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E-bay pays $35million in patent case

http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030528/ap_on_hi_te/ebay_lawsuit_12

Hmmm... I don't what say.  Patents are ridiculous.  Especially software patents. 

Hey! Maybe an online auction service would be cool?  I think I'll write one.  Hey! Maybe a website content management system would be cool, I think I'll write one. 

Honestly how can you patent these things.  They are sofware.  Anyone can write them.  Even the ideas are generic in nature.  Hey! I wrote another messenger program!  Oh yea!  Who cares?  Know what I'm saying?

November Rain
Wednesday, May 28, 2003

printf("Hello World!");

Patent Pending

Mark Hoffman
Wednesday, May 28, 2003

I tried to read one of the patents. Could make sense of much of it. But it sounded like it could be almost anything as it talks about barcode scanners, and all kinds of stuff, most of which I'm not aware of having anything to do with eBay.

The word auction and web does crop up so I guess, this is why eBay was judged to have infringed.

Some problems I have with the patenting system, aside from the general issue
- Connecting existing components together seems to be patentable in the US (database, web server, bar code scanner, printer). Of course there is "glue" software req'd, but is it really novel or even an invention in the commonly used sense?
- Is there enough information in the patents for somebody to create another one of this invention once the patent expires without having to whip up lots of their own stuff? I think any patent which does not include sufficient info for this should be automatically denied, as the purpose of the patent system is supposed to allow a monopoly for limited time in returning for making the underlying knowledge public domain.
- Are patents specific to a particular invention or a whole class of possible inventions?  I think you should be able to patent a new design for a paperclip, not the ideal of using a metal fastener to hold papers together.  So class type patents should be denied IMHO.
- Is it really novel, as opposed to simply moving people did offline (auctions) or even online in other forms (auctions on usenet, BBSs?).  Again, I think any patent not sufficiently novel should be automatically denied.

S. Tanna
Wednesday, May 28, 2003

> Could make sense of much of

should be

Could NOT make sense of much of

S. Tanna
Wednesday, May 28, 2003

1. Our patent system seems to be completely out of control.  The office has taken the position that its not their responsibility to examine prior art - that prior art comflicts are to be worked out in the court system.  The litmus test for obviousness at one time was "would it be obvious to one skilled in the art".  It appears that nothing is obvious any longer.
2. The jury box is filled with working men and women who've been oppressed by the system.  If not for their guilds and unions, they'd be slave labor for the _the man_.  Its the violence inherent in the system.

No, I haven't read the claims - and I don't intend to.  I already know how they'll read: the guy invented apple pie, electric mixers, sliced bread and all virtual forms thereof.  He'll be suing you next because _his_ dog crapped on your lawn.

Nat Ersoz
Wednesday, May 28, 2003

It seems to me that one possible solution to this (apart from the US patent system dropping into line with the rest of the world and excluding algorithms from what is patentable) would be to have a variable length of time that a patent applies for. Currently an anti-cancer drug, which may have taken ten years and tens of millions of dollars to develop, has a length of patent exactly the same as an idea for a web button which could have been developed in an afternoon. Wouldn't it be more sensible to give the web button a patent of a year or two (after all, these ideas are worth something) and the cancer drug twenty or thirty years?

David Clayworth
Wednesday, May 28, 2003

I did a project for a guy that held about 80 patents. All you have to do to get a patent is fill out paper work. You do not even have to have a finished product, system, application, ... etc. Just the idea is necessary, then you draw a picture or explain what the product will do. 

Operator
Wednesday, May 28, 2003

I hope Ebay spends some money on PR about this, so the general public is aware of the issue. If it becomes news, then other legal scholars might weigh in and provide some influence on the appeal decision.  This is something that could affect lots of people directly, many small bussinesses can only exist because of Ebay. If Ebay can get their users to take up this cause, they could change the story, right now you have the poor tiny bussinessman lawyer against a big powerful company. If you show lots of grandma's who won't be able to sell their dollies on the internet anymore, that could get  lots of news coverage, and hopefully more attention by lawmakers.

Bill
Wednesday, May 28, 2003

This particular "poor tiny bussinessman lawyer" also I think has or had patents claims against Priceline, Overture and others.

S. Tanna
Wednesday, May 28, 2003

The problem is not software patents in general.  The problem, as Nat said, is that the patent office is not upholding their part of the burden.  "Obviousness" and prior art are supposed to invalidate a patent.  Unfortunately, the patent office doesn't seem to care about this anymore.

Mike McNertney
Wednesday, May 28, 2003


And yet another case of people using the legal system to extort and steal from those who have money.

Wanna get rich? Follow these simple steps:

1. Find a scumbag lawyer. Shouldn't be hard. 99% of lawyers qualify.

2. Find a rich person or company.

3. Sue them for anything. It doesn't really matter what. Make up something. Your lawyer will be glad to help you fabricate stories, damages, etc.

4. Be patient. Since this is the latest Get Rich Quick scheme, it will take some time for your case to clog up the court systems and the victim to get tired of you. Eventually they will settle after your litigation costs enough money.

Act now! Potential targets are quickly going bankrupt or moving out of the United States! Sue fast while there are still a handful of targets left that are stupid enough to do business in the US.

Shakespeare was right. Kill 'em all.
Wednesday, May 28, 2003

I think some of you are acting on irrational hatred of lawyers here.  Yes a lot of ridiculous software patents were issued in recent years.  As a result, the patent office is being far more careful and it is much harder to get one now.  The European union will no longer accept software patents.

There is a need to protect intellectual property of some kinds.  There are certain projects which would never get out of development stage if the inventor assumed that as soon as the public saw how useful it was, a large company would steal it.  This situation in fact greatly contributed to the death (or at least coma) of the desktop software industry back in the 1990s.

For the person who thinks you can patent an idea, I am fairly certain you are wrong.  When you submit a patent you must submit the best execution of your idea in such a form that someone skilled in the art could produce a working version.

As for the concept of obviousness, I think this is the biggest problem.  Recently (and it is only recently) the bar was just set too low.  My thinking, the spreadsheet was not obvious (but of course software wasn't patentable back then), one click ordering certainly is.

It used to be that to patent software it had to be attached to a physical process, like an embedded program which optimizes a fuel injector.  Not so any longer.

I'm not really sure what the solution is.  Some software needs patents and with others it is just a drag on innovation

Erik Lickerman
Wednesday, May 28, 2003

While I think there is sufficient intellectual property protection in copyright and trade secrets for most secret

Build an app to do X, your source is copyrighted, and for closed source apps would also be covered by trade secrets

If somebody else does a similar app to X, they have to independently create their own source to do X-like stuff.

There is no reason I can see why independent implementations of an idea in software need to be patented, as
(a) usually most of the effort is coming up with the source, bug fixing it etc (copyrighted source)
(b) usually little of the effort is involved in coming up with the idea of doing X in the first place.

Software patents typically cover "doing X".  It doesn't matter if somebody else's implementation is internally completely different (as would automatically be the case for non trivial apps independently produced), they are still judged to have infringed.  Thus the software patent although intended to cover an invention, ends up covering the idea of doing X.

Here are two example comparisons of why I think this is a case

1. If a patent was for a new type of paperclip it would say designed like this, made from that etc, purpose holding papers together.  A different design for paperclip would not infringe as it merely has a similar purpose but different technologies. 

However in software, the patent usually describes the purpose and very vague elements of the design

Thus an independently produced software, which shares a similar purpose and broadly similar design elements (e.g. both use industry standard products like barcode wands and databases), it is judged to infringe, no matter how internally different it really is.

2. If a patent was for a cancer drug. It would specify the formula of the drug, what the disease is for etc.  When the patent expires any chemist can make the drug.

If software could cure cancer, the patent would say "it cures cancer", "uses a network and database", all vague except the purpose.

Another piece of software to cure cancer, even though totally internal different, infringes because of the vague claims in the patent.

Furthermore, unlike the cancer drug, for the cancer software - after the patent expires - there is not enough info in the patent to create a new version  without effectively making an independent implementation - as the patent probably doesn't include the source code, just the vague concepts of curing cancer, using a network, etc.

S. Tanna
Wednesday, May 28, 2003

"It used to be that to patent software it had to be attached to a physical process, like an embedded program which optimizes a fuel injector.  Not so any longer."

This is correct.  I've patented hardware designs for my prior employers, and this was always requisite.  We always avoided the term algorithm (even though algorithms were put into hardware) and instead described the physical implementation.

So my question is: when did the office change to rules, and why?  Again, used to be, we were scrutinized against prior art - so much so that only 1/2 of our applications made it through the process.

Nat Ersoz
Wednesday, May 28, 2003

S. Tanna - I agree with you, precisely.

Here is one example (real life) for discussion:  There was a patent, back in the 80's, for displaying the menuing system of a VCR on the consumer's TV set.  Prior to On Screen menues, the functionality was implemented as buttons and LED's on the front of the VCR.

So the question: should that idea have been granted a patent?  The application was granted, and was one of the hugest money making patents in a billion dollar/year portfolio for some time. 

I think this and perhaps RSA public/private key are 2 patents which help divide the waters on what is/is not a patentable idea.

Also, side note: biotech & agriculture have gone completely off the deep edge, when they can patent characteristics which occur in nature without human intervention.  Perhaps leave that out of the topic - too bizarre.

Nat Ersoz
Wednesday, May 28, 2003

One thing I wanted to point out that it seemed some people may not realize.  A patent doesn't just protect a particular process.  It protects the product itself.  If someone else, completely independantly, comes up with the same idea and implements it (in a totally different way), that still violates any patents on the idea.

For example, if I patent a particular drug, and someone else develops the same drug on their own using a completely different process (and without knowledge of my patent), they are still in patent violation.

I say this because someone was mentioning that the actual code is what should be patented, not the idea or the product as a whole.  This is actually not how patents work at all.  Yes, the implementation must be included in the patent so that others can reproduce it later, but the patent is on the idea/product itself, not the implementation.

I think the problem is not with software patents.  I see no reason why software should not be afforded the same protections as any other creation.  The problem is that patents are not appropriately applied, due to the failure in enforcing the "obviousness" and "prior art" clauses of patent law.

I think part of the problem also is that with software, there is a problematic distincton between an idea and a particular implementation of that idea.  What I mean is this.  You can't, for example, patent "a drug that cures cancer."  You can patent a *specific* drug that you have created.  With software, patenting a specific implementation (say, "ebay" or "yahoo") is pointless, because exact duplication of that implementation is all but impossible without violated copyright.  So, people instead patent "online auction" or whatnot.  I agree this is a problem and this may be the core distinction between software patents and other patents.  We need a way for people to protect their inventions that falls between the too generic ("online auction") and the too specific ("ebay").

Mike McNertney
Wednesday, May 28, 2003

Mike -

Processes can also be patented, and this is actually the basis for algorithm (e.g. RSA, LZW) patents. Software is quite unique in that it may be covered by both copyright and patent protection.

Devil's Advocate
Wednesday, May 28, 2003

Sorry, I didn't mean to imply that a process can't be patented.  I just meant that normal patents dont *just* protect the process, but the final product as well (regardless of how the product was produced).

Mike McNertney
Wednesday, May 28, 2003

Normal patents protect the process and the final product, but unlike software they don't protect the purpose of the product.  If somebody patents a drug to cure AIDS, you can't produce that particular chemical compound without their permission, but you could still create a different compound that cures AIDS.

But for some insane reason, an independent program that does the same thing as a patented program could be found to infringe, even it was written in a different language using different algorithms.

T. Norman
Wednesday, May 28, 2003

And of course, we can bet that there was not one single technically savvy person on that jury.

T. Norman
Wednesday, May 28, 2003

I believe E-Bay was ordered to pay by the jury but they will appeal.  It is quite possible that the decision will be thrown out by the appeals process.

I think there should be some requirement that the person applying for the patent actually do something with it.  The purpose of patents was to encourage an inventions by protecting them for a while.  As far as I know the patent holder in this case did not start a business using this patent.  If you are not using the patent, how are you damaged?

John McQuilling
Wednesday, May 28, 2003

Patent laws differ from country to country. In Spain for example they only used to protect process so Spanish drug companies used to produce the same drugs by slightly different means. It is to prevent that presumably that US law protects the product to some extent.

In general I wonder if we would not be better off without any copyright or patent laws at all, certainly with regard to software. Neither seem to be  fulfilling their original purpose of encouraging the arts and sciences. They seem more akin to some kind of feudal levy by the parasites on the productive classes, providing employment only to a vast army of lawyers who act as medieval tax collectors.

I have no doubt that if humans ever reproduce by cloning the future Bill Gates will be claiming droit du siegneur on your daughters.

Stephen Jones
Thursday, May 29, 2003

Relevant problems in order of 'bigness':

Specific problems w/ patent office not properly considering 'prior art' or 'obviousness' clauses in own mandate.  Sub problem of 'use'  is analogous to other similiar property rights issues ala eg. sitting on unsubstantiated mineral rights etc.  Answer: proper funding & management of patent office on fee for use basis.

Vexatious litigation w/o much downside for lawyers.  Impact is collosal but remedies are available if somewhat fraught.

Archaic property rights legislation out of step with science, technology, economics.  Esp. historical notions of copyright for works of art & patents for 'invention' both being inappropriate for works of 'discovery' - esp. biology.  Perhaps solvable with enlightened legislation.  Tough politically.

Juries not of one's peers.  What should the standard of competence to weigh in be?  Tricky.

Whole market economy ill suited to recognizing / rewarding / compensating / motivating / exploiting effort in Intellectual Property or anything but widgets w/o economic 'externialities'.  I don't want to dispense w/ markets, just consider the public purpose & game theory notions in deciding how 'fair' auctions might work better for the common good.

Distribution of power on earth ill-suited for disinterested discussion of any of the above.

''''''''''''

So, I think it's unlikely that we're going to resolve any of this for good and all on Joel's forum, but I am pleased to hear others are irked by the EBay lawsuit.

John Aitken
Thursday, May 29, 2003

I still say shoot the lawyers. They are the only ones to profit from this.

http://discuss.fogcreek.com/joelonsoftware/default.asp?cmd=show&ixPost=38469

Ebay has to fight it all the way, otherwise it sets a very dangerous precidence, and could leave them exposed to even more damages and litigation.

While I think they will eventually triumph, the legal fees are not going to be insignificant.

tapiwa
Thursday, May 29, 2003

I'd sure like to give Thomas G. Woolston a beating with a sack of rusty doorknobs.  Is this the same dumbf#ck who's attempting to sue every online ecommerce site because he claims he holds patents for ecommerce?  Man this kind of sorry a$$ loser bullsh*t really pisses me off.  I'd really like to sodomize this clown with a jagged pool cue.

Guy Incognito
Saturday, May 31, 2003

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