Not a big fan of lawyers (personally seen people screwed by them twice) but there's this weird meme that lawyers can make lawsuits happen as they please. The cases where this can happen are very rare as far as I can see, yet the meme persists.
In some situations you actually can essentially create lawsuits out of thin air. In class actions, you can pick and choose people to be "class representatives" and file a suit.
Patent trolling is a pretty good example too. You buy some patent you find and then start suing anyone under the sun.
But this sort of competitor patent battle isn't easy to start by a lawyer. You'd have to convince your client to start it. But a huge F500 doesn't just have one lawyer, they have their own in house lawyers who make the choices. And then go find a firm to carry it out.
I was thinking more of the corporate warfare type of lawsuits, but I would still say, given the litigation landscape, that lawyer-initiated lawsuits are rare. Both class-action and patent trolls, despite the disproportionate media attention they garner, appear to be statistically a small fraction of the total litigation activity.
Well I am not at all knowledgeable about the different types of lawyers out there but in general the problem doesn't even begin to start with them. Its all the USPTOs fault for even allowing software (zeros and ones) to be patented in the first place (There are probably very legitimate reasons for this that I don't know about). I don't even know how many resources and time are wasted in courts but I imagine it would be pretty shocking.
I haven't heard anything about patent trolls for a while but their entire existence is based on bullshit lawyers and wasting the courts resources. (kinda getting off topic I guess I am done here)
It's not up to the USPTO to decide what is patentable. The courts have repeatedly reaffirmed the legal validity of software patents, so the Patent Office would probably get sued itself if it discriminated against software inventions.
The USPTO isn't required to follow court rulings. The MPEP (Manual of Patent Examining Procedure) isn't even updated to reflect what the courts say unless the PTO likes it.
If you don't like what PTO says, you can always just go to your local federal courthouse to sue for your patent. And the PTO gets sued all the time.
The courts are split on the idea of software patenting because the Supreme Court doesn't understand what software is. Nobody alive can reconcile Benson, Flook, Diehr, Bilski, and Alice. There were four Supreme votes in 2010's Bilski that pure software logic was unpatentable but software that changed the hardware to make it work better was patentable and the example of eligibility was linear programming and compression. Only Scalia was smart enough to see the problem there and even he can't articulate why.
The CAFC -- the patent appeals court -- is relentless in overturning Supreme Court precedents against software patents. Known for being contemptuous of the law and harboring a deeply corrupt majority, the CAFC sees software patents as a gravy train for the patent bar and a permanent tax on a major industry for the benefit of the judges and their friends. Their opinions on the most awful abusive patents reflect a pirate's mentality deliberately ignoring cheating to reach the most harmful conclusions.
> The CAFC -- the patent appeals court -- is relentless in overturning Supreme Court precedents against software patents.
If this appears to be the case, it's mostly because as you said, the Supreme Court does not understand software, and has consistently made everybody's lives harder by issuing vague, non-concrete opinions about patent eligibility and validity, overturning well-established procedures. The SC's current stand is "we know an invalid patent when we see one and will make up arbitrary reasons to invalidate it", but that does not help the PTO or the lower courts clear guidelines that they can implement.
The USPTO isn't required to follow court rulings. The MPEP (Manual of Patent Examining Procedure) isn't even updated to reflect what the courts say unless the PTO likes it. If you don't like what PTO says, you can always just go to your local federal courthouse to sue for your patent. And the PTO gets sued all the time.
Wouldn't the plaintiffs likely win? I fail to see the major difference.
This is another issue that irks me to no end. Companies like Microsoft and Apple reaped the benefits, early on, of little to no software patent protection laws. They copied and outright pilfered everything out there - and it was ok... Those early years saw tremendous competition.
It's hard to explain how exciting technology was back then - so many options. I remember learning about and trying to decide between DOS, Amiga, Commodore, Apple IIs/Mac, Atari. These were the OSes/PCs I focused on (not including Unix). Yet, this was nothing compared to the (healthy) competition among app developers. Very innovative times.
Nowadays, if you have even a smidgeon of success - you're either bought out by those who successfully gamed the system or sued into submission.
> Companies like Microsoft and Apple reaped the benefits, early on, of little to no software patent protection laws. They copied and outright pilfered everything out there - and it was ok
Law suits over look and feel have been happening since the 1980s, well before MS or Apple got big.
That's sorta the purpose of patents. Incumbent companies create a ton of valuable technology that new competitors would otherwise get access to only because the incumbents invested in them.
You can disagree with rewarding it, but it's not totally insane.
That an idea can have ownership is totally insane. The only reason it doesn't sound insane is because we've been told over and over that it's a good thing.
- People will invent no matter what. Money is just one type of reward.
- If you don't want competitors copying immediately, don't announce or demo it before hand and keep it secret until you have all marketing in place. Or limit distribution and offer it in controlled, supervised environments.
The solution can't be "this idea is mine". Nobody must own ideas.
That really misses the point of how R&D works in most fields. LTE wasn't invented by people tinkering in their basement. It took rooms full of PhDs and those cost money. At the same time, it's not technology where having a first-mover marketing advantage matters much. It may take six months for someone to reverse-engineer your technology, but much longer than that to recoup your initial R&D.
There is a reason companies like Qualcomm and most Internet companies are on opposite sides of the patent debate, and its not because Qualcomm is evil and Twitter isn't. It's because what it takes to make their respective products, and what it takes to protect their markets from copycats is fundamentally different.
LTE could very well be invented by international collaboration involving academia, industry and individuals. Why should industry get into it? To build expertise. Need to shift from companies seeing patents as assets to expertise/people as assets. That will also create better work environments.
Not all collaboration is equal, or even comparable. If your part of the collaboration is sinking huge amount of resources into inventing the technology, and somebody else's is turning it into marketable products, shouldn't both enjoy the rewards? There are straightforward mechanisms for the latter party. What mechanism would you propose for adequate compensation to the former?
Well patents are not really an ownership. It is a time limited exclusive use of what the patent covers, in exchange for writing it down. This so that once the patent runs out, the wider society benefits.
Mind you, patents came about when the steam engine was a new thing.
Also, that they cover software is a very recent thing. Initially they covered mechanical systems (pistons, rods, cogs etc etc) set up to specific tasks, and chemicals (put X parts of Y into Z under boil).
What seemed to happen was that at some point software got involved as controlling these earlier items in a more precise manner than humans or mechanics alone could (monitor temperature, put stuff into other stuff when it hits the exact one, extract everything a precise number of seconds later etc).
This was then declared, by court, to be a distinct patent from the same process done via purely manual or mechanical means. A ruling that later lawyers built on to basically get de-facto software patents.
It's a tricky subject. The argument from the patent side is that if these companies could not patent their technologies / products, they would not be willing to invest nearly as much in development and this would generally hurt human progress.
On the other-hand if you look at big companies like Apple, Facebook the amounts the are investing in genuine human progress is truly paltry compared to their net-worth, and what they are patenting is often ridiculous, generic and clearly not in any way conducive to human progress.
The problem is that in certain segments, most specifically in terms of software development... the "valuable technology" can generally be implemented by anyone skilled in the crafy, and generally speaking doesn't have a lot of outlay in terms of research/development. That's not to say there aren't segments of software development that should qualify, but imho if allowed should really be more like 5 years, not 20 for software patents. And most software patents should simply have been denied outright.
Sure, most things in software can be implemented by anyone skilled in the craft, but how many can invent it? And furthermore, when speaking of "skilled in the art", let's keep in mind the perennial HN threads about hiring and how 99% of developers can't do FizzBuzz.
It would be helpful to augment your perspective with multiple studies about patents based on empirical data. The situation week not appear so gloomy then, though it's certainly very complex.
So will MS stop demanding money from various Android manufacturers now? In general I hope they'll change their attitude from patent aggression to patent disarmament. We need more changes like this.
It can be also related to a set of patents published by China earlier which MS used to demand Android patent protection money. It could undermine their patent aggression efforts.
Definitely a move in the right direction. Software companies have operated with a war mentality for too long, despite their common interests. They trade employees pretty often too, exposed no-poaching agreements aside. Competition isn't going away any time soon, but I think everyone appreciates more interoperability and cooperation. Will the Internet communities following them be able to follow this example?
I find it the opposite. In my perception, the patent hatched buried was actually a good thing for everyone else, because the patents were fought against (with the likely outcome to be revoked as non-patentable bullshit that software patents are). With that peace treaty, nothing is against those patents and they are actually strengthened, which is not something to celebrate.
Of course, would the announcement contain something about dropping the patents (and not the lawsuits), my opinion would be surely different. But all I've read is that two giants won't touch each other and it's not something I do care about.
I see your point. But there will be a lot of opportunities for software patents to be tested in court. When people look at history and see companies agreeing not to sue each other, what direction will that push the argument? I hope a good one.
"Google and Microsoft agreed to work together against patent trolls in the European Union." I hope the irony of this isn't lost on anyone - especially as it relates to Microsoft.
I wonder if Apple enabling ad blocking in iPhones and iPads had something to do with this. Many see it as a direct shot at rival Google, which makes most of it's money from advertising. Days later and suddenly Microsoft and Google are besties. It will be interesting to see what comes of this.
> Earlier this week, Microsoft re-signed an Android patent-protection pact with I-O Data for an undisclosed amount.
You don't say? A patent protection pact. So they don't even try to hide the fact that it was a mafia-style protection racket all along now?
"Such a nice business you got there. You wouldn't want it to be dragged in Court and lose millions or hundreds of millions of dollars? Why not just pay us this tiny $5 fee per phone, forever, instead, for an OS we never participated in creating?"
Of all the patent lawsuits that happened in all the smartphone wars that nobody won, this was the only case where a company was actually sanctioned for, essentially, abusing patents. And this happened on Google's watch. For all the rhetoric Google spewed about how their competitors were abusing patents, ironic that they were the one company that was actually found to be a bad actor. I always thought Google for too much of a free pass on that one.
Interestingly the Ars article I linked does not mention Google at all. Guess it's not so surprising they got a free pass.
Did you link the right article - the referenced article references a court case between Motorola and Microsoft - one that started before Google's acquisition of Moto.
It seems the patent battle was Microsoft abuse of its own patents to take a percentage of all Android sales (and Moto's revenue).
People may like to portray Microsoft's use of patents as "abuse", but the fact stands that they have successfully licensed their portfolio to most Android manufacturers with a minimum of lawsuits and, more importantly, without being legally penalized like Google/Motorola were.
Well I'm not sure how the article backs up your statement. It was Microsoft who started the patent litigation against Motorola, and it was Motorola who decided to not pay Microsoft. Google was only tangentially involved due to its acquisition which happened after the litigation started, so I'm unsure how Google is getting a free pass - Google really didn't do anything (as far as the scope of the article goes).
Mea culpa, my memory is bad, so let's lay out the timeline:
Early Oct 2010: Microsoft files lawsuit.
Late Oct 2010: Motorola countersues.
Aug 2011: Google announces Motorola acquisition. (Many would say Google's watch starts now.)
May 2012: Google closes Motorola acquisition.
Sept 2013: Microsoft wins 14M judgement with jury deciding unanimously that Google was a bad actor.
Regardless of where you start the stopwatch, Google had at least a full 16 months to prevent this outcome. And note again, Google was the only company involved in the smartphone wars to suffer this fate. Given its previous rhetoric about "patent abuse", this is nothing but hypocrisy.
>And note again, Google was the only company involved in the smartphone wars to suffer this fate. Given its previous rhetoric about "patent abuse", this is nothing but hypocrisy.
Prevent what outcome. You aren't being clear on how Google abused patents. What patents did specifically Google abuse? If my reading comprehension serves me right, Google didn't sue anyone over the use of any patents - Motorola and Microsoft did. The litigation you listed says Motorola refused to pay a licensing fee, and Microsoft sued - all without the help of Google.
If your argument is that after the the acquisition, Google should have went behind the backs of Moto's lawyers who had been working 8 months on this case and done something - then I assume you are just grasping at straws to create some "hypocrisy" story.
"The US Court of Appeals for the 9th Circuit has upheld (PDF) a 2013 jury verdict finding that Motorola must pay Microsoft $14.5 million for violating its commitments to license certain standard-essential patents on a "fair, reasonable and non-discriminatory" (FRAND) basis."
>Motorola and Microsoft did.
As the timeline I posted shows, Google owned Motorola for a significant portion of the duration of the lawsuit, most importantly the part where they got penalized.
> If your argument is that after the the acquisition, Google should have went behind the backs of Moto's lawyers who had been working 8 months on this case and done something...
Uh, yes? If you're putting out a bunch of PR about how other companies are using patents to "attack" Android, you should not end up the only company penalized for actually abusing patents. You can't say, "Oh, it's a company we fully own, but we can't really control their lawyers and waste their efforts." You know who else plays the "shell company" game, right?
1.) FTA, Google didn't abuse any patents - Microsoft used its patents to attack Android. Sure Google lost, but your claim that Google abused patents isn't backed up here, Microsoft was the aggressor and Google lost. Google has every right to believe that other companies are using patents to attack Android - thats exactly what MS did here. Show me a case where Google actively sought out to use their patents to sue someone else and then you have a point.
FWIW, the case in question isn't new, everyone else decided to play ball and pay MS 1% of all revenue except Motorola, which leads to...
2.) The litigation covers a period of time independent of Google. Are you seriously implying Google is the bad actor here when the litigation is over something that happened BEFORE Google acquired moto? Or are you trying to imply every Android manufacturer (Samsung, LG, HTC) are all just shell companies for Google (even though all the other "shell" companies decided to play ball with MS)?
3.) >you should not end up the only company penalized for actually abusing patents.
I guess we are just going to close our eyes and ears over Apple's 1B injunction against samsung over rounded corners?
"In return fire, Motorola Mobilty demanded Xbox patent royalties. In particular Motorola Mobility demanded higher payments for its s H.264 video and networking 'essential' patents."
My bad, was not very clear, I meant TFA does not mention the 14M judgement that Google was slapped with, marking it as the only company legally proven to be abusing patents.
Litigation is a crap-shoot. Microsoft could have just as easily been slapped with such a judgement on its FAT patent that provoked that countersuit. Instead, it went the other way.
The only thing that's clear is that Microsoft was the aggressor. Without the FAT litigation, there would have been no h.264 litigation.
Sure, litigation a crapshoot, but MS has asserted the FAT (and other) patents numerous times but has not seen anything like this judgement. In fact, even the most egregious patent trolls have not suffered anything like this. The thing that is really clear but missed by most is that this was the one lawsuit where pretty much every nuetral party involved agreed that Google / Motorola was the bad actor, and a penalty was imposed on the badness of the actions, totally unrelated to the quantity of infringement itself.
I guess this might be good news for Google?
From my perspective, patents are a toxic drain on morale/intelligence/innovation that we have no hope of curtailing in my lifetime.