Nokia Getting Killed In The Smartphone Market... So Of Course It Sues For Patent Infringement

from the if-you-can't-innovate,-litigate dept

Funny how this works, right? Just a week or so after it's first ever quarterly loss and an admission that it totally screwed up in the smartphone market, Nokia suddenly sues Apple for patent infringement over the iPhone. It looks like the old adage is true again: if you can't innovate, litigate! It's the same story all over again. A company that was a leader in the market but got complacent and lazy, suddenly finds that it lost its lead to a more innovative upstart. Since it's so far behind, even scrambling around doesn't help it to catch up, so it just starts suing over patents.

This story nicely highlights a few other points as well. We keep hearing from patent system supporters how the patent system is necessary because, without it, the market leader would always just immediately copy the upstart and "steal" their idea. Of course, Nokia has had two plus years to "steal" Apple's idea, and where is it in the smartphone market? It's not so easy to just copy someone else's idea -- especially if you're a huge player like Nokia, who will often view the disruptive innovator as not being worthy of paying attention to (which basically was Nokia's reaction to the iPhone).

Separately, remember how confused we were when Steve Jobs proudly hyped up the fact that Apple had over 200 patents on the iPhone concept? We've pointed out that it's hardly done anything to stop lawsuits. Apple has been sued over and over and over and over and over and over again for patent infringement. Welcome to the tragedy of the anti-commons, where it becomes impossible to do pretty much anything innovative without facing massive legal costs. Basically, if you build anything even remotely innovative these days, you're going to get sued for patent infringement, probably multiple times. It's become a massive tax on innovation, rather than a lever for innovation.

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Our Litigious Society: Woman Sues Daughter-in-Law Comedian Over Jokes

from the no-laughing-matter? dept

In-law jokes are a pretty standard staple of the standup comedy business. They can be pretty funny too... even if the concept is a bit dated. But, apparently, they're not so funny to the in-laws of comedian Sunda Croonquist. ChurchHatesTucker alerts us to the news that Croonquist's mother-in-law and sister-in-law are suing the comedian for cracking rather typical "in-law" jokes, which, apparently the in-laws didn't find to be all that funny. They're suing for defamation, even though you have to wonder if anyone actually takes such jokes seriously. I mean, it's a comedian. Of course the jokes are either made up or exaggerated for comedic effect. Still, probably makes for a frosty family gathering.

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New Patent Buying Firm Swears It'll Never Litigate Over Its Patents

from the until-it-needs-money...? dept

When Intellectual Ventures first came about, Nathan Myhrvold convinced tech companies to back him, with a business plan that was all about pooling resources to buy patents for defensive purposes. The original pitch was that by joining with IV, you could make use of the patent portfolio to protect yourself against potential patent lawsuits. Except that once things got going, Myhrvold admitted that to make this work, the threat of also suing people for patent infringement had to be on the table (though, it hasn't reached that point yet). So, consider me quite skeptical of some former IV execs who have gone off to start a new firm that sounds suspiciously like IV's original plan.

It involves getting a bunch of tech companies to pay up, so that this new company, RPX Corp., can buy up a bunch of patents "for defensive purposes only." The company insists it won't sue anyone with these patents. But, of course, the whole thing makes you wonder. For the companies that buy into RPX's deal (or IV's for that matter), they end up spending a bunch of money for a rather weak form of insurance that protects them in the very rare case where they might be able to use a patent in either firm's portfolio to maybe, possibly protect itself against an infringement lawsuit. It won't stop others from suing, of course. And, if RPX is serious about not suing for infringement, then why won't other firms just free ride? They get the benefit of those patents not being in litigious hands, but without having to pay. The whole situation just shows how ridiculous the patent litigation world is these days, that a bunch of companies feel the need to fund other companies to buy up patents just so they're not sued. That's not quite "promoting the progress."

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How Software Patents' Fuzzy Boundaries Create Unnecessary Litigation

from the subject-matter-test-please dept

James Bessen and Michael Meurer, authors of an important new book on the patent system, have a great post on the problems created specifically by software patents. They argue that the most serious problem with software patents is that they tend to cover abstract concepts rather than specific physical devices or processes. As a result, the boundaries of software patents tend to be uncertain, leading to a lot of litigation. In many areas of patent law, the "enablement" rule (which says that patent applications have to describe an invention in enough detail to "enable" someone to replicate it) helps to ensure more precise definition of patent boundaries. But the patent office only requires a general description of an "invention's" functionality to get a software patent. As a result, there tends to be a lot of uncertainty about what a software patent covers, and uncertainty inevitably spawns litigation.

Bessen and Meurer don't offer a strong recommendation on the best way to solve the problems with software patents, but they tentatively endorse a "subject matter test" -- that is, reinstating the ban on software patents -- as one part of a solution to the problem. However, they worry that a subject matter restriction won't entirely solve the problem because applicants might resort to creative drafting to evade it. I'm not sure it's so hard to draw a line to exclude software patents. Ben Klemens has suggested a standard that strikes me as pretty serviceable: mathematical algorithms are not patentable, and coupling an algorithm with "insignificant postsolution activity" does not transform an unpatentable mathematical algorithm into a patentable machine. In particular, the mere act of loading software onto an ordinary general-purpose computer cannot transform an unpatentable algorithm into a patentable machine. Although this standard might not invalidate all problematic software patents, it would invalidate most of the really harmful ones. To take one example, NTP's infamous wireless email patents almost certainly wouldn't pass muster under Klemens's test because the "invention" in question consisted of running certain email-processing algorithms on generic computer hardware. If you took away the software component, you'd be left with an unpatentable collection of generic computers and generic wireless links. I'm sure there would be some hard cases that Klemens's test wouldn't deal with precisely, but it's certainly more precise than the tests the Federal Circuit is using now.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Facebook/ConnectU Settlement Shows Why Losers Litigate

from the it's-profitable dept

Last year, in the midst of various claims from multiple different people that Mark Zuckerberg somehow "stole" the idea for Facebook from other Harvard students, we noted that it really didn't matter. After all, the basic concepts behind Facebook were hardly new when Zuckerberg started it. There had been sites like SixDegrees, Ryze and Friendster long before Facebook came along. What mattered wasn't the idea, but the execution -- and for whatever reason, what Zuckerberg did with Facebook got traction while the others did not. That's called competition, and we generally think that leads to a healthy economy. Yet, the founders of ConnectU, the competing site that went nowhere, sued Zuckerberg and Facebook over this, and both sides were pushed by a judge to settle out of court -- and that appears to be exactly what's happening. The NY Times is reporting that Facebook has reached some sort of settlement with ConnectU's founders.

This sort of thing was inevitable, but it's still problematic. With Facebook generating so much publicity lately, and potentially gearing up for an IPO, it doesn't want these types of lawsuits hanging over it. So it's worth more to just settle and pay up, even if the claim itself is bogus. Yet, all this really does is encourage more similar lawsuits from companies that lost in the marketplace whining about competitors who did a better job executing. While some may say the ConnectU case is different because Zuckerberg worked with ConnectU for a few months, that hardly changes the basic facts of the case. This wasn't a new idea, and it's unlikely that ConnectU had done anything remarkably different than other competitors out there. In fact, it seems clear that it did not, since the site never went anywhere. Yet, because it's cheaper for Facebook to pay out and keep this quiet, ConnectU's founders get paid for failing in the marketplace. That's a bad precedent no matter how you look at it.

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