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Google Takes a Small Step in Lodsys Patent-Troll Case

timothy posted more than 2 years ago | from the when-does-the-rubber-band-snap? dept.

Android 83

The Lodsys saga continues; reader WyzrdX writes with this excerpt from Wired: "Google has intervened in an ongoing intellectual property dispute between smartphone application developers and a patent-holding firm, Wired.com has learned, marking the Mountain View company's first public move to defend Android coders from a patent troll lawsuit that's cast a pall on the community. The company says it filed a request with the United States Patent and Trademark office Friday for reexamination of two patents asserted by East Texas-based patent firm Lodsys. Google's request calls for the USPTO to assess whether or not the patents' claims are valid."

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one small step (-1)

Anonymous Coward | more than 2 years ago | (#37079692)

But why did it take so long, and quite frankly, so what? Others have already petitioned the USPTO to recheck the validity. Were they too busy fingering their assholes or something?

Patents (0)

zget (2395308) | more than 2 years ago | (#37079694)

This after Google themself take a broad patent like this [slashdot.org] ?

Patents are a bad idea and everyone is just getting them to sue other companies.

Re:Patents (0)

Anonymous Coward | more than 2 years ago | (#37079730)

I agree completely. Patents are not needed anymore. They must go away.

Re:Patents (4, Insightful)

NoNonAlphaCharsHere (2201864) | more than 2 years ago | (#37079838)

There's nothing wrong with patents for things you can hold in your hand, it's the software and business-method patents that never should have been allowed in the first place, and need to go away.

Re:Patents (1)

Anonymous Coward | more than 2 years ago | (#37079892)

What's the difference? They all monopolize ways of doing something. If you want to have cleaner exhausts, patents on catalytic converters mean you can't build catalytic converters without paying royalties. If you want to move your customers through your web shop with less obstructions, then you can't build a one-click shopping system without paying royalties.

If we're going to accept that intellectual property exists, then software patents are just as legitimate as hardware patents, and owning intellectual property for the sake of investment is just as legitimate as owning intellectual property alongside manufacturing capability. It's the fundamental concept that's wrong, not its application to just some arbitrary subset of market segments.

Drug patents (4, Insightful)

tepples (727027) | more than 2 years ago | (#37079780)

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Re:Drug patents (5, Insightful)

ColdWetDog (752185) | more than 2 years ago | (#37079816)

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

As much as I think the patent system in the Pharmaceutical industry has been misused (Omeprazole vs. Esomeprazole) [wikipedia.org] comes to mind, at least they are patenting a molecule, or a change in a molecule. A substantial thing. As in something of substance.

Software patents are all too often patenting vague hand waving processes or ideas. Usually just one brain cell shy of completely obvious. Hot air and lawyer drivel.

Re:Drug patents (1)

Anonymous Coward | more than 2 years ago | (#37080168)

Software patents are all too often patenting vague hand waving processes or ideas. Usually just one brain cell shy of completely obvious.

And you've just hit the nail on the head as to why so many of these seemingly obvious ideas are being granted patents by the USPTO. No brain cells.

Re:Drug patents (2)

mislam (755292) | more than 2 years ago | (#37079828)

Nobody is talking about Drug Patent here. This is related to software patent. Especially the ones which the patent hold never implemente nor has any plan to implement. Those patents stifle competition and innovation. Kapeesh?

Re:Drug patents (0)

migla (1099771) | more than 2 years ago | (#37079850)

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Socialism?

Re:Drug patents (2)

Pharmboy (216950) | more than 2 years ago | (#37080218)

Socialism?

Name an example of where that is actually working with the pharm industry....still waiting....

Like Capitalism, Socialism is not the answer to every question.

Re:Drug patents (0)

greenbird (859670) | more than 2 years ago | (#37080510)

Name an example of where that is actually working with the pharm industry....still waiting....

Name one example where capitalism is working in the pharma industry. Hell, name a place where capitalism exists in the pharma industry. It might be nice to give at least some form capitalism a try. Sure as hell couldn't be any worse than the corporate totalitarianism system currently in place.

Re:Drug patents (2)

larry bagina (561269) | more than 2 years ago | (#37080690)

generic drugs.

Re:Drug patents (1)

greenbird (859670) | more than 2 years ago | (#37080798)

generic drugs.

Yup, that works. But only after at least 20 years (often more) of extortion level pricing that puts a great many peoples health at risk especially lower income people who can't afford to pay off politicians to pass laws allowing them to get rich extorting money from people by threatening their lives.

Re:Drug patents (1)

Pharmboy (216950) | more than 2 years ago | (#37081552)

You only prove my point. A "generic" drug, by definition, is one that has been patented, exclusive, and profitable enough to fund research on other drugs. In a socialist system, no drug would ever by "generic" because no drug would be "exclusive". In other words, there would be no financial incentive for any company to invest in new drugs, only the govt. and currently, the majority of countries can't even pay the bills they have now, no less invest in new drugs.

Seriously, do YOU want politicians deciding how much to invest in drugs? The same dumbfucks that can't agree on anything except to spend more money in their own districts? No thanks, compared to them, the drug companies look like angels.

Re:Drug patents (2)

CharlyFoxtrot (1607527) | more than 2 years ago | (#37084040)

One example ?Jonas Salk [wikipedia.org] , a very bad capitalist and a wonderful human being :

"In 1947, Salk accepted an appointment to the University of Pittsburgh School of Medicine. In 1948, he undertook a project funded by the National Foundation for Infantile Paralysis to determine the number of different types of polio virus. Salk saw an opportunity to extend this project towards developing a vaccine against polio, and, together with the skilled research team he assembled, devoted himself to this work for the next seven years. [...] His sole focus had been to develop a safe and effective vaccine as rapidly as possible, with no interest in personal profit. When he was asked in a televised interview who owned the patent to the vaccine, Salk replied: "There is no patent. Could you patent the sun?"[4]"

Image if the bastard who developed AIDS anti-viral drugs had the same attitude.

Also you've got what's known as the "kiwi-model" of New Zealand [australianprescriber.com] where the government acts as the purchaser of medicines, forcing manufacturers to give better deals :

"The Pharmaceutical Management Agency of New Zealand (PHARMAC), which was established in 1993, uses a capped national medicines budget, along with a variety of supplier contracts, to purchase medicines. The contracts include rebates on list prices, tendering for off-patent drugs, and bundle agreements where PHARMAC may list expensive new drugs in return for the manufacturer discounting the price of other products it supplies."

Re:Drug patents (1)

Pharmboy (216950) | more than 2 years ago | (#37086122)

Yet he did this in a capitalistic system, he just chose to not capitalize on his "invention". And not to rag on any other country, but the greedy ass American model is surely not perfect, but not sure if New Zealand is leading the industry in new life saving drugs.

I don't think that the system works best if EVERYONE was either socialist or capitalist, but good old fashioned greed is a useful tool to get people to invest in something that is a long shot. Greed is often a very useful tool, even if ugly.

Re:Drug patents (1)

CharlyFoxtrot (1607527) | more than 2 years ago | (#37087056)

Yet he did this in a capitalistic system, he just chose to not capitalize on his "invention". And not to rag on any other country, but the greedy ass American model is surely not perfect, but not sure if New Zealand is leading the industry in new life saving drugs.

Just because a model is dominant doesn't make it good. For an example look at the American model of banking that has swept the world and caused (and continues to cause) mayhem everywhere. Besides that, New Zealand has a population of 4,5 million people compared to 210 million for the US so there's a significant difference in resources.

I don't think that the system works best if EVERYONE was either socialist or capitalist, but good old fashioned greed is a useful tool to get people to invest in something that is a long shot. Greed is often a very useful tool, even if ugly.

Greed has its use and I'm not even opposed to people profiting from what they've developed, but it has to be in proportion to the risk taken/investment made. Especially in a sector as critical to humanity as a whole as medicine there can't be an expectation of a perpetual gargantuan payout, there has to be a humanitarian factor too. So greed, yes, but greed constrained.

Re:Drug patents (1)

Pharmboy (216950) | more than 2 years ago | (#37102978)

Not to nitpick, but we are over 310 million, not 210 million.

And now to nitpick: The "greedy ass American model" isn't exclusive to America, nor do we own a patent on it. I know it's hip to think that all Americans are greedy fucks, but really, we aren't as one dimensional as you make us out to be. Plenty are, but most Americans are more concerned about family time than making more money. I'm not one of them, but most are that way.

And "greed constrained" is problematic, in that the people who are in charge of "constraining" are typically politicians, who ARE the greediest fuckers in America. Proverbial "fox guarding the hen house", who would make it too easy for billionaire friends to get waivers, on the backs of small business. Like our tax system. I'm glad if that works in your country of 4.5 million, but in one of 310 million and a multi-trillion dollar budget, politicians can't be trusted. Enough so that while I'm against the death penalty in general, I'm in favor of keeping it if it is limited to being used on corrupted elected officials.

Re:Drug patents (1)

Demonoid-Penguin (1669014) | more than 2 years ago | (#37080564)

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Pharmaceuticals is probably the most profitable legal industry. Development costs compared to return are trivial compared to other industries like car manufacturers. Are pharmaceutical companies patenting ideas to are they? Patenting a manufacturing process - or a new variation of a product is a strawman when used to argue for patents on software "ideas". Patenting ideas is patenting the reworking of existing products - like building a house out of bricks and mortar then trying to patent the idea of building a house out of bricks and mortar. Why should development risks be removed *some* industries - if it's so critical to the planet maybe their should be strict accounting of the development costs, and if the product proves useful the development costs can be refunded. There right, wrong, and legal. Then there's naming a price people don't want to pay - guess what happens when people want something they can't afford, and want it a lot? (laws or no laws). Do you think Lily pharmaceuticals has regained their investment in methadone yet? Don't get me wrong - I'm all for business making a profit, but business monopolies (which patents are being misused for) are bad for Business, which is not good for the majority of people

Re:Drug patents (1)

sjames (1099) | more than 2 years ago | (#37080898)

Spending 5% of the money they will later use to carpet bomb us with ads for the drug?

Re:Drug patents (1)

hairyfeet (841228) | more than 2 years ago | (#37081250)

Simple: Drug company presents its books with the costs required to make the drug, test the drug, etc and after it has been verified that it is so then the company is given a flat percentage of each sale until it reaches cost + 40%. It isn't like you can buy most drugs without prescription and this would allow them to make a standardized amount before the drug becomes generic without costing lives.

Re:Drug patents (1)

tepples (727027) | more than 2 years ago | (#37081790)

Drug company presents its books with the costs required to make the drug, test the drug, etc

That's not necessarily predictable. A lot of compounds that a drug company's R&D department tries don't end up actually working in mice, let alone humans.

Re:Drug patents (1)

realityimpaired (1668397) | more than 2 years ago | (#37082152)

A lot of the compounds that drug companies even consider testing get run through simulations on computers long before they're ever actually synthesized in quantities large enough to test. The days when developing drugs meant synthesizing a compound, giving it to a mouse, and if it didn't die, looking deeper into commercializing it are long gone.

Re:Drug patents (0)

Anonymous Coward | more than 2 years ago | (#37082990)

Even if the computers sort out 99% of the shit that gets thrown into them, the simulations aren't perfect. Eventually someone synthesizes the compound and sticks into a mouse. The system hasn't changed. It's just gotten a hell of the lot more efficient.

Re:Patents (5, Insightful)

Lysander7 (2085382) | more than 2 years ago | (#37079786)

Except Google doesn't use them offensively to stifle other companies.

Re:Patents (0)

iluvcapra (782887) | more than 2 years ago | (#37080928)

Re:Patents (0)

Anonymous Coward | more than 2 years ago | (#37081158)

Did you even read the article you're linking to? They're fighting against dumb patents in that article, too.

Re:Patents (2)

copsi (2429192) | more than 2 years ago | (#37081704)

According to that article, that particular case had nothing to do with Google's patents. It was in fact company called Traffic Information that sued several companies producing web street maps. Google became involved when Traffic Information notified T-Mobile that Google Maps traffic feature was infringing their patents.

Re:Patents (5, Informative)

tepples (727027) | more than 2 years ago | (#37079820)

This after Google themself take a broad patent like this [slashdot.org] ?

It's not as broad as you might think. The patent applies only to "a broker computer system independent of the shipper and a merchant", not one where the merchant's system directly uses the shipper's web service, and especially not one that uses a table from the warehouse ID and the destination postal code prefix to the expected transit time.

Re:Patents (0)

Anonymous Coward | more than 2 years ago | (#37080126)

If you think this is bad you should read about the Apple-Samsung dispute in the EU! Apple submitted some rough sketches of a device that looks like a tablet, in fact ALL tablets, and claims that is infringement! They were submitted 2 years or so before the iPad was even released! It's called Community Design or something like that. If upheld, Apple will be the exclusive tablet seller in the whole EU!

Re:Patents (1)

Midnight Thunder (17205) | more than 2 years ago | (#37080688)

I wouldn't say patents are bad, it's just this whole new class of flimsy patents. Hardware patents make more sense than software patents because they are generally harder to come up with and more expensive too.

Re:Patents (0)

Anonymous Coward | more than 2 years ago | (#37081454)

Hey, shill. Missed first post by a minute, I see. Too bad you posting at 0. I guess it's about time to retire this uid and start again.

Ice Cream Sandwich (2)

backslashdot (95548) | more than 2 years ago | (#37079756)

I think the next version of Android ... Ice Cream Sandwich is going to be fully vetted for patent claims.

That's their strategy .. I think. So far, all the patent claims against Google that I have seen have simple workarounds -- so it's logical that Google is stripping it all out of Ice Cream Sandwich.

The Lodsys patent workaround is a pain in the ass.. not to mention totally bogus .. so they need to invalidate it.

Nobody has patents on the fundamental technologies which were developed in academia and not patented (for example pinch to zoom or touchscreen scrolling/panning or zoomable UIs).

Re:Ice Cream Sandwich (4, Insightful)

Microlith (54737) | more than 2 years ago | (#37079888)

I think the next version of Android ... Ice Cream Sandwich is going to be fully vetted for patent claims.

This is impossible. There is not enough time or money to sift through all of the thousands upon thousands of software patents out there and say "our software does not violate this" to the satisfaction of everyone involved. Even if you do come to that conclusion, the patent holder could disagree and take you to court anyway, where you have to fight until the judge can say "no it doesn't violate the patent."

Re:Ice Cream Sandwich (3, Interesting)

zippthorne (748122) | more than 2 years ago | (#37080004)

If only google had access to some kind of electronic system for organizing and sifting through thousands of patents to pick out ones for further review by humans....

Re:Ice Cream Sandwich (1)

AngryDeuce (2205124) | more than 2 years ago | (#37080228)

If only google had access to some kind of electronic system for organizing and sifting through thousands of patents to pick out ones for further review by humans....

I agree, it's a shame they don't have access to any kind of search function.

Re:Ice Cream Sandwich (1)

greenbird (859670) | more than 2 years ago | (#37080532)

organizing and sifting through thousands of patents to pick out ones for further review by humans....

Give me a break. Have you ever read a patent? There's this huge disconnect in that patents are written by lawyers for things developed by computer geeks. The languages these 2 groups speak have NOTHING in common.

Re:Ice Cream Sandwich (1)

CheerfulMacFanboy (1900788) | more than 2 years ago | (#37080546)

Now all they need is a decent translator for their Language Tools that turns C into patent legalese so they know what to search for.

Re:Ice Cream Sandwich (1)

Qzukk (229616) | more than 2 years ago | (#37080682)

If only google had access to some kind of electronic system for organizing and sifting through thousands of patents to pick out ones for further review by humans....

You completely missed microlith's point. Even if you figured out every single patent that looks like your software might infringe on, and worked out ways around every last one of them, you'll still get blindsided by some troll suing you with a bullshit patent that you had no way of knowing applied. Like being sued by Lodsys because they claim that their patent on "providing feedback" covers all apps with a "buy" button.

To put it into perspective, if I have the patent on amusing cats with laser pointers, no matter what you are doing, I can sue you and demand discovery (all of your emails, source code, documentation and so on) to try and prove that whatever you're doing is violating my patent. After all, if Lodsys can redefine "feedback" however it pleases, why not "cat" and "laser pointer"? If you're lucky, the judge will throw it out before you have to spend more than a few thousand dollars in lawyer-hours. If you're not... well, that's why I'd offer to settle out of court for a few thousand dollars plus whatever my costs were.

Re:Ice Cream Sandwich (1)

Midnight Thunder (17205) | more than 2 years ago | (#37080714)

They have the technology, but when you consider the readability of patent documents, which make Latin seemingly easy to understand, you suddenly realise how easy it is to miss that someone patented something that sounds like the wheel.

Re:Ice Cream Sandwich (1)

sjames (1099) | more than 2 years ago | (#37080916)

It still wouldn't help, and that's part of why the patent system is so broken. No matter how sure the AI might be that no patent legitimately applies, a troll can still cost you millions in legal fees getting a court to agree. Even cases where there is obviously no infringement can cost over half a million dollars to litigate.

Re:Ice Cream Sandwich (2)

backslashdot (95548) | more than 2 years ago | (#37080278)

It's not that hard -- the underlying OS Linux is already somewhat vetted. Second they just need to get the Android feature list from their database and hire a small team to search each feature in the patent database. The team may be about 100 people .. each person can be assigned on average 100 features to research -- at 1 day per feature (average) .. they can finish it in 4 months. Now that covers about 10,000 features. You may think "Android has more than 10,000 features" .. is that really the case? I doubt it.

The new version of Mac OS only has 250 new features over its predecessor. The original iPhone is protected by only 200 patents. The entire LTE technology is covered by only 62 essential patents.

Re:Ice Cream Sandwich (1)

larry bagina (561269) | more than 2 years ago | (#37080458)

A smartphone might involve as many as 250,000 (largely questionable) patent claims -- official google blog [blogspot.com]

Re:Ice Cream Sandwich (1)

backslashdot (95548) | more than 2 years ago | (#37081956)

Alright, then they should hire 5,000 people instead of 100.

Keep in mind, Google has 40 billion in cash assets. And more importantly that losing even one patent claim will cost about $500 million .. so imagine what 20 to thirty would cost .. $10 billion?

So, I reckon they have a budget of $1 billion to scrub their source of patent claims.

$1 billion is enough to hire more than 6,500 contractors for 4 months with a pay of $150,000. How many of the hundreds of thousands of computer science unemployed wouldn't jump at getting $150,000 for 4 months work? Granted not all will qualify .. but it's not exactly rocket science for a college graduate to be able to read and understand patent claims while erring not he side of caution following a two week course on patents -- remember they will be able to get intelligent candidates since there are a large amount of unemployed.

Re:Ice Cream Sandwich (2)

Paradise Pete (33184) | more than 2 years ago | (#37082520)

So, I reckon they have a budget of $1 billion to scrub their source of patent claims.

I think by then they would have a non-functional phone. And trying to scrub only the "non-bogus" claims is probably impossible. I don't think it's possible today to create any useful electronic device that does not attract a stack of patent claims.

Re:Ice Cream Sandwich (1)

GNious (953874) | more than 2 years ago | (#37084104)

Alright, then they should hire 5,000 people instead of 100.

Think we could talk them into hiring 5000 people for the purpose of reviewing software patents and attempt to disqualify as many as possible? :D

Re:Ice Cream Sandwich (1)

Anonymous Coward | more than 2 years ago | (#37080998)

The problem is if the plaintiff can prove the defendant knowingly violated a patent, the plaintiff may be awarded substantially larger damages.

That means the patent search has to be absolutely air tight, and no possible misinterpretations of any existing patents. Then be willing to stand by that interpretation and defend it in court.

It's much safer (and faster!) to innovate and develop and release without ever looking at any patents, then wait to be sued, then defend against the lawsuit. Not looking for patents is a way of mitigating potential damage.

Our patent system is broken.

Re:Ice Cream Sandwich (0)

Anonymous Coward | more than 2 years ago | (#37083010)

They really only have to worry about the ones that someone like Apple or Microsoft will be able to assert. They probably care less about money than driving Android into the dirt. Make sure you don't step on their toes and you'll be fine. The other small fish are probably more interested in making a quick buck, so Google can just pay them off if it would be a pain in the ass to work around or the settlement amount is low. Like anything else, you usually don't need to be a 100%, 98% is more than good enough, and often times 90% will get you what you need.

Re:Ice Cream Sandwich (1)

davester666 (731373) | more than 2 years ago | (#37079938)

How exactly do you 'vet' something for patents? Particularly, to 'fully vet' something. There are millions of patents Google would have to go through, and then figure out, for each one, how it could be applied to Android. Then you still have to deal with recently submitted patents that haven't even been published yet.

After this process, which would take years to do, would result in a stack of patents that version of Android could/would infringe [as only a judge can definitively make that determination], Google would have to either redesign the features to work around or get a license for those patents. Because if they don't do this, it becomes willful infringement because they knew about the patents and did nothing to not infringe them, so triple damages.

Lather, rinse, repeat for every new patent as they are either submitted or granted, and for every dot release of Android.

Re:Ice Cream Sandwich (1)

Anubis IV (1279820) | more than 2 years ago | (#37081000)

So far, all the patent claims against Google that I have seen have simple workarounds

I take it you haven't been paying attention to Oracle's lawsuit against Google then? I don't see how that one has an easy workaround at this point. Had they worked around it during Android's development, sure, it'd be fine. But now? Not gonna happen.

Small step is correct -- this is too little, still (2, Insightful)

FlorianMueller (801981) | more than 2 years ago | (#37079788)

I welcome the fact that Google finally does at least something (after months of not answering related questions [blogspot.com] from affected Android app developers), and Google did a very good job so far on patent reexaminations in its dispute with Oracle [blogspot.com] .

However, these reexamination requests are of very limited use on their own [blogspot.com] . They don't change the situation of developers who get letters from Lodsys or are actually sued by Lodsys and have to decide whether to pay up or fight. Even the combination of Apple's motion for a narrowly-focused intervention (Apple just raises contractual issues as opposed to defending app developers against Lodsys's infringement assertions per se; Apple's 'exhaustion' theory could work but it's far from certain to hold water [blogspot.com] ) and Google's reexamination requests doesn't really strengthen little 'indie' app developers at this stage. Also, the Wired article pointed out that the U.S. District Court for the Eastern District of Texas grants stays pending reexaminations only in 20% of all cases. Most of the time, those federal lawsuits continue unabatedly, even though the patent may subsequently be invalidated.

Short of blanket coverage from Apple and Google, what those two platform companies do against Lodsys is insufficient. It would be great if they could give their developers some real guidance -- many right now don't even dare to implement in-app purchasing or links to an app store (Lodsys also brings assertions against links, not just in-app purchasing) because they don't want to take risks. Others have removed their apps from the U.S. market because of Lodsys (which goes after international developers, too, but can only sue them if those do business in the U.S.). Apple and Google fail to create a basis on which developers would be able to simply ignore Lodsys and go about their business.

Re:Small step is correct -- this is too little, st (3, Interesting)

gnasher719 (869701) | more than 2 years ago | (#37079890)

Apple's intervention claim is actually quite strong. They say we have a license to the patent, and the license terms mean that all developers can make use of our software implementing the patent on iOS without needing a license. If that argument flies, and it has a very good chance in my opinion, they can get rid of Lodsys at very low cost. All the judge has to do is check the license terms, which judges are much better at than checking patents. It does mean, however, that Apple doesn't help Android developers at all (but then there is no reason for Apple to help Android developers).

Google's intervention very nicely attacks at a different angle. So there may be twice the cost for Lodsys, who has plenty of work anyway with half a dozen cases against it for declaratory judgements.

'Patent exhaustion' _is_ a complex isssue (1, Insightful)

FlorianMueller (801981) | more than 2 years ago | (#37079976)

If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy [blogspot.com] to argue with the existing license agreement. I linked to that explanation before.

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.

The analysis of whether or not Apple's license constitutes 'exhaustion' of any given Lodsys patent is no less complicated than analyzing Lodsys's infringement assertions. As I explained on my blog, 'exhaustion' is a concept that requires an in-depth technical analysis of the technology that is licensed (in this case, Apple's technology) and the one that is accused of infringement (the apps) and, very importantly, how those two layers interact. This means that the court has to go through a detailed technical analysis based on so-called infringement claim charts, which typically require the construction (interpretation) of the most relevant terms used in the language of those patents.

What I just said is also supported in full by Apple's own arguments to the court for why its intervention should be admitted [blogspot.com] (Apple stresses that only Apple itself can explain how its technology works) and a letter sent to the court by Atari, Electronic Arts, Quickoffice and Square-Enix [blogspot.com] in support of Apple's proposed intervention. Those four companies also stress the importance of access to Apple's information not only regarding the license agreement but also the technology at issue.

Exhaustion defenses are very difficult to analyze. Do some research on the case law and you'll see that those mattesr are by no means less difficult to analyze than infringement assertions.

Re:'Patent exhaustion' _is_ a complex isssue (0)

gnasher719 (869701) | more than 2 years ago | (#37080010)

Didn't read who was posting. The name explains it.

Re:'Patent exhaustion' _is_ a complex isssue (0)

FlorianMueller (801981) | more than 2 years ago | (#37080016)

Didn't read who was posting. The name explains it.

That's a very sophisticated, analytical approach then :-)

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37080326)

What can we say? You've established your brand. Most people around here can see the strings, though.

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37080422)

Most people that purport to "see the strings" are really just upset that he's smarter than them. I don't see your article-length, well-sourced text on the issue? Oh, that's because you don't know what you're talking about.

Fake people bug me. You're all a bunch of sheep. Slashdot has declared that he sucks, and you all leap on the bandwagon without having any evidence thereof. The industry disagrees with you. Get over yourselves.

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37080834)

I don't see your article-length, well-sourced text on the issue? Oh, that's because you don't know what you're talking about.

If you want article-length, well-sourced texts on the issue, I suggest you peruse Groklaw, which does know what it's talking about and has a much better scorecard on issues than FM will ever have.

Re:'Patent exhaustion' _is_ a complex isssue (0)

UnknowingFool (672806) | more than 2 years ago | (#37081108)

Fake people bug me.

That's rather an ironic opinion from an AC.

Re:'Patent exhaustion' _is_ a complex isssue (1)

FlorianMueller (801981) | more than 2 years ago | (#37081310)

Thanks for this support. The fact of the matter is that the world's leading news agencies, newspapers and websites quote me regularly on these topics -- in the U.S., in Europe, in Asia, in Australia, at times even in Latin America. I furthermore have a host of financial services companies among my clients asking me for advice as they shape their investment decisions. Those audiences are obviously more important to me, and it turns out that the quality of Slashdot due to the criteria by which people vote posts up or down is a serious issue that I can't solve -- Slashdot has a lot of work to do if it wants to stay relevant.

Re:'Patent exhaustion' _is_ a complex isssue (1)

oakgrove (845019) | more than 2 years ago | (#37081488)

furthermore have a host of financial services companies among my clients asking me for advice as they shape their investment decisions.

I weep for those companies.

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37081988)

Fawning over FM's signature copypasta self-aggrandizement != relavancy.

Re:'Patent exhaustion' _is_ a complex isssue (1)

Paradise Pete (33184) | more than 2 years ago | (#37082594)

Most people around here can see the strings, though.

I've seen this type of comment several times, but it's always been in the form of a simple assertion. It may well be the case that I simply lack the sophistication to see it, but I haven't found evidence of it in his writings. I get the impression that, right or wrong, he is presenting his genuine analysis. We all have biases, and biases can unknowingly affect his thinking, but of course they can also unknowingly affect the thinking of his critics.

Re:'Patent exhaustion' _is_ a complex isssue (1)

CharlyFoxtrot (1607527) | more than 2 years ago | (#37084134)

Apparently if you have a dissenting opinion around here you must be either a) a shill, or b) an idiot. If you ask me it shows nothing but how overinflated the self-opinion is of these people who like to shout others down.

Re:'Patent exhaustion' _is_ a complex isssue (1)

gnasher719 (869701) | more than 2 years ago | (#37080344)

Absolutely. As a famous German poet said: "Ist der Ruf erst ruiniert, lebt's sich's gÃnzlich ungeniert". In English: Once your reputation is down the shitter, you (Florian Mueller) can post whatever you like.

The analytical approach: Everything that Florian Mueller posts will predict doom for Google, if at all possible, no matter whether it makes sense or not. Secondary, it will predict doom for Apple, if possible, unless this is in contradiction to the first premise. That makes it kind of pointless to actually read what you write, because the outcome is just predictable.

Re:'Patent exhaustion' _is_ a complex isssue (1)

FlorianMueller (801981) | more than 2 years ago | (#37081280)

I never predicted as much doom for Google as Google itself did on its corporate blog post recently in connection with Android and patents.

Re:'Patent exhaustion' _is_ a complex isssue (1)

Anonymous Coward | more than 2 years ago | (#37080158)

fallacy of genus. Kind of sad to see the quality of intellectual thought and argument in steady decline on slashdot, well more like plummeting in the past two years.

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37080966)

It's somewhat hard to carry on a true debate with the kind of person that would steadfastly promote gasoline as a health food beverage if the oil industry offered him enough money.

Re:'Patent exhaustion' _is_ a complex isssue (0)

Anonymous Coward | more than 2 years ago | (#37080318)

Explains what? Your non-knowledge of the issue at hand?

Re:'Patent exhaustion' _is_ a complex isssue (1)

UnknowingFool (672806) | more than 2 years ago | (#37081240)

If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy [blogspot.com] to argue with the existing license agreement. I linked to that explanation before.

You base defense of your argument . . . on your opinions written in a blog? Not a decision written by a court. Nor opinions of someone. That's like me basing my understanding of solvency of an investment based on a spreadsheet with numbers I just made up. Your explanation is completely based on logical and legal fallacies which you still perpetuate.

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.

That's an idiotic interpretation. First of all, it doesn't matter that Apple and Google got the license from Lodsys or Intellectual Ventures. There is a term called "successor-in-interest" that you seemed to misunderstand. Suppose MS sued my company for not licensing Windows on our computers. As a defense we product a receipt from our OEM system builder for the licenses. You point would be arguing that our licenses are not valid because we didn't license from MS directly which most people would find ludicrous. Second it only matters what are the terms of the license which you have not seen. But you are arguing that a term "app-developer" may not appear in a document which you have not seen. That's a pointless argument unless you have actual knowledge of the documents.

Exhaustion defenses are very difficult to analyze. Do some research on the case law and you'll see that those mattesr are by no means less difficult to analyze than infringement assertions.

My reading of the documents suggests you missed the point entirely here. Apple is not claiming exhaustion as a defense for infringement for their developers. They are claiming exhaustion as a reason for their intervention under Fed R. Civ. P Rule 24(a). As such they do not have use it as a defense. What is important are the terms of the licenses which, again, no one here has read. You also ignored that Apple cites Fed. R. Civ. P. Rule 24(b) as another reason for the court to grant them leave to intervene.

Re:'Patent exhaustion' _is_ a complex isssue (1)

FlorianMueller (801981) | more than 2 years ago | (#37081266)

My reading of the documents suggests you missed the point entirely here. Apple is not claiming exhaustion as a defense for infringement for their developers. They are claiming exhaustion as a reason for their intervention under Fed R. Civ. P Rule 24(a). As such they do not have use it as a defense. What is important are the terms of the licenses which, again, no one here has read. You also ignored that Apple cites Fed. R. Civ. P. Rule 24(b) as another reason for the court to grant them leave to intervene.

Your reading of the documents is completely off base. Apple's motion for an intervention comes with a proposed answer to Lodsys's complaint, which raises only one defense: exhaustion. You could have read that on my blog. The other points you make are equally off-base.

Re:'Patent exhaustion' _is_ a complex isssue (1)

UnknowingFool (672806) | more than 2 years ago | (#37081622)

I've read your blog. It wasn't filled with anything useful nor relevant. Like whether Apple licensed from Lodsys or Intellectual Ventures. Like your point about the license not having the term "app-developer". First of all it's grossly speculative on your part since you haven't read the license. Second, it may have the terms like "sub-license" and "partners" (which are more common in a legal document) than "app-developer".

As for your analysis of your Lodsys answer. Here's the way I read it.

  1. Complete speculation on your part on what is behind the redacted statements.
  2. Lodsys says that Apple's interests are economic in nature which do not qualify it for intervention. However Lodsys did not provide any ruling that would seem to support that. Also Lodsys ignores that Apple's interest is both legal and economic. You did not address that at all.
  3. Lodsys says that it has sued large companies so therefore it negates Apple's argument that their independent developers may not adequate resources. Again you didn't bother to raise the point that Lodsys has not sued only large companies. The fact of the matter that Lodsys has sued small developers and has not dropped those suits. It doesn't matter if Lodsys added fortune 500 companies later; that will not help the small developers they sued and those small developers are not likely to be helped by the fortune 500 companies as co-defendants.

You entire post only points out things in Lodsys' favor and not things in their motion which are not relevant. Like you didn't mention that Lodsys claims Apple's motion is untimely by claiming it is too early. (That's laughable).

Apple's proporsed answer to Lodsys's complaint (1)

FlorianMueller (801981) | more than 2 years ago | (#37081660)

You attack all sorts of other points that I'm not interested in discussing with you. The topic here was what Apple's proposed defense against Lodsys is. That one is available on Scribd as a PDF document for everyone to read, and it raises only one defense: exhaustion. Here's the Scribd link [scribd.com] . Compare the substance of that document to your off-base claim that Apple raised exhaustion only as a reason for an intervention without limiting its defenses to that one.

Re:Apple's proporsed answer to Lodsys's complaint (1)

UnknowingFool (672806) | more than 2 years ago | (#37085762)

Again, I've read the document and you again miss the point. Apple's proposed defense is not in their motion to intervene. Their defense will be based on the licensing agreement that they made with Intellectual Ventures. In that agreement, it may actually explicitly detail that Apple may sub-license. The difference between us is that I acknowledge that my argument is speculation on my part as I have not read the agreement (nor have you). Barring that patent exhaustion is an option but we haven't remotely gotten to that yet. Your points are based on complete speculation but you are not willing to acknowledge that.

Re:Apple's proporsed answer to Lodsys's complaint (1)

FlorianMueller (801981) | more than 2 years ago | (#37085850)

You keep failing to acknowledge that what you claimed was wrong. It doesn't matter for this particular discussion between us what's in the Apple license agreement. You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion). Don't try to confuse reasonable, unbiased readers here who follow our discussion. You said something utterly uninformed and you desperately try to muddy the water. But that's very transparent.

Re:Apple's proporsed answer to Lodsys's complaint (1)

UnknowingFool (672806) | more than 2 years ago | (#37087928)

Your words:

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents.

You've never answered why it matters.

It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.

You've never answered why that matters. Despite not acknowledging that it is complete speculation on your part what is in the unseen agreement, why is it relevant that Apple use the exact term? They may use another term.

You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion).

You keep speculating on what Apple may or may not do based on what it wrote in the motion to intervene. But refuse to acknowledge that it is pure speculation. The reply by Apple does not tip its hand either about how Apple intends to defend the infringement; it only defends the motion to intervene which is a completely separate matter. It's surprising that you are not grasping the distinction. Apple does not have to tell the court in the motion which defenses it plans to use at this time.

Don't try to confuse reasonable, unbiased readers here who follow our discussion. You said something utterly uninformed and you desperately try to muddy the water. But that's very transparent.

You keep bringing up complete speculation and irrelevant points but it seems you refuse to acknowledge that most of the are highly speculative on your point without much foundation.

I wish they would saying "east Texas based" (1)

erroneus (253617) | more than 2 years ago | (#37080244)

As it has been shown, Lodsys is owned and operated by a single person and that person lives and resides in Wisconsin. You can make claims of being based in east Texas all day long, but when it comes down do where the one person behind all of this lives, you have to go to Wisconsin to find him.

I'm not saying anyone should actually pay this asshole a visit, but I would love to see him get interviewed by someone in a bonafide news organization to answer some really tough questions.

This guy is the poster-child for patent trolls and needs some strong discouragement. That discouragement, however, needs to be official as anything personal to him would only discourage him and I'd rather see all of these jokers go away.

Patent system broken (2)

kipsate (314423) | more than 2 years ago | (#37080332)

The patent system is broken. Lodsys however can not be held accountable for that.

Big companies sueing the snot out of each other with patents: accepted.
Big companies sueing the snot out of smaller companies treading on their lawn: accepted.
Small companies sueing big companies: surely, now we have a problem?

Sure, it's the business model of Lodsys to hoard patents and sue. But the regulatory framework around patents facilitated its business model. Lodsys plays by the rules. The only really significant difference being, this time around it's a small company sueing the big boys and now suddenly there is a problem.

Lodsys nicely shows the brokenness of the patent system. We should be more thankful.

Re:Patent system broken (1)

ELCouz (1338259) | more than 2 years ago | (#37080620)

There is a possibility that the small company you are referring to Lodsys is actually a bigger company ;)
You need money, a shit load of it when you engage in a endless patent war... where do you think the money come from ?


Fact from wikipedia -> It is possible that Lodsys is a corporate subsidiary of patent holding company Intellectual Ventures.[4]

Intellectual Property Tax (0)

Anonymous Coward | more than 2 years ago | (#37080586)

One way to solve the problem with "Intellectual Property" is to treat exactly what it wants to call itself - Property.

In my state, "Property" (like my house) is taxed up the wazoo. Why not do the same for "Intellectual Property", so that these trolls with multibillion dollar "portfolios of intellectual property" are TAXED at the same rate my house is taxed.

I suspect those wonderful Intellectual "Property" portfolios of Lodsys, Microsoft, Apple, Merge Healthcare, among others, would suddenly become worth very little - lest they be taxed.

the smart thing (0)

Anonymous Coward | more than 2 years ago | (#37177140)

At least Google is doing the smart thing and requesting reexamination of the supposedly-infringed patents. Requesting re-examination is one of the best first steps in countering patent infringement suits by patent trolls [youtube.com] .

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