(no subject)

[rick-day.livejournal.com]

I would like to start a conversation on property rights. We have had some strange issues involving the rote concept of ownership; of the right to own and to assign value to things or places.

Seeds, genes, creative efforts, everything but the air we breathe can or has been claimed by someone/government as being 'owned by X'

Some things seem to generic, to much commonplace, to 'everyone uses it!' like, oh, some of the most common features of the World Wide Web.

Or is it?

There is some deep shit going down in Texas.

Michael Doyle, a low-profile Chicago biologist, claims that it was actually he and two co-inventors who invented — and patented — the “interactive web” before anyone else, while they were employed by the University of California back in 1993. Doyle argues that a program he created at the UC’s San Francisco campus, which allowed doctors to view embryos over the nascent World Wide Web, was the first program that allowed users to interact with images inside of a web browser window.

Feel free to read the story, it takes about 5 minutes.

Clearly, if the facts are correct as presented, Doyle is about to become an extremely wealthy man, benefiting off the work of others. That he has waited so long to file the actions is pretty smart on his part, the bigger Google and Yahoo get, the deeper their pockets are. Ultimately, it is all paper wealth, shifted from one account to the next but there is this nagging idea that he really didn't earn this money.

Today, Doyle and his lawyers say he’s owed royalty payments for the use of a stunning array of modern web technologies. Watching online video, having a “search suggestion” pop up in a search bar, or even rotating an image of a sweater you might want to buy on an online shopping site — all are said to infringe on the idea-space of Doyle and his company, Eolas Technologies.

To those who follow high-profile tech litigation, the name Eolas may sound familiar. The company sued Microsoft back in 1999, winning a $521 million jury verdict in 2003 that shook the tech world. While that verdict was overturned on appeal, Microsoft ultimately settled rather than re-try the case. The full settlement amount wasn’t disclosed, but the University of California revealed that its cut was $30.4 million; since an Eolas lawyer at one point described UC’s take as 25 percent, minus expenses, it suggests the company got well over $100 million from that case.

The Microsoft verdict got the attention of tech community in a big way. Eolas was denounced in some quarters as a “patent troll” — the company has never launched its own web browser, or any commercially successful technology that’s well known, for that matter.

This is about as big a case of property rights as it gets. The fact he has pursued this, and the players have fought him over this since 1993 pretty much settles any question of "Patent Troll". If you were on the jury and only had the info provided in the links and the story, which side would prevail? My opinion would be I would fall on the side with the best argument as to the validity of the patents. That the PTO reversed its decision and affirmed the validity, I am Sure UC/Eolas will point this out to the jury.

Comments

[chron-job.livejournal.com]

I am deeply suspicious of any kind of "work process" patent, especially when those work processes occur within the restrictions of a specific technological infrastructure that suggests and restricts those processes.

If Amazon or Google or some such were using actual code that someone else created, I would consider it. But if its just, say, the general idea of simultaneously displaying video content and some other content ('embedding' a video in a 'web page') it just does not have the novelty required (to my mind) of a patent. This is just a basic extension of spacial metaphors into virtual space. Patenting each such possible extension would be like obtaining a patent for painting a desk "Red", when the desk already exists, and the paint already exists. I would be even more suspicious if the prospective patent holder of "painting desks Red" waited a few years for everyone to have red desks, before contesting their right to do so.

As a side note, I find Amazon being on the other side of this humorous and ironic, after they "patented" the idea of a one click purchase. (An example of the problems inherent in funding the patent office via patent fees)


Taking a step back and talking about the wider field of property rights....there is nothing natural about ownership. I cannot use Chemistry or Gas Chromatography or Spectral analysis to "detect" ownership. Property and ownership is a social convention invented and supported by most of a society's members because it enables the society to function in the desired way. It's very easy to loose sight that this concept is only a metaphor, and to begin to believe in a 'divine right of kings', except for stuff. When fanatical adherence to the metaphor damages social functioning rather than enabling, it's time to tweak the metaphor.

And what's true of Ownership of 'Real' property is doubly true of intellectual property. So our question in such patent cases as above isn't "Who owns what?", it should be "Which set of consistently applied 'rules of the game' best serve social weal."

[sandwichwarrior.livejournal.com]

One could counter argue that by not exercising his ownership rights, he forfeited them.

If you abandon a vehicle and it is eventually recovered, salvaged, and sold. You don't get to show up 5-10 years later and demand that it be returned to you with interest.

[gunslnger.livejournal.com]

This should definitely be accounted for as well.

[jennem.livejournal.com]

The equitable defense of laches applies to claims of patent infringement. A judge will determine if and how laches should apply after the jury verdict.

[gunslnger.livejournal.com]

This highlights the problem with the concept of intellectual property. It's trying to mask the concept of property, which can only apply to things that are unique and non-copyable, onto the concept of ideas, which are not unique and infinitely copyable and modifiable.

The way I would judge this case is if he could show that the people he was suing actually based their products off of his work in some direct fashion. (There can be intermediate steps, but it has to be directly traceable to him and his work, not just be a similar idea.) And that's only if I ignore the fundamental flaw in the whole concept.

[jennem.livejournal.com]

Alrhough it's much more complicated than this simple explanation, patent litigation is essentially an attempt to show that the defendants "ideas" are directly traceable to the patented invention. The inventor discloses the claimed invention through a series of numbered claims, and must prove that the defendants' products read on those claims in order to prove infringement.

But, perhaps you would require actual evidence that the defendants intentionally used the patented invention when developing their products? In which case, I have to wonder how the plaintiff would be able to prove that issue.


* Disclaimer: I am a patent litigator. My primary practice involves defense of corporations against claims of patent infringement (sometimes involving trolls and sometime involving direct competitors).

[gunslnger.livejournal.com]

I would want them to show that the previous ideas of the involved parties were directly used, rather than someone in the chain coming up with the same idea independently. Does that make sense? Yes, it would be hard to prove.

People can come up with the same "feature" through different paths. For example, having an incoming call announce the person's name associated with the phone number on your answering machine (which you earlier recorded) is the same feature as your cell phone printing the person's name from your contact list when you get a call, but the people making the second one didn't copy the first one's idea, they are totally separate.

[peristaltor.livejournal.com]

I don't remember what legal precedent set the patent for non-physical objects, but it has to be addressed by lawmakers. We as a technical nation have become a morass of lawsuits trying to monetize the value of vague generalizations, what in the past would have been considered protected under copyright, not patent.

Patent-able objects must be physical and unique once again. Software is not patentable (except under the law, which is just plain wrong).

Grrr. . . .

[soliloquy76.livejournal.com]

LOL, Eolas. These are the same people who sued Microsoft and won for embedding objects in web pages. These guys are patent trolls. Fuck them.

ETA: I guess I should have read the rest of your post. DOH!

[eracerhead.livejournal.com]

There was a time when computer code and processes could not be patented. It was considered akin to patenting math. DRM people tried to copyright encryption keys, which is equivalent to copyrighting a number. OTOH, a digital photograph is really nothing more than a single, very large number.

It's complicated and will rest on technicalities like the documentation used by the inventors, the prior art and etc. In the advanced research I was doing in the 80's we were already displaying photos in windows on a network. Whitepapers were produced laying out conceivable uses for retail and academia. All of that was government research and hence is in the public domain. Whether that legally applies in this case is a complex issue. This is the problem with patents, one party sues the other and the winner is usually the one who has the most resources and can hold out the longest, forcing the other party into a settlement.

Patent mills have their uses, you can sell your patent to them for cash and enforcement becomes their problem. However, they can and often do abuse the system.

[a-new-machine.livejournal.com]

I largely agree. Before software patents, blatant ripping-off was prevented by the use of copyright law. The upside there is that copyright protects only exact duplicates and very, very similar derivatives, not the entire idea. The world of software developed at a rapid pace. Just think of it this way - if Xerox had been able to patent things like the GUI or keyboard shortcuts, much of the modern operating system probably wouldn't exist. It's only because smarter, better designers like Gates and Jobs were able to freely rip off Xerox's design that we got the modern home-computing boom.

[sophia-sadek.livejournal.com]

I remember when UC Berkeley was famous for public domain technology development. A significant number of commercial applications were developed on Berkeley's OS because it is open source with no royalty requirements.

[a-new-machine.livejournal.com]

In case you were wondering, he lost (http://arstechnica.com/tech-policy/news/2012/02/jury-rules-that-eolass-interactive-web-patent-is-invalid.ars).

[anfalicious.livejournal.com]

If he created it at the university, surely it belongs to them.