On Oct 30, 7:59 am, Roy Schestowitz <newsgro...@xxxxxxxxxxxxxxx>
wrote:
> Acacia's Latest Target: NetFlix
>
> ,----[ Quote ]
> | Acacia has become one of the most hated firms by technology companies that
> | actually do stuff. That's because Acacia is one of the biggest (if not the
> | biggest) firms out there in the business of buying up patents solely to sue
> | companies.
> `----
It's very interesting that Acacia is attempting to patent concepts,
claims, and ideas that had been discussed in public mailing lists and
newsgroups as early as 1994. When I was working at Dow Jones in 1994,
I was working with WAIS Inc. WAIS, the Wide Area Index System had the
ability to search massive amounts of content on both it's own server
databases as well as asking other servers to search their databases.
Even in those days, the concept of providing advertizing or
promotional information that matched the content or patterns used in
the search was not unusual or remarkable thinking. It was more like
"of course you'd want to do that". Some publishers still thought that
people reading articles about computers might want to see an ad about
a Pick-up truck or some beer, but it didn't take long, studying the
actual demographics, to figure out that providing advertising that was
related to the content increased revenue.
Even in those early days, while the web was in it's infancy, the
publishers liked to keep a history of favorite topics viewed by a
registered user. After all, if he's been looking at vacation spots
for a week now, maybe he would like to take a break from reading about
the stock market to look at the latest low fares (since Travel agents
pay more for ads than banks). The publishers were looking for "click-
through" on "high revenue" advertizing. An article about an
earthquake in India is hard to match (Insurance?), but if you know the
guy is also looking at new car ads and articles, you might be able to
pop an ad for a new car in there and "lead him astray".
This concept isn't exactly new. Television sponsors love to have
their ads showing their nice friendly safe restaurant or shopping
store immediately after the scene where everyone in down-town San
Francisco has been run over in a crash-em-up shoot-em-up car chase
involving automatic weapons and pistols. It creates a subliminal
choice. Would you rather go into the City and shop downtown were you
will get shot, mugged, or run over by some maniac who drives on the
sidewalks, or would you rather take a short drive to your friendly
neigborhood Wal-Mart where grampa will wave hello, ask you if you want
a cart, and you can shop in the climate controlled, carefully lit,
secured and safe store for hours, and spend as much as you want on
almost anything you can think of? It's a subliminal choice, but when
it's time to go shoppng on Saturday afternoon, there is a much higher
probability that you will be going to K-Mart or Wal-Mart than
Manhattan.
> http://techdirt.com/articles/20071023/012037.shtml
> Related:
> Is Acacia link with Microsoft just smoke?
> ,----[ Quote ]
> | Is all this smoke just coincidence? It may well be. But the smoke gets
> | thicker by the day.
> `----
> http://blogs.zdnet.com/open-source/?p=1587
Hey. Acacia files for patents on behalf of people who haven't read
usenet newsgroups, haven't subscribed to mailing lists, and probably
don't even read most trade journals. They provide almost no history
of prior art, and all the lawyer is required to do in the patent
search is look for patents with similar topics. If no patent has
previously been applied for, the patent will very likely be granted.
When Acacia attempts to enforce the patent, there is the possibility
of a quick cash settlement for as little as 1 percent of the amount
requested in the lawsuit. A protracted court case could cost
substantially more than the quick settlement, and a negotiated
settlement for an "Umbrella" covering all of the Acacia patents
eliminates a bunch of hassles.
The problem comes when Acacia goes after someone who can easily prove
the existence of priar art, prove that the attorney should have known
that there was prior art, and can even prove that someone ELSE should
be entitled to the patent, and all revenue collected from the patent.
Even worse, if that someone else is an employee with whom the
defendent already has a mutual non-enforcement contract, the
enforcement attempt by Acacia could be ruled to be fraudulent, with
refunds for triple damages plus court fees to all those who had
previously paid royalties.
The problem isn't software patents per-se, but rather the fact that
for almost 70 years, the patent office refused to grant patents on
software or other "algorythms", while millions of software "devices"
were being created. With millions of programmers in the industry for
the last 40-50 years, the likelihood of a new invention being based on
prior art not incnluded in the patent application is almost a
certainty.
Since one of the criteria for a patent is originality, that an idea
couldn't be intuitively derived from existing prior art, it is a
requirement that all prior art known to be related to the patent be
included in the patent application. The existence of substantial
amounts of similar prior art, from which the device could be
intuitively derived, that is not included in the application, could
result in nullification of the patent as a fraudulent application.
If you attempted to patent a new hardware device, your lawyer would
spend months going through every kind of hardware device every
patented that could even be remotely similar to the one you are
attempting to patent. Every one of those other patents would be
referenced in the patent application. Furthermore, if papers related
to similar technology were published, those would also be cited in the
application. The patent office would review all of these documents to
determine whether or not the device could be derived by someone with
the knowledge of the prior art, for example, a college student. If
they believe that it could, or if a college student HAS created a
similar device, the patent could be nullified.
This was one of the reasons that so many BSD, OSS, and Linux
applicatinos were developed by college and university undergraduates.
If these undergraduate students could create similar technology using
information available before the patent was applied for, or while the
patent pending material was still under nondisclosure, it's not
patentable.
If similar technology was published, even as only a usenet article,
prior to the application of the patent, and that publication is
presented in court, the patent can be nullified.
Acacia seems more interested in quick settlements that cover an
umbrella agreement, than the actual enforcement of specific patents.
When the defendent is willing to settle, it's not a bad business.
When a defendent is stubborn, you just have to keep making him a
better offer and make sure that the case does not get to trial, or
that the jury will be sympathetic to your client.
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