When Google acquired Motorola Mobility this week, speculation ran rampant that the tech giant was going to build an iPhone killer. Instead, industry observers say the real value to Google are Motorola’s 17,000 patents, which it acquired as part of the deal. We discuss patents, those who file them, those who exploit them and efforts to reform the patent system.

Laura Sydell, digital culture correspondent for NPR
Ron Epstein, CEO of Epicenter IP Group, LLC
Paul Schneck, chairman of Rembrandt IP Managment, LLC
James Bessen, lecturer at the Boston University School of Law

  • Butler

    The lawyer-extortionists wielding “patents of mass destruction” (PMDs) are protected by the sellout lawyer-politicians for prices set by lawyer-lobbyist-pimps.

    • Butler

      In haiku form:

      Extortionists’ needs
      Sync with politicians’ greed
      Lobbyists’ pimp hats

    • Butler

      A better haiku:

      Lobbyist gangstas
      Sell sweet politicians’ love
      Extortionists’ joy

  • Chrisco

    Planet Money in conjunction with This American Life (which incidentally I think spawned Planet Money) did a great program which informs this one.

    • The planet money story was indeed quite good.  The information it contained about abuses of the patent system made me feel sick to my stomach.  My personal opinion is that patent trolls exist and are damaging honest commerce.

    • Butler

      It was a good show but disheartening.
      I think the point has to be, there will always be villains out there who oppose a free society. Today these villains include patent extortionists and corrupt judges, among many others.

  • Jesse Barnes

    Voice over IP is a good example of a bad patent.  It’s overly broad, built trivially from other components, and potentially vague enough to apply to just about any form of digital voice communication.

    First off, it’s a pretty trivial combination of digital voice technology and networking.  Any value added in a good voice over IP implementation is in the choice of voice codec, how well it degrades in the face of problems with the connection, and how reliable it is.  But patents are often much much broader than that, and that’s where the problem lies.

    If all software patents were limited to specific improvements (e.g. the network degradation handling above) we’d be in much better shape.  But allowing patents on “one click purchasing” or “voice over IP” is absurd.

    Moreover, the real hard work is often in figuring out good ways of representing things digitally (think of JPEG photos, MPEG movies, or MP3 audio files).  But those are really just mathematical representations of information, which are explicitly excluded from patent protection in many countries (rightfully so I think).

  • David

    Whenever i build a website. Any website – I’m infringing on thousands of duplicate patients, whether it’s hyperlinks, cookies, comment systems, or shopping cart systems. I’m sure Paul and Ron’s companies’ websites also uses the technologies covered by those same patents – are they paying royalties for their hyperlinks and cookies, or are they knowingly infringing and suing others for infringing at the same time?

  • Krishna

    All this talk about patents and patent trolls is all well and good. But what is being done about blatant violations of intellectual property by organizations overseas, namely countries like China who do not care at all about who invented anything? We as a nation are missing the mark if the boundaries of our patent enforcement are our borders.

    • Guest

      You do realize that countries don’t generally do this because doing so would invite reciprocal treatment from other countries, right?  For example, if we extend patent infringement laws to cover acts occurring entirely in China, China could do the same to us.  Only in very rare cases do we extend our laws to cover acts on foreign soil–the foreign corrupt practices act and child sex trafficking laws, for example.

      I hope you also realize that if someone makes a product in China which is covered under a US patent and then imports it to the US, they can be sued under US law as it stands currently?

    • Shz

      Yes, keep on blaming China and India, and we will face the reality in 20 years, that we run out of excuses why we are behind so much….

  • Chrisco

    Q: “So the markets working?”
    A: “That’s what markets do.”


  • Fay

    This complex topic was well-explained just a month ago on This American Life:

  • Mark

    Good show, but I feel like it’s the plight of the independent software developers due to the patent trolls that’s the more important story.  It’s difficult to feel too sorry for the large companies with their armies of lawyers.  The Lodsys and Macrosolve’s of the world are killing the indies…

  • Mark

    Yes, these app developers may be a “small market”, but that’s how a lot of us are making our living for our families — and our livlihoods are being threatened.

  • Jesse Barnes

    It’s impossible to build any non-trivial software (i.e. anything other than a “Hello, world!” application) without infringing on patents.  By far the biggest issue is the fact that so many bad patents are awarded.  But a close second is that software and business method patents are allowed at all.  They demonstrably inhibit the progress of science and the useful arts, and so on the face of it are unconstitutional.

  • Mark

    Oh, great.  Here’s a guy with 300 patents for his startup.  I wonder how many of those were things I did yesterday as part of my daily work.

  • Mark

    If you want to learn more about patent trolls and their evils, check out:

    This guy is a lawyer who does a great job covering this stuff.

  • Ribbons: the document issued by the patent office is a bound with a paper cover that sports a chevron of red white and blue ribbon affixed with an embossed gold foil seal.  They are sort of impressive.

  • James Ivey

    I’ve been a patent attorney for 20 years representing primarily Silicon Valley tech companies. I’ve known Ron since law school and I’m glad he’s there to counter the urban myths about patents.

    Re Software and Business Method Patents:  There’s nothing about software that warrants re-writing patent laws for it.  If you can get a patent on a non-obvious paper clip in 1991, you should be able to get a patent for a non-obvious innovation in software.

    I’ve been working in the e-commerce sector for decades and have yet to heard a workable definition of “business method”.  The term is useless in patents.

    No one got a patent on “toast” in 2004.  That’s ridiculous.  The patent covers something much more specific than “toast”.  The reports that many patents cover exactly the same thing are like saying that many people live in Oakland without looking at the metes and bounds in the deeds — OMG!  All these people live in exactly the same place!!  Patents are very specific about what they cover.

    Laura’s comments are so misinformed.  I’m sure she means well, but she’s been fed a lot of crap.  It’s very common to dumb-down and dramatically simplify what a patent covers and then argue that it’s coverage isn’t specific enough.  Again, it’s like trying to buy a house and a reporter comments that you can’t move into that address because too many already live in Oakland, exactly the same place!

    There’s so much I’d like to address about the show — so many half-truths and misinformation floating around the topic.

    I think it’s important to remember Ron’s comment.  There are bad patents out there.  But showing 3 or 4 of them when over 8,000,000 have been issued doesn’t prove anything.  Rates by which patents are overturned by courts are about the same that they’ve always been.  And the rate for software patents is no higher than for any other technology.

    • So you mean to say that it was a good thing that someone was able to sue Microsoft for including an XML parser in Microsoft Word? You want evidence of bad patents? Check out patent 5,455,464 which was specifically filed by James Gosling from Sun as part of a competition for who could file and get the goofiest patent. I’ve worked at several companies where there is a specific bonus for filing a patent with the express purpose of getting patents that are as broad as possible so we could sue back if we were ever sued.

      As for the quality in general. Can you explain to me how patent examiners are approving more and more patent per examiner and keeping the quality level high?

    • Mike

      Your words are typical from patent lawyers, whose only interest is to make problems bigger and make money out of it – lawsuits.

      Being in the software field for a long time, I have seen so many bad patents.  In the networking field, I have seen many patents about applying simple algorithms right out of the text book in the implementation of computer networks.  Does that mean anyone cannot use the same algorithm in their own implementation?

      I have seen many small company sued by bigger ones on absurd patents they bought somewhere, and the small company cannot defend themselves because either they don’t have time or enough money to play  – hiring expensive lawyers.

    • Mark

      As a software engineer, I can only shake my head in sadness.  At this point, the patent system (with respect to may software and business process patents, anyway) exists primarily to make lawyers and patent holding companies lots of money.  I’m glad we have at least a few journalists like Laura paying attention to the drag on our economy that patent trolls represent.

      Clearly, you’re drinking your own koolaid, but it’s a shame you can’t see the damage that many (if not most) software patents are causing.   

    • Soj

      I have been a research engineer in the wireless communication industry for more than 10 years, and submitting patent disclosures and reviewing patents are part of my responsibilities. I completely agree with the comments from Steve C and others. IMHO, the patent system as it is now is broken. The main reason is the lack of competent patent examiners. A patent is supposed to be novel enough for those skilled in the art. But there are not enough patent examiners skilled in the art in so many different areas. So even if someone simply copies what is well-known from textbooks in the respective field, he has a good chance of getting a patent issued. This is sad. There are so so many bad patents just like that. Another main problem is that the examiners are allowing inventors to make such broad claims even though the “inventive” method is so trivial to those skilled in the art.

      The coverage of the claims is supposed to be specific, but most of them are not. What one needs to do to get a powerful patent is simply to identify a potential problem, find the most obvious and straightforward solution to the problem, generalize the processing blocks as much as possible, and then make the biggest claim possible to include any possible future solutions to the problem. Ideas do not even need to be tested first. I used to be so naive trying to test everything before submitting a disclosure and to combine multiple ideas into one patent to save company’s filing fees. Now I realized that basically just raising my hand earlier would serve my company better.

      A patent system like this does not promote technology growth but hinders it. Bad or trivial ideas are disclosed first with the intention to establish intellectual property right on the best educated guess on the necessary steps of solving a problem. Few wants to work on and refine the idea further, much less building products based on better but related ideas, since you have claimed it first and have the most general claims possible awarded.

    • Steve C

      In my experience as an inventor filing patent applications, the patent examiner has lost his way.  He is overwhelmed by volume, is managed by metrics that entice him to complicate the examination process for personal gain, detrimentally lengthens a product’s time to market and is focused on the wrong outcomes.   

      IMO, our patent office undermines US entrepreneurs’ ability to compete in a global economy.  Speed to market is essential for small, innovative, risk taking companies to secure a foothold before larger, less inventive and less nimble companies enter the fray with their superior capital.  With the US economy’s competitive advantages shifted away from low cost production manufacturing and towards innovation and intellectual property, a competent USPTO is essential to US economic success. 

      It seems to me that many of the problems discussed in this show could be addressed through meaningful reform and improved performance of the USPTO.

    • Jesse Barnes

      Wow lots to comment on here:

      “Re Software and Business Method Patents:  There’s nothing about software
      that warrants re-writing patent laws for it.  If you can get a patent
      on a non-obvious paper clip in 1991, you should be able to get a patent
      for a non-obvious innovation in software.”

      Patents related to physical inventions are fundamentally different than patents on software (or more generally, procedures).  The latter have *much* lower barriers to entry for the inventor (close to zero effectively), and as a result we have many more inventors than we did back in the days of the cotton gin.  And if the intent of the patent system is to facilitate invention, then it’s clearly failing in the realm of software.  Even small app developers (some mentioned here in the threads) don’t sit around, think of a great idea, patent it, and then try to monetize it.  In the vast majority of cases, they try to write great apps and make money selling them.  They know they have to continue to make improvements, because many other app developers are doing exactly the same thing.

      “Rates by which patents are overturned by courts are about the same that
      they’ve always been.  And the rate for software patents is no higher
      than for any other technology. ”

      And yet patents are awarded in much higher volumes than in the past.  Does that tell you that we’re just getting better at filing and approving high quality patents?  Or that we’re jamming through more with less review and bottlenecked in the courts for invalidations (and as a result not even bothering to try to invalidate them due to the excessive cost).

  • James Ivey

     Laura did that show too.  Same person.  Same misinformation and half-truths.

  • James Ivey

     Which patent?  Do you have the number?  Which legal requirement does it fail?

    There is no patent that couers “one click purchasing”.  I’ve read the Amazon patent and it’s much more specific.

    • Jesse Barnes

      The individual patent here is irrelevant.  Are you disagreeing with the assertion that many bad patents are awarded?  Or are you accepting that and saying that the legal requirements are met and therefore there’s no problem?  Or are you just making noise and don’t really know what you’re trying to contradict?

  • Patent supporters fetishize ideas. While ideas are a part of any business or product, they account for a minuscule part of what is needed. What really matters is execution: How do you actually build the product? What specific features are you putting in, where and how? How do you market it? How do you price it? Those things are the hard part. Ideas are a dime a dozen. For every major product, you could probably name 10 failed companies that had tried the same thing first. Before Facebook made it big, MySpace, Livejournal and dozens of forgotten others tried and failed. Before Groupon succeeded, dozens of people tried to offer discount clubs online. (Hell, I have a friend who thought it up while drunk one night in college) Patents do nothing except slow innovation and we would be better off without them.

    • Max K

      completely agree. You said what I have in mind. I’d propose a change to the patent law, that only companies with selling products can sue for their patents. Those “inventors” who dreamed up some ideas and filed patents immediately so that they can make some quick money, they should not be allowed to sue companies who already have products.

  • James Ivey

     Again, that’s by Laura, the same person speaking today.  Same half-truths and misinformation.

  • James Ivey

    What distinguishes that from every other technology (except those that are far older technologies)?

  • Mark – Berkeley

    I am a software engineer.  I believe that software patents are ALL
    bogus.  They favor the large bullies while the little innovator just
    gets sued out of the market.  We need to throw out ALL software patents
    and modify the copyright system to properly cover cases of actual
    intellectual property theft and reverse engineering of real-world
    products.  Software is more like a novel than it is a
    lightbulb/microwave/tv/real invention.  One reason for this is that it
    can so easily be copied.  The components in software are rarely unique,
    and are arrived at independently by thousands of different engineers,
    again and again.  The basic components of fiction novels are reused, yet
    you’d never accuse an author of theft or infringement because they put
    the climax in the third act.  You don’t sue every musician who uses a
    C-F-G chord progression.

    The problem with using the patent system to protect software ideas isn’t
    just that the issued patents are too broad.  It is that the patent
    system is simply not the proper mechanism for protecting software
    intellectual property.  I work for a small company which sells one
    application.  We work hard every day to improve our software.  One
    lawsuit would destroy us.  We don’t patent our “inventions” and we do
    not take our ideas from existing software.  Yet I’m sure we are in
    violation of hundreds of existing patents and could easily be put out of
    business by any troll with a large enough portfolio.

    Innovative software ideas should be rewarded by the sale of your
    software.  If someone else uses some of your ideas to make a competing
    product, then you must improve your product to compete.  In the absence
    of a patent system here, I’m simply not seeing how innovation would ever
    be hindered.  Software engineers have plenty of incentive to innovate
    regardless of our (broken) patent system.

    • Jesse Barnes

      Sadly, it would probably only take one troll with one fairly broad patent.  Litigating patents is very expensive (I’m both a patent holder and someone involved in litigation at the moment, though on an unrelated patent; there must be dozens of lawyers involved in the case and it’s been going on for quite some time now).

      But I fully agree; patents are the wrong mechanism to protect software innovation.  Copyright law could probably use some improvement here; willful copying and shipping of software in violation of copyright holder rights is fairly common.  If the penalties were greater the practice might be reduced, and we’d probably end up with more innovation, not less.  But then I suppose a patent lawyer could apply the same arguments to the patent system…

  • Rutler

    Scott Shafer acts like he doesn’t really want to be sitting in for Krazny.

    He also seems to not know anything about the topics for which he’s interviewing people, whereas Krazny clearly prepares himself.

  • Max K

    1. we need to get rid of  incompetent patent examiners, or better, we should allow companies to sue patent examiners or U.S. patent office.
    2. we need to have law prevent product-less shell companies or individuals from suing companies who have products being sold right now. The initial idea is such a small part of a success business, a lot depends on execution. We don’t want to encourage greedy individuals and lawyers to blackmail companies.
    3. we should have another law that only idea associated with a successful product can be patented. It’s not allowed to generalize the same idea to all kind of un-related applications.

    I am an engineer. I used to think after I retired, I can be a patent lawyer so I can utilize my engineering skill. After seeing how ugly and pathetic this is, I change my mind.

  • Imagidelic

    FYI: The Computer History Museum in Mountain View is having a debate on  Software Patents on Wed 8/24.

  • Greg Slater

    Our patent system is dysfunctional.  Politicians are dysfunctional.  The people are dysfunctional.  Everything about America is dysfunctional.  Here’s an idea:  What about puting a bounty on lawyers?  Say $50 a pelt?  Too much?  Hmm.. maybe I can patent this idea…

  • utera

     Nathan Myhrvold has been making the rounds pushing his cookbook, this patent troll even did a ted talk.    This american life (#441 when patents attack) recently did a good story on patents, doing the journalistic digging that the main stream media fails to do.

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