Serial Litigant Blue Spike Wins EFF's Stupid Patent Of The Month For September

from the impossible-to-define dept

Blue Spike LLC is a patent litigation factory. At one point, it filed over 45 cases in two weeks. It has sued a who’s who of technology companies, ranging from giants to startups, Adobe to Zeitera. Blue Spike claims not to be a troll, but any legitimate business it has pales in comparison to its patent litigation. It says it owns a “revolutionary technology” it refers to as “signal abstracting.” On close inspection, however, its patents1 turn out to be nothing more than a nebulous wish list. Blue Spike’s massive litigation campaign is a perfect example of how vague and abstract software patents tax innovation.

The basic idea behind Blue Spike’s patents is creating a digital fingerprint (which the patents refer to as an “abstract”) of a file that allows it to be compared to other files (e.g. comparing audio files to see if they are the same song). In very general terms, the patents describe creating a “reference generator,” an “object locator,” a “feature selector,” a “comparing device,” and a “recorder.” You will be amazed to learn that these five elements “may be implemented with software.” That task, however, is left for the reader.

Even worse, Blue Spike has refused to define the key term in its patents: “abstract.” In a recent filing, it wrote that even though the term “abstract” is “a central component to each of the patents,” a single definition of this term is “impossible to achieve.” This is a remarkable admission. How are defendants (or the public, for that matter) supposed to know if they infringe a patent when the central claim term is impossible to define? This is a perfect illustration of a major problem with software patents: vague and abstract claim language that fails to inform the public about patent scope.

Admitting that the key claim term in your patent is “impossible” to define is probably not a great litigation strategy. And the defendants in some of Blue Spike’s cases have already protested that this means the patents are invalid. The defendants should win this argument (especially since a recent Supreme Court decision tightened the standards applied to vague and ambiguous patents). Though regardless of whether the defendants prevail, Blue Spike’s litigation campaign has already imposed massive costs.

Blue Spike’s patents illustrate another major problem with software patents: vague descriptions of the “invention” that provide no practical help for someone trying to build a useful implementation. This is why many software engineers hold patents in low regard. As one programmer told This American Life, even his own patents were little more than “mumbo jumbo, which nobody understands, and which makes no sense from an engineering standpoint.” You can judge for yourself, but we contend that Blue Spike’s patents consist similarly of little more than legalese and hand waving.

Real products take hard work. A commercially successful product like the Shazam app (one of Blue Spike’s many targets) is likely to consist of tens of thousands lines of code. Actually writing and debugging that code can require months of effort from dozens of engineers (not to mention the fundraising, marketing, and other tasks that go into making a real-world product successful). In contrast, it’s easy to suggest that someone create a “comparison device” that “may be implemented with software.”

Last month, we selected a bizarre patent to illustrate that the Patent Office conducts a cursory review of applications. In contrast, this month’s winner is not so unusual. In fact, Blue Spike’s patents are typical of the kind of software patent that we see in litigation. That such a low-quality patent family could fuel over 100 cases is a stark illustration of the problem with software patents.

Dishonorable mentions:

US 8,838,476 Systems and methods to provide information and connect people for real time communications (a patent on presenting an advertisement at the outset of a “telephonic connection”)

US 8,838,479 System and method for enabling an advertisement to follow the user to additional web pages (Lots of patentese that says put an ad in a frame and keep the frame constant as the rest of the page changes. Awesome.)

US 8,818,932 Method and apparatus for creating a predictive model (this patent claims to apply the “scientific method” to “the problem of predicting and preventing violence against U.S. and friendly forces” and includes hopelessly vague claim language such as “verifying causal links” and “utilizing the social models to ? predict future behavior”)

Reposted from the Electronic Frontier Foundation

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Companies: blue spike

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Comments on “Serial Litigant Blue Spike Wins EFF's Stupid Patent Of The Month For September”

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the threat to peace is the USA says:


1st patent many ways to do this

onload it starts an audio/video that may or may not popup
DISABLED BY MILLIONS FOR SPAM and may or may not even be legal in canada as an example….

you may have an audio chat that befor eany user may use said feature requires them to listen to some stupid ad.

NONE OF THIS IS INNOVATIVE , heck telelvision been doing it for damn years….

as to personal chats no one wants this kind of service anyhow ….and its not new

heck upon entering ajaxchat a 2008 web page chat/forum interface a sound rings….one could change that to HEY USERS here is my stupid bug yo uadd of the day…

so no not new technology
again its just some lax lazy lawyer looking for a quick east scam

The Wanderer (profile) says:

Patent-validation tests

I realize it’s logistically impractical, would be prohibitively expensive in practice, and would just lead to massive delays in the processing of patent applications, but I’ve been contemplating two basic tests which I might want to argue should be applied to any patent application.

There are longer and more legalistic ways to describe them – to fill in details, eliminate loopholes, address corner cases, and avoid unintended consequences – but the basic outline is:


* Find a “person skilled in the art”.

* Give that person access to the entire patent application.

* Ask that person to reproduce the invention, based on the description in the patent application.

If they do not succeed, then the patent application does not adequately describe the invention in question, and must be rejected – because it does not fulfill the purpose for which patents exist in the first place: enabling other people to reproduce the invention.


* Find another “person skilled in the art”.

* Give that person access to only the summary / abstract of the patent application – the part which describes what the thing to be patented does, but not any of the details of how it does it.

* Ask that person to create something which does what is described in that summary text.

If they succeed, and what they create is close enough to the claims of the full patent application that it would be likely to be considered infringing, then the patent application covers something which is “obvious” to a person skilled in the art – and so should be rejected.

There are still other reasons why a patent application should potentially be rejected – prior art, for example, though the second test covers that to some degree if we assume that a “person skilled in the art” would probably be familiar with most such – but it seems to me that that would address the vast majority of bad patent applications.

The Wanderer (profile) says:

Re: Re: Patent-validation tests

That would only address a small part of the problem.

What about patent applications which do provide implementation details, but not enough of them, so that you can’t actually implement the patented thing just based on the information in the patent? It’s not always going to be obvious what is and is not “enough”, unless you are in fact “a person skilled in the art” – which, for any given field, most patent examiners are not.

What about patent applications which are for something which would be obvious to anyone in the field who bothered to work on the problem?

There are many categories of possible reasons why a patent application can be bad. My proposed pair of tests wouldn’t address all of them, but I think it would address most of them, including particularly the ones which are not being properly addressed under the current approach. Your proposed test (in addition to lacking detail by which to judge what is and is not “only an idea”) seems to me as if it would only address one or two of them, at most.

Anonymous Coward says:

Re: Re: Re: Patent-validation tests

That is a nice idea, but the patent office will not only need the funds to employ people ordinarily skilled in the art, but also to fund all the litigation that will follow on when a patent is rejected, challenging the expertise of the person who rejected the patent.

The Wanderer (profile) says:

Re: Re: Re:2 Patent-validation tests

That’s part of why I said it’s logistically impractical and would be prohibitively expensive in practice.

I still think it’s a useful line to start on, though – almost a thought experiment; it serves to help frame the problem in the right way, and point out what things actually need to be addressed, even if it isn’t practical as a way of addressing those things by itself.

There are a number of other corner cases and loopholes and so forth as well, which would have to be addressed by any fully-detailed proposal in this direction, but I figured the version I gave is legalistic enough that I’m risking people not bothering to read it even as is. A more detailed legalese version is percolating in the back of my head; I’ve gone over three or four main variants on it so far already.

The Wanderer (profile) says:

Re: Re: Re:2 Patent-validation tests

To put it another way:

These two tests represent, and possibly exemplify, two essential basic questions which should be asked of any patent application, under and below (as contrasted with “over and above”) questions like prior art:

* “Could a person skilled in the art reproduce the invention based on the description in the full patent? If no, the patent application must be rejected.”

* “Could a person skilled in the art reproduce the invention based on the description in the abstract of the patent? If yes, the patent application should be rejected.”

The rest of the details of my proposal are mostly a way to define how to determine whether a person skilled in the art could reproduce the invention with the given information. Even if you don’t go as far as finding such people and having them actually do it, however, I think it could still be useful to explicitly codify these questions as rules in the patent-application-handling process.

(Note also the difference in the use of “must” vs. “should” in the two tests. I included that difference intentionally, because there are some corner cases where it could potentially make sense to grant a patent application even when the second test might fail, and I wanted to leave room for that in the details.)

nasch (profile) says:

Re: Patent-validation tests

There are longer and more legalistic ways to describe them – to fill in details, eliminate loopholes, address corner cases, and avoid unintended consequences – but the basic outline is:

I love it. The expense would be an issue, but I’m sure there are ways around it. Make patent applications from corporations have a cost scaled to annual revenue or something.

John Fenderson (profile) says:

Re: I have a question

I’m unaware of any such study, but I don’t think it’s necessary to explain the situation. My prediction of what such a study would say is that it’s widespread. I think a whole lot of the problems we see with patents come from the policy change put on the Patent Office to get them to approve patents as rapidly as possible.

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