Archive for March 25th, 2012|Daily archive page

Why Patent Lawyers Are Clueless About the Software Industry

TheAtlantic

A major reason for the recent explosion of patent litigation is that it’s hard for software firms to figure out which patents they’re in danger of infringing. There are hundreds of thousands of software patents in existence, with more than 40,000 new ones issued each year. Indeed, in a recent paper, Christina Mulligan and I estimated that it’s effectively impossible for all software-producing firms to do the legal research, known as a “freedom-to-operate” (FTO) search, required to avoid infringing software patents–there simply aren’t enough patent attorneys to do the work. That’s a major reason why most software firms simply ignore the patent system.

One of the striking things about the patent debate is vast gulf between the views of computer programmers on the one hand and patent attorneys on the other. Steve Lundberg is a patent attorney and blogger who mentioned our paper in a blog post exploring the challenges of performing FTO searches in the software industry. I don’t want to pick on Lundberg, because I think you’d get similar arguments from many patent lawyers. But his post shows a fundamental lack of understanding of how the software industry works. For example:

Due to the nature of patenting, the vast majority of patents are narrow in scope. This is due to the novelty and obviousness requirements, and due to the fact that there is, after all, tons of prior art, much of which is freely available to find on the Internet. This means that, both in theory and in practice, it is improbable that any software developer will accidentally infringe a patent, unless that patent is one of very few that are truly broad in scope. If software patents were a minefield for developers, the mines would generally be at least 5 miles apart, making accidentally stepping on one a very low probability occurrence.

As a matter of patent theory, Lundberg is absolutely correct. Patent law’s novelty and obviousness requirements are supposed to narrow the scope of patent protection. But in practice he’s dead wrong. The patent office issues a seemingly endless stream of patents on broad, obvious concepts like emoticon menus, one-click shopping, and wireless email.

And the existence of these broad, obvious patents means that software companies are constantly infringing each other’s patents by accident. The companies with the largest patent portfolios, such as Microsoft and IBM, have tens of thousands of patents, allowing them to credibly threaten almost anyone in the software industry. Even Yahoo, with its relatively modest cache of 1000 patents, was able to find ten patents to assert against Facebook.

Now, Lundberg might be technically right that this type of broad, obvious patent is a minority of those issued by the patent office. But he fails to grasp the issue of scale here. Even if the risk of stepping on any particular mine is small, there are now so many mines in the field that it’s essentially impossible to walk across it without stepping on a few of them.

Lundberg continues:

For any given software product, the developing entity is only adding value/innovation at a particular layer/customization of the software product they are implementing. The developing entity need only focus on the software patents applicable to that layer, not to all the sub-components they purchase from other parties, such as database software or web servers or programming languages and libraries, etc. Each player in the software ecosystem is, generally speaking, responsible for their own part of the overall software “stack.”

Once again, this is a plausible theory but has no bearing on how the actual software industry works. For example, Lundberg seems oblivious to the existence of open source software, which these days is used by everyone from Google and Apple to tiny startups. Microsoft’s lawsuit against GPS maker TomTom is a good example of the problem. TomTom built its GPS product on top of the open source Linux operating system, and Microsoft sued because the Linux file system allegedly infringes one of Microsoft’s patents. A patent search that focused only on the specific software TomTom wrote, as opposed the much larger body of Linux code, would never have found the patent at issue in Microsoft’s lawsuit.

For most software start-ups, where the ability to fund FTO is most strained, the core innovative concepts of the proposed software design can be thoroughly researched for under $25,000.00, and the results of that FTO study can be used both to design around, most often, most of the pertinent patents, and also ascertain whether the proposed design will be eligible for its own patent protection. Given that it typically takes many millions of dollars for a software product to make it to market, this is a small expense.

For reasons we explain in our paper, I doubt Lundberg is correct that a thorough patent search can be done for less than $25,000. But even if he’s right, this is hardly a “small expense” for a typical software-producing firm. For example, one popular Silicon Valley startup funding organization, Y Combinator invests around $20,000 and expects that to be enough money for a new firm (typically two or three 20-somethings) to produce a working prototype over the course of a summer. Expecting such a firm to blow $25,000 on patent research before they begin implementing their idea is hardly reasonable.

Lundberg’s argument becomes even less plausible when we remember that hundreds of thousands of firms outside the traditional software industry produce custom software for their own use. For example, the Atlantic, like many other online publications, uses a lightly modified version of an open-source software package called Moveable Type to manage its website. Did the Atlantic hire a patent lawyer to inspect its Moveable Type installation and license any relevant patents? I’m sure they didn’t, but in principle they’re just as vulnerable to patent lawsuits as a traditional software company would be. For example, the Green Bay Packers, Caterpillar, Peapod, OfficeMax, and Kraft Foods were all hit with a patent infringement lawsuit for having JPEG images on their websites.

So why is Lundberg so oblivious to the realities of the software industry? Julian wrote on Wednesday about peoples’ tendency to extrapolate from their own experiences. Lundberg’s post is not an accurate description of the software industry as a whole, but it probably is an accurate description of the parts of the software industry he sees on a regular basis. By definition, Lundberg’s clients are drawn disproportionately from the minority of software firms with the resources and infrastructure to effectively navigate the patent system. This means he rarely interacts with the vast majority of software-producing firms who only deal with the patent system when they are forced to do so by an unexpected cease-and-desist letter.

Consider, for example, the patent troll Lodsys, which began extorting money from small app developers last year. For the small firms targeted by Lodsys, the rational thing to do is to pay the money Lodsys demands whether or not the target believes he’s actually guilty. That’s because the legal costs of defending against a patent lawsuit is likely to vastly exceed the amount of money Lodsys is demanding. But because many targets of frivolous patent threats settle their cases quickly, guys like Lundberg rarely interact with them. In other words, Lundberg works with the patent system’s winners on a daily basis, but he rarely interacts with the system’s losers, even though there are many more of them.

As a result, there’s a deep and persistent rift between the community of computer programmers, who are overwhelmingly hostile to software patents, and patent lawyers who seem mystified by all the outrage. The job of a patent lawyer gives him a systematically skewed understanding of how the patent system affects the software industry.

Ummmm. Ok.

Book tells Muslim men how to beat and control their wives

A local bookstore has “sold out” of a controversial marriage guide that advises Muslim men on how to beat their wives.

The 160-page book, published by Idara Impex in New Delhi, India, is written by Hazrat Maulana Ashraf Ali Thanvi, who’s described in the book’s foreword as a “prolific writer on almost every topic of Islamic learning.”

The store’s manager, who didn’t give his name, said the book had been sold out for some time, and the store’s owner, whom the manager identified as Shamim Ahmad, refused to comment for the story.

It wasn’t clear whether the shop has ordered more copies of the book, but it’s available at online Islamic bookstores and even through eBay.

In the book’s opening pages, it is written that “it might be necessary to restrain her with strength or even to threaten her.”

Later, its author advises that “the husband should treat the wife with kindness and love, even if she tends to be stupid and slow sometimes.”

Page 45 contains the rights of the husband, which include his wife’s inability to leave “his house without his permission,” and that his wife must “fulfil his desires” and “not allow herself to be untidy … but should beautify herself for him … ”

In terms of physical punishment, the book advises that a husband may scold her, “beat by hand or stick,” withhold money from her or “pull (her) by the ears,” but should “refrain from beating her excessively.”

Moderate Muslim voice Tarek Fatah says the shopkeeper should be charged for selling such a book.

“I wouldn’t say it’s hate, but it is inciting men to hit women,” said Fatah, who identified the book’s author as a prominent Islamic scholar. “This is new to you, but the Muslim community knows that this is widespread, that a woman can be beaten. Muslim leaders will deny this, but… ”

Male dominance over women has been making headlines for some time, with the recent lengthy trial and conviction of the Shafia family.

Mohammad Shafia, 59, his second wife, Tooba Yahya, 42, and their son, Hamed, 21, were each convicted in January on four counts of first-degree murder in what was characterized as an honour killing of four female family members as punishment for disobedience. They were handed life sentences with no chance of parole for 25 years.

Shafia’s three daughters and his first wife were found drowned in a car at the bottom of the Rideau Canal in Kingston, Ont., in June 2009.

Eric Brazau says he was flipping through the marriage guide while in the bookstore around a month ago.

Brazau bought it out of curiosity but was taken aback when he found dozens of chapters and passages giving Muslim husbands advice on controlling, restraining, scolding and beating their wives.

“At first, I thought that it is incredible that this kind of thing can be found in Canada,” said Brazau. “And then I thought, radical Islam is not coming to Canada, it is already here.”

No justice, no agitation

PowerLineBlog

Murder is the crime which has the greatest “clearance rate,” i.e., it is the crime most frequently resolved and prosecuted. We know a lot about the victims and perpetrators of the crime of murder.

Murder is largely an intraracial crime. Almost all murders of blacks are committed by other blacks.

Blacks as a group commit murder at a rate astronomically higher than other groups. The rate of murder committed by blacks exceeds that committed by whites by approximately seven times. See, e.g., Heather Mac Donald’s essay “Is the criminal-justice system racist?”

If race hustlers like Al Sharpton really had the interests of the black community at heart, they would devote themselves to doing everything in their power to have violent black criminals separated from the community of law-abiding black citizens. The criminals are serial tormentors of law-abiding members of the black community.

Take the case of Lineten Belizaire. He is the chief suspect in the killings of Natasha Plummer, 25, her 6-month-old son, Carlton Stringer Jr., and Octavia Barnett, 21. Belizaire is black, as were all three of the victims.

Belizaire was being held without bond while the Broward State Attorney’s Office went to a grand jury in the hope that it would come back with an indictment. The grand jury had 40 days to do so. The circumstantial evidence incriminating Belizaire for the murders is powerful. Deputies were led to Belizaire by a Facebook status update Barnett had posted just before the shootings are believed to have taken place. The grand jury nevertheless ruled there was a lack of evidence in the case and Belizaire was released on his own recognizance, with no conditions or monitoring devices, from Broward County Jail on March 2. For more on the case, see this excellent local Fort Lauderdale news report.

At last word, Belizaire was charged after a 9mm Ruger semi-automatic was found in his car (and he lied to the police about it). You can see from the linked Miami Herald story that the guy is a walking crime wave.

Justice has yet to be done for Belizaire’s most serious crimes, but none of the hustlers calling for the head of George Zimmerman in Sanford will be swinging by Fort Lauderdale to declare the absence of peace until Belizaire is put behind bars. President Obama will not be calling for a round of soul-searching about his case. Life goes on.

How Green Gullibility, Hyperpartisanship Are Wrecking The Climate Movement

AmericanInterest

One of the biggest intellectual failures of the global green movement against climate change is the persistent failure of its leaders and spokespeople to grasp the way their own advocacy fatally undermines their credibility. They blame cunning, unscrupulous and well funded enemies for disasters that their own inaccuracies, overstatements and disingenuous advocacy have brought on their movement.

Robert Murphy over at Master Resource has an excellent essay that shows how the credulous and gloating response of so many greens to the Heartland Institute affair and the faked document at its core made the green movement much less credible as a source of reliable information about climate matters. (Thanks, by the way, to @Revkin for bringing the post to our attention.)

Says Murphy,

The Heartland affair has shown not merely that some climate alarmists (namely Gleick) will stoop to outright deception, and most of his peers will close ranks to defend him in a sort of Green Wall of Silence. Perhaps more disturbing, it reveals that these people really have no idea how their opponents on the climate issue actually view the world. So when they dismiss skeptics as having no legitimate arguments, it should make outsiders take pause.

Without being a trained climate scientist, I can read the various blogs and try to parse the academic papers, but ultimately I have to rely a lot on the good faith and judgment of the scientists themselves. The Heartland affair has reassured my earlier conviction that the case for climate alarmism is far weaker than the alarmists have been telling us.

Murphy is writing here more about the green advocacy and blogging community than about the actual scientists, but this is all the more important as illustrating how advocacy has gotten so far away from science and ended by weakening the credibility of the green agenda. Read the whole thing.

The Via Meadia diagnosis of this phenomenon:

  • The climate movement’s proposals (above all, the global carbon treaty that in theory will subject the economic output of every country on earth to global controls) are radical, costly and virtually certain to fail.
  • To be enacted, these unpromising measures require an unprecedented degree of consensus, as every major country on earth would have to accept, ratify and then enforce the climate treaty the movement seeks.
  • The climate movement must therefore be, in Dean Acheson’s words, “clearer than truth” in order to stampede public and elite opinion around the world into a unique and unparalleled act of global legislation.
  • Because many in the climate movement believe that this treaty is literally a matter of life and death for the human race, the moral case both for stretching the evidence and attacking critics of that agenda as aggressively as possible looks strong to weak minds.
  • The absence of any central authority or quality control in the climate movement (and the tendency of unbalanced foundation execs and direct mail contributors to provide greater support to those ready to take more aggressive action and espouse more alarming ideas) gives more radical and less responsible voices undue prominence and entangles the whole movement in dubious claims.
  • The increasing obstacles encountered by such a poorly conceptualized and poorly advocated agenda cause the embittered and alarmed advocates to circle the wagons and become both more extreme in their rhetoric and less guarded in their claims when precisely the opposite approach would work better.

What we have here is a death spiral: the worse things get for the movement, the more scrupulously and cautiously it needs to behave, but the more incautiously and emotionally it becomes — leading to more failure and worse advocacy.

The root cause of all this remains, in VM’s opinion, a truly idiotic set of policy proposals that, no matter the state of the underlying science, simply cannot and will not be implemented.

Those whom the gods would destroy, they first make green. Just ask Peter Gleick.

North America has the potential to be energy world’s next Middle East, report argues

Telegraph.uk

Deepwater drilling in the Gulf of Mexico, tapping shale deposits for gas and oil and Canada’s oil sands are among the ingredients that could see North America’s production of oil and natural gas liquids almost double to 26.6m barrels a day by 2020, according to a report by analysts at Citigroup.

“The energy sector in the next few decades could drive an extraordinary and timely revitalisation and reindustralisation of the US economy,” the 80-page report said.

The vexed question of America’s future energy needs and how to meet them has dominated the battle for The White House in recent weeks, as the Republican challengers blame President Barack Obama for the recent rise in petrol prices.

Experts say the subject is also gaining political traction among both Republicans and Democrats because the US is at an important crossroads on its future energy policy. 2011 was the first year since 1949 that the country exported more petroleum products than it imported.

Some of that was down to new supply, but declining domestic demand also played a role. US oil demand fell to 18.8m barrels a day last year, down almost 10pc from 2005, according to the Energy Department. The report predicts that the declining US demand for petroleum products, driven largely by the downturn, will continue as fuel efficient technologies are more widely adopted.

That, too, could contribute to making North America the pivotal player in shaping global supply. “The growing Continental surplus of hydrocarbons points to North America effectively becoming the new Middle East by the next decade,” the report argues.

Its authors stress that the scenario it paints is one that could happen, rather than one that will. But they add that a reshaping of the America’s position in the energy chain would have wider economic benefits, with up to 3.6m new jobs created.

The question of America’s energy policy is not an exclusively economic one, with concerns over the environment and the wider role of government featuring heavily in the debate in the US.

“With political gridlock in Washington precariously high, it remains unlikely that a comprehensive energy policy will be achieved in the near future,” the report says.

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