Legal Issues

by Mike Masnick


Filed Under:
patents, software patents

Companies:
google, graphon



Yet Another Example Of Why Google Would Be Better Off Without Patents

from the it-would-stop-getting-sued-so-often dept

While patent system supporters are trying to convince people that Google could be at great risk if software patents were done away with, that seems hard to square with reality. To date, as far as I know, Google has never filed a patent infringement lawsuit against anyone. Yet, it keeps ending up on the receiving end of incredibly questionable patent lawsuits. This latest one, from a company named GraphOn involves four patents. You can take a look at each one: one, two, three and four. A quick glance suggests not only prior art on all of them (a method for creating a pay-for-service website? filed in 2004? seriously?), but that none of these should have passed the "obviousness" test. It's difficult to believe that no one else would have come up with the same concepts without such a patent.

But, of course, GraphOn has long decided that there's probably more money in suing over patent infringement than in building products. While the company does have some actual products, over the past few years, it's sued a long list of internet companies for supposedly violating its patents. Their crime? Building useful web services that do rather obvious things -- but GraphOn insists that such obvious things require a license. GraphOn seems to be proving the old saying that those who can, innovate -- while those who can't litigate.

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  • identicon
    Michial, 19 Aug 2008 @ 4:38am

    And those clueless to both

    Just write stupid vague articles complaining about it.

    Don't y'all have anything better to do that sit here writing stupid clueless articles about Copyright and Patent laws?

    reply to this | link to this | view in chronology ]

    • icon
      Chris Charabaruk (profile), 19 Aug 2008 @ 4:54am

      Re: And those clueless to both

      Fail troll is fail.

      reply to this | link to this | view in chronology ]

    • identicon
      DanC, 19 Aug 2008 @ 10:31am

      Re: And those clueless to both

      Don't y'all have anything better to do that sit here writing stupid clueless articles about Copyright and Patent laws?

      You've already demonstrated a complete lack of understanding of the patent and copyright systems of the U.S., so you're opinion on the articles is similarly uninformed.

      It's unfortunate that you've degraded yourself to a blog troll instead of trying to understand what's being discussed.

      reply to this | link to this | view in chronology ]

  • identicon
    sleastack, 19 Aug 2008 @ 4:47am

    That's not becoming. Your comment is vague at best. Maybe if I say all lawyers should be hanged and are fat......

    reply to this | link to this | view in chronology ]

  • identicon
    Willton, 19 Aug 2008 @ 5:06am

    Incorrect

    Your "quick glance" was too quick. The patent you reference that was filed in 2004 has a priority date of December 14, 1995. So, while the invention was not claimed until 2004, it was disclosed to the public in 1995, and likely invented before then. So, the prior art that you think is available likely is not prior art to this invention.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Aug 2008 @ 5:21am

      Re: Incorrect

      Too bad that argument doesn't work for the obviousness test. They *still* fail that, especially if they let it sit with no one knowing about it from 1995 -> 2004.

      Can't tell which is worse, the just plain bad trolls or people that defend half the argument and try to ignore the other half.

      reply to this | link to this | view in chronology ]

      • identicon
        Willton, 19 Aug 2008 @ 6:30am

        Re: Re: Incorrect

        Too bad that argument doesn't work for the obviousness test. They *still* fail that, especially if they let it sit with no one knowing about it from 1995 -> 2004.

        How? You'd have to show how this invention was an obvious advancement on the state of the art at the time the invention was made, which is back in the early 90's. I don't see you pointing to any evidence that it would be obvious then. Conclusory statements are not persuasive.

        reply to this | link to this | view in chronology ]

        • identicon
          eleete, 19 Aug 2008 @ 7:07am

          Re: Re: Re: Incorrect

          Well, if they remained silent about it, and millions of websites started doing it without knowledge of their "invention", I would think that would be obvious. You're really reaching on that last comment Wilton. Shopping carts and online databases were an obvious advancement for computers. Staking claims to it with a flag to say "I was first" IS the problem being discussed, nice how you just brush that aside. These patents should never have been granted in the first place.

          Now you will, most assuredly, try to create a specific example explaining otherwise, carry on.

          reply to this | link to this | view in chronology ]

        • identicon
          DanC, 19 Aug 2008 @ 10:51am

          Re: Re: Re: Incorrect

          Patent #6,324,538 is basically a patent for storing user information in a database with a password and displaying information based on a record in that database. As far as a prior art search goes, I believe patent #4,754,326, filed back in 1983, covers the claims nicely.

          reply to this | link to this | view in chronology ]

      • identicon
        Willton, 19 Aug 2008 @ 6:31am

        Re: Re: Incorrect

        Can't tell which is worse, the just plain bad trolls or people that defend half the argument and try to ignore the other half.

        If you have a problem with the latter, perhaps you should take a good look in the mirror.

        reply to this | link to this | view in chronology ]

    • identicon
      Ima Fish, 19 Aug 2008 @ 5:32am

      Re: Incorrect

      If the patent is so spectacular, original, innovative, and valuable, why did the company not make any money implementing it between 1995 and 2004?!

      The old maxim is true: ideas are easy, however, real success takes real work.

      reply to this | link to this | view in chronology ]

      • identicon
        Willton, 19 Aug 2008 @ 6:35am

        Re: Re: Incorrect

        If the patent is so spectacular, original, innovative, and valuable, why did the company not make any money implementing it between 1995 and 2004?!

        How do you know that they did not?

        reply to this | link to this | view in chronology ]

    • identicon
      eleete, 19 Aug 2008 @ 6:05am

      Re: Incorrect

      Prior art on a database being brought online ? Surely Wilton, you will always side with a patent holder. BBS systems used online databases for years, Yes prior to 1995. You really ought to try to see the other side of things. This was not a new invention, even in 1990 it was not.

      reply to this | link to this | view in chronology ]

      • identicon
        Willton, 19 Aug 2008 @ 6:48am

        Re: Re: Incorrect

        Prior art on a database being brought online ? Surely Wilton, you will always side with a patent holder.

        Just as surely as you always side against the patentee.

        BBS systems used online databases for years, Yes prior to 1995. You really ought to try to see the other side of things. This was not a new invention, even in 1990 it was not.

        1) 1995 is not necessarily when the invention was made. It likely was made earlier and was only filed-for in 1995.
        2) This patent claims a much narrower, more complicated invention then a mere online database. I suggest you read the broadest claim.
        3) If the patented invention really wasn't new back then, then Google should have no problem defending their case.

        reply to this | link to this | view in chronology ]

        • identicon
          eleete, 19 Aug 2008 @ 7:02am

          Re: Re: Re: Incorrect

          "3) If the patented invention really wasn't new back then, then Google should have no problem defending their case."

          You seem to take pride in the fact that a company should have to pay attorneys and staff defending weak claims to stay in business. I am sure you would see it as a deterrent to doing any business if you were not on the receiving end of these fees. Hiring an attorney isn't cheap, as you know Wilton. You come by and sling it around as though it's no big deal, but obviously it is a deterrent, not an incentive to doing business. Going backwards and studying "prior art" is not innovation. The patent should have never been granted in the first place, yet all you can comment is... Well let them spend a lot of money on an attorney to prove it, then it will no longer be a valid patent."

          The problem there, in case you are to blind to see it, is that those legal expenses are often the barrier to entry for small businesses and true inventors. By the way, how much do you charge for an hour of your time ?

          reply to this | link to this | view in chronology ]

    • icon
      mike42 (profile), 19 Aug 2008 @ 7:49am

      Re: Incorrect

      Your criticism only furthers the point of this article - that the system is broken. You are also obviously not a programmer of any sort, otherwise you would not constantly declare very general directions as "specific implementations." Any actual coder employed in the patent office would laugh these patents out. Perhaps you should pick up a book on coding before commenting on things you obviously know nothing about.

      reply to this | link to this | view in chronology ]

      • identicon
        Willton, 19 Aug 2008 @ 8:03am

        Re: Re: Incorrect

        Your criticism only furthers the point of this article - that the system is broken. You are also obviously not a programmer of any sort, otherwise you would not constantly declare very general directions as "specific implementations."

        I'm pretty sure I did not declare anything a "specific implementation."

        Any actual coder employed in the patent office would laugh these patents out.

        If you say so.

        Perhaps you should pick up a book on coding before commenting on things you obviously know nothing about.

        And perhaps you should pick up a book on patent law before commenting on things that you obviously know nothing about.

        reply to this | link to this | view in chronology ]

        • identicon
          mobiGeek, 19 Aug 2008 @ 8:46am

          Re: Re: Re: Incorrect

          Why, as a software developer building applications independent of looking at patent applications, do I need to read a law book?

          It is absolutely ridiculous that I have to sit in fear that my date-picker-widget might infringe on someone else's "patent" simply because they went to the patent office first.

          A very good portion of software patents that have been awarded fall into the "we got there first" category. That is not INVENTION, and certainly not INNOVATION. It cripples progress in the field as any competent business now has to spend resources building up legal and financial barricades to stave off those who "invented" the widget I just built on my own.

          Willton, how is this "progress"? How does this system HELP your (future) clientele?

          reply to this | link to this | view in chronology ]

        • identicon
          Balthazar, 19 Aug 2008 @ 9:44am

          Re: Re: Re: Incorrect

          Willton, you must have aced "Being an Uninformed Prick 101." You're pretty obviously either a patent shill, or you're hoping to make a client out of angry dude, when and if you graduate.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Aug 2008 @ 8:08am

        Re: Re: Incorrect

        And any lawyer would laugh at programmers. Mainly because they are getting all of the money and women while the programmers live in their mom's house and eat Ramen every night while rearranging their Star Trek action figure collection. By the way, those are just plastic dolls.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 19 Aug 2008 @ 8:54am

          Re: Re: Re: Incorrect

          ...and what are you doing now? You don't sound like someone who works for a living IMHO.

          Glad to hear you have such a high opinion of those people who make the communication medium you're currently using possible...

          (By the way, no I'm not a coder. I am however intelligent enough to know that this particular dated stereotype is not true in most cases.)

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2008 @ 5:38am

    GraphOn seems to be proving the old saying that those who can, innovate -- while those who can't litigate.

    And those who cannot do either blog.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2008 @ 5:57am

    haha, seems like GraphOn's executives have found their way into this thread and are bitching

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2008 @ 7:54am

    wilton, your lawyer is calling...

    ...he needs you to make up more "evidence" regarding your case against google

    reply to this | link to this | view in chronology ]

  • identicon
    Scott T, 19 Aug 2008 @ 9:37am

    "And perhaps you should pick up a book on patent law before commenting on things that you obviously know nothing about." And that is what the WHOLE discussion is about, the fact that patent law, as it stands, is what is broken and needs updating so that frivolous lawsuit over imagined copyright fringements can be eliminated.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2008 @ 2:27pm

    "While patent system supporters are trying to convince people that Google could be at great risk if software patents were done away with..."

    It is difficult to present a cogent and persuasive argument when you lead off with statements like this.

    reply to this | link to this | view in chronology ]

  • icon
    Ronald J Riley (profile), 20 Aug 2008 @ 4:26am

    Larceny On The Grandest Of Scales

    Mike, are you a socialist who thinks people's property can be taken without compensation or a capitalist who thinks you should be able to socialize some people's property for your own profit?

    In all seriousness Google is doing lots of evil by taking other's patent properties for their and only their profit. They are also one of the favorite places for invention promotion frauds to hawk their services. Google hosts ads for a number of companies who have been busted by the FTC.

    And as you point out there are many other well healed entitlement minded companies being taken to task for their blatant theft of others intellectual property.

    They are all thieves.

    Big companies love to complain about piracy of their intellectual property even as they are themselves committing larceny on the grandest of scales of independent inventors intellectual property. They are much like organized crime syndicates. The software crowd are more like chop shops and pick pockets. Still criminals, just the unwashed rift raft :) And yes this meant to insult the software dullards who either cannot invent at all or are just too lazy to make the investment to teach and advance the arts with patents.

    Considering your mindset Mike, it is only a matter of time before you are caught and when that happens the anti-patent paper trail you have left behind will be great cannon fodder for proving willfulness. When that happens I will be sure to send you a sympathy card with a personal sized tube of KY for temporary relief :)

    Ronald J. Riley,


    Speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.patentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 - 9 am to 9 pm EST.

    reply to this | link to this | view in chronology ]

    • identicon
      eleete, 20 Aug 2008 @ 5:23am

      Re: Larceny On The Grandest Of Scales

      Property huh ? Theft you claim ? Criminal too ? Evil ? KY ?

      Agenda noted.

      reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 20 Aug 2008 @ 10:50am

      Re: Larceny On The Grandest Of Scales

      Mike, are you a socialist who thinks people's property can be taken without compensation or a capitalist who thinks you should be able to socialize some people's property for your own profit?


      Mr. Riley, I'm curious if you could explain to me how a gov't backed system of gov't granted monopolies that excludes competition is somehow less socialist than allowing free market competition?

      I am a strong believer in property rights. But, unlike you, I recognize what property actually is, and don't try to turn non-property into property.

      In all seriousness Google is doing lots of evil by taking other's patent properties for their and only their profit.

      Hmm. If these other properties were so valuable, why weren't those original inventors bringing them to market and making money off of them?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2008 @ 7:20am

    Geez Mike . . . .

    Seems Techdirt is scaring the hell outta someone . . . nice job;

    "Considering your mindset Mike, it is only a matter of time before you are caught and when that happens the anti-patent paper trail you have left behind will be great cannon fodder for proving willfulness. When that happens I will be sure to send you a sympathy card with a personal sized tube of KY for temporary relief :)"

    Wow, threats of prosecution, anal rape and everything. This is a sure sign your on the right side of an argument Mike . . . a sure sign.

    reply to this | link to this | view in chronology ]

  • identicon
    stv, 20 Aug 2008 @ 7:26am

    stop the shilling!!!

    for once you are right. Google would be better off without patents as would any other large entity —if noone else had them. Microsoft is on record as saying the only reason they patent anything is for defensive purpose. The way big companies use them is if another big company sues them for patent infringement they counter sue with theirs and settle out of court with a cross license. However, small entities cannot survive without them. No matter how great their creation, once they’ve established the market inevitably a big company will step in and elbow them out of the market they created. Small companies simply cannot compete with larger well funded competitors. That’s why we have patents. Get it? Then the only recourse for a small company is to sue. Unfortunately with the current state of injunctions it is unlikely a non practicing small entity will get an injunction to stop the large thief so they have to settle for a court ordered subjective “reasonable royalty” rather than the long established practice of market driven value resulting from the threat of injunction. Such is the sad state of our patent system. He who has the gold makes the rules...and rules shill reporters.

    reply to this | link to this | view in chronology ]

    • identicon
      DanC, 20 Aug 2008 @ 8:16am

      Re: stop the shilling!!!

      Unfortunately with the current state of injunctions it is unlikely a non practicing small entity will get an injunction to stop the large thief so they have to settle for a court ordered subjective “reasonable royalty” rather than the long established practice of market driven value resulting from the threat of injunction.

      An injunction only encouraged defending companies to settle quickly regardless of the merits of their accuser's case. An accusation of infringement is not proof of infringement, and an injunction unnecessarily harms a company before guilt is established. Small non-practicing companies and individuals don't deserve immediate injunctions based off an accusation of infringement.

      reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 20 Aug 2008 @ 11:09am

      Re: stop the shilling!!!

      However, small entities cannot survive without them. No matter how great their creation, once they’ve established the market inevitably a big company will step in and elbow them out of the market they created.

      As we've discussed repeatedly, that's simply untrue. Small companies quite often (certainly not always, but quite often) outrun larger companies by being more innovative, more flexible and faster to react to customer needs. To claim otherwise is pure ignorance.

      Small companies simply cannot compete with larger well funded competitors.

      Well, as pointed out, yes they can, and they do. Quite often in fact. Google came from nowhere to beat plenty of big well-funded competitors. Microsoft did the same at one point. And it didn't require patents.

      That’s why we have patents. Get it?

      But that's simply untrue. Patents were never designed to "protect the little guy." They were designed to encourage innovation -- from either the big guys or the little guys.

      reply to this | link to this | view in chronology ]

  • icon
    Ronald J Riley (profile), 20 Aug 2008 @ 8:26am

    Rate of technological advance

    It used to be a company could go for generations without major changes in technology. Today a company is likely to see disruptive inventions impact their market in under twenty years. Intel, Micron, HP, Apple, Dell, Cisco, Google and other members of the Coalition for Patent Fairness & PIRACY all are desperate to change the patent system so that they can steal what they are incapable of inventing.

    There is a better solution, one which older tech companies learned the hard way, and that is to start licensing other's inventions before using them. If these companies were not leaving the inventions unlicensed they would not be facing the likelihood that some inventor or their agents or is that a mythical ugly vicious troll will be taking a huge bit out of their backsides.
    Ronald J. Riley,


    Speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.patentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 - 9 am to 9 pm EST.

    reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 20 Aug 2008 @ 11:11am

      Re: Rate of technological advance

      It used to be a company could go for generations without major changes in technology. Today a company is likely to see disruptive inventions impact their market in under twenty years. Intel, Micron, HP, Apple, Dell, Cisco, Google and other members of the Coalition for Patent Fairness & PIRACY all are desperate to change the patent system so that they can steal what they are incapable of inventing.

      Ok, Mr. Riley: straight up question, and I'd prefer a straightup answer:

      What do you think of an independent invention defense? If they actually are capable of inventing the same thing on their own, do you still have a problem with it?

      reply to this | link to this | view in chronology ]


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