Does your company pay license fees to a patent troll such as Intellectual Ventures? Please only answer if you are in a position to know and your company is at risk of being targeted.
Patents cover implementations right? EFF should put up a random obfuscated legalese letter generator that says basically "all the code claimed, but not acknowledged, to be offending the patent mentioned has been removed. If you sign this obfuscated, random, draconian non-compete non-disclosure agreement, we will allow you to visit our offices and inspect the code for any real patent offense"
that should take care of most of the small trolls that affect companies just starting up.
Software patents effectively cover features rather than implementations, so a patent troll (or a judge or jury) doesn't need to look at your source code to determine if you violated their patent: they really just need to be able to use the application enough to determine what it does.
Of course, the issue of if you violated the patent or not, or if you removed any offending source code, is pretty much immaterial to the patent lawsuit issue; they can sue you either way, and if they want to take it to court, you'll have to pay a truckload of money to defend yourself, unless you want a summary judgment issued against you.
Software patents effectively cover features rather than implementations
No, software patents cover ways to implement features. Amazon does not have a patent on "buying something with one click"; the patent deals with one specific way to let people buy something with one click (I'm guessing cookies and stored shipping preferences? I've never read the patent in question).
if they want to take it to court, you'll have to pay a truckload of money to defend yourself
Sure, but this is independent of the subject matter of the claim. In the US you can sue anyone for anything and it will cost a lot of money for them to defend themselves; witness the "90 year old without a computer illegally downloaded porn movies" copyright suits, for instance.
Ideally yes, but I believe (and note that I am not a patent lawyer), that you can also have patents for 'methods of doing business'.
Methods of doing business are closer to 'buying something with one click,' as they aren't tied to a physical machine or a specific implementation of a process as in code, they are patenting the process of purchasing with one click through a web form itself.
The 'invention' is the supposedly 'innovative' way of allowing customers to purchase something using a single button.
Note that I said they "effectively" cover features rather than implementations. Technically they should cover implementations, but the reality is that they actually cover features, because the patents are so broad that they effectively cover solving a given problem using a computer. That wasn't the intention of the patent system, but that's the effect.
Also, I believe you're incorrect about Amazon's patent: it basically does cover any method whereby the user only has to use one click to buy something, regardless of the implementation. It was challenged and then amended to narrow it down to requiring a shopping cart, it appears, but the patent has nothing to do with cookies or databases or anything like that: anyone who implements the same feature in their application could run afoul of the patent, regardless of how they implement it under the hood.
Now you've made me curious. Claim 1 of the one-click patent:
A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being
performed, sending a request to order the item
along with an identifier of a purchaser of the
item to a server system;
under control of a single-action ordering component
of the server system,
receiving the request;
retrieving additional information previously
stored for the purchaser identified by the
identifier in the received request; and
generating an order to purchase the requested
item for the purchaser identified by the
identifier in the received request using the
retrieved additional information; and
fulfilling the generated order to complete purchase
of the item
whereby the item is ordered without using a shopping
cart ordering model.
IANA Patent Lawyer, but one obvious way to provide "one-click" functionality while evading this patent would be to have all the information required to generate an order POSTed in response to the mouse-click instead of storing customer data on the server.
I suspect that sending a login session cookie instead of a user-id cookie would also be ruled to be non-infringing -- after all, the patent specifies "an identifier of a purchaser", not "an identifier which can in combination with previously stored information be used to identify a purchaser".
If I wanted to think about this for more than five minutes I could come up with other solutions, but I'm not a patent lawyer and don't want to spend too much time twisting my brain around patent law.
I'm not sure I understand your initial question. A feature of an app can infringe a patent (e.g. In-app Purchase), therefore removing the feature removes the infringement. The code implementing the feature is irrelevant to the patent owner.
Let's suppose you've implemented in-app purchase in a way that infringes a patent. If this feature is simply hidden in the app and not accessible by a user, but the code is still compiled into the app, then the app is no longer infringing. In other words, just because my app links against a library (Apple's?) that implements your patented thingy, my app is not in a de facto infringing state.
IP trolls only really come after you once you have enough success to be worth suing. The value that IV gets is from a license or a settlement, both of which require money. And to have money, you have to have... success.
Why didn't Android get sued before being bought by Google? Because no one cared.
The time to start thinking about licensing from a troll is the minute you think you have enough to defend yourself against one.
I have never worked on a project that did not include numerous patented technologies, and neither has anyone else here with more than a couple years of experience. It is only by luck that I have never been sued or extorted into paying licensing fees; and that's true of anyone working in software.
It is simply impossible to write software of any size and complexity that doesn't include ideas that have been patented, often being covered by several patents.
As companies like IV grow, and prove that the patent troll model is legalized extortion for companies with enough money to buy patent portfolios, the number of people who can answer "no" to this question will dwindle to nothing. Patent trolling, as Myhrvold claims, is new. There aren't a lot of companies doing it yet...but, all that money is an awful big lure, and even people who don't seem evil (like Myhrvold probably seemed to people who knew him in the past, and as I would have assumed before IV was founded) can fall prey to the desire to legally practice extortion.
Just as some people setup companies in the Cayman Islands to avoid taxes (Tax Havens).. are there Patent Haven countries?
Also, if you patent 1 feature, can someone else troll you on a subsection of it? eg troll comes after you on a rotating car door handle, what happens if you prior or subsequently patent on a total car ergonomic system? What happens if you patent a rotating door handle in another country?
What gives courts in East Texas the jurisdiction to hear these cases, anyway? If it were possible to prevent users in these districts from accessing your online service (either using geolocation of some sort or through an EULA), would that make any difference?
I don't think it would work to have a Patent Haven, because the patents would block usage in the U.S. I suppose if everything was hosted in that other country, but what about payments?
Not if you want to do business in the United States. Even if your home jurisdiction is patent-friendly (or lax), doing business in the US means complying with, and therefore being liable to, any patent enforcement. A US company can't sue a non-US company if there isn't any US-based infringement, but if you do business in the US, then they can sue you for infringement in the US, no matter where you are based.
What does "doing business in the US" mean exactly? If my servers are in Peru and someone from Texas signs up to use my webserver monitoring service, I am not exactly doing business in the US, am I? I understand if I ship something tangible to the US customers, but with digital goods or services I frankly cannot think of a situation that would reasonably qualify as in-the-US business. All those US customers come to me, not the other way around, so technically the business is being done in Peru.
Good point. Where would you physically be based, Peru? What would happen if you entered the US one day? If the US has no IP arrangement with Peru, how can troll come after you? How are they going to block your site? The US government has to censor you. Is the onus on you to stop signups from the US? How can they prove you have US customers?
Reminds me of online gambling situations.
In a severe case, registering the business in another country and accepting payments in bitcoin would prevent a payments injunction from US customers. Troll would have to physically track down a patent-infringer and arrest or extradite. The entire exercise becomes a cost-benefit analysis.
If you had your business in Peru, and only accepted payment for your services with Peruvian Nuevo Sol (their currency), I don't think that you could be deemed a business operating in the US if someone from the US signed up, but was charged in Nuevo Sol, with their bank doing the currency exchange. I could be wrong though, so don't take my word.
If you accepted US dollars (and then exchanged them locally in Peru, or kept them), say through PayPal or a US based Credit Card Merchant, then I could almost guarantee that is enough to deem your business as operating in the US.
It means whatever the Plaintiff and the Courts agree it means. The whole concept of home jurisdiction in these sorts of suits has been widely... interpreted. Hence why patent litigators often open up offices in Marshall, TX.
Nope I live in the real world where software patents don't exist ;) I won't vote however as it will skew your results.
I deal with web, mostly glorified CRUD, on an MS stack. I seriously doubt Im infringing on anything from my own work, I might be good... but I'm not that good :P
Where I have in the stack I'll use MS as a buffer, its amongst the reasons why I choose to go with them. Support, community, my own history amongst others.
25 comments
[ 3.9 ms ] story [ 206 ms ] threadthat should take care of most of the small trolls that affect companies just starting up.
didn't vote as i never went trhu this.
Of course, the issue of if you violated the patent or not, or if you removed any offending source code, is pretty much immaterial to the patent lawsuit issue; they can sue you either way, and if they want to take it to court, you'll have to pay a truckload of money to defend yourself, unless you want a summary judgment issued against you.
No, software patents cover ways to implement features. Amazon does not have a patent on "buying something with one click"; the patent deals with one specific way to let people buy something with one click (I'm guessing cookies and stored shipping preferences? I've never read the patent in question).
if they want to take it to court, you'll have to pay a truckload of money to defend yourself
Sure, but this is independent of the subject matter of the claim. In the US you can sue anyone for anything and it will cost a lot of money for them to defend themselves; witness the "90 year old without a computer illegally downloaded porn movies" copyright suits, for instance.
Methods of doing business are closer to 'buying something with one click,' as they aren't tied to a physical machine or a specific implementation of a process as in code, they are patenting the process of purchasing with one click through a web form itself.
The 'invention' is the supposedly 'innovative' way of allowing customers to purchase something using a single button.
Also, I believe you're incorrect about Amazon's patent: it basically does cover any method whereby the user only has to use one click to buy something, regardless of the implementation. It was challenged and then amended to narrow it down to requiring a shopping cart, it appears, but the patent has nothing to do with cookies or databases or anything like that: anyone who implements the same feature in their application could run afoul of the patent, regardless of how they implement it under the hood.
I suspect that sending a login session cookie instead of a user-id cookie would also be ruled to be non-infringing -- after all, the patent specifies "an identifier of a purchaser", not "an identifier which can in combination with previously stored information be used to identify a purchaser".
If I wanted to think about this for more than five minutes I could come up with other solutions, but I'm not a patent lawyer and don't want to spend too much time twisting my brain around patent law.
Let's suppose you've implemented in-app purchase in a way that infringes a patent. If this feature is simply hidden in the app and not accessible by a user, but the code is still compiled into the app, then the app is no longer infringing. In other words, just because my app links against a library (Apple's?) that implements your patented thingy, my app is not in a de facto infringing state.
IP trolls only really come after you once you have enough success to be worth suing. The value that IV gets is from a license or a settlement, both of which require money. And to have money, you have to have... success.
Why didn't Android get sued before being bought by Google? Because no one cared.
The time to start thinking about licensing from a troll is the minute you think you have enough to defend yourself against one.
It is simply impossible to write software of any size and complexity that doesn't include ideas that have been patented, often being covered by several patents.
As companies like IV grow, and prove that the patent troll model is legalized extortion for companies with enough money to buy patent portfolios, the number of people who can answer "no" to this question will dwindle to nothing. Patent trolling, as Myhrvold claims, is new. There aren't a lot of companies doing it yet...but, all that money is an awful big lure, and even people who don't seem evil (like Myhrvold probably seemed to people who knew him in the past, and as I would have assumed before IV was founded) can fall prey to the desire to legally practice extortion.
Also, if you patent 1 feature, can someone else troll you on a subsection of it? eg troll comes after you on a rotating car door handle, what happens if you prior or subsequently patent on a total car ergonomic system? What happens if you patent a rotating door handle in another country?
It is incredibly overrepresented in patent litigation. Companies set up PO boxes and shell companies there just for this purpose.
Reminds me of online gambling situations.
In a severe case, registering the business in another country and accepting payments in bitcoin would prevent a payments injunction from US customers. Troll would have to physically track down a patent-infringer and arrest or extradite. The entire exercise becomes a cost-benefit analysis.
If you accepted US dollars (and then exchanged them locally in Peru, or kept them), say through PayPal or a US based Credit Card Merchant, then I could almost guarantee that is enough to deem your business as operating in the US.
I deal with web, mostly glorified CRUD, on an MS stack. I seriously doubt Im infringing on anything from my own work, I might be good... but I'm not that good :P
Where I have in the stack I'll use MS as a buffer, its amongst the reasons why I choose to go with them. Support, community, my own history amongst others.