Mullin on Spangenberg

Joe Mullin is probably the country’s leading out-of-the-beltway journalist who regularly covers patent law issues. He writes for ArsTechnica and tends to take favor defendants (accused infringers) in his stories, although not as much as his colleague Timothy B. Lee.

Mullin’s recent story on the Newegg patent trial and Erich Spangenberg is a really interesting read.

http://arstechnica.com/tech-policy/2013/11/newegg-on-trial-mystery-company-tqp-re-writes-the-history-of-encryption/

210 thoughts on “Mullin on Spangenberg

  1. Timothy B. Lee has a clear anti-patent agenda, which overlooks hard core facts. He also does not have a good understanding of what a patent is, based on what I have heard at different panel discussions he has moderated or been a part of. It’s surprising that people are even reading what he has to say, and even sad that a reputable newspaper such as the Washington Post has hired him.

  2. Based on Mullins summary of the expert testimony, it appears that Newegg has made at least a 102 or 103 argument for finding invalidity based on so-called “secret prior art” (the old 102(g)(2)) (in addition to some straight up anticipation arguments). Can anyone confirm or direct me to Newegg’s briefing on that issue?

  3. There’s something that happens to some people once they earn a certain amount of money and come to believe that they are “successful” by some common criteria (e.g., the size of their bank account, or the value of their house). They convince themselves that their “success” is due solely to the fact that they are “smarter” or “harder working” than other people. Those who dare suggest that maybe there was perhaps some luck involved (e.g., timing) or something at all unseemly about the manner in which their wealth was obtained must therefore be “jealous” or “ignorant” or worse. It’s hardly a universal sentiment shared by the most privileged among us, but, sadly, it’s not exactly uncommon either.

  4. Down below J Nicholas Gross accused myself (and others) who criticize the behavior of Spangenberg and his patent trolling ilk of being “clowns”, ignorant of patent law, and “jealous” of Spangenberg. That was pretty funny.Nobody will be surprised to learn that J Nicholas Gross appears to be something of a Spangenberg wanna-be himself. Here’s an example of Gross and Phoenix, a company that Gross “worked for” as a patent prosecutor (and apparently also as “the threatening letter writer guy”, at least), getting spanked by Judge Patel for failing to understand the concept of privilege and how it relates to patent cases:link to jenner.com…Note the terms used by Patel throughout the order to describe Phoenix’s behavior and arguments: “unacceptable” “ill-founded” “nonsensical” “unrealistic” “awkwardly sidesteps the fact” “arguments … set up a straw man” “Gross is indubitably involved in the sort of decision-making that disqualifies him from having access to Wells Fargo’s confidential information” “Phoenix has already crossed the line” “disingenuous” “sleight of hand” “omitted “no convincing basis for Phoenix’ proposition”, etc. etc.Another amusing tidbit:link to leagle.com…The irony of Phoenix’s opposition to defendant’s motion for leave to file a first amended answer, both in terms of its timing and its substantive allegation of undue delay, is not lost on the court. The court is hopeful that this too is not lost on Phoenix. (<– Ya just gotta love Judge Patel.)Most of the junk patents that Phoenix was asserting were tanked and found invalid (surprise!). So … who are the “clowns” who “don’t understand patent law”? Who’s “jealous” of Spangenberg? Please come back, Nick, and share more of your “insights” with us all.

  5. Heh, well I just now “remembered” why J Nicholas “You’re Just Jealous of Spangenberg” Gross sounded so familar. Nick is the “incremental innovator” who sued Netflix because they improved their service in an incredibly obvious way. And lost, bigtime.link to patentlyo.com…This case involves a classic “improvement patent” scenario. Nick Gross was a longtime Netflix user when he came-up with the idea that the service should provide additional user notifications — such as when the movie queue runs dry. Just before filing suit, Gross and partners formed Media Queue as a holding company. Media Queue then sued Netflix, Blockbuster, and others for patent infringement. Nick is also a patent attorney and a nice guy.I think a “nice” guy would have just sent a message to Netflix’ suggestion box or found another service rather than filing a junk lawsuit and trying to rake in some cash (maybe Nick really needs money — any bets on that?). But, hey, critics of this sort of behavior are all just “jealous” of guys like Nick. At least, that’s what Nick seems to think.Whatever happened with the Media Queue request for en banc rehearing of the denial of Media Queue’s attorney fees in that case?

    1. Yet another great moment in the proud history in the magnificent career of J Nicholas “You Clowns Are Just Jealous of Spangenberg” Gross. This one involves yet another “patent assertion entity” (this time named “Phoenix” — so cool!) in which Gross apparently had at least a “security interest” according to the assignment database:http://www.allthingspatent.comlink to bartlit-beck.com…A federal appeals court has upheld a win for DirecTV Group Inc. in a patent infringement suit brought by Phoenix Solutions Inc. claiming DirecTV’s customer service telephone system infringes four patents for speech recognition technology. The U.S. Court of Appeals for the Federal Circuit tossed Phoenix’s appeal with a single word — “affirmed” — on Wednesday, two days after oral argument. …The hearing before the Federal Circuit did not go well for Phoenix — its argument hinged on proving that DirecTV “used” the calling system. The quickly exasperated judges on the panel asked why Phoenix did not structure the suit differently, as it was clear to them that DirecTV’s customers used the system by calling it.Apparently the judges weren’t exasperated enough to slap some sanctions down. That’s too bad. So, um, who’s “jealous” of Spangenberg?

  6. More excellent Joe Mullin reporting on another patent troll ground into dust:link to arstechnica.com…In her ruling (PDF) issued late Friday, US District Judge Denise Cote noted that Lumen View was trying to patent “matchmaking,” a practice that is literally ancient. She cited the patent specification, which included examples like “having a computer match employees and employers whose desired attributes and intensities of preferences mutually align.” Another brainstorm from the patent is having a computer match “college applicants and … colleges seeking applicants,” according to their preference data.”There is no inventive idea here,” she wrote in her order. “Having two or more parties input preference data is not inventive. Matchmakers have been doing this for millennia… It is merely a mathematical manifestation of the underlying process behind matchmaking: determining good matches. Nothing in the ‘073 patent evinces an inventive idea beyond the idea of the patent holder to be the first to patent the computerization of a fundamental process that has occurred all through human history.”Truly the best judges are starting to “get it” (with help from lawyers and a general appreciation by more and more people as to how pathetic this computer-implemented garbage is). Congrats to Judge Cotes and here’s hoping she’ll be sitting on the Federal Circuit instead of one of the fossils who believe that computers are magical and that describing a specific if-then function is the “essence of electronic structure.”You know what else is “ancient”? Created customized proposals for potential customers. Also using information around you to determine how to drive your car. Just sayin’. Is anyone at the PTO listening?

  7. link to arstechnica.com…An amusing update from the last day of the Newegg trial.Diffie’s testimony [on behalf of Newegg] went on some time, but he seemed to have the jury in the palm of his hand. A few jurors laughed at his jokes and smiled, and the more serious ones were certainly focused on his testimony. After about two hours, Albright passed the witness.And then TPQ’s attorney attempts a character assassination of Diffie, basically accusing Diffie of lying “under oath” about his role in the invention of public-key cryptography. Nice try?

    1. The “expert” for Spangenberg is Tom Rhyne who runs a “Patent Expert Witness Bootcamp” and who has testified in other junk patent cases in East Texas including the infamous “Clear with Computers vs. Hyundai” case. That piece of junk related to “a computer system for generating a customized proposal to facilitate a sale of a tangible product.” Wow. It’s “customized” — can you imagine? And it’s for the sale of a “tangible” product. Because that matters somehow.

  8. Maybe not the best thread in which to post this, but here’s a link to news that Canadian PAE “Rockstar” is going after Google, Samsung, and others:link to cbc.ca…Rockstar’s CEO is quoted as saying that:”The companies being sued are competitors of Rockstar’s owners, but Veschi insists U.S. Department of Justice rules prohibit those owners from having a say in who Rockstar targets.”I’m not sure what he’s talking about, does anybody know? I was always of the belief that any infringer could be targeted at the discretion of the patent owner, and that the mechanics of the patent owner’s decision-making would be governed by its governing documents and local laws.Does the consortium somehow constitute a de jure monopoly according to DOJ? Would it be somehow anti-competitive because there is such a big block of heavy-hitters in the consortium?And precisely what does “a say” mean? They can’t make recommendations? They can’t be consulted? They can’t supply the results of their own research?

    1. Google’s technology for matching relevant advertising to a user’s search terms was actually patented by Nortel. Heckuva job, PTO. What an incredibly broken patent system we have.

  9. What should be written is an article why Benson should be expressly overturned. Benson is a joke. A shameful unethical immoral joke.

    1. “What should be written is an article why Benson should be expressly overturned”I agree. I need something to shoot down this week since it is so slow in patent news.

  10. http://www.marshallnewsmesseng…Baldauf asked the jury to please examine the patent closely. “You won’t see any mention of SSL, RC-4, e-commerce, the Internet or Worldwide web and you’re certainly not going to see anything of encrypting credit card information,” he argued. “It’s just not there.No mention of the Internet? Or encrypting credit card information? How odd that a “genius” who was thinking about “e-commerce” before anyone else would fail to acknowledge the existence of the Internet or credit card information in his patent.Then again, this is the same “genius” who wrote (with the help of his able attorney, of course, who was surely just as much in possession of this awesomely broad concept as Jones) the following summary of the Invention in the Abstract:”A modem suitable for transmitting encrypted data over voice-grade telephone line. The modem is implemented by the combination of integrated circuit components including a microprocessor, a serial communications controller which communicates with connected data terminal equipment, and a modulator/demodulator for translating between voice band tone signals and digital data.LOL.

  11. Fenster described the inventor of the patent, Michael Jones, as a hard worker. “He doesn’t have all these fancy degrees,” said Fenster. “He’s a hard worker, creative, smart, an innovative guy, and he loves technology. … He’s great at recognizing problems of the future and finding solutions,” said Fenster. “He thought things would need to be paid for electronically,” said Fenster, noting that it was a remarkable idea in 1986.Uh, no it wasn’t. Things were paid for “electronically” before then and people were aware of the role that computers could play in finance. “He knew no one would give their credit card information online unless it was safe and secure.”Wow, that’s some real “genius” right there. It’s also false, of course, as stated, but hey let’s not quibble. This is a jury trial in Texas after all. Still curious as to why this “genius” Jones couldn’t figure out on his own that he invented e-commerce. Very odd. Maybe he’s some kind of Rainman savant.

  12. How many times do you need to be sanctioned in Federal Court to be disbarrred in Texas? Anyone done any research on that question?

  13. link to ifttt.com, it’s like an invitation to start infringing someone else’s junk patent.Is the PTO aware of this? Seems like your typical Internet-enabled algorithm patent just got even more obvious than it already was (which was pretty effin obvious).Or will the True Believers in Incremental Innovation continue to maintain that any computer-implemented invention that isn’t anticipated by the use of the exact words in the claim must be patentable? Because “claims as a whole”. Or something.Also, totally awesome that they refer to the algorithms as “recipes.” Icing on the cake. LOL.

  14. Target had a website; Target got sued by TQP. It got out of the case by paying $40,000….Dodge & Cox, a mutual fund, paid a bit more than $25,000. Pentagon Credit Union paid $65,000. QVC paid $75,000. MLB Advanced Media paid $85,000. PetSmart paid $150,000. PMC paid $400,000. Cigna paid $425,000. Bank of America paid $450,000. First National paid $450,000. Visa paid $500,000. Amazon, Newegg’s much larger competitor, paid $500,000. UPS paid $525,000. IBM paid $750,000. Allianz Insurance paid $950,000. Microsoft paid $1,000,000.I wonder how many of the decision-makers in these companies (the people who decide whether to give Spangenberg money or not) consider themselves “friends” or “admirers” of Spangenberg’s. Obviously there are many, many, many other companies that could be sued (every company selling stuff online, right?) … but what about those who are not being sued? Perhaps because friends of Spangenberg’s are on the boards of those companies? Isn’t that how “the real world” works? Maybe not in this case because it’s really about this “genius” Jones and his awesome contribution without which we’d never have “e-commerce”. Perhaps that information will leak out during trial as well.I wonder how Target managed to get off relatively easily? It’d be great to hear from them about their experience with Spangenberg, assuming they didn’t sign away their rights to comment on their deal.My bet is on Spangenberg losing this one bigtime, with sanctions. It’ll be fun to watch.

    1. “My bet is on Spangenberg losing this one bigtime, with sanctions. It’ll be fun to watch.”Remind me never to consult you for anything where any kind of objective thinking is required

      1. Remind me never to consult you for anything where any kind of objective thinking is requiredI’d never do any consulting for you so you don’t need to be reminded of anything.As for “objective thinking,” the case is far from over. I’ll grant you I would love to see sanctions. But from a statistical viewpoint, you’d have to agree that Spangenberg is more likely to get spanked than a random patent litigator. You understand why, don’t you, Nick?

  15. Brad Burnham:link to usv.com…We have all benefited from the extraordinary innovation delivered first by the independent software industry and more recently by the web services industry. In both cases, this innovation was a direct result of the ability to innovate without permission. Nathan [Myrhvold, of Intellectroll Ventures] proposes to replace this world of decentralized innovation on open platforms with one dominated by a new gatekeeper, “intellectual property market makers”. In this world, young companies, may not need to ask permission of Dell, Microsoft, or Verizon, before they launch a new web service, but they will have to negotiate with Nathan’s firm to as he puts it “get all the patents they need to roll out an innovative product faster and at the same time reduce the risk that they’ll miss a necessary license and get blindsided by an infringement suit” This is not a good idea.Clearly, Brad is just a wannabe thief with no respect for property. Plus he’s surely jealous of Nathan Myhrvold because he’s awesome and super dooper rich, unlike Brad./deep-thinking from the patent troll defenders off

    1. Good article. I like this quote:”Patent offices around the world should tighten standards to ensure that only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents.”

      1. Ned,If (and that’s a mighty big if) the proper discussions on tightening standards would be held – that is by the legislature with pro’s and con’s being objectively discussed, then (and only then) would you have my respect for such a comment.As it is, the comment is being geared to judicial activism in order to rewrite the law.Sorry, but that does not – and cannot – have my respect.

    2. I rather like that article NWPA, first it shows the simplistic thinking by many of the few proponents of the patent system left (outside the bar) are gradually coming around as well. It also shows off how many blatantly unsupported assertions their positions rely on currently. “atent offices around the world should tighten standards to ensure that only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents. “The above quote is from your article. Apparently he doesn’t understand that disallowing software patents is just patent offices around the world tightening the standards to ensure only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents. “Most people agree that inventions like new microphones should be patentable. But today many academics, venture capitalists, policy analysts and others are questioning the value of patent protection for other sorts of inventions, such as software, which are created in industries where product cycles are short, up-front investments are lower and time to market plays a central role in market success.”I love how he brings this up and then never goes into it, what so ever.

      1. Software is equivalent to firmware and is equivalent to hardware.Deal with that fact.And no Ned, your vacuous “1″ argument merry-go-round should be avoided. “1″ is not software. Software is copyrightable, and to be copyrightable, it must be captured in a tangible media, which necessitates structure, and the exceptions to the printed matter doctrine control the legal position that the structure so captured has patentable weight. Software is a manufacture and a machine component. It does not exist ‘in the mind.’ It is not ‘math,’ as ‘math’ is not copyrightable. It is not a ‘non-Useful art’ as it is beyond argument that software is created to do something, to have some usefulness. So let’s not even attempt to climb on that ride, since you have refused to take that discussion to its next logical step repeatedly.

          1. Ned, what is the structure of an electron?Ned, does it take structure to represent information? Or can information be magically represented? Can information be magically transformed?Must you lot resort to every dirty trick in the book.Ned, what is the structure of a Higgs boson?Ned, can machines with the same structure perform different functions?

          1. You have been avoiding it for years and avoiding figuring out what the ladders of abstraction are. Or more accurately denying your understanding in order to please your masters.

            1. Oh yes, I’m the one plainly “avoiding” “it” and “avoiding” “figuring out” some other things that aren’t even well published on, and which I understand just fine to the extent I’ve seen them published on. Just plain ol’ evil over here. Tell you what though, if you’d like to personally instruct me I will sit by your knee for a bit. Even longer if you will then sit by mine for but a brief moment. You know just so we can stop talking about this on the interbuts and instead have a conversation face to face where you’re not quite so free to just ignore what you don’t like, and I’ll be free to directly answer your questions and “integrate” your position into my own in a very acceptable manner to all involved. I was going to hold off calling you batsht insane re your first sentence, but your second one is a pretty clear indication that you’ve clearly descended into madness. Apparently you think I’m “pleasing some mysterious master”. Whom do you think are my “master” and why on earth do you think my actions please them?

            2. “some other things that aren’t even well published on, and which I understand just fine to the extent I’ve seen them published on”Quite some serious mistakes there 6. I gave you chapter and verse of well respected patent treatises that you should be able to put your hands on AND you have repeatedly gotten the MIT item incorrect, notwithstanding multiple corrections of you by yours truly.The only ‘madness’ here is your continued desire to misunderstand what the references are actually saying.

            3. “you have repeatedly gotten the MIT item incorrect, notwithstanding multiple corrections of you by yours truly.”Ahhh yes, I’m supposed to take patent jebus’s word for it on what it says rather than taking it at face value. Nevermind that patent jebus is here to usher in a new era of patents relying heavily on his “interpretations” of what experts have said.

            4. 6, your attempt to copy the religiously derogative term that was initiated by Malcolm and blocked repeatedly by Prof. Crouch only proves the point of your lemming ways.Try to think and try to be less offensive.

            5. “… and blocked repeatedly by Prof. Crouch ..”Really? Because it’s all still in the archives. This little nugget was the funniest:Patent Jeebus can slice bread into infinitely thin slices that only Patent Jeebus can see. That’s why he has endless slices to hand out here.

            6. Your choice of responses and being offensive is a bit sad Leopold.Perhaps you should focus on adding substantive matters to the conversation instead.

            7. Who am I offending, anon? You? Disciples of Patent Jeebus? Because I doubt that any Christians with any sense of humor at all are offended.

            8. jebus has been blocked by D? D’s engaging in patentreligious protectionism? I’m not sure that you two understand why the term is being used. The term is being used to describe you because you come, under your own authority, proclaiming your “truth” and expect everyone else to just jump on your bandwagon.

            9. More than anyone here 6 I have provided external authorities, so (once again) you are wrong.External authorities like case cites and authorities like Donner and Slusky. You know 6, the ones you cannot bother to find and educate yourself with.

            10. Right, external, unseen ones, just like the big J historically used his “visions” etc to support his own arguments from authority. The analogy continues to hold even better than before.

            11. The ILLUMINATI OF COURSE! If you put your tinfoil hat on for a second and block out their mind-waves you’ll see it very soon!

            12. 6′s masters are the powers that be that would tear down our patent system. 6 obvious has chosen the path of not thinking for himself. It is a tough path to think for yourself and reason from first principles. 6 was on such a path but broke off.You MM are past hope and represent the darkness of the human spirit.

      2. Except isn’t it odd that the country with—BY FAR–the most software innovation has software patents. And, the number two country Germany relies heavily on U.S patent protection and does a lot of their development in the U.S.You people just can’t reconcile macro realities with your fantasy arguments.

        1. “Except isn’t it odd that the country with—BY FAR–the most software innovation has software patents.”Yeah I know, as Mike the economist dude over at Techdirt has hypothesized it is very likely that patent protections (protectionism actually) follow after innovation starts widely occurring in a field. I whole heartedly agree. “You people just can’t reconcile macro realities with your fantasy arguments.”I don’t know w t f you’re talking about, I “reconcile” the “macro reality” with my “arguments” all the time. I understand quite well that you very much would like protectionist policies akin to those we have in the useful arts for the software arts as well. That’s easily “reconciled”. If there’s something else you feel like is not “reconciled” then please bring it to my attention. As to whether or not such protections are really needed, would be of any benefit to anyone except the person seeking protectionism, produce more harm than good, are currently valid under the law, or are even constitutionally permitted in this country is a very different matter.

            1. “What on earth makes your bring up that red herring/strawman?”My guess would be your asinine attempts to portray the software arts as outside of the useful arts.Just a guess (but I think a pretty darn good one).

            2. Brother, again, I’m making a simple finding of fact. Don’t you remember the reference about the useful arts and sciences where computer related things were put over in the sciences away from the useful arts?

            1. Well anon what’s your take on the follows/precedes hypothesis? How many countries were not advancing, implemented a patent regime and were then transformed into a powerhouse of innovation where they were not previously? If you know of some, please to be letting me know. Because the only ones I’ve seen are the ones that are from hundreds of years ago, where the implementation of a patent system may or may not have caused the explosion in innovation. On the other hand there are example after example after example of IP laws either following industrialization or being forced on countries that didn’t adopt them of their own accord. I mean let’s be clear, I’m all for seeing some evidence. My position on this matter is far from set in stone. Just the available evidence I’ve seen seems to point in one direction only. I’m willing to hear your side out in full.And I should also note that I have no problem with a patent system being implemented for the traditional useful arts, even after the fact of development. For the reason stated in the constitution, as it happens.

            2. LOL – how many countries…?You almost sound like you want to join the anti-patent search party (that has never come back with even a single example). So please, 6, find me that single example of a modern advanced country that has decided to chuck all of their IP laws and that have ‘seen the light.’I will not be holding my breathe.

            3. Nobody’s saying that they should “chuck all of their IP laws”. I can of course point you to one that “chucked software patents”.

      1. This is the first comment after the article: (Yes, they are doing it so they can take our software.)Let’s be clear that this is essentially about the government of New Zealand, hardly an international power-house of software innovation, granting domestic companies permission to ignore software patents. It’s a direct attack against the companies which innovate most in software, for instance major companies in the US and UK.

        1. the companies which innovate most in software, for instance major companies in the US and UK.Wait a minute. I thought those companies were just copiers who steal all their ideas from the “little guys”, without whom we’d revert to a purely agrarian society?

          1. You (and 6) were graciously invited to abstain from using any innovations that included software.To make a crack now about ‘agrarian society’ is amazingly duplicitous.

            1. To make a crack now about ‘agrarian society’ is amazingly duplicitous.It’s called sarcasm. The comment was made in mockery of your childish and pointless “invitation”. But go ahead and keep reminding everyone of your “invitation.” Only the hardcore kool-aid drinkers like yourself find it persuasive or meaningful. Nobody with half a brain actually believes that software or business method patents are necessary for software or business methods to keep improving. Only people like you believe that. You know, the same kind of people who spent years trolling this blog using hundreds of different pseudonyms while pretending not to. Until you were outed. Or have you forgotten that already?

            2. “It’s called sarcasm”It’s called FAIL. Try something else (and try to recognize the difference between the wonderfulness of childlike and the banality of childish – that too is another FAIL of yours, as you attempt to slide in the “necessary” strawman that I just busted you with yesterday into another conversation – there is no such thing as only ‘but for’ as a reason for patents – but then again, you already knew that because I have repeatedly told you that).And also try to kick up some other dust than ‘sockpuppets’ as you QQ’d that they were the worst thing ever incessantly only to be busted yourself for using them (and using them much more recently) over at PatentDocs. Your attempt to kick up dust with that only serves to highlight your hypocrisy.

            3. It’s called FAIL.No, it’s called “sarcasm.” Seriously. Look it up and stop making a fool out of yourself.

            4. I recognize that you think it is sarcasm, Malcolm. But when you are merely mean-spirited, and the post has no wittiness to it, it is only FAIL.It does not work for you. Try something else.(and I do not mean gratuitous nonsense like your *click* CRP)

            5. I recognize that you *click*See, that’s not sarcasm. Can you tell the difference? I doubt you can but I thought I’d make a final effort before I attack this delicious sandwich.

      2. “Interestingly, while trolls get a disproportionate amount of press, the GAO found little evidence that they’re responsible for the growth in patent litigation. The proportion of lawsuits initiated by trolls (“patent monetization entities”) and non-trolls (“operating companies”) hasn’t changed much over the past five years.”

    3. Another excellent article: link to usv.com…Spoiler:”Not only is it becoming impossible to invent new services on the web without the permission of a patent holder who claims to own the intellectual property embodied in your invention, it is impossible to know who you need to ask permission of. I recently spoke to an entrepreneur who put it this way.I ignored my lawyer’s advice not to do a patent search to avoid subjecting myself the possibility of treble damages for willful infringement. I hired several firms to search for patents that our service might infringe. Each of them came back with completely different patents and each time I sent them back to do it again, they came back with still more different patents. When I searched myself in the patent database, each time I entered the same search query, it would return different results. None of these patents seemed to cover what we did, so I eventually gave up.”And”My experience has been the opposite. As I described in this post, the companies I work with invest a huge amount of time and energy creating a service from scratch only to find after they have launched and become successful that a patent holder they have never heard of, operating (if they operate at all) in an entirely different market claims that our company has stolen their property. The problem is not the internet industry; the problem is software and business method patents.”And then, indeed sir, indeed:”When he cites an inventor, he points to the inventor of the incandescent light bulb, Thomas Edison, not the creator of Facebook. When he describes inspiring inventions, he cites “bone screws that can be adjusted remotely, using a wireless power source” and “a new kind of nuclear reactor that all but eliminates the need to enrich uranium” not “one click” purchases on the web.And when he talks about the great companies that support stronger patent protection he mentions General Electric, Proctor & Gamble, 3M, DuPont, and Caterpillar, not Google, eBay or Facebook.There is a reason for this. Even the average reader of the Harvard Business Review has a gut appreciation for the fundamental unfairness of software patents. “Exactly:”When it is patented, the “invention” is abstracted in the hope of covering the largest possible swath of the market.”

  16. As with the other public fora I read, the anti-Spangerberg critics here fall into a few basic buckets: 1) general public folks who are ignorant of the patent process and don’t understand how it works. They fail to appreciate that like any other type of property, the owner has the right to ask for a fair return – it doesn’t matter how the defendant came to use it. 2) self-loathing computer geeks who’ve decided that all software patents are evil and object to anyone making money off of them; 3) big software companies that don’t like to pay for technology they’ve been using b/c they have a SERIOUS NIH problem; 4) “patent attorneys” and other “professionals” who are simply envious of his savvy and success in finding good assets, and having the balls to invest a lot of $$ to see them enforced and give him a good return. The clowns in this last class are the most pathetic – they seem to come out of the woodwork to try and tear him down out of jealousy. They need to take a closer look in the mirror about who is the bigger failure – from what I see, he might get knocked down a few times, but he gets right up – he doesn’t care if he loses a battle or two, he’s still winning the WAR.

    1. Also, I think that this gives incentive for inventors. If do invent something worthwhile, then maybe someone will enforce it for you. The other thing is if the invention is not worth something, then why don’t they design around it.

    2. “patent attorneys” and other “professionals” who are simply envious of his savvy and success … The clowns in this last class are the most pathetic – they seem to come out of the woodwork to try and tear him down out of jealousy. ROTFLMAO. Well, we also know what brings “clowns” like Nicholas “out of the woodwork.”he’s still winning the WAR.What “war” is that? The one where whoever dies with the most toys “wins”?

        1. I think he meant the “WAR” where whoever dies with the most toys is the winner. Maybe he’ll show up and clarify himself. But perhaps he isn’t comfortable speaking in “fora” where he’s likely to be questioned about his views.

        1. If that’s the case (and I kinda doubt it) Nicholas certainly chose a strange comment to make for his “first time post” here. But, hey, he’s the self-proclaimed “Berkeley IP Law Master.” Nothing “clownish” at all about that.We can all be certain that Nicholas doesn’t have any financial interest at all in Spangenberg’s success or in Intellectual Ventures or in any other “patent monetizers” out there. Right? He’s probably just a bystander with no cards in the game whatsoever who happens to be a patent attorney. Yeah, that’s it. He’s just an ordinary fellow concerned about the future of innovation. Right. And people who disagree with him about Spangenberg are “self-loathing geeks” or “clowns.” Sure. That’s it.

          1. “We can all be certain that Nicholas doesn’t have any financial interest at all in Spangenberg’s success or in Intellectual Ventures or in any other “patent monetizers” out there. Right?”LOL – Malcolm and his Accuse-Others-Of-That-Which-He-Does game yet again.B-b-b-but blogging is different and secrecy is (above the nominal use of a pseudonym) is important even though Malcolm has never explained why…/eyerollAnd what’s ‘great’ about this is that while Malcolm does not need to explain anything to me, his calling me names and NOT explaining himself only highlights the hypocrisy of his posts – just like his claiming that J Nicholas Gross is an arrogant ignorant b.s.er – all the while that description so aptly fits him (hmm, Malcolm accusing others of that which he is, we’ve seen that before on these boards). LOL – go figure.

            1. B-b-b-but blogging is different and secrecy is (above the nominal use of a pseudonym) is important even though Malcolm has never explained why…I don’t need to explain anything to you, TB. That’s the best part.And if anyone wants to know the content of my response to J Nicholas Gross, just ask me. In a nutshell, his arrogant, ignorant b.s. was served right back at him.

            2. his calling me names and NOT explaining himself only highlights the hypocrisy of his postsOver the past several years, I have explained more of my comments to you than anyone who ever commented here, TB. I just don’t have to do that. Again: work on the reading comprehension. You’ve got some real issues.

            3. Kicking up dust, spinning and misrepresenting what others post, and regurgitating your vacuous theories ad nauseum is not “explaining” Malcolm. Rather funny that you think so, given the 30,000 plus mewling words of QQ from you following the Myriad case when three little words would suffice.Try again (or for the first time).

    3. I saved this comment, just in case it gets edited. It’s right up there with some of the very “best” defenses of the indefensible that I’ve ever seen on the Internets. Yes, let’s all take a “closer look in the mirror”, compare ourselves to the Great Spangenberg and ask ourselves: “who is the bigger failure”? Of course, some people might have difficulty telling their “mirror” and their “bank account” apart but, hey, who’s counting?

  17. This article contains many of the logical fallacies aboutpatents.1) It is not incompatible that Diffle invented Public Key Encryption and Jones invented a way of using that system that allowed for efficient online payments. Of course both sides are pulling out the hyperbole, because people in the US today act on their emotions instead of reason. To better understand this problem, ask yourself if Joseph Swan or Thomas Edison invented the light bulb. (Answer they both invented incandescent light bulbs, but these were not the same invention) Inventions are more subtlethan the PR people want for a good story. 2) 800 Lawsuits: Why do people never ask why so manycompanies ignore or fail to undertake a basic due diligence search. If a developer built a building and did not do a title search on the land, would you blame developer or the owner of theland? Perhaps you should be asking why so many companies failed to do a basic patent clearance search.

    1. To better understand this problem, ask yourself if Joseph Swan or Thomas Edison invented the light bulb.You’re comparing this Jones guy to Edison or Swan? Seriously? Talk about a “logical fallacy”.both sides are pulling out the hyperboleAh yes, the classic fallback position. “Both sides do it.” Where’s the “hyberbole” coming from the defendants?It is not incompatible that Diffle invented Public Key Encryption and Jones invented a way of using that system that allowed for efficient online paymentsRight, there’s no “incompatibility” in theory with someone discovering a broadly applicable “system” and another person obtaining a patent on a method of using that system for some non-obvious purpose. But if existing systems already “allowed” for efficient online payments then whatever it was that Jones contributed is likely obvious junk because, regardless of the garbage that Spangenberg wants you to believe, the idea of using computers for commercial transactions was not invented by Jones. Why do people never ask why so manycompanies ignore or fail to undertake a basic due diligence search.People ask that question all the time, Dale. Stop pretending otherwise. The answer is well-known: there is so much junk out there right now that it’s not worth the time for “many companies” to bother with it. I have a business. I use a computer in that business. Am I infringing a patent? Who knows? Probably. I could care less.But people like you, Dale, want to “fix” that, don’t you? You want to make it so that dealing with patent trolls like Spangengerg (or people like him) is just “part of doing business”, for everybody who does any kind of business.If a developer built a building and did not do a title search on the land, would you blame developer or the owner of theland?Gee, Dale. As if there’s no difference in land title recordation and patents. You guys never fail to disappoint.

      1. Macolm, the basic problem remain and that is junk patents. The reformers are all over the map on attacking the chaos that results, while avoiding a cure.

        1. The reformers are all over the map on attacking the chaos that results, while avoiding a cure.Not sure exactly who you mean by “the reformers” but the “cure” is pretty clear for the most part: get rid of the computer-implemented junk and business methods by statute. As we all know, those who are most opposed to that “cure” are not “the reformers”. So blaming “the reformers” seems to me to be just another dust-kicking move, not unlike those who insist that the problem is “poor examination at the PTO” but who seem incapable of getting their heads around just how much junk is out there, how much is in the pipeline, and how we got to this point.

          1. “get rid of the computer-implemented junk and business methods by statute”We have statutes now – clearly, what you really consider ‘junk’ is not gotten rid of by applying the existing statutes.You are so transparent.

            1. what you really consider ‘junk’ is not gotten rid of by applying the existing statutesOh, that has certainly happened and could happen quite a bit more often (and most likely it will). But a clear statutory change would be most welcome. You know, kind of like what happened in New Zealand. You might want to brace yourself for that happening here. You and Gene and Kevin were warned about Prometheus, and you’re still crying about it. Nobody has time for that.

      2. 6MMmmMM9 mustbe a pseudonym for Jay Carne.When you can’t answer the question change thesubject. I never said that Jones was aninventor on the scale of Edison or Swan and that is irrelevant to the questionof whether his patent has been infringed or is valid. But if Jones did invent a system used by allelectronic payment systems then yes he is an inventor like Edison or Swan.

        1. if Jones did invent a system used by allelectronic payment systems then yes he is an inventor like Edison or Swan.Or he’s just like Joe Schmo the Inventor. But you chose “Edison” or “Swan” just randomly, not because you were engaging in hyperbole or because you meant to compare Jones contributions to those of Edison or Swan.When you can’t answer the question change the subject.I didn’t change the subject, Dale. And I did answer your silly question.6MMmmMM9 must be a pseudonym for Jay CarneI have no idea what that is supposed to mean but it sure sounds like “changing the subject.”

          1. No I was illustrating a point that you are either avoiding or cannot understand. Inventions are often much more subtle than the PR surrounding them. Edison and Swan perfectly illustrate this. You can find multiple websites that say Edison did not invent the light bulb. Some credit Swan. But any patent attorney or technologist who studies the history knows that what Edison invented was the high resistant, long life filament incandescent light bulb. Swan sued Edison for infringement and won. By the way Swan was not practicing his invention – Swan was a Patent troll.

            1. I was illustrating a point that you are either avoiding or cannot understand.I understood your point and acknowledged it. Inventions are often much more subtle than the PR surrounding them.That’s because people like you insist on bringing up Edison and Swan in contexts where they simply are not relevant, like this particular patent dispute. Swan is a patent troll? That’s funny. Here’s the facts re Edison and Swan that reveal just who has the “PR” problem, Dale:link to en.wikipedia.org…Edison had been working on copies of the original light bulb patented by Swan, trying to make them more efficient. Though Swan had beaten him to this goal, Edison obtained patents in America for a fairly direct copy of the Swan light, and started an advertising campaign that claimed that he was the real inventor.Both these guys had companies. Both were manufacturing lights. They knew about each other, they knew about each other’s patents, and they were competing, head to head, in real time. Swan was no “patent troll” surfacing from the muck years after the fact using some junky patent justifiably ignored by everyone to hold giant swaths of an industry hostage.

            2. It is absolutely relevant. It illustrates my point perfectly, but you insist on changing the subject of comparing Jones to Swan and Edison. The fact that you have avoided the obvious point illustrate why i suggested you must be Jay Carne.

            3. you insist on changing the subject of comparing Jones to Swan and Edison.You brought them up in the context of criticizing the “PR” that you claimed (without support) that “both sides” are engaging in. You also called Swan a ‘patent troll”, as if to somehow suggest that the proliferation of guys like Spangenberg is “normal”. Neither are true. Apparently Swan’s “patent troll” character (again: false) was an important aspect of your “point” but given that it’s not a “fact” it makes your “point” (whatever it is) even less clear than it might have been.The fact that you have avoided the obvious point illustrate why i suggested you must be Jay Carne.What? Huh? I didn’t “avoid the obvious point” because I’m still not sure what your “point” is or why you think it’s relevant to this thread (at least to the extent it’s not something so trivial as “people say stuff during lawsuits”).

            4. “context of criticizing the “PR” that you claimed (without support)”Malcolm, when have you ever made a post with support? Legal support that is?More of your CRP Accuse-Others-Of-That-Which-You-Do nonsense..”What? Huh? I didn’t… because I’m still not sure”More of the Vinnie Barbarino school of rhetoric, huh?

            5. More of the Vinnie Barbarino school of rhetoric, huh?Vinnie Barbarino … wait. Jay Carne played Horseshack? Is that the connection? I thought he died a few years ago.

            6. Malcolm, when have you ever made a post with support? Legal support that is?I’ve done so here thousands of times, TB. And you know this. Everybody does. But go ahead and wallow in your lying puke.

          2. It is totally dishonest to say that you can tell a patent is invalid by just reading it. You are an anti-patent troll with no interest in the truth. I suspect you don’t believe that patents should exist at all. Certainly you cannot be anyone competent to review patents and suggest you know they are invalid by spending a little time reading them.

            1. It is totally dishonest to say that you can tell a patent is invalid by just reading it.That depends on the patent, as everybody knows. In any case, I never made that statement as a universal proposition. You’re arguing with an imaginary commenter.You are an anti-patent troll with no interest in the truth.LOL. Pretty funny coming from you, Dale. Remember when you defended the patent troll who was suing the film company because a character in the film allegedly infringed his patent claim? I do. Good times, Dale. Keep up the great work.

          1. No, because a real validity study is something that takes tens to hundreds of hours. I have certainly seen patents that should not have issued, but the myth that these are numerous is not based on any valid survey. Patents are the most expensive, most examined, and take the longest to obtain of any property right in the world.

            1. because a real validity study is something that takes tens to hundreds of hours. I didn’t ask for a “real” validity study.I have certainly seen patents that should not have issued, but the myth that these are numerousI’ve seen numerous patents that should not have issued and I don’t even spend much time looking for them. So, it’s not a myth. Also “not a myth” is the fact that defenders of patent trolls like yourself will inevitably criticize anyone who attemps to evaluate an issued patent’s validity as “anti-patent” … unless it’s one of Google’s patents apparently (in which case it’s okay because Google is also “anti-patent” … or something).Patents are the most expensive, most examined, and take the longest to obtain of any property right in the world.You couldn’t make this stuff up if you tried. Seriously? Now patent validity is being defended by the troll defenders based on the assertion that patents are “expensive” and they take a really really long time get. Good lord.

    2. Compare, United States v. American Bell Telephone Co., 167 US 224 – Supreme Court 1897 at 244 where the Supreme Court desribes that it took 4 inventions to make the telephone a commercial product.

  18. But just think now with the Senate unblocked all the federal judges are going to be appointed. They will need something to do, so we don’t need the patent reform anymore. :)

  19. “in Spangenberg’s view; the customers’ actions are part of the infringement.”Interesting theory. I wonder how his full “infringement” theory goes, and why nobody has called him out on it till now?

    1. 6, Have you read Univis Lens and the discussion of the Government’s brief in that case that is set forth in Quanta?It was quite apparent even thought the claims covered the finishing steps of the opticians, those steps were conventional and routine. That is why the lens blanks carried with them the essential features of the invention.Having cited Univis Lens with approval, I think that it states prevailing law today. If the steps of the consumer are conventional and contain no part of the novelty, then there is infringement.

      1. Lens blanks “carried with them” the “essential features” of an “invention” that includes/covers “steps”? Sounds like the invention is a method if it covers steps. Lens blanks do not carry with them essential features of a method. I haven’t read, or haven’t read in awhile, the Univis Lens but I presume I’d be violently at odds with whatever nonsense went on in that case if what you’re saying is correct. “If the steps of the consumer are conventional and contain no part of the novelty,”Why are they even in the claim if that’s the case?

  20. “Ron Rivest of RSA Security. Rivest wasn’t exactly shy about his invention; RC4 stands for Ron’s Code 4″I like the naming scheme lol.

  21. The story behind the patent is amusing to say the least. “Inventor” Jones tries to start a company and fails because his product isn’t useful. The junk patent sits around, ignored by everybody, until Spangenberg stumbles across it and realizes that the claims can be construed (by him) to cover a method that is (by some miraculous coincidence!) “widely in use” and (according to Spangenberg) is fundamental to transacting over the Internet. Some choice quotes from the article:[Inventor Jones:] “It wasn’t until the 1990s that the markets for VPNs really came about. It took many, many years for this technology to broaden out and become useful.”Even if we give Jones the benefit of every doubt, there is no denying that very similar “technologies” were being developed at the same time (and earlier) in complete ignorance of his “contribution.” This is what is so absurd about so many of these computer-implemented junk cases. Why in the world should this guy Jones (much less Spangenberg) be rewarded for describing something that Jones (by his own admission) couldn’t figure out a use for or find a market for? While at the same time identical or similar “technologies” were being developed and marketed all around Jones, in complete ignorance of Jones’ “contribution”?TQP lawyers say Jones did much more than create a modem business. They describe him as a “visionary” who saw the future of electronic payments.News flash: using electricity and codes to arrange for payments pre-dates Jones by many many many years. “Mr. Jones was thinking about e-commerce before e-commerce was even a phrase,” gushed Marc Fenster, Jones’ lawyer, during opening statements on Tuesday.That’s nice. Computers, which are very old machines and which were old at the time of Jones’ “invention”, receive, store, process and transmit information. Nobody doubted then just like nobody doubts today that computers can and will be used to receive, store, process and transmit information about money, including (1) who has money; (2) how much money; (3) account numbers; (4) super secret passwords; (5) super secret codes for encrypting and decrypting. Bottom line is that every thoughtful person who had ever communicated with someone using a computer had “thought” about engaging in a financial transaction with the computer. Indeed, people had transacted with computers before Jones “invention”. So whatever Jones was “thinking” about he was hardly alone. And it appears that quite a few other thinkers were way ahead of him in terms of “enabling” today’s online experience.Surfing around I stumbled across this fascinating side-story about Diffie’s invention (with Hellman and Merkle) of so-called public-key cryptography and the patent (4200770) that was filed on that invention:link to cr.yp.to…Diffie disclosed the idea of public-key cryptography at a conference in June 1976.Diffie and Hellman also distributed preprints of their “New Directions in Cryptography” paper, which disclosed the Diffie-Hellman system, at that conference and by mail. For example, Mike Matyas received a copy in August 1976. The patent was filed in September 1977. … It appears, therefore, that the Diffie-Hellman-Merkle patent was invalid.Anyone know how many hundreds of millions were made off of licenses to that patent prior to its expiration in 1997?

    1. “It appears, therefore, that the Diffie-Hellman-Merkle patent was invalid.”That’s interesting speculation, but you’d have to compare the contents of the paper to the patent claims to come to any conclusions.”Anyone know how many hundreds of millions were made off of licenses to that patent prior to its expiration in 1997?”Apparently not that much was made off the Diffie-Hellman patent. RSA did quite well with a group of later patents, but those patents were widely considered to be pretty fundamental.link to ics.uci.edu

      1. Thanks for the link, LB. That is a fascinating read. Odd, but I didn’t see Jones’ name being mentioned anywhere in there.

  22. “favor defendants”Understatement of the year. ArsTechnica and VentureBeat are both anti-patent rags. Mullin is openly anti-patent and anti-NPE. His writing is highly editorialized and almost entirely opinion-based. He appears to accept any information as gospel truth as long as the information is anti-patent or anti-NPE.

    1. ArsTechnica and VentureBeat are both anti-patent ragsI’m not familiar with VentureBeat but ArsTechnica is a well written and informative blog.Mullin is openly anti-patentAll patents? Can you show me a quote to that effect (I assume that will be easy for you given his “openness”)? Mullin is openly anti-NPEYou mean he’s “anti-patent troll”? That’s true of most people that I’ve met, including a lot of patent attorneys.

      1. You are not obliged to share my opinion of these websites or their ‘journalists’. Frankly, if you can’t answer these questions yourself from reading Mr. Mullin’s tripe I don’t expect that me explaining it to you will do anything to assist you.

        1. f you can’t answer these questions yourself from reading Mr. Mullin’s tripeMaybe you can tell us whether Mr. Mullin’s reporting on the history of the claimed technology is incorrect.

          1. I stopped reading both of these websites and Muillin quite a long time ago. I have no opinion as to this article. If I want a properly investigated story about fracking I’m not going to seek out an article from the Sierra Club website or an oil company.

            1. You want him to have an opinionBluto’s opinions are worthless if he’s proven to be a wanker, which just happened.

            2. you want him to have an opinionNo, I just wanted to see if his opinions were as worthless as they seemed at first glance. That was confirmed.

            3. Pure B$ Malcolm.You chose a quote that explicitly dealt with an opinion on the present article.Nice (and typical) dissembling from you.And upon further consideration, your posts are B$ in light of the fact that Bluto clearly evinces a very reasonable standard that proponents on either side of an issue should be looked at with skepticism. You kind of overlook that in your eagerness to diss him.And further, being anti-software patent or anti-business method patent IS being anti-patent. Both are currently patent eligible materials under the law. SO if you are anti current-law, then you are anti-patent.

            4. Bluto clearly evinces a very reasonable standard that proponents on either side of an issue should be looked at with skepticism.Really deep stuff there. So who shouldn’t be looked at “with skepticism”? Oh right: the guys with “no opinion.” LOL.I’ll just put it more plainly since you seem to have real trouble understanding this. Bluto said that Mullin was “openly anti-patent.” Bluto is a liar.Got it? Go ahead and prove me wrong if you disagree.being anti-software patent or anti-business method patent IS being anti-patent.Ah, looks like Humpty Dumpty is back. Bow down, everyone!

      2. Malcolm, assume for the sake of argument that encrypted modem patent is valid and in widespread use. The inventor attempted to make and sell products, but for some reason his companies failed. Do you think it wrong that the inventor seek compensation for the use of his invention?If you do not think it wrong to be compensated, do you think it wrong that he enlist the aid of a lawyer?Where does his assumed legitimacy go wrong?For some time here, I have seen you legitimately decry junk patents with obvious, functional or ineligible claims. But is that true in the case of the modem patent? Can one assume that any patent asserted by a lawyer/owner is junk?

        1. assume for the sake of argument that encrypted modem patent is valid and in widespread use. The inventor attempted to make and sell products, but for some reason his companies failed. Do you think it wrong that the inventor seek compensation for the use of his invention?Not at all. That “compensation”, of course, should reflect the actual contribution to the field. For example, to the extent that the field simultaneously and independently developed a technology that happens to fall within the scope of the patent (which was ignored by the field), then the “compensation” should be minimal.

          1. to the extent that the field simultaneously and independently developed a technology that happens to fall within the scope of the patent (which was ignored by the field), then the “compensation” should be minimal.I’m not sure I agree with that. If his patent fairly covers technology that is important enough that the field can’t do without it (even if it could before), he should be well compensated.If his patent doesn’t actually contribute to the field, then his claims should either fall under 102/103/112 or not be infringed.

            1. If his patent fairly covers technology that is important enough that the field can’t do without it (even if it could before), he should be well compensated.I’m not sure what “well compensated” means. Presumably that includes $1 billion dollars. Does it include $5,000? But the better question, I think, is: what are we “compensating” this individual for, exactly, in the case where the individual happened to file a patent but the “technology” covered by that patent (1) evolved near-simultaneously and completely independently of the patent and (2) the technology’s practical utility and value depends on dozens or hundreds of developments that were never contemplated by the inventor.I think the answer is that this isn’t really “compensation” but simply a windfall, not unlike a lottery …. a lottery where the “losers” are people whose hard work is rewarded by payouts to the lottery winner.

            2. But the better question, I think, is: what are we “compensating” this individual for, exactly, in the case where the individual happened to file a patent but the “technology” covered by that patent (1) evolved near-simultaneously and completely independently of the patent and (2) the technology’s practical utility and value depends on dozens or hundreds of developments that were never contemplated by the inventor.For thinking of it first, before the industry even knew it needed the technology.That’s what patents are for, isn’t it? Sure, it’s a windfall if the industry turns out to be worth a billion in royalties. I don’t have a problem with that, as long as the industry can afford the payments. A multi-billion dollar industry is bound to make somebody richer than we think they deserve to be, so why not him?

            3. for thinking of it first, before the industry even knew it needed the technology.Except the facts suggest that he probably didn’t “think of it first”. More likely he simply thought of filing the patent first.That’s what patents are for, isn’t it?Huge windfalls for lucky people who happen to file first? I don’t think so. Again, I’m not saying that the person isn’t entitled to compensation. There should be a reward. But the reward should be commensurate with the contribution made by that individual, not a reflection of the value added by others who never recognized the contribution of the individual (but who succeeded regardless).

            4. ‘Thinking’ and reduction to practice (including constructive reduction to practice) are clearly different things. But you already knew that, right?”for lucky people who happen to file first? I don’t think so”But that’s not entirely accurate and you already knew that, right? Look at the post from IANAE that has garnered the most upvotes he is likely to ever get. The law (as it already is) provides the proper mechanism for determining “the lottery winner’. That’s the way the law is meant to work. You don’t think so? Think again.Perhaps what you meant to say was “I don’t want it to be so.” But that’s a different discussion, and you already knew that, right?

            5. The law (as it already is) provides the proper mechanism for determining “the lottery winner’.There’s nothing about “lottery winners” in the patent law. The intent of the law is promote progress in the useful arts by rewarding inventors who disclose their invention with monopoly rights. In this case, the “genius” who invented the claimed invention was unable to appreciate the awesomeness of what he now claims that he “invented” — in spite of the fact that he went through the trouble of patenting it and describing it for the world! That strikes me as more than a little odd and it also suggests that the inventor already received the “reward” he was entitled to, and then some. In fact, we know that’s the case. He marketed a product embodying the invention and in spite of the fact that he had patent protection, his product tanked. Nobody cared. Why should they? Just another junk patent and another junky product.The real “reward”, of course, is being claimed by Spangenberg and his bottom-feeding ilk. That’s why we’re all “jealous” of Spangenberg, right? Spangenberg didn’t invent anything. His “genius” was to recognize that the patent system was ripe for exploitation in the exact manner in which you see him (and his fellow bottom-feeders) exploiting it. Was he the first? Hardly. But rest assured there are a lot of people who’d love to follow in his footsteps. And that includes probably 95% of the people who comment here defending the awesomeness of “software patents.”

            6. “where the “losers” are people whose hard work is rewarded by payouts to the lottery winner”Malcolm, you have no credibility to make such a statement given that you have boasted (and you being one who supposedly works in the patent field and should know better) that you have started a business and refused to do any due diligence on possible existing patents.(and please, don’t try to pass off any B$ “like nearly all business people in this country” – you supposedly know better, being rumored to be involved in IP.

            7. you have started a business and refused to do any due diligence on possible existing patentsRight, like nearly business person in this country. We know you’d like it be different. The patent troll defenders have been very clear that, in their minds, people should just “get used to” being threatened or sued by patents. Because “progress”! Or something.

          2. L. Hand said something to this effect that one of the indicia of obviousness was widespread, contemporaneous, and independent invention of the same invention. So, if this is objective evidence of obviousness, how could the PTO use it to invalidate or not issue it in the first place? I’ve never see this in a recent case.

            1. Ecolochem, Inc. v. Southern California Edison Co., 227 F. 3d 1361, 1379 (Fed. Cir. 2000)I couldn’t find a L. Hand case. But, I think there is one.

            2. So then, exactly as I have previously posted on this thread that the item in and of itself does not serve as a determinative indicator of obviousness or validity – and that all of the Graham factors should be evaluated.

          3. “”compensation”, of course, should reflect the actual contribution to the field.” How do you do that? Where does that “test” find support in the patent statute?

        2. “Where does his assumed legitimacy go wrong?”Perhaps at the point where the inventor is making a whole 2.5% + a few random fees.Also Ned, I don’t think the patent is for a modem, though I haven’t checked yet. From what the article states, the patent is on a method.

          1. Well, Mr. S did seem to get the better end of the deal there. Should we pass legislation that the inventor get no less that 50%? That kind of legislation may end up preventing the inventor from getting any compensation at all.

          2. The investor assumes a lot of risk that, once sold, the inventor no longer assumes. Unless there is a way to assess risk across all patents in the same way, it seems to me the value negotiated in this (or any other) deal is the right percentage. That is true even if there is no percentage or consulting fees after the sale.

            1. (sigh)6, your ignorance shines on in that the Quid Pro Quo is not about “buying” a government granted entitlement.I wonder if you realize how much you hurt your credibility by continuously playing to this aspect of your ‘character?’

            2. I’m willing to hear you out about your non-entitlement position, but you’ve got an uphill battle arguing agin the 35 U.S.C 102 my brosef.

            3. (sigh)6, I suggest you attend a different law school than the Beavis-he-said-a-word law school.Your ability to (purposefully) misunderstand the subtle differences in meaning based on context does not serve to establish your credibility.You see the word ‘abstract’ and immediately think of the top rung of a ladder and think not patent eligible while (purposefully) ignoring the fact that all rungs of the ladder have abstractions (witness how I decimated you with your offering of ‘table’ awhile back).You see the word ‘entitled’ and immediately think of government entitlement (as in handout), and (purposefully) misunderstand the distinction with the Quid Pro Quo and what that word in 35 USC 102 actually means.So, “Brosef,” what you think of an uphill battle is simply yet another mistake of yours. The only uphill battle is getting you to realize the CRP that you post and realize that you only hurt your agenda by posting such flimsy CRP.

            4. See but that’s where you’re wrong anon, I don’t just think entitlements are “handouts” (in the way you mean that phrase). And I’m not purposefully misunderstanding the distinction BETWEEN the quid pro quo and what entitled means in 102. I simply have a more complete understanding of what entitlements are in our government than you apparently do. I don’t see most of them as simple handouts. Many, many many, of them come with conditions which must be fulfilled. See for example many farm subsidies, social security, medicare. And you might be thinking of social security and/or medicare as a “handout” but I actually don’t all that much. They are to some extent sure. Medicare is simply the socialization of old people’s healthcare such that it becomes single payer. Not really a handout in my book. Social Security is what it says it is, old age insurance. You buy into the plan during your young years and you collect if the unthinkable happens to you and you get old. Farm subsidies often require you to plant/raise that which you would not otherwise or do other things. There’s a definite quid pro quo there, it isn’t simply a handout (though it can become one once an entire industry springs up around the subsidized market just to take advantage of the subsidy). Likewise with all manner of other government entitlement programs. Nearly all require some quid pro quo. But in any event, I certainly understand the distinction BETWEEN the quid pro quo and the word “entitled” in 102. In the patent system you give your disclosure for a patent. You are then, after having given that, and after examination entitled to a patent subject to some conditions. The distinction is easily seen. In either event, neither of those have any bearing at all on the patent system ultimately being an entitlement program. Just because it isn’t a blatant “handout” without getting anything in return doesn’t stop it from being an entitlement program. And certainly there being a quid pro quo doesn’t stop it from being an entitlement program.

            5. certainly there being a quid pro quo doesn’t stop it from being an entitlement program.Indeed. But because it’s an “entitlement program” taken advantage of almost solely by people in the upper income brackets, it doesn’t get nearly the kind of attention given to “entitlement programs” that are taken advantage of by, e.g., poor minorities.Until recently of course. Gee, I wonder what changed?

            6. Revisit the award winning journalism revealed at PatentDocs by 6′s mancrush Dudas (yet again) and realize that the entire software patent realm that you wish to diss is because, as you put it, anybody can invent.Your hypocrisy is amazing Malcolm. At the same time you want to paint the patent system negatively as a Sport of Kings, you also seek to deny patent protection to non-kings just because they are ‘common folk.’

            7. “I simply have a more complete understanding of what entitlements are in our government than you apparently do”You are simply wrong and using the term incorrectly. Again, the subtle difference in meaning based on context still yields a difference in meaning.Try again.

            8. 6,Previously you had (erroneously) accused me of engaging in ‘character’ assassination and I corrected you by pointing out that you are engaged in ‘character’ suicide.Here, again, you attempt character suicide.While you claim to have a ‘deeper’ understanding, you again show that you have the opposite, a thin and shallow understanding. Did you even read your own supplied links (past the first paragraph, that is)? Do you know how to apply a critical level of analysis beyond the Beavis-he-said-a-word style?If you had read your own supplied references, then you would have recognized that I am (again) correct and that you are (again) wrong.There is at least one quote though that fits your application of the word (from the wiki link): “if given without deeper legal or principles cause, the term is often given with pejorative connotation” (an example of such a FAIL is directly below by Malcolm – not a surprise).The substance that you don’t quite seem to grasp is that the articles you provide do not list the patent program as an entitlement program (that should have been your first clue).Secondly, the articles address the cost of such programs, and as I am sure that you are aware, the patent program does not cost the government anything, being fully funded by user fees.Third, user fees do not result in an automatic ‘right.’ The user fees (by and large) pay for examination, and only upon examination is it that the applicant may earn a right. Yes, 6, believe it or not, not every paid for application results in a patent. Some are abandoned, some are (even rightfully) rejected.Try again.

            9. “if given without deeper legal or principles cause, the term is often given with pejorative connotation”Um, I have a deeper legal cause, 35 U.S.C. 102. And yes, I’m also using the term semi-perjoratively. But not all that perjoratively. The only perjorativeness I give the word here is from the entitlement having run amok. And also somewhat for some people not recognizing what they are in fact dealing with is a government entitlement program, see esp. people wondering why it doesn’t form the basis of business deals very well in many instances. “The substance that you don’t quite seem to grasp is that the articles you provide do not list the patent program as an entitlement program “They don’t have an exhaustive list. Do you know how long that would be just to list the US’s entitlement programs? You can find good listings of such programs online. They’re huge. Furthermore anon, do you know that the best part about entitlement programs is that roughly half the people that use and benefit from them are not even aware that they utilized an entitlement program? “Secondly, the articles address the cost of such programs, and as I am sure that you are aware, the patent program does not cost the government anything, being fully funded by user fees.”So? It just shifts the costs to private entities. The costs are still there, just because they don’t necessarily go through the general fund doesn’t mean there are not still enormous costs. It just so happens though that most people are completely ignorant of the costs (or, in your case, pretend that the costs aren’t actually costs). Because… drum roll please, you have a special definition for costs also! “Third, user fees do not result in an automatic ‘right.’ The user fees (by and large) pay forexamination, and only upon examination is it that the applicant may earn a right. “Yeah you have to pay a fee and actually fill out paperwork regarding your irl facilities to apply for the sugar farming subsidy as well. Only upon examination thereof do you “earn a right”. A lot of entitlement programs are that way. And if I submitted one, I’d be rejected and have to abandon my application.

            10. Your treatment of 102 is a fail: you are merely using the Beavis-he-said-a-word treatment.Note that your use – even semi-pejoratively – should have been a clue for you.. Further 6, I have checked a number of cites in regards to what are considered entitlement programs (The US Gov., Forbes, The Economist, American Enterprise Institute, The Center on Budget and Policy Priorities, even Wikipedia.None of them list the granting of patents as an entitlement program.The closest I could find was an Idilogic Aid page that listed over 1,600 programs sponsored at least in part by the government which included subsidized patent licensing and a technical patent information dissemination program. Neither of these are the USPTO’s patent system.Time for you to back up your claim and provide a source that confirms what you say.

            11. Wait wait, so using a term pejoratively based on its characteristics is an indication that the patent system isn’t an entitlement? I’m just not understanding how my use of the term “should have been a clue for me”. Alsohttp://www.youtube.com/watch?v…

      3. I’ve been an avid arstechnica reader for 13 years, since I was an undergrad intern at Intel. I love their tech reporting and I think, as a general matter, it’s great that sites like ars report on IP matters as much as they do. But I have to agree with the general sentiment of Bluto’s post. I don’t know if I can point you to an explicit statement of him saying “yes, I’m anti patent” (although one certainly could for Tim Lee), but I’ll bet you a million imaginary internet bucks that you can’t find a single article written by him that even suggests the accused infringer *might* be in the wrong.

        1. And there’s the rub. He’s obviously never seen an alleged infringer he doesn’t like. The crowd that witter on about so-called trolls are essentially pro-corporate and against individual inventors. I have nothing particularly against large corporations, but their size is not a licence to infringe, and licencing companies often give inventors a chance to recover some reward for their inventions, so I’m all for them.

          1. The crowd that witter on about so-called trolls are essentially pro-corporate and against individual inventors.Bullsh*t.This common tendency among troll-defenders to conflate criticism of patent trolls with “pro-corporate” or “anti-individual inventor” positions is so absurd it just makes you look like a shill for the trolls.Why on earth would anyone be “anti-individual inventor”? What does that even mean?

            1. Here’s the question again:Why on earth would anyone be “anti-individual inventor”? What does that even mean?Go ahead and answer it. Help Alun out for a change.

          2. licencing companies often give inventors a chance to recover some reward for their inventionsThe idea that licensing companies are necessary for inventors to “recover some reward for their inventions” is a convenient myth.Do you have a patent on an important technology, Alun? You want to “monetize” it? I’ll put you in touch with a non-scmbag lawyer who will help you do that. The best part is that if you’re right about your patent, you’ll end up with most of the money.On the other hand, if your patent is junk that should never have issued in the first place, then go ahead and troll with it. But don’t expect people to celebrate your tactics because you call yourself an “inventor.”Anybody can “invent” this junk, Alun. You know it. I know it. Want to see some more “inventing” of computer-implemented junk, Alun? Just ask.

            1. ” licensing companies are necessary”Nice strawman Malcolm. I do not think anyone ever used the word ‘necessary, while the fact that licensing companies do provide revenue to inventors that would otherwise not happen is incontrovertible. Why the dissembling on this point, Malcolm?

            2. I do not think anyone ever used the word ‘necessaryLet Alun respond, TB. Alun knows what he said and Alun knows what he meant that “licensing companies” (aka companies who exist to troll patents) “give inventors a chance.” Presumably he means a “chance” that they otherwise wouldn’t have. Otherwise, what’s the point?As an aside, you have a very bad habit of interjecting yourself and speaking for others, TB. It’s particularly bad habit when you can barely write in English in the first place and your reading comprehension is well below sub-normal.

            3. (yawn) – the vacuous English as a second language rhetoric…Better trolling please.”Help Alun out for a change.”LOL – “b-b-b-but I didn’t mean for you to point out my strawman.”/eyeroll

        2. I’ll bet you a million imaginary internet bucks that you can’t find a single article written by him that even suggests the accused infringer *might* be in the wrong.Assuming that’s true (and I’ve no reason to believe it is) possibly it’s because he chooses to write articles about patent cases where it seems that the infringer is not wrong. That doesn’t mean he’s “anti-patent.” If Joe believed that “patents are evil” I’m pretty sure he would just come out and say so, in clear terms that everyone could understand.So whatever “sentiment” is flowing from Bluto’s comment, Bluto is full of it when he says that Mullin “is openly anti-patent.”

    2. Well, I’m sure he’s anti-bad-patent. It’s just that the most well-publicized patent lawsuits – particularly those brought by NPEs – are based on patents that tend to induce facepalms when technically-oriented people read about them. As for whether he has a philosophical objection to the patent system in general, though, I’m not sure that can be deduced from his Ars articles.

  23. Interesting article. Still, makes one wonder if the new IPR could be used to invalidate the patent. My guess is yes. If Lourie got his hands on it, I am sure he would find it invalid.Just seems odd to me how almost all the money in these suits go to lawyers and not experts to generate real invalidity arguments. Not sure, but it seems old to me. Like I saw this kind of stuff in the late 1980′s.

    1. Generally I agree, that particular patent would have been highly susceptible to an IPR challenge based on the prior art that’s being pursued in the litigation. IPR would never have been available in that particular case, though. The case referenced in the article was filed in May 2011, and the IPR procedure did not become available until 16 months later in September 2012. The one year statute of limitations, therefore, had already passed but the time IPR came on-line.

      1. Aren’t all patents “highly susceptible” to invalidation in an IPR? After all it uses a different standard of evidence, reverses the burden of proof, and changes the branch of government when compared to a judicial process of invalidation.

      1. No I am not sure. That is why I said I think I saw that stuff. Often what happens is that the top research places do work and then 5 years later the second tier places do the same research. (And, they don’t think they are copying.)

        1. They may not be copying – there is such a thing as independent invention. However (and this is important no matter who says otherwise), independent invention is no defense to infringement, and quite in fact is not an actual legal determinative* element of obviousness (and thus invalidity).People need to remember that it is a race to the office and that the concept of race typically means that there is more than one runner. Just because a race may be close does not mean that you can (or even should from a policy perspective) declare that there is no winner and remove the prize of the patent. There is some excessively shallow and anti-patent thinking being displayed here.* – in and of itself. See the rest of the Graham factors.

          1. Yes anon I am well aware that copying is not an element of infringement.What is interesting, though, is that many scientist believe that once something has been done and learned by a person that it becomes easier for other people to do. I believe this. And, much of the complaints about trolls comes from people that are either doing the same thing someone else has done or are subconsciously copying.What is forgotten is how often some of the information processing inventions were made after many years after a need for them and after many thousands of man years of attempts and failures by others to invent them. But, once invented then somehow people like MM believe them to be obvious.Our problem is that we are now facing a court that is stacked with judges that are ignorant of science and patent law. We can expect them not to appreciate hind sight, subconscious copying, and second invention. And in this age of mobs being encouraged to attack the learned we can expect the likes of the Palin brothers to ridicule any idea beyond their desire to be approved of by their left or right masters.

            1. some of the information processing inventions were made after many years after a need for them and after many thousands of man years of attempts and failures by others to invent them. But, once invented then somehow people like MM believe them to be obvious.”Somehow”? The “how” isn’t very mysterious at all. “A method of buying a product online, where the product is purchased using a computer, wherein the computer is on a table, wherein there is a lamp on the table, wherein the lamp was purchased by a person other than the computer user, wherein the lamp comprises a sculpture, wherein a valid movie ticket is within two feet of the lamp on the table, and wherein the product is a CD and wherein the CD comprises liner notes written by an Englishman.See, I just invented another computer-implemented method (probably the hundredth such invention I’ve dedicated to the public here on this blog over the years). Thousands of years of human civilization and reams of descriptions of methods. And yet nobody ever described the method I just invented! Deserving of a patent? Of course f—ing not.

            2. “probably the hundredth such invention I’ve dedicated to the public here on this blog over the years”You are truly a godsend for the human race sir.

            3. Then there’s the method of a using a device to capture an image of an object of commerce in a location, where the image is captured by a computer-processor, and upon request the computer processer identifies the object provides a list selected from the list of (1) nearest physical purchase points for the object (2) highest customer ranked online purchase points for the object (3) virtual purchase points for the object, and (4) a combination of any of (1)-(3); wherein said location is a sports venue, a concert venue, a private event, a public place, a flying machine, a train, or a virtual representation of any of the aforementioned locations.That’s going to be huge once the “market develops”.

            4. Here’s another one: a method for information sharing, wherein said method comprises preparing a database comprising information about the location of as many publically viewable objects as can be obtained using whatever technology is available at the time the information is collected.The previous method, further comprising collecting information about ownership of said objects or information about non-publically viewable objects or information about the purchase date of said objects or information about whether said objects are for sale or information about where said objects can be purchased or information about the best prices for said objects or information about the popularity of said objects.A computerized system comprising said database.A method of searching said database using a computer.A method of using such database to compile lists and perform statistical analyses.Again, this is going to huge “once the market develops”.I got a million of ‘em, folks. They are really easy to write, as if you haven’t noticed already. Wait until I get to the embodiments about “implanted computer devices”, “handheld devices”, “wearable devices” and of course the ever-popular “robot car” embodiments.

            5. No MM you did not just invent a new invention—BUT according to Benson a new natural law. (I am ignoring 103 of course.)

            6. “B-b-but you have to read th claims as a whole!”It’s fun being on the other side. Because it’s really, really simple to remember the “law”.

            7. It’s fun for me to be on the other side. I just trash everyone, fabricate the law, mis-characterize the inventions, and know that I am fine as long as I am on my master’s side.

  24. Interesting article. Only in Texas could you demand a royalty of seven cents for every click and get it in front of a jury. Erich Spangenberg gets a bad name simply because he’s one of the most visible “trolls” out there. The article is right, he’s basically a straight shooter who does not hide his identity behind a network of funny-sounding LLCs. I’ve dealt with him for several clients, and while I cannot condone the general business model he and his peers have pursued, Spangenberg is one of the most reasonable patent asserters out there. Big companies like Apple and Microsoft, while they are not fans, express a sigh of relief when they find out he’s behind a patent suit. That’s because Spangenberg does not make crazy licensing demands and expresses them in economic terms.

      1. Well, the article says he has written over 1000 licenses and that he has sued the licensee before contacting them in approximately 80 percent of the cases. That is a lot of defendants.

      2. LB, the basic problem here was a claim construction advanced by the patent owner that was at variance with the specification but within the term’s ordinary meaning. Had the construction been adopted, the claims would have had written description problems.So I wonder, just where did Mr. S get the idea that one should give ordinary meaning to the claims and not limit them to the disclosure? I think that is Malcolm’s basic position, often expressed here.

        1. No, Ned, the basic problem was that the “claim construction” advanced by the patent owner ignored the actual language of the claims, which clearly indicated that the “user” was not just any external person accessing the web site. Another basic problem was that the patent owner’s claim construction was objectively baseless, but it sued anyway. Still another basic problem was that the patent owner continued to aggressively press the case even after a formal claim construction made it clear that it couldn’t win. Yet another basic problem was that one of Mr. S.’s companies breached a warranty to the defendant so that another of Mr. S.’s companies could sue the defendant again. One more basic problem was that Mr. S. tampered with a witness.This is not a case of someone misunderstanding whether “ordinary meaning” should be given to a claim.

          1. LB, the major problem, if not the only problem, was the definition of “user.” Ultimately, the Feds relied on the specification to limit the claim scope:”The term “user” cannot be construed in a vacuum, as required by Taurus’s proposed construction. Instead, it must be construed in light of the written description in which it resides. … As admitted by Taurus, the invention is described from the viewpoint of the database manager, not from the viewpoint of a web surfer. Because Taurus’s proposed construction of “user” is improperly broad, we affirm the construction of the district court.”

      1. I still want to know, Malcolm, why someone who actually is willing to litigate a troll? By filing the lawsuits, I think Mr. S is fairly sure of infringement and validity.Anyone at any time can file a reexamination request. Have they?

        1. I still want to know, Malcolm, why someone who actually is willing to litigate a troll?Why are you asking me? Those aren’t my words, Ned.By filing the lawsuits, I think Mr. S is fairly sure of infringement and validity.Just like he was “fairly sure” in the Taurus case …. where he was sanctioned.

          1. Malcolm, he was sanctioned primarily because he advanced a construction of “user” that applied ordinary meaning, and not the meaning it clearly had after reading the specification.But that is your position as well, and often stated. We have debated this very issue numbers of time.

            1. he was sanctioned primarily because he advanced a construction of “user” that applied ordinary meaning, and not the meaning it clearly had after reading the specification.But that is your position as wellWhat in the world are you talking about, Ned?

            2. See this from the opinion, “The term ‘user’ cannot be construed in a vacuum, as required by Taurus’s proposed construction. Instead, it must be construed in light of the written description in which it resides. … As admitted by Taurus, the invention is described from the viewpoint of the database manager, not from the viewpoint of a web surfer. Because Taurus’s proposed construction of ‘user’ is improperly broad, we affirm the construction of the district court.”In the end, Mr. S was sanctioned because not only was his claim construction broad, it was “improperly” broad.Now, you and I have discussed claim construction many times. You have always argued that claim terms should have their ordinary meaning. But that is what got Mr. S sanctioned.

            3. You have always argued that claim terms should have their ordinary meaning.I’m not sure how you arrived at this belief but somewhere a mistake has been made. My argument is that you can’t argue that a claim term should have a narrower construction than its ordinary meaning when you’ve used the term with its ordinary meaning throughout the spec (showing that you understood the ordinary meaning). E.g., the term “block” shouldn’t be construed to mean a “red block” just because there is prior art on “block” or because your only working example used a “red block,” (and this is doubly-true when you have a dependent claim that further limits the term “block”).But that’s not at all what’s going on with this claim term (“user”) or with Spangenberg’s attempt to broaden that term in the context of the asserted claims.

    1. Lode_Runner, I take this as a clue that Mr. S does not assert patents he knows or has good reason to believe are invalid over the art. So, then, why is he a troll?

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