14 replies to this topic

[Sappharos]

Occasionally while researching means to an end, you stumble across something like this: a patented algorithm. This applies to the following: http://en.wikipedia..../Marching_cubes.

So, logical methods can be copyrighted; flagged as someone else's territory. The only efficient way to do something turns out to be illegal in itself.

And what's more, in the final paragraph: "While the invention has been described in detail herein in accord with certain preferred embodiments thereof, many modifications and changes therein may be effected by those skilled in the art. Accordingly, it is intended by the appended claims to cover all such modifications and changes as fall within the true spirit and scope of the invention."

I have a few questions:

1) How likely is it that the owner of the patent will sue a popular company which uses a patented method, or an obscure company which uses it?
2) How much damage can a successful claim on their part do?

Thanks,

Matthew Rule

[kunos]

software patents should suffer a slow and painful death.

[frob]

Both of the questions are unknowable in advance.


On the likely hood of suing and being sued, Marching Cubes algorithm was strongly enforced in academic circles and was big source of contention.

Or consider the LZW compression patent held by Unisys. Originally the patent was broadly licensed. Not knowing about the patent, CompuServe used the compression method in their .gif file format. The file format gained popularity, and online service providers and image editor developers were asked to pay license fees. There was significant confusion about who was required to pay and who was not, and there were many small hobby projects and small shareware image editors that were asked to pay the fee, even though it was relatively large for them. The patent has since expired, but the fallout of their decisions continues to this day.


As for damages that can be successfully claimed, that is entirely up to a judge involved in a case that goes to court.

[Tom Sloper]

Sappharos, on 07 February 2012 - 10:47 AM, said:

So, logical methods can be copyrighted

No. They can be patented, but not copyrighted.

[SimonForsman]

And ofcourse, the easiest way around software patents is to simply not distribute your software in the countries with broken patent systems. (Software patents by themselves aren't all that bad, it only becomes a real problem when they are granted for insanely obvious things that you are likely to come up with on your own)

[swiftcoder]

SimonForsman, on 07 February 2012 - 12:44 PM, said:

And ofcourse, the easiest way around software patents is to simply not distribute your software in the countries with broken patent systems.

Just as long as you don't mind writing off most of North America and Europe as potential markets

[mdwh]

SimonForsman, on 07 February 2012 - 12:44 PM, said:

And ofcourse, the easiest way around software patents is to simply not distribute your software in the countries with broken patent systems. (Software patents by themselves aren't all that bad, it only becomes a real problem when they are granted for insanely obvious things that you are likely to come up with on your own)

Whilst it's true that the particularly bad problems come from being granted to things that many developers would independently come up with, I think software patents have some additional issues specific to software:
* Software is already covered by copyright. Whilst an algorithm isn't, it's not like someone can just copy your work (if the source is even available), they have to reimplement it. Unlike a piece of hardware where you could look at every single component and copy it bit by bit.
* The argument for things like drugs patents is the billions it costs to invest - yet software can cost far less, even just a single person writing code for free. This also means that required legal costs to have a lawyer check your code are higher in proportion for software.
* A patent on algorithms seems to me a patent on mathematics.

Software is also arguably in a younger stage that other areas of engineering, and also has a fast rate of progress such that 20 years can have a stifling affect. Much software is dependent on earlier concepts, so a patent on one thing can be a big problem - it's like patenting the screw, or if important bits of mathematics were covered by patents.

swiftcoder, on 07 February 2012 - 01:54 PM, said:

SimonForsman, on 07 February 2012 - 12:44 PM, said:

And ofcourse, the easiest way around software patents is to simply not distribute your software in the countries with broken patent systems.

Just as long as you don't mind writing off most of North America and Europe as potential markets

Where in Europe are pure software patents enforceable?

[swiftcoder]

mdwh, on 08 February 2012 - 08:14 AM, said:

Where in Europe are pure software patents enforceable?

In practice? Maybe nowhere. But as far as I can tell, there is also nowhere in Europe that specifically refuses to grant software patents. The EPO criteria seems to allow for software patents as long as they also demonstrate 'technical innovation' in the traditional sense.

[Servant of the Lord]

Sappharos, on 07 February 2012 - 10:47 AM, said:

1) How likely is it that the owner of the patent will sue a popular company which uses a patented method, or an obscure company which uses it?

Depends on the company. Some companies collect and purchase (incredibly stupidly broad) patents for the sole purpose of extorting large fees from companies that 'infringe' on those patents.

Quote

2) How much damage can a successful claim on their part do?

Loads. It can cause the collapse of small companies.

The United States patent office didn't want software algorithms to be patentable, but were forced to when companies leaned on the US government which leaned on the United States patent office, and suddenly we have a MAD (mutually assured destruction) arm race of patents, where large companies are snapping up as many patents as possible to defend against other large companies, and to threaten, extort, and suppress smaller companies.

Remember that in America, you don't have to be in the wrong to go bankrupt by a lawsuit... the trial alone is enough, that you might never survive to see the verdict. Corporations with large cash reserves can take advantage of this, having long drawn out lawsuits until their opponents run out of money, regardless of whether they did a single thing wrong or not. (Note: I am not a lawyer, so I may be mistaken about all this. This is just my armchair view of software patents and lawsuits)

Intellectual Ventures
Listen to this: "When patents attack"

[mdwh]

swiftcoder, on 08 February 2012 - 08:49 AM, said:

mdwh, on 08 February 2012 - 08:14 AM, said:

Where in Europe are pure software patents enforceable?

In practice? Maybe nowhere. But as far as I can tell, there is also nowhere in Europe that specifically refuses to grant software patents. The EPO criteria seems to allow for software patents as long as they also demonstrate 'technical innovation' in the traditional sense.

Yes, I believe it is that they can be filed, but not enforced - at least, it's something that comes up in the news every so often about EU politicians voting on the issue, and I don't think this has changed yet (although I may be out of date).

(Not that I'm saying EU is perfect on this front, what with the whole blocking the Samsung Galaxy tab thing...)

[swiftcoder]

mdwh, on 09 February 2012 - 07:22 AM, said:

Yes, I believe it is that they can be filed, but not enforced

Patent enforcement is as much about whether you can afford to defend a patent infringement suit as it is about the legality thereof.

<anecdote>

A friend of mine had a medium-size business selling a novel kind of anchor to yachtsman. He was sued by a major manufacturer of anchors, for patent violation - which he fought successfully, and even broke their patent in the process (by locating prior art). Unfortunately, it didn't do him any good: by the time he won, the legal fees had bankrupted his business and he was forced to close shop and cede the market anyway.

</anecdote>

[samoth]

Quote

Quote

Just as long as you don't mind writing off most of North America and Europe as potential markets

Where in Europe are pure software patents enforceable?

Nowhere, not even here in Naziland where every shit (even playing a song from a CD that you paid money for in your work place) is regulated, charged, censored, enforced, and criminalized. Incidentially, the enforcability of software patents was on the table the week Poland joined the EU, and the first thing Poland said was "no way, are you kidding us" (thank you, Poland!) after which the totally braindead prospective law was put "back to discussion" (which means something like "probably 10 years").

Though as a patent troll, you can of course go through the shady backdoor of an implementation of a technically innovating business process, and some countries will even allow someone to sue a solely-EU person or company in the US, after US law, and be liable in Europe. Which is truly nonsense, but entirely possible

[bschmidt1962]

A couple other points..
In your question about damages... there's a difference between inadvertent infringement and willful (you knew there was a patent and did it anyway). For willful infringement, courts (in the US) can award triple damages. That's why many big companies tell their engineers to NEVER research to see if what they're doing is already patented.

Also, if you are sued, there are two basic defenses:
1) non-infringement-- That's making the case that you aren't actually infringing.
2) showing their patent to be invalid (prior art, obviousness, etc.)

1 is the easier case to make-- the presumption is that you are NOT infringing and it is incumbent upon the other party to prove to the court that you are infringing. Sort of "innocent until proven guilty."
2 is harder to make-- there it's opposite-- the presumption is that the patent is valid (since it was granted). it is up to YOU to prove that the patent is not valid and shouldn't have been granted in the first place.

Brian Schmidt
Brian Schmidt Studios

[mdwh]

swiftcoder, on 09 February 2012 - 08:58 AM, said:

mdwh, on 09 February 2012 - 07:22 AM, said:

Yes, I believe it is that they can be filed, but not enforced

Patent enforcement is as much about whether you can afford to defend a patent infringement suit as it is about the legality thereof.

<anecdote>

A friend of mine had a medium-size business selling a novel kind of anchor to yachtsman. He was sued by a major manufacturer of anchors, for patent violation - which he fought successfully, and even broke their patent in the process (by locating prior art). Unfortunately, it didn't do him any good: by the time he won, the legal fees had bankrupted his business and he was forced to close shop and cede the market anyway.

</anecdote>

Has this happened in the EU? I mean, by "enforced" I mean that I'm not sure they have any legal standing whatsoever (and filing is presumably in case this changes later on). I may be wrong, but would be curious to see details on the law change.

Of course anyone can sue you for any reason they like and that might cause you problems even if it's completely bogus. But that doesn't mean you should write off Europe as a market as you originally said. I mean, why just Europe? You could be sued in other parts of the world. Why just patents? Someone could sue you for any reason, but that's not a reason to not engage in business.

(Although yes, I take the point that if the EU allows things like the Runescape trial to happen, where as other parts of the world don't, then it's still a pretty bad state of affairs.)

[swiftcoder]

mdwh, on 14 February 2012 - 10:42 AM, said:

But that doesn't mean you should write off Europe as a market as you originally said.

I never said that.

SimonForsman suggested that you can avoid all regions with dubious patent laws. It's simply not feasible - cutting out the States already loses a good 50% of one's potential market, and it's far from the only country to have dubious legal systems with regard to patents...