Software Patents: Should the Burden of Proof Be on the Accuser?
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When we wrote our year end posts for 2009, we should've added patent trolling to our list of trends. In the past year we've covered a number of patent disputes including the Word-blocking patent against Microsoft and VoloMedia's patent on podcasting. Union Square Ventures' Brad Burnham wrote an excellent piece today on independent invention and how patent reform can minimize trolls.
Said Burnham, "Almost a third of our portfolio is under attack by patent trolls. Is it possible that one third of the engineering teams in our portfolio unethically misappropriated technology from someone else and then made that the basis of their web services? No! That's not what is happening...Our companies are being attacked by companies that were not even in the same market, very often by companies they did not even know existed."
What's this? How can you be accused of stealing another's intellectual property when you didn't even know the company or patent existed? Independent invention is the idea that a group of software engineers can build a technology similar to one that has already been patented with no prior knowledge of the patent. For example, take the lingering case of the iPhone fart app disputes. Burnham argues that with an independent invention defense, patent holders would have to prove that startups had some prior knowledge of their technology before pursuing action. He argues that this would decrease patent abuse and place the burden of proof on those that are more likely to abuse IP law. In your opinion do you think Burnham's vision of patent reform is a sound one? Why or why not?
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I'm not sure that there is anyway to prove or disprove that "startups had some prior knowledge of their technology". Especially given that we live in a connected world.
There are so many issues with patent reform, but the primary one is that software patents are just plain stupid. There are just so many/few ways of doing certain things that software patents really make no sense. Many of these patents are so vague in describing implementation, that many companies can't help but fall over the IP.
The web is especially vulnerable to this type of action. The company I work for was sued for IP infringement until we proved prior art, and then it counter-sued. A guy I work with has seen patents based on work that he'd done 5 years earlier but didn't want to patent because he does not believe in them.
The system is fundamentally flawed at the source. The IP examiners don't have the needed skills to understand the patent or the tools/where-with-all to properly check for prior art to repudiate the patent application when dealing with software.
Patents were designed to encourage innovation, as it gave the "inventor" time to profit off the invention before others were allowed to get their hands on it. This system is now being abused (both both parties) and innovation is the loser.
Here is where is goes terribly wrong. There is huge gray area where, if you patented something, if someone then significantly improves on a similar design, should they be allowed to profit from that? If not, what if the patent holder just sits on the patent without doing anything? Is society better off?
Just about every major "invention" in history was "invented" by 2 or more people, completely independent from each other, in the same year. The "inventor" of the airplane is a great example of this. In most cases, the official "inventor" is just the person who logs the patent first.
There's a famous quote about how invention/innovation works - "Necessity is the mother of innovation". If there's a need, I can bet you there's thousands of people out there trying to fix it.
The same issues arise from non-documentary prior art, such as evidence of prior use. In its question presented Microsoft attempts an end run around the issue by focusing on “documentary evidence.”
This explanation of an "independent invention" defense here and in the USV blog post seems a little bit confused. Patent law has long recognized that an invention can be conceived by more than one independent inventor. Many countries and the EPO have resolved who gets the right-to-exclude that patents grant with a "first to patent" rule, while a few countries including the US have resolved this with a "first to invent" rule.
It's a separate question, when infringement is proven, whether that infringement is "willful" and therefore punishable by enhanced damages. The "independent invention" defense would be relevant to defending against a willful infringement claim, but not to who would deserve the patent rights in the case of multiple, independent inventors under long established principles of patent law.
Trolls, or "non-practicing entities" (NPEs) are yet another matter, and there are some who say that NPEs should not be able to just purchase and enforce the "right-to-exclude" conferred by patents from inventors. NPEs typically are not the inventors or representatives of the inventors of patented inventions).
It seems like a VC would understand these fundamental principles of the patent system and be able to address them more clearly rather than in that linked blog post. After all, does anybody believe VCs don't aggressively capitalize on the IP of their portfolio companies, including trying to monetize the IP of those that don't succeed? Where would they have us believe many of the patents purchased by NPEs come from?
"Almost a third of our portfolio is under attack by patent trolls."
If you're investing in technology fields you will run into patents and inventors, or as you call then "trolls".
All this talk about “patent trolls” is pure hype. If you will look at the 1898 Rude et al. v. Westcott et al. SCOTUS case [130 US 152, 9 S Ct 463, 32 L Ed 888] you will see that at least since 1874 inventors have been selling and partnering with other parties to enforce their patents. Without doing so, few inventors and small companies can afford to enforce their patents, meaning larger competitors can easily beat them out of the market they created and run them into bankruptcy. That’s big companies idea of “patent reform”. Therefore, all this present day discussion of “trolls” is a hoax whose purpose is to cut off the small entity support system and deny them any profit from their creations. Simply put, its intent is to legalize theft.
Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: “we’re using your invention and we’re not going to pay”.
Patent reform is a fraud on America.
For the truth about trolls, please see http://truereform.piausa.org.
Purposeful ignorance of other people’s property rights is still stealing. The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into a application specific electronic circuit. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits.
Dale B. Halling, Author of the “Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation.” http://www.amazon.com/Decline-Fall-American-Entrepreneur-Regulations/dp/1439261369/ref=sr_1_1?ie=UTF8&s=books&qid=1262124667&sr=8-1
I think IP Perplexed proposes a more effective method of reform by focusing on "non-practicing entities" - the temporary monopoly patent rights give should imply a duty to practice the art or lose it to someone who can. Such a rule would hopefully reduce the amount of frivolous patent litigation without harming legitimate interests as the independent discovery rule would.
Patent trolls are proving to be a plague on intellectual property and upon innovation; they are private entities that effectively work to bring the federal patent law system to its knees. I'm not sure about the viability (in practical terms) of the independent invention defense. But one thing is fairly clear: if enough people keep making noise about the patent troll problem, I suspect that certain government interests will eventually have to step up and take action against the practice of trolling.