Category: Technology
Tonight, during Lost, I tried to decide just how “willful” Locke-the-smoke-monster was being. I didn’t reach a conclusion – and doubt I will until the end of the season. In the mean time, my anonymous lawyer friend known as Sawyer sent me a nice essay on the notion of “willful infringement in the context of patents.” He also sent me some interesting comments about how pissed off a bunch of biotech patent lawyers were today are at U.S. District Court Judge Robert W. Sweet for invalidating seven patents related to the genes BRCA1 and BRCA2, but that’s not what this essay is about. Remember, no matter how sensible Sawyer’s advice is, none of this is legal advice and, if you have a specific issue, make sure you spend lots of money on your lawyers since they also have to eat. Sawyer’s comments follow.
One of the issues that seems to most concern developers in software companies is whether they should ever look at a patent, and if they do, whether they are "tainted" by the exposure (a patent virus, perhaps?). The basic wisdom is that developers should avoid looking at or reading any patents, and I think that’s generally right, but the law isn’t as bad as it sounds.
There are two issues springing from exposure to a patent – the ticking off of the damages period for infringement of the patent, and willful infringement. The first issue is relatively easy: in order for a patentee to begin accruing damages, he must put a potential infringer on notice of his alleged infringement with some level of specificity. The requisite specificity is a thorny legal issue, but it’s not just enough to send someone a patent, a patentee must also make an allegation of infringement by something (so, the theory goes, the alleged infringer can stop infringing). Patentees can also sell products embodying the invention and mark them with the patent number, which counts as constructive notice, usually.
The second issue is the one I want to focus on. The definition of willful infringement and its legal requirements have changed a lot over time. It used to be something akin to "continuing to infringe when you knew someone was accusing you of infringement." Under the current legal regime, the alleged infringer must continue to infringe in a manner that is both objectively and subjectively reckless (the law is still muddy and some will quibble with my framing of the test, but this is roughly it). Objectivity in law means from the perspective of a hypothetical "reasonable man" (a legal fiction if there ever was one); subjectivity means from the perspective of the accused himself, i.e., that he believed or should have known that what he was doing was reckless and did it anyway. The idea is that if there are strong reasons for people to think that an accused infringer does really infringe, e.g., because there are weak litigation defenses, then his continued infringement is willful; but it isn’t enough to infringe just with mere knowledge of the patent, or even because of negligence in figuring out whether one infringes.
The upshot is that just being exposed to a patent, and then later accused of infringement, isn’t anywhere near enough to be "willful," and so developers shouldn’t be too worried if they run into something accidentally. That said, exposure to a patent is evidence that can come in at trial, and plaintiffs will use even tenuous exposure to paint a picture that could cause a jury to find willfulness even in the absence of solid, legally cognizable, evidence. So, people involved in a software business should probably still avoid patents (not the least of which because they’re often incomprehensible anyway), just to be safe.
Also, one more note: People think that a finding of willfulness means automatic treble damages, but the decision to enhance damages at all is discretionary with the trial judge, and he can choose to make no enhancement at all, or enhance to a level significantly less than treble. The real problem with willfulness is that it gets "black hat" stories about defendants in front of juries, which taint them against a defendant regardless of the merits – it’s easier to think that someone infringes if he’s just a bad guy anyway, especially if the technology is boring and the patent is hard to understand.
My long time friend Alan Shimel has been blogging up a storm on Network World (if you want to hear any amusing story, ask him about the first time he met me.) When Alan started writing his column for Network World he asked me for introductions to a bunch of our portfolio companies that were using open source. Alan is a tough critic and calls it like he sees it so while I knew there was no guarantee that he’d go easy on the companies, I knew that Alan would do an even handed job of highlighting their strengths and weaknesses. I also know that everyone I invest in values any kind of feedback – both good and bad – and they work especially hard to delight their customers so any kind of feedback will make them better.
Earlier today, Alan wrote an article on Standing Cloud titled Seeding the Cloud with Open Source, Standing Cloud Makes It Easy. On Monday, Standing Cloud released their first version of their product (called the Trial Edition) which is a free version that lets you install and work with around 30 open source products on five different cloud service providers. It’s the first step in a series of releases over the next two quarters that Standing Cloud has planned as they work create an environment where it is trivial to deploy and manage open source applications in the cloud. Alan played around with Standing Cloud’s Trial Edition, totally understood what they are doing, and explained why the Trial Edition is interesting and where Standing Cloud is heading when they release their Community Edition at the end of April.
Alan’s also written several other articles about companies in our portfolio recently, including the open source work Gist has been doing with Twitter and a great review of the Pogoplug and how it uses open source.
I believe I’m one of the people that inspired Alan to start blogging a number of years ago. Through his personal blog Ashimmy, the blog he writes for Network World titled Open Source Face and Fiction, and the blogging he does on security.exe (his company CISO Group’s blog), Alan is one of my must read technology bloggers. And he’s often funny as hell, especially when he gets riled up. Keep it up Alan!
Today, Amazon’s 1-Click patent was confirmed following a four year re-examination. Amazon now has ownership of a highly controversial and very absurd patent which I hope will only be used defensively. This a classic example of a “business method patent” that should simply not exist. I continue to wait patiently to see what the Supreme Court says re: Bilski.
In other patent news, Google and Facebook were sued over a social network patent. This was a patent issued in October that apparently has something to do with how people join social networks on mobile phones. Egads.
In better news, it looks like I’ll soon be able to buy a jet pack for $86,000.
The Apple patent suit against HTC really riled up my friend Sawyer. I wasn’t planning on posting another missive from him until next week, but I thought this was particularly timely given the public statement from Apple, including a specific quote from Steve Jobs about its competitors stealing their patented inventions. Sawyer explains why this is simply inflammatory rhetoric and actually has no basis in fact or the way patent law works. He also makes the case – using this as an example – that patents stifle, rather than promote innovation. Enjoy. And, after you read this, if you want a little “doesn’t this sound familiar” action, take a look at the Wikipedia page on Apple Computer v. Microsoft Computer with regard to the GUI – with a little Xerox tossed in as a side dish. And now, my friend Sawyer.
The other day Apple announced that it is suing HTC for infringing several patents related to the iPhone, including patents on the UI, i.e., software patents. As part of the press release, Steve Jobs said the following (emphasis mine):
“We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours.”
The rhetoric of "stealing" and "theft" surrounding accusations of patent infringement is bothersome, both because substantive patent law doesn’t embrace the concept of theft, and because most patent cases don’t involve credible allegations of actual theft or even copying.
Plaintiffs try to use "theft" to inject a moral element into patent suits, but there is no substantive moral element in patent law. The point of a patent is to grant a monopoly in exchange for public disclosure, and patentees want people to use the ideas (in exchange for license fees), otherwise the public disclosure aspect is pointless. The Constitution doesn’t authorize patent or copyright law for moral reasons either: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…”
The only doctrine in patent law that shades into morality is willful infringement. The shifting law on willful infringement will be the subject of another post, but in any case, willfulness isn’t a morality doctrine; willful infringers aren’t bad people, they are just people who decided to continue possibly infringing because they didn’t think they infringed, thought the suit was frivolous, or thought they would lose more money by stopping, at least in the short term. The doctrine is set up to penalize people who recklessly infringe by potentially trebling damages, and so acts as an incentive to settle suits and pay licensing fees. This isn’t a moral calculus, it’s a utilitarian one.
Willfulness, however, acts as the main vehicle for plaintiffs to inject moral rhetoric and copying allegations into a patent suit. “Copying” in a patent law sense means that an infringer either literally read the patent and copied what the claims said wholesale, or saw a product embodying the patent and copied the patented aspect of it. Copying in patent law does not mean “theft.” Theft of secret ideas is actionable under trade secret law, and I know of very few cases pairing the two. Literal copying is often actionable under copyright law as well. Isn’t it the case though that patentees want people to copy? Doesn’t copying mean that their ideas are spreading and being used for follow-on innovation, which are good things? The issue if anything is proper compensation, not the act of copying itself.
Unsurprisingly, we don’t usually even get into copying as a consideration. A paper by Mark Lemley and a good blog post titled Patent defendants aren’t copycats shows that the vast majority of patent cases don’t involve an assertion of copying (and we’ll have to see if the Apple case does). Putting in place an independent invention defense to infringement, as suggested recently by Brad Burnham at Union Square Ventures, would potentially wipe out 90% of patent cases.
Setting all of that aside, in my experience, when plaintiffs do allege copying, particularly in software cases, the allegations are uniformly flimsy and bogus litigation tactics aimed at getting “black hat” stories about defendants told to juries. And it’s a great tactic because juries are people, and regardless of the merits, they like to stick it to the bad guys, especially so where the merits are boring patent law issues that no one understands anyway.
Now we have one of the biggest and most innovative companies out there, Apple, trying to sue one of its competitors out of the market with patents, and using the false rhetoric of theft to justify the suit. This underscores that the patent problem isn’t just "trolls" versus "big companies," it’s big companies using patents to sue others in the same market into oblivion, cutting off competition and destroying innovation. Imagine, if HTC weren’t making great Android phones to compete with the iPhone, would Apple be incentivized to significantly improve its products? Would we have no iPhone if patents didn’t exist? I think it’s fairly obvious that in the absence of patents, we would have more competition and more innovation here, not less.
In any case, the takeaway for reform advocates is that we need to shift the rhetorical frame in discussions around patents from the moralizing of "stealing" and "theft" to what the issue actually is, a dry utilitarian calculus about what outcomes are better for innovation and competition. When we think about the issues in that frame, it sort of takes the wind of out of Steve Jobs’ sails, doesn’t it?
I saw a tweet today that said “The doubly-linked list, a structure I studied thirty years ago, has recently been patented.” After giggling at the absurdity of the idea, I went and at a patent dated 4/11/06 that appears to be for the doubly-linked list. The prior art was extremely thin, only went back to 1995, and didn’t mention that entire computer languages have been created around the list as a core data structure. One of my first Pascal programming exercises in high school (in 1981 – on an Apple II using USDC Pascal) was to write a series of operations on lists, including both linked and doubly-linked lists (I always thought it was funny they were called “doubly-linked” instead of “double-linked” lists.) Anyone who ever graduated from MIT and took 6.001 learned to love all varieties of the linked list, including the doubly-linked one. That was 1984 for me by the way.
Ironically, Wikipedia had great entries – with source code no less – about both linked lists and doubly-linked lists. The linked list history goes back to 2001, well before the patent was filed. My understanding is that patent examiners aren’t allowed to use Wikipedia – I’m meeting with some PTO folks on Friday and I’m going to ask them if this is fact or fiction. Regardless, this patent is another example of how ridiculous the situation has become.
My friend Sawyer is back with another post in his series of talking about software patent issues. As I mentioned before, Sawyer is a real person named after our intrepid friend in LOST (I haven’t seen it this week – no spoilers please) who has agreed to help us navigate the parallel universe known as software patent land. I’m channeling Sawyer’s points of view as a public service announcement since he’s uncomfortable being named publicly – these are his words, not mine. Today’s post is on the famed “Eastern District of Texas” (EDTX), one of the most popular places in the United States for patent litigation.
In the past several years, the Eastern District of Texas (EDTX) has become one of the premier venues for patent litigation, along with NDCAL, CDCAL, DDEL, and WDWIS. Although the dockets are packed now, when the trend first started, plaintiffs could anticipate trials in short order, perhaps 12 to 18 months, and plaintiff-friendly juries. There is also a basic sense of unfairness that defendants, rightly, feel when they have nothing or almost nothing to do with the district and yet get hauled down to court there, but the ability of plaintiffs to do that is a more fundamental flaw in the Supreme Court’s personal jurisdiction jurisprudence that is best left for another discussion.
There are a lot of stories told about EDTX and how it became a big spot for patent litigation. I won’t name any names here because EDTX lawyers have a tendency to sue anyone who says anything that could be portrayed in a negative light (see, e.g., the Troll Tracker defamation suit.) The basic story I’ve heard though, is this: EDTX was well-known as district with plaintiff-friendly juries after a raft of tort litigation where juries handed down large judgments. The judges and practitioners in area, seeing the coming wave of patent litigation, got together and decided to retool the district for being “patent-friendly.” This mainly involved adopting rules to streamline patent cases, similar to NDCAL, so that plaintiffs would get to juries faster. It’s important to note that this isn’t per se a bad or unethical thing – lots of federal districts are known as “rocket dockets” for one kind of case or another because of concerted efforts to attract and streamline litigation of certain types of cases.
The adoption of those patent local rules, along with a general unwillingness of the courts to throw cases out before trial on what’s called “summary judgment,” lead us to where we are today. Another thing to note, which is changing due to recent appellate decisions, is that EDTX courts have been very unwilling to transfer cases out to other venues. The Fifth Circuit and Federal Circuit have issued an unusually high number of reversals of EDTX decisions not to transfer, and the message seems to be taking and moderating both the desire to keep cases and any “pro-plaintiff” bias one could see.
These days, EDTX actually isn’t so bad for defendants. They win a significant number of cases, primarily because defense counsel has figured out how to navigate the courts, how to wear the “white hat” with the judges, and how to appeal to the juries down there. Still, the data show that when plaintiffs win in EDTX, they tend to win bigger than in any other court; and, when certain defendants develop “bad” reputations with the court or with juries, they get hit with big judgments repeatedly.
It’s also appears that EDTX has made a concerted effort to be “patent friendly,” and that the concomitant economic impact on the area, particularly in Tyler and Marshall, Texas, has been significant. From observation, EDTX is also where most of the software NPE/troll cases are filed these days because it’s still the fastest and most friendly docket for those cases.
That said, blaming EDTX won’t solve the underlying problem of patents and the patent system, especially in software. If there was no EDTX, another district would crop up to attract the big-ticket software patent suits, especially the NPE/troll cases. As long as the expected value of an NPE suit is positive, plaintiffs will find friendly places to file, and districts will make themselves friendly to those suits to stay busy, attract the economic windfall, and generally stay relevant. Don’t get me wrong, venue is a significant issue and has a big impact on the outcome of cases, but focusing reform and publicity efforts on grumbling about the courts won’t get us anywhere. The real problems are more fundamental to how people get patents, what is patentable, what the patents themselves look like, and how the legal system allows them to be used; focusing on the mechanics of where suits are filed is a distraction from the real issues that are bleeding our most innovative technology sectors and slowing down technological progress.
Remember rock / paper / scissors? It’s a beautiful kids game that unlike tic-tac-toe regularly results in a winner. Paper always beats rock. Rock always beats scissors. Scissors always beats paper. But what happens when you only have two – say “software” and “network”.
Whenever I’m at a Silicon Flatirons event, I always get into an argument with someone from the telecom world about “what the Internet is.” Most of the time I try to listen patiently for about 30 seconds as the telecom person explains to me how without them there would be no Internet and the applications that exist are merely “traffic” on “their network.” They then try to tell me crazy things like “no one will ever need more than 100 Mbps” and say snarky things like “who knows, maybe Google will spend more on their 1 Gbps buildout then they did on the 700 MHz spectrum.” I try to remind them that when I was 13 someone told me “you’ll never need more than 48k of RAM” and then again when I was 18 someone told me “you’ll never need a hard drive bigger than 10MB".” Oh, the things people say in the throws of competitive pressure. Innovation? Who needs innovation. Let’s take a big helping of regulation instead.
As someone who has been involved in creating software in one form or another for the past 25 years, I know I’m biased. I happily live in my little parallel software universe, generate huge amounts of data that travels over these complex networks, and pay a lot of money each month for the privilege. If you add up all of my bills – Comcast in multiple houses, a Qwest T1 to my house just outside of Boulder (since Comcast doesn’t get there), a Verizon MiFi, AT&T for my iPhone, Tmobile for Amy’s Dash, Verizon for a Droid we don’t use, lots of connectivity to my office, and probably some other stuff I don’t even know about, it’s a big number. Oh, and that doesn’t even count all the connectively that the companies I invest in use. You’d think – for all this – the network would be the driver of my behavior.
But notice the different providers above. Comcast. Verizon, AT&T, and Tmobile. I know my friends at Sprint must feel left out – I’ll have to figure how to get something on the Now Network. Oh yeah, I’ve got DirectTV in one location (the one with the T1) because of – er – no Comcast to my house. These companies are all household names for me because they spend ridiculous amounts of money on advertising – not because I love them. Do you love any of them?
I had an interesting experience in New Orleans over the weekend. After a day, I turned to Amy and said “have you noticed that almost everyone is walking around with an iPhone?” I was amazed by the incredible the penetration of the iPhone. I followed this up with “I wonder what they are all doing since I can’t get a signal on this thing worth a shit.” Then, during the marathon on Sunday, I noticed that the vast majority of runners who had a device had one of three devices: (1) A Garmin GPS watch, (2) an iPhone, or (3) an iPod. That was it. Every now and then someone had a different phone. But the number of runners with iPhone’s was remarkable.
I can assure you there weren’t using the phone for the network. It’s pretty funny to watch someone at mile 15 of a marathon on the phone saying “Hello – can you hear me? Damnit – fucking AT&T.” Yes – I heard that once. During mile 15.
I predict all those iPhones were out there because of the software, not the network.
Videos like this one remind me that I live in a very tiny corner of the universe.
Only 8% of the people interviewed (out of a sample of over 50) correctly defined a browser. It also shows how effective Google has been in their approach to branding, especially given that they just aired their first TV commercial a few weeks ago.
I love the stuff that ya’ll email me (or comment) after I write a post that challenge my thinking. While occasionally the notes are hostile (which is mostly just entertaining), they are usually really thought provoking even when I disagree. And, when they give me a new way to think about something, they are really satisfying. For all of you out there that read this blog – you guys are great – thanks for helping me think!
Last week I got an interesting proposal to deal with the problem of patent trolls. Here it is.
“It seems to me as though the solution to patent trolls is a pricing issue.
If patents were to get progressively more expensive over time, a patent holder would have to weigh the financial return of a patent against the cost of maintaining it. For example:
Patent Fees
Year 1 — $1,000
Year 2 — $10,000
Year 3 — $100,000
Year 4 — $1,000,000
Year 5 — $10,000,000
Year 6 — $100,000,000
Year 7 — $1,000,000,000The model above protects really valuable patents and sets patents that aren’t valuable free. Pharma could live with the fee schedule above, and software companies which have patents that are really core to a business would be protected for 4-5 years, an eternity on the Internet.”
What do you think? What’s the fundamental flaw in this?