back to article Junk patent ditched in EAST TEXAS

A US judge has tossed out a patent he considers “obvious”, and with it more than 150 lawsuits launched by a company called eDekka. eDekka had launched action against too-many-defendants-to-list here because they were based on “unpatentable subject matter”. That subject matter is US Patent 6,266,674 which describes something …

  1. raving angry loony

    USPTO is the real problem.

    It's the USPTO that needs to be charged with everything from "gross incompetence" to "fraud" for allowing these patents to go through the system. They've cost not just the US economy but the world economy billions upon billions of dollars in junk patents they've allowed through since one of the Republican presidents turned them from a service centre into a for-profit money maker.

    1. dan1980

      Re: USPTO is the real problem.

      Indeed - for two reasons, though.

      First is how a patent like this ever gets granted in the first place. Second is how in the hell it took 9 years to grant.

      What are they actually doing? That it takes so long implies there is a rigorous process that must be completed for each patent but the results of the process (whatever it is) tell the exact opposite story.

      I appreciate that much patent material can be highly technical in nature and that the language used is specifically vague and wordy and thus far from straight-forward to decipher but it surely must be a requirement that the people who grant a patent actually understand it.

      It's damning whichever way you slice it - either they didn't understand the patent or they did understand it and granted it knowing that it was obvious. Or they didn't even read it.

      None of those options describe a workable system.

      1. Paul Shirley

        Re: how in the hell it took 9 years to grant.

        That normally implies the patentee was playing the system, refiling with modified claims to extend the patents effective life or add claims, sometimes claims that would have prior art if not attached to an earlier claim date. The US patent system is almost designed for abuse by trolls. It sometimes looks like troops deliberately file defective claims knowing they can take their time fixing the mistake, without the patent life clock even starting.

      2. Steve Davies 3 Silver badge
        FAIL

        Re: USPTO is the real problem.

        The USPTO has been operating (by mandate from Capitol Hill) for some years now with the mantra

        Never mind the Quality feel those lovely $$$$$ we get for every application.

        1. Doctor Syntax Silver badge

          Re: USPTO is the real problem.

          "Never mind the Quality feel those lovely $$$$$ we get for every application."

          And they should be liable for $$$$$$$$$$$$$$$$$$$$$$$$$ costs and damages for every duff patent they let through. If you're going to expect profits you've got to share the risk.

      3. Tom 13

        Re: in the hell it took 9 years to grant.

        Actually that part is easy. The applicant kept appealing the USPTO denial until the USPTO gave up and granted the patent.

    2. A Non e-mouse Silver badge
      Happy

      Re: USPTO is the real problem.

      Maybe the USPTO should contact their Swiss counterparts. I believe they have/had some very efficient patent examiners ;-)

      1. dan1980

        Re: USPTO is the real problem.

        I thought the point was that it was idle-enough work that it allows the mind to range free.

      2. dlc.usa
        Pint

        Re: USPTO is the real problem.

        Outsource it to the Swiss? An interesting approach and worthy of a feasibility study that probably can be completed within a few decades.

    3. Richard Jones 1

      Re: USPTO is the real problem.

      I remember using the data structures created by Ashton Tate(?) for a program called DBase back in the 1980s. Data was collected, condensed and added to the files, then processed by an engine based on DBase code. OK there was no human intervention to enter the data, it was all machine based from creation to final analysis though the final print out was wetware readable. So prior art ruled supreme long before Trolls Unlimited stuck their feet into trying to create their bog of legal malfeasance.

      1. Tcat
        Thumb Up

        RE:

        Almost perfect.

        Yes, it was A-T.

        It was not Dbase. It was Dbase 2.

        The important difference here is the 2

        It could have open TWO (2) Different files

        in full R/W mode.

        OK kids. Laugh your asses off, now.

        Your grandchildren will skewer you in the full measure of time.

        For the historians... Think about this.

        Having the capability of addressing Millions of records

        In say, SALES and INVENTORY at the same time,

        and the ability to deduct a unit in real-time

        and record the sale.

        I said 2 R/W files. So, you could READ more than 2 (client data)

        Please remember, we're doing on this on 100,000 Instructions per second on

        the IBM 5150 (Models B and Z). So, moon shot grade shit here.

        Later, the mini based CDI 1000 database was ported now

        to CDI 100 on the 5150. Gawd the small team was too

        Exhausted to party when in config.sys you could enter

        files=99

        and have 90+ R/W files open at once.

        <remember you still needed I/O for

        keyboard, monitor, and that 30 character per second Hayes

        Async modem>.

        1. stephanh
          Gimp

          Re: RE:

          Interestingly, on my OS X machine:

          $ ulimit -n

          256

          So max 256 file descriptors per process. More than 99, but not greatly so.

          (Of course, it is mostly so that buggy programs which open files in a tight loop don't bring down the entire system.)

    4. Tom 13

      Re: USPTO is the real problem.

      Mostly.

      Unfortunately there's also a very large dose of "just following orders" and since those orders came from the US Congress, they are difficult for the USPTO to circumvent.

    5. Tom 13

      Re: USPTO is the real problem.

      You were doing fine on the front end of the post then went partisan. It wasn't a Republican who did this.

      1. raving angry loony

        Re: USPTO is the real problem.

        Tom 13 writes "You were doing fine on the front end of the post then went partisan. It wasn't a Republican who did this."

        Hmm. Let's see.

        1982 (Reagan, Republican) was the start of the problem, when a centralized appellate court was created, which turned patents into more powerful legal weapons.

        1992 (Bush, Republican) was when the USPTO was converted to a profit centre.

        However, it does seem that both times it was a mostly Democrat controlled House that passed the associated laws, and both Democrats and Republicans have bragged about how wonderful it is that the USPTO brings in all this money, while completely ignoring the damage it causes.

        So yes, it was REPUBLICAN presidents in power when the damage was done. As I stated. If you consider that "partisan" so be it.

  2. Chairo
    Coat

    ... bought by eDekka for its legal campaign in 2013.

    I wonder, if they can claim their money back. Hopefully not...

  3. Herby

    A river of tears

    From Tyler Texas. Breaks my heart.

    An outbreak of common sense. Most welcome.

    Now if patents were subject to public scrutiny before issue, it might be a better system. But I dream.

    1. I am David Jones

      Re: A river of tears

      Most European patents are subject to public scrutiny before issue. The application gets published after 18 months and then anybody can write to the office providing relevant prior art and/or arguing why the invention is not patentable.

      A lot of US patent applications are also published prior to issue, and the public have the same right to comment on pending applications.

      It seems to be a very rarely used option though.

      1. Jaybus

        Re: A river of tears

        It seems to be a very rarely used option though

        Of course. Unless it is translated from legalese into a human language, it will never be an effective option.

    2. Dr Stephen Jones

      Re: A river of tears

      "If patents were subject to public scrutiny"

      They are. Very few patents are not.

      Since you call for public scrutiny but are not prepared to do any public scrutiny yourself, and prefer instead to whine about trolls, you've got the patent system you deserve

    3. John Miles

      Re: Now if patents were subject to public scrutiny before issue

      Worth looking at - Victory Lap for Ask Patents ( http://www.joelonsoftware.com/items/2013/07/22.html )

  4. Voland's right hand Silver badge

    eDekka will have the chance to recover their lawyer's fees

    No they will not.

    Shells like that promptly declare bancrupcy and the actual perpetrators will be shielded by the limited liability status.

    1. Anonymous Coward
      Anonymous Coward

      Re: eDekka will have the chance to recover their lawyer's fees

      s/eDekka/companies pursued by eDekka/

      sneaky pessimization, FIFY

      1. Fatman
        Joke

        Re: eDekka will have the chance to recover their lawyer's fees

        I was going to touch on that issue, but you beat me to it.

        I would not be surprised that you have it 'spot on' - a shell corporation with no discoverable assets to confiscate in the event they lost. So, perhaps someone ought to go after the stockholders?

  5. Your alien overlord - fear me

    All patent offices (worldwide) should get independant experts to peer review all applications and the patent is basically a troll, the fees should be doubled before rejecting the application.

    1. Ashton Black

      It all boils down to money

      To pay for independent experts, which I would suggest would not be cheap, either the cost of the patent process has to come from general taxation or from the fee recovered from the applicant. Either way, someone is not going to be happy. (Those without deep pockets, or Republican/Conservative/Libertarian "small state" types)

      1. Eddy Ito

        Re: It all boils down to money

        Of course if one can bribe the independent experts, and one usually can, we're likely worse off than we are now. Heck, Edison had 'friends' in the patent office which helped him out from time to time, why can't anyone else with a few bucks to toss around?

        How about if the patent author be required to write the patent in clear language rather than in verbose legal obscurese? A simple test would be to bring it down to the pub and if the bartender doesn't understand the language used, it isn't clear enough.

        1. DiViDeD

          Re: It all boils down to money

          +1 for taking it down the pub.

          I'm just taking these patent applications for opinion, love. See you later.

  6. imanidiot Silver badge

    Time for a troll fine

    Once a judge passes a verdict like this the company using the patent to receive funds should immediately be liable to massive fines to discourage this sort of behaviour (and some extra rules might be needed so the courts can go after the parent company instead of letting it hide behind the shell company and let it go bankrupt.)

    1. Pascal Monett Silver badge

      Good idea, but that still allows the troll to start the procedure

      I have been repeating for years now that the only surefire way to prevent patent trolling from even starting is to tie the amount claimable to the revenue of the company.

      Because the only entities harmed by patent abuse are the ones selling product. You don't sell product, you are not harmed if someone else is doing the selling.

      That way, patent trolls will know that unless they make and sell what they have patents on, the judge will only grant them whatever they claim times the amount of goods they sell, which is zero.

      If you know you're getting zero, you're not going to start the lawsuits.

      And that nips the issue in the bud, and frees the Courts from dealing with them in the first place.

      1. This post has been deleted by its author

        1. DaLo

          Re: Good idea, but that still allows the troll to start the procedure

          " tie the amount claimable as damages to the amount that claimant itself "

          A small inventor might have spent 100,000 UCU on a pretty impressive invention, idea of which MegaCorp steals and creates a product worth 1billion UCU the main part of it involving that invention.

          The inventor wins in court, gets 100,000UCU and the MegaCorp goes away smiling.

          Patents work if 1) They truly solve a problem that peers would find difficult to solve in such an efficient or practical way

          2) They aren't issued just because the potential patentee was the first to solve a particular problem (for instance they were just the first to come across that problem)

          3) They can be reviewed periodically to either limit claims on them or neuter them if the world has moved on sufficiently that patented item would likely to have been superseded or become obvious if it had never been invented (for instance - someone patents a data retrieval system from tape but databases come along and it turns out that the system used for retrieving data from tape has some overlap but there was no influence in the tape patent to the database patent).

          4) Stop accepting software patents as they don't "transform a machine"

      2. DaLo

        Re: Good idea, but that still allows the troll to start the procedure

        "Because the only entities harmed by patent abuse are the ones selling product. "

        Now I'm not trying to defend any Patent Troll, however that idea is flawed.

        If a genuine "inventor" has toiled for 5 years creating a truly innovative and patentable idea but doesn't have the skills/money/resources to turn it into a marketable product (or maybe it is only a small part that will transform existing products) then he would probably look to licence that patented idea.

        If it is fair game (as he doesn't sell a product) for anyone to rip him off and create their own products based on it (he has after all published the way to do it via the patent system) then he would never be able to sell a licence or have any hope of getting any money for it. Any company he went to with the product to try to licence it could just copy it without fear.

        His only option would be to sell the patent to a company that produces that product that could use that tech for a one-off fee - knowing that the situation he was in would likely to result in a much reduced offer. The company that bought it has a cheap patent, with the resources and the manufacturing to protect it, while the inventor gets a small one-off payment for his 5 years work.

      3. Salts

        Re: Good idea, but that still allows the troll to start the procedure

        @PM

        good idea, the judge could also ask for a bond to cover the defendants legal cost should the troll fail, your getting nothing plus a chunk up front should do it.

      4. Doctor Syntax Silver badge

        Re: Good idea, but that still allows the troll to start the procedure

        "I have been repeating for years now that the only surefire way to prevent patent trolling from even starting is to tie the amount claimable to the revenue of the company."

        No. It's a perfectly legitimate business model to develop something and licence it to others providing that the something is a genuine innovation. The problem here is the granting of patents to something that isn't innovative or that is obvious.

        As far as S/W patents go, given any particular problem to be solved most of the time most developers will come up with the same solution or, at worst, one of a few alternatives and move on to the next line of code. Then along comes some smartarse who applies for a patent to do what a stack of others have done already. The patent offices should require evidence that the proposed patent solves something for which is recognised as a previously unsolved problem; such evidence might be peer-reviewed papers discussing the problem (and not strawman papers published by the proposed patent's claimants).

        And the patent office that lets crap patents through should be liable for costs along with the troll.

        1. Pascal Monett Silver badge

          Re: It's a perfectly legitimate business model to [..] licence it to others

          Indeed it is, and when that happens, said inventor will be backed by said investor and they will be selling product, therefor will be entitled to damages.

          Also, I never said that damages should be limited to sales, I said they should be linked to them. I am quite aware that trolls have vast lawyering coffers, so I will not venture to provide any rule more specific than the one I indicated : you produce nothing, you get nothing. Anything more complicated than that will likely have to be hashed out by lawyers in order to protect true innovators.

          1. This post has been deleted by its author

      5. Dr Stephen Jones

        Re: Good idea, but that still allows the troll to start the procedure

        That's a very bad idea. Yes, it would nip trolls in the bud. But established companies could trade patents (as they do today), while startups which have no revenue would be permanently shut out of the market.

        Inventors could only work for huge corporations and never hope to have their own startup.

        Is it obligatory when posting a Comment about patents to post the dumbest thing that comes into your head? It seems to be the rule around here.

      6. Keith Langmead

        Re: Good idea, but that still allows the troll to start the procedure

        "Because the only entities harmed by patent abuse are the ones selling product. You don't sell product, you are not harmed if someone else is doing the selling."

        So you genuinely invent something that's worth millions and get a patent on it, but without massive investment or infrastructure you can't simply manufacture and sell it independantly. You then approach a large corp that it would fit well with, and offer to sell / licence your invention to them since they've got related products, capital, facilities etc. They use your patent info to build it themselves and pay you nothing...

        By your logic you couldn't sue large corp since you don't produce anything and currently make no money with your invention.

      7. Jaybus

        Re: Good idea, but that still allows the troll to start the procedure

        No. that will greatly favor the large players and eliminate startups. There will be no reason for a large corporation to buy small startups. They could just blatantly steal their technology and pay the small fine instead. Perhaps it could be tied to the revenue from ALL sources.

    2. Tom 13

      Re: Time for a troll fine

      Problematic. For all the trouble they cause these troll firms have decent lawyers. So it is likely any rule you can implement to attack the troll will be used instead by the troll to attack their prey.

      No, this one needs to be solved at the Congressional and USPTO levels.

  7. Alan Brown Silver badge

    There are thousands of these

    The USPTO has passed a huge number of patents which boil down to "xyz well-known business process ON A COMPUTER"

    It's good that a judge has thrown one out but there is a festering pile of these to invalidate.

    1. Dan Paul

      Re: There are thousands of these

      You forget, all the so called patent "innovation" created when you add "on a mobile phone" to the previous work.

  8. TeeCee Gold badge
    Happy

    ".... the companies pursued by eDekka will have the chance to recover their lawyer's fees."

    Aha, the judge has allowed pursuit of costs. Translated from legalese, that means "Somebody needs to put you out of business and that somebody is me.".

  9. Alan Brown Silver badge

    Someone missed a big point:

    "eDekka appears to be a creation of Austin Hansley, the Texas lawyer who represents it."

    Prenda Law, anyone?

    1. Doctor Syntax Silver badge

      Re: Someone missed a big point:

      Now that's an interesting twist.

    2. Fatman
      Joke

      Re: Someone missed a big point:

      No doubt he went to the same School of Law that Prenda Law's principals went to. (Dewey, Screwem & Howe)

  10. JulieM

    Better idea

    Patent offices should begin with a presumption of obviety and non-novelty. It should be for the applicant to show that their invention improves upon the state of the art -- otherwise, no patent for you.

  11. x 7

    "filed in 1992, granted in 2001"

    nine years! is that typical in the USA?

  12. Henry Wertz 1 Gold badge

    US patent trolls

    ""filed in 1992, granted in 2001"

    nine years! is that typical in the USA?"

    Yup. Non patent trolls, you can get a fast track patent in a matter of weeks, and conventional months. But patent trolls use tricks to intentionally delay this process. Read on...

    There's a few particular attributes of the US patent system that makes them take this long. Intended use was, back when people were working on whatever invention and were worried about someone filing days or weeks ahead of them. So, you can file a patent describing the basic device, and have some time to refile to add additional claims to the patent as you refine or add to your design. When you do this, though, it resets the time limit so you'd have a little more time to flesh out your design if you wanted.

    The problem is, a patent troll can subvert this system, they will make frivilous "continuation applications" on the patent (legalese for a requests for more time). The classical "submarine patent", until 2000 one could keep getting their patent extended out, and it'd be valid 17 years from the date it's actually granted rather than the original filing date. This was put to a stop for patents filed after 2000, they're 20 years effective filing date. The new-style submarine patent, there is a tradeoff where the longer they submarine it, the less time they have left on the patent to collect on it. But, a patent troll can file a patent, add claims onto it for years, then when they pop this patent up and start swinging it around, defendants are expected to show prior art effective the original filing date, not the years later date the claims were actually added.

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