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April 11, 2008 10:32 AM PDT

Big tech companies accused of overstating patent problems

by Anne Broache
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Editor's note: This story was updated at 3:25 p.m. PDT to add a response from the Coalition for Patent Fairness, which represents large software, hardware, and Internet companies.

ARLINGTON, Va.--A handful of patent lawyers on Friday beat up on large technology companies lobbying for a U.S. patent system revamp, arguing that their efforts could discourage start-ups, prompt foreign competitors to rip off inventions, and tear apart the economy more generally.

There weren't any Silicon Valley interests directly represented during this panel discussion at a conference here hosted by the American Bar Association's intellectual-property law section. Perhaps unsurprisingly, the views expressed by the four attorneys largely mirrored the negative outlook on proposed congressional patent bills adopted by the industries they tend to represent--namely biotechnology, universities, small inventors, and patent-licensing firms.

"I think there are some valid concerns out there, but the response is swinging the pendulum way too far in favor of big industry and potential infringers," said Richard Meyer, who represents mainly biotechnology and life sciences companies as head of East Coast patent litigation for the law firm Townsend and Townsend and Crew in Washington. "It seems Congress has bought into the characterization of the problem by a few very big IT industry players."

The debate over patent system changes that has been raging for several years now largely pits a coalition of major Internet and technology companies--including Microsoft, Google, Hewlett-Packard, Intel, Amazon.com, eBay, Oracle, Dell, and Comcast--against seemingly every other industry that relies on patents.

The technology companies argue that the current patent system is "broken," resulting in issuance of questionable patents and equally questionable settlements, and that legal changes are needed to fix those problems. Their opponents acknowledge that some aspects of the system could be refined but contend that less drastic changes are necessary.

There was some disagreement among the lawyers present Friday, however, over whether there is a problem with "overaggressive" patent holders who decide not to commercialize their technology, instead asserting their patents against large companies--a practice that has earned the disparaging moniker of "patent troll."

"It's the Intels, the Microsofts, that are frustrated that people are asserting patents against them--as long as you're Intel, and somebody sues you, that's overassertion," said Carl Gulbrandsen, managing director of the Wisconsin Alumni Research Foundation, which handles the University of Wisconsin's patent portfolio, consisting of about 700 license agreements that bring in $50 million in revenue annually.

"There really is no empirical data to prove the Patent Office is letting through a lot of weak patents these days," said Brady Fulton, a patent attorney with the Chicago law firm Niro, Scavone, Haller, and Niro. "We can't rely on anecdotal evidence to make these sort of broad, sweeping assertions...it's unfair to the inventors, and it's unfair to the examiners who worked on these things and put hours of their lives into them."

Fulton's firm, among other clients, has represented a company called Advanced Audio Devices that in 2005 reached a settlement with Apple over claims related to its iPod music player.

Meyer, however, said he has witnessed firsthand some merit to arguments that patents are being overasserted. He suggested that the system could be improved by "ratcheting down" the presumption in such court cases that a patent is valid in the first place.

The discussion arrived as the Senate is preparing to take up its own version of patent law changes as soon as this month. Last September, the House of Representatives passed a sweeping bill that was hailed by large high-tech companies as a victory for inventors and consumers alike.

Arguably the biggest remaining sticking point in both bills is, not surprisingly, closely related to money. High-tech companies want to change the system so that judges are encouraged to base patent damage awards on the value that the allegedly infringed patent has contributed to a product. That's a reaction to the fact that their products often contain thousands of patented items, which they argue has led to inflated settlements brought on by so-called "patent trolls" and damage payouts. But opponents of that plan say such a route would dilute the value of their inventions and deprive them of the revenue they deserve.

There was much talk among the lawyers on Friday about the perceived imbalance between deep-pocketed corporations and smaller inventors. According to figures from Nathan Myrvold, who runs a patent-licensing firm called Intellectual Ventures, small companies, individual inventors, universities, and other research institutions hold 60 percent of patents, while large companies charging for patent reform own 40 percent of them. But large companies derive 99 percent of the licensing revenues.

Moses Mares, an in-house attorney for the controversial patent-licensing firm Acacia Technologies, said the current patent fight in Congress is nothing more than a campaign to raise the big corporations' share to 100 percent, which he argued could have serious consequences for small innovators. (For the record, some have accused Acacia of "troll" behavior for amassing and filing infringement lawsuits against major corporations over a giant portfolio of technology-related patents in recent years.)

"We might end up turning ourselves into where China is today, which is just a bunch of manufacturing companies without a lot of innovation, because there's no reward to innovate," said Mares, who previously worked as an engineer for Intel and IBM. "Venture capitalists will not invest in companies that can't get patents and exclude competition."

Regardless of whether patent law changes take place, some lawyers on the panel argued that recent Supreme Court decisions, such as those in cases involving eBay and an automobile parts patent holder named KSR, are already making it harder for patent holders with smaller bank accounts to enforce their patents.

"If you're a pro-patent person, we're in the middle of a perfect storm," said Wisconsin's Gulbrandsen. "Courts are listening to complaints of pro-reform forces."

Update at 3:25 p.m. PDT: The Coalition for Patent Reform, which represents the interests of high-tech companies, sent a statement to CNET News.com saying its members applaud Sen. Patrick Leahy (D-Vt.), one of the sponsors of the Senate bill, for remaining firm on the issue of patent infringement damages. They also praised Leahy and bill co-sponsor Orrin Hatch (R-Utah) for recognizing the need for a proposal that "modernizes the law to accommodate those changes, while protecting intellectual property rights and correcting inequities in current law."

In a statement, Mark Isakowitz, the group's coordinator, said, "We are disappointed that critics of the bill refuse to budge an inch when the bill's sponsors and supporters have made a tremendous number of compromises to address their concerns."

March 4, 2008 10:21 AM PST

Gary Gygax, 1938-2008: Rest in peace, Dungeon Master

by Will Greenwald
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Gary Gygax at Gen Con 2007

(Credit: Alan De Smet)

Gary Gygax, co-creator of Dungeons & Dragons and one of the fathers of tabletop role-playing games, died on Tuesday at the age of 69. He had suffered from heart problems.

The news was first announced on the message board of Troll Lord Games, the publisher of Gygax's most recent works. It has since been directly confirmed by the company, which will post an announcement on its Web site later Tuesday.

Gygax was best known for helping create Dungeons & Dragons and Advanced Dungeons & Dragons. He also pioneered tabletop role-playing games. The first D&D rulebooks were released in 1974 by TSR, and since then have produced three full-fledged sequels, numerous revisions and updates, and dozens upon dozens of additional rulebooks, settings, and campaigns. While Gygax hadn't had much direct involvement with D&D for many years, he developed and contributed to many role-playing games, including Troll Lord Games' Gary Gygax's Fantasy Worlds.

If not for his contributions, video games and geek culture would probably look much different than it does today. Beyond jokes about "d20s" and "saving throws," D&D's systems and mythos have spawned many excellent games, including Baldur's Gate and Planescape: Torment.

Dungeons & Dragons continues to develop. Since TSR was purchased by Wizards of the Coast, the game has seen even more expansions and updates. The company released Dungeons & Dragons 3rd Edition in 2000, and Dungeons & Dragons 4.0 is scheduled to ship in June. Though he didn't actively produce the latest editions of the game, neither they nor the countless video games, books, and other media that carry the D&D name would have been possible without him.

Originally posted at Crave
November 23, 2007 7:38 AM PST

Patent troll Acacia gets its first day in court...and loses

by Matt Asay
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I failed to see this last week, but Acacia Research, the patent troll that recently went after Red Hat and Novell, got its first day in court with a Texas jury and lost. Big time. It was seeking $900 million in damages, as paidContent notes, and instead got 35 percent of its stock price chopped.

I weep for Acacia. OK. Maybe not. Looking at this stock chart, I will admit that a smile has played across my face:

... Read more
Originally posted at The Open Road
Matt Asay brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure.
November 13, 2007 12:56 PM PST

Who is the world's biggest patent troll?

by Matt Asay
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In two consecutive days, The Wall Street Journal presented two different answers. The first is not surprising: Intellectual Ventures, the brainchild of ex-Microsoft executive Nathan Myhrvold. It's now out "to raise as much as $1 billion to help develop and patent inventions, many of them from universities in Asia." I know I will sleep so much more comfortably knowing that IVL will be out plundering Asia so that it can turn around and plunder the rest of the planet.

The second might surprise you: the University of California. The University of California may be especially pernicious because it can sue for patent infringement but has sovereign immunity:

... Read more
Originally posted at The Open Road
Matt Asay brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure.
October 11, 2007 1:07 PM PDT

A patent on a poker game?

by Michael Kanellos
  • 4 comments

It's almost time for another patent and intellectual property auction from Ocean Tomo, and the gem in the catalog this time is a patent on a poker game.

Invented by Anthony Cabot, the game, informally called Multiway Poker, involves dealing 25 cards facedown in a 5x5 array. You then make hands out of the rows. In all, there are 12 hands in each deal: five vertical rows, five horizontal rows and two diagonal ones. There are a ton of variations, but the most common is draw poker.

The patent, No. 7,007,953, has an expected value of $75,000. It can be licensed to makers of video-gaming machines, but also to casinos or card rooms, in case they want to add it to their repertoire.

Five by five plus diagonal

(Credit: Multiway Poker)

You can try it out here. Don't worry. They aren't charging royalties. It's a bit confusing, but the number of combinations is sort of fun. The auction takes place on October 24 and 25 in Chicago.

Patents are reigning boogeymen in the tech world. Companies and individuals regularly get in a tizzy about people who are getting rich off of allegedly flimsy patents. It is true that patent claims have increased in recent years. But when pushed, it's rare for a company to say its own patents are flimsy. That's the other guy. When companies do open up their patent portfolios for free licensing, the free patents are often not the very valuable ones.

Part of the reason that patent reform has taken so long is that the subject is painted in shades of gray.

Ocean Tomo is trying to create a more fluid market for patents by holding periodic auctions involving a wide range of patents. The auctions typically result in a few million in sales. They even hired Charlie Ross, an auctioneer from Britain who can be seen on a TV show in Britain called Flog It! (on camera?) as well as Antiques Roadshow.

Approximately 76 lots of intellectual property will be auctioned off. Some of the patents to be sold include one that promises to update electronic clocks without human intervention (estimated value $100,000-plus), a patent for cleaning up abandoned shopping carts on Web sites estimated value $2 million) and one for Raman optical amplifiers. Iomega is also going to sell off a patent for formatting low capacity storage devices.

Some of the patent portfolios sell for millions at the auction. Lest you think they are all so-called "patent trolls," the sellers have included the University of California and IBM.

In past auctions, Ocean Tomo has auctioned off stills and video from the classic rock era, including a snippet of Keith Richards getting electrocuted, a Jimi Hendrix song catalog and several patents for flat panels.

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