Friday, February 21, 2014

"Functional claiming" undermines the entire patent concept

The US Patent and Trademark Office has a page on abusive patent legislation, here. It’s interesting that the USPTO notes that a patent owner may, in legal principle, control how a product is used or who may use it.   The office says that a variety of responses are possible when a letter is received, including no reply.  A cease and desist letter is not a lawsuit.  The USPTO’s pages to acknowledge that it is possible for a small business (or even a consumer) to buy a service from a vendor and then be challenged separately by a patent owner.  This does not make sense to many end users, why vendors don’t “protect” them in patent use.
Mark Lemley of Wired has an article on “functional claiming,” that is, “Let’s get back to patenting the solution, not the problem”, here.   Many patent trolls try to claim that a particular function is what is patented, rather than the invention that performs the function.  This could be particularly true of software.  When I was working in mainframe IT, employers owned all the code that I wrote, and it could have been viewed under both patent and copyright laws.  Yet, I often wrote similar code for different employers to perform similar functions.  This was more of an issue in the days when companies hired programmers to write all their in-house applications, until they gradually shifted to buying from vendors.
The White House is beginning to look at the problem if a patent system that encourages trolling and hinders innovation, as in this statement, released Feb. 20, 2014.  The White House gives an explanation of the “attributable owner” concept in promoting transparency. 

Friday, February 14, 2014

Personal Auto patent troll case (claim about podcasting) results in unprecedented subpoena of donor for defense

A company called Personal Auto, with convenient headquarters in litigation-friendly East Texas, has sued a few content providers claiming patent violation.  These include Apple, and the Adam Corolla, for “How stuff works”, Togi Entertainment, and “How Stuff Works”.  Apparently it is claiming that it owns a patent even on the concept of a podcast – syndicated, downloadble episodic content. 
I suppose in theory self-syndication of a blog could qualify. I’ve tried this only once, with my TV reviews blog.  Could I be contacted?
Tech Dirt has the story here.
In defending the suit, Electronic Frontier Foundation raised some money and now, as Joe Mullin of Ars Technica explains, Personal Auto is trying to get a pre-discovery list of the donors subpoenaed, which has very chilling implications for civil procedure, at least in patent cases, maybe in all civil litigation (at least in Texas).  The link to the story is here

Daniel Nazer posted EFF’s response on Jan. 29, 2014, here.
This is surely one of the most shocking cases of patent trolling that I have heard of.

Update: March 5, 2014

Electronic Frontier Foundation reports that it succeeding in blocking Personal Auto's subpoena of the names of donors, link by Daniel Nazer  here.

Friday, February 07, 2014

The site :Trolling Effects" shows many patent troll demand letters

There is a site, “Trolling Effects”, that tracks patent troll reform and has PDF’s (redacted) of a lot of patent troll demand letters, link here. The site says that the Innovation Act has passed the House and is headed for the Senate.
A posting Feb. 6 at Electronic Frontier Foundation by Adi Kamdar asks for patent attorneys to help, pro bono if possible, because of the volume of these cases that keeps accumulating like snowflakes, link here
The article lists to another post where EFF discusses when it can take a particular case.  One important question is whether the case will set precedent and help many other potential defendants.