Looking backward at licensing; deja vu all over again?
In a post on 20 Feb 2015 titled --Study finds patent licensing rarely results in innovation --, Inman discusses the
Feldman/Lemley paper -- “Does Patent Licensing Mean Innovation?” --, using as an illustration the CIVIX-DDI patent matter:
In 2011, NAR negotiated a blanket licensing agreement with CIVIX-DDI LLC, a company that holds several patents on location-based Internet search techniques, after the company filed patent infringement lawsuits against two of the nation’s largest multiple listing services and demanded licensing fees from several others. NAR paid CIVIX a total of $7.5 million that it collected from Realtor associations, MLSs and MLS vendors to pay for a blanket licensing agreement that applied to the industry as a whole.
Inman had covered the matter in August 2011 in a post titled MLSs, Realtor associations pitch in $7.5M for patent license and had noted: -- The patents were issued in 2002, and the U.S. Patent & Trademark Office turned down requests for re-examination in May. --
Also in August 2011, the Techdirt blog discussed the CIVIX-DDI matter in a post titled -- Company Claims Patents On Generating A Map From A Database; Getting Real Estate Industry To Pay Up --
The first claims of the two patents asserted by CIVIX-DDI were both directed to a system, not a method. One notes that the later patent (US '291) has a shorter (and thus broader) first claim.
Patent 6,385,622: "System and methods for remotely accessing a selected group of items of interest from a database."
1. System for remotely determining the position of a selected category of items of interest in a selected geographic vicinity from a database, the system comprising
(A) a database for storing information about a plurality of items of interest, the information including, for each of the items of interest, a geographical position and at least one associated category,
(B) a communications link for communicating between a user of the system and the database,
(C) an information controller for transmitting a portion of the information in the database to the user via the link upon receipt of a request signal representative of a selected category and geographic vicinity, the transmitted portion of the information including identification of geographic position for at least one of the items of interest within the selected category and geographic vicinity, and
(D) a port for remotely accessing the portion of information via the link, the port generating the request signal in response to inputs by the user which are representative of the selected category and geographic vicinity, the port having a user interface for accepting the inputs and for indicating to the user the position at least one of the items of interest in the selected category and geographic vicinity.
Patent 6,415,291: "System and methods for remotely accessing a selected group of items of interest from a database."
1. A system for determining the position of one or more items of interest in a selected category, comprising:
a database for storing information about the items of interest, the information including, for each of the items of interest, at least one associated category and spatial detail defining a geographic position; and
a plurality of ports for accessing the database through the Internet, each port having a user interface for accepting inputs by a user of the system and for indicating to the user the geographic position of one or more of the items of interest, the user inputs defining the category associated with items of interest.
The Techdirt post asserted the claims to be obvious: -- Now, I know that patent system supporters always get angry at me for declaring patents obvious, but take a read through the claims (not the abstract) and I defy anyone who knows anything about programming to explain how these patents do not describe incredibly obvious concepts. --
Returning to the Feldman/Lemley thesis (licensing does not promote innovation), one asks the simple question: if the concepts were obvious, why was no one using them prior to the filing of the patent applications, which would have been a basis for invalidating the patents?
The 2015 Inman post noted: -- What may come as a surprise is that the [Feldman/Lemley] study found patent licensing doesn’t seem to do much to fuel innovation, regardless of whether it’s “patent trolls” or other patent holders like universities seeking the licenses. --
"Looking backward" in time one recalls that the famous 1911 decision in the Ford case said pretty much the same thing about the Selden patent (filed in 1879). There is nothing new going on in the 21st century that didn't happen in the 20th century as to "patent assertion." The licensing aspect in the Ford case was a bit different though.
The initial "targets" for licensing of the Selden patent ultimately recognized their power and got control of the patent
(e.g., ALAM). The Selden patent was challenged by Ford, who had been DENIED a license. The Selden patent was never found invalid, but was found not to be infringed by Ford (or his customers or dealers; lawsuits were more aggressive in the early 1900's; customers were sued!)
In a fact pattern such as that presented by CIVIX-DDI, ALL of the targets for licensing should have grouped together, as happened in the early 20th century and create an economic resolution.
As to the thesis promoted by Feldman/Lemley, it is not clear that the concept in the CIVIX patents was not an innovation.
An innovation is something that changes the way we live, and need not be an invention.
Yes, LBE is alluding to the book "Looking Backward" by lawyer Edward Bellamy. Published in 1888, it was number three on the best sellers of the time, and has some themes quite related to the Feldman/Lemley conjecture.
See the article titled "Looking Backward," at page 20 of Intellectual Property Today [IPT] in June 2001.