Oh, good Lord, when the patent was filed, RunwayFinder was already online. Talk about prior art! This kind of abuse just boils my blood, especially when it involves this kind of penny-ante bullshit, the whole rent-seeking mentality of identifying a niche market that could really benefit from more open information and then trying to dominate it for chump change.
Ok, I read the claim, looked at the dates and have to say this...WTF?
When I was in college I worked on a system for a government affiliated agency doing research into flight simulators and other aviation related software. The exact project I worked on did this patents claim as base functionality before we did the hard work. This was 1996. That technology had been around for, oh, probably 4 years at this point.
I'm 100% sure that this software was not productized to be seen by the patent office (nor was a patent filed by this agency...), but this technology has existed in one form or another since the invention of networked computing and having computable aviation data.
I was somewhat taken aback to realize that for all the talk at EFF about their patent busting project (http://w2.eff.org/patent/wp.php), there doesn't seem to be any public database of bustable patents, suggested prior art, or documented harm done.
This is a divisional of application Ser. No. 09/919,672, filed Jul. 31, 2001.
means that it was effectively filed on that date, so you would need prior art predating 2001. (Though it might be more complicated than that, it depends on a couple of things.)
Also, FlightPrep refer to a 2004 review of online flight planners from the Aviation Consumer magazine. So, I would guess they date their invention before that.
Depends on where you are in the world. The European Patent Office explains:
Virtually every patent office in the world (including the EPO and the JPO) is based on a first-to-file system. ... The USPTO, however, is the only office to be based on a first-to-invent system, meaning that a patent is granted to the person who first conceived and practiced the invention, rather than to the person who first filed the invention with authorities.
I know that they want to change that, too, but I really hope they don't. Otherwise, the people who didn't think a thing was even worth patenting (or who couldn't afford to patent it) will have their inventions stolen from them.
I will justify the use of "stolen" here by saying it's because they're no longer legally able to use their own idea. Restricting an idea via IP laws is one of the few ways an idea can actually be stolen.
i'm not sure that's true, necessarily. IANAL (yet), but unless I'm mistaken, a patent still has to be novel. So if they had publicly disclosed what they thought had no value... they could invalidate any later patent that tried to make it illegal for them to use their idea.
As for the obvious comeback - no, you shouldn't not make public something which you think has no value. Either patent it or stick it out there to inspire someone with a different vision to your own. Don't hoard without knowing how to execute, especially without believing it's worth executing. As far as I'm concerned if you're doing that you deserve no rights to your 'invention' even if someone then comes along and patents it.
Well, what I've seen has been different: in the JMRI case, they patented the guy's idea and then sued him to stop using it (while infringing upon their copyrights, if memory serves).
Frankly, I wish that independent reinvention were at least weighed against novelty, but I haven't seen that work out in practice very often. Instead, they race to connect the dots once someone makes a new kind of dot available, even though everyone skilled in the art could probably could snap things together like Lego (TM) brand building blocks.
> Patents are awarded by first to invent not first to file.
The default value for date-of-invention is date-of-filing. An inventor who wants to establish an earlier date-of-invention has the burden of proof (and must provide corroborating evidence such as a dated- and witnessed lab notebook, because it's too easy for an inventor to "misremember").
(Yes, we're talking current U.S. law here; most other countries are indeed first-to-file.)
Even in the US with its unusual rule of first-to-invent, you can't file a patent on an invention that somebody else has also invented and disclosed to the public ("prior art").
This story is big news in the little world of general aviation. RunwayFinder was an excellent free product, well loved, and a lot of pilots are angry about it being bullied offline. RunwayFinder says they don't infringe. It seems likely to me, between the prior art, the obviousness of the patent, and the specificity of the patent claims (including language about using "housekeeping frames"). But they lack the means to defend themselves. I blogged some more analysis at http://www.somebits.com/weblog/aviation/flightprep-patent-76...
They won’t talk to me. Instead I’m stuck dealing with their lawyers who twice said that if RunwayFinder pays a license fee (would you like 10% or 20% of zero?) or removes the website that they will drop the lawsuit. Unfortunately, they are now reneging on that and posturing for more. They are claiming damages of $3.2M per month.
FlightPrep stands by its offer to grant a free-license to RunwayFinder to operate its website during this negotiation phase of our legal dispute. We are not asking RunwayFinder to shut down and in-fact are offering them a temporary free-pass at our technology in hopes that this gesture of goodwill will better enable both RunwayFinder and FlightPrep to constructively work toward a mutually beneficial long-term solution.
Doesn't absolve them of hefting lawsuits around, but there seems to be some sort of communication gap here...
What's the betting that the terms of that "free" licence involve some sort of admission of RunwayFinder's guilt, or of the validity of FlightPrep's patent?
Doesn't the simple act of accepting a (free or otherwise) license from someone imply that that you accept their right to grant said license?
Both parties I'm sure are aware of this; it's simply posturing on FlightPrep's part with the hope that RunwayFinder will be dumb enough to accept it and thereby lose in the long run.
The classic case of a license in common law is permission to enter someone's property. Consider this case:
Me, opening the door to my apartment: Oh shit! There's a burglar in my living room!
Burglar: I'm not a burglar! This is my apartment! I've owned it for ten years.
Me: This isn't your apartment! It's my apartment! I bought it from Hugo López last year!
Burglar: Hold on a second. As long as you don't lay your hands on me, I'll allow you to remain in this living room to discuss this with me, but López never actually owned this apartment. He rented it from me for a while, but I evicted him five years ago for not paying rent. It was a fraudulent sale.
Me: Really? Shit. Listen, are you armed?
Burglar: No. Does this catsuit look like it has space for a gun? [Holds up hands, turns 360°]
Me: I guess not. I'm still calling the police.
Burglar: Go ahead.
Me: [pulls out cellphone and starts dialing]
Now, the burglar has granted me a license to remain on what he claims is his property. He could still be a burglar hoping to fool me long enough to get away, or he could be telling the truth and be the legal owner of the place, or in fact he could be telling the truth but López might have become the legal owner of the place through adverse possession, but in none of these cases am I accepting his claim and ceding the property to him simply by remaining in my own living room, or by not bodily throwing him out.
But if RunwayFinder intends to attack the validity of the patent by claiming obviousness or something similar, I see the analogy as more like:
me: This was no-one's apartment when I got here. There are thousands like it, in fact an infinite supply. Get your own.
burglar: Well, we'll work that out in court. In fact I own all of them.
me: No, it was public land and I just built my apartment here.
burglar: Well, how about you sign this lease. Just put your John Hancock here, and I won't give you any trouble about staying here. I won't even charge you any rent this month.
With the above dialog, doesn't the signing of the lease imply an acceptance of the burglars ownership of not only this apartment but all of these apartments?
I am not a lawyer, obviously, just someone who likes analogies.
If you have to sign something, it's probably a contract, not a license. It might turn out to be an invalid contract if you're already entitled to what the burglar offers you.
Analogies to real property are problematic because of the excludable and rival nature of real property.
I think different standards apply because there's a rather significant difference in the urgency between a dispute about an intruder in one's living quarters and a patent or intellectual property lawsuit. It looks like RunwayFinder is not even trying to dispute the case and is giving up pre-emptively because they don't have the funds to fight the case.
Accepting a temporary license to postpone the lawsuit does not sound smart to me, it sounds like a ploy to allow RunwayFinder to stay online longer while FlightPrep continues to pursue licensing agreements (which the owner has no ability to pay) or legal allegations that will result in additional damages as well as an admission of the validity of the patent. But I guess now we'll just have to wait for someone who knows what they're talking about to correct one or both of us. :)
In spite of the foregoing, FlightPrep stands by its offer to grant a free-license to RunwayFinder to operate its website during this negotiation phase of our legal dispute. We are not asking RunwayFinder to shut down and in-fact are offering them a temporary free-pass at our technology in hopes that this gesture of goodwill will better enable both RunwayFinder and FlightPrep to constructively work toward a mutually beneficial long-term solution.
Constructively work toward a mutually beneficial long-term solution, eh? With patent enforcement? Sounds more like strong-arming RunwayFinder into a deal they wouldn't otherwise take to me.
Software patents are so infuriating! It's amazing how something that was designed to encourage creativity and innovation is effectively stopping innovation.
Suing someone is expensive and risky. If the "victim" can just be bossed around with scary numbers like "33 million dollars per month", then that's excellent; they get what they want without even having to work for it.
(Personally, that amount would be more than I could ever pay off in a lifetime, so I wouldn't worry about it. I would just join some teach-kids-to-read-in-Africa chairty, leave the world of material wealth behind forever, and never pay a dime of the settlement. Just to spite them.)
To summarize: it's a patent on the idea of overlaying a flight plan on a map using a website. The general case of this is drawing line-segments on a background, something every trivial paint program can do. This patent clearly fails the obviousness test.
It doesn't fail the obviousness test at the USPTO, because they seem not to employ people with ordinary skill in the art of anything related to software. At least, that's the most charitable explanation I can come up with.
There is a list of valid degrees that qualify a person to join the patent bar or work as an examiner. A law degree is required and also an engineering degree but software engineers are specifically excluded.
Civil, mechanical, electrical, and chemical engineers and possibly others are included and software is excluded. And this is the agency that evaluates and issues patents to strangle our field.
But the problem is that you can't summarize a legal document like this if you want to make complete sense of it. Every sentence has to be evaluated on its own merit.
Every patent I've read (IANAL, but I have read a number of patents over a couple of years of helping our lawyers challenge the USPTO) requires very careful reading to understand and evaluate all the claims.
I haven't read the patent in question for this case.
However, what is USUALLY the case with patents is that they are far narrower than what is claimed by the company or in the press. "Company patents pencils!" says the news article. When you read the patent you find that they've patented a very, very, very narrow use of pencils and that few, if any of the world's pencil uses are encompassed by the patent.
So there are patent defense companies like Allied Security Trust, RPX and the Open Invention Network but it seems like these are for major players and/or have very limited scopes.
Is there anything similar out there for smaller businesses, particularly for those in the software industry?
Wouldn't it be nice to have an Open Invention Network type entity that can build up an arsenal to defend against these types of existential threats?
I could see paying a monthly 'licensing and services' premium that would go toward maintaining a patent portfolio, retaining defensive legal services and maintaining a database of prior art and other useful information that can be brought to bear in these kinds of situations.
I know there is regular patent insurance (I have never used it) but it seems more offensive rather than defensive in nature and is expensive.
you can presumably purchase before-the-event insurance anyhow. There just isn't a big market. But can you seriously EFF/etc to be that insurance, and have any money left over to lobby government (have you any idea what financial scale we are talking about? in the UK, the pro-patent lobby just got our government to reduce corporation tax on patent-derived income from 37.5% to 10% ! that takes some serious lobby clout) ?
There are over a million software engineers and computer programmers in the U.S. Say, 15% were convinced to give $30 a month (or their employers). That would be over 50 million a year for operations. That is not including other donations that would be solicited, or fees payed by other interested parties such as hardware manufacturers, venture capitalists and the like.
Now will $50 mil. be the death knell for the pro software patent lobby? No, there are big companies with very deep pockets that would fund the other side well, but it is a fine start.
Of course, my hope would be that the $50 mil. would mostly go to crushing trolls in court, sucking up tasty patents, building and maintaining a solid resource of precedent and prior art in this area and setting good precedent and leave the bulk of the lobbying to donations above and beyond the collected fees.
Definitely good to see the other side's response, but the post immediately prompts the question: what does Parsons stand to gain if he is shutting down RunwayFinder in order to "try this case in the court of public opinion" as FlightPrep claims (rather than simply to avoid getting sued over his hobby)?
Definitely good to see the other side's response and see what forked tongued baloney it is...
"... our good faith offer to provide RunwayFinder a free license during negotiation for a constructive resolution to our dispute and absent any demands by FlightPrep"
IANAL but, as others have said, "absent any demands" could be interpreted as "if you're willing to roll over and accept our utterly bogus patent.
"constructive" just as much meaning "profitable to our rent-seeking schemes"...
And somehow the pilots community is against software patents? I wouldn't imagine this an militant group of hacker. But after this experience, it seems they've learned a little bit...
From the patent, in the "Background of Invention" section:
However, as will become obvious later, additional applications of this invention may also include the field of cartography, route planning for motor vehicles, marine vehicles and similar utilization.
So does this mean they could potentially go after MapQuest or Google Maps for providing route planning for motor vehicles as well?
Standard rules for patent trolls: that'll happen later. They're going after little guys now so they can go into a case like that and claim that their patent must be good - just look at how many other companies paid up!
Is it possible for RunwayFinder to be hosted outside of the US? For example, if RunwayFinder is not premium (and not sold to the US), why can't the service be hosted in the UK or Europe where the patent is not valid?
I supposed it could be a big boost for FOSS if the remedy for IP infringement wasn't damages calculated on expected (lost) sales, but an account for profits; so you'd hand over the profit you made from infringing this patent (rather than - hand over what we can convince a judge we would have made if we didn't have to compete with a cheaper product)
It would probably hurt FOSS in the short term, because it would essentially legalize not-for-profit copying — unlicensed copies of any proprietary software would be legal, and so we'd have well-curated and reputable repositories of AutoCAD, Microsoft Windows, OrCAD, Cisco IOS, and so on, perhaps even with enhancements and ports to new platforms. I imagine this is already the case in China.
Is RunwayFinder the open-source flight planner? If so, it seems anyone can just run it by itself? Is the source out there? I bet they wouldn't send lawsuits to all their potential customers.
If it is open source, does the community provide any support to developers that find themselves in this situation? Perhaps the EFF or the legal team of an open source friendly company?
This is very sad. I would be glad if we can have site to expose those patent trolls. Browser plugin which automatically displays "Those are patent abusers, don't visit!" when you try to visit given url's would be even better. Maybe that would build some pressure to not use abusive claims.
knowing nothing about the company or history the line about lost revenue just made my blood boil. 22k unique visitors = 3.2 million in lost sales. 100% conversation.
There is so much fail going on here and that before you include the insanity of the 'patent'.
The line in question is a good example of law-fi literature:
"...that your website had 22,256 unique visitors in July 2010. Each visit represents a potential lost sale of our client’s patented invention at $149 per sale. This damage calculation exceeds $3.2 million per month in lost revenue."
The thing is it is actually worse than that. It is 100% conversion with the assumption that every single visitor would instead use accusing site instead of going to any of the other alternatives.
RunwayFinder is a flight planning resource for U.S. pilots, showing current weather conditions for airports in an area at a glance displayed on seamless sectional and terminal charts. In addition, routes, range circles, and temporary flight restrictions (TFRs) can be plotted.
When a patent establishes a claim, and then says something like "Claim 19: The process of claim 18 further comprising overlaying a route line", does that mean the patent is narrowed to only things that include route lines, or does it still apply to systems with/without route lines? If it's not narrowed by the additional claims, what purpose do the additional claims serve?
Each of the claims is independent and additional. They are made so that it is possible for the patent examiner to approve the patent claim by claim with a more narrow scope, rather than rejecting it as a whole. From the applicant's point of view, the best case is that all claims are approved, but the usual goal is to write a series of increasingly narrower claims so that at least something gets approved. If nothing is rejected, you probably have not made it broad enough. Having a more narrow scope may also determine in a law suit whether something is infringing: if you have an explicit claim, it's more clearly infringing.
The benefit of multiple claims is separability. In your example, claim 18 might be found invalid, but claim 19, since it requires an additional element, might still be valid. On the other hand, claim 18 might not be invalidated, in which case the patent is broader (and therefore more valuable) than if it had included only claim 19.
Interesting, so the most broad claim that gets the most press might not end up being the one that "counts", but on the other hand when someone says you have to read the whole patent to know how narrow it is that's not necessarily true either, since the most broad claim could be ruled valid.
There was an article on here recently about how in general the more agressive the lawyer is, the less case they have. Potentially the lawyer is bluffing. It a tragedy, that you have to shut down. This sort of thing makes me wonder if there is a market for a decentralized webserver. Sort of a bittorrent but for web pages that would allow you to get around some of the patent claims--in a way. The profit value of this would be that as traffic increased on site the added users would handle some of the load. Essentially auto scaling without the added hardware costs. Potential issues to get over is how to get the browsers to support such a thing. Could websockets or even existing JSONP work through it?
As a student pilot, I hope this gets sorted out soon. RunwayFinder has the best VFR-sectional-over-Google-Maps interface of the available online tools. Skyvector.com is a close second, but they don't seamlessly stitch together charts (you must manually switch between them).
- How can you patent something like online flight planning?
[--] Were you just first ones to think of patenting it?
- According to the Patent Office, that is correct.
The interviewer tries to squeeze information out from the man, but he just talks his way around the actual question, saying things like IANAL, It's in the Patent, the Patent is very specific, that's what the Patent Office says.
Reading through the timeline it seems like the chose to enforce their (in my opinion, bogus) patent in a very agressive way. Don't like this company at all.
I believe that FlightPrep has a valid business plan. They have patent in order to prevent commoditization (i.e., giving away things for free) of their market. So they sue all free providers and if there is somebody with real money (like Jeppesen) they understand they cannot go after them.
I think this something each copmany should do when entering a niche market which can be easily commoditized.
If you are in a market that can easily be commoditized, you need to innovate and provide extra value, not use legal loopholes to stifle innovation and competition.
The World would be a far worse place if [insert any commodity here] was patented and the owner of the patent could sell at a price of their choosing (and licence at a price of their choosing)
