Supreme Court Has Another Chance To Help Take Down The Patent Trolls

from the help-us-scotus dept

The Supreme Court has a chance to help banish patent trolls back under the bridge where they belong. In the fall session, the Court will hear Oil States Energy Service v. Greene's Energy Group – a case that has massive implications for the future of patent law and U.S. innovation.

Patent trolls (sometimes called non-practicing entities, or NPEs) don't actively create any goods or provide any services. Instead, they go after those who do, filing bogus patent infringement lawsuits. Ultimately, their goal is to frighten businesses into settling outside of court, collecting as much money as they can.

More than 80 percent of trolls' victims are small and medium-sized businesses, and the cost to defendants to fight a patent-infringement lawsuit can easily reach $1 million. That's why it's often more cost-effective to simply pay off the trolls.

"Trolls often aggressively push for extortionate settlements that far surpass the value of the [intellectual property] because they know many companies will choose to settle, rather than get embroiled in an expensive and drawn-out lawsuit," Ira Blumberg, a former patent-troll lawyer, explained: "Their actions can wreak havoc on tech companies of all sizes."

Patent trolls cost the U.S. economy $80 billion each year, or about $1.5 billion a week. The billions of dollars wasted in this way are funds that can't be invested in research and development or in hiring the innovative talent needed to develop new products and grow the U.S. economy. In fact, a Harvard Business School study found that companies that settle with or lose to trolls lower the amount of money they invest in R&D by 25 percent on average.

Fortunately, there's a way to help thwart the trolls, provided the Supreme Court upholds the ruling of the Federal Circuit Court in Oil States Energy Service v. Greene's Energy Group. The case involves inter-partes review (or IPR) – the process used by the U.S. Patent and Trade Office to determine whether a patent under question was issued based on merit. If not, the patent can be rescinded. The process is similar to a trial: Lawyers make their case to the Patent Trials and Appeals Board (PTAB), and three highly qualified administrative patent judges hear their case and come to a decision.

This process is expensive, but it's considerably less costly than going to court. Startups and small businesses cannot afford the millions that a patent lawsuit costs, but some of them can afford to challenge a bad patent via an IPR proceeding. If the Supreme Court fails to uphold the Federal Circuit Court's ruling, American small businesses would no longer have an accessible avenue to challenge dubious patents.

The PTAB has a solid track record of fair rulings. A troll might take the case to the Federal Circuit after not getting the result they hoped for in an IPR, but the court rarely reverses the PTAB's ruling. A study from Law360 looked at Federal Circuit appeals in 2016, and found that the court affirmed 75 percent of the decisions made by the PTAB and overturned just three percent. (The other 22 percent were remanded back to the PTAB).

Oil States Energy Service, a multinational oil and gas company, however, wants to end IPR and hand decisions about patents back to the courts, arguing that IPR is unconstitutional and that these cases should only be heard in a court of law with a citizen jury. If the Supreme Court decides in Oil States' favor, trolls will be able to continue extorting small businesses and those businesses will have no realistic way to fight back. That means that American entrepreneurs will be forced to waste money on frivolous troll lawsuits rather than investing in R&D and creating jobs.

Earlier this year, the Supreme Court cut off one avenue that trolls use to shake down innovators by requiring that patent cases be brought in the court where the defendant is located. This should discourage trolls from concentrating cases in favorable venues like the Eastern District of Texas. The decision was a significant step in the right direction. The Supreme Court should again rule in favor of entrepreneurs in the Oil States case.

Despite the court's focus on patent issues, however, Congress must ultimately take a stand and act to strengthen our patent system to stop trolls for good. The House passed legislation in 2013 that would help prevent patent trolls from continuing to harass companies, but the bill died in the Senate. Since then, the problem, already bad, has only worsened: Patent troll suits have spiked 500 percent over the last ten years, and 2015 was the second-highest year on record for patent lawsuits, with trolls making up 66.9 percent of suits. Every delay allows the problem to grow and prevents tech companies from investing their money in creating jobs and innovation.

The tech industry accounts for seven percent of the U.S. GDP and supports 6.7 million U.S. jobs, but trolls continue to slow innovation with frivolous lawsuits. The Supreme Court should take advantage of this remarkable opportunity to challenge the trolls and defend American ingenuity by upholding IPRs. Our innovation economy depends on it.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 24 Aug 2017 @ 4:17pm

    Oh Gary...You do realize that no matter what ruling they intend to make here American tech businesses are still going to lose, right? The American IP system went from fostering to impeding innovation many decades ago. It's why places with a more reasonable patent and copyright system continue to dance circles around the United States, even when their economies and/or governments are much less efficient (like China and India).

    When you have a country where even the lawyers have lobbyists, you know you're pretty much fucked.

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

    • icon
      OldMugwump (profile), 24 Aug 2017 @ 5:40pm

      Re: pretty much fucked

      So you're saying that Gary and others who fight patent trolls are wasting their time? They should give up and just bend over?

      I mean, what's your point, AC? Things can't get better unless good people make an effort to improve them.

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

      • identicon
        Anonymous Coward, 24 Aug 2017 @ 7:19pm

        Re: Re: pretty much fucked

        My point is, Congress is just going to nullify all his efforts with more half-assed corporate legislation. They want indefinite patents to go along with their near-indefinite copyright, and unless we start seeing some real pushback against this shit in the Legislative branch, they're going to get it.

        At that point would it even matter if they're patent trolling? Who would even *want* to innovate or indulge in the creative arts in such a country?

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

  • identicon
    Anonymous Coward, 24 Aug 2017 @ 5:54pm

    What do you think is really happening?

    Gary, thanks for the article, it is thought provoking. I wonder if you (or someone else) could speak to some questions it raises in my mind.

    Why do you think patent litigation got so expensive, and so acrimonious? Has it always been so expensive, or did it change in recent years. I agree it is quite a burden on everyone either enforcing or defending against patents to have to spend so much money to do so. Kind of a terrible price to pay just to settle an issue, IMHO. When did it get so acrimonious, and why? The whole "I hate evil patent trolls" seems to be an invention of the last decade, where did it come from?

    A related question, who do you think is financing the left-leaning part of litigation? My theory is that the big companies, like Red Hat (and others) have a lot to lose should patents be enforced against them, which is kind of the idea of patents. It really is structured (IMHO) to side with the inventors and against large boring uncreative companies that do not invent anything, or invent very little. Every large company is motivated to sell what they have, not to disrupt the sales of their own products. That's just big business, by definition.

    I think Red Hat (and others) finance companies opposing patents and speaking against them, and they do so covertly by "contributing" to Free Software "charities" that then pass the money along to those opposing the patent system. Mike recently got a big pile of money, I would guess for a similar purpose, to support the "powers that be" and not legitimate small inventors. I'm not sure about that, but it looks that way to me.

    So, my questions are: (1) Why do you think patent litigation is so expensive, and do you have any ideas about how to make it less expensive (2) Where is the money coming from to support the "anti-patent" Open Source/Free Software/Free Speech (anti-patent) networks? Is it the big companies working against the small inventors to weaken their constitutional protections, or is there another explanation?

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

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 5:59pm

      Re: What do you think is really happening?

      "More than 80 percent of trolls' victims are small and medium-sized businesses"

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

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 5:59pm

      Re: What do you think is really happening?

      "More than 80 percent of trolls' victims are small and medium-sized businesses"

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

    • icon
      orbitalinsertion (profile), 24 Aug 2017 @ 7:04pm

      Re: What do you think is really happening?

      "When did it get so acrimonious, and why? The whole "I hate evil patent trolls" seems to be an invention of the last decade, where did it come from?"

      It got acrimonious, at least in volume, around the same time "I hate patent trolls" was invented; i.e., when patent trolls became a thing.

      I don't see any of these as left-leaning, or anti-patent. What i see is a fair contingent of anti-bad-patent people taking action, sometimes because they have noticed the climate, and sometimes because patent trolls with no business other than trolling with a portfolio of unused bad patents decides to troll them.

      Why would Red Hat fund this theoretical anti-patent brigade? And what exactly are your claims regarding Red Hat somehow violating some other party's patents?

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

      • identicon
        Anonymous Coward, 24 Aug 2017 @ 7:51pm

        Re: Re: What do you think is really happening?

        "Why would Red Hat fund this theoretical anti-patent brigade?"

        Why does anybody fund anything? To help themselves, of course, why else? It's an investment in their future. Why make it so expensive? It works in Red Hat's favor, of course. It eliminates all the small inventors as potential rivals, but they can't afford it.

        I perceive it as a public lobbying effort to protect their position as an open source supplier and try to move the general public from a neutral or pro-patent position to a negative patent position. I think it intentional and prolific in many communities, even this one, where we are speaking now. I think they use shallow hate filled arguments to promote a Pro Red Hat and Anti-Patent agenda, because it serves their business purpose, and reduces their risk profile.

        I think they do it covertly, without using their name directly, through various organization, funds and charities, like "Free Software" foundations worldwide. And I think they are the ones who paid to make it so nasty, but that is just my opinion. Who else has a motivation to paint patents as so nasty? Not patent owners, that's for sure. Who, if not them? A spontaneous outcry from the public? What does the money to pay for this site actually come from? T-Shirts? You're kidding, right?

        Red Hat is a business, right, and they are trying to make money, and support ideology and law that helps them and does not hurt them. How could they do anything else, do you think they are selfless? That seems far-fetched, don't you think?

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 7:41am

          Re: Re: Re: What do you think is really happening?

          I have read your posts with great interest as you have many questions. Perhaps you could explain your interest and why your questions seem to have some bias.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 8:19am

            Re: Re: Re: Re: What do you think is really happening?

            In the past, when Techdirt used to silence critics, it got under my skin a little. Now, they seem much more open to allow people to ask questions and seek answers, without silencing them. In the past, perhaps I was a little unfair to Techdirt and showed a lot of bias against them. My opinion has recently changed for the better. For example, this very thread of posts seems filled with more ideas and different points of view than I have ever seen before on Techdirt. I think it's great, and thank Techdirt for the opportunity to express my opinions and to ask the opinion of others. I really do respect an open forum of ideas that can be exchanged freely between people all around the world. I think it's great.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 8:09pm

              Re: Re: Re: Re: Re: What do you think is really happening?

              While professing a feverish desire for the destruction of Techdirt, Open Source and anyone who questions the theocracy of Thailand.

              ...Sure, you respect it.

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

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 11:23pm

      Re: What do you think is really happening?

      >(2) Where is the money coming from to support the "anti-patent" Open Source/Free Software/Free Speech (anti-patent) networks? Is it the big companies working against the small inventors to weaken their constitutional protections, or is there another explanation?

      In an open source environment, the companies are supporting and relying on the small inventors, because they rely on them to help develop and test their software. Because of this, Red Hat find it worthwhile to invest in the infrastructure and some of the man hours to support two free Linux distribution, Fedora where a lot of the development of future red Hat releases take place, and Centos, which is Red Hat linux, with the branding changed.

      Patents in the hands of trolls is perceived as the greatest threat to the individual inventor, as the cannot afford the law suites if the trolls come calling, and they cannot afford the licenses either.

      Open Source software and its developers are inherently ant software patent, because in practice the rely heavily on being able to take and build on the works of others. Co-operation rather than competitions what underlies open source software.

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

      • identicon
        Anonymous Coward, 24 Aug 2017 @ 11:57pm

        Re: Re: What do you think is really happening?

        When you say patents in the hands of trolls are perceived as the greatest threat to the individual inventor, on who's behalf are you speaking? Are you an inventor? Perceived by whom? Not me. I am an American Inventor with about 20 issued patents. Patent trolls are no threat to American Inventors at all. Patent trolls (meaning patent holders) are a threat to American companies who build systems that infringe on patents. Companies like Red Hat. Patent holders are actually the single greatest threat to Red Hat and other Open Source companies, right? They are no threat AT ALL to inventors, inventors can just invent some more and they are fine.

        I saw some smart guy at Red Hat (Tom Calloway, if I remember) who explained that Red Hat could be completely demolished by a single patent. That's actually true, they could be. A patent, for example, like an MPEG encoder/decoder that used a special purpose processor. If Red Hat had knowing shipped that technology, and it was found to infringe on a valid patent, they would be done as a company. The unit volume is so high and the utility is so obvious that the damages calculation would wipe them out. Patents are an existential threat to Red Hat and the Open Source community in general. Patents are no threat at all to individual inventors, that actually have a skill they can employ, called inventing.

        IMHO, co-operation is overvalued, especially when it is coerced by huge companies like Red Hat. Who benefits the most? How much do the programmers make, and how much do the Red Hat executives make? Competition is what drives innovation, this is a historical fact that Americans can be proud of. Patents stimulate competition, they pose the question, who can be the first to document a new and useful machine? That's what we want in our American society. We want hard working smart people to disclose their inventions and we entice them with money.

        What we don't need more of is big bloated businesses like Red Hat competing with and crushing the aspirations of American Inventors by sponsoring the fairy tale of "patent trolls" and paying big money to media companies to do so. Nasty stuff, really, the whole argument. Take a look at the coincidence between the rise of the "patent troll" argument and rise of the Open Source community. It seems pretty clear to me who is sponsoring and paying for all this negative publicity in the media. It is certainly not American Inventors. MAGA

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 3:12am

          Re: Re: Re: What do you think is really happening?

          Put your money where your mouth is and show us your "patents" and let us see how outstanding they are. If they are not obvious to those skilled in the art then maybe you have something to say.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 3:23am

            Re: Re: Re: Re: What do you think is really happening?

            Are you implying that I was able to produce (about) 20 different patents, reviewed by at least half a dozen different patent examiners, which are obvious? That the USPTO got 20/20 wrong? You're joking, right?

            And my money stays in my pocket, thank you very much. My mouth is here on Techdirt (metaphorically), my money is in the bank. No money for you, sorry.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 3:47am

              Re: Re: Re: Re: Re: What do you think is really happening?

              No, I am saying that unless you can prove that you have those patents then you are lying through your teeth about having any patents at all. You've made the claim that you have (about) 20 patents. If we don't see them, we will know you are a liar. Therefore anything you say is not worth a brass razoo.

              So, if you've got patents, let's see the patent numbers and prove that you are what you say you are. Otherwise as I said above, we will know that you are a liar and not an actual honest real life inventor.

              That clarify it for you?

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

              • identicon
                Anonymous Coward, 25 Aug 2017 @ 3:58am

                Re: Re: Re: Re: Re: Re: What do you think is really happening?

                Well, I can give you the name of one of my favorite patent attorneys, his name is Wayne Barsky at Gibson Dunn and Crutcher. Do you recognize his name? He was the first to beat Microsoft in court with a patent about data compression. He's a great guy, really, incredibly gifted in the area of patents. His partner is the guy that got Bush his job in the SCOTUS argument about the Florida results, as I recall.

                Do you even know a patent attorney? Have you ever spoken to one, hired one, or listened to one? Do you know anything at all about patents?

                What you clarify is your lack of social skills, you show yourself to be unreasonable and ignorant.

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

                • identicon
                  Anonymous Coward, 25 Aug 2017 @ 6:52am

                  Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                  What you clarify is your lack of social skills, you show yourself to be unreasonable and ignorant.

                  This coming from the guy who calls everyone he dislikes "maga", in capital letters.

                  Pot, meet kettle.

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

                • identicon
                  Anonymous Coward, 25 Aug 2017 @ 7:44am

                  Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                  Hey!

                  It's Angry Dude !

                  Welcome back man, good to see you again. Hope you are doing well.

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

                  • identicon
                    Anonymous Coward, 25 Aug 2017 @ 8:14am

                    Re: Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                    Thank you, I like your name for me, maybe I will trademark it.

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

                    • identicon
                      Anonymous Coward, 25 Aug 2017 @ 9:21am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                      Is that your modus operandi, claiming the rights on the work of others?

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

                • identicon
                  Anonymous Coward, 25 Aug 2017 @ 6:26pm

                  Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                  Dear sir, you are declaring yourself a liar. You have invented nothing of any worth by your own admission, by your own action of not backing up your claims with actual information of your supposed patents.

                  The reference to any lawyer is of no consequence. It is the action of a man who cannot demonstrate his claims. Just because you name a lawyer does not, in any way, lay claim to him being your lawyer or him ever having done any work for you in any way at any time.

                  Your proof of the reality of the inventiveness of your pudding is a complete list of the (about) 20 patents as issued by the US patents body. Until you can do this, we are fully entitled to consider you a complete and total liar. Towards that end, if you actually want to be considered a truthful man (of course that doesn't exclude you being a woman, there are many inventive women, for those who don't think women are inventive) all you have to do is list the patent numbers so we can test the veracity of your claims.

                  Otherwise, we will know that you have nothing to support your claims, except possibly an over exaggerated ego.

                  You made the claim of (about) 20 patents, we are entitled to ask the question of "what patents." You don't have to answer, but we are fully entitled to keep asking you for the relevant information to back your claims. The more you refuse to answer, in any reasonable way, the more we can disregard anything you claim about the subject. See, very simple.

                  My social skills or lack of them are not in question. The veracity of your claims are and you have shown yourself to be unreasonable, ignorant, inept and arrogant.

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 3:22am

          Re: Re: Re: What do you think is really happening?

          I should also ask, what is your opinion on the value of your patents? Have you commercialised them or are you waiting for some benevolent benefactor to give life to them patents? Again put your money where your mouth is.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 3:27am

            Re: Re: Re: Re: What do you think is really happening?

            Yes, many of them were commercialized. Some of them were done for old companies who have now slipped under the waves. Intel bought some of them in various final sales of assets. They're not all great, but some of them are, IMHO. The newer ones have not been commercialized yet, but I fully expect people to adopt the patented techniques in the future. They're really good. I've studied my field for the better part of 40 years, and I've got a track record of innovation and contribution to society as a visionary in my field. Thank you for asking.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 5:00am

              Re: Re: Re: Re: Re: What do you think is really happening?

              You miss my point, we have no proof of who you are or how good you are or even if these patents of yours are any good at all.

              So if they are not all great then they are not worth having been patented in the first place. Just because you've been in the field for 40 years means not much in terms of being a patent worthy inventor.

              Since the idea of a what a patent is supposed to be and the actuality of what is given as patent and the vast difference therein. I don't consider much that is patented to worth the paper is is submitted on.

              I have met and worked with many very talented people over the decades, many of them very inventive. However, the value of the ideas they have had has been minor compared to what they actually do, the problems they solve as a matter of course doing whatever work they do. You can have all the brilliant ideas you want, but if you can't implement them and make a viable product that actually sells, then your idea is worthless.

              I work on a simple premise, there is nothing new under the sun. Everything we do is based on what has gone on or been done before us. We get our inspiration from the world around us and it should be worth more to us to simply share than to restrict the knowledge. I learn something, I share it.

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 4:09am

          Re: Re: Re: What do you think is really happening?

          IMHO, co-operation is overvalued

          Take a look at the coincidence between the rise of the "patent troll" argument and rise of the Open Source community

          Have you ever though that that is because the open source community likes to share their innovations, because there is nothing like letting a lot of people play with it to bring it to a high state of polish.

          You seem to think that owning ideas is a good thing, while the Open Source community think that sharing them is a good thing. Of the two ideas, the Open Source approach allows faster innovation, and benefits the whole community, while owning ideas enriches the individual at the expense of the community.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 4:16am

            Re: Re: Re: Re: What do you think is really happening?

            Great, go start your own country and do what you want. In America, we have a constitution, and we have copyrights, patents and other Americanisms. MAGA

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 6:13am

              Re: Re: Re: Re: Re: What do you think is really happening?

              How to totally ignore the point being made, accuse anyone who who sees the benefit of cooperation of being un-american.

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

              • identicon
                Anonymous Coward, 25 Aug 2017 @ 8:10am

                Re: Re: Re: Re: Re: Re: What do you think is really happening?

                Be happy, share if you want, up to you. Just keep your nose out of the legitimate business of American Inventors, and respect the US constitution and the rights it grants inventors. God Bless America.

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

                • identicon
                  Anonymous Coward, 25 Aug 2017 @ 6:43pm

                  Re: Re: Re: Re: Re: Re: Re: What do you think is really happening?

                  But we have no proof that you are even an inventor. So telling people to keep their noses out of the "legitimate business" of any group is therefore not even on the cards for you to say. The US constitution doesn't grant any rights to inventors. It grants rights to congress to make laws regarding such things. A big difference.

                  Lastly, calling on God to bless America in the jingoist manner that you have used it, defames the name of God. America (like most, if not all nations) is a virulent cesspool before His great Holiness. America (as a nation) is heading the way of Sodom and Gomorrah, the way of Babylon, of Nineveh, of Rome. No less nor more than any other nation. The world is collectively going to Hell in handcart.

                  if you want God to bless America, then ask for a repentant heart in the nation, a turning of the hearts of the people to the One who can save their lives and renew them so that they become a light amongst the nations. At this time, America is rapidly gaining the name and nature of a wild beast that is attacking its own as well as everything else.

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 7:43am

          Patents on Software are built on Quicksand (was Re: Re: Re: What do you think is really happening?)

          Here's the problem: your hypothetical patent isn't solely on a specific (as in silicon-implementation-specific) "special purpose processor" that sits there and does nothing but MPEG decoding or encoding (if that was the case, then it's not a problem for Red Hat who is dealing with software implementations of the MPEG encoding/decoding function). Instead, for it to be a problem for Red Hat, it has to be readable to cover the software implementation, and there lies quicksand.

          See, mathematics can't be patented. (This line of thinking goes all the way back to Mackay Radio & Telegraph v. Radio Corp. (306 US 86 (1939)) which states that "While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.", and was reaffirmed in Benson and Flook in the software context, as well as meshing with the Alice ruling regarding abstract ideas.) This is an essential rule of the patent system as patenting the fundamental building blocks of innovation, namely the laws of nature and mathematics, would simply slow things to a crawl. Imagine needing a patent license to take the derivative of something!

          Patenting software, though, breaks this rule, as the connections between software and mathematics are not a matter of applied usage (as in an engineer's calculations for a beam), but are fundamental: the Curry-Howard isomorphism means that mathematical proof systems (logical calculi) and type systems are equivalent, and so are the objects derived from the systems (proofs and programs). This means that given a rich enough type system in a programming language (it's why we have strongly typed monadic functional languages like Haskell), we can extract a proof of correctness from that program (formal verification), and conversely, a computer can run a mathematical proof and verify its correctness (see Coq).

          You might ask at this point "Why does this matter? We don't prove programs correct as a matter of routine, and what about I/O?" But, the proof still exists even if it is not directly constructable, and the existence of that proof is fatal to the entire concept of software patents -- they are inescapably patents on (complicated and niche) mathematical theorems and the proofs thereof. Any attempt to define a concept of "nonmathematical algorithm" for patentability purposes is thus doomed.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 8:12am

            Re: Patents on Software are built on Quicksand (was Re: Re: Re: What do you think is really happening?)

            I don't understand what you said at all. I believe the Open Source community understands that MPEG software patents are real, and they respect them by not shipping them. That was my point.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 1:07pm

              Re: Re: Patents on Software are built on Quicksand (was Re: Re: Re: What do you think is really happening?)

              That's mostly because the MPEG patent thicket was obtained under *Alappat* and *State Street*, and the policy decisions made then corresponded to that generally uncertain state of affairs. I suspect RH etal are likely to revisit issues related to that thicket given the shifts in the codec landscape (VP8/WebM replacing Theora mostly), MPEG-LA making assertions that *all* video codecs (incl. VP8 and Theora) are covered at least partially by their patents (which'd be a real footgun in court IMO from an *Alice*/abstract-ideas standpoint), and the *Alice* line of thinking which points strongly towards software patents being invalid.

              Having some choice claims knocked out from under them in IPR would definitely take the wind out of MPEG-LA's sails, though, no?

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

  • icon
    Toom1275 (profile), 24 Aug 2017 @ 5:54pm

    If the USSC declines to hear the case, is it just as good, or almost as good? I mean, If they decline then the anti-troll ruling still stands, but is that weaker than the victory would be if the supreme court affirmed the ruling? And if so, by how much?

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

  • identicon
    Anonymous Coward, 24 Aug 2017 @ 6:16pm

    Red Hat is a software company--that is, they apply mathematics--they do not actually create devices that are subject to patent law. The problem is that patents have become a word game in which one attempts to fool the patent examiner into thinking something has never been done before by using words that have a narrow (or no) meaning; then attempts to fool a jury into thinking something is being done by everyone in violation of your precioussss -- by claiming those same words must mean everything (since they don't mean anything at all.)

    This approach works especially well in mathematics, where most people have a very poor background and level of understanding.

    Conversely, the public benefit of patents doesn't apply at all in mathematics, where the professionals have worked out effective ways of exchanging algorithms, so nobody, not even the most rabidly insane ignorant moron, would ever look in a patent to find out how to do something mathematical-related.

    Obviously, anyone who actually DOES mathematics is going to see patents as unmitigated evil.

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

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 7:32pm

      Re:

      Well, leaving aside the moral arguments for a moment, how do you account for the absence of MPEG drivers from the Linux stack except that Linux distributors knew that using the MPEG drivers would violate existing patents? They really wanted to distribute them with everything else, but they did not. I think Red Hat and others are indeed subject to patent infringement claims regarding their software if they were to knowingly encourage others to violate existing patents.

      And I don't think Alice will help your claims that "software = mathematics" in this area. Alice only addresses "general purpose" computers with "general purpose" instructions and "general purpose" registers. As soon as the MPEG encoder/decoders move into "special purpose" processors with "special purpose" instructions and "special purpose" registers, Alice holds no sway.

      So I think the issue might be more complex than you present. Patents can indeed cover inventions that use software, there is no doubt about that. Software itself can be subject to patent claims if it is distributed with the knowing intent to encourage others to infringe patents. The behavior of the whole open source community already acknowledges this by their historical lack of MPEG drivers.

      As for the moral argument itself, why don't we start with a definition of "unmitigated evil". What kind of "unmitigated evil" do you think is perceived by mathematicians in terms of patents? Are you making some kind of moral judgment about patents on behalf of mathematicians? Are you a mathematician? I know a very famous mathematician, he was winner of the Monroe Martin prize, very prestigious. He develops patents, and his University helps him. In fact nearly every University supports patent development, and many of the authors are mathematicians. Do you really believe they think patents are evil? Of course not, that's just silly.

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

  • icon
    Eldakka (profile), 24 Aug 2017 @ 7:53pm

    I hope the Supreme Court upholds the review process.

    More than 80 percent of trolls' victims are small and medium-sized businesses,

    IMO that is a pretty meaningless statistic. As far as I'm aware, the vast majority of businesses that exist fall into the SME category. The number of large or enterprise class businesses is relatively small. Therefore, statistically, I would expect most cases to be filed against SMEs, as statistically they make up the largest number of businesses.

    Better stats like equating number of suits per business type (e.g. 0.2 per SME, vs 0.01 per large/enterprise), would be more informative.

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

  • icon
    MyNameHere (profile), 24 Aug 2017 @ 8:22pm

    Funny number game?

    I can remember arguing this point from the other side, and being told that money is not lost, just "goes somewhere else" in the economy:

    "Patent trolls cost the U.S. economy $80 billion each year, or about $1.5 billion a week. The billions of dollars wasted in this way are funds that can't be invested in research and development or in hiring the innovative talent needed to develop new products and grow the U.S. economy."

    So does that 80 billion just disappear? Or is it used by the patent "trolls" to buy patents from people who actually do R&D and work on things? Since the trolls themselves don't invent new stuff, they have to be using the money to pay for existing patents, thus financing the next wave - just not in the same place you are looking.

    So which way is it?

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

    • identicon
      Carpark Martian, 24 Aug 2017 @ 11:22pm

      Re: Funny number game?

      That money goes into corporate office rent, corporate legal staff at $500/hr, expensive homes, cars, private schools.
      All rewards to people leaching off the hard work of others.
      The art in a patent trolls work is finding the most generic patent that is generally meaningless on it's own and thus not commercial as a patent and therefore cheap to buy. -
      Then using that trashy patent to screw the bejeezus out of the productive economy and destroying peoples lives.
      Let keep vampires in the movies where they belong!

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

      • icon
        MyNameHere (profile), 24 Aug 2017 @ 11:41pm

        Re: Re: Funny number game?

        That is all very true.

        However, the money doesn't leave the economy. The economy doesn't shrink 1.5 billion a week because of patent trolls. Depending on how fast they spend it (and you know they do), they are likely accelerating the economy by buying expensive crap, paying to much for rent, and generally trying to live the good life as quickly as possible.

        So the economy bears no cost, which is my point. Patent trolling is neutral to the economy, and if it makes the money move around faster, it might even improve it.

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

        • identicon
          Carpark Martian, 24 Aug 2017 @ 11:46pm

          Re: Re: Re: Funny number game?

          Thanks for the response.
          Your point is right if there were just a few cycles of that occurring but the long term effect is the sapping of the productive actual growth elements of the economy by stripping and stressing the people and lives of those that would have otherwise provided that growth and unfairly distributing that to people that actively contract that growth.
          That is unsustainable and degenerative.

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

          • identicon
            Anonymous Coward, 25 Aug 2017 @ 12:16am

            Re: Re: Re: Re: Funny number game?

            If you chase the trail of money back to the beginning, who got paid? The inventor, right, the one who authored the patent. That part is good, right? We want inventors to get paid, because they actually add real value to the economy, right? The light bulb, zippers, velcro, that kind of thing. We want to incentivize inventors, right, because they actually contribute to everybody wealth with their inventions, right? Even the "despicable" patent trolls buy patents and then spend their awards. We have a legal system to sort out the ones who doing it wrongly, which some always have and some always will. But on balance, the contribution of the patent system is incalculable, right? Like that MasterCard commercial, "priceless", right? Who would we be as a society with the historical contributions of inventors.? I shudder to contemplate who we would be as a patentless society. Maybe more like mid-evil times than the rich prosperous society we have today.

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

            • icon
              Toom1275 (profile), 25 Aug 2017 @ 7:20am

              Re: Re: Re: Re: Re: Funny number game?

              Except, with the majority of trolls' patents being invalid, the patent-makers the trolls are biying from can't really described as "inventors." They haven't created any more value than the trolls themselves.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 7:49am

              Re: Re: Re: Re: Re: Funny number game?

              Your rational sounds a lot like the broken windows fallacy.

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

            • identicon
              Anonymous Coward, 25 Aug 2017 @ 9:14am

              Re: Re: Re: Re: Re: Funny number game?

              Did you know that if you have to constantly add "right?" to the end of your leading questions, it draws attention to the fact that your questions are stupid.

              Right?

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

        • identicon
          Carpark Martian, 25 Aug 2017 @ 1:34am

          Re: Re: Re: Funny number game?

          Thanks for the response.
          Your point is right if there were just a few cycles of that occurring but the long term effect is the sapping of the productive actual growth elements of the economy by stripping and stressing the people and lives of those that would have otherwise provided that growth and unfairly distributing that to people that actively contract that growth.
          That is unsustainable and degenerative.

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 2:14am

          Re: Re: Re: Funny number game?

          Neither does piracy.

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

        • identicon
          Anonymous Coward, 25 Aug 2017 @ 2:19am

          Re: Re: Re: Funny number game?

          "The law is the law is the law. But if it's a patent attorney it must be right, and if the law might make them less legitimate, the law is suddenly wrong!"

          The lengths you will go to be a constant, consistent contrarian are pretty extreme, but unsurprising.

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

    • icon
      That One Guy (profile), 25 Aug 2017 @ 2:12am

      One of these things is not like the others

      Seriously? You're comparing copyright infringement or short term property rental to companies that produce nothing but billable hours shaking down those that would otherwise be productive?

      When an act of copyright infringement takes place a sale is simply not made(at that time). The infringer is not going to the company and demanding that the company pay them(and certainly not to the tune of tens or hundreds of thousands), causing a demonstrable financial loss and leaving the company wondering if it's 'safe' to continue to offer the product. Likewise with property rental, the ones doing it aren't going to the hotels and demanding that the hotels pay absurd sums 'or else', they are providing an alternative to doing business with the hotel.

      Patent trolls on the other hand are going around and demanding that others that do or might add to the economy pay and pay dearly for using 'their' ideas. One company that produces no actual product or service is going around to multiple companies that would have produced a product/service and shaking them down for cash, making them and other less likely to offer that product/service, all for the enrichment of that one company, a company that again does not offer the product and/or service.

      The two are not even close to comparable.

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

      • identicon
        Anonymous Coward, 25 Aug 2017 @ 2:30am

        Re: One of these things is not like the others

        Help me understand what you are saying. You are drawing a distinction between copyright infringement and patent infringement, right? A copyright infringer has to pay the copyright owner, a patent infringer has to pay the patent owner, should the owner (of either) prevail in court. What's the difference again? In terms of "shakedown", you are speaking about the legal system that protects either patents or copyrights, yes? The legal system is a shakedown system, is that your point? I guess I would agree, if you see the penalties associated with copyright and patents as shakedowns. Maybe they're not shakedowns. Maybe they are American legal Inventions designed to protect and promote American Inventors. Could that be?

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

  • identicon
    Anonymous Coward, 25 Aug 2017 @ 8:58am

    Another view of the SCOTUS case

    Consider for a moment the plight of the American Inventor who patents his ideas successfully, and then wants to produce income from his invention. And imagine that his competitors copy his invention and the market adoption of the patented invention happens faster than he can supply. That could happen, right? Now what does he do? He invented something, and the only way to monetize it is to litigate his patent. Everything and everyone legitimate, just imagine that, for a moment, suspend your disbelief, it really could happen.

    Now consider the case before SCOTUS from his point of view, and consider how the patent review process is guaranteed to increase his costs. This is another "swing of the bat" that the infringers get, and the inventor has to have yet more financing to defend his legitimate patent.

    On the one hand, the patent process is too expensive for everyone, right? Everyone agrees on that. How about some ideas to actually simplify and streamline the system for everyone, and reduce everyone's costs, and get to a result faster, not slower.

    Any ideas out there?

    My guess is not one idea will appear from anyone, because what the Open Source community really wants is to make the patent process as expensive and difficult as possible for legitimate American inventors.

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

    • identicon
      Anonymous Coward, 25 Aug 2017 @ 9:29am

      Re: Another view of the SCOTUS case

      I saw Speaker Newt Gingrich the other night, and he was speaking metaphorically about the ideological war raging across the US between conservatives and liberals. He said something that struck me. Tucker asked him to predict the future, and he said he predicted there would be a winner and a loser, not a compromise. Wow, interesting, huh? I have been thinking something will happen and people will come together, but maybe not, maybe there will be a winner and a loser.

      IMHO, there is a very strong parallel between the liberal/conservative ideological battle and the Open Source/patent ideological battle. I think the Open Source guys really want to kill the patent system, and have been using this site and others to forward that cause for years. Perhaps it's time for the patent guys to consider trying to kill Open Source. Maybe eventually, there will be a winner and a loser. That's a radical thought, isn't it? It never occurred to me before listening to Speaker Gingrich.

      I can't be the only one considering this stuff, can I? What do other people think? Compromise is the future, or winners and losers?

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.