Vonage is the darling of network neutrality advocates. Using Vonage, millions of people have canceled their telephone service in favor of an IP-phone that connects through the Internet.
Last month, a jury determined that Vonage infringed three Verizon patents. (6,282,574, 6,104,711, 6,359,880). These patents all relate to various aspects of Internet telephony.
This is not a “troll” case — By definition, patent trolls are only looking for a payment in exchange for a patent license. Here, it is fairly clear that Verizon hopes that its patents will cause Vonage to close its doors. Thus, Verizon requested and was granted a permanent injunction.
Stays Pending Appeal: The general rule as stated in the Federal Rules of Civil Procedure [R. 62(a)] is that a permanent injunction “shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.” At its discretion, a district court can stay an injunction. In cases such as this, where the patents strike to the core of the defendant’s business, denial of a stay often ends the case because an appeal 3-months-later is too late. Under the Federal Rules of Appellate Procedure [R. 8(a)], a defendant may make a motion to the appellate panel for temporary relief after first showing that a lower court motion would have been “impractical.”
In Standard Havens, the Federal Circuit announced a four-factor test for considering whether to issue a stay pending appeal.
- Likelihood of success on the merits of the appeal;
- Irreparable harmed absent a stay;
- Irreparable harm due to a stay (continued infringement); and
- Public interest.
Vonage Partial Stay: The U.S. District Judge Claude Hilton (E.D.Va) issued the permanent injunction and but granted a partial stay. The judge’s decision allowed Vonage to continue in operation, but barred the upstart from signing-up any new customers.
Emergency Appeal: As it did in TiVo v. EchoStar, the Court of Appeals for the Federal Circuit (CAFC) immediately stayed the injunction (at the request of Vonage) and will hear an appeal regarding injunctive relief on April 24, 2007.
Crickets…..
Prior Art information popping up all over the net seems valid.
What are your opinions on the recently published information that the material used in the Verizon patents was originally discussed on an internet forum named “The VoIP Forum” in 1996 as part of an open standards discussion?
Here is one article link at PC World (there is another article at ITworld.com):
link to pcworld.com
the EU is not falling apart because they don’t enforce software patents, which, by the way, they also have no problem defining.
The argument of the form “if we permit X , then bad things Y and Z will inevitably follow” is a known logical fallacy called “slippery slope”. It does not produce truth.
Here is a good discussion on the situation in the EU:
link to oreillynet.com
Supporting the idea that Verizon’s patents are junk patents:
link to techdirt.com
I think it’s true that technical people close to this issue see this as a case of bad patents.
“There is no such thing as software. Every implementation is a flesh-and-blood manifestation of code: real electrons flowing through real chips that you can poke with a stick. The abstract nature of software is a poor fit with the present patent system.”
Dear Law Student,
when you finally graduate and enter the real “dog-eat-dog” world you will quickly realize that not allowing “software” (read “abstract algorithm”) claims in patents will automatically kill most hardware patents on chip designs etc.
If abstract algorithm is not patentable then it is not possible to protect a very concrete and tangible thing like 56K modem, for example.
This will simply create a huge loophole to avoid patent infringement by moving all essential functionality to the software code running on some generic CPU (ever heard about software and hardware modems ?)
It’s very simple: no method or algorithm claims = no protection for computer implemented (read anything involving digital representation) inventions.
“Malcolm, can you construct such a device? I am guessing the answer is no.”
That’s what co-inventors are for, babe.
Some of the posts analogize between copyright and patent, and it makes me wonder if the patent system shouldn’t adopt something similar to “thin” copyright. Certainly there are many inventions that are a rather trivial combination of elements well known in the art. (This is not hindsight, but simply a recognition that some inventions advance the art more than others do.) This is not unlike a compilation in copyright. There is something worthy of protection, but it does not rise to the level of Shakespeare, and it is not in the public interest to incentivize it as much as something that is truly revolutionary. Not sure how such a system would function (maybe < 20 yrs of protection), but I would be interested in hearing other people's thoughts. Also wanted to respond small guy, who said "Everything is software nowdays, even if it looks like hardware to you... Think about 56K modem (Townshend's much litigated patent), DSL modems, fiber optics technology, your own cell phone for Christ sake (GSM, CDMA whatever), RFID, GPS,... hell knows what else.. It's all SOFTWARE (aka "algorithm") to a large extent." I would disagree with that, and to my mind that is part of the problem. There is no such thing as software. Every implementation is a flesh-and-blood manifestation of code: real electrons flowing through real chips that you can poke with a stick. The abstract nature of software is a poor fit with the present patent system. Oh well, soon KSR will be handed down. TSM will probably be dead and there will be something new to complain about 🙂
I just read where an inhouse Vonage patent attorney thought he could fly- so he tested his theory from the upper floors of the ESB- surely now, TSM is not that bad. Also, Google buys Double-Click for 3 bil- Thats with a B people. Who said click patents were worthless. I love dis country.
WILL SOMEONE PLEASE INVENT AN
IMPROVED SYSTEM, METHOD OR APPARATUS
TO MEASURE “OBVIOUSNESS”?, and then send it to the Supremes
before they weigh in with some more Wonderland foolishness.
I’ve said it before, and I’ll say it again:
MEASURING OBVIOUSNESS IS LIKE MEASURING A CLOUD.
Is invention a process?, or a spark?, or both?
How are creativity, inventiveness, obviousness and ordinary-skill-in-the-art, related?
Some highly educated skilled in the art people can’t create themselves out of a paper bag. This gives rise to an essential patentability question: Does ordinary skill in the art mean: (i) a creative person skilled in the art?, or (ii) merely an educated person skilled in the art?
Does simple equal obvious?
What bearing does the perception of an invention being Complex or Simple have? Of course, everything that is simple is not obvious and vice versa. No one suggested simple and obvious were the same, but neither this subject nor any similar notion, which you’d think would of course be an integral part of any serious discussion of obviousness, ever entered the KSR Raccoon-Hearing transcript:
link to supremecourtus.gov
What is invention? Invention is what makes the non-obvious obvious: everything is obvious after it has been invented.
Another problem when testing for obviousness for patentability has to do with the Observer Effect, defined as: “In science, the observer effect refers to changes that the act of observing has on the phenomenon being observed.”
I.e., Before and After observation: Before observation, Is, is what it is, but after observation, what Was no longer is — before’s Is is gone forever After observation.
It is, of course, impossible to tell if an invention is obvious before it has been invented — it has not yet been discovered, and thus it does not (yet) exist. And after it has been invented, at least to the extent that invention is what makes the non-obvious obvious, you can no longer tell if an invention was obvious.
That is why Measuring Obviousness is like measuring a cloud.
The CAFC’s pragmatic obviousness test, “Teaching, Suggestion, Motivation,” or TSM, is a test that is determined by the presence of some evidence, or the lack of evidence. Of course, there will be on-the-fence cases, and some silly stuff may slip through, but that’s life, and that’s what court’s are for.
Teaching, Suggestion, Motivation works because TSM is in essence based on some form of identifiable evidence — patentability cannot be likened to measuring a cloud.
TSM!, because nothing else works!
Malcolm wrote – “Home computers are still not “obvious” to me even though they’ve been described in great detail. However, using a computer to control a robot with humanoid fingernails which scratches my back at “user-controlled times” while I’m working at my laptop is a bloody obvious invention, even if nobody has “suggested” combining those exact features in so many words.
It’s obvious in hindsight and it’s obvious beforehand. If anyone here doesn’t think it’s obvious, give me a call because I’ve got a billion other “inventions” for you that are non-obvious according to the strict TSM test.”
Malcolm, can you construct such a device? I am guessing the answer is no. You would have to write an enabling description of the device to avoid “undue experimentation.”
If someone were to actually build such a device there would be no problem with him patenting it.
And I imagine, although it would probably limited to some specific details, the public like yourself would still be in an uproar over the USPTO issuing ridiculous patents.
According to softwarevisualization: “Companies don’t deserve patents for [being quickest to file]. Patents are issued to advance the useful arts and sciences it ways they would otherwise NOT be advanced. And implicitly, they have to advance MORE than they retard. If a patent thicket is retarding progress in IP telephony, as some have asserted, then those patents have to go on THAT basis alone, bye. see ya.”
I agree that in an ideal world the people who come up with ideas first should get a reward. But in our non-ideal world people who first communicate those ideas effectively often get the credit. This arguably “unfair” system has the practical effect of advancing the useful arts considerably – more than most are willing to recognize, I believe.
Just slow down, softwarevis…
You are obviously good at judging the obviousness of junk “software patents”, like Amazon’s one-click or IBM’s(?) XOR or junk like that.
But you are not that good overall.
Everything is software nowdays, even if it looks like hardware to you…
Think about 56K modem (Townshend’s much litigated patent), DSL modems, fiber optics technology, your own cell phone for Christ sake (GSM, CDMA whatever), RFID, GPS,… hell knows what else..
It’s all SOFTWARE (aka “algorithm”) to a large extent.
And all of these things are completely obvious to you, of course…
I don’t like Vonage characterized as “upstart”.
I don’t like small inventors/non business patentees referred to as trolls. Might as well call them nappy headed n—-ers. Both titles are loaded and wrong.
This case is a fine example of how patent law has shifted to protect large corporations.
Verizon sues Vonage and can extract maximum royalty by getting the injunction in the face of a shut down.
If, on the other hand, Verizon was sued by a small business with no significant market share, Verizon could go tell them to f— themselves, with no risk of an injunction. Consequently, royalty price goes way down.
Worse yet, if Verizon sues smaller guy than vonage who is really just starting, they can get the injunction.
It’s all wrong, and going the wrong way.
Sometimes when I am swinging in the traditional fashion on my swingset while reading this blog, I find myself distracted. I wonder if it is because I am bored? Hmmm.
Clifford said : “ALL inventions are obvious in hindsight”
That, sir, is simply not true. Yes, hindsight bias is an issue, but the defenders of the current system greatly overplay the issue. The real problem is defining “obvious” for the purposes of the patent system and we do not have a good definition and “obvious” is probably the wrong word for the concept that Congress was trying to capture. However, even if we stay with “obvious” perhaps the patent lawyers on this blog should listen a bit more to the techies (like myself and software visualization) on what would be obvious to a PHOSITA. And the patent lawyers should listen more to the almost universal howls of rage from software people over how the patent system is being applied to their industry. You guys are running a service industry and there is an industry sector (software) out there that by and large would prefer to have nothing to do with you as you currently operate.
Analog guy said: “I might add another point that invention is sometimes the result of the work of identifying and understanding the problem to be solved.”
But if the invention follows naturally from identifying and understanding the problem how can it be patented? The important work was not in the invention but in identifying the problem?
Even softwarevisualization admitted that disclosing otherwise secret information is a good enough reason to issue a patent. Maybe Verizon was just the quickest at intelligently articulating these methods in a proper public forum. If so, then by softwarevisualization’s own standard they deserve a patent.
rward,
I mean this playfully, OK? but that’s the thinking of a IP attorney. If Verizon is the “quickest” to patent, that in no way addresses what I think s the fundamental problem underlying the issuance of junk patents: patent quality. I don’t care if any of the numbered points below was true, because the patent itself is not worthy- other people either conceived of it (it was “in the air” most probable IMO- when was the last time Big Corp actually invented anything in IT?) or would have presently. Further, the fact that Vonage was able to use the same technology and prosper (sort of) indicates that patenting was not necessary to advance even commercial activity (which is arguably somewhere in the “useful” part of the “useful arts and sciences”).
We have a junk patent being wielded to create a barrier to entrance.. great.
1) Verizon was not first to invent but was smarter than everyone else for at least recognizing that a patent COULD be had and it would be a powerful weapon and was first to file. Therefore they are clever , cunning whatever business people and that’s the way the game is played. Verizon wins deservedly so.
2) Verizon was first to invent and also to file. They thought of it, they filed and it’s theirs fair and square.
3) Verizon had the nerve to file even though it was a questionable patent (Verizon’s patent lawsuit against Vonage started with several hundred claims across 7 patents, was reduced to 48 claims across 5 patents by the time it got to court and scored on 6 claims between 3 patents.) and this is good business practice- you have to take risks and they survived, so bully for them.
Any of those may or may not be true. But they’re not to the point. Companies don’t deserve patents for ANY of those considerations. Patents are issued to advance the useful arts and sciences it ways they would otherwise NOT be advanced. And implicitly, they have to advance MORE than they retard. If a patent thicket is retarding progress in IP telephony, as some have asserted, then those patents have to go on THAT basis alone, bye. see ya.
It’s about social utilty, not some adolescent, Ayn Randian concept of individual rights and property ownership. (not saying that you believe that) Patents like companies are a legal fiction that are created to serve a purpose.
“Maybe Verizon was just the quickest at intelligently articulating these methods in a proper public forum. If so, then by softwarevisualization’s own standard they deserve a patent.”
That is a terrible standard for patentability but there is no doubt that much of what gets patented is just that: garbage that nobody else bothered to write a patent application for.
The only real “innovation” in such instances is the conception that certain mediocre combinations can actually be patented, if one has enough money and lawyers to see it through.
clifford — it’s Friday and you couldn’t come up with more ad hominems and strawmen??? I am so disappointed.
You wrote that “all inventions are obvious in hindsight”. That’s bogus and I explained why.
I think the strict TSM test for obviousness leads to crap patents and I’ll bet you (but let me guess: you’re “not a betting man”) that the Supreme Court agrees. What should the test be? Probably something more along the lines of the test used in the EP.
Frankly, I could care less if there is some “subjective” component to the test. Our laws are replete with subjectivity and they work pretty well as long as we the people keep the loonie tunes (e.g., fundamentalists, fascists, and libertarian wackos, mainly) from climbing behind the drivers’ seat.
Even assuming softwarevisualization’s assertions are correct, i.e., that somebody somewhere knew in their head how to do what Verizon claimed, this does not prove that the methods were “known.” Even softwarevisualization admitted that disclosing otherwise secret information is a good enough reason to issue a patent. Maybe Verizon was just the quickest at intelligently articulating these methods in a proper public forum. If so, then by softwarevisualization’s own standard they deserve a patent.
Some say the patent system is broken. Maybe software developers are at fault, too. Perhaps too many are unable or unwilling to intelligently and properly communicate their developments to the rest of us.
Mark Nowotarski:
Thanks that’s exactly MY point. People are novelty producing machines; they spontaneously emit novelty (no patent incentive necessary) under the following conditions- they have facile and easy command of a largish number of simple components (vocab) and rules for combining them (grammar) that can be put together in absolutely numberless ways (sentences) to perform equally numberless useful functions (communicate ideas or describe reality etc).
But this is exactly what we have with software and method patents !
A largish number of simple components (programming language constructs) that can be put together by rules (programming language syntax) in numberless ways (code)to perform numberless useful functions (programs that do X)
So, under these circumstances, no patent incentive is needed to create , creation is NOT an extraordinary achievement.
This is not true of things like atoms and molecules because it’s is an extraordinary achievement to manipulate them at will and when it is not (setting something on fire etc) no patent is deemed worthy.
Individual sentences are not copyrightable as aren’t individual words, except as logos slogans etc. A collection of such sentences are, but the ideas contained within are NOT. My code is copyrighted as soon as I author it. I am fine with that, as are most programmers. The USPTO, in granting patents to software END RESULTS and method patents, is patenting IDEAS. I don’t care if code is copyrightable; I think it’s a good thing. But patenting moveable windows on a computer screen and single-click cookie retrieval sales… that’s junk.
The Verizon patent is a junk patent that dresses itself up in specifics (we use TCP/IP.. we store sh*t in databases NOW and get it back THEN) to lay claim to a the very broad are of VOIP.
Going back to the patent troll issue — a lot has been said about the distinction between an entity that produces product under the patent and one that does not (i.e., someone just looking for a license). I’m not convinced that an entity holding patents strictly to license them is a bad thing that deserves the label of “troll.” Buying inventions from an R&D company or an individual inventor may be more economically efficient for a company than having an in-house R&D department. Nowhere in the Constitution or in the U.S. Code does it state that patent rights only attach if the owner is going to actually make product under the patent.
I have no problem using “troll” to describe “submarine patent” plaintiffs.
And by the way, I also share your concerns about the shortcomings of the patent process. I personally think we need to improve the utility and timeliness of the disclosures. This will make patents more useful and thus more worthly of their granted monopoly rights.
Timeliness and utility of disclosure is one of the strengths of open source. In open source, the discloser posts a fully functioning prototype (i.e. source code) for all to download, use and modify. It’s available immediately and not 18 months after submission like patents.
I think one of the legislative reforms that would increase the value of patents is to modernize the nature of the disclosure and the timeliness of the disclosure.
More here: link to marketsandpatents.com
rward said:
Please explain why “we see” because I do not see.
Patent #3 – 6,359,880 – Public wireless/cordless internet gateway
Upheld – Claims 1, 6, 7 and 8 were found violated of the ‘880 patent.
1. A method comprising:
registering a wireless telephone terminal in a localized wireless gateway system;
translation a wireless telephone exists in the way they all do.
transmitting registration data identifying the gateway system from the localized wireless gateway system to a home location register database through a public packet data communication network;
translation- talking to a database where you can register the gateway or you know, everything else under the sun. S get this, here, Verizon is claiming for itself the act of putting something specific in a database. No kidding. We’re now going to patent the very act of putting specific things in databases. Go **** yourselves, Verizon. You’re slitting your own greedy throats. This is exactly the kind of IP claim that will take America down.
receiving a request from a calling computer coupled to the public packet data communication network for a call to the wireless telephone terminal;
translation- we get calls over a network. Nothing obvious circa 1994 to ANYONE who worked in telephony, like, say this guy;
link to blog.biginternetmall.com
in response to the request, accessing the home location register database and obtaining a packet data address for the localized wireless gateway system;
translation- we use the data we put into the database. How original is that ? Get the data out of the database and use it to connect those calls. Jesus, I take data out of a database for a purpose specific to my program every freaking day… I should see a patent lawyer…..
using the address to set up a voice communication through the public packet data communication network and the localized wireless gateway system between the calling computer and the wireless telephone terminal.
translation- see previous translation. Was there other uses of the address? Like, did most people use such an address to printout on sheets of paper and wallpaper their living rooms with?
6. A method as in claim 1, wherein the public packet data communication network is a packet switched network.
translation- this is just more of the same.. they’re saying we claim this transmission means…. it’s a joke.
7. A method as in claim 6, wherein the packet switched network comprises a system of interlinked data networks using TCP/IP protocol.
translation – yeah, extending it to TCP/IP, now that’s innovation… what else would anyone do? UDP? They are saying only they can use this public protocol for this purpose. This is a so called “method patent” of the sort that deserves only to be laughed out of the USPTO.
8. A method as in claim 7, wherein the system of interlinked data networks comprises the Internet.
translation-m more of the same
You know what each of these are ? They’re zeros in terms of innovation. You know what they are collectively? zero times 8 = a big fat zero.
This is a junk patent. This is the mere application of common programming techniques and the combination of already-extant technology in an obvious way.
AS to clifford who says it’s obvious to me once I have the patent in front of me, that’s a statement about you, ad not me. You’re astonished at this garbage, not me. It’s not obvious to YOU.
The only subjective judgment being made here is that it was NOT obvious.. that’ the poor judgment here.
The fact remains- where rapidly advancing technologies provide billions of simple and obvious combinations of parts into new, useful wholes, the standard of “previous literature” fails miserably, and a patent system that uses it a guide will destroy the progress it (allegedly) sought to foster.
Softwarepatentvisualization,
Thank you for your comments. This is a bit off topic, but I’m not sure you appreciate the irony of your statement.
“Any fool can and does put together completely novel sentences which have never been spoken before they spoke it.”
That sentence, at least within the databanks of Google, is unique. Put it in quotes and Google it and you will see. In fact, even your phrase “Any fool can and does put together…” is also unique. You may have been the first person to ever write that particular phrase.
Amazing isn’t it?
The irony is that your sentence is, as far as I know, protected by copyright. No one else can use that sentence without your permission. (Some copyright folks can help me out here).
Just thought you might like to know.
“many patent enforcement companys enforce patents of independent inventors who do not have the money to file suit against an infringer making money off the inventor’s teachings. I have been in this business for more than 16 years – large clients and independent inventors – prosecution and litigation. I would assume that the anti-troll patent attorneys that comment on this blog represent large companies who want to use teachings by an independent inventor without paying a royalty. Grow up and get real.”
As a general rule, engineers (at least in the software industry) never “use the teachings” of patents. In fact, they are instructed to never look at patents. If a big company infringes a patent owned by a troll, it is not because they learned anything from the patent owned by the troll. It is because the troll was lucky enough to obtain a patent that had claims that could be stretched to cover technology that the big company independently developed.
Softwarevisualization – Regarding several of your comments.
First, you are applying hindsight left and right. If you think it is easy, that “it does not represent a flash of genius by anyone”, I strongly recommend you become an inventor full time, you’ll make millions if you too are capable of identifying something of great value that is unanticipated by tens of millions of manhours of effort by your peers.
By the standard you appear to wish to set, Einstein’s largest contribution to the field of practical engineering, the ‘reverse flow system’, was obvious merely because everyone sought the level of efficiencies, or THE RESULT, provided by it. Edison’s light bulb would have been obvious because lightning strikes, nothing more than electrical potential discharged between two points, had been illuminating dark nights for eons uncounted.
If you really want to get a grip on the issues in the case, rather than merely beating your breast in a forum, download the case file and read the damn thing. In a case like Verizon v Vonage, millions will have been spent by Vonage to try to make the case for 102 & 103 unenforceability (failure to be unique or obvious, respectively) of the patent – if they did not find the basis for such after that much effort, you can pretty much rest assured it did not exist or that Vonages’ legal team was utterly incompetent (very unlikely in this kind of “bet the company” litigation).
Regarding your thoughts on “as we see in business method patents and software patents that protect not the structure of the software or the WAY it achieves its ends, but rather the ENDS themselves, irrespective of how it was achieved.” When an inventor has jumped so far ahead of his peers that he is able to claim “the ENDS”, with out limitations as to means, it is the truest sign of profound innovation. The quality of a product can NEVER exceed the quality of the ideas upon which it is based – one of the reasons American industry has so far exceeded the performance the combined efforts of the rest of the industrial world is that we embrace innovation, we demand it, and we reward those few of us who are capable of concieving of it.
Regarding the pervasive anti-patent slogan of “patents suppress innovation”, it is absolute garbage. By definintion, the lack of availability of a given technology calls for new technology beyond what was offered or defined in the past.
What I find ironic is that the voices raised in protest against patents are almost all from the software sector, the technology sector where it is perhaps easiest to simply rip code from competitive software and cut and paste it into your own work. My suggestion? Don’t work for companies that tell you to copy the work of competitors or you’ll continue to get burned when your employer gets nailed for reverse engineering competitors systems rather than developing their own.
Of course, I am referring to the independent claim that was posted. The dependent ones we were shown are largely irrelevant to whether infringement exists.
The “flash of genius” test comes from the Cuno case that was effectively overturned by the 1952 Patent Act. So basically, “softwarevisualization” is half a century out of date on the law. And I thought these software guys were always on the cutting edge…
I do worry that if Verizon were to win they would raise the price of VoIP unitl it was as ruinously expensive as their landline service. OTOH, the one claim that was presented here I would say was not infringed, but that’s just me.
ALL inventions are obvious in hindsight – that is a fact.
Bogus.
Home computers are still not “obvious” to me even though they’ve been described in great detail. However, using a computer to control a robot with humanoid fingernails which scratches my back at “user-controlled times” while I’m working at my laptop is a bloody obvious invention, even if nobody has “suggested” combining those exact features in so many words.
It’s obvious in hindsight and it’s obvious beforehand. If anyone here doesn’t think it’s obvious, give me a call because I’ve got a billion other “inventions” for you that are non-obvious according to the strict TSM test.
*******************************************
I’m sorry to have offended you Mr. Associate Justice – i didn’t realize you have re-fined your test for obviousness – it’s what an associate justice from vermont would have thought was obvious to a POSTA (himself in hindsight). Clearly a home computer passes your test because it is not obvious to you. It’s like tickets to a ferries wheel. duh, i can’t see why i didn’t get it before.
Go attend a trial and figure out what that evidence stuff is – and how that evidence stuff can be applied to a a rule of law. Hint, needs to be an objective rule of law – not your would it have been obvious to a vermont associate justice test. Hey let’s just call you as the expert on all patents cases and ask you what you think would have been obvious – no need for a rule of evidence or an objective test, for that matter lets trash 300 yrs of jurispudence, two revolutions, and two wars, that resulted in our court system of due process, evidence, rule of law, repose, etc etc – we can just ask you.
“In fact, the PTO has issued thousands of patents to inventions ‘discovered’ by such robots.”
Inventors: Number 5, Data, Kathy Lee Gifford
“Vonage deserves an opportunity to test the validity of the patents and the interpretation of the patents given by the district court in its appeal before it is effectively shut down by a permanent injunction.”
No doubt about this. Permanent injunctions should be reserved for those situations where the claim is subject to one or two reasonable interpretations at best, the technology AND prior art is well-understood, and the defendant has admitted infringement or can’t reasonably deny it.
Most software and business claims are going to fail this test and they SHOULD fail the test.
“A fool randomly puting together parts which are available off the shelf will never make any useful and non-obvious solution to a problem, unless by hard work or stroke of genius (invention). ”
Maybe a fool won’t, but a mindless robot will. In fact, the PTO has issued thousands of patents to inventions “discovered” by such robots. The process of discovery is sometimes called “screening a library for useful compounds.”
To Joe Smith and softwarevisualization, the patent system is broken, and all software patents are obvious and unconstitutional. They can’t be persuaded.
ALL inventions are obvious in hindsight – that is a fact.
Bogus.
Home computers are still not “obvious” to me even though they’ve been described in great detail. However, using a computer to control a robot with humanoid fingernails which scratches my back at “user-controlled times” while I’m working at my laptop is a bloody obvious invention, even if nobody has “suggested” combining those exact features in so many words.
It’s obvious in hindsight and it’s obvious beforehand. If anyone here doesn’t think it’s obvious, give me a call because I’ve got a billion other “inventions” for you that are non-obvious according to the strict TSM test.
Softwarevisulization,
“Consider language. Any fool can and does put together completely novel sentences which have never been spoken before they spoke it. Something analogous is true in technological fields. There comes to exist a set of technologies whose parts can be put together in innumerable many novel and useful ways, yet require no special ability or advancement of the arts. Such “inventions” are ready to essentially “fall out” of the system and require no genius insight.”
If this were true then we can extend the logic and abolish copyrights. Given a sufficient number of fools putting together novel sentences you can, by the same logic, expect that they will eventually put together the completly novel sentences of any book. It just doesn’t work that way. Neither does the logic hold in techhnical fields. A fool randomly puting together parts which are available off the shelf will never make any useful and non-obvious solution to a problem, unless by hard work or stroke of genius (invention). I might add another point that invention is sometimes the result of the work of identifying and understanding the problem to be solved. This is not something which your logic accomodates.
Posted by: Christopher Paradies | Apr 13, 2007 at 10:50 AM
Joe Smith understands this issue perfectly.
Mark Nowotarski said:
“It is hard to see how encouraging existing industries to claim patents on techniques for the sole purpose of shutting down competitive threats encourages progress in the useful arts.”
I agree with Joe Smith. The fact of the matter is that after about 1980 or so, there was very many “new” technological pieces that were just waiting to be put together, and put together without any special insight. Using previous publication as a standard of obviousness is completely broken; it’s actually a logical error, where the following agreed-upon observation:
IF it were published, THEN it would be considered obvious from that point forward
is confused for no good reason with this:
IF it were obvious, THEN it would be published.
You brother, suffer from Hindsight – or as newly coined by me Justice Breyer syndrome. ALL inventions are obvious in hindsight – that is a fact. YOU or a POSTA could have figured it out, YOU could have taken off the shelf stuff and doped it out. The old art was CAPABLE of modification to practice the invention. All hindsight, after the fact, once you have the patent in front of you, Oh i could have thought of that moment. A subjective standard that is not a rule of law.
Softwarevisualization said:
“[Encouraging disclosure of otherwise secret information] is the ONLY reason for issuing a patent, and by that criteria, as we see, no patent should have been issued.”
“…it does not represent a flash of genius by anyone.”
Please explain why “we see” because I do not see.
Also, please explain why “a flash of genius” should be the standard? You sound a lot like the Spanish gentleman in the Egg of Columbus story (see link to en.wikipedia.org )
Lonnie, i agreed for the most part. I think you intended vonage a couple of times and not verizon. Certainly true that vonage is making/ made the business bet that it can get an acceptable roi and manage the business risks. Ip risks being one of them – without a doubt they failed to manage this risk, in this case. In fact you can probably say that about all of these cases – rimm, ebay, intel, microsoft, etc. so kiss vonage goodbye (and good riddance – it was run a a felon anyways) – you can be assured that starband, or someone else will pick up the customers out of the bk – and they might be more skilled at managing the risks.
I just happen to see the trend here that there is a toxic mix of lawyers telling the client what they want to hear – i can bust this patent, the patent owner can be bought out an any time so why not run the trial risk, that re-enforces the combativeness and lawlessness of the client (we get away with a lot of law breaking in other areas see above) so why not break another, . A compliant pto willing to challenge the courts – lets do reexam’s dual appeals post trial and and save the infringers ass. (btw vonage is nuts not to immediately file for reexam – there is a rumor in the translogics case that cafc is tired of being judges and can go home now, and let the political hacks and gs-11 examiners decided the cases from now on – but i’m sure a great mind like Kimberly can hold those diametrically opposed thoughts at the same time without her head exploding for the rest of us).
Another factor is will call the tech p/e factor incentive to infringe multiplier factor. i.e., the insider stock sales – if i can bump the costs of infringement down another quarter and still sell my insider stock at a (now inflated p/e) then i have every economic incentive in the world to keep litigating, delay, etc and just keep on selling the stock. My point about verizon – i don’t know the cases or the vonage players – but i can bet there was or would have been constructive settlement discussions had vonage had professional management – was that for whatever reason vonage decided to double down and came up with only 1/2 the case. Is the 5% royalty that crippling? Scalia had it right – lets face facts – everyone is in this for the money, no one is holding out enter the injunction and let the market decide the value.
I stand by my remarks that monopolies and cartels stifle competition and patents provide an incentive to innovate and compete. PS verizon couldn’t give a hoot about its own voip that does nothing more than provision POTS (except maybe avoiding some union contracts). That fiber is to offer bundled services not provision voip POTS.
Joe Smith understands this issue perfectly.
Mark Nowotarski said:
“It is hard to see how encouraging existing industries to claim patents on techniques for the sole purpose of shutting down competitive threats encourages progress in the useful arts.”
I agree with Joe Smith. The fact of the matter is that after about 1980 or so, there was very many “new” technological pieces that were just waiting to be put together, and put together without any special insight. Using previous publication as a standard of obviousness is completely broken; it’s actually a logical error, where the following agreed-upon observation:
IF it were published, THEN it would be considered obvious from that point forward
is confused for no good reason with this:
IF it were obvious, THEN it would be published.
The first statement is true, the second one is false. But this is the standard, basically, because no one can argue with the accuracy of it. That’s poor lawmaking.
Consider language. Any fool can and does put together completely novel sentences which have never been spoken before they spoke it. Something analogous is true in technological fields. There comes to exist a set of technologies whose parts can be put together in innumerable many novel and useful ways, yet require no special ability or advancement of the arts. Such “inventions” are ready to essentially “fall out” of the system and require no genius insight.
In fact, this case hinges on just such an “invention”, and that is the problem with it. The sheer number of useful “inventions” implicit in the way I describe above and Joe Smith alludes to is astronomical. No one can write them all down, for the same reasons that no one can write down every useful sentence in advance.
What we have here is a breaking down of the patent system because there has been a neglect on the part of lawmakers to seriously review the underlying assumptions of that system. A patent system created to protect things made of dozens or hundreds pf physical parts cannot be made to fit a world in which the parts are veering dangerously close to mere thought or conception, as we see in business method patents and software patents that protect not the structure of the software or the WAY it achieves its ends, but rather the ENDS themselves, irrespective of how it was achieved. This is like patenting the idea of a car and is exactly what is going on with respect to business method patents and software patents, deniers notwithstanding.
In Vonage vs. Verizon what we have is someone running to the patent office with one of the billion obvious ideas which were implicit in the intersection of telephony and IP packets. This idea distinguished itself only in the potential monetary reward a monopoly on its use would afford the monopoly holder, and NOT for any technical reason.
This is the reason that it, and not the other billion ideas of similar ilk was patented; it does not represent a flash of genius by anyone.
So the problem is the standard for obviousness, which essentially rests on sort of mythical notion of a body of literature, as if all good ideas are somehow funneled through a central clearing agency which can be counted on to publish them.
Verizon’s patent is what any student would think of doing, should they set their mind to it, and what multiple people who were ignorant of the patent did in fact think of. No patent protection is needed for this idea to surface.
Which brings me to Mark Nowotarski’s next comment:
Governments provide patents to encourage the disclosure of otherwise secret information. The rationale is that inventors will only be willing to disclose the information to the public if they can stop anyone from copying the disclosed invention. It is the disclosure that promotes progress in the useful arts. Otherwise, inventors will be more likely to maintain their secrets.
I agree that that is the ONLY reason for issuing a patent, and by that criteria, as we see, no patent should have been issued.
It’s too much to ask the patent office to populate its underpaid ranks with people who experts in every particular field of endeavor, much less a new emerging field. It’s not going to happen. Until the collective IQ of the legislators is raised as to what constitutes obviousness, then the best interests of society will continue to be abused, as we see here, and anti-market / anti-consumer / anti-choice results as we have here will continue to drive value and competition out of the market.
The problem with entering a permanent injunction after a trial at the district court is that reversal and remand rates upon appeal to the Circuit Court of Appeals for the Federal Circuit are high, perhaps as high as 40% in some studies of patent appeals. Enjoining Vonage from providing service to its customers would put Vonage out of business. Vonage argues that preventing Vonage from signing new customers does the same thing.
It would not be just and fair to put Vonage out of business based on mistaken claim interpretations or on a claim that is invalid as a matter of law. There would be no way to revive Vonage upon reversal of the district court’s decisions, because its market share of the VOIP world would be gone.
There is no guarantee that Verizon would offer Vonage any license under its patents, and Verizon has the right to deny a license to Vonage. But, Vonage deserves an opportunity to test the validity of the patents and the interpretation of the patents given by the district court in its appeal before it is effectively shut down by a permanent injunction.
It’s very simple, guys.
Verizon has recently made a huge investment in residential infrastructure, by building direct fiber-optic connections to a large number of US households (I got one too, free installation by Verizon, probably worth at least 1000$ in equipment and labor)
Vonage sits on top of this high-speed Internet infrastructure, that’s why they can offer cheap prices.
Nobody wants his lunch eaten by somebody else, including Verizon
Does anyone have a link to the opinion yet?
“Last time i checked verizon provisioned POTS services – not VOIP services.”
Then you must not have checked in quite some time. Verizon does offer a VOIP service, called VoiceWing.
“Indeed, having dealing with verizon in the past – these guys probably brought the suit for sport and a quick cash hit.”
Or, perhaps they brought the suit because a competitor was “eating their lunch” by providing a competitive service at a cheaper price, and was only able to do so because it didn’t have to invest the time and resources in advancing technology as Verizon had done.
“Here you have a perfect example of a monopoly incumbent striking down the market entrant.”
Then, when is it ever right to sue a competitor for patent infringement? If you don’t compete, you are a “patent troll.” If you do compete, then you are some “evil monopoly incumbent.” What use are patents then?
Instead, here you have a perfect example of a patent owner seeing unfair competition and utilizing its IP assets to protect its rights. This is exactly what the patent system is for — securing for inventors the right to exclude others from making, using, or selling their invention.
Clifford: Regardless of who ate who and how big law firms are, someone at Verizon made the decision to proceed.
I suspect you grant too much greed to law firms and not enough intelligence to companys’ excecutives. Though I am unable to speak for all companies, I know one of the considerations when reviewing legal advice is how objective the firm is when providing that advice.
Verizon did not proceed with this lawsuit without a lot of internal analysis and debate, regardless of how positive the legal advice they received was.
Joe Smith:
You said:
No, I mean one for which there would be a solution which could be designed with a reasonable amount of effort from known standard building blocks.
If you say the invention is “obvious” once you have seen the solution, and you are saying so because the invention uses three or more “standard” building blocks, then you are using hindsight.
There is little doubt once the solution to a problem or once an invention is known, particularly in the mechanical arts, that a reasonable amount of effort from known standard building blocks solves the problem (excluding breakthrough technologies). But you also hit on the magic words. If combining two known building blocks achieve the result, then we would have obviousness and the patent should not have been permitted or the patent would have been declared invalid at trial (as previously pointed out in other posts). If we have three standard building blocks combined in a unique or unusual way, we have an invention.
You also said:
Someone quoted parts of the patent claims and those claims read a lot like a generic description of a cellular radio communication network which was conceived sometime in the 1940s or early 1950s. Interconnecting disparate communication systems is not exactly a new problem.
It may be that the claims sounded similar to a generic description of a cellular radio communication network that may have been conceived sometime in the 40’s or 50’s – which is about two “may’s” too many. However, the gulf between theory and the specifics of a claim can equate to the Grand Canyon. I am unqualified to speak regarding the specific Verizon patents and claims in suit because I have not read them. I have seen claims that are “similar,” but the similarity stops when we reach the heart of the invention – whatever that may be. Sometimes the crux of a claim can be a few words, otherwise the claim may be nearly identical to previous inventions. Thus lies the difficulty of being an inventor or a patent practitioner – or a patent examiner.
You also mentioned the urban legend about someone buying up efficient engine patents and suppressing them. That is impossible. Someone may buy up efficient engine patents and prevent them from being practiced, but patents are publicly available and once issued can be accessed by anyone. If there are patents that show practical approaches of increasing engine efficiency that were filed earlier than April 1987, then they are in the public domain AND ANYONE CAN USE THEM TODAY. Given the drive for increased mileage in vehicles, if Toyota or Hyundai saw an advantage in those patents, do you think they would have failed in finding and using them?
You can buy and “suppress” an invention before a patent issues, but a private company can not suppress an issued patent.
Axel: The point of patent protection is the granting of a monopoly for a defined period of time in exchange for disclosure of an invention. The patent system was developed at a time when the value of an invention could be decades. The patent system may work less well for technologies that have a lifetime of less than a decade, but there is part of the two-edged sword.
We can complain about company A that locks up a technology because they came up with it first, but what about company B that develops a completely unique solution that avoids the the intellectual property of company A, but then locks up their technology for themselves? You may be happy that company B provides an alternative, but you can also see that the system worked. New technologies were developed to improve the useful arts by finding a new solution to the problem. Even better, 20 years after the filing date of each patent, ANYONE CAN USE THE TECHNOLOGY!
Americans seem to have gotten into this mode of “I want it now.” Too bad. It costs a lot of money to develop technology, and the only incentive there is to spend the fortunes it costs to develop more new technology is having the profit to do so, and that comes only with a limited monopoly. Twenty years may seem like a long time for you to wait to have competition for a specific technology, but that is the best STRATEGY for maximizing technological progress.
Incidentally, if you have a better solution I can get you Jon Dudas’s telephone number.
Why so fast with – this is not a troll case? Last time i checked verizon provisioned POTS services – not VOIP services. Indeed, having dealing with verizon in the past – these guys probably brought the suit for sport and a quick cash hit. (like intel did to broadcom). I know denis is a professor now – so he needs to be cutting edge and talk about the boogyman – troll. Face the facts people – monopolies and cartels stifle competition – not patents. Here you have a perfect example of a monopoly incumbent striking down the market entrant. Just ask the CLEC’s how open the verizon network is. (Sorry the wreckage of the CLEC’s – verizon used it’s market power and foot dragging skills to kill them all and trash billions in investments). Also face the facts- verison probably offered to settle the case – vonage doubled down and lost (half the case).
I think we might be seeing more of these cases as a function of the large law firms swallowing up the small patent law firms – big firms need the big bucks – and it colors their judgment in advising clients – or gives subtle re-enforcement to a combative law breaking culture found at a start up like vonage (they are already breaking e911, and tons of municipal regulations on tax and universal services fees, etc etc. ). In other words,, the patent bar at law firms has lost the counseling aspect of its job.
As a UK reader of your blog, I was just wondering whether US paetnt trials were the same as normal US cases whereby unless the claimant has acted outrageously he is not normally expected to pay the defence costs of the other party?
If so then there is a large reason why you have so many patent trolls in the US (together with the fact that it seems easier to get broad and esoteric patents in the US), if a patent troll knew it might have to pay millions in costs to the other side if it lost I imagine that you would see far fewer frivolous suits (though I accept that this would also make it harder for smaller companies to dare to take on the “big boys”, no system is perfect that is clear).
many patent enforcement companys enforce patents of independent inventors who do not have the money to file suit against an infringer making money off the inventor’s teachings. I have been in this business for more than 16 years – large clients and independent inventors – prosecution and litigation. I would assume that the anti-troll patent attorneys that comment on this blog represent large companies who want to use teachings by an independent inventor without paying a royalty. Grow up and get real.
Oops. Sorry – I just noticed that Dennis already posted the scheduling of the April 24th oral argument. Never mind.
Wow — look at this:
04/10/07
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Calendar Announcement
(This calendar is subject to revision.)
**Panel N: Tuesday, April 24, 2007, 10:00 A.M., Courtroom 201
2007-1240 VERIZON SERVICES V VONAGE HOLDINGS [argued]
…some appeals move faster than others. I realize this is just a motion to stay the district court’s order, but they will be dealing with the merits of the case in ruling on the motion. That’s a lot of technology and legal research for the judges and clerks in a very short time frame.
If you “buy up” patents in the belief that they will have value in the future that can be asserted against others, they you may be termed a troll.
If you “buy up” real property in the belief that a freeway is about to go through it, then you are called a smart businessman.
Go figure….
A patent troll is using the patent system to make money of a new technology.
Verizon is using the patent system to shut down a competitor in order to protect its old technology from competition.
Seems to me the troll’s action are closer to promoting “progress of science and useful arts” than Verizon is.
Mr. Nowotarski,
Your 50 mph carburetor reference reminded me of how as a kid, a really smart lawyer who was the dad of one of my best friends liked to talk about a different auto industry conspiracy. He believed that they could easily make a car that would last just about forever, but they didn’t, in order to keep customers coming back every few years for a new purchase.
I remember as a teenager thinking how something just doesn’t seem right about that, but I didn’t know enough about business and economics at the time to know why that was bunk.
It’s alarming to think that even smart folks buy into such conspiracy theories.
“If by “standard engineering problem” you mean one for which there was published or obvious solutions …”
No, I mean one for which there would be a solution which could be designed with a reasonable amount of effort from known standard building blocks.
Someone quoted parts of the patent claims and those claims read a lot like a generic description of a cellular radio communication network which was conceived sometime in the 1940s or early 1950s. Interconnecting disparate communication systems is not exactly a new problem.
(Indeed, I do remember the oil crisis since I got my drivers license in 1970)
Joe Smith,
Your posting contains a number misconceptions about patents which I think might account for a great deal of your concern about the fate of Vonage.
“Apparently the most important patents in the case deal with connecting between the Internet and the telephone system. That seems like a standard engineering problem and not worthy of patent protection.”
If by “standard engineering problem” you mean one for which there was published or obvious solutions before Eric Voit came up with his VOIP invention sometime prior to 1997, then we know that can’t be true. If it were then it would have come out at trial and the patents would have been declared invalid.
If you don’t find this argument persuasive, then you might try going through the exercise yourself of finding specific publications prior to the filing date of the patent that alone or in combination teach or suggest all of the elements of the claimed inventions. You might find it to be a harder task than you think.
“It is hard to see how encouraging existing industries to claim patents on techniques for the sole purpose of shutting down competitive threats encourages progress in the useful arts.”
Governments provide patents to encourage the disclosure of otherwise secret information. The rationale is that inventors will only be willing to disclose the information to the public if they can stop anyone from copying the disclosed invention. It is the disclosure that promotes progress in the useful arts. Otherwise, inventors will be more likely to maintain their secrets.
“This whole thing seems to be a real life example of the old urban myth about the oil companies buying up patents on efficient engines and then suppressing them”
We must be of the same generation. I remember that that urban myth was big during the oil crisis of the 70’s. As I recall, it was Texaco that had the 50 mpg carburetor. I didn’t realize how silly it was until I got my mechanical engineering degree and learned just how hard it was to make a 50 mpg car and how much the auto companies really wanted to do it.
As a final note, if you are really concerned about whether or not Vonage is going to be shut down, watch the stock price. It’s certainly taken a hit since the patent verdicts were announced, but it’s far from crashed.
In the Blackberry case, the consumer indeed had a very good alternative. The Windows Mobile phones and PocketPCs, even at that time, worked well. More imporantly, from a system admin viewpoint, they work/worked much better: No BEZ server to go through, just an internet connection between the client device and an Exchange server. Blackberries are just now starting to support some of the Windows functionality that has been available for several years on these other devices.
Mr. Moore, those are dependent claims. You cannot fairly analyze Verizon’s patent on the basis of those claims without reference to the independent claim:
1. A method comprising:
registering a wireless telephone terminal in a localized wireless gateway system;
transmitting registration data identifying the gateway system from the localized wireless gateway system to a home location register database through a public packet data communication network;
receiving a request from a calling computer coupled to the public packet data communication network for a call to the wireless telephone terminal;
in response to the request, accessing the home location register database and obtaining a packet data address for the localized wireless gateway system;
using the address to set up a voice communication through the public packet data communication network and the localized wireless gateway system between the calling computer and the wireless telephone terminal.
Also, you must consider that the time for evaluating this invention was 1997, when the original patent was filed and the internet was, to the general public, “new.”
I agree with Joe Smith, some of Verizon’s patent language upheld by the court seems to be a general patent on the Internet itself!
“6. A method as in claim 1, wherein the public packet data communication network is a packet switched network.
7. A method as in claim 6, wherein the packet switched network comprises a system of interlinked data networks using TCP/IP protocol.
8. A method as in claim 7, wherein the system of interlinked data networks comprises the Internet.”
“If I remember the Blackberry case properly, the patent owner got the court to shut down the entire Blackberry network”
Nothing on the commenter who posted this, but man: that was so scary! Like, if I had a blackberry, I would be so, like, bummed. It would be like missing an episode of the Sopranos or watching my puppy die. That is how bad trolls are.
The thought of millions of people without access to their IP-phones should send chills through teh American people. Congress should step in after they finish finding the 5 million emails that Karl Rove deleted.
Apparently the most important patents in the case deal with connecting between the Internet and the telephone system. That seems like a standard engineering problem and not worthy of patent protection.
It is hard to see how encouraging existing industries to claim patents on techniques for the sole purpose of shutting down competitive threats encourages progress in the useful arts. This whole thing seems to be a real life example of the old urban myth about the oil companies buying up patents on efficient engines and then suppressing them.
Mr. McDonald, if the consumer faced a real risk of complete Blackberry shutdown, it was only a temporary one. It would have made no sense for the patent holder to destroy the business for which it sought ongoing royalites. That was essentially a high-stakes game of chicken.
Here, there is much concern that Vonage will not be the only target — all VOIP providers might be. Yes, the consumer might have an out, but ultimately it might be only one out with respect to VOIP (Verizon).
ip-esq, I didn’t know Vonage had an offer to reject. Do you know the terms of the offer?
Good observation Andrew. It strikes closer to the heart of the patent system, though. The fact that we have a patent law, with an injunctive relief remedy that favors actual competitors, implicitly states that we favor this sort of result from a policy standpoint.
If I remember the Blackberry case properly, the patent owner got the court to shut down the entire Blackberry network and used the injunction to extort a settlement where it did not even have a competing service in the marketplace.
At least here the consumer has an out.
I concur with Mr. Dhuey. Albeit, I thought the definition of a “troll” was one who doesn’t conduct any business and is looking to license.
What if Verizon wasn’t in the telephone business but another business and did the same thing…
Vonage should have been smarter. Take a license and continue. The problem with bluffing is that you might get called. Well played Verizon.
The observation that this is not a “troll” case raises an interesting question. What if it had been? Were it so, we would hear from the usual suspects about a broken patent system, a business that doesn’t make or do anything except extort money from successful companies that actually do something, etc. We can easily imagine what Justice Breyer would have to say about such a case.
Instead of a patent holder that seeks royalties from Vongage, but wants Vonage to succeed (the “troll” situation), we have a competitor that is using its patents to completely destroy Vonage (call it a “Godzilla” situation).
I don’t have reason to believe that there is anything wrong with Verizon’s litigation conduct here, but I do submit that if you’re a politician or economist concerned about consumers, you should be a lot more concerned about this sort of case than a “troll” one.
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