Sigh, par for the course for any patent-related reporting on Ars.
1. The headline is pure clickbait, and is obvious from the article itself. From a quick glance, the patents concern a specific feature of Bluetooth 2.0 that enable selecting different modulation schemes, one with a higher data rate, based on a header. Whether that's novel or non-obvious depends on the prior art, which isn't discussed in TFA. In any case, it's a far cry from a claim on "owning Bluetooth".
2. The article and comments paint the plaintiff as a troll. But nobody asks, let alone bothers to answer, what somebody should do if they devise such type of an improvement to existing systems. "They are trolls because they make no products", is the argument. Well, what product would you build in this situation? Wireless communications are heavily regulated and standardized. Build an entire new protocol and standard around a single improvement? And then get people to build chips for that? Who's going to adopt your standard when there are powerful network (literally) effects in place? And how does that help when this improvement could be applied to any other protocol? Others can simply adopt this improvement in their own products and completely ignore yours.
I haven't seen anybody attempt to answer these questions. It doesn't take much thought to call someone a troll, though.
3. HNer DannyBee, a patent lawyer, had once (jokingly?) suggested that defendants may start faring well in ED Texas if they, say, built a stadium in Marshall. Looks like somebody at Samsung is thinking along the same lines. Though it didn't help in this case, I guess it may help in the longer term, especially given that Samsung is not an American company, something jurors may be consciously or subconsciously biased against.
For point 2, there are a few factors that go into distinguishing a non-manufacturer patent holder vs. a patent troll. First, is the use of low quality patents. A low quality patent is one or more of the following:
* Overly broad
* Describes the problem space, and claims all possible solutions to that problem
* Written in such a way that you can't implement the covered technology based on the patent description
* Covers existing practice, or what is destined to become standard practice in a new field, but worded in such a way to make it appear more novel
* Doesn't pass the non-obviousness test (need to be careful with this one, because a lot of patent-worthy inventions are obvious in hind site)
Also, a patent troll typically waits till a technology is well established before suing, in order to maximize payout (see submarine patents). Another soft clue to identifying a patent troll, is if the party being sued had came to knowledge of the covered technology by way of the patent or patent holder/inventor. If it is independent invention, then that could indicate that the patent fails the non-obviousness test.
It seems like most of your points are already addressed in patent law. A good patent litigation counsel on the opposing side should be able to dig up prior art to invalidate any overly broad or obvious claims, and should be able to invalidate any patent that does not sufficiently teach how to make and how to use the invention due to lack of enablement.
> Sigh, par for the course for any patent-related reporting on Ars.
Honestly, I think there's a quality drop all around and not just in patent-related articles. Reading the comments on any legal-related articles is as much fun though as people watching in the homeopathy section of Whole Foods.
On 1, I didn't look at the cited references, but it'd be interesting to see if any of the Bluetooth-related patents were included.
On 2, I guess the only objection I have to NPEs are the type operating through shell corporations wherein their risk-exposure is so low that they can fill the courts up with frivolous crap. It'd be interesting to see if there was a way to curb that behavior (like putting up a bond or something). Are you aware of any proposals?
There is a lot of talk about patent reform, as TFA mentions, and it contemplates disincentives along the lines you mentioned, e.g. fee-shifting and requiring plaintiffs to be more specific in laying their case up front.
"the patents concern a specific feature of Bluetooth 2.0"
That's not a "feature" of Bluetooth 2.0+, it's a fundamental part of the Bluetooth spec. Without it you couldn't have Bluetooth. So the headline is correct.
You can implement Bluetooth 2.0 without EDR, so how is it meaningless? If you explain, maybe we'll see if indeed pointing out "optional" is the opposite of "fundamental" is indeed "non-reasoning".
2. I think generally if you want to use your patent you call people and offer them the use of your technology (there must be some standard business practices for this). Then at least you can be reasonable that you claim they stole it from you. Doing nothing until someone else figures out the same thing and then saying they owe you is just unreasonable. I don't know the specifics of this case but that's how I'd classify a patent troll vs someone who did their best to improve the world with an invention.
And that's how licensing usually worked, whether you were a practicing entity or not. Lawsuits typically only happened if negotiations broke down, because they are expensive and/or risky for both sides. This may or may not have happened in this case, as TFA does not mention it.
However, licensing is risky these days. The Medimmune v Genentech decision (http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_I...) significantly changed the calculus of licensing negotiations. Essentially, it enabled potential and current licensees to preemptively sue the licensor for "Declaratory Judgment". This is bad for licensors because 1) any tentative approach for licensing can blow up in their face, and 2) if it does, the licensor will have to expend considerable resources fighting a lawsuit they didn't want, 3) in a venue that then becomes wherever the DJ is filed, which may be unfavorable to the licensor for many reasons, such as not being EDTexas.
Ok, I was just picking on EDTexas (Delaware is just as common), but the venue matters for many reasons, including the state of the docket, local laws and the primary political leanings (and other biases) of the judges and jury pool. As a simplified example, you don't want to sue an automotive company in Detroit. Forum-shopping is something that should not exist, but is an unfortunate reality of the current system. My personal belief is we should do away with jury trials entirely for patent cases.
I hear about these patent trolls a lot but I never really got an understanding of what kind of people and companies these are.
First of all, I know they are scummy and yada yada.
But they must be very smart, setting up shell companies and having deep (?) knowledge of the various tech stuff they are pursuing, it's not within the average persons knowledge to do things like these.
How do they get the patents? Do they validly have patents, 100% generic or not, before something similar comes up. Or do they somehow "craft" it towards the victim.
Is there some known person who is a patent troll?
Is it knowlegable normal people workin in the scene while doing these things "behind" the scenes or is it some proper company/office that delegates stuff to their "shells"? It must require a huge amount of work to fight these mega corporations, even if they give up quickly.
I find them faschinating in the same way as any high level scam artist since it requires some finess.
Check out ex-Microsoft CTO Nathan Myhrvold [0] of Intellectual Ventures [1] infamy. He's also famous for his epic modernist cuisine cooking bible [2]. I also highly recommend the This American Life two-part podcast on patent trolls [3] [4].
You can read Nathan's attempted justification of his patent troll activities here [5].
Nothing makes my blood boil more than Nathan Myhrvold's weird justifications for his behavior. It all sounds plausible, maybe even admirable, and then he turns around and funds 'inventors' that have patents for absolute malarkey. At this point, I hope he is ONLY remembered for being a troll and nothing else.
Once people make it to the top, they almost always try to change the rules so no one can follow in their footsteps. "Well, yes, that was okay for me, but you are going to have to make it on your own, kiddo."
Establishing a capital market for inventions sounds like a great idea, but it is predicated on the notion that the patent office is not asleep at the wheel. Person-in-garage-invents-life-changing-technology is a great trope, but where the rubber meets the road we have the Eolas patent and various "using a computer or network of computers" patents.
They get the patents in various ways. The common way is to buy it from a bankrupt company, though many companies who aren't bankrupt will sell off patents. A lot of them will buy company X, then create X LLC as a holding company for the patents to sort of trick people into thinking it is a real company.
Some trolls will make their own patents. Sometimes it is engineers who fancy themselves inventors or other times it is a patent attorney looking to make money. Though the latter is fairly rare.
There are several big "patent assertion companies" that do this on a large scale. They are very good at determining value of a patent, figuring out who to sue, etc. They have a team of lawyers on staff. These types of trolls usually go after big companies for big dollars. They'll definitely settle, but they aren't looking for 40k or something small.
Some are small time groups or even single people who just learned the system. A lot are former attorneys. These smaller ones are more likely to just seek a small payout. These ones are the most annoying because they often have zero case but are demanding such a low amount that its better to just pay, which of course incentivizes more patent exortion.
But there are a lot of smaller law firms that specialize in troll law suits who do most of the legal work. I'm not sure what the business model is like, if they work on contingency or not.
If the trolls are making their own patent, one way to "craft" your patents is continued applications. You claim a super broad claim early, and then continue to fight over it for years and years. If you win the broad claim, huge win. But even if you don't, you can sort of craft the claims to cover technology that has since gone mainstream. The continued applications get backdated to the original. This practice has been reigned in a bit by changes to law and regulation.
But I think the best way is to just pick up patents from a legit company that is selling them or is in bankruptcy. These companies will have patents that were cutting edge at the time. I also think it's the more morally defensible way to patent troll. You give R&D extra value and let companies take out loans backed by IP, because you are creating a market for IP. I'm sure more than a couple mature start ups have leveraged patent portfolios to borrow capital.
The trolls and their attorneys are typically more efficient than defense firms. Defense firms typically throw an army of lawyers at the case and it has diminishing returns. Also, the plaintiffs role just seems easier IMO.
The telecom industry is unfortunately very patent heavy. It holds back startups from entering, and the standardization groups become a game of trying to push in things covered by your own patents while dodging others.
I used to work in wireless R&D (at a startup). It's frightfully expensive, and we would have never be able to do a whole stack with original technology, so we licensed and built on top of WiMAX. I'm not sure why we should've been allowed to build on all that technology for free.
Patents are a huge boon to standardization in capital-intensive industries like that. Getting your patent in the spec is what creates the incentive to contribute to this joint venture that's going to be opened up. Otherwise you're doing R&D for your competitors for free.
The GnuPG maintainer is begging for nickles, while most commercial investment into open source is incidental to some other activity that generates the real money. Those aren't good things. When you make it difficult to monetize a product, you create a huge incentive for companies to vertically integrate until they control part of the stack that can be monetized. E.g. Android can exist as open source because it's an on-ramp to Google's proprietary web services.
If companies like Qualcomm couldn't directly monetize their R&D, the likely end result would be their getting sucked up into companies like Apple and Samsung that build end-user products.
A lot of open source comes from companies who make their money not by selling technology but by selling services, often by leveraging data, which they guard jealously. They have little to lose and a lot of geek cred to gain by open sourcing useful projects, not to mention the bonus of "commoditizing your complements" a la Spolsky.
This does not apply to companies that sell the technology itself. Not to mention the fact that telecomm R&D is not like software R&D, which, let's face it, is mostly just re-doing D for R that happened decades ago.
There is a paper by a Qualcomm engineer that talks about how standards are set and how patents play a role in it, specifically in the context of 3GPP. It is a pretty complex process involving attending meetings and casting votes, and many participants do not contribute any technology. Surprisingly, patents seem to be an afterthought.
But then Qualcomm makes a billion or so every year in royalties, so that's something to keep in mind. Will link the article if I can find it.
Many think that the spec itself is crappy, so there's not much an implementation can do to fix that. Witness, for instance, the number of hardware vendors like Logitech that eschew Bluetooth in favor of their own proprietary wireless protocols.
I have no doubt the spec is crap, but some implementations are better (read: somewhat less problematic) than others. Which leads me to believe there is some degree of freedom with respect to quality here.
I fully agree with you there. I'm working on some BT stuff, and find it to be lacking, mainly the software stack. The spec looks ok for a wireless interface, the quality of the stacks are all over the place.
You could argue that companies like Rembrandt are the only way that indie patent holders can hope to compete with the likes of Samsung. Unfortunately the patent game appears to usually be one that is won by whoever has the largest legal budget.
It costs huge amounts to create, file and protect patents and any errors will mean that a patent is worthless once the opposition's lawyers get stuck into it.
Large companies in patent heavy fields all have teams of lawyers filing patents as quickly as they can and then defending them and attacking others as hard as they can. The little guy doesn't stand a chance.
Perhaps a solution could be to have government take the place of a company like Rembrandt so that independent patent filers can get the heft behind them required to support their patent.
Or how about we kill the parasitic patent industry once and for all? Declare all patents invalid, like the debt amnesties that were common thousands of years ago, and refuse to issue any new ones.
> You could argue that companies like Rembrandt are the only way that indie patent holders can hope to compete with the likes of Samsung.
That's not correct, specifically, it's not realistic for two reasons.
First, patents, when related to indie developers, are beneficial only for a small subset - specifically, the google-like ones, who build a product on a single, very specific, idea.
Second, an indie developer is not in the same market as Samsung.
> Perhaps a solution could be to have government take the place of a company like Rembrandt
When it comes to patents/trolling, there are a few "shocking 1-little-tricks" ;-) which are actually simple and effective - it's just that the administration is in bed with the industry, and obviously doesn't want to hurt the interests of the latter.
Reducing the term of the patent to a reasoned amount would be one; limiting the amount of allowed applications would be another.
One thing that I'm actually wondering (because I haven't seen it discussed) is what would happen if the USPTO would be accountable for the patents it grants, that is, if it could be sued for giving patents which are later proved invalid.
From reading some of US8023580 (utter horrid thing to read). They have basically laid claim to the mechanism of any electronic device that communicates in any way. Indeed I've read a lot of patents but this one is so inscrutable one could prob use it to claim against rocket technology and a jury wouldn't blink.
Getting a jury of people to understand this stuff is ridiculous.
> He said he appreciates the fact that Rembrandt has made the effort to get the patents enforced.
>“I never could do that,” he said.
Because the old fool is being paid to shut up and do as he's told.
> Over the course of nine years consulting for Rembrandt, Bremer said he's been paid $670,000. He gets 2.5 percent of all settlements extracted using his patents.
>Because the old fool is being paid to shut up and do as he's told.
Without respect to Bremer, that's true for any independent patent holder, and even for most small businesses. Bringing or defending a patent infringement suit is an expensive and risky prospect. It's hard to argue that a patent is particularly useful for anyone who doesn't have a big pile of cash they feel like gambling with.
>A device may be capable of communicating using at least two type types of modulation methods. The device may include a transceiver capable of acting as a master according to a master/slave relationship in which communication from a slave to a master occurs in response to communication from the master to the slave. The master transceiver may send transmissions discrete transmissions structured with a first portion and a payload portion. Information in the first portion may be modulated according to a first modulation method and indicate an impending change to a second modulation method, which is used for transmitting the payload portion.
This could be valid for any form of communication with more than one modulation system (Wifi, BT, DVB television, any recent communication system).
I'm pretty sure that the modulation of the monitoring systems in a rocket will switch between transmission modes when the rocket reaches some upper layers of the atmosphere.
1. What you quoted itself a far cry from "any electronic device that communicates in any way", a statement that mischaracterizes the patent as much as the title of TFA does the actual claim. Note that it says the header may be modulated using one method whereas the payload another depending on the header. Are you sure this applies to any of those you mentioned? (Except Bluetooth of course, as it was just found to infringe :-P)
2. The synopsis does not define the scope of what a patent claims.
EE/CE here. Yeah that's a garbage patent. I'm a practitioner in the field and 20 years ago that would have been some forward-thinking stuff. But in 2009, when it was filed? Total joke.
Well there's something weird going on there, then, because priority dates and filing dates aren't supposed to differ by more than a year or so.
So either it was invented in 1997 and should have been patented then and would expire in 2017, or it was "invented" in 2009 and they trolled for something to give them a much, much earlier priority date so that it would seem more legitimate somehow.
Either way I'm not sure that I buy it.
EDIT:
I mean, hell, dial-up modems did the same thing basically. Connect and sync at a low baud rate, then switch to whatever the modems agreed the channel could support. How old are dial-up modems? 1980s? Acoustically coupled modems are at least as old as the 1970s. http://en.wikipedia.org/wiki/Modem#Acoustic_couplers
The weirdness is due to these patents being "continuations", that is, follow-on patents that keep the priority date of the original, but file new claims on the same subject matter. This is usually done to get broader (or sometimes just different) claims than the original. On the flip side, the follow-on patents lifetime is still based on the original filing date.
Also, if there was any prior art that did "basically the same thing" you can bet Samsung would have brought it up. TFA does not give much detail about Samsung's arguments, but only mentions a non-infringement defense.
1. The headline is pure clickbait, and is obvious from the article itself. From a quick glance, the patents concern a specific feature of Bluetooth 2.0 that enable selecting different modulation schemes, one with a higher data rate, based on a header. Whether that's novel or non-obvious depends on the prior art, which isn't discussed in TFA. In any case, it's a far cry from a claim on "owning Bluetooth".
2. The article and comments paint the plaintiff as a troll. But nobody asks, let alone bothers to answer, what somebody should do if they devise such type of an improvement to existing systems. "They are trolls because they make no products", is the argument. Well, what product would you build in this situation? Wireless communications are heavily regulated and standardized. Build an entire new protocol and standard around a single improvement? And then get people to build chips for that? Who's going to adopt your standard when there are powerful network (literally) effects in place? And how does that help when this improvement could be applied to any other protocol? Others can simply adopt this improvement in their own products and completely ignore yours.
I haven't seen anybody attempt to answer these questions. It doesn't take much thought to call someone a troll, though.
3. HNer DannyBee, a patent lawyer, had once (jokingly?) suggested that defendants may start faring well in ED Texas if they, say, built a stadium in Marshall. Looks like somebody at Samsung is thinking along the same lines. Though it didn't help in this case, I guess it may help in the longer term, especially given that Samsung is not an American company, something jurors may be consciously or subconsciously biased against.