"But for an app developer to take a year or two to write an application and to see money from the app, is good fortune built on top of the contributions of the entire shared ecosystem, including independent inventor’s patent outputs such as Abelow’s." [1]
Oh give me a fucking break. Yeah, us developers would be utterly lost without the exciting "inventions" of Abelow and Lodsys LLC.
The bigger issue, is that the current 'in app purchase' system is mandated by Apple to be the only way purchases can be made for your app.
Apple licensed this technology, mandated it on it's developers, then failed to mention that it required a separate fee to be paid to a third party for use. How is this not getting more notice? Lodsys is evil, no doubt, but what Apple did right there is shady as heck.
Makes their recent destruction of competing iOS ebook apps even more insidious...
"We'll require you to sell everything via in app purchases at 30% commission to us, even though we know the industry standard gross margin comes out to exactly that 30% we're going to take off you. Oh, and we're not going to tell you about the patent we've got a licence for which means you're going to owe somebody else another 0.575% as well. Good luck making a living on that."
Thanks Apple... You're making the decision about whether to invest my time in iOS app development for my clients a lot easier... HTML5 mobile webapps FTW...
I've been kicking an idea around in my head for a while, although I've got no idea if it's viable or not. But it seems like it could put a stop to this kind of a thing.
Basically, it would be a non profit organization that accepts donations of patents by hackers, and uses them to sue only companies that themselves have used patents offensively.
Blatant patent trolls could also become targeted for life at future businesses - although I'm not sure of the legality of this - to serve as a severe disincentive for this kind of behavior.
Although it might take a while and quite a bit of money to get started, it seems like it would fund itself indefinitely once going, and enough people seem to be pissed off enough about the current situation that a serious amount of brainpower could be donated to the project.
Does anyone see any showstoppers for something like this, or is it just a matter of not having someone benevolent and gutsy enough to pull it off?
If we drop the concerns over legality, what about starting rumors that there's a secret offshore blind trust, contributed to by both deep-pocketed victims of patent trolls and open-source developers. A trust which exists to take the other side of anonymous bets regarding the death or disappearance of patent trolls.
Why does the countersuit have to be about patent infringement? Just sue them to be a nuisance. I'm sure Apple's lawyers are good enough to be a thorn in Lodsys' side.
- Filing a frivolous lawsuit makes the plaintiff liable for the defendant's legal expenses.
- Repeatedly filing frivolous lawsuits can get you labeled as a vexatious litigant, and if labeled as such you need a judge's permission to file even a valid lawsuit.
- Lawyers knowingly participating in frivolous lawsuits or vexatious litigation can be disbarred.
For these reasons, I don't think you will see corporations filing a lot of meritless nuisance lawsuits.
Getting a patent is annoying enough (> 5 years of waiting and prodding a cube worker) and expensive enough (tens of $k) to kill most altruistic patent seeking. People are motivated to get them by a return on their investment, not the happy notion that the world is marginally less bad.
"People are motivated to get them by a return on their investment, not the happy notion that the world is marginally less bad."
I've always understood that as well as restricting other companies from competing with a patent holder, there is also an element of "mutually assured destruction" which would potentially allow negotiation and cross-licensing with companies asserting a patent. Didn't SUN maintain patents for exactly this process?
Unfortunately most hackers won't have the ability to pay for filing patents in the first place. If you could get some patent lawyers working pro bono it might work.
It seems much easier just to petition the USPTO to re-examine the worst-offending patents, like the EFF's Patent-Busting project: http://w2.eff.org/patent/wp.html
What's the law on preferential protection of your patents?
With copyrights and/or trademarks, I think there's something like losing the rights if you fail to defend them. So people with legitimate, inoffensive uses for things have been quashed because of corporate policy on potentially profitable legal fictions.
edit: Whoa, forgot to complete the thought. The point is, you could lose if you end up just going after the people you don't like, leaving everyone from Apple to Microsoft to Zynga free to use your patents without so much as a licensing fee or even a piece of paper saying they can.
Maybe having enough money to pay lawyers to attack people.
But yes, I think this would be awesome, and if it was successful enough, whenever large companies say 'oh, we only hold patents for defensive reasons' they could be pressured to donate them.
Hmm thing is though, the countersue companies to stop them enforcing patents doesn't work so well for true patent trolls who aren't actually doing anything so probably aren't breaching patents (unless their patents breach patents, if that's possible).
How about patenting "a method for discovering patented methods in an application through a device". If you could be granted that patent, it would be the end of all patent trolling companies, forever. Or at least, you'd make a huge amount of money.
So basically an exact opposite of Intellectual Ventures? The problem with this is that people are still wasting energy, money, and time defending themselves. We need to get to a point where people can do their jobs without having to be paranoid that their going to get slammed with a lawsuit for some obscure and vague patent.
I think patents should be issued on a use it or lose it basis: if you do not make attempts to at least produce or license the product, you should not be allowed to horde it's IP and you it to extort others. Non-practicing entities, aka patent trolls, should be made illegal in general if they aren't making attempts to license their IP.
Sorry to be a nay sayer, but it won't work. If this requirement were set in place, a patent troll will get around it by hiring a coder for a week to get something out really quick that does something nobody needs and then they'll sell one copy to their grandma. This won't evoke any real change unless you manage to make it very complicated. There would have to be mandates in the law like x% of your company's revenue must be from actual sales of the product or something like it.
The better solution is to just end software patents. They have no value in the current software economy.
Of course there are loop holes in the the suggestion I made, it wasn't meant to be a cure-all solution, but rather to point out there are many many more pragmatic ways to go about software patents. I agree that the original inventor should be protected to an extent, but the current system is broken and needs reform.
Yes, it's not at all a perfect solution. But it's a practical hack that one of us could start, so it probably shouldn't be compared to what legislation to fix the issue could theoretically do.
I think it's really on Apple to step in and protect their developers here. There are many problems with working in a walled garden, which have been discussed at length here. But there should be, at least, one benefit: the garden's curator has your back.
There needs to be a cash penalty for people bringing frivolous patent claims - and that money should be awarded to the defendant. Then you could get no-win-no-fee laywers defending collections of small devs against claims they think are unlikely to win but which the devs couldn't afford to defend against.
If I make a music sharing site where people can upload their own music and sell their music, and my company which made the site licensed the MP3 codec or another proprietary codec to release the music files for sale, does this mean the licenser of the codec could then individually sue each person selling their music on my site, because they don't individually own a license for the codec, even though they are just using the tools provided for by them by a license holder?
That would probably depend on the terms of the IP licence. Does it cover downstream users, or not? If you're a platform, you get (hopefully, if you were properly advised) what you paid for. What you then represent to your downstream users to bring them to your platform should be honest, though. Prospective platform users presumably want to known whether this is a good platform for their business, i.e. IP-sandboxed, reliable, safe, with large footfall.
It presumably wasn't in fact IP-sandboxed. By that I mean that the upstream licensors have been selfish in their negotiations, or the platform doesn't indemnify you against claims, or even at least offer to coordinate a circling of developer wagons. What's interesting to know if whether they've nevertheless held it out as an IP-safe platform; if not, caveat emptor probably applies, and developers are now presumably kicking themselves for not making IP safety a part of their due diligence before contracting with apple, etc, for a platform on which to build their business.
Realities aside, it's tremendously regrettable that indy software developers and inventors are supposed to have to worry about third party IP rights, particularly over their usage of major commercial platforms for their business.
So then, "Patent trolling, it has to be unreasonable to exist."
This shows differences in generational understanding of words. "Trolling" in this case predates the widespread use with regards to Internet behavior and actually refers to fishing.
Just as trolling attempts to mimic a real school of fish, patent trolling attempts to mimic the legitimate licensing of productive patents. The reasonableness of the "bait" is entirely up to those doing the trolling. (And is largely subjective, which perhaps highlights a fundamental weakness of the current patent system.)
If we accept this kind of shit, there will soon be hundreds of leeches asking for their share of our money. And then even the most wealthy developers will feel the pain. I say squash those bugs early. If Apple, Google, and MS pay, they are stupid.
What was written as fiction, is actually happening in real life. We've made defending against frivolous patent claims expensive enough that someone with a broad enough patent can nickel and dime a large enough group of people hoping many of them will say "0.575%? Fuck it, I'll just pay..."
It will be interesting to see how this pans out in the long run...
My big question for apple and others is whether it's possible that by opting to not get a volume license the patent for downstream users of their platform, they might therefore face a suit alleging contributory or secondary patent infringement? For example, taken from this page (http://en.wikipedia.org/wiki/Patent_infringement_under_Unite...), is a summary of the position in the UK: "By the supply, or offer to supply, in the United Kingdom, a person not entitled to work the invention, with any of the means, relating to an essential element of the invention, for putting the invention into effect, when it is known (or it is reasonable to expect such knowledge) that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom."
How does this not also cover every web browser in existence? This seems to cover any networked communications system. Analytics and online ads would seem to be especially vulnerable.
All I can see is this guy is really good at writing patents. If you can't beat em, bury them in citations and they'll think you know what you're doing.
It seems like by doing the following, they get priority for any obviousness and prior art arguments back to 1992, but a filing date of 2003.
"This application is a continuation application of and claims priority to U.S. application Ser. No. 09/370,663, filed on Aug. 6, 1999, now abandoned which is a continuation of Ser. No. 08/934,457, filed Sep. 19, 1997, now U.S. Pat. No. 5,999,908, which is a continuation of Ser. No. 08/243,63 8, filed May 16, 1994, now abandoned, which is a continuation-in-part of Ser. No. 07/926,333, filed Aug. 6, 1992, now abandoned, the contents of each of which are incorporated by reference in their entireties. "
This patent describes a system for interactively polling users of a system about their preferences and/or opinions regarding that system's features. The stated intent is to enable users to provide feedback to potentially inform the creator of the system in making decisions on feature enhancements.
As with all of these stupid software patents, once you read the details (i.e. beyond the summary), it becomes more apparent that the patented "invention" has a distinctly specific application.
This Lodsys letter of solicitation for cash is not much different than a 419 email.
Why do people never put god damn paragraphs in these things?
IANA Software Patent Lawyer, but I see no mention of initiating sale of a sub product through a product application. (i.e. In-App Purchases). I only see a vauge description of listing products to purchase. If that's the case, surely every e-commerce site, app, online grocery list, falls under this patent. Surely there are things that predate this patent that could be used as prior art?
Even reasonably specific patents often look overly broad if you don't know how to read them, so that it looks like " surely every e-commerce site, app, online grocery list, falls under this patent." This is one of the things that patent lawyers have over most people.
Although the blog states Apple, Google and Microsoft have a deal for themselves and Lodsys is not specifically seeking a broader deal to cover third parties as well, it seems rather obvious Apple et al would be much better off collecting this 0.575% on behalf of Lodsys rather than degrade the usability of In App Purchase by requiring developers to secure a license separately. At least that's the Apple thing to do if Apple really sees this patent as legitimate. Of course, that's probably what Apple thought it was getting and probably feels it got tricked by Lodsys if that was the case.
Given the following situation. I have an app with in-app purchase. I don't live in the US and your patent is meaningless where I live, and yet I sell my app in your country. Wonder how the legal wrangling works with that one. As a lot of people will be in this situation.
This doesn't make sense. Apple/Google have apparently paid the license fee for the patents - so are they JUST paying the 0.575% of THEIR OWN APP sales?
Is part of the 30% being withheld from developers paying for some of these patent licensing fees? If so, yes, I too believe Apple needs to jump in here and find out what the hell is going on.
If not, and Apple knew that every one of its developers using in-app purchases would probably be infringing a patent they already knew about and are paying for, shouldn't this be brought up somewhere when a dev chooses to include in-app purchases in their app?
I have an idea. If the patents were created to protect inventors, why just not forbid of any sale of patents to the third parties. The patent cannot be sold or inherited period.
Playing devil's advocate here (I don't think software patents should exist, or at a minimum the bar should be significantly raised in what constitutes a patentable idea):
What if I'm really just an inventor type, and I don't have any of the skills or the desire necessary to go about making money off my patent. I imagine negotiating with Google, Microsoft, Apple, etc. isn't a simple make a phone call and start receiving checks type process. Not allowing an inventor to sell his patent limits seriously limits a major avenue of revenue for the inventor.
Assignment of IP to the employer is presumably a clause in just about every employment contract any founder ever imposes on new recruits to their startup - on pain of them leaving and trying to hold the startup hostage over their contributions. What you're suggesting, I fear, is just too blunt. What about a bad faith doctrine, forbidding NPEs (non practising entities, aka trolls) from enforcing a patent - only those who exploit their IP in-house can enforce their monopoly against others? Or, alternatively, linking one supposed purpose of patent protection - disclosure of ideas to the world (I gather that incentivisation to innovate is another) - to the ability to sue. So for example, only patents that are cited as prior art in future applications can be enforced against third parties.
Evidently, making the 'obviousness' and inventive step blocks to patent granting more potent should be the first step considered. Who loses, exactly, by making patents harder to get? Can't IP advocates accept that this would make creators strive to be more creative or innovative?
So you ban sales, and instead this company sells itself as a "patent enforcer", makes deals with inventors, and takes a percentage of moneys gained. They can even pay an advance. Practically speaking, this ends up the same as when you can sell them.
The ability to sell patents give investors some downside protection when funding a startup. Every VC I've ever pitched to asks - "What's patentable". If you don't end up making money off selling a product / service, at least there is the hope of selling a "asset"
> If the patents were created to protect inventors
They weren't, they were created to get inventors to disclose their inventions to the public so inventors wouldn't take their trade secrets to the grave with them.
Giving inventors a limited monopoly was the means to that end; why else would they disclose their secrets?
Well, this is one hell of a Gotcha! for everyone who is using in-app purchasing. Wasn't it the responsibility of Apple, Google, MS, to inform developers of this? Hm, I wonder if HP has a license for webOS.
And does this apply to desktop in-app purchases? What about in-app web app purchases? Does Facebook and its devs need a license?
Hmmm... could that have been a notice error in their glee to target everyone? If it applies, this is a damn bigger issue than everybody yet understands!
I wonder what Lemelson would have thought about Lodsys and Intellectual Ventures.
"You cannot develop a reputation for somebody who gives up. You have to be known as a fighter for your rights. Otherwise, you'll never license anything...Even Thomas Edison had a tough time supporting and protecting his patents. He spent about $1.4 million [to defend his inventions], and this was around the turn of the century, when beer was a nickel."
-Jerome H. Lemelson (1923-1997)
Arguably the most successful inventor (in terms of revenue from patents) ever. His legacy is the Lemelson-MIT Award for Invention and Innovation [2]
"It is all too easy to look back with 18.5 years of hindsight, and knowledge of how the market has evolved, and say ``of course this is how everyone is going to do it'' or ``the patents are too broad.''"
...Lodsys are actually putting forward an effective argument against long-lived software patents. It didn't become obvious because of the disclosure of the "invention" in this patent - it became independently obvious through the progression of the start of the art. 20+ year patents certainly shouldn't be granted on "inventions" that would have become obvious anyway within a fraction of that time.
Apple should just sue them back so hard no one will ever think to try this crap again. I prefer them not to pay these scumbags a dime, it would set a precedent that would only encourage more trolls.
I'm on the fence with patents... overall I think the response by Lodsys is reasonable and if their license fees are as the article states, then it should not be to much of a burden to developers.
My guess is Apple financially works out something with Lodsys so all iOS apps are extended a license.
And when 50 other trolls come out from under their bridges with equally vacuous patents, each demanding a "reasonable" half percent? Nope, the developers and/or Apple need to crush these guys and burn their village to the ground.
I have a hard time using reasonable in a sentence along with any company who's sole purpose is to buy up vague patents and sue or bully companies into licensing "their" technologies.
Oh give me a fucking break. Yeah, us developers would be utterly lost without the exciting "inventions" of Abelow and Lodsys LLC.
[1] http://www.lodsys.com/1/post/2011/05/q-licensing-patents-is-...