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EFF Patent Project Gets Half-Million-Dollar Boost from Mark Cuban and 'Notch' (eff.org)
260 points by jeffool on Dec 19, 2012 | hide | past | favorite | 66 comments



If you're a designated inventor of a patent or a patent application who opposes patents, you could publicly state your support for patent abolition at the Inventors Against Patents site: http://inventors-against-patents.org

(A site operator here; the site was launched a few days ago. The idea is that anyone campaigning for a patent reform can use support by designated inventors as a presumably convincing argument in the eyes of the general public.)

Edit: As Richard Stallman points out in a comment at EFF's site, abolishing software patents can be easier than shortening the period during which a monopoly is granted to 5 years as EFF proposes; he cites a requirement by WTO that all patents are granted for a period of 20 years.

The nice thing about publicly supporting abolition is that you automatically support "less radical" proposal's like EFF's 5-year reform, and you support all of them at the same time just once and all campaigners can use your support. DRY :)


I can see how that would be quite the annoying situation to be in. On one hand, an inventor that opposes patents could simply not file a patent. But then that leaves them open for someone else to come along and file the patent and then sue them for patent infringement. So the inventor is then compelled to file a patent simply as a way to keep some one else from getting it... even if they never plan to go after others for infringement.


You can always stop someone else from patenting your idea by publishing it yourself, though. You don't have to play the game to affect the outcome.


Patents have a lot of "advantages" over normal publishing: investors like them, companies encourage them (as in, "if it's patented then it's a great thing for the company, if there are no patents it's not really "ours" so we're going to be more secretive about it, making it unusable in business situations where disclosure to other parties is unavoidable), you can publish something really obfuscated without really driving attention to the details or giving away much useful information, you want a larger portfolio to appear "dangerous enough" to a competitor who might otherwise want to sue you, etc. Combined with the fact that neither decision-makers nor patent examiners really understand patents, you get a lot of pressure to just go ahead and file patents and you are not unlikely to choose to do this as a part of advancing your ideas within the company.


One thing I recently encountered for the first time was the idea that a software-based product, when sold as an asset to another company, can only be treated as a capital gain if patent rights are being sold. Otherwise the sale is apparently taxed as ordinary income, for which a much higher rate applies.

I'm still not sure if my CPA was entirely correct when he told me about that, but if he is, it artificially inflates the importance of software patents in a big way.


Clear this up for me please. How does that help? Isn't that essentially the prior art thing that still has to get resolved in the courts?


Yes, but it changes the dynamics. If the defendant can point to solid prior art, the patent troll will likely beat a hasty retreat. The last thing they want is to have their weapon taken away from them by the adults in the room.


Thanks! Though that still seems more expensive than filing the patent.


Prior art is usually resolved by the patent office (or the patent trial and appeal board). It's only after they rule against you that you can take it to the federal circuit.


Interesting, but this is one of those cases where nobody is going to want to go first. A stated policy along the lines of "The list will become visible on the site once n signatures have been received" might be a good idea.


Thanks! That really is a good idea.


Hmmm, that's a bold move from Notch. I wonder how political activism in the US by a Swedish citizen is going to sit. Personally, I would just have thanked my luck for working in a country with sane patent laws.


Notch was sued by US-based patent troll back in July, 2012: http://boingboing.net/2012/07/21/patent-troll-targets-minecr...

Notch just fights back.


The patent laws of the US always seem to reach across borders, so it's not surprising to see pressure from non-Americans.


Hardly political activism - he is just bankrolling others (EFF, American citizens) to do the actual activism. You'd be pretty surprised how much of US activism is likely bankrolled by foreign powers in China / Middle East.

The bold move is declaring it openly, but it's not really that bold considering it is a very publicly favorable position at present, and it is in Notch's direct interests as he is creating but doesn't hold US patents.

In any event, I believe the EFF is pretty much a global charity at this point? I just donated to them also with the latest Humble Bundle, and I'm not in USA.


Progress in the United States on this front is likely to cause ripples worldwide, including Sweden, so in that light I think the choice is more than reasonable. :)


I think Notch is in a good position. Minecraft has huge draw among children. Think of how many politicians' kids might play it.


Maybe my perception is skewed, but I imagine most American politicians' children being in their 20's to 30's.

Edit: Apparently wikipedia really does have a page for everything: http://en.wikipedia.org/wiki/List_of_current_United_States_S...


Our President's kids are 11 & 14. Sure that is just one case but I also imagine current generation of politicians is on the edge of a more recent trend to have kids later in life (not counting the other trend of having kids at age 14).


Obama is only older than 15 or so of the 100 senators. As far as American politics go, he is quite young.


While I suppose Congressmen may make their voting decisions based on what games their kids like to play, I'd hope they'd consider other factors.


I would like that as well, but sadly a lot of U.S. politics seems to be based on personal factors these days...


Bold? He's already popular on Reddit and this will double or treble the magnitude of that.


EFF's ideas for patent reform:

https://defendinnovation.org

They sound pretty good to me.


As pointed out by Richard Stallman at the topmost comment about EFF's proposal to shorten the patent term for software patents to 5 years, it might actually be easier to entirely abolish software patents because of a requirement by WTO to have all patents granted for a 20-year period: https://defendinnovation.org/proposal/shorten-patent-term#co...

If you're a designated inventor of a patent or a patent application who opposes patents, you could publicly state your support for patent abolition at the Inventors Against Patents site: http://inventors-against-patents.org


The problem is that you really need to weaken the system before you can completely smash it. By reducing the value of patents it gets easier to argue for the complete demolition of the existing patent system.


#1 I feel this is just a scapegoat with allowing people to hope and wait 5 years for bullshit patents to expire; I don't know what a fair length of advantage time, temporarily monopoly should exist.

#2 If someone isn't infringing, then sure - troll should pay. But a lot of unknowns could invalidate a patent, perhaps just decidedly not detailed enough by a judge who ends up reviewing it, which I don't think makes sense to be a point of having the troll pay for it. If a patent is seen as invalid, then it can no longer be used to sue people.

#3 Agreed.

#4 It would be impossible for either party to prove, so then this just leaves costs open ended for the person who owns the patent.

#5 This is confusing. They seem to be trying to deal with a problem not directly associated with patents themselves? More they just want more information to make it easier if it'd be a good idea or not to infringe? You could always send an email and ask if what you're doing infringes - assuming you're not trying to patent something on top of existing patents further. Though I imagine that's not a tactic most people would be comfortable with.

#6 Define what a small fraction is, vs. how important something is in an application; It could be the most valuable piece in some overall 'bloated' scheme

#7 If you look at benefit to the economy, currently measured by GDP, any money being spent (on lawyers) is positive for GDP, and therefore for the economy..

In conclusion, I think these suggestions put forward by EFF are meant to deal with stopping the damage and strain trolls put on the system, though not fairly take into consideration real innovation, that actually is created, and used. Things like "swipe to the right to unlock" - I don't think that's complex enough to consider it patentable - but it is patented (I believe) - but never should have been. I am sure there are much more complex systems that people can come up with, that might take many years to develop or discover - but once known and concepts turned into something tangible, it would not take long to re-engineer, so there may not then be any incentive to attempting to develop said system; It could even take years of looking for someone to fund what you want to create that you have a patent on, especially if it's "so far out there" that people might have trouble understanding its value. Anyway - it'll be interesting to see where it all goes. I think all patents, software and not, should be thrown out. Other mechanisms would surface to allow innovation to move forward.


You're missing the negative effects on innovation in your analysis of #7. It's estimated that the existence of patent trolls costs the economy $29 billion/year: http://arstechnica.com/tech-policy/2012/07/new-study-same-au...


For your #7, I urge you to look up the Parable of the Broken Window[1]. It's fundamental to understanding economics.

[1]: https://en.wikipedia.org/wiki/Parable_of_the_broken_window


I agree that #1 and #4 are problematic, and to a lesser extent #6.

#3 sounds good, but how do you stop people from submitting code written in Brainfuck or TECO or something?


Regarding #3 I think they want the patent holder to prove he is actually using the invention for a (commercial) benefit. If you invent a copy protection scheme they want to see you actively sell it to third parties or actively use it in your own product. I think that makes sense to be honest, people shouldn't be able to sleep on an invention until they find a suitable company to sue for high profit margins.

Edit: This is in reply to points about software patents only.


The classic drug pipeline includes pure research companies that would be NPE's.


Isn't it rather possible that the right answer for software is not like the right answer for drugs, and that it takes an expert in a particular field to propose a sensible reform (assuming one is needed in that field)?

A lot of the questions about what patents tend to do seem to have different answers in different fields: http://inventors-against-patents.org/faq.html#is_abolition_o...


US healthcare has an abysmal cost-to-benefit ratio in comparison with most of Europe.


I'm surprised to see them back a system where there are any software patents at all. I wonder if they really think they are desirable, or if this is simply political realism based on a judgement that abolishing all software patents is not achievable.

Five years seems like a very, very long time, it leaves all the short term benefits in place, e.g. muscling out the less-innovative competition. I guess this is by design.

The whole proposal sounds very moderate, really.


Maybe it's about moving the Overton window, but this time in a good direction? Maybe they think that it's easier to make several small steps than one big?

http://en.wikipedia.org/wiki/Overton_window


I'm still looking for good literature, but intuitively I feel that small companies could still take advantage of patents for software in the original spirit of the patent system.

Also, I wonder if they intend on the working code examples to be included with the public patent after approval? If so then this would in a sense make all patented software open source, albeit with a very restrictive license. Still, that could vastly accelerate innovation and streamline arbitration.

In the end I think item 7, the proposal to research whether there is any economic benefit from software patents, is the most important and they should narrow down their scope to just that.


All of this seems reasonable, so by extension, I assume that the current system is really unreasonable. I mean, not even making the trolls pay for the legal costs if they lose? That's outrageous


The U.S. in general does not make losers pay, which is good because "loser pays" is just a terrible idea wholly unsuitable for a country that ties most valuable rights to litigation.

I've been working on a pro bono project where a small town is suing a big company for industrial pollution. It's a very hard case to win--the town has already given up a lot of arguments by having waited too long (believing that the government would protect them), and the other side has a ton of money. But being hard doesn't mean it isn't meritorious. This is a suit that needs to be brought and deserves to be brought, but never would in a loser-pays system. And maybe that would be okay in Europe, where they pay for a big government to enforce these sorts of things, but we don't do that in the U.S. Instead, we depend on private litigation to enforce peoples' rights.


Hmm. I'm not actually sure this suit wouldn't be brought in a loser-pays system. As I understand, under loser-pays, the judge has considerable discretion to decide how much the loser should pay. I would expect the difference in resources to be taken into account.

I'm not sure how this would play out, but I don't necessarily think it would be a non-starter.

In any case I think that for patent infringement suits specifically, loser-pays is urgently needed. I'm sure it's not perfect, but the benefits would far outweigh the costs. We don't need to extend loser-pays to other kinds of litigations unless and until we're comfortable doing that.


The mere possibility of having to pay would stifle most such suits, and in many (most?) fields the problem is not too few suits, but not enough suits. Using the legal system to create prospective deterrent effects, as ours does, is not compatible with mechanisms that discourage suits, because ultimately that makes rule breaking profitable for rule breakers.

I also strongly disagree that we need special rules for patent litigation. There is a rhyme and reason to the rules for cost shifting, one that doesn't depend on the subject matter of the litigation. What you seem to be implying is that patent litigants are less likely than other kind of litigants to being meritorious suits, and indeed that a patent suit is more likely than not non-meritorious. If that is the case, then the problem isn't who pays for a losing suit, but the law that creates enough wiggle room that these loser cases are being brought.

The way our litigation system fights meritless litigation is to make it relatively cheap to dispose of meritless suits. As an outsider to the practice, it seems to me that one of the big problems with patent suits in practice is that it's a relatively complex, fact-specific inquiry to determine patent validity. The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.


> The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.

This, absolutely. Giving defendants an inexpensive way to challenge patents which should not have been issued and get the case dropped would basically end this nonsense as soon at it was enacted.

As it is now, the only reason trolls are successful is because they know any legal costs are going to be far more than what they are attempting to extort, so the economics force most businesses to concede the fight.


How does this work exactly....Mark Cuban sponsors a chair and the EFF hires 2 attorneys to execute the mission of the chair. But given that this a $250K grant, that sounds like it covers their salary for 1 year. What happens in the next year? Is this a commitment in perpetuity where he keeps paying these salaries? Or does the EFF have to find money next year to pay these salaries?

I am not condemning this move, I am really curious about how this stuff works.

Anyone know?


No idea, but I guess having someone working on this issue full-time for a year will give them some idea of how effective this type of move is, and it's certainly better than no action at all.

If it is effective, I'm sure there are a variety of ways to continue to fund the initiative.


Perhaps...but I am still curious as to how it works :)


Yep, enough money for two attorneys oughta do it. Although i have to admit, i would love to have that title 'The Mark Cuban Chair to Eliminate Stupid Patents'.


The EFF should stick to its core mission. This is an overreach and is a mistake.

Worse it's a waste of time, money and valuable attention. If you want political action and have the money and resources then why not form a single-issue political action group, get involved and do something?

This is just writing a check and getting your picture and name in the media, something by the way at which Mark Cuban, whose hypocrisy knows little bounds, excels.


The EFF has long included intellectual property reform as one of its core focus areas, especially since patent and copyright law have long been used as weapons against free software projects and individuals. I think the EFF's first major patent reform project was this one, which started more than 8.5 years ago:

https://www.eff.org/press/archives/2004/04/19

https://www.eff.org/press/archives/2004/06/30

https://www.eff.org/press/archives/2004/09/20


https://www.eff.org/work

That is the type of work the EFF does. I do not see how this is not part of its mission.


That seems like be a lot of harsh claims and little to back them up.

It's easy to see how you could argue that this is exactly the EFF's core mission, the link from software patents to digital rights is hardly ephemeral, and the EFF has a history with the (since expired, the system works!) GIF patent. I think that an opponent argument is conceivable, but you haven't made it.

And why would you form a single-issue political group, when you could join ranks with a sympathetic existing political organization, which brings enormous resources, relationships and standing to the table?


The EFF is supposed to be about protecting digital rights. Do you believe that either Apple or Samsung is violating the civil rights of the other?

I could see taking on a case on behalf of someone who is a victim of another abusing the system say by an NPE troll. Wading into legal reform and becoming a lobbyist organization is another matter entirely in my mind.

Generally speaking from the evidence we see around us on a daily basis, the EFF is failing to hold the line in its mission as it is. They have no easy task. I don't really see how biting off yet even more than you can chew and becoming further diluted helps. Should the ACLU be active in environmental causes? We can agree to disagree about how best to achieve political reform and maintain credibility. There are indeed many ways to skin a cat.


First of all, "civil rights" means (in the US context) a particular set of issues, which aren't actually the core ones defended by EFF or the ACLU, although they sometimes overlap. I think you mean civil liberties.

Second, EFF has been working on intellectual property reform since its founding. It's long argued that antiquated or misapplied ideas of how IP should be enforced are actually a free expression issue, since (among other ideas) code is speech. It's actually one of the core principles at the basis of mapping traditional civil liberties onto the digital realm, which is at least some of the (looser) ideas behind "digital rights". Patent reform is part of that. It's not just about Samsung and Apple, it's about people being able to express themselves -- in free software, or the application of algorithms, in a digital world.


How is this not a part of the EFF's core mission?


EFF Mission statement has disappeared from their site. They should have their non-profit documents available somewhere. Wikipedia restates it here: http://en.wikipedia.org/wiki/Electronic_Frontier_Foundation

Its mission is to protect against abuses of civil liberties in the digital arena. To protect against govt malfeasance. To protect and aid people who are being abused by willful ignorance of the law and miscarriages of justice and to inform the public about these wrongs.

Btw, I think we can all agree that it is failing in these goals. So now is probably not the best time to widen its umbrella.

I fail to see how the legal use of patent law is a miscarriage of justice. I don't disagree that the system is in need of reform, the EFF should be focused on its aims rather than trying to expand them.


What exactly is EFF's core mission? (Not being snarky. Asking seriously.)


ELECTRONIC FRONTIER FOUNDATION - MISSION STATEMENT July 10, 1990

[...]

To that end, the Electronic Frontier Foundation will: 1. Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. 2. Develop among policy-makers a better understanding of the issues underlying free and open telecommunications, and support the creation of legal and structural approaches which will ease the assimilation of these new technologies by society. 3. Raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media. Support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. 4. Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunications.

The Electronic Frontier Foundation One Cambridge Center, Cambridge, MA 02142 (617) 577-1385

eff@well.sf.ca.us


Thanks for looking this up. I think campaigning in the area of software patents is covered pretty clearly by those, by items 3 and 4 but particularly item 2. If anything it's a better fit than I expected, because it's more detailed and more explicit about open technology than the simplified mission of protecting digital rights.


Open technology is largely orthogonal to patent reform. It has little or nothing to do with the other.


If HN was serious about patent trolls, we would have our answers by now. https://news.ycombinator.com/item?id=4927832


what exactly have Cuban or Minecraft innovated?


Cuban has ranted about software patents publicly many times. He's just putting his money where his mouth is. Even if he's done little that's innovative (I don't know, I'm not especially familiar with his history), there's no reason he can't still be opposed to software patents.


This is irrelevant to whether they are allowed to support the EFF or not.


Well, Minecraft is the one of the largest (if not the largest) indie developed game in the world. So there's that.


biggest != technical innovation

Quake 1 had better graphics and editors eons ago


You won't be able to create an exception for software not to be patentable. It's over, get used to it and move on.


It's a tad pessimistic, given that, say, slavery was abolished by most nations after being widespread and acceptable, in all cultures and on all continents, for thousands of years. Things end, especially if people actively try to end them.




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