the Air Force about lack of payment of the required taxes. As you may be aware the US government denies there is a facility called Area 51 or any facility located in the area generally known to be Area 51. Well the end result of the counties inquiries was that the they received a check for a bit more than a million dollars with no identifying information on where the check came from or what is was for. The county presumed it was the back taxes due and dropped the issue (probably after receiving a few unofficial phone calls saying the same).

Patent recourse via government redistribution

Posted Apr 26, 2011 4:08 UTC (Tue) by rahvin (guest, #16953) [Link]

There is no explicit patent transfer under GPL2, whether the clause in GPL3 would count as an official transfer is debatable. The key point I guess would be that as I read the US code the Government's key to the patent office only applies to the government. In other words, even if the government uses a patented invention you can't sue them for infringement, it's essentially a governmental immunity. Even if the government redistributes they aren't transferring a patent grant so regardless of what the license says you couldn't use it as a work around.

Asserted claims

Posted Apr 26, 2011 4:49 UTC (Tue) by FlorianMueller (guest, #32048) [Link]

The article cites independent claim #3. However, that claim is not at issue at this stage. The two claims the jury deemed Google to infringe are #1 and #2, cited in this blog post.

A victory for the trolls

Posted Apr 26, 2011 14:50 UTC (Tue) by ccchips (subscriber, #3222) [Link] (2 responses)

As long as we're discussing patents--

If the current patent reform flap goes the way it seems to be going, it's possible that patents will be granted to first applicant, not first inventor. In a country where we can't count on the patent office to properly assess the validity of a patent, nor to invalidate ones that should be invalidated, how would the above change be a good thing?

A victory for the trolls

Posted Apr 26, 2011 15:07 UTC (Tue) by Seegras (guest, #20463) [Link] (1 responses)

It's irrelevant, of course.

But since the rest of the world uses first-to-file, the change makes some sense if you view it from the constraints of the superstitious mindset of patent-advocates.

A victory for the trolls

Posted May 5, 2011 22:13 UTC (Thu) by Wol (subscriber, #4433) [Link]

And IF two applications are deemed to be on the same invention, it prevents any argument over who gets the patent.

At the moment, the "first to invent" rule allows the second-filer to rack up large legal expenses fighting over "who really was the inventor". In "first to file", the *only* thing the second-filer can end up winning is simply to invalidate any and all patents. They can't get the patent themselves.

That's something a lot of Americans who don't like "first to file" argue wrongly. All "first to file" means is that there's no argument over who is entitled to the patent IF the patent is valid. The date on the patent application (or prior publication) is EVERYTHING. Take the patent this article is about, for example ... :-) In a "first to file" environment, all Google would have to do is produce an example of the code being sued over, prove that it was "in the wild" the day before the application date on the patent, and game over. Bedrock either fold on the spot (claiming they got it wrong and their patent DOESN'T cover the affected code), or watch their patent get killed.

Cheers,
Wol

A victory for the trolls

Posted Apr 26, 2011 17:24 UTC (Tue) by smadu2 (guest, #54943) [Link]

Did Google attempt to upstream the kernel changes ? Apologies if this was already discussed above.

Probaby not gonna happen but...

Posted Apr 27, 2011 18:36 UTC (Wed) by utoddl (guest, #1232) [Link] (2 responses)

I don't suppose this will, or even should, happen. But I can't help wonder what the effect would be if, until this is all settled for good, Google quit providing service to IP addresses in the eastern district of Texas, being clear in the process why such service was curtailed. At the very least, it would bring the visibility of the problem to a broader audience than us endlessly talking about it to ourselves ever will.

Probaby not gonna happen but...

Posted Apr 27, 2011 20:37 UTC (Wed) by ccchips (subscriber, #3222) [Link] (1 responses)

I keep thinking about how Ivan Stan's people got kicked off KNON in Dallas (along with a lot of other good people) because they weren't "empowering the pelple." ;)

Is it save to say "evolution" in East Texas?

Probaby not gonna happen but...

Posted Apr 27, 2011 20:38 UTC (Wed) by ccchips (subscriber, #3222) [Link]

Aw shucks--I meant "Ivan Stang." Duh!

"This verdict has been widely publicized as a big defeat for Linux."

Posted Apr 28, 2011 15:55 UTC (Thu) by nettings (subscriber, #429) [Link] (1 responses)

"This verdict has been widely publicized as a big defeat for Linux."

Ho humm. If anything, this verdict is a big defeat for the US legal system. Personally, I don't give a rodent's bottom for some runaway American lawyers. Let's just hope the EU eventually stops caving in to US demands, so that the problem is eventually contained safely to North America. When the first blue chip corporation then migrates to Europe so that it can conduct business unfestered by that kind of crap, I'm sure the market will eventually sort out the patent issue for good.

There have been some interesting analyses about what happens to capitalism in its late state (most of them turned out to be wrong), but I wonder: has anybody ever projected what will happen to a constitutional state in this very advanced state of alienation? The idea makes me shiver...

The French Revolution.

Posted May 19, 2011 1:43 UTC (Thu) by csawtell (guest, #986) [Link]

A replay of The French Revolution, or something similar is what happens once the trolls get totally out of hand.

Google patent loss: no guilt

Posted Apr 29, 2011 22:36 UTC (Fri) by giraffedata (guest, #1954) [Link] (6 responses)

... the jury, which found Google guilty and granted an award of $5 million

The jury didn't find Google guilty of anything; Google wasn't even accused of a crime.

The jury found that Google owes Bedrock money. There's no guilt in owing someone money; it happens to the best of people.

Google patent loss: no guilt

Posted May 11, 2011 13:51 UTC (Wed) by robbe (guest, #16131) [Link] (5 responses)

Amazingly, in German the same word is used for "being guilty" and "owing something". Maybe its the same in colloquial English, as opposed to technical legalese?

"debt to society" comes to mind. Historically criminal guilt and civil debt seem to be closely linked.

Google patent loss: no guilt

Posted May 11, 2011 16:34 UTC (Wed) by giraffedata (guest, #1954) [Link] (4 responses)

Amazingly, in German the same word is used for "being guilty" and "owing something".

Yes, that's pretty amazing. What is the word?

English "guilt" comes from the Old English "gylt", meaning crime. Old English is related closely enough to German that I would expect there to be a similar word in German.

In decades of living in the US, I have never heard "guilty" used to refer to owing money except in the case where the debt was decided by a court, and then it's obviously due to confusion with criminal trials where losing the case = being guilty.

Or if there's some reason it's wrong to be in debt, like when someone says, "I feel guilty because I used my credit card to buy a new TV after I promised my wife we would stop spending more than we earn."

"Debt to society" is a strange metaphor that's supposed to explain how someone can redeem his guilt by suffering a punishment, but I don't think anybody really thinks of being guilty of a crime as a debt. It's not like the judge says, "I find that you owe us 3 years in jail" or that people think it's acceptable to rob a liquor store as long as you give the money back and do the time in jail.

Google patent loss: no guilt

Posted May 11, 2011 18:20 UTC (Wed) by Trelane (subscriber, #56877) [Link] (3 responses)

"Schuld" as a noun is "debt" in English. "Schuldig" as an adjective is "guilty."

Google patent loss: no guilt

Posted May 11, 2011 18:26 UTC (Wed) by Trelane (subscriber, #56877) [Link]

"schuldig" can also mean to owe something to someone, particularly e.g. "er ist Dir was schuldig" ("He owes you something.")

Google patent loss: no guilt

Posted May 11, 2011 19:03 UTC (Wed) by giraffedata (guest, #1954) [Link] (1 responses)

Is "schuldig" just for the verdict of a criminal trial, or also for the emotion? I.e. if you're supposed to be on a diet and you give in to your craving and eat a whole cheesecake, do you feel schuldig?

I remember now that another term used in legal circles for what a criminal court decides is "liability," as in, "the accused is criminally liable." "Liable" is the same word to refer to simply owing someone money, guilt-free.

Google patent loss: no guilt

Posted May 12, 2011 11:44 UTC (Thu) by paulj (subscriber, #341) [Link]

As a (somewhat lapsed) dutch speaker, "liability" to me is the more accurate base meaning for "schuld", leading to expanded meanings of "debt", "blame" and "guilt" in different contexts. In dutch you can indeed feel "schuldig".

software patents DO NOT pose any threat to the free software community

Posted May 13, 2011 19:07 UTC (Fri) by guest01 (guest, #25274) [Link]

No software patent troll has even the slightest care about free software, open source, Linux, or whatever. Their goal is to extract money from large, rich corporations with as little outlay and effort on their part; the more the better.

Free software is simply the vector (and, given the nature of how free software works, a very easy vector!) by which they achieve their goals. If anything it is in the best interest of all such trolls that free software stay alive and well.

How much easier could it be to determine if someone is infringing on your patent than to simply download and examine their code? Better yet, now that prior art doesn't guarantee patent invalidation, simply look at some rich corporation's code and file as many patents against it as you can. It's only a matter of time before you'll find an idiotic judge, ignorant jury, or lazy lawyer (or some combination) and suddenly "big evil corporation" owes you a lot of cha-ching!