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Comment: Re:Prior art (Score 1) 60

Or, he filed the patent years ago, and then filed a series of updates to it. Each update delays the final "approval date" and allows him to modify the patent. Over time, he can craft a vague sounding patent and/or one that covers existing technology. Then, his "prior art date" is from a year before when he INITIALLY filed the patent. So while the final patent might have been considered innovative if filed as-is on the initial filing date, patent trolls abuse the "update" system to draw their patents out until they are hard to beat via prior art.

That's simply not true. While patent applicants can file continuation applications with revised claims, they must have support in the originally-filed application, and the applicant cannot modify the original application at all. If anything is added that wasn't in the original document, then the "prior art date" is moved to when the modification was added. See

Comment: Re:I wish it had been dismissed on the merits (Score 1) 126

Too bad it was just a procedural dismissal due to wrong venue and not due to the merits of the case.

United said such ticketing schemes violate its fare rules. For one thing, the tickets capture seats that will go unused, and an airline would have no way to sell those unused seats

Well, actually, they already *have* sold those seats -- to the person that bought the ticket and decided not to use the rest of it. But it's not true that they have no way to sell those seats -- if the flight is overbooked or full, then they'll fill the unused seat with a bumped or standby passenger.

Do you really want to encourage them to overbook and bump more people?!

Comment: Re:"X, but on a phone" (Score 1) 60

There have been recent (good) rulings that saying "X, but on a computer" is not a valid patent. I hope that lower courts say that this is just "X, but on a mobile computer" so we don't have to have an explicit ruling also blocking "X, but on a phone".

On another note, I wonder if it would be worth having some crowd-funded anti-patent-troll fund. I know the EFF takes the fight when able, but that's usually after smaller companies/individuals have caved and paid the extortion fee. If there was a fund that would take the patent-holder to court and pay out any ruling against the defendant, should the patent be deemed baseless (any patent, not just electronics), that would hopefully halt the trolls far earlier in the process and dissuade others.

Not really... Contrary to popular wisdom (and Subby's attempt to call a 500 person company a small shoe store), patent trolls almost never go after individuals, because individuals don't have any money. Unlike copyright infringement with the $150k per work, there are no statutory damages in patents, and damages aren't even 100% of profits - they're limited to a reasonable royalty. If even a small patent lawsuit costs $200-500k, and you can expect to get 5% royalties, you aren't going to sue someone with less than $4M in annual revenue... And in reality, try closer to $1M to run a small patent lawsuit and royalties closer to 2-3%. So, now you're talking $50M in revenue to be a real target.

So, the real question is can you crowdfund $2-5 million to defend companies with tens of millions in annual revenue? It's like you're asking David to donate to protect Goliath.

Comment: "Small time" shoe seller? (Score 2) 60

From the linked article:

Shoes for Crews, which makes skid-proof soles for workers who toil on slippery surfaces, has sold millions of pairs of shoes to workers at McDonald’s, KFC, Taco Bell, P.F. Chang’s, Ruth’s Chris Steak House and other restaurant chains. The company says its secret formula makes the stickiest soles on the market, but Shoes for Crews refuses to file for a patent, fearing the process would reveal valuable clues to rivals

Not really a small shoe store as Subby implied, but rather, a manufacturer and wholesaler which, according to LinkedIn, has between 200-500 employees. So, it's more like "patent troll sues multi-million dollar company", but that doesn't really get as much sympathy.

Comment: Re:Vice Versa (Score 1) 56

by Theaetetus (#49590597) Attached to: US Senate Targets Patent Trolls

Thank you for straightening me out on the length of patents.

My objection still stands on the grounds that John Cornyn and Chuck Schumer can only be up to no good. Both are bought and paid for by people who don't care a whit for encouraging innovation or improving the IP laws for the benefit of consumers.

Absolutely. I should've been more clear that I was only objecting to the length part. :)

Comment: Re:Vice Versa (Score 2) 56

by Theaetetus (#49589981) Attached to: US Senate Targets Patent Trolls

Does anyone else care to bet that any bill coming out of the Senate to curb "patent trolls" is going to end up extending patents even longer and basically making the patent system even worse?

Guaranteed they don't get longer. Patent term hasn't been extended since 1861*. Unlike copyright, where you've got big copyright owners with tons of money lobbying on one side vs. poor pirates on the other, and BMG and Sony have no interest in using each others' copyrighted works, in patents, everyone may want longer term for their own stuff, but shorter term for their competitors'. So, like if Microsoft started lobbying for longer patent term, Apple and Google would lobby against them. And vice versa.

*It did go from 17 years from issue to 20 years from filing, to comply with an international treaty, but it took about 3 years from filing to get issued, so there wasn't any real change. It's actually arguably shorter now, because there aren't submarine patents that can last decades.

Comment: Re:Overly-wide interpretations (Score 1) 56

by Theaetetus (#49589955) Attached to: US Senate Targets Patent Trolls

The biggest problem appears to be allowing wide interpretations of patents and ignoring what would be obviousness in the eyes of most practitioners. Here are some suggestions:

1) A jury-like panel of practitioners to judge obviousness.

2) Spell out that merely emulating common physical actions or behaviors should not be patentable, only specific algorithms of such emulation.

3) Reject the mere combining of existing ideas unless the combining is judged non-obvious (#1).

4) Limiting the percentage of revenue a medium or large company can receive from patent royalties.

5) An independent quality review board to make sure approved patents are not overly broad. They'd randomly sample patents.

These are good suggestions... Such that many of them are already implemented:
1) Before applications are allowed, they're judged by the Examiner and the Examiner's Supervisor (and, in the case of lower tier Examiners, also a Primary Examiner). It's a small jury, but still is one.
2) That's currently the rule - if something has been done before, it can't be patented. So, Apple's slide to unlock patent can't just claim "sliding to unlock" or "emulating a bathroom door-style sliding lock". Instead, it claims the algorithm that doesn't have a real-world analog.
3) This was actually the result of KSR v. Teleflex several years ago. The Supreme Court said that if you claim A+B+C and different prior art teaches A, B, and C separately, the combination is obvious by definition, unless there's some explicit reason why it's impossible to combine the art.
5) The USPTO does random quality checks before patents get issued - they randomly select some allowed applications and a panel of senior examiners in the relevant technology review the prosecution and examination history. If it's good, they get allowed. If it's bad, they get rejected and the original examiner gets sent for more training.

The real new suggestion is #4, but I don't think that would be constitutional, since you're making a rule that essentially seizes revenue from a company from a legal source, yet because of that source. That could present some 5th Amendment issues.

Comment: Re:They should be doing the opposite (Score 1) 309

Yes, it's ultimately the producer that provides it in one format. And if patent law were structured sanely, so that the patent fees were paid by the producer - and not the consumer, that'd be fine.

They're paid by the software producer. Now, sure, they pass that cost on to the consumer, but complaining about that is like complaining about capitalism in general. "Why should I have to pay extra for my food because the farmer has to buy seed and fertilizer?"

It sounds like you're making a pseudo-libertarian argument for letting the market dictate formats and platforms. But patent law operates in opposition to that. In a market dominated by one or two players, a state-granted monopoly on file formats locks any upstarts out of that market.

Except it's (i) only a state-granted monopoly on a single file format, and those upstarts are free to make any other file format they want (see, e.g. Ogg, MP3, WAV, AIFF, etc., etc.); and (ii) it's not even a monopoly that locks people out. It's a standard, so it can't be used for an injunction - they just have to pay a reasonable royalty.

Compatibility with existing content is vital.

Hence AIFF and WAV, formats that have been around for decades and are free and clear of any patent protection. Full compatibility, hooray!

Oh, wait, that's not good enough - you want access to the latest and greatest perceptual audio coding systems, but don't want to pay even a small royalty for it... So pirate it. That's what everyone else does, and they're not going to go after an individual for a single copy.

But, wait, that's not what you want either... You want to become a commercial distributor, making thousands or even tens or hundreds of thousands in revenue, a new "upstart" in the marketplace, but you don't want to have to pay your suppliers. Yeah, I can't sympathize. Sorry.

Comment: Re:Sifling uncreativity (Score 1) 309

There are all sorts of works of art that are based off of using other people's creations in even more direct ways. Weird Al has been creating pop music parodies for decades that are based on other people's material, he seems pretty creative. Look at Johnny Cash's cover of the song 'Hurt', originally recorded by Trent Reznor.

Weird Al writes new lyrics and sometimes, new arrangements. The Beastie Boys used sampling and remixes to make an entirely new song. Johnny Cash simply performed a cover with the original lyrics and music. If "someone likes my version better" is enough to destroy a copyright owner's rights in the original, then under your theory, Glee just destroyed most music copyrights and shouldn't ever have to pay royalties. Is that what you want? A world with more versions of Glee?

Comment: Re:They should be doing the opposite (Score 1) 309

There's sort of a parallel issue with patents. The biggest problem with software patents IMO was the inability to get at material locked up in patented data formats.

The format is just a container. You can get that song in the MP4 format in an MP3 format, or as an Ogg file, or a WAV, or an AIFF, etc., etc. How does a patent on the MP4 format prevent you from getting at the material? Unless your real complaint is that the manufacturer only provides it in one format... in which case, isn't your real problem with the manufacturer, not the patent?

It's like complaining that you only have a flathead screwdriver but your new shelving system requires Phillips or Robertson, and therefore screws shouldn't be patentable.

Comment: Re:They should be doing the opposite (Score 1) 309

5 years is fine - with copyright extension for sequels. That is, if you have a sequel within 5 years, then your original copyright can be extended for another 3 years,

This encourages actually giving the people what they want sooner rather than later.

The thing is that most art can be divided into 3 categories - a) crap that no one would copy even without copyrights, b) pretty good work that need copyright protection for 5 years, but no one would copy after that anyway and c) mega-hits that earn so much money in the first 5 years that the original creators might quit and never do anything again unless we found a way to encourage them to create again - hence the copyright extension ONLY if they make a sequel.

George Martin released A Feast for Crows in 2005, but didn't release A Dance with Dragons until 2011, so Game of Thrones is public domain under your suggestion and HBO need not pay him royalties?

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49457199) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Patents are equally useless for protecting against copying the look and feel of a game.

Design patents aside, of course.

You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

You're saying a better way to handle it is to get no legal protection and just hope that Zynga never decides to copy them? Worse insanity, particularly because we've seen it fail, over and over.

The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the patent war madness that everyone else seems to be currently engaged in. Companies like Zynga are the exception to the general trend, and may end up forcing everyone else to do the same goddamned thing. Do you know who'll be left behind here? Yeah, the indie devs, because they can't afford patent lawyers and ridiculous lawsuits.

Patent litigation is frequently done on contingency. That's like saying "I can't afford to have you place a bet for me, because if it wins, I have to give you a share of the huge pile of free money I get."

Read the massive list of Zynga patents. It makes me weep as a game developer.

Why should it? After all, I believe a wise man once said, "The only way to beat a company that steals your best ideas is to keep coming up with better ones." Similarly, the only way to beat a company that comes up with the best ideas and patents them is to come up with better ones, right? Or pay a reasonable license fee if you can't come up with a better idea.

The USPTO seems to be rubberstamping whatever the hell Zynga sends their way, so long as it's couched in enough confusing terminology and legalese (oh, and "online" is mentioned anywhere).

[Citation needed]. The USPTO currently rejects around 95% of patent applications in this industry, so if they've got a rubberstamp, it says "DENIED".

If you actually read the patents in detail, they're essentially the sort of thing any competent developer would think.

If you read anything in detail, then ask yourself immediately afterwards if you could think of what you just read, you'd say yes. It's called hindsight. The question is whether any competent developer would have thought of it before reading the patent. And that takes evidence to prove, not a gut feeling based solely on "I understand what I just read, so therefore it must be obvious."

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49455305) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

And look what happened to them. Zynga are bottom feeders, and are absolutely loathed in the more 'traditional' videogame industry (those of us that make AAA PC and console games) for this and plenty of other reasons. They're the perfect poster child for why software patents are a horrible idea.

Zynga goes after indie and mobile developers for whom copyright is useless, unlike you giant AAA players. So they're the poster child for why software patents are a horrible idea? That makes no sense. Software patents - or being a multi-million dollar AAA developer - are the only thing that can stop them.

In fact, it's actually the classic story justifying why patents should exist: you've got small innovators whose ideas are copied by a ruthless giant corporation, and other giant corporations - such as your own - ignore the issue.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454431) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

There are such mechanisms - ex parte reexamination (available from 1981 until 2012) and post-grant review (available since 2012). And it works as you say - a panel of senior examiners review the patent, in response to a challenge, which can be based on obviousness or other issues.

Thing is, it's not started with just someone screaming "that's obvious! Review the patent!" Just like we don't go through a full trial based on someone merely saying "that guy's guilty of a crime!" or "that guy owes me money!", the challenge or complaint has to meet a minimum threshold for likelihood of invalidity/guilt/liability. If you do your homework and search for some good prior art, then you can challenge the patent. If you don't do that homework, and just make a conclusory claim, then your challenge will get immediately dismissed, as it should be.

The decision doesn't have to be logical; it was unanimous.