[allochthon]

Name. And. Shame.

I wish some enterprising young kids in the tech community could work out a technical or collective solution to the problem of patent trolls. They would be asking for punishment, to be sure. But I bet there are some really cool things that can be done here.

* One naive idea: a subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. The more such companies that join, the more formidable its portfolio would become.

* Another naive idea: publish information about patent cases underway in areas of the world that fall outside of the jurisdiction of a court imposing an injunction. I'm guessing this would need to be done by a third party so as not to prejudice the case of the business being sued by the troll, but I'm not a lawyer.

[AnthonyMouse]

> One naive idea: a subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses. The more such companies that join, the more formidable its portfolio would become.

Patent portfolios don't work against trolls that don't have any business other than patent extortion.

> Another naive idea: publish information about patent cases underway in areas of the world that fall outside of the jurisdiction of a court imposing an injunction.

The court records are already public. It's the cases that settle that you never hear about, because the trolls demand that you sign an NDA. I don't know that publishing in a different country gets you out of the NDA.

What we really need is to start a PAC to abolish software patents and have everyone contribute money to it, and provide them with lots of "ammunition" (i.e. thousands of testimonials from startup founders explaining how the patent system is ruining everything) to bring to Congress to get this fixed. Note that this isn't the EFF -- they do good work, but they're litigators, not lobbyists. This is a situation where what we really need are lobbyists to push to get the law changed, and grass roots lobbying by individuals to the same end.

[throwawaykf]

How would you legally define "software patent"? If you figure it out, please let the Supreme Court, the CAFC and the USPTO know, because currently nobody really knows.

As for "ammunition", look up the Berkeley Patent Survey [1]. The only damning thing you'll find in there, though, is that entrepreneurs in software on average don't think they present a competitive advantage, so "only" 60% of software startups file for patents. And it's typically because investors ask for them.

Edit: I misremembered... It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups.

1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049

[AnthonyMouse]

> How would you legally define "software patent"?

Software patent: A patent that can be infringed by executing a software program on a general purpose computer.

> It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups.

Which does tell you something, doesn't it? Unless VC-backed startups are an incredibly small percentage of startups, the patents filed by non-VC-backed startups would have to be significantly smaller than 24% (I assume 25% was a typo, see table on page 1277 of the report). Moreover, given the stark contrast in the numbers, query whether the VCs are interested in patents as patents vs. interested in them as a method for weeding out uncommitted startup founders.

But I'm less concerned about the number of patents software startups are applying for. If nobody was applying for software patents at all, obviously the patent system wouldn't be doing any good there, but it wouldn't really be the strongest call for abolishing them -- no harm no foul, right? The problem isn't (just) the lack of usefulness or cost effectiveness of patents to innovators, it's the harm created by mass producing land mines. Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.

[throwawaykf]

> Software patent: A patent that can be infringed by executing a software program on a general purpose computer.

Ever wonder why all the jurists all over the world have not stumbled upon such a simple and elegant definition? Herein lies just one problem: your definition of software patents may also include:

- Control systems for automotive, industrial and robotic systems.

- Signal processing methods for digital communications, audio processing, speech processing, image processing, video processing, automated control systems, and so on.

- Microcode in processors

- Embedded firmware in appliances and devices.

- Mechanical watch designs. They are simply mechanical implementations of algorithms.

- Digital circuits, chips and hardware that implements any of the above.

The software / hardware equivalence makes simple definitions impossible.

> Which does tell you something, doesn't it?

It could tell me many things, depending on what assumptions I may apply. Let's see how many you disagree with.

- The majority of software startups are not doing anything particularly technically innovative.

- The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative.

- Patents are expensive to apply for and get, something a startup can't often afford.

- Patents don't provide enough protection for software products anyway.

(The last two are actually borne out by the study.)

> query whether the VCs are interested in patents vs. interested in them as a method for weeding out uncommitted startup founders.

Why wonder when there are studies on the subject? It's called "signaling". Of course VCs have no interest in IP itself, only what it means for their ROI. But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil.

> Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.

Again, why guess when there are studies :-) If you believe James Bessen it's actually manufacturing, industrial and semiconductor firms. (See his "A generation of software patents" paper. Flawed study, IMO, but a useful starting point.) If the answer surprises you, maybe you should consider that "software patents" are not easy to define.

[AnthonyMouse]

> The software / hardware equivalence makes simple definitions impossible.

The software / hardware equivalence is overstated. You can implement everything in hardware that you can implement in software, but you can't implement everything in software that you can implement in hardware. There is no software alone that you can run on a general purpose computer to cause it to generate thrust, or convert raw steel into an automobile chassis, or help the immune system to fight cancer.

So your argument seems to be that we can't define "software patent" as "patent that software executing on a general purpose computer infringes" because that would include patents over software hard-coded into hardware. But why is that a problem? Firmware is code. Microcode is code. They're supposed to fall into the same category as "software" -- the fact that you can't disambiguate them is a result of them being the same thing. And they are all things that, like other software, can be protected by copyright.

On the other hand, the watch isn't the same thing. The formula that describes the timing of a watch mechanism is not a watch mechanism. A watch simulator is not a watch. Executing a software simulator of a watch mechanism on a general purpose computer without a clock doesn't imbue it with the ability to keep time. You can patent a physical watch without patenting its "algorithm" in much the same way as you can patent a specific nuclear reactor design without patenting E=MC^2, or patent a drug without causing a research paper describing the drug to infringe.

>- The majority of software startups are not doing anything particularly technically innovative.

>- The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative.

The second is a refutation of the first. If you take Microsoft, IBM et al as not doing anything particularly technically innovative, even though they are applying for a large number of patents, "innovation" (in the sense of interesting rather than merely something you can lawyer through the patent office) is clearly not a requirement for obtaining a patent. Which means that a lack of innovation can't adequately explain why startups should be less inclined to file for patents than larger firms which are innovating even less.

>- Patents are expensive to apply for and get, something a startup can't often afford.

>- Patents don't provide enough protection for software products anyway.

It doesn't surprise me that the study found both of these. This is evidence that software patents are ineffective to promote innovation. But again, uselessness without harm is irritating but mostly benign. The real trouble is that software patents are harmful, because they entrench incumbents by creating patent thickets and facilitate the trolling of successful innovators by lawyers and failures.

> But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil.

That's the point. If we get rid of software patents then VCs would need to find some other signaling mechanism to distinguish between startups, but founders would no longer need to spend scarce resources and time on patent prosecution that could better be spent somewhere more productive.

[throwawaykf]

> There is no software alone that you can run on a general purpose computer to cause it to generate thrust, or convert raw steel into an automobile chassis, or help the immune system to fight cancer.

And what about the algorithms that measure and control the thrust and the robots that make the chassis and compute the folding that leads to drug design? Much more often than you'd think, that is the crucial point of novelty and competitive advantage, and what many patents cover. Software eating the world and all that.

> ... And they are all things that, like other software, can be protected by copyright. 

Functional things cannot be covered by copyright. If it's the functionality itself that is novel, no amount of copyright can protect it.

> On the other hand, the watch isn't the same thing. The formula that describes the timing of a watch mechanism is not a watch mechanism. A watch simulator is not a watch.

That wasn't my point. Simulation is not what I mean. A watch mechanism is essentially a series of cascaded counters. X "ticks" of one gear = Y "ticks" of another gear. It's an algorithm: if (m++ == 60) h++; You'll find such physical implementations of algorithms all over the place if you know where to look, especially in automation, from factories to toasters.

> You can patent a physical watch without patenting its "algorithm" ...

And that applies to most "software patents" too. Most software patents don't cover the abstract algorithm, they cover the application of that algorithm. Case in point, the patent in TFA: it didn't cover comparing a bunch of numbers to find another number, it covered comparing a bunch of numbers representing preferences to find a match between business entities associated with those preferences. You could very well use the exact same algorithm to find a match between a vacationer and a list of vacation spots and not infringe the patent. I'd say the judge's analysis in rejecting was a bit off: this patent is invalid because it's non-novel, not because it's abstract.

> The second is a refutation of the first.

No, but do you mean to say that the majority of software startups are doing technically innovative work? Heck, look at the much vaunted YC companies. How many are doing something beyond some variation of CRUD?

> If you take Microsoft, IBM et al as not doing anything particularly technically innovative...

I'm sorry, I live outside the HN bubble, so I completely disagree that Microsoft and IBM don't do innovative work. (Well, OK, these days it's mostly IBM Research, in case of IBM. In case of Microsoft, both MSR and MS products introduce inventions and innovations at a pretty fast pace.)   Just because you don't see them doesn't mean they aren't there.

Sadly, the vast majority of the software industry is not like Microsoft and IBM. The vast, vast majority involves translating pre-existing business logic into code. And most software startups are not much different.

I agree, though, that most patents (not just "software patents"), are not really "interesting", but historically this has always been so. And all the hand-wringing you see here is not new either.

> It doesn't surprise me that the study found both of these. This is evidence that software patents are ineffective to promote innovation.

Well, then maybe we need to make it cheaper to file "software" patents and make them more powerful so they afford some real protection? :-)

>The real trouble is that software patents areharmful, because they entrench incumbents by creating patent thickets and facilitate the trolling of successful innovators by lawyers and failures.

There is no undisputed, convincing empirical evidence that software patents are harmful on average, other than tech media fishing for rage-views. For every paper saying software patents harm entrants, there's one saying the opposite (see "Software Patents, Incumbents and Entry" as an example). There are even studies suggesting that thickets helped innovation by centralizing licensing efforts.

Also: "Innovators". You keep using that word. I do not think it means what you etc. etc.

> If we get rid of software patents then VCs would need to find some other signaling mechanism to distinguish between startups, ...

1. It's not just in software that VCs look for patents. If you read that survey or other studies, or heck, watch Shark Tank, you'll see it's common in most industries.

2. If you drop the empirically unfounded assumption that all patents are bogus, a patent is a proxy for a multitude of signals that VCs find useful.

3.  Studies show that startups with patents are more likely to have a successful exit. I don't know what better signal a VC would want to find.

[dublinben]

Can't we just return to the point when software which was copyrighted could not also be patented? This double-dipping is unique to the software industry, and has proven to be harmful to innovation.

[3825]

> What we really need is to start a PAC to abolish software patents and have everyone contribute money to it

Can we really outspend IBM and Microsoft? I saw something on hacker news last week that said a relatively minor patent reform bill died in the house thanks to those two companies (and 3M and many others but mainly IBM and Microsoft). Name. and shame.

[puppetmaster3]

A solution: Out-bribe the corrupt congress. That is not feeding them?

[acdha]

> subscription-based nonprofit that pools legal expenses and member patent portfolios and fights defensive cases on behalf of startups and small businesses.

You might find this interesting: John Walker, one of the Autodesk founders, tried to popularize the same idea in the early 90s:

http://www.fourmilab.ch/autofile/www/chapter2_105.html

Unfortunately, too many companies didn't want to give up the option to sue and the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds.

[allochthon]

Thanks for the link.

the rise of the limited-liability shell company made it pointless as there's no point in counter-suing a company with no assets which will fold if any counterattack succeeds.

Wouldn't that get rid of the troll? Also, would it be possible to seek legal expenses from the shell corporation's creditors?

[acdha]

> Wouldn't that get rid of the troll?

That depends: in some cases it appears that they've tried things as blazen as having a shell company which licenses the rights to sue for a patent but doesn't actually own it. If the shell goes bankrupt, the only “asset” is that right to sue, not the actual patent, and the people involved are free to simply try again later.

If you haven't looked at this before, This American Life had a two part series with a good general examination of the system – spurred by a troll running around suing everyone who podcasts:

http://www.thisamericanlife.org/radio-archives/episode/441/w... http://www.thisamericanlife.org/radio-archives/episode/496/w...

> Also, would it be possible to seek legal expenses from the shell corporation's creditors?

That's a really important question. The assumption has been no but there have been attempts to try RICO cases[1] and it sounds like the entire legal climate is getting more sympathetic to the idea that what we're seeing is extortion, pure and simple. Most of the legislation floating around Congress at least made some attempt to deal with this part of the problem but, of course, none of that counts until something is actually close to passing.

1. e.g. yesterday's story: http://arstechnica.com/tech-policy/2013/11/findthebest-destr...

[DougBTX]

No, the first shell company just needs to sell the patent on to a new shell company, which can then start over.