IBM lobs sueball at travel site Expedia for using some old Prodigy patents IBM has filed suit against online travel giant Expedia alleging violation of four patents that harken back to the early days of dial-up internet. Big Blue has accused Expedia and several of its subsidiary travel sites, including Orbitz, Hotwire, and Hotels.com of infringing four patents related to the operation of browser- …
Some patents that old are still valid because they would file them and keep updating them so the patent office could never officially grant them. Patents that were in such 'pending' status after a certain date in 1995 have a life of 17 years from date of issue or 20 years from date of filing. However, both those old patents are listed as being expired. Now patents have a life of 20 years from the date of first filing.
Presumably IBM is suing over violations on those which happened years ago. The other patents are current and they could sue over both old and current violations of them.
An updated patent, almost by definition, cannot be novel w.r.t. the previous patent application and thus should be rejected immediately. Updates are meant to be for clarity, not to change the content of a patent application. However, I imagine the true process for the big patent companies is not quite the same as for everybody else. I mean, X thousand truly "novel" (not just clever an new) every year? Not likely.
Companies continuing to update patents in material ways are why they changed the law so now it is 20 years after initial filing. Previously they'd update patents for two reasons - one to make changes in older patents that would cover new stuff, to falsely get an earlier invention date (though courts would always toss those out, it was good for sueball threats) and two for so-called "submarine patents" where they could essentially secretly patent something by continuing to update the patent in minor ways so it was never published. The goal of submarine patents was that someone would end up using their patent unknowingly and they could sue the now successful company, who if they had known about the patent would have done things differently to avoid infringement.
I can get behind the blatant use of a proprietary software or constituent components parts for commercial gain by a third party, as being worthy of pursuing for licencing or litigation, however, IMHO, the USPTO, is one of the worst bodies for entertaining loosely worded ‘patents’ I have ever seen.
Some of the patents I have seen presented aren’t even worth of being designated as such, FFS, go and invent something ground breaking and get it protected by all means, but patenting obvious fecking processes is lame.
I don’t know who is worse, the USPTO for allowing it, or the legal team at IBM for following up on it.
Generate an income from a patent is a bit hard to define. Is an inventor licensing his patent to a company generating an income from that patent? Is the company? What if that person is part of a company? When does it stop being "generating income from a patent" and become patent trolling?
There's no clear answers to any of these questions, which means it's nearly impossible to make any sort of law over this that doesn't become endlessly complex and riddled with back doors, unintended consequences and collateral damage.
"Patents are granted by default. Inspection/testing and possible deletion of the patent only occurs if they are contested in court."
Yes, this. When progressing an application there will be search results returned, and you the inventor have to blag your way past these. It's not very difficult, as the search results seem like a keyword match. The patent inspectors have a pretty low threshold for blagging your way through search results and, particularly if you have "good" patent lawyers behind your applications, you'll get them through.
Now, if you are slapped with a cease-and-desist letter from a patent holder you have three options:
a) Stop doing whatever is allegedly infringing the patent
b) Negotiate royalties with the patent holder
c) Contest the patent
If you choose option (c) you have to decide whether to stop what you were doing while the legal process decides whether you are infringing: if you continue then you are liable to treble damages if you lose.
And it is this prospect of treble damages that makes this sort of suit so powerful: in many cases this effectively means that you're betting the farm on the outcome of a capricious patent court. Given that the C&D came in 2011, this is clearly the path Expedia have chosen.
Now IBM don't have to win these all, they only have to win one of them in order to end ahead. To my semi-educated eye, 346 seems to post-date a number of SSO offerings, so Expedia might have prior art. But 601 could be problematic, thinking about the world in 1996 I don't remember there being session management technologies available.
But Expedia wouldn't be contesting this if they didn't have some sort of prior art up their sleeve, I'm sure.
The actual content of the patent is not really the issue here. IBM has a huge and well-funded department to file, collect, and enforce patents. By threatening to sue, they are telling the other party that they will force them to spend a large amount of money on legal defence unless they settle. Typically they choose a smaller party and settle with them cheaply first to provide an example they can point to (in this case Priceline). Then they go after the other parties with deeper pockets and attempt to force a settlement. The other party has to weigh the fact that even an eventual victory may cost them $millions in legal fees versus the amount that IBM is offering to settle for. Companies are all about the bottom line - they don't stand on principle, nor would the shareholders want them to. They'll settle.
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