Patent nonsense

Enthusiastic wannabe developers of virtual worlds who are currently putting together their business plan might be surprised to discover that there's a 1986 patent that covers video game networks. Which ones? Well, pretty well all of them - except those created prior to the patent's application date of September 1981, of course, which are neatly excised from the equation.

This patent really is as wide-ranging as it sounds. Its mid-80s language is no handicap: it was successfully employed against Nintendo for networked Game Boys despite describing itself in terms of coin-ops. It's also been applied to virtual worlds.

OK, perhaps it would be more precise to say a virtual world, given that I only know of one instance where a virtual world company has gone public over it. This was Electronic Arts in defence of Ultima Online. Despite acting as an expert witness for EA, I was never told how the case ended. According to a brief summary buried deep in the lawyers' web site, however it transpires that the case was "resolved through settlement".

I mention this not because I'm wondering how many virtual world companies are quietly paying licence fees to stop themselves being taken to court (although I do wonder that). Rather, it's because of late I've seen an increasing trend for new virtual world developers to stress their "patent pending" technology in an effort to raise the financing necessary to write and operate the fruits of their labour. By the time these patents are granted, other people will be using the same ideas (arrived at independently) and may suddenly find themselves facing a stiff licence fee or being forced to stop using the technology altogether.

Better jump on that bandwagon before it runs you over.

Richard

Comments

[Greg Lastowka]

1.

Richard, you beat me to this post.

I was actually going to point out a Farmer/Morningstar (The Habitat guys) software patent on "ghost objects"(#6,476,830 "Virtual Objects for Building a Community World").

If you search the USPTO database for "virtual world," you actually get about 550 hits. So patents and potential license costs are certainly something that need to be on every major virtual world designer's radar -- and not just those patents related to virtual worlds per se.

Patents are interesting in terms of the legal costs of market entry, but in some ways this is an old story. E.g., the father of Pong, Ralph Baer, had a patent, #3,728,480, that ended up with Magnavox. It essentially covered video games and Atari found out about it fairly quickly when Pong came on the market. (Baer's patent has since expired, of course.)

As you know, software in an anomolous form of intellectual property, in that it can be covered by both patent and copyright. Since I do patent litigation, you'll have to draw this "nonsense" idea out a bit for me. ;-)

(I am now reading your book, btw -- *great* stuff.)

[Greg Lastowka]

2.

Actually, to be clear -- I do get Richard's "patent nonsense" argument. I assume he's arguing that the current "patent thicket" system should be reformed. It's not an uncommon view. Here's a recent empirical paper:

http://www.researchoninnovation.org/swpat.pdf

[Jeff Cole]

3.

Identifying the problem is a bit like applying the §103 "obviousness" test with the benefit of hindsight: it's almost tautological.

Whether and how to fix it is much thornier.

Given the extremely high cost of litigating a patent, the patent-holder and alleged infringer have a great incentive to settle (license). A more rigourous or adversarial application process will dramatically increase entry to market costs-- costs we, as customers, will ultimately pay.

Note also, that such a system would increase the bargaining power of a patent-holder in licensing negotiations.

For those cases in or near the grey, to frontload such costs (which likely will not even resolve the issue of patentability/infringement) might well produce greater social cost and deadweight loss.

Jeff Cole

[DivineShadow]

4.

While I agree many patents in the USPTO or WIPO bases are just ludicrous and speculative (I can't find that neutrino telephone patent again, but it was there). It seems today you can't even fart online without infinging on someone's patent over the "Digital Methane Conversion Apparattus" ... Yet I don't know about this one, haven't looked at it deeper, but at first sight there seems to be some prior art they're trying to cover in some of its claims. It was filed in 1982 and Spacewar on the PDP-11 in 1971 comes to mind. Are they leaving that out? Any other thoughts?

[Richard Bartle]

5.

Greg Lastowka>Since I do patent litigation, you'll have to draw this "nonsense" idea out a bit for me.

Personally, I loathe and despise all software patents and don't think they should be allowed as a class of patentable things. However, the US government failed to consult me on the matter so I have to live with it.

When a new industry comes along, it's fairly easy for people to patent ideas that cover vast swathes of that industry. I'd much rather that this weren't possible, but it is. People who are working in virtual worlds at the moment are in a good position to patent things that pretty well any competent programmer (aside: or designer) would come up with when faced with the same problem. However, because they met the problem first, they get to keep the solution. This can't be good for virtual worlds as a whole.

What prompted me to post this, by the way, was yet another invitation to be an expert witness for a patent that's not so much "we thought of this first" as "we patented this first".

Oh well, at least no-one can claim a patent on MUD1; any that might have applied will have expired now...

Richard

[Richard Bartle]

6.

Divine Shadow>It was filed in 1982 and Spacewar on the PDP-11 in 1971 comes to mind. Are they leaving that out?

But of course! Spacewar had only one computer, therefore it wasn't a networked computer game.

More interestingly, the game Flash Attack (http://www.portcommodore.com/commodore/flash/flashatk.htm) that was played over two Commodore
PETs linked together was also not prior art. The reason? The two PETs shared a speaker, which meant that strictly speaking they weren't individually "multi-media" machines.

Richard

[DivineShadow]

7.

Richard,

Sorry, my bad.

I guess we all wonder the economic good/bad these patents are really bringing to society when it seems a big chunk of them are done to block or capitalize on the investments of others instead of filed for the purpose of capitilizing on a truly new invention.

[Dave Rickey]

8.

There has to be some way for the USPTO to establish guidelines to weed out patent trolls. When someone quietly patents a software or business method, keeps it quiet until after the patent is granted, and then waits for someone to implement the method independantly before they pounce, obviously no public interest is being served.

--Dave

[Richard Bartle]

9.

Dave Rickey>When someone quietly patents a software or business method, keeps it quiet until after the patent is granted, and then waits for someone to implement the method independantly before they pounce, obviously no public interest is being served

In the UK we don't have "submarine patents" that apply from the date of submission or before; rather, they apply from the date the patent is granted. The Sitrick patent I mentioned earlier would, in the UK, date from 1986 rather than 1981. This cuts down some of the abuse.

What's particularly annoying is when people sit down and think what might be invented later (eg. "real-time speech in virtual worlds") then word a patent in such a way that when someone else has done all the hard work and actually invents something that the patent could apply to (eg. "generating speech from text in real-time"), throwing it in their face and asking for a licence fee.

Worst of all are patents where people take an existing general principle and apply it to a specific new instance where it hasn't been applied before but it's inevitable it will be. "Hmm, people use conveyor belts to move stuff from one part of the factory to another part. I'll patent the idea of moving computer games from one part of the factory to another. Actually, why don't I word it vaguely enough that once I have the patent I can use it for cases where people move computer games from one place to another in a truck?"

Patenting software is as nonsensical as patenting legal defences. "Sorry, you can't use that defence without a licence. I patented it in 1992". I don't mind software copyright, but patent is another matter entirely. It's just too general (as it's understood at the moment).

Richard