Open-source Patent Troll

[azoff]

I've been writing open-sourced software for a few years now, and never in all these years past have I ever had another person threaten me with patent action on something that I provided for free - for the developer community. Just because I feel bad for this guy, I am not going to post his email address or name, but I will share the email that he sent me:

"""

Azoff,

My name is [ Mr. Troll ]. I am writing you from a company called RazDog.com. We have several patents pending for the rights to navigate like a smart phone on any web content deployed through a browser. We have software which we have had publically available for some time.

We have been made aware of your software which appears to potentially breach our patents pending.

I need you to call me to discuss options ASAP.

Your valuable time is appreciated.

"""

In case you are wondering, the software referred to by Mr. Troll is most likely a jQuery plug-in I currently maintain called OverScroll (http://github.com/azoff/overscroll). I first released it into the public domain back in 2009 (see: http://plugins.jquery.com/node/8738), about the same time RazDog was apparently in the music business and had nothing to do with user interaction on the web (see: http://web.archive.org/web/20090503201355/http://razdog.com/consumers_info.aspx).

Never, ever, in my time as a professional developer did I ever think I would have to deal with this blatant disregard for open-sourced contribution and innovation.

Mr. Troll, you are a vulture.

- Azoff

[wavesplash]

Issued patent != patent pending. Patent pending has no legal standing and is non-defensible. It just means something was submitted and may or may not be approved sometime in the future (possibly years from now). Talk to a lawyer, but I'm pretty sure they'll tell you to ignore him. If the troll in question hasn't actually submitted a patent you could sue for damages.

If you were hit with an actual patent claim, the first question you ask is what is the patent # and which specific claims are they referencing. Then go back to any referenced patents and see if the claims are unique to the new patent. Of the unique claims then you can make a case if your product infringes or not.

[kronusaturn]

As I understand it, defending a patent suit is not cheap even if you're completely in the right.

[wkearney99]

Also note it's a crime to claim patent pending without an actual patent in the process. Of which there would be a number. They really frown on making false patent claims.

[gnok]

Please do this the right way. Any issue concerning IP and claims of infringement or violation of rights requires due diligence on both sides. At a very minimum, you should read the transcript of Andrew Tridgell's talk on patent defense at http://news.swpat.org/2010/03/transcript-tridgell-patents.

That your software is open-source is entirely orthogonal to the issue of infringement.

[sorbus]

So, they have pending patents. And they think that your software is infringing on those pending patents. Those pending patents, which, being pending, have not yet been granted, and are therefor useless as far as litigation goes. Which makes your existing software prior art. Hmm.

Depending on how you're feeling, either tell the guy to fuck off, or try to get those (pending) patents invalidated.

[danbmil99]

You're missing the crucial point of submarine patents: if approved, they are enforced as of the date they were filed. So pending patents can in fact be used as a cudgel, to get licensees to pay for a guarantee that if the patent is approved, they won't be socked with outlandish royalty demands. It's like insurance. To a first approximation, the value of a pending patent is proportional to the probability that it will eventually be approved.

I'm reminded of Tony Soprano to an unhappy customer: "Satisfaction guaranteed, or double your garbage back!"

ps: recent rule changes mean that some patents (those that will be filed outside of the US) will be published 18 months after filing, even if they are not yet approved. Possibly not relevant here, as the troll would presumably want you to see the pending patent to prove the legitimacy of his threat.

[lynxed]

I'm not a patent lawyer, but from what I can pull up from my patent law class notes: Troll is quite possibly blocked by the public use doctrine. Anything that's been in public use without being patented for a year or more goes into the public domain (35 usc 102(b) for anyone who cares). If he filed on or after June 23, 2010, he failed.

[ceejayoz]

Anyone tried out RazDog.com? It's basically an entire site as a JavaScript carousel - if anyone can dig up info on the pending patent it should be incredibly easy to shoot down with prior art.

Horrific usability, too.

[woodall]

They also hold another patent, filed in 2007, for an online media player with very vague detailings. I am a fan of patents, but this company is over shotting their bounds.

[genbattle]

Having a patent pending is a scare-tactic use by alot of companies to scare off competitors. Some companies will keep re-applying for a patent even after being turned down, simply so they can keep displaying a "patent pending" mark on their product.

I'm no expert on patent law, but I would enquire as to which patent applications he's referring to (an ambiguous "we has patents" statement doesn't get them anywhere), and then I would check the applications and the filing party's previous filing history. If they're a pending troll, ignore and move on. If they don't have any actual pending patents relative to your work, ignore and move on. If your work predates his patent application, file a prior art declaration with the patent office against his patents, and move on.

Personally I dislike software patents to the extreme. I believe copyright is enough for software. If people want patent protection on their software, they should have to demonstrate working code that shows their concept in action, and they should submit the full source code with build tools and instructions. The point of patents is that 50 years after a patent is granted, the public should be able to pick up the patent and exactly replicate the original invention from the patent materials alone. I know that is certainly not the case for most modern patents, especially software patents.

[tvon]

That you write OSS is fairly irrelevant to the situation, so far as I can tell. IANAL, granted.

[woodall]

Have you read over the afore mentioned patent?

[azoff]

No, because no reference was ever provided in the original email

[noonespecial]

Don't ignore him! Its would be a very good thing if you'd just call him and explain the prior art to him and gently steer him toward not wasting his time and money pursuing a patent that won't be granted.

Of course you might head off the serendipitous granting of a ridiculous patent that might fall into the hands of a real troll ala Lodsys later. If he refuses to listen to reason, you might look into sending the prior art to the patent office in reference to his application.

[noonespecial]

Downvote? Really? I just thought that maybe the guy might actually not be the awful troll that we instinctively leap to the conclusion that he is. He might just be a guy who really doesn't grok how all this works.

Could a simple call to find out really be that bad. (seriously IANAL so I really don't know)

I think he's just an idiot who happens to be inadvertently trolling. Not a professional troll. It seems like he really does want to sell his goofy cloud motion and probably thinks he's the new new. Whatever.

[sukuriant]

IANAL, but it may be good to get the patents he claims to have claim to, and discuss this with a lawyer.

[cperciva]

I had an email along these lines last year -- someone accusing me of violating his patent application.

Just junk it.

[azoff]

Wow, thanks for all the feedback.

I'm happy there are others who have dealt with this before. I hate to sound like a bleeding heart, but it is really sad that any troll can effectively axe an open-sourced project like this. I really hope that it won't come to litigation.

[azoff]

UPDATE: Mr. Troll decided to email me again today, slightly different tone:

"""

Azoff,

There are several options available to you along with an opportunity for you and or your company to make some money regarding your software. Please call me by Wednesday at [ Mr. Troll Hotline ].

Regards,

[ Mr. Troll ]

"""

[gallerytungsten]

If it's allowed in your jurisdiction, I'd suggest calling him and recording the call. Write a "script" beforehand of the things you want to say, and have a fallback line such as "I'm not sure of the answer, I'll have to follow up with you on that" if he tries to get you to admit to anything. Meanwhile, try to get him to over-reach in his claims and statements.

You might wind up getting some useful ammunition for later use; or if nothing else, a hilarious recording for further public shaming.

[madmaze]

I think this is where the discussion comes in about whether or not to abolish software patents. It is disgusting that patent trolls go after OpenSource.

[tobylane]

Open source doesn't really make a difference, there's still ownership, and there's still often corporate use. Someone suing over the GCC could sue Apple, Oracle, IBM, RedHat, etc, but wouldn't bother suing Linus or Stallman.

[dools]

"In fact, the most common reaction we hear is Wow! literally."

Strike 2, RazDog.