Comments on Transit agencies may get reprieve from patent troll - Greater Greater Washington

Comment by selxic

Wed, 19 Sep 2012 11:26:49 EDT

I enjoyed pinch zooms and sliding to unlock on my Windows Mobile phone prior to the original iPhone...

Comment by Scoot

Wed, 19 Sep 2012 11:11:42 EDT

one can argue that giving Apple a monopoly on phones with pinch to zoom doesn't promote any progress since clearly they are doing fine without the monopoly.

I believe part of the reason Apple is doing "fine" is because it has a monopoly on phones with pinch to zoom and other "obvious" or "self-evident" features like swipe to unlock. In 2005, I doubt we would have considered such features self-evident. They did not yet exist in our popular imaginations. At this point we consider them self-evident because they are extremely elegant, and because we have the benefit of hindsight. Hindsight reasoning is, of course, an impermissible action for invalidating or rejecting a patent.

@Jasper. Like most things, the reality of patent approvals is far more complicated than it seems to a layperson. Most applications never get patented, and close to 100% of them are rejected on the first pass. The PTO's approval rate for applications is just now starting to tick up after a period of relatively few approvals during 2000-2008.

It is true that some or even many overly broad patents are issued, but the IP community generally recognizes the intense pressures that PTO employees are under to process applications and work down an enormous backlog of applications (about 650,000 at the moment) with an aging IT infrastructure, all while trying to maintain the integrity of the patent system and generate enough revenue to support its operations (the PTO is a self-funded agency and does not rely on any tax dollars). The typical patent examiner will only have about 20 hours to make a patentability determination -- the EFF may have teams of patent searchers poring over prior art for months before finding that one reference to invalidate the patent.

The PTO recognizes that software patents are controversial. However, its rule making authority limits its ability to refuse to accept such applications. The EFF offers some interesting ideas to reform the patent system (namely in the area of software patents), but (along with GGW) fails to recognize that perhaps the most important piece of the solution involves reforming the way that PTO employees do their jobs so they ultimately ensure that better quality patents are granted. At the moment, there is a tenuous balance between granting quality patents and granting patents quick enough to keep up with the pace of filings.

Comment by Joe Chapline

Tue, 18 Sep 2012 22:34:23 EDT

Thanks for the post and the links, I was glad to donate to EFF.

Comment by Joshua Cranmer

Tue, 18 Sep 2012 20:23:36 EDT

There are four necessary requirements for a patent: it must be patentable subject matter, it must be novel, it must be useful, and it must be non-obvious.

Blockbuster Supreme Court patent cases tend to focus on the first bit, and it's generally not clear where the boundaries lie for modern biotechnology, business method, and software patents. The really annoying part here is that the Supreme Court has ruled very inconsistently on these points (Diamond v. Diehr comes rather close to directly repudiating the Flook case, despite all its claims to the contrary) and the key case in this matter is not a Supreme Court case (the State St. decision, where the court held that nearly everything is patentable subject matter), although the Supreme Court very emphatically said that the State St. decision is wrong. People looked to Bilski v. Kappos to shed light on the matter, but SCotUS instead gave a very narrow ruling and also pointed out that many of the contentious patents would stand on weak grounds in terms of the non-obvious and novel requirements.

The big problem is that the USPTO gave up trying to really triage the patents after State St. opened the floodgates.

My arguments to fix the situation is to force the patent owner to pay all legal fees unless the defendant has been shown to have maliciously infringed the patent, require that the patent owner grant the defendant a no-royalty, perpetual license to the technology if the defendant can prove independent invention, and get rid of treble-damages-for-willful-infringment. Legal fees plus damages plus future payment of royalties should be disincentive enough for maliciously infringing a patent.

Comment by Jasper

Tue, 18 Sep 2012 16:49:03 EDT

@ Cavan: You saying, "how else would you wake up a touch-screen device?" adds merit to the fact that there innovation is no industry standard that most customers can't envision an interface without it.

No. It points out that the move is obvious, and therefor not patentable. The pinch-to-zoom is similar. The problem is that the USPTO has awarded those patents. That error allows Apple to complain about competitors doing similar things.

@ andrew:The problem is that Apple is the darling of the public and the media.

That depends. In the US, yes. In Korea, no. Apple has won in the US. Samsung won in Korea.

@ David Alpert:Here, the issue is that these patents are just so general and vague, for the basic concept of doing something with computers that's sort of self-evident to many.

But the underlying problem is the same. USPTO approves patents to easily. And then competitors face the choice between spending years in court fighting a the validity of those patents, or face years in court fighting infringement suits.

Patents in themselves are great. They allow inventors to monetize their work. That's fantastic. It puts an incentive on having great ideas. However, by approving obvious and generic patents, USPTO is exactly destroying that system, because undeserving people get patents, slowing down progress.

Comment by SJE

Tue, 18 Sep 2012 16:40:22 EDT

I don't represent the parties in this case, nor do I have an opinion on the specifics. I would like to mention two problem I already see in this discussion.

1. In many discussions of patents is that everything that seems so blindingly obvious now that it is an industry standard was not so obvious at the time.

2. "non-practicing entity" and "patent troll" are too readily bandied about without thinking of the ramifications. If a University invents (say) a great new piece of technology, they have to licence it, because they lack the manufacturing facilities, expertise and money to bring it to market. By definition, they are a "non-practicing entity." Same for many blockbuster drugs: only the big drug companies have the cash and expertise to bring them to market. These NPEs need patents to protect the effort and money that goes into research.

Comment by David Alpert

Tue, 18 Sep 2012 16:03:18 EDT

Some Apple patents are for general ideas (pinch to zoom, maybe) while others are less so. I think the slide to the right is not necessarily that obvious; you could have an unlock that involves swiping in a circle, or touching 3 spots in a row, or a set lock pattern as many phones do.

The patent issues around Apple are a little different than here. There, there is an argument that Apple is getting lots of money from their devices even though there are similar ones by competitors. The purpose of the patent system is "to promote the Progress of Science and the useful Arts," and one can argue that giving Apple a monopoly on phones with pinch to zoom doesn't promote any progress since clearly they are doing fine without the monopoly.

Here, the issue is that these patents are just so general and vague, for the basic concept of doing something with computers that's sort of self-evident to many.

Comment by Cavan

Tue, 18 Sep 2012 15:32:20 EDT

Jasper, you're actually making Apple's point. Apple had to make its own interface from scratch for the iPhone. You saying, "how else would you wake up a touch-screen device?" adds merit to the fact that there innovation is no industry standard that most customers can't envision an interface without it.

Apple's suit was about the interface and also about being PO'd at Google for Droid.

Andrew, while I get that there are anti-Apple fanboys just as much as there are Apple fanboys that doesn't make comparing hardware/interface patents any more relevant to broad transit service ideas.

This patent troll patented the idea of tracking transit vehicles, not actual code or hardware to do so.

Comment by Fitz

Tue, 18 Sep 2012 15:09:25 EDT

@andrew:

Patent trolling is a behavior most singularly associated with non-practicing entities (NPEs), which Apple is essentially at the opposite end of that spectrum.

Comment by David Alpert

Tue, 18 Sep 2012 14:43:05 EDT

alexandrian: Oops, right. I've corrected it.

Comment by alexandrian

Tue, 18 Sep 2012 14:39:45 EDT

The patent in question issued in 2006, not 1999. The priority date of the application is either 1999 or 1993.

Comment by andrew

Tue, 18 Sep 2012 14:35:09 EDT

The problem is that Apple is the darling of the public and the media.

The bigger problem is that Apple's marching down the road of becoming a patent troll themselves after a decade of incredible growth that was largely fueled by the company's (limited) adoption of open standards and commodity hardware components and interfaces.

SCO and Microsoft could have only dreamed of patent trolling as extensively as Apple are right now (with the full support of the public, no less).

Comment by charlie

Tue, 18 Sep 2012 14:05:43 EDT

so, shorter D.A. The current law suggest the paten troll's claims are invalid, but the transactions costs remain high enough it is cheaper to settle than fight them.

Comment by Jasper

Tue, 18 Sep 2012 13:48:50 EDT

Quite honestly, the Apple-Samsung battle is our best chance of getting the public interested in the insanity of the current patent system.

IMHO the biggest problem is the low border for non-obviousness that the USPTO maintains. Apples 'slide-to-unlock' is a good example. How else would one wake up a touch-screen device?