Comments on Patent troll sues transit agencies who provide real-time info - Greater Greater Washington

Comment by Joshua Cranmer

Sun, 22 Apr 2012 00:20:49 EDT

"The people crying "patent troll!" are generally big institutions that are being forced to pay money to small guys that come up with inventions that large companies never think about because they are so entrenched in their own products."

Um, no. At least in the computer industry, the standard operating procedure with regards to patents is "don't you dare look at any patents." Which means all patent infringement must come from either inventing the idea independently, slavishly copying other products (if small inventors aren't capable of putting out other products, how can they be copied?), or maliciously patenting things that have already been done. Also, most patents are held by what many would consider large corporations--IBM, Google, Apple, etc.

Start doing research into companies claimed to be patent trolls, and you'll often find small shell corporations with multiple corporations assigned to a single office room (which physical evidence would suggest is actually unoccupied) somewhere in Texas. Sure, some companies probably have the "patent troll" label misapplied, but don't kid yourself that they aren't there.

Of course, the patent system is still horribly broken; many so-called "open standards" are actually, because of patents, pretty much enforced racketeering.

Comment by ET

Thu, 19 Apr 2012 10:33:01 EDT

I know patents are complicated and nuanced but this guy seems to have a business model more about suing than a product/service around the patent itself. So I don't know that calling him a patent troll is totally incorret.

I will say that I am not sure taking on the the federal government was the best strategy. Business will weigh the costs - which he is counting on - and pay because that is cheaper but I don't think that is the way the government works. The government will fight the case on principal and make that lawyer work for that money. And if the plaintiff doesn't win it may put his entire business model - suing - in jeopardy.

Comment by Morris

Tue, 17 Apr 2012 14:11:28 EDT

What amazes me is that even UPS who originally took on the fight against ArrivalStar ended up settling with them. I'd love to hear the opinion of UPS's lawyers on the case...

Comment by Scoot

Tue, 17 Apr 2012 12:54:07 EDT

Also, IMHO, one of the largest problems with patents is that the bar for obviousness is so low. Patent reviewers really have a very limited imagination.

@ Jasper. As with most things, it's more nuanced than that. The standard for obviousness has been expanded significantly in the last 15 years, and enormously in the last 5 years (since the landmark supreme court case KSR Int'l Co. v. Teleflex, Inc (2007)). In contrast to your opinion, the PTO is actually rejecting more patents on the basis of obviousness than ever before. In addition, most patented products you see in the marketplace have a relatively narrow scope of protection that may not be apparent to a layperson. The PTO employs humans rather than machines to make the subjective determination of obviousness; what is obvious to one person or group of people may not be obvious to another. What is obvious to a PTO employee may be non-obvious to a federal judge, and vice versa.

Whether or not the patent has met the statutory requirements is a question of law. The PTO plays no part beyond the initial determination.

@ WRD. Perhaps we are getting into the realm of semantics here, but I don't see any practical difference between "presumption" and so-called "affirmative assertion". No other agency or court can grant a patent. The mechanism by which patents can be invalidated does not diminish the power of the PTO to grant patents just as the mechanism by which courts can invalidate laws does not diminish the power of Congress to pass laws.

The PTO also plays a significant part in patent disputes in court because in many cases, the PTO's reasoning for granting or denying a patent is picked apart word-by-word by litigating attorneys or judges or juries to arrive at a decision. Federal courts typically grant "deference" to the PTO, meaning that its authority carries a lot of weight during adjudication of patent disputes.

Comment by Burger

Tue, 17 Apr 2012 10:17:36 EDT

A is exactly right on whether a patent is valid and most of the blog post is someone screed against the patent holder.

The people crying "patent troll!" are generally big institutions that are being forced to pay money to small guys that come up with inventions that large companies never think about because they are so entrenched in their own products. The small inventor then meets the requirements of issuing a patent by the USPTO.

Most of the inventions done by small inventors never see the light of day because they do not have the ability to put forth a competitive priced product - you are going to be able to offer a real time tracking system at a price that an institution is going to buy when you are competing against Flour, GE, etc. that will undercut you - and maybe with an infringing product.

Large companies already have a huge edge in keeping barriers to entry high so that small companies can't compete. I see no reason to raise that barrier by stopping someone from patenting an idea.

Further, because you are unable to build the product goes to damages a patent holder is owed (you either get lost profits or reasonable royalty rate) and if you do not compete in the market you can't not get the usually more lucrative lost profits damage award.

Also, you see patent numbers on products because you are required to mark your product.

Comment by WRD

Mon, 16 Apr 2012 23:46:01 EDT

@ Scoot--

Right, there is a presumption of validity but that isn't a affirmative assertion of validity. The PTO is saying, in English, "The patent has met the statutory requirements and is presumed valid unless a contrary determination is made in court."

Whether or not the patent has met the statutory requirements is a question of law. The PTO plays no part beyond the initial determination.

Comment by King Terrapin

Mon, 16 Apr 2012 22:57:06 EDT

Pretty clever...not cool..but clever.

[Deleted for violating the comment policy.] The lead sentence assertion that Jones "doesn't make or sell a thing" is totally irrelevant. Just like property, there is no requirement for a patent to be developed or sold.

The claim that "Jones doesn't actually develop or sell any technology relating to real-time vehicle tracking...but that hasn't stopped him from punishing anyone who does." has no bearing whatsoever since its totally legal, albeit selfish, for him to do this.

Also, its the Maryland Transit Administration, not " Maryland Transit Authority," which doesn't exist, something even the real media can't get right. The Maryland Transportation Authority is the state agency that operates all of MD's toll facilities.

If you really want to know about patent trolls look up Apple and their relentless, anti-competitive lawsuits against numerous competitors who produce touch screen phones or tablets. Those multi-million dollar suits (filed in many countries) have far greater economic repercussions than some selfish prick milking his supposed 'patents' for a few grand from transit agencies.

Comment by Falls Church

Mon, 16 Apr 2012 21:41:54 EDT

In the era that these patents were issued, that would have been a pretty black-and-white standard. However, in the current era, the issues are ever-evolving because of how technology is evolving. The analogy to the financial system is not so apt.

@ Scoot

Actually, my reference to a bubble is more than an analogy. The patent-industrial complex IS itself in a bubbble, rather than merely being analogous to one. Millions of person-hours are being devoted to the fairly useless endeavor of developing harmful/useless patents, reviewing/approving them, wielding those patents as weapons, and then defending oneself from those weapons. No value is created by any of this activity.

The value of the patent system is in encouraging innovation by making it possible for small businesses to reap the benefits of their inventions the same way that large businesses harvest their inventions by maintaining trade secrets. To the extent that the patent system benefits that goal, it's productive. When it becomes an industrial complex who's purpose is to perpetuate itself, it creates over-investment which is the definition of a bubble.

The following industries all have something in common: finance/banking, dot.com 1.0s, housing, tulips, and the patent industry. Their commonality is the overproduction and overinvestment of their product/service when resources could be better allocated else where. In the case of patents, the reason the bubble has been created is that the patent legal framework has not evolved at the same pace as technology. On that point, I agree with you.

Comment by Jasper

Mon, 16 Apr 2012 20:09:50 EDT

@ Scoot: You are correct. However, and please correct me if I'm wrong, you can not just patent and idea. You have to have an embodiment with it, or a preferred process.

Also, IMHO, one of the largest problems with patents is that the bar for obviousness is so low. Patent reviewers really have a very limited imagination.

I'd ask everyone who's interested in this, to keep an eye open in your own life for items that are patented. You will be shocked to see which utterly normal things have patents on them. Try to identify the patented part and ask yourself if that part is worthy of 20 years of protection, or whether it really was pretty obvious.

Comment by Scoot

Mon, 16 Apr 2012 18:33:17 EDT

Thank you, this is a pretty well-written article that manages to consolidate a lot of complicated topics into digestible bits for laypersons. Most articles covering patent law written by publications that don't specialize in this type of law make all sorts of errors, some merely formal while others substantive.

While patent trolling is a huge issue today, it's a bit inappropriate to imply, as this article seems to, that an organization offering a service that benefits millions of people or does so for free or under financial constraints should be shielded or excepted from responsibility to intellectual property holders. (A patent would never be invalidated on that basis alone, anyway). It is deeply entrenched in patent law that inventors do not have to make or use their technology to be able to assert their patent rights against others.

The strength of the patent system, which has provided trillions of dollars in economic development in this country's history, relies on entities of all stripes (from large corporations to non-profit transit agencies) who want to use technology to do so legally by obtaining permission from the owner of the IP. Otherwise, patents would be useless. If these patents are determined to be valid, there are mechanisms to use this technology -- licensing, for instance -- that do not run afoul of the law.

Comment by Evan

Mon, 16 Apr 2012 18:17:39 EDT

@Charlie: Public policy arguments are a crucial part of establishing common law, because statutes (including legislative history) and existing case law do not always provide judges with clear answers to specific legal questions.

Comment by Scoot

Mon, 16 Apr 2012 18:16:05 EDT

The PTO doesn't affirmatively assert these patents are valid

@ WRD. The PTO actually does affirmatively assert that these are valid patents. This is called the Presumption of Validity - see 35 U.S.C. 282. And since the PTO is the only agency that can grant US patents, then by extension, the PTO is the only agency that can validate patents.

@ Alan. If a federal court invalidates a patent (which it does all the time), there is no estoppel issue, any more than there would be if one organization of government (e.g. Congress) passes a law that another organization of government (e.g., the Supreme Court) invalidates as unconstitutional. The PTO is an Executive branch agency. The Court functions as a check-and-balance to Executive power in being empowered to 1) uphold the validity of a patent, or 2) invalidate a patent. But any entity can seek to invalidate a patent, even an entity within the Executive branch, such as DOJ. There are even laws that allow the patent holder himself to invalidate a patent.

@ Falls Church. Most of the patents held by the patent owner are tied use with a tangible machine, such as a telephone system, a computer medium (hard drive, disc, etc, programming logic), etc. In the era that these patents were issued, that would have been a pretty black-and-white standard. However, in the current era, the issues are ever-evolving because of how technology is evolving. The analogy to the financial system is not so apt.

Comment by Falls Church

Mon, 16 Apr 2012 17:55:15 EDT

Abstract ideas, with no technology or product attached, are not patentable.

Maybe I'm not understanding everything, but aren't MKJ's patents basically just abstract ideas? Sounds like he didn't develop any technology to make real time tracking possible, he just said "one day there will be real time tracking" and patented that idea. Somehow, for being the first to codify that statement with the authorities, he can now exact a toll on everyone who says it after.

The patent laws definitely need reform. It's a bubble, borne through obsolete legislation. Just like the financial bubble led to over-investment and over-concentration of our brightest minds in banking, way too much time, money, and effort is invested in creating and defending useless patents.

Comment by charlie

Mon, 16 Apr 2012 17:11:46 EDT

@ Annon; thanks.

Comment by Annon

Mon, 16 Apr 2012 17:10:05 EDT

@ Charlie - Unlike Amtrak, the USPS is an independent Agency of the United State's Government, and as such; while it has its own legal staff, the Civil Division of the USDOJ can act as counsel in civil matters.

Comment by charlie

Mon, 16 Apr 2012 16:53:39 EDT

@ WRD; right, I am painfully aware of that fact. But I am not sure that applies to entities such as USPS or Amtrak.

Comment by WRD

Mon, 16 Apr 2012 16:39:15 EDT

@Alan--

The PTO doesn't affirmatively assert these patents are valid, at least not in the sense you mean. They assert the patents were lawfully granted and non-obvious. This doesn't estop another branch of government from asserting the opposite. Otherwise, the government could never litigate patent cases in the first place.

@ Charlie--

The Department of Justice defends federal agencies in court. This isn't (necessarily, I guess) about any investigation; it reflects the fact that all federal agencies sued are defended by the DOJ.

Comment by charlie

Mon, 16 Apr 2012 16:20:24 EDT

Laywers who argue for public policy in front of a judge deserve to lose.

Is this a software patent?

Somehow, I doubt DOJ will be interested in a larger investigation. Do they get involved -- or does USPS defend itself in court?

Comment by David Alpert

Mon, 16 Apr 2012 16:11:38 EDT

Also, the 3rd relevant question is, since patents are a creation of Congress and software patents are a more recent creation of the Federal Circuit, does the patent law as written and as interpreted by the Federal Circuit achieve the desired public policy objectives, or should it be changed?

Comment by David Alpert

Mon, 16 Apr 2012 16:10:24 EDT

A: That wasn't the whole brief.

Comment by A

Mon, 16 Apr 2012 16:06:12 EDT

The only two relevant questions here are 1. are the claims of the patent valid? and 2. if the claims are valid, are they infringed by the parties being threatened?

The odds of both answers being yes are likely low, and yet the MBTA chooses to rant against the patent system instead of attempting to show that the patent is not valid and/or not infringed.

Comment by Tim

Mon, 16 Apr 2012 15:55:30 EDT

Can a government use eminent domain to take a patent?

Comment by Jasper

Mon, 16 Apr 2012 15:45:25 EDT

Yeah, patent law. There is so much wrong with that. Here's another case that will blow your mind:
http://www.pcworld.com/article/251739/yahoo_sues_facebook_alleging_patent_infringement.html

Comment by Alan

Mon, 16 Apr 2012 15:41:41 EDT

It's interesting that one branch of the gov't (USPTO) said that the patents are valid, while another (DOJ) is now saying they are not. That would seem to create an issue of estoppel, assuming estoppel can apply to the federal gov't. See https://secure.wikimedia.org/wikipedia/en/wiki/Estoppel