Tag: pollution

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

Troglodyte: CleanTech 1

“This is really no different from saying ‘If my invention sees a problem, it solves it'”

The purpose of Project Troglodyte (ended in 2013) is to hunt for bad patents and to show what went wrong. 

TRANSMITTING POLLUTION INFORMATION OVER AN INTEGRATED NETWORK 

I’m starting my part of  Project Troglodyte with something that might be unwise if I lived in the USA: I will dissect a patent which I think has value for just one purpose: trolling (see EFF article for more on patent trolls). I’m not saying anything that would cause legal problems, but it’s still good to have an ocean between me and the patent.

The patent is in the area of cleantech, and in particular pollution monitoring, which is a subject close to my heart.  The case is particularly interesting because there are two connected patents: US7424527 (filed 2001, granted 2008) and its continuation US 7,739,378 (filed 2008, granted 2010).  Differences in the two show how the patent system has changed in the last decade, and not for the better.

The patents are owned by Sipco LLC. Is Sipco a patent troll? I prefer not to commit myself at this point, but will let the reader decide himself, based on several articles (SmartGridToday,  Green Patent Blog, CleanTech Blog). I have put Sipco on my list of companies to follow, but for this article I will only stick to these patents.

Figure 1: Schematic from the patent application

SECTION 1: SUMMARY

The 2008 patent basically claims the following invention: there are “pollution sensors” (whatever that means) that are connected by a wireless network to a monitoring site. When the pollution level gets too high, the sensors send a warning to the monitoring site. As far as I can determine, that’s basically it.

So what is the inventive step that makes the 2008 unique and worthy of a patent?

I don’t see one. It is difficult to be diplomatic about this particular patent: it has no real value, except for trolling purposes. (I also suspect the patent-filing system has been gamed; see Section 3 below for details). In the worst-case scenario, anyone sending pollution information via a wireless network may now need to pay Sipco royalties.

The original 2001 patent at least had a somewhat concrete application area: in principle, it was directly applicable to monitoring of pollution from industrial facilities, and helping operators make decisions when something unexpected happens. Even so, the “invention” was completely trivial even in 2001. It is somewhat astonishing that the patent was granted; in Section 3 I speculate on why this may have happened (though it is speculation only).

The 2008 patent, by contrast, is sort of applicable to the monitoring of some kind of pollution from something in order to perhaps do something. A pollution monitoring management controller is mentioned in Claim 13, but since it is a dependent claim, it can be dropped without really affecting the patent. The main claims are completely abstract.

But overall it is difficult to see much non-trolling value in the 2001 either. Just one example of its vagueness: on page 17, the patent describes what happens if one of the network elements stops working. “In such a situation, upon the detection of the failed transceiver or transceiver component, the pollution monitoring management controller 302 (Fig 3) redefines communication paths out to the transceivers, and transmits the redefined paths out to the transceivers, transceiver stations, transceiver units and site controllers such that the paths are redefined”. This is also the thing that is claimed in Claim 12. That’s all the information we’re given.

This is really no different from saying “If my invention sees a problem, it solves it”. One reason for the whole existence of the patent system is that it makes innovations public; the inventor has a monopoly on the use of his technology, but society has been given detailed information on how to build the invention. In this case, society has gotten zilch. Zilch on how to to build a robust system as claimed in Claim 12, and I’m afraid zilch on how to build anything in any of the other claims. And in the case of the 2008 patent, it’s somewhat vague what the “something” is that has been claimed to have been invented.

In fact, the benefit for society is less than zilch: it is negative. Now that the patents have been granted, the owner can (completely legally) use them to block any real progress in this area. If someone actually invests money and R&D into actually building a network like this, they will face the risk of litigation from the patent owner. And that risk will exist for the next 20 years, while the patents are valid. (In practice, the owner almost certainly has filed new continuation applications already, so the risk will continue infinitely).

This is unfortunately not paranoid speculation; as the articles show, this particular patent holder has shown no hesitation to sue. Cleantech companies can more or less expect future litigation from this direction.

SECTION 2: DAMAGE CONTROL

The damage has been done and the patents have been granted.  The best damage control, of course, would be for someone to try to invalidate the patents on the basis that there existed prior art in 2001 which made the patents trivial. However,  that is a cripplingly difficult and expensive process (see the EFF’s Patent Busting site).

Realistically, the only thing that could really be done is to design workarounds. These are extremely difficult due to the general nature of the patents. However, there may be a few weak points in the patents. It might be possible to find more if this were done professionally, but a volunteer project can only go so far.

Claim 1 (of both patents) requires that a message be generated “if a pollution level exceeding a predetermined threshold is detected”. In principle, if the detectors are polled at regular (or random) intervals, they would not infringe this patent. Thus this patent might have no effect on systems that monitor continuously. However, if the purpose is to warn of sudden rises in pollution, this is a problem.

One other workaround might be to use changing thresholds; several threshold values are stored in a central computer, and the pollution sensors get updated threshold values every now and then. (Note that this makes no practical sense whatsoever. But if the alternative is to spend years in litigation, it might be the less insane solution).

Claim 13 refers to a “pollution monitoring management controller”. Such a centralized controller is also evident in all the Figures. If the information management is completely distributed, so that there is no central controller facility, then the patent should be severely weakened. However, litigation is still probably possible.

[Addendum 13.8.2012 1405 UTC: A reader pointed to another way to circumvent this. Since the term “pollution” is not actually defined in the patent, one might work around the patent by steadfastly claiming that the sensors are not “pollution sensors”. Rather, they could for example simply be called “gas sensors” or just “detectors for determining the composition of the air”. Insane? Yes, but it might work. Please keep these ideas coming!] 

SECTION 3: TECHNICAL ANALYSIS: SYSTEM GAMING?

There is something interesting about the 2001 patent, which looks like a boring technical detail but may reveal a lot. On any patent document’s first page, there is a section called “References cited” which lists patents that are related to the subject area (either found by the inventor, or by the patent examiner). They are, in effect, proof that the inventor knows what other people have invented, but has invented something different. Typically there will be  20-30 such references.

On the 2001 patent, there are more than four pages of references, double columns, small text. More than 500 references. I don’t recall seeing anything like this. I am not even sure what it exactly means. Most of the references seem to have been made by the drafting patent attorney, with only a few added by the examiner.

I have no idea what actually happened during this seven-year-long patent process, but I will try to imagine a scenario.  Patent examiners work under serious time pressure (see for example Wolinsky 2010). I have heard a rumor that examiners have only two hours to process an application, but haven’t been able to find reliable references. Two hours is almost nothing, and if true, it really makes the system a lottery.

If I wanted to get a spurious patent through, I might submit an application with 500 references, without specifying at all how the references actually relate to the patent. That makes it look as if I have done serious research before filing, and makes it difficult for the examiner to reject it outright. There is no realistic way for the examiner to go through even a small part of the references, yet he has to make a judgment. It is basically spamming the examiner.

The 2008 patent has less than 100 cited references, but nine of these refer to USPTO decisions made in 2009 on other patents. I don’t have the competence to even speculate what exactly has been going on behind the scenes, but obviously something has.

The time from filing to granting of the 2008 patent was less than two years, which is very short (in comparison, it took seven years for the 2001 patent). Perhaps the process was speeded up by the fact that the 2008 patent is a continuation of the 2001 patent. Hence a lighter prior art examination was considered adequate. If so, this also points to a weakness in the system: once a spurious patent has been granted, it is easier to churn out new spurious patents based on the first one.

I wish I had less reason to feel cynical about this, but I don’t. Patents like this make me feel that my Trolling on the human rights essay is not dystopian at all. It is simply a description of our future.

 

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