371 karma · joined April 6, 2013
http://www.law.cornell.edu/uscode/text/17/1201
I am no law scholar, but I get the impression that, in general, reverse engineering and research are exempt from most forms of IP protection (which is what the DMCA is).
I used it in a pretty limited and less typical fashion, however. I did some development to port an AIR/AS application written on OSX to Windows. (We needed a native installer and creating a Windows installer required the Windows SDK, and WORA is always a lie, so extra dev was required. So instead of requisitioning a Windows box, I thought I'd try out Microsoft's latest and greatest for free.) Edit: Also had to do some Java development, same setup, different command-line SDK.
I used little more than TextPad and the command prompt (free version of SDK = no IDE), and didn't really use the Metro apps much. Except maybe IE to search for stuff. So I did spend more time in the desktop view. However, the time I spent on Metro was definitely enjoyable.
Another thing that impressed me was that it was still pretty smooth despite running in a VM on a pretty underpowered Mac Mini. It was nowhere as smooth as the Ubuntu VM I also had, but I expected W8 to be significantly more bloated.
Turns out one of my friends had done his Bachelor's engineering project (kind of like the BS Senior Design project in US colleges) at ISRO, and he was working on something that would be part of the probe project. He was there when the goverment pulled off Pokhran.
He tells me that because of the diplomatic fallout, all international technology transfer deals ISRO had with various Western organizations instantly were unilaterally canceled by the foreign parties. (Even in the commercial arena, I know of international collaboration projects that were abruptly canceled. I think Pokhran was a very stupid, shortsighted move by the government to score brownie points with the population just to confirm what the world already knew.)
My friend estimated the Pokhran fallout set them back at least 4 years, because suddenly a bunch of technology they were expecting to get ready-made, they had to start researching and developing themselves from scratch.
And yet when the Moon Impact Probe finally happened, it was right on schedule.
One way to leverage this (and pretty sure MS is doing it) is the opposite of what you suggest: to make their smartphones an effective auxiliary device for PCs, beyond just email and exchange and Office. Something like SmartGlass for productivity. Interestingly, there's already work from MSR along these lines, but it seems some way off.
As for Android compatibility, BlueStacks already goes a long way there. If they want to, they could snap them up anytime, but I'm not sure they'll want to capitulate on that front.
And while it's true that the PC market is sort of saturated, the tablet market too will suffer the same fate.
In the end the only thing that will continue to sell is services.
Oracle
Salesforce
Mozilla
Sony
Nintendo
Samsung
Blackberry
IBM
Heroku
Rackspace
Sun
Novell
Red Hat
Jetbrains
Not to mention, open source projects like Apache, Linux, Open Office, etc that attempt to commoditize their products.
That is an incredibly huge list by any standard, and many on that list are giants themselves. Now, given that Microsoft has competed, on average, successfully against all these rivals, many of whom give away competing products for free, would you still consider their lack of success against a select few to be a huge shortcoming?
(Edit: typos, fixes, adding more rivals as I think of them)
If you think of their model as an exercise in gambling, they do have an incentive. Jury trials for patent cases are notoriously hard to predict, and they risked a very real, non-zero chance of reaching a decision that, even if it didn't kill their patents, could cripple their campaign, say, something like "Patents are valid, but iOS apps don't infringe."
(Note that jury verdicts in patent cases seldom seem to have much to do with the technical merits of the case.)
So their potential outcomes were:
A. Drop case: continue settling with small entities for Y revenue going forward with estimated revenue R.
B. Favorable decision with X in damages: nice bonus to go along with contiuing revenue R.
C. Unfavorable decision: 0 damages as well as very likely loss of continuing revenue R.
Say the outcome has probabilities P(A), P(B) and P(C). They likely just assumed some values for these probabilities (actually, lots of empirical data out there these days, and P(B) is quite low)and X and R, and ran the numbers, and they got an expected result that wasn't too favorable. So they chose to minimize their risks, along with the associated rewards.
> Future targets now know that they just have to keep the case going and eventually Lodsys could just drop it.
Right, but the catch is that for most defendants it's too expensive to even just keep going on. And that's why they'll keep suing left and right and dismissing if anybody gets too close to trial. I don't know if there's any way to stop this campaign unless they slip up.
(PS, I was mistaken about the Apple situation. Apple could not intervene because Lodsys settled the cases it was trying to intervene on -- essentially a tactical retreat like this one -- so it doesn't really speak to the exhaustion defense as such.)
As to why I think their case is somewhat stronger than the usual troll: Firstly, it's patents partially survived Google's supposedly "devastating" re-examination request. Although the process is still ongoing, the claims that survived are golden. Those now have an "enhanced presumption of validity", which means if asserted at trial, the defendants would be wise to seek stronger alternate defenses besides invalidity.
Secondly, and speaking of alternate defenses: patent exhaustion. Exhaustion is triggered on first authorized sale [1]. I really cannot (and neither can the EFF) comment on this since all the relevant terms on which Apple, Google etc. have a license are secret. Further, since Apple was not allowed to intervene, it seems even less likely a defense.
Thirdly, the claims are "vague" only if you decide not to put much effort into understanding how they work. Much like non-lispers complaining about parentheses. I have seen vague claims, and these are downright straightforward in comparison, despite what the EFF's out of context snippets may imply. Also, mentioning fax machines is a non sequitur. If the main function of fax machines in this patent was to act as network components, by the Doctrine of Equivalents [2] they are functionally equivalent to the Internet of today. Heck, it could be carrier pigeons and still be valid. This is not an abuse of the system, and if you want to make it so, you'd need a lot more reform than is likely to happen.
I cannot comment on the quality (novelty, non-obviousness, etc.) of the claims since I have difficulty evaluating them in context of the state of the art in ~1992, to which these patents claim priority.
(IANAL. Which may also be why I think one solution to this problem is a drastic lowering of attorney fees :-P)
a. Can you make a logical argument why data structures should not be patented, as opposed to, say, mechanical or electronic structures? Try to differentiate them using concrete, technical reasons rather than handwavy "software is math" (aka "mechanisms are just physics" or "electronics are just flowing particles") arguments.
Also, modifications have always been patentable ("a better mousetrap" etc.) The thing is, this patent is not even a straightforward modification; I still have not figured out a solid reason why anyone would use this, a single multiply-ordered linked list, over multiple differently-ordered linked lists.
b. That's not the "rubber banding" patent you linked, that's the "pinch-to-zoom-if-touch-input-is-multi-point-else-scroll" patent. Anyway. You could argue both of those are bogus patents, but you have the benefit of hindsight. Hindsight is a very powerful bias, which is precisely why US (and most other places) require examiners to provide concrete proof, in the form of dated, published documents, of non-novelty or obviousness to deny a claim. This is, as far as I can tell, the only way to truly objectively quantify a claim's contribution, and this is why you see the patents you see.
Not saying it's a perfect system, but once you decide that patents should be a thing, I personally can't think of a more objective one.
Also, if you think it's as easy as "fill out a patent application to get dibs on something", I strongly encourage you to give it a shot. Assuming a micro-entity status in the US, it should cost you a couple hundred bucks.
That is the only question that matters (beyond just "software" patents,) And there is a lot of work by a lot of people that try to answer the question. Search ssrn for work by authors like Risch, Merges, Allison, Lemley, Mann, Zeidonis, Etro (just for starters) and you'll see that the issue is much more nuanced and complex than what the common narrative tells you.
So does the narrative matter? Well, let's look at the rest of your comment.
You mention a "doubly linked list" patent. That patent is not the greatest ever, but it is not a doubly linked list: http://patents.stackexchange.com/questions/738/prior-art-for...
(Note that even the highest rated answers there get it slightly off.)
Then, pinch to zoom; I'm not sure what you refer to by that, but the last time Apple's patent was mentioned on HN, its scope was also grossly misrepresented.
Your reply makes two things clear:
1) you have strong emotions about this topic; and
2) you don't really understand how these things work.
And seeing other comments on HN over many years, I can safely extrapolate another thing:
3) your condition is common to the vast majority of commenters here.
At least to me it seems clear why the narrative matters.
Or for electronics patents, you could use any of a thousand combinations of various passive or active components to achieve the same electronic properties.
Or for drug patents, you could deliver the "active" chemical compound in any of a thousand different coatings.
For patents, the specific implementation has always been a secondary consideration (to be precise, for "enablement"), as long as the true "essence" of the invention is protected.
It may seem that it's only in software that all ways of achieving an outcome get encompassed by claims, but this may be due to 1) the prevalence of software patents in litigation these days (as evidenced by the GAO report) and 2) the propensity of tech media to trivialize all patents to soundbites without regards to the actual claims, and then proclaim them to be broad and vague.
Note that broad and vague patents do exist, in many fields, including software-related inventions. However, in my experience, they are not as widespread as it may seem and, as I said before, getting such broad patents is becoming harder and harder, and has been so since the mid '00s. I don't know what to attribute this to, but one of my hunches is the availability of Google search.
And here we have a study by a branch of the US Congress, the one entity that, based on the constitution, can make sweeping changes to the patent system. The Congress' investigative branch went off to study the problem and essentially said trolls are not a big problem.
But as far as tech media patent-related reporting goes, this one has gone nigh unmentioned. Even though software patents are specifically called out. Why?
My suspicion is that the lack of attention is mostly because the study does not gel with the perception the tech media is trying to sell, that trolls are a huge burden on the economy. And typically, these complaints are made by practicing companies who, if one were to be uncharitable, one could say are actually doing most of the litigation [1].
To me, the signs point to a submarine [2]. And if that seems far-fetched, consider this:
You ever hear of a "study" that claimed trolls cost the economy something like 29 billion (pinkie to corner of mouth) dollars a year? A number that gets mentioned in any article about trolls or patents in general? Well, last year multiple sources poked holes all over it [3, 4, 5, 6].
Would you like to guess how many tech media outlets reported about that?
Now, would you also like to guess how many tech media outlets continue to harp on about the debunked 29 billion number every chance they get?
1. http://seattletimes.com/html/businesstechnology/2021696607_g...
2. http://www.paulgraham.com/submarine.html
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421
4. http://blog.patentology.com.au/2012/06/29-billion-us-troll-t...
5. (Pay-/Registration-walled) http://www.iam-magazine.com/blog/Detail.aspx?g=454c1adc-52c3...
6. (A recap of the previous 3 references, as well as highlighting the sources of funding for the authors of the "study") http://gametimeip.com/2012/07/30/patent-scholars-challenge-b...
An abstract of the report from the GAO website itself, worth reading as a TL;DR: http://www.gao.gov/products/GAO-13-465
The really interesting news here is that the report found that "troll" related lawsuits are actually a minority of patent litigation, somewhere around 20%, and that is despite a sharp rise in the recent years.
The EFF [1] makes a good point that this data does not look at non-litigation trolling preying on small entities and unrelated businesses, a la Lodsys, that extract payment simply through the threat of litigation. (Note that the EFF headline is also not the best representation of the report.)
However, such operations have typically attracted media attention. There have been many, but the first I recall reading was of Fotomedia, who sued anyone that had photo sharing on their website. That was a miniscule operation compared to Lodsys, yet it made news. (Ars Technica tracks a few such trolls. It has not yet covered this report, even though the OP has been a regular Ars contributor.) For now, I find it hard to believe that there are enough of these operations to change the GAOs conclusions.
The other interesting observations are:
1. the rise in litigation, troll-related or otherwise, is attributed in part to the recent changes in patent law, specifically, the AIA. What this report, and many other studies in the area, miss is that even older decisions [2, 3] have had similar effects, something I have previously pointed out using another throwaway account.
2. companies are realizing patents are something that can be monetized rather than just being used to protect ideas.
The OP glosses over all this and talks about vagueness in software patents, which is something I partially agree with. (Specifically, I believe patents being issued after the ~2004 - 2005 have much narrower claims.) However, it's not something that is endemic to software patents. The Doctrine of Equivalents [4] means that any element in any claim of any patent can be interpreted to cover other ways to implement it as long as it performs the same function. For instance, if the claim mentions using email, but somebody does it using SMS, it may still infringe if the main function is sending a message or notifying a user. However this, in turn works against the patentee when prosecuting patents at the USPTO, because examiners then apply the "broadest reasonable" interpretation of claims to find more and more prior art.
1. https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obv...
2. Michael Donovan, "The Impact of MedImmune, Inc. v. Genentech, Inc.and Its Progeny on Technology Licensing," http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?art...
3. Sara Jeruss, Robin Feldman, Joshua H. Walker, "The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455
And this is not a new issue, and not just restricted to the smartphone patent wars. The same criticisms were made and similar outrage was outpoured in the semiconductor industry when Rambus tried to pull similar shenanigans. [1]
1. Look at the Background section of the patents for a hint. Pretty much all patents have them.
2. If you don't trust the patents (and I won't blame you), ponder why Apple put those interactions in there. Or, even if they weren't just copying it, why Android had it too.
3. Or you could try to use a mobile device without those features to find the value in them. Would you want to use a smartphone on which you have to manually distinguish between scrolls and pinches every time? Or one without bounceback? Let me tell you, I have a Galaxy S2 without bounceback, obviously due to Apple's enforcement. It has that blue glow workaround. Personally I find it pretty inferior.
Heck, even Windows Phone has a better workaround, the "elastic" over-scroll, one that does not seem to infringe Apple's claims. Look at that! Forced innovation through workarounds! And of course, MS went ahead and patented that too, so Android was out of luck for a while.
Furthermore: are you sure that their implementation does not count as a process? And are you sure those implementations can do anything without machines?
I'm curious, because these are questions the Supreme Court itself struggles with. (Not to mention the perennial flame wars on patentlyo.)
BTW, that quote is from the second episode. Can you find a single mention of the word "claims" in the original episode, the one I was talking about in the context of "5000 patents on the same thing"?
So then, what, in your opinion, is "the actual nature of the invention"? Could you provide some legal reasoning behind what you consider "the actual nature of the invention"?
> In the most recent "When Patents Attack" episode, This American Life found 5,000 patents that covered the exact same 'invention.'
Oh lord, was that American Life episode a bad piece of reporting about patent-related things! In the entire show, the word "claims" appeared not once! Amongst the worst reporting I've seen, and I say this having read stuff on techdirt!
But since you bring up the "5000 patents on the same thing" claim, allow me to talk about that.
The guy who made that claim works for a firm called M-CAM, who provide a service to find similar patents based on content similarity. I looked through all of the "similar" patents they mentioned in that episode. Each and everyone one covered specific implementations of various aspects of cloud backup such as load-balancing, availability, de-duping, I/O performance for high-latency connections, etc. They were "on the same thing" inasmuch that they related to the broad area of online backup, but none had any claims that overlapped. If M-CAM had any good examples of patents covering "the same thing", they didn't mention a single one on that show.
Furthermore, M-CAM issue reports about the strength of various patent portfolios. I looked through some of the "reports". They were absolutely worthless. They considered two patents to "cover the same invention" if they had some keywords in common. To them, "Alice is taller than Bob" and "Alice is less tall than Bob" would be a claim on the "same thing".
Oh, but look! M-CAM also sell a "patent-risk management service" [1]! Strange that their claims on that show would lead some to think the patent system as something that is overly "risky", no?
(BTW, I am not the only one who thought M-CAM was full of crap [2].)
> They eventually invalidated it another way, after trolls collected hundreds of millions of dollars.
Interestingly, as described in the second episode, that patent was found invalid only because the inventor did not name all his co-inventors on it. He sneakily filed the patent alone, sold it to IV, and raked in millions of dollars as a cut of the royalties.
Leaving aside the fact that the inventor was a sleazebag, that throws the whole "patent trolls pay actual inventors very little" narrative -- one that the previous American Life episode played up -- right out the window. Oddly, nobody seems to report that.
[1] http://www.m-cam.com/sherwood-patent-risk-management-service...
[2] http://gametimeip.com/2012/04/13/q-why-was-mdb-capital-right...
1. There is no evidence to back your thesis that "more granted patents fuels the fire of more applications". See this graph [1] of allowance rates in 2000 - 2005 (for an explanation, ask a patent attorney or agent about "Dudas") and this table [2] for number of applications over that time period. There is zero correlation with the steep drop in allowance rates and the rate of new patent applications over the relevant time periods.
2. Why do you think your idea of "the right thing" is actually the right thing, if any such thing exists? Just because the HN echo chamber agrees with you? As I have shown time and time again, the Internet, especially tech media, has no real knowledge of how patents work.
3. The Supreme Court, let alone the CAFC, the PTO and various courts, cannot even define what "software patents" are. How would you begin to limit or eliminate them?
4. None of the above entities have found sufficient rationale to exclude business method patents, let alone software patents. Contrary to popular belief, it's not because they are stupid or technically illiterate, it's because they are very careful thinkers and make the best of what they can given their boundaries.
5. The budget and staffing of the USPTO is, unfortunately, mostly independent of the number of patent applications they receive. Currently, they generate more fees than they are allocated a budget for, and the federal government siphons away the rest.
[1] http://www.patentlyo.com/patent/PatentlyO2006059.jpg [2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm