Submitted by The patent wars rage on. Eolas, a company that before won US$585 million from Microsoft in 2003 in a suit that challenged the use of ActiveX and AJAX, is now after twenty-three separate companies allegedly because their precious patent was spoiled by all of them.
Back in the good old days when the Internet was still in its tween years (perhaps it still is), Eolas and the University of California secured a patent that effectively claimed “I Did This!” rights for third-party browser plugins; the patent essentially allowed for programs running within other programs. Not long afterwards, Eolas sued Microsoft for violating the patent in the company’s ActiveX plugin. After a ridiculous amount of time of legal squabbling even after the suit’s “finish” in 2003, the two companies settled on an agreement in 2007.
Well, Eolas is back at it again, suing 23 companies of varying caliber for the exact same patent from before as well as a new budding money-maker that “allows websites to add fully-interactive embedded applications to their online offerings through the use of plug-in and AJAX;” this second patent builds off of the original patent. Some of the most prestigious companies included in the suage (I invented a word, so sue me) bombardment are Google, Apple, Adobe, Amazon, eBay, Yahoo!, and YouTube.
How this actually gets interesting instead of being just another patent troll swinging his club at the nearest deep-pocketed competitor is that Eolas actually won a hefty half a billion US dollars with this patent already. Tried and true, this patent doesn’t make just another throw-away case– if Eolas did it once, then what’s to say that they can’t get away with it again? This patent could be the key to sucking a lot of cash out of many of the companies in question, not to mention affect a lot of things in the browser and website industry that we take for granted.
Mike McKool, one of Eolas’ lawyers, said that “what distinguishes this case from most patent suits is that so many established companies named as defendants are infringing a patent that has been ruled valid by the Patent Office on three occasions.” The company chairman, Michael Doyle, added, “We just want what’s fair.” My addition? “You just want what’s greenish and has ‘FEDERAL RESERVE NOTE’ imprinted on it.” Then again, if I invented a technology and knew I could get money out of slapping others for using it, it’d be sorely tempting to do so. Still, does the fact that a person (or group of persons) can do something mean that they should?
This, of course, brings up the much-debated topic of whether or not software ought to be patentable as well as the much-debated patent and even copyright laws of our world today. Your thoughts? You know you want to share them. The first commenter gets bragging rights (no suing over those, either).
Maybe one day these bastards will sue each other into oblivion, then we can have an end to this nonsense.
“Hey, you’ve got windows in your app with drop-shadows… I own that sh!t! Pay up, or else!!!!”
Note: I’m not totally anti-patent such that if you spend hundreds of thousands of dollars creating something very specific (such as a media codec), you should be able to collect royalties when people use it, but some of this stuff is just way over the top.
Edited 2009-10-06 21:53 UTC
they won’t sue each other into oblivion because patent trolls don’t have any products(!) and therefore never use any other patent. they only buy patents and sue hard working innovative companies.
I know everybody hates software patents and if that’s your argument present that rather than suggesting that these guys are patent trolls or that they aren’t entitled to their lawsuit winnings.
They patented it and won, they are owed all that they will receive.
Bullshit is still bullshit even if the government says it smells like roses. People who think software patents are fundamentally flawed aren’t going to roll over just because of a couple of cases don’t go their way. If more cases like these go through, if will start to harm the american software industry as they will be at a great disadvantage compared to companies in other nations with saner patent laws.
The only good thing about this is that we might see a lot of other companies join red hat in pushing for change in the patent system.
I think this hinders innovation, particularly by the small guys. It’s bullshit.
Don’t hate the playa, hate the game, right? I personally detest that line of reasoning. It makes about as much sense here as it does with collection agencies and payday lending outfits. Just because a business model is possible because of how our law and economy is structured doesn’t mean we should happily accept it.
I don’t deny that being a Patent Troll is a lawful enterprise under current law. It is _also_ despicable, detestable, and morally bankrupt.
Patent Troll’s seek financial gain through trial awards by sitting on the sidelines and waiting for some obvious idea they happened to have the foresight to patent (which cost them precious little) to come to fruition by someone else’s hand. Eolas fits the mold rather well. I personally don’t think all that highly of Microsoft either, but at least they _produce_ something… Eolas and company’s like them are just bottom feeders – I don’t give a damn whether or not the law is on their side, or how unpopular their victim happens to be.
Sure…
When all innovation is halted, we’ll talk!
Isn’t that essentially the philosophy of “might makes right”?
…is the nature of the original patent. Patents as such aren’t bad – they are necessary to protect the investment of those who create the product. However, the scope of these patents is what needs to come into question, and whether the original scope is fair and allows for expansion of the idea into something completely new by someone else without infringing the original patent.
The question that needs to be asked in all of this is did they foresee the scope of what they are now claiming, and if they supposedly did lets see the documented evidence of it from the time of the original patent application, because at this stage these guys are basically trying to claim ownership of the ‘net. If they can’t prove their insight into the future they are nothing but patent trolls and should be treated as such…
Leaving out the specific argument of software patentability (I fall firmly on the side of those who think software should NOT be patentable AT ALL), the problem with this particular part of your post is that patent law doesn’t require the patent holder to have a product to protect. There is no such requirement. If their were then I might feel a bit differently about patents in general, but as the law stands now they absolutely do more harm than good in the majority of cases.
In the field of software specifically, I’m not convinced of the necessity of patents. I do not think it is obvious that software patents are necessary to enable innovation in the software industry; I’m not sure it’s even obvious that they help innovation more than they hinder it.
Someone needs to shut this shit hole down.
From what I can see they are good at pulling the blinders over the patent office and describing obvious technologies in a way that grants them a patent.
The patent office is a relic of the industrial revolution. It has no place in the world of software and needs to be disbanded along with this group of asshat f–ks who parade around acting like computer scientists while robbing companies blind in US courts.
This stuff makes me embarrassed to be from the USA…
Software patents are simply bad in every way, there is no way you can possibly argue that. (However, I don’t blame companies for acquiring them, making money is what businesses are supposed to do.)
It just goes to show how corrupt the government is, how incompetent the patent office is, and how technically inept the judges are.
I really don’t get the great difference with software versus hardware patents.
I can definitely see people having problems with patents being granted too easily, or having problems with patents in general… but I cannot fathom why people single out software patents.
Have people looked at physical patents? They’re not exactly mind blowing brilliant. I’m pretty sure if you looked the patents for electric cars, a lot of them are pretty dubious. The difference being that those industries are used to working with patents, licensing, going with other technologies… Because a lot of the high tech (software/web) is new, the development is very fast, so there’s lots of patent issues and our culture is much more legal dominated.
Or we look at how Intel’s hardware patents have essentially granted it a monopoly over its x86 instruction set… Could you imagine the outrage if Microsoft patented the windows API or C#, to make it impossible to make a binary compatible program?
This is not patenting an algorithm or anything. It’s rather specific as to a web browser embedding content…
Obvious… yeah… But so are many patents in electrical or chemical engineering or mechanical engineering.
but not really an issue with respect to software patents. It’s just an issue of how patents can be too general.
Edited 2009-10-07 00:03 UTC
This is all opinion of course, and opinions vary, but imo there are some concrete differences that imo should be taken into account:
1. Software is considered an artistic expression, and as such falls under copyright law. Copyright law already offers quite a bit of protection, some (including me) think the protection it offers is adequate enough in light of the nature of software.
2. Software IS NOT in and of itself an implementation of anything. Only a running program is an implementation, and to “run” it must ALSO instrument some form of hardware. Thus the actual implementation is a combination of the two. It is therefore impossible to create and then claim ownership of a complete software device unless you are the creator of the “complete” device, i.e. unless you also created the hardware. This point of view mirrors reality – to build a piece of hardware you must first design it (the software) and then implement it (implement the design – i.e. build it). If patent law had an actual implementation requirement the distinction would be quite clear – unfortunately it does not so we are left with this ambiguity…
3. Software IS in and of itself an idea, NOT an expression of an idea. It has no physical representation, it has no “hard” implementation cost, and most uniquely, it has no reproduction cost. It is simply an idea worded in the rigid fashion defined by the hardware it will run on. Patents are not meant to protect ideas, they are meant to offer a limited monopoly for an “expression” of an idea – and while this definition is coerced into fitting software by the law, I don’t think it fits very well.
4. The VAST majority of software patents are extremely obvious – to people who write software… Problematically, software patents are not reviewed by people who write software. No need to go further into this one, suffice to say this particular interface skew causes the bulk of the real world problems.
1. Copyright is one aspect. But it doesn’t protect someone from copying your idea, which is the point of a patent. I wouldn’t agree with the statement that software is artistic expression. It’s design like any other field of engineering.
2/3 – You seem to be hung up on this notion of physical versus software. I just don’t see the difference. Let us suppose a smart phone manufacturer comes up new keyboard design. The keys are triangular and they’re arranged in a different manner. Does it matter if the keyboard is physical or implemented virtually? The innovation is the layout and design.
Now suppose Microsoft comes up with this new layout, does it matter if all they sell is the OS that contains this new layout?
The fact the the reproduction costs are 0 would actually support software patents. Since the costs are 0, the innovator doesn’t have much protection from startup costs… things that typically delay other companies.
4. Yeah, most software patents are obvious to people in software… and most patents in mechanical or electrical or chemical engineering are obvious to those people in the same way.
The main difference is how accessible and new software is. If as many people played with chemistry as played with software, everyone would be infringing on chemical engineering patents and crying about it the same.
My brother works in chemical research… same problems… obvious overly broad patents that any competent person in the field thinks of, but first to get there gets the prize
Which is why I say the problem is not software patents. The problem is patents in general. I don’t know how to resolve the issue as you start of with complex technical terms then run that through legal obfuscation… and you expect patent examiners to sift through all that? It’s not happening.
Thats the problem with your point of view on this. Patents do not and are not supposed to protect ideas. Patently law specifically _disallows_ patenting of an idea. You can only patent inventions. The issue boils down to whether you consider software an idea or an invention. That gets fuzzy – there is a legal definition of invention and its applicability to software is debatable imo.
Regardless, I agree there is a problem with patents overall, not just software. But software particularly seems to amplify the problem.
So maybe the solution to the problem is for the patent office to employ a group of full time programmers to consult on matters of patent applications as for the validity of the application? Wouldn’t that imply a degree of common sense. I doubt it’ll happen though – you might end up having large numbers of patents being thrown out in a mass audit.
The main difference is the scope of the patents. For hardware patents you have to be very specific if you want the patent granted in the first place and even more specific if you want to be able to defend it in court.
The software patents that has been granted under the US patent system are often grandiose general patents that can cause great problems for the software industry like:
– Patent for extracting data from a database and putting it into an excel spreadsheet.
– Patent for skinning an application.
– Patent for multiple desktops on a computer.
– etc etc.
This kind of patents are not granted in order to protect “inventions” but are rooted in US trade politics and exists to hinder free trade in the high tech sector.
Other high tech industries like bio and medical are in the same situation. The US is using patent system to block free trade by allowing US companies to patent highly suspect “inventions”. Often causing more problems for other US companies than the original intended target (foreign companies).
It brings back memories of the way the Japanese patent system worked in the 1970’s. (a Japanese company would buy a US or European product, patent everything about that product in Japan and hence block import of that specific product).
The EU found out that by accepting software patents but being late to the game they would be in more trouble than by rejecting the concept all together of these patents (however they do play the game in other high tech areas). Lately they have started to hit back in other ways (i.e. “Consumer Protection”) to recover lost trade income. I.e. you hit our high tech company, we hit right back at your high tech company…
A key problem from a trade and political standpoint is that software patents are today being used to reduce interoperability between products, and therefore hinders innovation rather than fosters innovation. Patents on file formats and network protocols for example are obviously counter productive to competition and free trade, since the only use (there is no invention involved at all) for this kind of patents are to remove or reduce interoperability.
For Free software this poses problems on many levels:
First by increasing the cost of distribution (you have to do patent reviews of your own and others code).
Second by limiting the possibility of alternatives (file formats etc. etc.) and in most cases free software is the segment follower not the leader.
Third by introducing the possibility licensing costs (however small) into the equation it will reduce the possibility of exchanging and sharing software for “free”.
In this case the Eolas patents are actually in the interest of the companies being sued, as long as these companies gets a settlement guarantee that their smaller competitors (without an established income vehicle) has to pay as well. This will remove competitive pressure from these incumbent players and enforce their established position, better than innovation or service development ever could.
IANAL, but how do patents actually work? I mean, who reviews these things? Software patents are specially tricky things because of the very important distinction between the algorithm and the actual implementation.
But my question is: Who decides if a patent is valid or not? A group of specialists on the matter, a bunch of random people…? I’m asking this because, reading through a few patents I can’t help but imagine that it would be actually possible to patent “Process of doing stuff with a computer” and then start lawsuits again pretty much everyone near something that computes stuff.
And I just don’t get people saying “Hey, the laws don’t penalize this, so it’s allright”. So, the fact that such… douchebaggery isn’t illegal makes it automatically legal and ethical? Laws are always right and the end-all-be-all of reason and common sense?
Do you people from the USA really think this is the way things should be?
I’m sorry but I just don’t get it.
No, “we people” in the US don’t all believe this is how things should be. However, the thing you must understand about the US is that big business and industries rule in all but name these days. If you’ve got enough money you can do whatever the hell you want and the consequences be damned since you’ll never see any consequences other than perhaps a slap on the wrist from time to time. Politics and big money, that’s what has resulted in this crazy situation… well that, and the average person being dumbed down to the point where as long as they have their TV and sports they’re happy.
Vigilante justice is starting to look mighty good. Posse to be formed in the “conversations” area.
Come up with better ideas that weren’t patented.
Edited 2009-10-07 06:14 UTC
Patents just stop innovation! Okay, some John Doe got an idea that he never implemented, but applied for a patent on that idea.
Now, he can rest and do nothing more than sue and collect money from others doing, researching and actually creating products! He produces no sh*t, but collects money – now that’s a nice way of having money. Do nothing and collect.
Some other issue is the validity of the patent. For how long is it valid? 10 years? 20 years? That’s centuries in the software world!! Okay, give them the patent for 6 months, 1 year, and then I’ll accept the concept of software patent.
In the way it is, it just hinders innovation. Sorry, you all can bitch and moan, but that’s the way it is.
By the way, the USA is not the only country in the world. Most countries don’t have Software Patents…
Mommy, when I grow up, I would like to be a patent troll
Thanks heavens Brazil did not pass a software patents law, even that USA tryied hard, even manacing to put Brazil in the black list of piracy countries, for us to have a similar law.
What can I say? This will lead to less inovation every single year, and soon USA will be a factory of lawsuits, while the software will be manufactured somewhere else.
Bad for USA? Good for us! Thank you uncle Sam
IMHO patents, whether they be for software or real-world goods, should only be granted if there is at least a practical, working, in-development-or-prototype product.
Why doesn’t somebody pattent operating systems, drivers and even the ideea of running software?
Like someone said: the US will have to renounce software patents or the software industry wiil be so hindered that innovatiom will not happen in the field.
During the keynote for the introduction to the iPhone didn’t they have a slide that said something like “Oh boy did we ever patent it”?
They patent the hell out of everything so they can’t get upset when they infringe and get sued.
To me, a company that engineers nothing, has no plan of making a product and sues for patent infringement is just as bad as companies that not only patent but actually create things like iPods. The reason they are the same is because they are all hindering innovation.
We could have had multi-touch displays working 30 years ago if it wasn’t for patents.
I’ve heard good and valid arguments for and against software patents over the years.
I think the really important question is are software patents helping or harming the development of software as a whole and is really fostering inventiveness.
Maybe if we can’t get rid of software patents then we need to separate them from the normal patent system and create one specific to software.
<blockquote>Mike McKool, one of Eolas’ lawyers, said that “what distinguishes this case from most patent suits is that so many established companies named as defendants are infringing a patent that has been ruled valid by the Patent Office on three occasions.” The company chairman, Michael Doyle, added, “We just want what’s fair.” My addition? “You just want what’s greenish and has ‘FEDERAL RESERVE NOTE’ imprinted on it.” Then again, if I invented a technology and knew I could get money out of slapping others for using it, it’d be sorely tempting to do so. Still, does the fact that a person (or group of persons) can do something mean that they should?</blockquote>
The problem is that even if they decided to be ethical/moral (per your question), patent law ties their hands – if they want to keep the patent then they have to fight to get everyone to license it from them; if they knew of someone infringing and did nothing about it, then they lose the ability to further enforce the patent.
Incorrect. You are thinking about Trademarks. Patents do not have to be enforced to remain enforceable. That’s where the term “submarine patent” comes from – someone patents something, then waits and does nothing while companies implement products using the patented idea. When it becomes big enough, THEN they surface and sue everybody.
Some companies have even gone so far as to pretend that it’s okay to use their patents, then turn around and sue over them once they become popular.
Incorrect on your part. There is a time limit for how long someone with a patent can wait before enforcing it. This is where the submarine patents come in – the patent holder waits until nearly the last minute then provides notice of court filings.
You are correct that Trademarks hold the same; as do copyrights. Though the terms vary for each.
In all cases the clock starts at the time the ‘owner’ becomes aware of the infringement (copyright/patent) or unapproved use (Trademark).
You’re going to have to provide a ref or two on a “time limit” for patents. I’ve not seen one single patent case tossed because they went beyond some “time limit”. I’ve never evn HEARD of such a thing. I have heard the opposite: no time limits beyond the length of the patent itself.
Add to patent law the following:
That the holder of the patent has to bring a revenue producing product (that very specifically uses the patent’s idea) to market. Otherwise, the patent (and it’s idea) is rendered to public commons, and is henceforth unpatentable.
Upon filing the patent, the holder has a year (or less) to bring a tangible, revenue producing, product that very specifically utilizes the patent’s idea, to market. Failure to do so brings on a fine and jail time (to individual or executives of patent filing company) for the crime of (attempted) extortion.
During the year (or less) time frame, the patent is completely useless to the filer or anyone else. If the filer does produce a revenue producing product within a year, they have exactly one month to file suit on violators (they can’t sit on the patent, waiting to strike). Otherwise, patent is nullified, and rendered to public commons.
These ideas will completely elliminate patent trolling.
I guess in this ecconomy everybody is looking for a bailout of some kind. Specially if it doesn’t involve any actual work on their part. REally, when will they fix patents?! jebus