Category: Patents

Pollution week 4: Could we do something about Intellectual Ventures?

“But a normal company would never let a poo reference take pride of place on its patent document. For most healthy companies, patents are simply too serious a matter to allow sophomoric poo humor.”

Even if the previous parts of the Pollution week (Part 1, Part 2, Part 3)  left a general sense of bewilderment, they don’t necessarily have to leave a sense of complete hopelessness.  Maybe the phenomena that were noted in Part 3 could be useful. Even if it’s not directly possible to fight trolls, it makes eminent sense to see what vulnerabilities they might have. This information might be useful to someone, somewhere.

The metadata of part 3 suggests that the inventors have been working in a “patent factory” mode, i.e. churning out applications for the purpose of churning out applications. This may have happened during one intense day, or during several workshops, or over a longer period of time.

It so happens that this mode is not completely unfamiliar to me.  This means that I may have insights into the weaknesses of this mode, which might be helpful should anyone ever wish to try to invalidate a patent of this type.

 

Note that these points are not in any way related to this particular ‘002 patent. The same kind of mechanisms seem to be operating in any number of cases, and the ideas here are fully applicable there as well.

The article in bizjournals.com is worth quoting again. “….Several times per year ISF brings together thought leaders across industry and academia for these day long, forward ideation discussions. At times, a specific innovation is created as a result of these sessions. When that happens, it is customary for the individuals who have contributed to the innovation to be credited if a patent application is filed.”“

This may well be “customary” at IV, but I do not believe I have seen such a cavalier attitude expressed elsewhere. The question of “who contributed” is actually a hotly contested issue. (See C.R. Bard v. W.L. Gore & Associates for an 800 million USD case that has lasted 38 years, and is about who should be credited as a co-inventor). Any incorrect names in the inventor list would certainly be interesting in litigation.

Also there seems to have been a long development time for these patents; the ‘002 seems to be a variant/extension of an original idea that was more closely related to personal health monitoring. There are certainly innocent explanations for this in the filing process (applications may have to be rewritten and so on). However, it does leave open the question of just *when* something was invented.

Specific possibilities:

  • Are they sure they have the right inventors? In principle, having even one name included incorrectly, or lacking just one name, could mean the patent (or at least some claims) are invalid. The Bizjournals article suggests that IV has a somewhat cavalier attitude toward this aspect.
  • If these were made at ideation discussions, where and when were they, and who took part? Were minutes taken? Who invented which claim?
  • In general, is all the paperwork in order? Has every inventor signed every piece of paper that needs to be signed? A group filing an application a week is bound to make careless mistakes at some point. Cases can be made or destroyed on small technicalities.
  • Are there any anomalies, such as people being on inventor lists when they did not attend a specific meeting at all?
  • Was everything in these patents really invented during one day long session? If so, why have there been so many additions and amendations throughout the years? Who has made the additions? Where are they documented?
  • If the additions the workshop results were considered just technical steps rather than new inventions, who made that evaluation?
  • Are these applications actually the result of multiple inventions? If so, who made them, and are they documented? What claims are owned by what inventor?

 

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CODA

The ‘002 patent itself provides a somewhat appropriate note on which to end.  The first reference, in a prominent place, is the following:

Figure 1: First reference in ‘002 patent

 “Buchanan, Matt: “Twitter Toilet Tweets Your Poo”; Gizmodo.com; Bearing a data of May 18, 2009; Printed on Jul. 1, 2009; pp. 1-2; located at http://gizmodo.com/5259381/twitter-toilet-tweets-your-poo”

The reference does not seem to be cited in the actual document. It has a vague connection with the subject matter, but so could any number of articles,  so it is not really clear why it is here in the first place.

It is even less clear why it is here, in first place. The list is in no particular order, and there is for example Agger in the references, so it is not a question of Buchanan being the first in alphabetical order. Someone somewhere wanted a poo reference to be the first thing that hits the reader in the eye.

I would definitely have wanted done something like this in high school. Or university, for that matter. Or, come to think of it, even now. I’m childish. I would love to have to have a poo reference on a serious document like this.

But a normal company would never let a poo reference take pride of place on its patent document. For most healthy companies, patents are simply too serious a matter to allow sophomoric poo humor.

An attitude that is this cavalier toward inventor status and poo humor is a sign that something is just not quite working right. And that makes it increasingly probable that the company will make careless mistakes. A single comma in the wrong place can make all the difference.

What overall conclusions can we now draw from the exercise? (Subject of next posting).

 

Pollution week 3: How does Intellectual Ventures do this?

“Two of the inventors (D and N) have been producing close to one granted patent per each working day for the last decade … I am trying to remain neutral, but I cannot help but feel that there is something moderately ridiculous here about Intellectual Ventures.”

In part two of the pollution week, I analyzed patent US 8,127,002  (“Hypothesis development based on user and sensing device data”) and how it (perhaps) relates to monitoring of pollution. I described a software program that I might write, which would estimate the air pollution level at a certain place.

I found that, most likely, my software would not infringe on the patent, and the patent holder would not win in court. However, I would still pay the fee.  Given that the patent is controlled by Intellectual Ventures, I would have too much to lose. Whatever the actual facts might be, the general perception is that IV is a large patent-litigation machine. Personally, I would not go against it.

Here’s the interesting question: how is IV able to do this?

Continue reading Pollution week 3: How does Intellectual Ventures do this?

Pollution week 2: What’s preventing me?

“Would “my” software infringe on the ‘002 patent? My answer? It probably does not infringe. But I probably should pay nevertheless.”

In the previous part of the pollution theme week, I defined a fairly  trivial software that would allow an asthmatic to follow the air pollution at some other location. I suggested that a patent  (US 8,127,002) has some features that make it look worrisomely close.

I will now try to see guess whether “my” software would infringe the ‘002 patent. And I do mean “guess”;  there is no way of finding the “truth”, as has been discussed earlier. The “truth” can only be discovered in court, when the patent owner sues someone.

Continue reading Pollution week 2: What’s preventing me?

Pollution week 1: “My” Application

“Being allergic, I am (vaguely) dreaming about someday having a “citizens’ network” of sensors to monitor pollution in real time and high resolution. Such data cannot perform miracles, but being prepared is better than being unprepared. Have I already been blocked from doing this?”

We have decided to make this week a kind of demonstrator for our kind of thinking, showing what a project like this can and cannot do.  This is as concrete as it gets.

The special theme we chose is air pollution. More specifically, solutions that would allow asthmatics to get information about the air pollution situation.

To make things as concrete as possible, the whole week revolves around just one patent,
US 8,127,002  (“Hypothesis development based on user and sensing device data”). The narrow focus has a purpose: it concretely shows what kinds of vulnerabilities might enable trolls to be attacked with their own weapons.

I asked the question: could this patent block a person with allergies from getting information about the air pollution levels at a location he is going to?

Answer: possibly. Possibly not.

Continue reading Pollution week 1: “My” Application

Patents – non-conventional warfare?

“But if patents are non-conventional warfare, even these measures of “quality” become largely irrelevant. A “quality” patent is one that manages to frighten targets enough that they pay up. Nothing more, nothing less.”

PATENTS AS NON-CONVENTIONAL WARFARE

In a previous essay (Patents — conventional warfare?), Timo Tokkonen considered patents to be type of warfare between companies. By and large, this is probably the best way to think about patents.  What Timo described is the “conventional warfare” aspect of patents: going to court, and getting a “real value” for the patent.  Maybe it’s possible to extend to analogy:

What if the “non-conventional warfare” part is equally important?

By that, I mean value gained without ever going to court — by settlements and agreements that are made quietly outside the court system. Do we have any way of knowing how important this “hidden” side of the war is?

To put in another way: What if the “real” value of a patent is in how much money it can rake in without ever going to court? One way of quantifying the question is to ask: “How much are companies paying for patent license costs where the underlying patent is spurious, but cannot be invalidated without taking excessive legal risks?”

An economist would say that the question is nonsense, because a contract is a contract, and if someone agrees to pay, then  nothing illegal has happened. Perfectly true, if the two sides are evenly matched. Not so true, if one of the parties has an unfair advantage. (Again a term that no economist accepts. But as we have discussed earlier, non-practicing entities do have an asymmetric advantage over companies that produce something. These contracts may be narrowly  legally acceptable, but there is no reason to accept them ethically).

This is not a very comforting idea, because it would make it even more difficult to estimate the value/risk of a patent. Academics are making efforts to predict the “quality” of individual patents by looking at external parameters such as number of prior art references, a huge number of claims, a large number of later patents referencing the patent,  and so on (see for example  Shresta 2009, Allison et al 2010). The sole definition of “quality” here is “what wins in court”.  These efforts are valuable, because if successful, they would make it at least slightly easier to estimate risk.

But if patents are non-conventional warfare, even these measures of “quality” become largely irrelevant. A “quality” patent is one that manages to frighten targets enough that they pay up. Nothing more, nothing less.

If one considers this non-conventional aspect, then some of the claims of the pro-NPE camp (for example McDonough 2006) become a little suspect. Those authors are looking at what happens in the courtrooms. But what if all the real action is happening outside the courtrooms?

Can this issue even be studied academically? Perhaps. Bessen and Meurer 2012 used surveys as well as public legal data to estimate the direct costs from NPE litigation. They came up with a ballpark minimum figure of 29 billlion USD in 2011. They estimated that about one third of this cost came from cases that never went to court (i.e. our “non-conventional warfare”). This is 10 billion USD, much of it from small and medium-sized companies.

Since there are indirect costs associated with legal assertions, Bessen and Meurer suggest that the real figures could be twice as large. To give some scale: the total R&D spending in 2011 was 247 billion USD. The non-conventional costs would then be in the ballpark of 5-10% of R&D spending. One has to remember, of course, that this is not money that is “robbed” as such; some of the cases may be completely valid. Nevertheless, this is real money.

We have been trying to look for credible first-hand material on the Internet about people or companies that would actually have been harassed by trolls. However, the material tends to be second-hand or generic.The EFF has collected material on cases that would seem to fall into this category, but it is still anecdotal.  Even the various anonymous anti-troll web sites tend to focus on litigated cases. The unlitigated cases exist in a shadowland.

Anyone who is under active targeting will almost certainly remain quiet under his lawyer’s recommendation. And if a settlement is reached, non-disclosure tends to be required. Thus, it is likely that we will never hear of these cases through normal routes.  Any information on anonymous web sites should be treated skeptically at best.

We think Project Troglodyte might actually provide a service in this direction. We already have a fundamentally unconventional view into these issues. We inhabit a kind of twilight zone: not quite hardcore IPR professionals (though hangaround members perhaps), not quite average “persons trained in the art”.

If a patent frightens and confuses us, it will certainly frighten and confuse an average person. A patent attorney can take away a lot of of the confusion by explaining what the patent (possibly) means. But the attorney cannot take away the fright part.

Unconventional warfare calls for unconventional methods perhaps?

Acknowledgements: This posting benefited heavily from arguments raised by Niko Porjo.

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