Patent Trollin' is destroying American Business advantages -- or is it?

Reading through a lot of the IT industry news, it seems that one of the biggest problems for IT in the US right now is patent lawsuits... the sheer amount of time and effort and money being spent on lawsuits over software patents, most of which would appear to be trivial, common knowledge or prior art.

It occurred to me that this problem (which seems to be mostly a US issue) could well be destroying the US's competitive advantage in technology, and quick and sharp patent reform could actually be a fast win for which ever administration wanted to enact it... I know of smaller IT companies that are very reticent about even selling south of the border in the US due to the risks of being patent sued. 3-something billion was paid by Apple/M$ for Nortel's patent suite (thanks for shipping that money north, guys). Patents are given for processes such as refreshing old bread by heat (I call that toast, but whatever).

How easy would it be to remove/rescind all software technique patents? Is there a positive side to such patents? Would it actually help the US recovery or is it a minor drop in a larger hole?

I hate patent trolls with a passion. Them, and Stella award contenders, incite so much more disgust in me than the common thief ever could. And I don't have personal or a friend's experience to draw from, either. They are the unfortunate processed waste of advanced society that pollutes the environment and refuses to decompose.

Don't you think that the USPTO's issuance of software and business method patents was what led to the US's competitive advantage in the first place? A great deal of company valuation has to do with the IP portfolio. That valuation attracts more investment and gives US tech companies more cash to play with than their European counterparts who cannot get patents on software. Global venture money flows into the US and those US companies hire more employees in the US.

I'd say if you eliminated software and business method patents, you'd be doing great harm to the US economy. It would be easy to do in theory -- you'd just legislate that all patents issued in the USPTO on software or methods for doing business are immediately null and void. But you would face grave challenges. For example, you'd wipe out millions if not billions of dollars of corporate value from the ledgers of companies like IBM, Oracle, Microsoft, Amazon, and eBay, and they wouldn't take that lying down. Think about it -- name a major software company that isn't from the US. You'd likely also face Fifth Amendment challenges.

So I don't see it as a problem at all. I see it as a benefit. I personally derive a meaningful amount of money from patent royalties on business methods. If a software patent is indeed trivial or obvious over the prior art, it never should have been issued in the first place.

But let's bring this back to the gambling topic: do you believe that every new casino table game played with cards is, by definition, an obvious permutation of existing card games like blackjack or poker and therefore by statute should not qualify for patent protection?

Quote: MathExtremist

But let's bring this back to the gambling topic: do you believe that every new casino table game played with cards is, by definition, an obvious permutation of existing card games like blackjack or poker and therefore by statute should not qualify for patent protection?

Where it gets fuzzy, in my opinion, are 'new' games that have been based on a permutation of an existing new game.

I'm not naming any games/inventors, but there are games out there that would not be on the floor if it hadn't been for 'Blackjack Switch' and the patents that went with it.

Where it crosses the line is obvious use of existing ip rather than designing new ideas to complete a game.

Sorry to be vague but the whole topic of patent protection is based on various uncertainties and considerable expense.

Quote: Switch

I'm not naming any games/inventors, but there are games out there that would not be on the floor if it hadn't been for 'Blackjack Switch' and the patents that went with it.

Where it crosses the line is obvious use of existing ip rather than designing new ideas to complete a game.

That sounds like an infringement issue -- you should investigate with an attorney (or drop me a note and we'll discuss). Just the same, 'Blackjack Switch' would never have been on the floor if it hadn't been for blackjack, even though blackjack is a public domain game. Whether a new game is popular has nothing to do with patents (e.g. Pai Gow Poker).

My question was more directed toward whether you should have been able to get patents on Blackjack Switch at all. Presumably you're in favor of patents on gaming methods, while the OP seems against them (by proxy; he was talking about software, but it's a similar concept under "business method").

Actually, I've been meaning to ask: how do you charge casinos in the UK for licenses to Blackjack Switch or your other games? I know you can't get a patent on a gaming method in the UK, so what is the basis for your licenses?

It's similar to software, but some of the software patents are either prior art, or obvious applications of the technology. The problem appears to be challenging those patents is incredibly expensive to challenge or fight, and the court cases are strung out. This isn't very amenable to dynamic fast moving software development. I don't know about business processes as much.

I can see there is a line where an invention for a process is both a business process and software process. I can see some of the inventions being complex and innovative, and give huge competitive advantage. And I can see others that are just bloody silly. I think the US patent office is swamped and is not applying a critical enough eye on software patents.

As for gambling patents.... yeah, what do you do? If anyone can copy your new game, why would offer one, but on the other hand, if the number of new games that succeed is far far smaller than the number of patents, it seems like a lot of spitting in the wind. I'm guessing if the complete package itself could be sold to a casino, then I don't see the need for a patent. For games which are extensions to an exisiting game with a pack of cards, I can see the method itself is the innovative piece.

I part-time development boardgames. There's no money in that really (*), and as far as I am aware, no-one takes a patent out on their game design (**)... but in this case the physical game itself is sold and can be copyrighted, providing some protection.

(*) The big big companies make a lot of money, but designers themselves are lucky if they make 2-3 grand for a design. A huge hit game does occur every so often (Settlers of Catan for example) and there's a lot of people making a passable living in the game industry. But no money in it for me, right now, but more chance than a gambling game patent.

(**) this isn't quite true : Wizards of the Coast patented a particular way of showing a card had been used in their hit game "Magic : the Gathering", and I think Reiner Knizia may have patents on the methods for a couple of his more successful games.

It's always going to be true that the number of successful products << the number of new products. But that should be a business decision, not a legal one. Right now, based on what I've heard rumbling around Congress, there's a reasonable chance that business method patents (including casino games) might go the way of the dodo. That would hurt a lot of inventors who have brought a lot of innovation to the casino game space. Let It Ride, Caribbean Stud, Three Card Poker, Four Card Poker, Ultimate Texas Hold'em, Triple Play Video Poker -- those are (or were) very popular entertainment products and have definitely increased the overall value of the gambling experience for many bettors. As far as I'm aware, the only new game that has come to the broad gaming market in the past 3 decades without a patent filing on it is Pai Gow Poker, and it was an accident that a patent wasn't filed. (I'm not sure if there was a patent on Super Pan 9 either, but I think that's limited to California.) I'd guess that none of the other games would ever have been developed (save perhaps Let It Ride) were it not for the possibility of patent license revenues.

I'm not up on the board game industry as much as I'd like, but would Wizards of the Coast have been acquired by Hasbro if it hadn't had IP rights to the trading card game genre?

Yes. Wizard of the Coast was brought for it's intellectual property (Magic, D&D for starters) and massive number of gamers who follow their products. I can't see WoTC being of interest for just the game mechanics.

Trading Card Games still exist, and the patent, as far as I am aware is pretty much ignored... plenty of games use a Magic-like method for tracking the usage of a resource (they often get around it by having the indication method not turning a card by 90 degrees). I can think of at least two games I've played in the last 2 weeks that do much the same, by a different process. Plus I don't know the complete details of the patent, so I might have missed something.

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,662,332.PN.&OS=PN/5,662,332&RS=PN/5,662,332

is the detail for those that care. Though the games I am thinking about didn't involve a trading mechanic to compete.

I think the key difference is that with most games there's a barrier to entry that's not the rules and process, it's the pieces and cards and experience of the game itself. These may not be patentable, but are copyrightable, and the look'n'feel of the game is a big part of the enjoyment of playing.

You are right, the number of successes shouldn't matter. Does the patent system encourage innovation in the gaming market? What would happen without it? Do the non-US inventors not succeed without a patent?

It is a fact of life that a successful idea is going to lead to imitation and outright copying. Putting that aside for a moment, any idea will always lead to a different idea. 3 card poker in some way led to 4 card poker. There is no game that is perfect and can not be improved upon, as in the classic 3 legged stool example.
EZ baccarat or EZ Pai Gow poker remove the impediment of a commission. Push at 22 and 2 hands as in Switch will lead to other
uses in table games. None qualifying options in poker is a valuable asset. The question is where to draw the line ? Hopefully the new first to file versus first to invent will help matters. But knowing most ( Notice I did not say all ) lawyers I doubt it

1.) Suppose I were to take a deck of existing cards and remove the Jokers and the Kings. I then separate the 48 cards into to equal stacks of Red and Black Cards. Can I make a novel game of this that is not Blackjack, Poker, or Baccarat?

2. ) Suppose I were to write a computer program (aka software) that ramdomly generates a number 1 to 12 for two instances, say red and black. Can I make a novel game that is not Blackjack, Poker, or Baccarat from this?

3. ) Is there any difference between example 1. and 2. ? Can I make the same game from BOTH examples?

4.) Finally, are the RULES of such game the Intellectual Property of the game? Does the appearance of the game (deck of Cards or Video screen display) have ANY bearing as to the Intellectual Property of the game? Is the Computer Program a set of RULES? Should the RULES of any game be patentable, or should they be a written copyright, or both?

IMHO, these four families of questions are inherent to any new card-based game, and can be extended. /MHO


N&B

The debate revolves around a couple of things which can broadly be divided into three factors. These include- where should be the boundary line between the patentable and non patentable should be drawn for the software. Secondly, if the steps involved for the invention and non obviousness needs are lax when comes to software. And thirdly, whether the idea of patents in the domain of software discourages or encourages the innovation or creativity found in this industry.

To know more about patent trolls read more about it here.