Interesting patent approach
Jan 22, 2001 5:05 pm, by Ken Crater
Subject : Information
from the Automation List dept.
Text :
Given the recurring discussions about patents in our industry, I thought a recent announcement from Schneider Automation might prove interesting. It seems they are auctioning off one of their patents (US5,038,318), covering techniques for communicating between automation equipment and PC applications such as spreadsheets. The way the auction is structured, a number of licenses will be available for each type of target platform (e.g., PLCs, PC-based control, software), but an exclusive license will also be offered. If the aggregate amount bid for the non-exclusive licenses is more than the amount bid for the exclusive license, the former will prevail. I know this may elicit the inevitable "all patents are evil" comments (which, sorry, I think are nonsense). However, this approach does seem to be a creative way to address what otherwise can be a confrontational, lawyer-based process. In the end, this could result in a more extensive (and faster) implementation of patented technology than could be achieved by traditional means (lawsuits, saber-rattling, etc.). The press release can be found at: http://www.ipex.net/Schneider/Schneider.asp Any comments on this? Ken Crater Control.com Inc. ken@control.com
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• Re: Interesting patent approach
  Jan 25, 2001 5:02 pm, by Bill Sturm
  I would like to know what specifically is patentable about this. It sounds like an unenforceable patent to me. I do not see how anyone could patent such an obvious use of widely available technology. I would not pay them a dirty penny for it. Bill Sturm
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• Re: Interesting patent approach
  Jan 26, 2001 2:47 pm, by Ralph Mackiewicz
  It seems intuitively obvious now, but back in 1987 when this patent was submitted....at least that is the argument. My problem is how broadly software patents are interpreted. This patent is for a spreadsheet add-in based on @read, @write, etc. functions. I don't see how this applies to OPC/DDE servers which are not spreadsheet add- ins but Operating Systems add-ins. Drivers no longer interface directly with applications, they go through the operating system. But given enough legal pressure, costly lawsuits, etc. the correctness of this becomes immaterial. It could end up being cheaper just to pay the darn royalties. This is quite simply legal blackmail. This should be called "manipulative patent extortion" and should be a felony. Software patents (and many others too) should be interpreted very strictly, not broadly. Patent protection should not provide any more legal leverage than a copyright, which is a much more reasonable way to protect intellectual property rights in software. Regards, Ralph Mackiewicz
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• Re: Interesting patent approach
  Jan 24, 2001 4:44 pm, by Lynn Linse
  I'd expect they are auctioning it because in reality it may be unenforceable in today's real-world market. I only followed a few links, but didn't even see a date for when the patients were awarded. Just for crude example I heard rumors about a control company which claims to hold a patent on the idea of a "control object" like a motor with standard OOPS properties. Yet when I had Smalltalk courses back in the early 1980's (Smalltalk being the daddy of most OOPS schemes) the textbooks talked about Smalltalk objects which included valves opening & closing. So what value is a patent awarded in the 90's for an idea taught in school in the 80's? No doubt there are a dozen "subtle" issues which distinguish this patent from the old textbook ideas, but not in my mind. Remember when Apple sued Microsoft over the "garbage can" icon - to my memory it back-fired pretty badly in PR for Apple. They ended up spending LOTS of time trying to explain the subtle philosophical justification for this "attack" - Apple was the bad guy and poor MS the underdog. Or Lotus's "look-and-feel" lawsuits ("who's Lotus?" many new-comers will ask). If Schneider Electric (or the buyer) REALLY tried to enforce a patient for what is viewed by the automation public as "common sense" and "common practice", it could NOT help that company but promises to HARM that company in today's market when customers expect a more cooperative migration toward standards. How would GM or Kodak or Boeing react to a vendor they perceive as trying to limit something as "common sense" as a DDE or OPC servers & profit by restricting the perceived way things are done? My comments Lynn August Linse, Senior Product Application Engineer 15353 Barranca Parkway, Lantronix Inc, Irvine CA 92618 lynn.linse@lantronix.com www.lantronix.com Tel: (949)300-6337 Fax: (949)453-7132
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• Re: Interesting patent approach
  Jan 27, 2001 7:24 pm, by patentenforcer@hotmail.com
  Dear Lynn: You pack alot into an e-mail. It took sometime to read through your concerns and claims. First, I would like to say that most patents (no more than 5% granted) truly have any value in the market. Second, the avg life of a patent at most is five years. But remember one person's garabage is another's treasure. The best way to approach your e-mail is paragraph by paragraph. In paragraph one, enforceability ultimately depends upon the jury. So long as a patent has not expired, by law it is enforceable. The marketplace has no voice whatsoever in a patent's enforceability. Actually, a commercial success in the marketplace strengthens a patent's validity. Moreover, commercial success makes it easier for the infringed party to calculate damages. Patent law provides at least three times damages plus attorney fees and costs - a substantial sum to company that infringes. Furthermore, the law has no problem with apportioning a company's share of infringement damages when discovery can easily obtain a company's sales volume, once the infringing products are identified. Lawyers have a way of probing every orifice of a company - an unhappy event for management and shareholders alike. Derivative suits tend to follow discovery because the information discovered is public knowledge, unless the company can demonstrate to the court the need for a confidentiality order - a tough task. Next, the Roseman patent issued in 1991 and the company filed the patent in 1987. A great entry into your second paragraph - a meaty one at that! Your first sentence most likely has no bearing on the Roseman patent. Here, I believe you are attempting to demonstrate an analogy. True, lawyers try to use analogies to help their case - The Practice does alot of analogy making to prove its point on a tough issue. Patents have a separate place in the law. Patent litigation proceeds in Federal district court with the United States Patent and Trademark Office, , generally having as much weight as a federal district court. If a party does not like the outcome of a patent case, the appeal to a higher court goes to a special court for patents. The majority of the time a patent case does not go to the U.S. Supreme Court because the experts exist at the Appeals court and in some instances at the District Court, with the USPTO having the greatest weight of all. To your good point on SmartTalk. I have heard of SmartTalk. At the time Schneider? filed the patent, in the 1980's, I am sure that the USPTO knew about SmartTalk. Moreover, if you look at the patent it does contain a list of references that include other patents and articles. Some of the article titles seem to be more on the money about the use of DDE for process control than does SmartTalk. Regardless, the important point to take from my long winded discussion is that the USPTO does its own search. The attorneys must disclose information that they know about that is close to the then current invention. Most attorneys work hard to find any and all references because once the patent issues any reference disclosed to the USPTO has been found not to invalidate the patent! In addition, any subsequent reference, article, product or idea that uses the claimed invention infringes! So, before filing date any reference to the idea stated in the patent claims by the inventor would causes the USPTO to reject the inventor's claims. Any reference after the filling date would be infringing the ultimate patent claims the USPTO allows. The tricky part is the five years or so the USPTO keeps the filed patent claims while it does it thing. The short and long of it, is the USPTO stamps the patent with a presumed validity in the court's eyes, not the market or competitors interruption of the Roseman patents' validity. Moving on to paragraph three, your analogy most likely does not apply. In any litigation of most any type, the parties through their attorneys must prove they are correct in the eyes of the law - The Practice 101. Usually, a company must compare its patent claims against the alleged infringing products. If the alleged infringed party can make a case to its management that the product or products infringe and that infringement costs the company money - off to the races they go. Most US companies would have a difficult time going head to head with Schneider. They are $9-12 billion dollars in sales and profitable. News has Rockwell (AB) and Invensys (Foxboro and Wonderware) not performing. Wonderware has yet to break the magic $100 million dollar barrier under which Yuko bought them - Wonderware is at maybe $50 million depending upon the magic that the acountants can perform. More importantly, Schneider is not on the stock exchanges, a closed corporation. Although Invensys is not on the exchange, Rockwell and Landtronics both have a presence. Invensys is most likely trying but they have enough problems with Foxboro, Baan and Wonderware. In reviewing your financials on your website, your company lost (23,000) ending the third quarter of 2000. I understand Rockwell has posted a poor 2000, but I did not research Rockwells' numbers. My point is this: The market would hammer the stock of most companies that would face a lawsuit against a stronger, better positioned competitor. The market knows that Schneider has invested millions in industrial automation technology. To support my position above, my review of the USPTO database searching for Schneider Automation as the assignee yielded over 250+ patents. Some of the patents are in web embedded PLC control, Ethernet, etc. creating, it appears to me, a strong position in the industrial automation market. Rockwell has issued a few patents in this technology since August of 2000, but they appear to be focues on a specific use of the technology, I think numerical controlled machines. Invensys or Foxoboro has many patents, but nothing in Internet / network based PLC control. I searched for Landtronics as the assignee (an/landtronics$). The database yeilded nothing since the 1700's. Yet, Landtonics' website has an embedded prodcut using thenternet to obtain manufacturing data. The short of its is this: "Does Landtronics or other companies producing products the use Ethernet and the Web for industrial automation want to awaken Schneider or bear the weight of the result as did Kodak in their suit with Poloraid?" In your last paragraph, you mentioned Kodak who lost a a $250 million dollar infringement suit with Poloroid. Poloroid created a licensing program that today makes >$70 million dollars in licensing revenue - even from the Japanese. In the end, Schneider it appears to me wants to obtain a return on their patented technology, and other technologies. Lucent, IBM, Poloroid, Siemens, Rockwell (AB) and Invensys have licensing programs, why cannot Schneider? If you look at the reponses of Mackiewicz, Carter,and others they all agree that Schneider made a clever and non-confrontation offer to the industry, why knock it? Look at Microsoft who just settled with Java at $20 million (?) plus other concessions. Everyone knows that Microsoft is a great marketing company and alot of their technology may have come from others - even MIT? Can you find a patent that covers the Microsoft flagship products? Truthful, that is an unfair question because copyright is a better approach - sorry! In my opinion, the industry players have been getting a free ride from Schneider/Modicon for years, and its time to pay the check! Just my opinion. Lynn thanks for your time.
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• Re: Interesting patent approach
  Jan 31, 2001 5:34 pm, by Willy Smith
  Hi! Interesting post, but there are no eggs, since it is anonymous. Also, I wonder what the search engine would yield if one used the company Lantronix? Willy Smith Costa Rica
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• Re: Interesting patent approach
  Feb 3, 2001 8:52 am, by Concerned Citizen
  Hi Mr. Smith: I searched the USPTO site and found nothing under Lantronix. > Hi! > > Interesting post, but there are no eggs, since it is anonymous. Also, I wonder what the search engine would yield if one used the company Lantronix? > > Willy Smith > Costa Rica >
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• Re: Interesting patent approach
  Mar 1, 2001 11:10 am, by Lynn Linse
  Why, what did you expect to find? We are an innovative company who believes in thinking up new ideas and doing them better than our competitors. That's how the Ethernet/Commercial world runs - fast forward. Such a company doesn't need to hide behind an artificial barrier to competition because their Engineers cannot implement an idea correctly. (I also don't need to hide behind a 'hotmail.com' account, shame on you!) Regards Lynn August Linse, Senior Product Application Engineer 15353 Barranca Parkway, Lantronix Inc, Irvine CA 92618 lynn.linse@lantronix.com www.lantronix.com Tel: (949)300-6337 Fax: (949)453-7132
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• Re: Interesting patent approach
  Mar 1, 2001 11:09 am, by Willy Smith
  Hi PatentEnforcer, I admit, I didn't believe you, so I spent some time on the USPO site. You're absolutely right, the search engine finds nothing with Lantronix. But some companies take the position that keeping things secret is actually better than a patent, so maybe that's Lantronix' philosophy. Remember that a patent only gives you the right to defend your property. Some find that it's easier to defend using the method of secrecy rather than the legal club. Regards, Willy Smith
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• Re: Interesting patent approach
  Feb 1, 2001 2:15 pm, by Joe Jansen/ENGR/HQ/KEMET/US
  Willy, Agreed. I actually started going through and replying point-by-point, but got irritated enough to discard and ignore. It is *patently* obvious (sorry, I really had to get that out of my system....) that the address was created simply to reply to the thread... Also, citing "The Practice" for precedent seemed a bit...er...odd. I would be interested in hearing the opinion of someone who is "in the know", and is willing to take into account actual market forces and not just legal techniques. --Joe Jansen
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• Re: Interesting patent approach
  Feb 2, 2001 3:34 pm, by Joe Jansen/ENGR/HQ/KEMET/US
  Just to prove the point to the 'patentenforcer' :^P On January 9, 2001, GeoWorks was issued patent number 6,173,316 for a "Wireless communication device with markup language based man-machine interface". Which is to say that they have a PDA that receives web pages. What a load of CRAP! The only way that the patent lawyers could say that they have never seen anything like this (Palm VII, anyone?) is if they either are living in a cave or flat out lying. More information is available at: http://slashdot.org/articles/01/02/01/1449236.shtml If you are interested. I defy ANYONE to defend this ridiculous claim. --Joe Jansen
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• Re: Interesting patent approach
  Feb 8, 2001 4:19 pm, by Vladimir E. Zyubin
  Hello List, The most "smart" patent would be "inhalation of air to provide biochemical reaction in human being body"... :-) "Hayek rulez", as liberalists speak here... BTW, I heard recently Schneider has got patent for DDE... :-) So, it looks like a wave of "patentism"... Hm... What is the issue? Economic crisis we try to prepare? regards, Vladimir
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• Re: Interesting patent approach
  Feb 7, 2001 2:59 pm, by Jeff Pinegar
  It sounds outrageous, however the critical date is when was the GeoWorks invention made and the patent applied for, not the date patent was issued. (Sorry if this information was contained on "slashdot.org" site it wouldn't work for me) Jeff
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• Re: Interesting patent approach
  Feb 3, 2001 8:55 am, by PatentEnforcer
  Hi Joe: You bring up a good point, but truthfully the USPTO never heard of a Palm IV if one is to agree with your position below. In closing, I would agree that the patent system has some flaws and defects, but it does cost money to research and design new products - one must place some faith in the USPTO. Thanks > Just to prove the point to the 'patentenforcer' :^P > > On January 9, 2001, GeoWorks was issued patent number 6,173,316 for a "Wireless communication device with markup language based man-machine interface". Which is to say that they have a PDA that receives web pages. What a load of CRAP! The only way that the patent lawyers could say that they have never seen anything like this (Palm VII, anyone?) is if they either are living in a cave or flat out lying. More information > is available at: > > http://slashdot.org/articles/01/02/01/1449236.shtml > > If you are interested. > > I defy ANYONE to defend this ridiculous claim. > > --Joe Jansen >
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• Re: Interesting patent approach
  Feb 7, 2001 3:38 pm, by Blunier, Mark
  > You bring up a good point, but truthfully the USPTO never > heard of a Palm IV if one is to agree with your position > below. In closing, I would agree that the patent system > has some flaws and defects, but it does cost money to > research and design new products - one must place some faith > in the USPTO. Why must I place some faith in the USPTO? Time after time they have shown they they are incompetent and issue patents that do satisfy the requirements being non-obvious. Of course this is nothing new. People like Thomas Edison complained about bad patents being issued, and incompetence in the USPTO two centuries agos. As Edison complained, that if he didn't patent his ideas, others would copy his work, then get a patent and sue him. If he did patent it, then others would copy his patent. He could sue them, but by the time he would eventually win, the offender would often be out of business, and there'd be nothing to win in damages, and the time he spend fighting could be better spent improving his product. I think we'd be better off if all patents were eliminated. Mark Blunier Any opinions expressed in this message are not necessarily those of the company.
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• Re: Interesting patent approach
  Feb 17, 2001 6:24 pm, by Concerned Citizen
  Hi Mark: In some industries your Edison may have a stronger argument, but the pharm industry would be dead in this country along with hundreds of thousands of people around the world. Just my opinion.
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• Re: Interesting patent approach
  Mar 1, 2001 11:22 am, by Mark Blunier
  > In some industries your Edison may have a stronger argument, > but the pharm > industry would be dead in this country along with hundreds of > thousands of people around the world. > > Just my opinion. Why? Would the pharmaceutical industry be dead in the entire world, or is the US the only country that does pharmaceuticals? Mark Blunier Any Opinions expressed in this message are not necessarily those of the company.
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• Re: Interesting patent approach
  Feb 6, 2001 2:58 pm, by Patent Lee Obvious
  No wonder so many ridiculous patents get issued. The USPTO is not only dyslexic, they have little current knowledge of the technologies they are supposedly working with. Somebody must have some prior art that would invalidate this thing before all the little guys get taken to the cleaners by the giants. If the "industry leaders" really did show technology leadership (rather than holding back the industry)then this patent issue would not be necessary, even under its "we're trying to be the nice guys" guise. I am sure I am not the only one a little hot under the collar about this issue. Mr PatentEnforcer says : > You bring up a good point, but truthfully the USPTO never heard of a Palm IV if one is to agree with your position below. In closing, I would agree that the patent system has some flaws and defects, but it does cost money to research and design new products - one must place some faith in the USPTO.
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• Re: Interesting patent approach
  Feb 17, 2001 6:28 pm, by PatentEnforcer
  Hi Clever play on words. I think that employees of the USPTO might differ with you on your position. In some respects, large companies have the ability to create patents because of its larger workforce. It would appear by Schneider's many patents the company also re-invests its profits into patenting its ideas and products to support its continued growth. Just my opinion. > No wonder so many ridiculous patents get issued. > The USPTO is not only dyslexic, they have little current knowledge of the technologies they are supposedly working with. > > Somebody must have some prior art that would invalidate this thing before all the little guys get taken to the cleaners by the giants. If the "industry leaders" really did show technology leadership (rather than holding back the industry)then this patent issue would not be necessary, even under its "we're trying to be the nice guys" guise. > I am sure I am not the only one a little hot under the collar about this issue. > > Mr PatentEnforcer says : > > You bring up a good point, but truthfully the USPTO never heard of a Palm IV if one is to agree with your position below. In closing, I would agree that the patent system has some flaws and defects, but it does cost money to research and design new products - one must place some faith in the USPTO. >
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• Re: Interesting patent approach
  Feb 26, 2001 4:42 pm, by Erwin Icayan
  Hi I have looked at the patents that Schneider has been issued (not just the subject of this thread). I also showed these to people involved in this industry for up to 30 years. The consensus opinion is that these patents were issued because the investigators may not have had all the information at their disposal. Most of the "inventions" were being used in the industry for years before the application for patent. Is it then, who gets to the USPTO first who gets the "prize"? Or who has the resources to get it through the process? There are some other descriptions which I cannot put in a public forum. In cases such as this, would it be appropriate to send the application out (just prior to approval) for public review the same way that ANSI standards are sent out for public review? Erwin Icayan
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• Re: Interesting patent approach
  Feb 27, 2001 4:47 pm, by Anthony Kerstens
  If I remember correctly, this would be a similar situation to that between Tesla and Marconi (I think it was Marconi). Marconi beat Tesla to the patent punch, which resulted in part in Tesla's destitution. (The other part would be Bell's obsession with destroying public faith in Tesla's AC power.) Based on that and other things I've seen, as a patent layman, I would say it seems reasonable to believe the following: ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The first inventor to USPTO wins. Of course, in order to go to USPTO, I would also expect that the inventor already has a complete design in hand. You just can't patent an idea, you have to patent a design. The first inventor to show up might (should) get denied the patent if his design is not complete. A second inventor could show up after and win the patent despite the first inventor's efforts. (Excluding situations of provable dishonesty, I would hope.) Of course, it is up to the USPTO to determine whether a design is sufficiently complete. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ There is something else that I think has gone unsaid: patents can be granted for inventions that are improvements on previous patented inventions. Schneider could have gotten patents on their technologies because they improved the design or functionality. There is _nothing_ wrong with this. In fact, I should think that improvements are expected, and hence the limited term for a patent (I think something like 20 years, correct me I that's wrong). Anthony Kerstens P.Eng.
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• Re: Interesting patent approach
  Feb 27, 2001 4:53 pm, by Busse, Jim
  The US Patent law stands alone in the world when it comes to who did it first. Most countries set the invention date as the date when the patent application is filed. However, the United States has a complex system of determining the "invention date" In simple terms, it the date when the invention is "perfected" -- that is the invention is reasonable complete and determined to work as it is supposed to. The patent applicant then has 1-year to file a patent application after that date if the invention is disclosed, offered for sale or otherwise made known. Of course, you can keep it a secret bu then you run the risk of letting someone else "steal" your invention. Problems arise when two or more people apply or receive patents for the same, or very similar invention. The courts have to determine when the invention was "invented" and whether or not the inventor worked diligently on the invention from the time of conception to the time of perfection. Thus accurate records need to be kept for any developmental activity, photos lab books, witnesses and the like are good things to do. Tesla hardly ever kept notes. The marconi / tesla case was even more complex in that it brought in foreign law. Mr. Kerstens is correct to say that the first to file may not be awarded a patent. If you don't have RECORDS you can easily be blown out of the water in a patent office "Interference proceeding" (where conflicts are initially resolved or in Court (where the unresolved conflicts end up if there is no clear winner. The basic rule is KEEP RECORDS. Even if you do, the Patent process really runs into big $$ when there is a conflict. Also keep in mind that a patent merely gives you the right to sue the person who infringes on your patent. No government agency will do anything for you in this regard. That costs $$ too! Jim Busse
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• Re: Interesting patent approach
  Feb 27, 2001 4:56 pm, by Anthony Kerstens
  So basically, this is why you often see "Patent Pending" on the literature for many products? Anthony Kerstens P.Eng. Jim Busse wrote: > The US Patent law stands alone in the world when it comes to who did it > first. Most countries set the invention date as the date when the patent > application is filed. However, the United States has a complex system of > determining the "invention date" In simple terms, it the date when the > invention is "perfected" -- that is the invention is reasonable > complete and......
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• Re: Interesting patent approach
  Mar 1, 2001 11:07 am, by Busse, Jim
  Maybe. Patent Pending usually means that someone has applied for a patent. But in the U.S., consider the 1.) Patent might not be issued for any number of reasons, 2.) The patent may be issued then challenged and found invalid, 3.) the challanger may have filed first but drew a stubborn patent examiner thus lengthening his time, 4.) someone else could have "invented the thing first but filed later, 5.) two patents for the same thing might be issued, etc. So just because someone has a pending patent doesn't mean they will ever be issued a patent nor does it mean the patent is defendable if challenged (and just about all patents are challenged in countersuits). I think patent pending is a hold over from early last century. It puts others on notice that something is up. Right now, you just don't know what patents are being applied for because the patent process is confidential. There is new law causing the disclosure 18-months after filing but I know very little about it. It was part of the recent patent act implemented last November. On the other hand, patent pending might be advertising that says "contact me and I'll cut you a license."
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• Re: Interesting patent approach
  Mar 1, 2001 11:21 am, by Lynn Linse
  Patent pending (or even Patented) can also just mean "we've filled a trivial patent on how the screws 'innovatively' hold down our PCB and therefore cut production costs, but we hope the term 'patent pending/patented' fools people into thinking we have a product so innovative that we are patenting it." Forgive me for being a bit cynical about patents, but when I was making data comm isolators in Singapore we had a US company try to pull this trick on us. One of their country distributors (not in Singapore) warned us we appeared to be violating the parent companies patent so shouldn't export to their country "or else". So we had to spend some money to obtain the patent docs and then just saw that the patent related to how the tabs in the plastic case worked - 0% relevant to us. It had just been a poker bluff, but to call that bluff cost us some time & money. regards - Lynn Linse
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• Re: Interesting patent approach
  Feb 27, 2001 4:52 pm, by Willy Smith
  At 01:50 PM 2/26/01 -0500, Anthony Kerstens wrote: >If I remember correctly, this would be a similar situation to that >between Tesla and Marconi (I think it was Marconi). > >Marconi beat Tesla to the patent punch, which resulted in part in Tesla's >destitution. (The other part would be Bell's obsession with destroying >public faith in Tesla's AC power.) It was a lot more complicated than that. Tesla actually demonstrated remote control by radio before the turn of the century. The US Supreme Court overturned Marconi's radio patent in 1943 in favor of Tesla. This didn't do him any good since he had died about nine months previously. Tesla also ran into some other problems that caused hes destitution: 1) He waived his $1/horsepower license fee covering AC motors to George Westinghouse when the company got into financial trouble, and did not collect any royalties even when the company became successful. 2) He ran into trouble with financial backers when they found out that his ultimate goal was to distribute power worldwide for free. 3) He had a hard time getting the patent examiners to understand what he was doing. I have all Tesla's patents and patent wrappers (the correspondance leading up to the issuance of the patent). In may cases, Tesla threw out what he was really trying to get patented, and accepted whatever the patent examiner managed to understand out of the application. 4) Tesla also had Edison as an enemy, as Edison was pushing DC power. Tesla was way ahead of his time. And like most geniuses, he was more interested in playing with his toys than locking up the rights to them. Sic transit gloria mentis. Hardly anyone even remembers who Tesla was today. Regards, Willy Smith Costa Rica
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• Re: Interesting patent approach
  Jan 26, 2001 11:45 am, by Ralph Mackiewicz
  > > "Ridiculing all criticism of patents as nonsense is no more valid > > than claiming that all patents are evil." > > I don't think I said that. Not exactly that. But there was the implication that asserting that software patents are not good (aka "evil") is nonsense. I'll restate that auctioning rights on the Internet is a great idea. But in this particular case, the only value of this patent is in avoiding a lawsuit. Not exactly what I would consider non-litigious. > In talking with the people at PricewaterhouseCoopers, I understand > that there is a somewhat different twist here. Apparently, the > successful bidders for nonexclusive licenses are not subject to having > their licenses negated by a successful exclusive licensee. Rather, > the exclusive licensee inherits the fees from the nonexclusive > licensees. This does seem to overcome the objection that a law firm > could simply outbid everyone and then sue the world. IANALE: I Am Not A Lawyer Either. Maybe I was a little too specific. The problem is not that a law firm would buy it, but that the only value that rights to this particular patent has is to benefit from the fear of being sued. It is still possible for someone to purchase the exclusive license and sue everybody who did not purchase a nonexclusive license. The auctioning does not necessarily mean fewer lawsuits. This could simply be the first step in a complex step of legal maneuvers to extract revenue from the legal system (legal blackmail). > As for patents, software and otherwise, the laws are what they are, > and until they're changed (which you are more than welcome to work > toward) companies have to live with them. Exactly what I am doing here as well as in letters that I had written to congress and senators when they authorized such stupidity. Such arguments would have been a bit more persuasive if industry leaders had pursued this as well, instead they were the ones that pushed this through. This whole area of software patents is a black hole for wasted time that serves no productive purpose except to enrich a few companies that have substantial patent portfolios combined with substantial cash to fund legal activities (these same companies also happen to be politically influential companies by coincidence). > In our industry, there is an incredible amount of patent litigation > that goes on behind the scenes. You just don't hear about it. Another example of why these patents are wrong. > So, given the current legal framework, creative approaches are > definitely needed. Saying the system is bad, while perhaps obvious, > doesn't really address the immediate need. And, there is but one word > to describe the company which just tries to avoid the current patent > situation altogether: victim. I'm not suggesting that you should ignore software patents. I'm suggesting that we all should fight against them because they are counter productive to innovation and productivity. Just paying off a blackmailer is also the act of a victim. > So, maybe providing an orderly way to distribute patent rights is a > useful improvement, short of a major legislative overhaul (I've got > one vote, which they probably could have used in Florida recently > :-). I remain skeptical that this is an "orderly" way to distribute patent rights. This would require me to know what the true intent of the patent holder is, which is impossible for me to know. [Besides, everybody now knows that your vote doesn't count. The President of the US was elected by a margin of a few hundred votes. No one person can legally cast that many votes. ;-) ] > A researcher for a major semi-conductor company recently told > me that they are actually *discouraged* by their company from > discovering what the "state of the art" is. This is because if they > can honestly say they don't personally know of any prior art they can > then technically file a patent on it. Not surprising. BUT: if you want to discover the state of the art don't go looking in the patent files. You won't find it there. What you'll find there more often than not are obsolete technically useless patents (like a spreadsheet add-in that supports @read and @write functions) for lawyers to use in extracting money from people who actually produce something. > I'd expect they are auctioning it because in reality it may be > unenforceable in today's real-world market. I only followed a few > links, but didn't even see a date for when the patients were awarded. The patent was applied for in 1987 and was granted in 1991. All patents are in the public domain and are available on-line at http://www.delphion.com. The auction starts at a royalty of $35 per unit or $50,000.USD annual royalty while the exclusive license is for $8,000,000.USD. (That's right, I did not add any zeroes). The patent is for a spreadsheet add-in that interfaces to PLCs. The implication here is that all OPC/DDE servers today could infringe on this patent. However, most OPC/DDE servers are NOT add-ins to spreadsheets or other applications. These are programs that make calls to operating system functions on one side and communication links on the other. If anyone is violating this patent today it is probably Microsoft. The only thing I ever saw that came close to this patent was the Lotus @FACTORY product which has been dead for many years. Anyone building a spreadsheet add-in product that talks directly to a spreadsheet may be in trouble even if you own the rights to the spreadsheet itself. Of course rational thinking and reason have no place in the legal system today so don't be surprised if something silly takes place. > anyone who thinks software patents are a good idea is welcome to > flame me on the A-list or at corking@dds.nl Lets take the > "confrontational, lawyer-based process" out of software altogether. I would be proud to be flamed by anyone that thinks software patents are a good idea. > > .... How would GM or Kodak or Boeing react to a vendor they perceive > > as trying to limit something as "common sense" as a DDE or OPC > > servers & profit by restricting the perceived way things are done? > > Maybe they would view that vendor as aggressively pursuing its > technological edge, and therefore see it as a viable contender > in the market. Those familiar with the technology might see > through it, but are they the ones making the business decisions? This is an interesting concept. Sue your customers to prove you are viable. Or, in this case: sue your customers over an obsolete concept that is no longer used to prove your technological edge. Regards, Ralph Mackiewicz
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• Re: Interesting patent approach
  Jan 24, 2001 4:38 pm, by Ken Crater
  Hi all, Ralph said... "Ridiculing all criticism of patents as nonsense is no more valid than claiming that all patents are evil." I don't think I said that. In talking with the people at PricewaterhouseCoopers, I understand that there is a somewhat different twist here. Apparently, the successful bidders for nonexclusive licenses are not subject to having their licenses negated by a successful exclusive licensee. Rather, the exclusive licensee inherits the fees from the nonexclusive licensees. This does seem to overcome the objection that a law firm could simply outbid everyone and then sue the world. (IANAL: I Am Not A Lawyer, so you are advised to confirm this for yourself .) As for patents, software and otherwise, the laws are what they are, and until they're changed (which you are more than welcome to work toward) companies have to live with them. "Trading patents", as noted in another post, only happens when patent portfolios of roughly equal import are involved. In our industry, there is an incredible amount of patent litigation that goes on behind the scenes. You just don't hear about it. For decades, leading companies have patented things like card ejectors to prevent anyone from making plug-compatible modules that cannibalize their I/O business. And, contingent-fee litigators have targeted major companies in our industry with patent suits such as the Lemelson bar code patents. So, given the current legal framework, creative approaches are definitely needed. Saying the system is bad, while perhaps obvious, doesn't really address the immediate need. And, there is but one word to describe the company which just tries to avoid the current patent situation altogether: victim. So, maybe providing an orderly way to distribute patent rights is a useful improvement, short of a major legislative overhaul (I've got one vote, which they probably could have used in Florida recently :-). Regards, Ken Crater Control.com Inc. ken@control.com
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• Re: Interesting patent approach
  Jan 24, 2001 4:33 pm, by Michael Griffin
  At 13:50 23/01/01 -0500, Ralph Mackiewicz wrote: >All patents may not be "evil", but there are thousands of bad ones. >These patents are really nothing >more than legal scams. Software patents are especially susceptible to >this because there is simply no way for a patent clerk to judge the >current state of the art. Researching the patent data base for prior >art in software is pointless (albeit legal) because the prior art >can't be found there. A researcher for a major semi-conductor company recently told me that they are actually *discouraged* by their company from discovering what the "state of the art" is. This is because if they can honestly say they don't personally know of any prior art they can then technically file a patent on it. He said that the majority of the patents they file are really rather worthless and are just intended as cannon fodder in patent fights with other companies rather than as something they intend to develop into a product. Since the company he works for is large and rich, they can afford to fight. The fights are sometimes quite literally settled by whose pile of supposedly relevant patents is the tallest. I suppose you are aware that there are "research" companies in the US which don't have any scientists or engineers, but are rather just big legal firms? They buy up patents from individuals or small companies for trivial sums of money and then look for people to sue. Whether the patent is valid or not is irrelevant. They simply threaten a law suit and then suggest settling out of court. Most American companies will pay off the "research" firm rather than fight them. ********************** Michael Griffin London, Ont. Canada mgriffin@odyssey.on.ca **********************
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• Re: Interesting patent approach
  Jan 26, 2001 11:47 am, by Vladimir E. Zyubin
  Hello List, Just a couple of words on a part of the topic. Here(In Russia) is the following law on copyright software: you can protect only the code(text of program, realise, a set of date), but not the algorithm(idea) of program. I strongly believe that any other approach is an ugly (counterproductive) one. Best regards, Vladimir mailto:zyubin@iae.nsk.su
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• Re: Interesting patent approach
  Jan 23, 2001 4:06 pm, by David Corking
  Lou wrote: > According to the review, a key issue is the willingness of > the patent office to approve patents for ideas as well as inventions. > It's as much a problem in pharmaceuticals as it is in computers. It leads > to rent seeking behavior (as in patenting things never intended for > sale and then charging royalties and license fees) and defensive patents. Patents for some types of "ideas" are indeed common, have been for generations and seem to be intended by the lawmakers. Such ideas are "methods or processes". The inventor of an "improved process to make nylon", would be rewarded by claiming a licence fee, or having the exclusive right to make nylon that way. This causes the biggest problems (1) when it slows invention and progress rather than increasing it and (2) when it crosses from being an invention to a discovery of knowledge. (1) Progress is stifled by the small predators that upset the big guys by insisting on cash to use an improvement that the big guys were going to invent (or already invented) anyway (2) To me, patenting knowledge is the "business methods" like buying from an internet store with a single click. Courts in some countries uphold these patents, others strike them down. (1) Demanding cash stinks and leads to investors money and time being squandered on challenging patents. I think (1) is inevitable. (2) Patenting knowledge and obviousness stinks like the smell from burning books. We must not write laws that give individuals exclusive rights over Mathematics and Nature. Politicians forged an uncomfortable compromise over gene patents. But software patents are on a runaway train that companies and voters should **stop in its tracks** (its not too late - yet.) My EUR 0.02 David Corking, in a personal capacity. p.s. I know Ken feared this thread, but anyone who thinks software patents are a good idea is welcome to flame me on the A-list or at corking@dds.nl Lets take the "confrontational, lawyer-based process" out of software altogether. (Gene patents, and nylon process patents are off-topic and I won't debate them.)
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