Mark Cuban: “Get rid of all software patents”

By Gene Quinn
October 13, 2015

mark-cuban-b

Mark Cuban

According to news reports, flamboyant billionaire Mark Cuban recently engaged in patent saber rattling, threatening to sue Wal-Mart for patent infringement as the company has come forth with announced plans to start selling a popular self balancing scooter. In a comment from Cuban on our earlier article on the topic (which he verified was actually him on his official Twitter account) he said he made no such threat. Cuban’s comment on IPWatchdog.com explained not that he would sue Wal-Mart, but that someone, such as a patent troll, would sue Wal-Mart for their plans to sell a version of a self balancing scooter.

Regardless of whether Cuban did or did not threaten to bring a patent infringement lawsuit against Wal-Mart, the comment Cuban left on Monday reiterates his long standing belief that software patents should not exist. Cuban explained that his position on software patents has not changed, nor will it change. Software patents should not be issued. He went so far as to say that he would open up the IP he owns that covers the self balancing scooter if software patents are banished. “Get rid of all software patents and I will HAPPILY put all the new IP we develop for the boards In the public domain,” Cuban wrote.

A dim view of software patents does not make Mark Cuban unique, but his latest foray into the patent debate does provide interesting insights into his arbitrary views on innovation. Like your technophobic grandfather, Cuban seems to believe that innovators are entitled to patent rights as long as the innovations are tangible. When those innovations manifest themselves in the form of intangible software the underlying innovation is for some reason no longer entitled to patent protection.

To highlight the matter let’s take a look at the patent to which Cuban owns an interest — U.S. Patent No. 8,738,278, titled Two-wheel, self-balancing vehicle with independently movable foot placement sections. The ‘278 patent has nine patent claims total, one of which is independent and the other eight of which either directly or indirectly depend on claim 1. Claim 1 covers the following invention:

A two-wheel, self-balancing vehicle device, comprising:

a first foot placement section and a second foot placement section that are coupled to one another and are independently movable with respect to one another;

a first wheel associated with the first foot placement section and a second wheel associated with the second foot placement section, the first and second wheels being spaced apart and substantially parallel to one another;

a first position sensor and a first drive motor configured to drive the first wheel, a second position sensor and a second drive motor configured to drive the second wheel; and

control logic that drives the first wheel toward self-balancing the first foot placement section in response to position data from the first sensor and that drives the second wheel toward self-balancing the second foot placement section in response to position data from the second foot placement section.

(emphasis added).

Those familiar with patent claims and software might be taken back by Cuban’s strong dislike of software patents when the patent he controls contains a “control logic” limitation. Such a limitation ordinarily smacks of software. Is it really possible that Mark Cuban thinks software patents shouldn’t exist but is at the same time comfortable with the ‘278 patent? While a lot of Cuban’s positions on patents seem explainable based on the philosophy that the problem is with patents owned by others, there is a bit more nuance at play here. Indeed, nuance that is rather illuminating.

The Detailed Description of the patent in question doesn’t spend much time discussing the structural implementation of the control logic, which will be problematic during any enforcement action or subsequent post grant review of this particular patent, but it does seem that the ‘278 envisions a hardware based control logic platform, not a software based control logic platform. The patent explains:

The control logic for translating position data to motor drive signals may be centralized or split between the two platform sections. For example, control logic 150 may be electrically connected to sensors 120,140 and to drive motors 117,137, electrical conduits connecting through the connecting shaft 170 between sensor 140, control logic 150, and drive motor 137.

Alternatively, a separate processor/control logic 151 may be provided in the second platform section 130. Logic 151, in this case, would be is connect directly to sensor 140 and drive motor 137 and generate drive signals to motor 137 (and wheel 135) based data from sensor 140.

Perhaps Mark Cuban is not guilty of hating software patents owned by others and loving software patents he controls, but the matter can’t end there. This type of hair splitting, self-serving, arbitrary view completely exposes the absurdity found with software patent hatred. Those who hate software patents, presumably including Mark Cuban, seem to have no problem when the processes are directed by hardware, but for some inexplicable reason when the processes are directed using software that which was a worthwhile, original innovation is transformed into something unpatentable, if not evil.

Surely Cuban has to realize that this self balancing scooter could accomplish the same exact functionality if the control logic were software based, right? Indeed, if Wal-Mart wanted to copy the self balancing scooter found in the ‘278 patent without any fear of patent infringement liability all they would have to do is implement the core functionality in a software solution, rather than a hardware solution. I wonder if Mark Cuban would feel the patent system failed if such a purposeful and intentional copy could be sold without rights obtained under the ‘278 patent? Of course, that is precisely the problem with glorifying a distinction without a difference. In this case the design choice can manifest either in hardware or in software, but that doesn’t change the reality that the invention in question is a self balancing scooter.

Can or should a design choice made with respect to the implementation of core processes matter in a patentability context? Of course not. Former USPTO David Kappos recently addressed this very issue in an interview we published here on IPWatchdog.com. In part 2 of our conversation Kappos explained just how artificial the distinction between hardware and software processes are:

What we’re really talking about is algorithms that actually may or may not be implemented in software. It’s actually common, and you’re seeing it now in the smartphone area. Back when I was an engineer we saw it in mainframe computers where you’d make an invention and frequently initially the software wasn’t fast enough to be able to run the algorithm. So the algorithm would first be built in silicon, really expensive, but you’d wind up then fabbing up chips to be special purpose chips to run the algorithm. And then later as the software got faster the underlying computer systems got faster you’d reimplement the same algorithm in software, same algorithm, same invention but just reimplement it in software and then even later after that when the ASIC density got good enough you’d reimplement yet again in an application-specific integrated circuit, an ASIC. And so you’d have a little bit of a hybrid, if you will, but more on the hardware side, it’s an IC. It’s again putting the algorithm in a chip. And so what you’d see by looking at that is that it made no sense to say that an algorithm was patentable if it was implemented in a hardware chip. But the same algorithm implemented in software was unpatentable. Just didn’t make sense to say that.

Microsoft’s Chief Patent Counsel, Micky Minhas, also brought up this point during an interview conducted earlier this year. In part 2 of my conversation with Minhas the discussion turned to design choices for implementing an innovation.

QUINN: … What many people not familiar with software don’t seem to understand is that whether an innovation is expressed in software or hardware is a design choice. But if it is designed in hardware we don’t have a patent eligibility issue, where if it is designed as a software solution there is a significant hurdle to patentability.

MINHAS: Yes. In the debate, we often hear people talk about what is the right level of protection for software patents. And I think what gets lost sometimes is that how a given company or any inventor decides to embody an invention, whether in a software product or to embody the invention in a hardware product, is often nothing more than a design choice. Whether an innovation is embodied in software or hardware feels like it should be irrelevant to whether or not it’s patentable. The law should be agnostic as to whether it’s embodied in software or hardware. We should let the debate be whether or not this invented concept is worthy of patent protection, whether it be on subject matter grounds or whether it be on 102 or 103 grounds. I don’t see that being discussed very often, but I think it should.

Minhas would go on to take issue with critics who sometimes claim that implementation choices are arbitrary themselves. “It’s optimized for whatever that product is.” Minhas explained. “The determination of whether or not that underlying compression algorithm is worthy of patent protection should be completely independent of whether it is implemented in hardware or software.”

There is no reason to be afraid of software. Similarly, there is no legitimate reason to create an arbitrary patentability distinction that exalts tangible processing at the expense of intangible processing. Such a distinction without a difference turns the focus away from whether there is an innovation present, which is antithetical to the very purpose of the patent system.

In the year 2015 there is something enormously out of touch with driving old fashion technical prejudice into an innovation discussion. Those who think hardware and software processing are meaningfully different are fooling themselves and standing in the way of innovative advances like so many previous generations of those who were afraid to technologically evolve.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 117 Comments comments.

  1. Mark cuban October 13, 2015 10:43 am

    You just can’t help yourself can you? You should try asking questions before you write

    You are imo clueless in so many parts of this article it’s laughable. And I’m not talking about your ridiculous attempt to suggest that I don’t know where designers can include software

    And why would you suggest that I am lying when I tell you I have no interest in suing Walmart ?

    Once again you could have asked me any number of questions to get it right. You had no interest in doing so

    That speaks volumes

  2. Anon October 13, 2015 10:51 am

    Show me a participant in a dialogue on the matter who is not willing to admit and incorporate the notion that design choice drives the equivalency of hardware, software (and yes, Mr. Heller, even firmware), and I will show you a person not willing to have an intellectually honest discussion.

    I have yet to see any true software that was not a manufacture by the hand of man that was not meant to be a machine component.

    Far too many people confuse the thought of software with software.

    Perhaps this is the notion that was recently being sussed out in a Federal Circuit case in which the judges were trying to separate between “an idea” and “an abstract idea.” The judges were attempting (rather unsuccessfully in one case) to have each attorney state some meaningful distinction between first what is defined by an idea and second what is an abstract idea. The unsuccessful attorney (Mr. Brian H. Pandya) could not make a distinction, and collapsed the two into a single definition.

    The judge candidly pointed out that the attorneys in the room were mere “ideas” as to the judge himself, the judge “knew” of their existence only in his own mind.

    Sadly, an honest discussion on this nuanced area is most difficult when agendas and philosophies are being pursued without an objective and reasoned understanding.

  3. Anon October 13, 2015 10:53 am

    Mr. Cuban,

    Respectfully, your own views on software vis a vis copyright and patent protection smack of your accusation against the blog writers here.

    To wit: “Once again you could have asked me any number of questions to get it right. You had no interest in doing so

    Instead, you have your anti-software mantra and nothing, no reason, no facts, no history, will get in your way.

    Yes indeed, volumes are spoken. Just not the volumes that you may want to realize.

  4. Curious October 13, 2015 11:30 am

    Mark and Gene:

    I mentioned this earlier, and I’ll mention it again. Gene has interviewed dozens of high-level people in this field. Instead of talking past one another, you two should engage in a real dialogue. I’m sure Mark can share his experiences has an entrepreneur and Gene can relate his experiences in helping entrepreneurs. Perhaps you two might find some common ground or better understand the other’s position.

  5. A Rational Person October 13, 2015 11:31 am

    Gene,

    Some more food for thought: From the description and drawings of the ‘278 patent, how does the device determine what a self-balancing position is? How would such a determination not be performed in software given that there are no physical structures or particular electronic circuits shown that make such a determination?

    How does control logic translate position data to motor drive signals without using software of some type, given that no circuitry is shown for accomplishing this function?

    If the IO Hawk uses software to perform any of the limitations of claim 1, which I would bet is likely to be true, wouldn’t this make Mr. Cuban one of the owners of an Patent Troll trying to stop software innovation by IO Hawk?

    Based on Mr. Cuban’s stated positions: If claims 1-9 never involve the use of software and the operation of IO Hawk’s control logic does involve the use of software, then, based on his stated positions on claiming software, Mr. Cuban, should advise Chen to drop his patent infringement suit against IO Hawk, because IO Hawk’s device would be outside the scope of claims 1-9.

    Alternatively, if Mr. Cuban believes that claims 1-9 could includes the use of software, then, based on his stated positions on claiming software, Mr. Cuban should be arguing that the ‘278 patent should not have been granted and advise Chen to drop his patent infringement suit for this reason.

    One other thing: The patent refers to a “bias mechanism” at col. 3, lines 59-62 and is claimed in claim 9, but no bias mechanism is shown in the drawings and no examples of a bias mechanism is provided in the ‘278 patent.

  6. David Stein October 13, 2015 11:45 am

    One other thing: The patent refers to a “bias mechanism” at col. 3, lines 59-62 and is claimed in claim 9, but no bias mechanism is shown in the drawings and no examples of a bias mechanism is provided in the ‘278 patent.

    That’s one of several problems with this patent that has nothing to do with the “control logic” part. Look again at the sole independent claim:

    (1) The foot placement sections are “coupled to one another and independently movable.”

    Okay… how exactly does that happen? Looking at the specification:

    Pivoting or rotating shaft arrangements are known in the art, and others may be used without deviating from the present invention as long as the foot placement sections may move independently.

    That seems an awful lot like “functionally claiming any known solution to the problem” – which the Electronic Frontier Foundation centrally criticizes as unfair.

    Cuban seems perfectly fine with hardware being claimed in a results-oriented manner – but we simply can’t allow that sort of thing with software, because… well, because Cuban says so.

    (2) For software, the EFF demands that specifications recite “working code” and “detailed notations explaining how it works.” I presume that a software patent claiming an invention with a “database (210)” coupled with a “user interface (212)” – asserting that computer scientists know how to assemble these components – would be a strong candidate for the Electronic Frontier Foundation’s “Stupid Software Patents.” Another example of this totally

    Meanwhile, for the feature of Cuban’s patent discussed above – making foot placement sections “coupled to one another and independently movable” – the specification basically recites: a “shaft (170)” and “flange brackets (165).” The details are omitted simply because they are “known in the art.”

    Yet another example of the discrepancy between the EFF’s strident demands for ultra-precise patents in software, and the wide tolerance for bad claim-drafting in most areas.

    (3) The claim recites “the first and second wheels being spaced apart.”

    But that sounds awfully similar to “electrodes spaced at a distance apart” – the core issue of “ambiguity” in Nautilus v. Biosig… which the Electronic Frontier Foundation harshly criticized in its amicus brief:

    “Spaced relationship” could mean a foot from the highway, or a yard, or a mile. The developer could guess at the meaning, but a wrong guess could render the entire investment in building the hotel a waste. Should the case be brought to court, different judges or juries could reasonably disagree on the meaning. Worse yet, when the easement owner sues the developer, the owner will have the benefit of hindsight in making his argument for interpreting the property claim, but the developer has no such benefit when choosing where to build the hotel. The cards are stacked against the developer, a deadweight loss for the hotel business and for the economy at large.

    Such ambiguous descriptions of the metes and bounds of real property would never be tolerated, but for years the Federal Circuit has tolerated equally ambiguous descriptions of the metes and bounds of patents. Indeed, the term “spaced relationship,” so clearly improper in the hypothetical example above, is the exact term held “definite” by that court in the present case.

    The Upshot: Cuban’s patent violates several of the central principles of the Electronic Frontier Foundation’s “patent reform” efforts. I propose that the Electronic Frontier Foundation highlight U.S. Patent No. 8,738,278 in its next “Stupid Patent of the Month” feature.

  7. Mr. V October 13, 2015 12:23 pm

    While I think Mark actually makes some good points, the “hindsight is 20/20” justification he employs lacks merit as it seems that he has failed to appreciate his current vantage point despite his extensive and robust business acumen. The rules an strategies of today’s game (on both the business and patent fronts) are far different from those of the 1980s when he was starting out and none of today’s perceived “problems” or “injustices” warrant the further erosion of our already weakened patent system.

    Nevertheless, like Curious, I too think it would be great if Gene and Mark could have a sit down rather than us picking apart all of the rhetoric; this would be a truly fantastic contribution to IPWatchdog.

  8. A Rational Person October 13, 2015 12:32 pm

    David Stein@6

    100% agree.

    Additional example: The wheels in each embodiment shown are driven by motorized hub assemblies. But no structures are shown as to how the motorized hub assemblies operate. Instead, the ‘278 patent just states that “Motorized hub assemblies are known in the art.” at col. 2, lines 66-67.

    In addition, motorized hub assemblies 117 and 137 (col. 2, lines 65-66) are also referred to as “motor 117,137” (col. 3, lines 9-17), so it is ambiguous exactly what an “motorized hub assembly” is in the ‘278 patent. A motor? A motor plus associated gearing and/or friction bearings used to drive the axle?

    If you do a quick Google search one the term “motorized hub assembly”, the term “hub assembly” appears to generally refer to the gearing and other parts that allow a motor to drive a hub/axle. What the ‘278 patent may have intended to refer to with the term “motorized hub assembly” was the device commonly referred to as a “wheel hub motor”, i.e., “an electric motor that is incorporated into the hub of a wheel and drives it directly.” (from Wikipedia).

    Yet more reasons the Electronic Frontier Foundation should highlight U.S. Patent No. 8,738,278 in its next “Stupid Patent of the Month” feature.

  9. Steve Brachmann October 13, 2015 1:02 pm

    @Curious at 4 and @Mr. V at 7 – Gene has reached out to Mark for an interview via Twitter. So that ball’s in Mark’s court at the moment, it seems. In any event, it’s very disingenuous of Mr. Cuban to indicate that he hasn’t been asked for his opinion on the matter. Again, he’s trying to discredit us with an outright lie. He’ll probably continue to do so.

  10. Paul Morinville October 13, 2015 1:14 pm

    “Get rid of all software patents and I will HAPPILY put all the new IP we develop for the boards In the public domain,” Cuban wrote.

    This is the key to his thinking. He’s got plenty of money to massively commercialize the boards and take an early stage market. He is not attempting to erode someone else’s market share, which is an important distinction. He is instead trying to capture the first mover advantage in a market he knows has legs as shown by Walmart’s willingness to put boards on their shelves.

    His game is speed to market. This is a marketing game not a technology game. It is the game he’s played in his former companies. He’s knows how to play it and he has the capital to win.

    Patents owned by someone else are his biggest threat to taking the market. If there is someone else out there with patents critical to the board, that other person may be able to get the capital they need to compete in the market thus thwarting, at least in part, Cuban plans. At minimum, this adds risk to his plan.

    Patents are the biggest threat to rich investors like Cuban, phone app companies like TMSoft, social media companies like Facebook, and consumer internet companies like Amazon, all of whom massively commercialize technologies invented by others. With software now over 50% of all patented inventions, none want software patents.

    Nobody wants an upstart inventor to have an asset capable of attracting capital becasue that is a threat to their business.

  11. David Stein October 13, 2015 1:44 pm

    @Paul: That explanation doesn’t really make sense in the context of this incident.

    Here, we have an invention that is a combination of a physical structure and an algorithm (maybe software, maybe hardware).

    The product needs both the physical device and the algorithm.

    The patent describes and claims the combination of the physical device and the algorithm.

    Cuban wants to produce a product that contains both the physical device and the algorithm.

    Cuban wants to stop Walmart from producing an infringing product that has both the physical device and the algorithm.

    The discrepancy arises when Cuban starts looking at each part in isolation: the physical device needs broad patent protection to prevent copying; yet, the algorithm is *not* deserving of patent protection and should be freely copyable.

    This distinction is not explainable from either a technical perspective – or from the business perspective that you describe. The product, as the inextricable combination of a physical device and an algorithm, cannot be *both* strongly protected by patent *and* freely copyable. It cannot be *both* the subject of valuable first-mover advantage *and* a bit of theoretical fluff that should be rapidly incorporated into many companies’ products.

    Rather, these distinctions exist only due to Cuban’s bizarre and illogical biases and predilections for various types of technology.

    And unfortunately, these biases also now exist throughout patent law – specifically because Cuban can use his money and fame to blast this bizarre philosophy out to the courts and the public, through corrupt advocacy groups like the EFF… while personally pursuing patents that violate all of the principles that the EFF espouses. And so we are saddled with endless rounds of “patent reform” founded upon technological nonsense.

    This incident has legs and speaks volumes. I can’t wait to write more about it.

  12. A Rational Person October 13, 2015 1:46 pm

    Paul@10

    Interestingly, Segway is suing Inventist, Cuban’s company for patent infringement based on US Patent No. 6,651,763, US Patent No. 7,023,330, US Patent No. 7,275,607, and US Patent No. 7,479,872.

    http://www.theverge.com/2015/9/15/9330361/segway-hoverboard-patent-hovertrax-lawsuit

    Having briefly reviewed the claims of the Segway patents, I would be very interested to see Segway state in detail why Segway believes Inventist’s Hovertrax product infringes any specific claim in any of these patents.

  13. David Stein October 13, 2015 1:57 pm

    As I see it, Cuban’s patent and efforts cannot be reconciled with the advocacy of the “Mark Cuban Chair to Eliminate Stupid Patents.”

    As I see it, Mark and the EFF have three options:

    (1) Admit that the patent violates the EFF’s extensive arguments about “bad patents,” and expressly abandon it in the interest of continued advocacy.

    (2) Admit that the EFF’s extensive arguments are naive and inconsistent with legitimate patent activities, and retract and rethink the entire platform.

    (3) Do nothing and stay the course – in which case, any time the EFF or Cuban post *anything at all* about “bad patents,” their comments are greeted with a wave of demands that they explain how it differs from Cuban’s patent. Complete loss of credibility until they break down and have to choose either (1) or (2).

    My money’s on (3). Shall we start a pool?

  14. Paul Morinville October 13, 2015 3:58 pm

    David @ 11. I doubt Cuban is technical enough to understand the distinction. This leaves me thinking that the business approach sums up how he thinks and why he does not want patents. I think similar thinking also applies to the rest of the Google lobby.

    In Cuban’s case, he has an enormous ego (some would probably call narcissistic personality disorder) which blinds him of a conflict that he does not understand.

    If it’s good for him, that’s all that matters.

  15. Gene Quinn October 13, 2015 3:59 pm

    Mark Cuban @ comment 1-

    Lots to address in your comment.

    First, you have the audacity to say that what I wrote is incorrect and laughable? You can laugh all you want, but what I wrote is 100% accurate. That you don’t understand patents or intellectual property is not my problem, and your lack of understanding certainly doesn’t make me wrong.

    Second, in another article thread you actually asked whether there is reverse engineering protection provided by copyrights. The answer is no. That you don’t understand such a simplistic topic on an issue where you are so opinionated is astonishing. Your opinions are based in fear and myth, which makes them worth nothing.

    Third, I’m sorry if you are offended when I implied in another thread that you were back tracking. As a commentator I am allowed to have opinions and I do. Your story about saying that WalMart would have to worry about other patent owners but not you strikes me as implausible.

    Fourth, I’d love to do an interview with you so we can discuss your dislike of software patents and why software innovators shouldn’t be entitled to patent protection. I provided my contact information via Twitter and to the best of my knowledge you haven’t reached out to me.

    I absolutely welcome the opportunity to speak with you on the record any time anywhere. I’m particularly interested in also discussing your investments in Vringo as they sued Google. For someone who hates software you sure have a lot of inconsistent opinions on the topic.

    -Gene

  16. Mark cuban October 13, 2015 4:08 pm

    DavidStein. The thing about algorithms and patents is that if you don’t patent it, it’s not disclosed.

    If it’s original, chances are it won’t be replicated. If by chance someone else figures out the algorithm on their own, it didn’t deserve a patent

    So we will keep our algorithms to ourself. If someone can do one on their own, more power to them.

    We can compete

    And let me make one other point. Don’t take as fact what is written in these articles.

    Neither of the articles has been fact checked

  17. step back October 13, 2015 4:14 pm

    Gene,

    It appears that Mark Cuban has never heard of a copyright “clean room”.

    Let me give a very simple example.

    Step 1: Find a bunch of programmers who have not been tainted by writing code for Segway and progeny.

    Step 2: Describe to them the raw “idea” of torquing a motor such that on average it moves the scooter forward but nonetheless keeps the foot stool angled flat or at a desired angle.

    Step 3: Let them author control code for making it so. It is not copied software but rather originally authored software and thus free of any copyright violations.

    So much for copyright protecting the work product of innovators in the self balancing hoverboard business.

    https://carousell.com/p/18267779/

  18. step back October 13, 2015 4:17 pm

    Mark Cuban @16

    Sorry. You are so wrong on this point.
    Once the product is out on the market place there is no way to stop people from figuring out how it works.

  19. David Stein October 13, 2015 4:18 pm

    @Paul: That may well be the case. And if it were just Cuban acting irresponsibly here, it wouldn’t be all that much of an issue.

    The much bigger and more offensive problem is the Electronic Frontier Foundation, which has several people employed full-time acting as Cuban’s mouthpiece – filing amicus briefs, lobbying congresspeople, pushing their agenda in academia, etc.

    It’s bad enough that the EFF’s views, like Cuban’s, are misinformed and inaccurate (such presenting arguments about a claim reciting the term “integer,” and refusing to acknowledge that the actual claim term at issue is integer multiple).

    It’s that these people are practitioners – they have extensive litigation experience (but not a single USPTO reg number among the lot of them). And by presenting themselves as experts, the EFF representatives propagate misinformation that is not only embarrassing, but dishonest and unethical.

    I expect the EFF’s ethical deficit to persist as… well, as option (3) above: continued pushing of their platform of patent reform – while establishing a “cone of silence” around the patent activities of the businessman who is not only funding their efforts, but for whom their entire group is named.

  20. David Stein October 13, 2015 4:31 pm

    So we will keep our algorithms to ourself. If someone can do one on their own, more power to them.

    (1) You do recognize that the “algorithm” is part of your claimed invention, right? Your patent claims a “control logic” that provides some specific results – and absolutely no discussion of how that functionality is achieved.

    Do you recognize that this is exactly the type of patent that your group, the Electronic Frontier Foundation, has spent several years lobbying Congress, the courts, and the USPTO to invalidate?

    Yet more material to present to the EFF – as in: “How can you reconcile your ‘patent reform’ agenda, with the actions and explicit statements that violate those very principles by the guy after which your group is named?”

    (2) Do you recognize that a fundamental principle of the patent system is that you only get patent coverage for technology that you disclose? – i.e., you cannot patent a device with a component that is claimed functionally… while also asserting trade-secret protection of that very functionality?

    This is considerably more offensive than most of the “stupid patents” that the EFF raises up for ridicule. In those patents, details are omitted because (a) the applicants didn’t believe that the specification required them (because ordinary computer scientists understand where to fill in the gaps), or (b) the applicants didn’t know how to do it. But actually asserting trade-secret protection? Of critical patent elements?

    Um… so there’s this thing called 37 CFR 1.56. Might want to read up on it. It’s maybe a little bit relevant here.

    Shouldn’t the patent be invalidated? Shouldn’t the courts and OED look into sanctioning the LREP for misconduct? And once again, if the EFF had an ethical backbone, it would be all over this case as a violation of patent law. But something tells me… option (3).

  21. Alex in Chicago October 13, 2015 4:59 pm

    I think, David Stein, your 1,2,3 approach to Mark Cuban and this patent is kind of silly. You are akin to a person who points at a country that wants peace, but continues to have an army (and uses it on occasion), or the person who ridicules a libertarian for drawing a Social Security check.

    One can both believe a system is flawed, and rationally optimize within a flawed system simultaneously. That is not hypocritical, unless Mr. Cuban’s failure to assert a patent actually changed the system. Patents are typically both swords and shields in our modern age. Its not like he is campaigning for higher taxes while not writing extra checks to the treasury.

  22. Mark Nowotarski October 13, 2015 5:54 pm

    FYI, the patent owner, Shane Chen, just filed a patent infringement lawsuit against Soibatian Corporation dba IO Hawk and dPA Smart Wheels. Case 2:15-cv-04562-JAK-JPR (Central District California) A copy of the complaint is here. https://drive.google.com/file/d/0B1KB3j_eVkNweWJyUWQ3TUhyTGM/view

  23. David Stein October 13, 2015 5:56 pm

    @Alex: That would be sensible if the “Mark Cuban Chair for the Elimination of Stupid Patents” limited its activities to lobbying for changes in the law.

    But the organization has a habit of holding up specific patents and patentees for ridicule as bad actors and miscreants who are abusing the patent system by filing patents that don’t comport with the EFF’s perception of reality.

    Like this:

    Stupid Patent of the Month: Attorney “Inventor” Games the System

    The worst patent trolls bring weak cases and use the cost of defending a lawsuit as leverage to force settlements. A company called Joao Bock Transaction Systems LLC (“JBTS”) has elevated this business model to an art form. The company is associated with patent attorney and prolific “inventor” Raymond Joao. Apparently not content with drafting patents on behalf of others, Joao began to file his own patents. His companies have since launched dozens of lawsuits against technology ranging from streaming video to financial transactions. Of course, if you talk to the people who actually pioneered real-world technology, they’ve never heard of Joao or his companies. From all indications, Joao is solely in business of filing paper patents and forming companies to sue.

    And this:

    We urge Penn State and all universities to be more responsible. Instead of selling patents that have little value except as litigation weapons, universities should focus on true technology transfer—partnering with others to bring new technologies into the world. And universities should end their opposition to patent reform.

    And this:

    All of Eclipse’s patents were both “invented” and prosecuted by a patent attorney named Scott Horstemeyer (who just so happens to have prosecuted Arrivalstar’s patents too). Patent applicants and their attorneys have an ethical obligation to disclose any information material to patentability. Despite this, from what we can tell from the Patent Office’s public access system PAIR, Horstemeyer did not disclose Judge Wu’s decision to the examiner during the prosecution of the ’334 patent, even though the decision invalidated claims in the patent family. While Horstemeyer has not made any genuine contribution to notification “technology,” he has shown advanced skill at gaming the patent system.

    Any bets on whether it will apply its principles consistently, and hold up the actions of its primary benefactor in a similar manner? ……… signs point to no.

  24. Gene Quinn October 13, 2015 6:07 pm

    Mark Nowotarski-

    Very interesting. We have Mark Cuban here saying that he is not going to sue Wal-Mart, but reports that Wal-Mart is going to sell the IO Hawk self balancing scooter, and now a patent infringement lawsuit brought by the inventor against IO Hawk.

    Mark Cuban-

    What hair are you splitting when you say that you have no intention of suing Wal-Mart? That doesn’t seem to apply to the vendor that Wal-Mart is reportedly considering.

    Is this just another misunderstanding? Are you just planning on turning the heat up on the supplier and not Wal-Mart themselves?

    Why not do an on the record interview where we talk all things patent? We can discuss your patent infringement intentions, the problem with patent trolls, why software shouldn’t be patented but hardware solutions should be patented, why you invested in Vringo when you otherwise seem to hate software patents, etc.

    -Gene

  25. ang\|_dude October 13, 2015 8:49 pm

    Mark Cuban wrote: “So we will keep our algorithms to ourself. ”

    So, you have chosen Trade Secrets over Patents ?

    Very good, Mr. Cuban !
    Indeed, well-justified business decision under current anti-patent circumstances.

    Now, you have to realize that a developer of software for general purpose PC does not have a luxury of trade secrets cause binary executable is available (and can be decompiled if it has anything truly valuable inside)

    Here we enter the world of USB Dongles (e.g, KeyLok) and other bizare things – those are the reason why many people prefer cracked versions of their favorite softwares to the licensed ones..

    Proceeding to embedded computing stuff like your scooter control code or whatever… you’d have to go with hardware-enabled code-encrypted microprocessors, or even better with ASICS – pure silicon, that is if you really want to keep the code to yourself – cause it will be stolen otherwise

    Now, how does THAT Promote the Progress ???

    The Founding Fathers were not stupid after all: they put the long-term prospect of this country as a whole ahead of short-term profits of wealthy individuals like yourself… (provided USPTO can do its job)

    Thus, the Patent System – the right to EXCLUDE

  26. West Coast Guy October 14, 2015 8:54 am

    Are you guys serious? A patent is a “software” patent because a claim claiming a device has a software component?

    When Mr. Cuban discusses his dislike for software patents, his claim drawn towards the device is not what he considers a software claim.

    Sorry, but the basis for your argument is comprised of straw man argument that attempts to equate a software element to a software patent. Stick to the issue that Mr. Cuban has — claims drawn towards software and not towards devices.

  27. Anon October 14, 2015 8:59 am

    While I respect Mr. Cuban a great deal, I have found his position on so called “software patents” perplexing. I personally thing he is wrong on this matter, and to my knowledge he has never made a clear distinction as to the method for deciding what is and is not a software patent. Doesn’t Mr. Cuban see the blurred lines? For example, in simplest terms one patent may have both a “software claim” and “hardware claim” in the same patent. What do we call this patent then?

    Now we can further see the blurred lines by peeling the onion a bit. I am sure some are aware of hardware description languages (HDL) like Verilog and VHDL. These are computer languages used to model control logic and were popularized in the 90’s. The HDLs can be used by a synthesis engine to synthesize a “soft” model into actual hardware gates which is then further transformed to the transistor level by another tool. HDLs and synthesis are how integrated circuits have been designed since the early 90’s. So what is an integrated circuit then? If HDL and logic synthesis was used, and it almost certainly is for nearly all digital design today, to realize an algorithm or any particular invention what is the IC? Is it a software implementation or hardware implementation? Well I think many electrical engineers that do this work will tell you it is both! Honestly I don’t see how anyone can make a distinction for a (digital) integrated circuit and determine if it is hardware or software because clearly it has this dual nature.

    In other examples of determining if an implementation is a software or hardware what about the chips that have both logic and an embedded processor? It’s very common to implement parts of an algorithm in software running on an embedded processor, and other parts in hard logic. What about FPGA implementations where on power up compiled code is loaded into the FPGA which configures the FPGA configurable logic blocks in order to execute an algorithm?

    Some have said that Mr. Cuban uses the duck test (if it walks, talks, and quacks like a duck …) to determine what is or is not a software patent. But after this latest incident with Walmart it’s starting to become clear that perhaps the determination of what constitutes a software patent for Mr. Cuban is when it involves his business interest.

  28. REALissue October 14, 2015 9:18 am

    C’mon Mark. Just admit you learned much about the issue and you are ready to reallocate your resources and use your very loud voice to help the USPTO figure out how to issue a quality patent. This is the REAL issue. IP professionals, Mark Cuban fans, and heck everybody else will respect you for it.

  29. Warren Tuttle October 14, 2015 9:34 am

    It’s very difficult to watch extraordinarily wealthy entities like Yiu Mark, and google, talk about dismantling the patent system. This is also what the current, overreaching, “reform” efforts on Capital Hill would do if enacted and what this back and forth I presume is really all about. I really respect what you have accomplished Mark in your highly successful business career, maseltof, but would love to have you on the independent inventor side of this tremendously critical issue. With all you’ve done, all the resources and wealth you’ve accumulated, could you start thinking about giving something back to the future Mark Cuban aspires of this country who want to climb up into the tree fort that google, who started with a single patent btw, wants to pull the ladder up from. No one is looking for a handout, only initial help to get their innovation off the ground and to profit fairly from their efforts without the well established taking it away from them. Collective movements are fine, but they often favor the very few at the top while clueless followers soon firm a mass of mediocrity. That’s why we believe in capitalism. A strong patent system has, since our country’s founding, allowed ambitious individuals to pursue excellence and profit. Once folks make it, raise capital and earn enough profit to pass down for generations to come, it’s a lot easier to then turn around and say “I’ll give my patent back”. But how about on the way up when the risk was truly palpable and the funding bleak. Remember those days? And what type of country and economic incentive do we want to pass down to the next generation of aspiring innovators. The current proposed legislation on Capitol Hill, combined with recent trends and IP court rulings, will erode innovation in this country until the only participants left in the game some day will be large entities using their previously amassed capital. We already know what that will mean someday…can anyone say General Motors? Mark, you have a great reputation as both an individual and independent maverick. How can we get you to really listen to, and appreciate, the independent inventor side of this ongoing battle? Warren Tuttle, United Inventors Association (501c3 non-profit dedicated to independent inventor education and access to market)

  30. A Rational Person October 14, 2015 10:17 am

    West Coast Guy@25

    What if the claim read as follows:

    1. A device comprising control logic that drives a first wheel of a self-balancing vehicle toward self-balancing a first foot placement section in response to position data from a first sensor and that drives a second wheel of the self-balancing vehicle toward self-balancing a second foot placement section in response to position data from a second foot placement section.

    2. The device of claim 1, wherein the control logic is implemented by software executed by a processor.

    Is claim 1 a device claim or a software claim? Is claim 2 a device claim or a software claim?

    What does it mean to be “directed” to a device as opposed to software?

    Also, in claim 1 of the ‘278 patent and claim 1 I have provided above, I’m pretty sure in the actual device that it’s a motor that drives the first wheel and a motor that drives the second wheel and that the control logic sends signals to the motor(s) to drive the wheels. The control logic also probably heavily relies on an algorithms, implemented by software or hardwired into a processor or electronic circuit to determine how the motor(s) should be driven based on the data received from the sensors.

    Also, since spaced apart wheels are known, position sensors are known and drive motors are known. The independently movable foot platforms might be novel, but I doubt it.

    So the control system, that may be heavily reliant on software, is a major part of the claimed invention.

  31. Gene Quinn October 14, 2015 10:36 am

    ang\|_dude

    Your comments keep going to spam. Just rescued another. I suspect it has to do with the name you are using with the special characters. I see that kind of use of special characters in a lot of spam comments. I do periodically go through the spam folder to rescue comments, and do when someone alerts me via e-mail to a problem, but just wanted to give you a heads up.

    -Gene

  32. Anon October 14, 2015 11:41 am

    West Coast Guy,

    Your view is directly contradicted by the Supreme Court in the Alice case.

  33. David Stein October 14, 2015 11:45 am

    > Are you guys serious? A patent is a “software” patent because a claim claiming a device has a software component? When Mr. Cuban discusses his dislike for software patents, his claim drawn towards the device is not what he considers a software claim.

    Let’s look at that device:

    * Two wheels, “spaced apart” and positioned in parallel.

    * Two wheel motors, each driving a wheel and with a sensor to sense its position (aka: a servo).

    * Two places to stand that are attached, but move independently.

    What’s novel or non-obvious about any of that? Is any of that even interesting? How is any of that “self-balancing?”

    The invention here is the “control logic.” The vehicle to which it is attached is completely conventional.

    And what comprises that “control logic?” What is the “control logic” – how, logically, does it provide the self-balancing result? The specification is silent… because, according to Mark Cuban, the details have been intentionally withheld as a trade secret.

  34. Night Writer October 14, 2015 11:53 am

    @33 David Stein,

    I agree and, in reality, almost any device has an equivalent that is input/output devices and A/D converters with software.

  35. A Rational Person October 14, 2015 11:57 am

    @33 David Stein,

    Well put and exactly what I was trying to get at in my previous post.

  36. West Coast Guy October 14, 2015 12:29 pm

    Anon,

    You state: “[My] view is directly contradicted by the Supreme Court in the Alice case.”

    How is that? Under Alice, patents are invalid because the claims were drawn to an abstract idea, and implementing those claims on a computer was not enough to transform that idea into patentable subject matter.

    Question: Where in the device claim at issue is the abstract issue? Where is a method claim claiming abstract idea? Alice has no bearing with the device claim at issue.

  37. West Coast Guy October 14, 2015 12:41 pm

    Mr. Stein,

    You state: “The specification is silent… because, according to Mark Cuban, the details have been intentionally withheld as a trade secret.”

    If the [software] details are intentionally withheld, how is this being labeled a “software” patent or “software” claim? A software patent sans software?

    Because the heart of the invention is software, it is falls under the rubric of being a “software patent”?

    If anything, I agree with you that the claim should not have been a first-action allowance because it sure seems like at least one 102/103 rejection exists.

    I disagree with the examiner and my issue, if any, is with the examiner. But, for me, this is not a “software” patent which Mr. Cuban rallies against.

  38. angry dude October 14, 2015 1:05 pm

    David Stein is correct:

    Patent specification is not enabled – nobody can reproduce even the minimal functionality of the “invention” from this patent

    In other words, Mr. Cuban wants to have the cake and eat it too – have BOTH patent and trade secret protection for the very same thing

    But patent is legally invalid if it’s not sufficiently enabled

  39. tifoso October 14, 2015 1:56 pm

    So, how did this application pass to issue if so many here can see its blatant shortcomings? Someone at the PTO needs to explain. Not claiming conspiracy but what is it about this application that gave it the easy road through? Are we missing something we should be doing?

  40. David Stein October 14, 2015 2:26 pm

    > If the [software] details are intentionally withheld, how is this being labeled a “software” patent or “software” claim? A software patent sans software?

    (1) You’ve hit on a key point in this entire “software patent” debate, which is:

    Logically claimed inventions are equivalently implemented as hardware and software.

    This is a fundamental principle of the entire field of computer science, and was first demonstrated in the 1930’s as the Turing-Church Thesis (yes, that Turing).

    It is also a ubiquitous concept in the computing industry. Codecs that used to be sold as specific circuit boards are now implemented as software modules. Software emulation of old hardware is a thriving market. Specialized software functions are regularly offloaded onto specialty hardware, such as FPGAs. Such variations are often design choices, or matters of convenience and practicality – not technical merit.

    Of course, many of us have been asserting this fundamental concept in the entire “software patent” debate, even long preceding Bilski. Gene Quinn has discussed it extensively – including in this very post! – and so has David Kappos, including the interview posted two weeks ago. But anti-software-patent advocates, including Cuban, refuse to be deterred by this fundamental truth; they simply beat the “patent reform” drum harder…

    (2) How is this a software patent? The way that the Mark Cuban Chair to Eliminate Stupid Patents (i.e., the Electronic Frontier Foundation) uses the term “software patent” is: If any component is claimed in a way that could be software, it’s a “software patent” that should invoke higher standards and blahblahblah.

  41. nat scientist October 14, 2015 3:45 pm

    It’s patently naive to suppose that
    Media beasts like Messers Cuban-Trump-Jobs, being core narcissist bullies, surrounded by myrmidons, will never stoop to an honest, open debate without the ability to turn the amps up to 11 in body language, tone of voice, unsupportable hyperbole and narrative destruction when reversion to the mean is coming up in the windshields of their private jet mentalities. They make their own world and critics can’t live in it.

  42. Mark Nowotarski October 14, 2015 4:43 pm

    “Someone at the PTO needs to explain. ”

    Here are the examiner’s reasons for allowance.

    Independent claim 1 is allowable over aIl prior art cited. The novelty of the daims lies in the unique and nonobvious two wheel vehicle configured with control logic that drives the first wheel toward self-balancing the first foot placement section in response to position data from a first sensor and that drives the second wheel toward self-balancing the second foot placement section in response to position data from the second foot placement section….The closest prior art was Ishii (US 2008/0147281) and Schreuder (US 2004/0262871).

  43. Mark Nowotarski October 14, 2015 4:44 pm

    By the way, it was allowed on the first office action.

  44. Jodi October 14, 2015 4:49 pm

    Mr. Cuban stated:

    “The thing about algorithms and patents is that if you don’t patent it, it’s not disclosed. If it’s original, chances are it won’t be replicated. If by chance someone else figures out the algorithm on their own, it didn’t deserve a patent”

    If some entity breaks into your network and steals the algorithm then it can be easily replicated. Without patents, the game becomes determining the algorithm and then finding the cheapest source to manufacture the replication (likely offshore). Determining the algorithm is not has hard as you make it out to sound – if the implementation of the algorithm (hardware or software) is physically available then it can be reverse-engineered, if the implementation of the algorithm is not available then hackers can be hired to obtain it. While both may be highly illegal here, foreign countries may look the other way if one of their entities c
    opies and replicates a U.S. innovation and profits from it (motivation: the copier will either pay taxes or produce jobs).

    Not only do patents provide public disclosure of the algorithms for others to stand on the shoulders of giants and build upon, but patents also provide legal recourse in the event of algorithm theft.

  45. A Rational Person October 14, 2015 5:48 pm

    angry dude @38,

    In addition to the other enablement issues, the ‘278 patent appearts to have failed to mention some key components use to make the ‘278 patent’s device self-balancing: an accelerometer for each wheel.

    http://www.consumerreports.org/cro/news/2015/01/hovertrax/index.htm

    http://www.gizmag.com/hovertrax-urban-mobility/27368/

    http://www.technologytell.com/gadgets/120172/hovertrax-glide-with-gyro-enabled-electric-transporter/

  46. A Rational Person October 14, 2015 5:56 pm

    David Stein@40,

    Further to your points, Wikipedia provides the following definition of “control logic”:

    “Control logic is a key part of a software [computer program. | program] that controls the operations of the program. The control logic responds to commands from the user, and it also acts on its own to perform automated tasks that have been structured into the program.”

    Therefore, given that term “control logic” commonly refers to software and there is no specific indication in the ‘278 patent that “control logic” does not refer to software, claim 1 must be assumed to encompass the use of a software program to control the operation of the claimed device.

  47. Jodi October 14, 2015 8:34 pm

    Further to my point above, it is naive to think that guarding secret an algorithm will succeed in today’s world. Nothing is stopping a Chinese entity to obtaining your secret algorithm. There are myriad of ways – purchase one of your items and reverse-engineer it, or hack into your network and steal it. American complaints to Beijing will fall on deaf ears – especially when the Chinese entity is bringing in revenues, employing local workers, and paying taxes.

    But given the fact that it doesn’t look like this patent would survive 5 minutes in a review, who needs to reverse-engineer or hack – likely it’s manufactured in China anyways and they could either simply relabel it or sell it off to another entity.

  48. Jodi October 14, 2015 8:43 pm

    West Coast Guy: if Cuban does NOT believe this is a software patent then why would he say “Get rid of all software patents and I will HAPPILY put all the new IP we develop for the boards In the public domain”?

  49. Mark cuban October 14, 2015 8:55 pm

    Some of the logic is crazy. If someone breaks in? Turn to the legal system for partents, not the break in

    But Gene oh Gene. Look at the date of the IOHAWk filing.

    And Mr Stein. As far as the EFF, I obviously agree with them . The number of times I have asked them or told them to write aBout a topic, person, place or thing

    ZERO

    I think I have had maybe 3 interactions other than them asking for more money over the years

    I don’t need to dictate anything. The material is plenty

    And of course today we had another victory for the trolls over apple with WARF

    An instruction set from 1998. I’m sure apple search for every potential option and stole the idea from the inventor and they waited more than a decade so it would appear it wasn’t willful, right ?

    Justice was served everyone, right ?

  50. mark cuban October 14, 2015 9:00 pm

    But after all this. I will ask the EFF to do own thing. To lobby that patent laws be changed so that the total investment into creating the invention is disclosed and auditable.

    Even inventors have to keep books right ? Or receipts ?

    If they can afford to oay the filing fee they can afford to document and disclose their costs

    More power to the inventor who brainstormed and came up with an idea at no cost. But at least we will be able to determine just how much time and expense went into each invention

    If you disclose the invention, why not the economics ?

    I’m curious what the response will be

  51. David Stein October 14, 2015 9:51 pm

    > As far as the EFF, I obviously agree with them. The number of times I have asked them or told them to write aBout a topic, person, place or thing: ZERO

    That’s not the issue.

    The issue is that the types of problems that the EFF highlights as critical problems with patent law – and the deficiencies of patents that the EFF highlights in its “Stupid Patents” segment – directly apply to your patent.

    If you “agree with the EFF,” then you are admitting to abusing the patent system with the patent at issue here.

    > And of course today we had another victory for the trolls over apple with WARF

    The Wisconsin Area Research Foundation is a troll?!

    Um… you’re an investor, right? I would guess that you understand how technology transfer works – and would be familiar with one of the most successful applied-research foundations in the past century. I would also presume that you know that the term “patent troll” doesn’t just mean “anyone who uses patents in a way that I don’t like.”

    WARF has been developing and licensing actual products for ninety years. It receives $1.1 billion in annual federal research funding, which it uses to develop a vast amount of valuable technology – as just some examples:

    An influenza vaccine

    A pneumonia test kit

    A biofuel production technique

    An optical tissue spectroscopy device

    A cancer, obesity, and immune disorder drug

    A cholesterol-lowering drug

    WARF is also “working with approximately 60 active startups whose business markets include biotech, clean technology, high-tech, medical devices, research tools, stem cells and therapeutics,” and “currently holds equity in more than 30 of these companies.” (source)

    Calling WARF a patent troll, just because you don’t like how it used one of its patents, is… just… wow.

  52. Gene Quinn October 14, 2015 10:05 pm

    Mark-

    I’m enjoying this back and forth, but what about doing a sit down with me where we can really dig into the issues?

    I don’t know whether you would have interest, but there is an event in NY in December called IP Dealmakers. Serious money people in the IP industry, some in favor of patents, some less so, but last year it was an A list crowd. What about doing us doing a panel at the event? I think I can swing it with the event planners if you are up for it.

    -Gene

  53. Jodi October 14, 2015 10:19 pm

    Mr. Cuban,

    You cannot turn to the legal system for preventing a foreign entity from breaking in – EVERYTHING is connected to the Internet and therefore remotely accessible. All of your secret algorithms are available. But don’t believe me, go ask a security expert – or better yet – get them to 100% guarantee that you won’t suffer theft or a breach and watch them backpedal.

    So yes, my logic is that a strong patent system does provide a recourse against a foreign entity copying your algorithms – it is your logic of relying on keeping things secret which is crazy logic.

  54. angry dude October 14, 2015 10:20 pm

    Mark Cuban wrote:

    “To lobby that patent laws be changed so that the total investment into creating the invention is disclosed and auditable.” ???????

    This is simply outrageous !

    Is this real Mark Cuban or some stupid troll out there ?

    I just can’t believe that real Mark Cuban (the guy who sold his bs company with negligible revenues to Yahoo for $ zillions at the height of dotcom boom) is posting this kind of message to real inventors out there.

    Do you also want to know what I eat for breakfast and lunch too, Mr Cuban ?

    35 U.S.C. 103(a) “patentability shall not be negatived by the manner in which the invention was made.”

  55. Mark Nowotarski October 14, 2015 10:38 pm

    An instruction set from 1998. 1996 actually. That’s when patent 5781752 was filed.
    I’m sure apple search for every potential option and stole the idea from the inventor… Infringing a patent isn’t “stealing an idea”. It’s more like squatting on someone else’s property.
    …and they waited more than a decade so it would appear it wasn’t willful, right ? We don’t know yet. The next trial will be for damages. The trial after that will be for willfullness. http://www.reuters.com/article/2015/10/13/us-apple-wisconsin-patent-idUSKCN0S72T320151013
    Justice was served everyone, right ? So far. Both sides were adequately represented. A jury reached its verdict. What could be more just? Besides, this isn’t about justice, its about pricing. Apple and the University of Wisconsin are engaged in a price negotiation for a license fee so that Apple can continue to use the technology the University of Wisconsin invented. The successive trial outcomes will remove uncertainty and help each side come closer together on a final settlement.

  56. Jodi October 14, 2015 10:41 pm

    Mr. Cuban,

    Re: Apple and WARF – I suggest WARF’s 5,781,752 patent is much more of a hardware patent than your patent with “control logic” in software:


    1. In a processor capable of executing program instructions in an execution order differing from their program order, the processor further having a data speculation circuit for detecting data dependence between instructions and detecting a mis-speculation where a data consuming instruction dependent for its data on a data producing instruction of earlier program order, is in fact executed before the data producing instruction, a data speculation decision circuit comprising:
    a) a predictor receiving a mis-speculation indication from the data speculation circuit to produce a prediction associated with the particular data consuming instruction and based on the mis-speculation indication; and
    b) a prediction threshold detector preventing data speculation for instructions having a prediction within a predetermined range.

    Ironic if the money you invested will be for naught directly because of all of the weakening of the patent system the past decade.

  57. Mark Nowotarski October 14, 2015 10:41 pm

    …invented and made public.

  58. Mark Nowotarski October 14, 2015 10:50 pm

    If you disclose the invention, why not the economics ? It’s already done. 80% of the patents filed in the US are to large entities (+500 employees). If they are publicly traded, you can just look up their R&D spending in their annual reports.

  59. Mark Cuban October 14, 2015 11:19 pm

    http://www.wsj.com/articles/regulatory-hardball-about-software-1444776652

    and for the record, I dont own the patent for the hovertrax.

    no one ever bother to asked, and it was like a game for me to see if any of you ever would. I work with the patent owner. Nor do i own any interest in Inventist.

    And as far as the WARF patent. THey may work with startups today, but they are the definition of a troll.

    And it is just not humanly or technologically possible for a technology company to consider every possible integration of hardware and software and then find every possible relevant patent

    Its impossible.

    The hover boards are a perfect example. We thought we had covered every possible patent that could be asserted against the board. We searched. I may hate software patents, but i respect IP rights. So we searched and searched.

    I felt comfortable that we had it right.

    I was wrong. People come out of the woodworks.

    So when i made the nightmare comment about walmart, its because Im not going to warn them about all the trolls. They will find out for themselves. It wont be fun. It will be a night mare

    and to your question of sitting down Gene. I dont claim to be a patent expert. What i know are the experiences i have had as an investor, entrepreneur and someone who has created a lot of IP as well.

    The risk of getting sued for patent infringement, despite all the best efforts of any given company to do all they possibly can to respect any and every relevant patent is greater than the risk of the company failing outright in most of my technology companies

    thats scary. Thats wrong. thats why i have the EFF chair. Thats why despite all the “protect the inventor” comments, I will support getting rid of all software patents.

    One patent troll even if they are not one of the worst, can negatively impact hundreds of not thousands of company who had no intention of violating any patents. had no idea the patent existed. Didnt use the information from the patent. Came up with the idea .process. software completely independently.

    Common sense says, if a patent owner sues more than 10 companies for violating their patent, but those companies had never heard of the patent, or ever knew that the patent existed, then by definition that patent is obvious.

    If you want a way to invalidate a patent. Find 10 people who got sued despite never knowing the patent existed.

    m

  60. patent leather October 14, 2015 11:21 pm

    Mr. Cuban,

    You’ve been advocating abolishing all software patents. Do you really think taking away people’s property is acceptable? Property that inventors and companies have spent a lot of money on and worked hard for? In any case, your goal has (at least) one problem, and it is this document: http://www.archives.gov/exhibits/charters/constitution_transcript.html
    Maybe you should read it sometime.

  61. Jodi October 14, 2015 11:39 pm

    Mr. Cuban naively said:

    “An instruction set from 1998. I’m sure apple search for every potential option and stole the idea from the inventor and they waited more than a decade so it would appear it wasn’t willful, right ?”

    The following sub-thread on today’s Hacker News provides some depth into why this patent seems it was ground breaking: https://news.ycombinator.com/item?id=10386390


    The patent in question pertains to an optimization of what these days you’d call “memory disambiguation.” In a processor executing instructions out of order, data dependencies can be known or ambiguous. A known data dependency is, for example, summing the results of two previous instructions that themselves each compute the product of two values. An ambiguous data dependency is usually a memory read after a memory write. The processor usually does not know the address of the store until it executes the store. So it can’t tell whether a subsequent load must wait behind the store (if it reads from the same address), or can safely be moved ahead of it (if it reads from a different address).

    If you have the appropriate machinery, you can speculatively execute that later load instruction. But you need some mechanism to ensure that if you guess wrong–that subsequent load really does read from the same address as the earlier store–you can roll back the pipeline and re execute things in the correct order.

    But flushing that work and replaying is slow. If you’ve got a dependent store-load pair, you want to avoid the situation where misspeculation causes you to have to flush and reply every time. The insight of the patent is that these dependent store-load pairs have temporal locality. Using a small table, you can avoid most misspeculations by tracking these pairs in the table and not speculating the subsequent load if you get a table hit. That specific use of a prediction table is what is claimed by the patent.

    and then scroll down to where he points out “An early paper by the inventor on the technique is cited over 300+ in Google Scholar, including by Hennessy & Patterson.”

    So, yes, 300+ citations does indicate something – whether willful or whether Apple could/should have spent a little bit of searching to discover it (even if only not to re-invent the wheel).

  62. Paul Morinville October 14, 2015 11:48 pm

    Gene @ 52. Cuban is a marketing guy. He knows nothing of the economics of patents – how it helps inventors capitalize companies, how the secondary market for patent assets works, or how it drives capital to new technology companies creating most of our new jobs. He’s a patent dolt.

    The only thing he knows about patents is that patents threaten his first-to-market strategies of building companies on other people’s inventions by dumping lots of his money on marketing, which is his sole, yet formidable, expertise.

    He’s a pretender. He’ll never take an interview. It would expose how little he understands. That of course would be bad for his brand, so his handlers will never allow it.

  63. David Stein October 15, 2015 12:03 am

    I may hate software patents, but i respect IP rights.

    You own a software patent.

  64. angry dude October 15, 2015 12:07 am

    Jodi ,

    I don’t know about your specific background but you are a bit naive

    You CAN protect your code if you REALLY want to, but at some expense..

    E.g. ordinary binary executable code for general purpose PC is doomed to be stolen, regardless of software-based protection licensing scheme you use
    It’s more secure with USB dongles – but those are a major hassle to users and the reason why some users prefer illegal cracked versions of their favorite software to legal ones – much easier to install and use

    But Mr. Cuban’s patent is about embedded device.
    Those can be protected much better:

    http://www.embedded.com/electronics-products/electronic-product-reviews/safety-and-security/4216917/TI-raises-security-on-embedded-processors-

    Even better is to make a customized ASIC – it’ll cost 10s of millions to develop and produce but Mr Cuban can certainly afford this

    This is all good… except for the fact that Mr. Cuban wants to hide his (not really HIS) algorithm from humanity, but at the same time he wants to prevent other people from creating competing algos because Mr. Cuban has a patent on any possible implementation of self-balancing algo when used with the hardware disclosed in his patent
    Patent abuse – that’s all it is

  65. David Stein October 15, 2015 12:29 am

    One last misstatement to pierce, and then I think I’m done here:

    Common sense says, if a patent owner sues more than 10 companies for violating their patent, but those companies had never heard of the patent, or ever knew that the patent existed, then by definition that patent is obvious.

    You do not understand that the disclosure protected by filing a patent is not just the patent disclosure.

    The purpose is to allow the patentee to publicly disclose the invention broadly: at conferences, in academic and technical journals, in sales literature and at trade shows and on television. The patentee can publicly disclose the invention in precise and complete detail, without anyone copying it, because of the patent.

    My point is that company (X) may know of company (Y)’s patented technology – because the entire industry knows about company (Y)’s technology, because it has been discussed at length in public, thanks to company (Y)’s public disclosure of the technology. And that can occur even if company (X) doesn’t know about the patent.

    Even if you don’t appreciate the connection, you appear to understand the tradeoff, because you kept the details of your own algorithm as a trade secret.

    And you’ve admitted that you patented that same invention while withholding those same details. And because you can’t do that, your patent is now invalid. You have wasted your money and lost your patent rights. Game Over.

    Your patent counsel should have told you about that, or the EFF should have told you that. If they didn’t, you should sue them for malpractice; and if they cooperated with this scheme, they should be sanctioned by the patent office under Rule 56.

  66. Jodi October 15, 2015 12:32 am

    angry dude,

    Yes you’re right – you do not know about my specific background.

    Whether it’s USB dongles, custom ASICs, or embedded devices – almost anything that one can get their physical hands on is able to be opened and the data, circuits, whatever it contains be extracted (some are harder or more costly than others). Once extracted there are a myriad of tools one can use to make sense of it all.

    So, no, I am not the one who is naive.

    But the bigger point is that hiding or obscuring any algorithm will only go so far. Given enough motivation (e.g. $money), the algorithm can be uncovered. (By the way, don’t start thinking the Cloud is much better). That is why I suggest something like patents may provide better protection.

  67. angry dude October 15, 2015 12:42 am

    2Jodi:

    “That is why I suggest something like patents may provide better protection”

    In an ideal world they do 🙂

  68. A Rational Person October 15, 2015 2:19 am

    Angry Dude@63

    “This is all good… except for the fact that Mr. Cuban wants to hide his (not really HIS) algorithm from humanity, but at the same time he wants to prevent other people from creating competing algos because Mr. Cuban has a patent on any possible implementation of self-balancing algo when used with the hardware disclosed in his patent Patent abuse – that’s all it is”

    Actually, given the following definition of “patent troll” from Wikipedia:

    “In pejorative usage, a patent troll is a person or company that attempts to enforce patent rights against accused infringers far beyond the patent’s actual value or contribution to the prior art.”

    The actions you have described would fit this definition of a Patent Troll.

  69. A Rational Person October 15, 2015 2:45 am

    Mr. Cuban,

    “Common sense says, if a patent owner sues more than 10 companies for violating their patent, but those companies had never heard of the patent, or ever knew that the patent existed, then by definition that patent is obvious.”

    Sorry, not even close to the definition of term “obvious” with respect to patentable subject matter. The U.S. Patent Laws for 63 years now have had quite a different definition of the term “obvious” from the definition you propose. As stated in Title 35, Section 103 of the United States Code:

    35 U.S. Code § 103 – Conditions for patentability; non-obvious subject matter

    A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

    Similar definitions of what makes an invention “obvious” exist in the patent laws of just about every major industrialized country.

    I also fail to see any reason to reward companies that choose to be willfully ignorant of patents in their technological areas. Patents are public documents and their disclosures and claims are readily searchable through several sources including the U.S. Patent and Trademark Office, Freepatentsonline, Google, etc.

  70. Mark Nowotarski October 15, 2015 6:35 am

    And it is just not humanly or technologically possible for a technology company to consider every possible integration of hardware and software and then find every possible relevant patent

    I agree. Maybe, after 179 years, it’s time to reinvent the patent.

  71. A Rational Person October 15, 2015 8:48 am

    Mark Nowartarski@69

    Do you have any evidence that the price charged by search services and patent law firms for freedom to operate/clearance searches for software products having become prohibitively expensive?

  72. Night Writer October 15, 2015 9:31 am

    I work with big corporations where patents are integrated into their work. I work with engineers all the time that work hard to try to come up with improvements and completely new products every day. They work hard to get something that is on point and patent worthy. The VPs advocate for pumping more money into R&D for more patents. The patents enable the engineers to move to other jobs and disclose what they have done.

    I think that the difference between 1983 and now is that in 1983 most of what was out there that we built off of was done by government research and not private research. I built a communication program where I went to the library and researched how satellites communicated and then replicated it for PCs.

    I think a lot of the people that are complaining about patents should –if they care about being ethical–where did that invention come from?

    I do clearance for companies. I am not convinced it is that hard. And, I think with more automation that clearance could be mainly automated. What I find is that an entrepreneur “comes up” with some idea and then thinks it is theirs when in reality they took it from someone else and just forgot.

    As an example, I used to be a product manager. I remember one engineer put a screen on a smart phone (this was back in the mid-1990’s) that was just like Windows. I said to him it was a good design and that it would be good because everyone already knew how to use Windows. He looked at me and said, “what?” He had taken the design without even realizing he had copied.

    Also, anyone that ever had done this for real knows that hindsight is incredibly powerful. If you ever really competed with other companies in the product space, you have these moments when you see their product and you say, “OMG! Why didn’t I think of that.” Hindsight makes everything easy.

  73. West Coast Guy October 15, 2015 10:49 am

    Mr. Cuban,

    You do NOT own a software patent.

  74. West Coast Guy October 15, 2015 10:52 am

    Mr. Cuban,

    Mr. Cuban,

    Your statement:

    “I may hate software patents, but i respect IP rights.”

    Despite what others suggest, you’re statement is not contradictory because you do not own a software patent.

  75. Gene Quinn October 15, 2015 12:31 pm

    Mark Cuban-

    First, perhaps I’m missing it but I don’t see where you’ve taken me up on an interview, debate or panel discussion. Is the great, extremely successful and mega rich Mark Cuban afraid to talk to me in a forum where we could actually push pass the rhetoric and get to something real at the heart of this important matter?

    Second, I don’t think anyone here is defending patent trolls. I know I am not defending patent trolls. Patent trolls are a drain on the economy and a tax on legitimate businesses. The problem, however, is in the definition of a patent troll. If you are getting sued the owner of the patent being used to sue you (or threaten you) is almost always believed to be a patent troll. That definition of a patent troll is as unhelpful as it is wrong. Being a patent troll has to have at least something to do with nefarious, improper or over reaching conduct. Litigation abuse or fraud, for example.

    Third, do you actually believe that WARF is a patent troll? I know there is the belief in the infringer lobby that universities and other innovators are patent trolls, but I’d love for you to explain how someone who innovates as a business model is a patent troll. I’m not shocked at your view of software patents, but as one of the most successful businessmen in America I’m a little surprised that you so casually disregard the importance of an R&D model.

    We can go around and around if you like, with you hiding the ball and not wanting to actually get to the heart of the matter, but with you using the term troll it seems appropriate for you to give us your definition. There is no industry accepted definition, so what is a troll to Mark Cuban? I personally see no legitimate way anyone could ever consider WARF a patent troll, so I’m very interested to hear what hair you are splitting this time.

    -Gene

  76. Mark Nowotarski October 15, 2015 2:18 pm

    A Rational Person @70

    I’m not quite sure what you are asking. Yes, clearance searches are an important tool for controlling the risk of infringing another’s patent. But I think the point M. Cuban is making is that even when you do clearance searches, there are still important patents you are going to miss and that leads to litigation risk.

  77. Mark Cuban October 15, 2015 2:24 pm

    A troll to me is easy to define.

    I’d you invent something and commercialize it through your own efforts. You deserve the reward

    Commercialization includes proactively going to companies individuals or entities that you believe to be prospective users of your invention and asking them to license your patent

    And/or

    Publishing on a website that is accessible by search engines, the options available to anyone who would like to license it

    No one can say this is an intrusive or expensive step.

    You may for competitive reasons say you don’t want to license the patent and that’s OK But it’s cheap and easy to create a page named pricing for anyone to get an understanding of what it would cost to use the patent

    And it’s fair to say call for pricing as long as the owner is willing to offer a price. Fair or not

    A troll is anyone who plays “gotcha”

    They don’t make information available. They don’t communicate licensing or use expectations.

    Like WARF, they wait till they catch someone unwittingly (even if it’s a repressed memory lol) using their patent in what they believe is an infringing manner and then threatens to sue if a payment isn’t made or actually sues

    So let’s try

    As far as meeting and doing an interview. Obviously my knowledge of patent law is inferior to anyone on this site. I’m willing to concede that. So an interview regarding patent law isn’t going to bring much value. That’s why I gave money to the EFF their lawyers can have that discussion

    What I do know is business. And while no one knowa everything about technology. I have had a long list of experiences w tech and business that I think gives me a foundation from which to take a stance

    I have no problem walking into an interview where everyone disagrees with me. In fact I enjoy it . But, there is no value in interviewing me about patent law

    And now you have my definition and suggestion on trolls

  78. A Rational Person October 15, 2015 2:41 pm

    Mr. Cuban,

    “Publishing on a website that is accessible by search engines, the options available to anyone who would like to license it”

    Actually, WARF has exactly this type of website for its patents:

    http://www.warf.org/technologies/inventions-patents-and-portfolios.cmsx

    WARF even has an FAQs section for licensing:

    http://www.warf.org/home/for-industry/licensing-faqs/licensing-faqs.cmsx

    and how to contact their licensing managers:

    http://www.warf.org/home/about-us/employee-directory/employee-directory.cmsx#technology-commercialization

    What more should WARF be doing to avoid be referred to as Patent Troll by you?

  79. A Rational Person October 15, 2015 2:44 pm

    WARF also describes their licensing process and provides examples of various types of licensing agreements:

    http://www.warf.org/home/for-industry/licensing-process/licensing-process.cmsx

    WARF even provides for a subscription service to provide monthly updates of when WARF technology is available for licensing

    http://www.warf.org/for-industry/get-tech-updates/get-tech-updates.cmsx

  80. A Rational Person October 15, 2015 2:54 pm

    It is also Apple’s, not WARF’s, policy not to accept or consider proposals regarding licensing from outside entitles such as WARF for any purpose:

    See Section 17 of WARF’s complaint against Apple regarding infringement of the ‘752 patent (U.S. Patent No. 5,781,752):

    http://ia902305.us.archive.org/18/items/gov.uscourts.wiwd.34766/gov.uscourts.wiwd.34766.1.0.pdf

    Apple was also aware of the ‘752 patent and had cited this patent in its own patent applications as relevant prior art, as stated in Section 16 of WARF’s complaint against Apple.

    So how was WARF playing “gotcha”?

  81. Gene Quinn October 15, 2015 3:21 pm

    Mark Cuban-

    Your point about an interview is certainly fair. I do have a reputation as never having done a “gotcha” interview with anyone. Everything is off the record until it is specifically agreed we are on the record. This is how I have gotten so many interviews with sitting federal judges, Senators, Congressmen, regulators, top lawyers and hall of fame inventors — even several billionaires. If you ask around I’m sure people you know and respect (even those who disagree with me) will tell you that an interview with me would be both safe and extremely fair. You can set the terms of the discussion and we deep dive into an area where you have expertise. I can write every day if I want, interviews are about getting the point of view of the person I’m interviewing. It would be a genuine effort to get at the issues as you see them.

    If you are game I propose a long form discussion that gets past the rhetoric on the issue of innovation, business and the nexus of the two. My interviews are a little bit personal profile to get at what has made the individual a success and how they come to their beliefs. We can do it via telephone, I can come to you, we could do it contemporaneously in NY at IP Dealmakers, or at some other event. I record the interview and unlike most who do interviews I publish the entire transcript. I’m not interested in sound bites, although I will plead guilty to sound biting titles sometimes.

    Personally, I think a discussion on the business of innovation (good, bad and ugly) would be excellent. We can get into patent trolls, although not in any specific patent law sense. Rather about the abuses you have seen, your legitimate concerns about investing in start-up tech firms, and then what business model makes one a troll versus an innovator who can and should be able to resort to patent litigation to protect themselves against infringer who refuse to negotiate.

    In terms of WARF, I disagree with you. Where our difference would be is in the definition of a troll. I know there are bad actors, even true evil in the patent troll industry. Having said that, I do not believe you must commercialize in order be an angel and not a troll. I think the commercialization distinction is arbitrary, and exalts channels of distribution above innovative R&D. Apple invents but they manufacture nothing themselves. They have contract manufacturers outside the U.S. They then sell the products others manufacturer. I think whether you manufacture yourself is too fine a distinction. I think research and development is a legitimate and important business model, and one that dates back to at least Edison in the U.S.

    If you want to connect with me off line and off the record until you specifically agree otherwise let me know.

    -Gene

    https://www.linkedin.com/in/ipwatchdog
    Contact form: http://www.ipwatchdog.com/about/gene-patent-attorney/#F

  82. David Stein October 15, 2015 3:47 pm

    > It’s fair to say call for pricing as long as the owner is willing to offer a price. Fair or not

    > A troll is anyone who plays “gotcha” They don’t make information available. They don’t communicate licensing or use expectations.

    (1) You do realize that every issued patent is published, freely available, and searchable at the USPTO’s website, right? (And also Google Patents, and FreePatentsOnline, etc.?)

    “Patent trolls” cannot “hide” their patent from the USPTO database. If they want a patent, it is published and freely available there, just like everyone else.

    Indeed, the only party that’s trying to secure a patent while also “hiding” information is… you. As you have admitted above, you have patented a “device” that is a conventional box of parts coupled with an algorithm that you intentionally withheld.

    Of course, because this tactic is prohibited, your patent is completely invalid as a result. And if you actually tried to sue Walmart or any other infringer, not only would you lose and have your patent invalidated – you would have to pay the other party’s attorney’s fees.

    That’s the cost of not understanding the system that you want to use… let alone reform.

    That’s why I gave money to the EFF their lawyers can have that discussion

    Yeah, umm… about that…

    The entire EFF group that you pay has not a single registration number among them. They have never drafted, prosecuted, nor examined a single patent application. They do not not know what they are talking about – and it frequently shows in their opinions.

    Like… this one.

    You may want to reevaluate the effectiveness of your lobbying dollars.

  83. A Rational Person October 15, 2015 3:49 pm

    Gene,

    To be fair to Mr. Cuban, he did provide a broader definition of “commercialization” in his post @76 than you are giving him credit for in his latest post. However, as I have pointed above, WARF does in fact meet Mr. Cuban’s definition of commercialization with respect to its patents.

    I do hope you can establish this dialogue, because more people involved in the commercialization of technology need to understand that most patent professions would prefer to see their client’s inventions produced, and used by their clients or licensed. I know of very few patent professionals who goal in life is to work for a patent troll or anyone else who tries to abuse the patent system. Many patent professionals, including myself, got into the field because we are tech geeks and like working with new technology. Most of us also do not like to see bad patents issue because every bad patent issued tarnishes the public image of patents.

    However, very few patent professionals, including myself, are business experts or marketing experts like Mr. Cuban. Yet, I think many of us are regularly approached by our clients for help in this area. So any insight Mr. Cuban could provide with respect to bringing innovative products and services to market would be invaluable to many of the small businesses we represent as patent professionals.

  84. angry dude October 15, 2015 4:01 pm

    Mark Cuban wrote:

    “Commercialization includes proactively going to companies individuals or entities that you believe to be prospective users of your invention and asking them to license your patent

    And/or

    Publishing on a website that is accessible by search engines, the options available to anyone who would like to license it”

    I’m not sure we live on the same planet, Mr. Cuban.

    It’s been my personal experience (and other inventors here can confirm it) that companies will never talk to a small patent holder about licensing a patent.
    They will ignore all friendly correspondence coming from a small patent holder.
    And if you are not extremely careful in your wording they might sue YOU for Declaratory Judgement, preferably in some remote jurisdiction, trying to bankrupt you.
    The only way to get their attention is to file patent infringement lawsuit first, then talk to their lawyers.
    “Sue first, talk later” is the current motto

    I’m not making this up – I’ve been through all of this, unfortunately

    It is that bad.

    Perhaps you should just spew your ignorance somewhere else.

  85. nat scientist October 15, 2015 5:54 pm

    “no one ever bother to asked, and it was like a game for me to see if any of you ever would. I work with the patent owner. Nor do i own any interest in Inventist.”

    If you didn’t see it; perhaps there was no expectation, cares, difference at all, so the expert gamer self-accolade is weak tea.
    So maybe you got burned, guessed you did all your homework, but perhaps you should know a bit more, stay a bit longer in the worlds you wish to quickly harvest? Reality TV has its time limitations that some here have learned to avoid.

  86. step back October 15, 2015 6:00 pm

    Mark cuban @16 writes, We chose to compete.

    Yes you did.
    The name of the game is first one to the Patent Office wins.
    You lost that competition.

    Now you want to change the rules of the game.

  87. mark cuban October 15, 2015 10:46 pm

    Gene

    You have my email.

    Email me any questions

  88. mark cuban October 15, 2015 10:54 pm

    @stepback

    Yeah. I lost. Look at me. It’s been horrible. Don’t know how I have survived

    And as far as companies never talk to small companies is he worst logic possible not to publish licensing information. There is no downside but you won’t do it ?

    David Stein. I truly enjoy your comments. Yes I know you disclose patent information. But for those of us who not only learn about your patent but would Like to GIVE YOU MONEY why in the world would you not publish a rare card.

    All it takes is one customer to benefit and in the event you decide to sue you can say that you published your license fees and they were easy to find which will also help you prove damages since u have a published licensing card

    On shark tank I really try to avoid deals with doctors lawyers and inventors Not all , but so many get caught up in everything other than the business at hand

    Thank you to so many on here for confirming so many of those stereotypes

    Thank you

  89. angry dude October 15, 2015 11:24 pm

    @Mark Cuban

    We, independent inventors and small patent holders, will now make sure to stay away from Shark Tank and Mark Cuban

    Thank you so much for confirming our stereotypes

    May I suggest that you don’t mess with patents anymore ?

    Just go ahead and buy another football club

    I even have a lead for you: you can buy Chelsea from Mr Abramovich – dude might need some serious cash pretty soon to repay his boss

  90. David Stein October 16, 2015 2:05 am

    > David Stein. I truly enjoy your comments.

    It has been an entertaining exchange here.

    I do have two comments that you might genuinely appreciate:

    > All it takes is one customer to benefit and in the event you decide to sue you can say that you published your license fees and they were easy to find which will also help you prove damages since u have a published licensing card

    Mark – here, we completely agree.

    Every patented invention should be maximally disclosed – not just in the PTO’s patent database, but in public. Anyone who believes that their technology has enough value to justify spending money on patenting, should also be making the greatest possible efforts to publish it: not only to attract licensees and to let everyone know what they’re claiming to own, but simply to share the raw knowledge with the entire technology community.

    > I really try to avoid deals with doctors lawyers and inventors Not all , but so many get caught up in everything other than the business at hand:

    We do have different perspectives and priorities, but you may be misinterpreting mine.

    While I primarily represent software companies – not trolls, but actual Fortune-500’s – my primary objective is not software patents. (I’m halfway through a traditional Electrical Engineering degree, because I’d like to represent a broader set of clients.)

    Rather, my #1 objective is: a patent system that is fair, accurate, consistent, expedient, and cost-effective.

    Both the abuses of our patent system, and much of the “patent reform” effort – including many of the EFF’s naive positions – have collaterally damaged the patent system, by making it much more costly, protracted, unfair, unpredictable, and technically baseless. At present, it’s nearly impossible to tell which patents are valid. The only way to know for sure is to fight it out in court – which, I think you’ll agree, is the absolute worst-case scenario for everyone.

    I’ve been vocal about the urgency of this problem – here’s one lengthy article. My complaints about the EFF are chiefly because their efforts are exacerbating this problem – partly from ignorance (again, the entire group has literally zero experience “in the trenches” of patent procurement… this is a serious problem), and partly because they aren’t interested in qualities like efficiency and affordability.

    You could do the patent community a favor by urging the EFF to prioritize these qualities, in balance with their reform agenda.

  91. Night Writer October 16, 2015 5:48 am

    @Mark Cuban, I get that you are just trying to put products together and build businesses. I wonder, though, if better freedom-to-operate opinions wouldn’t clear up your problems. Most of the claims you would face are publicly available. (Yes, there are clever tricks some play with continuations and submarine patents, but that is less frequent.)

    One way to get better freedom-to-operate opinions would be to shop around and try different attorneys. My guess is that you would be best served by a large IP boutique with people that are experts in different areas. The biggest problem with attorneys is that they tend to encourage conflict to their benefit, but a good law firm would –for a reasonable price–clear up most of your problems with patents. Make sure the attorney that does the freedom-to-operate knows the technology area.

    You know, big companies do this and, in general, figure out what the problems may be.

  92. Night Writer October 16, 2015 5:57 am

    @Mark Cuban, and I do this for large companies and start-ups. Often the company will purchase patents in the space to protect themselves from copiers once they start to build the product. So, some companies see this as an opportunity and just the cost of doing business in the modern tech world with patents. Also, it isn’t that hard to design most products around patents if you do it from the start.

    You should ask yourself if the problem isn’t that you are not respecting our patent system. It really isn’t that expensive to incorporate patents into the business plan and not that expensive. Big tech companies do it. Like before they buy a small tech company.

    Anyway, maybe the solution to your problems is simply adapting to the patent system.

  93. Night Writer October 16, 2015 5:59 am

    @Mark Cuban, one other thing that I have noticed is the so-called troll patents tend to be easier to design around (or be invalid for being so broad) because they didn’t really build the product. Once you get into the weeds of building the product you can figure out ways to design around their claims.

  94. Night Writer October 16, 2015 6:13 am

    @Mark, (sorry for all the comments) one last thing you should ask yourself. How much of your ecosystem is built from patents? And that is if there weren’t patents, would the companies you build become less valuable? My guess is yes.

    The value of all these start-up companies is often based on big companies not being able to just copy their products. Without IP, big companies can just sit back and wait until a small company gets traction and then just reverse engineer the product and build it.

    I worked as a product manager for one of the largest engineering companies in the world. I analyzed products for the build/buy decision. Question number one was: did they have IP?

    Also, I think you should interview with Gene. He is always very fair even and I would bet that he would give you a forum to express your ideas. I’ve been reading his interviews for years and he does an amazing job of letting the interviewees tell their story. I would be very interested to hear more about your problems with the patent system and your views.

  95. step back October 16, 2015 9:33 am

    mark cuban @comment#88

    You don’t need to feel so dejected.
    It was just one of 1000’s of races run every day up the steps of the Patent Office.

    You can run (“compete”) in it tomorrow, the next day and so on.

    All that’s needed is that YOU invent something on your own.
    It can even be an improvement to existing hoverboards.

    Then perhaps Aston Kutcher can take your spot for the day on Shark Tank while you appear on stage to hawk your improvement and see if Mr. Wonderful buys,

    We, the nerds of this inventors/attorneys site understand (at least some of us do) that your show is just anther version of the Gong Show. Wannabe entrepreneurs perform their song and dance while one by one each of the Sharks pounds the rejection Gong. Very entertaining. Let’s keep making fun of all those who stick their neck out. Heaven forbid we encourage them.

    America is slowly spiraling back to being a 3rd world nation. One of the reasons is that people like you (and the know nothing Supremes in DC) keep killing the dream and discouraging innovators from daring to step forward.

    Yes. Kill all software patents. Kill all inventors. But first let’s kill all their lawyers before they get a chance to argue about that clause in the US Constitution. (You know, the one about “securing” for inventors, rights to “their” inventions.)

    God bless Ah… The Shark Tank. 😉

  96. A Rational Person October 16, 2015 10:02 am

    Night Writer @93

    “@Mark Cuban, one other thing that I have noticed is the so-called troll patents tend to be easier to design around (or be invalid for being so broad) because they didn’t really build the product. Once you get into the weeds of building the product you can figure out ways to design around their claims.”

    This is also one of the reasons why, despite what many “technology experts” say, it matters that the US has lost a higher percentage of its manufacturing base in the last decade or so than several of its competitors.

    From my experience, many inventions are clever people’s solutions to problems that come up during manufacturing or trying to manufacture a product. And I think this will continue to be the case in the future even with the increased use of 3D printing, despite what many “technology experts” seem to think.

  97. step back October 16, 2015 10:11 am

    Rational @96

    Well said.

    I agree 110%.
    Many inventions arise on the factory floor. We don’t do much factory floor anymore.

  98. mark cuban October 16, 2015 1:15 pm

    +night writer. You are defining the exact problem with the system

    The majority of companies start small and hope to grow. In order to be fair regulations must pas the Lemonade Stand test

    If you were trying to open up a lemonade stand would you be able to walk out in the front yard and start it or would you need to hire multiple experts

    How does a kid with a tech idea hire an ip firm ? That’s not going to happen and shouldn’t happen

    If you want to kill the economy make every start up do IP searches before launch

    Are you all trying to stand up for the rights of small inventors ? What about the rights of small entrepreneurs ?

    Shouldn’t inventors work to simplify the process so you can get paid ?

    What does the board think of requiring the offering of a mandatory license from any patent not currently being used ?

    And the option for any patent owner to put a link to a license offering in the patent summary ?

    Is there a business for offering one stop licensing to small patent owners ?

    It has to be lemonade stand easy for startups to pay for IP or patents will always be under assault

    The issue isn’t respect for the IP, it’s the difficulty in finding related patents and licensing them

    The hovertrax patent is a perfect example. There should be an easy way to license it and a way to integrate into quickbooks and other systems to pay inventors

    Are there any systems like this out there ?

  99. patent leather October 16, 2015 2:28 pm

    Mr. Cuban @98:

    You ask, “How does a kid with a tech idea hire an IP firm ? That’s not going to happen and shouldn’t happen If you want to kill the economy make every start up do IP searches before launch”

    Ummm, my law firm offers $500 searches as courtesy.

    Instead, the question to ask is, “How does a kid with a tech idea get investors behind him if he has nothing proprietary?” I note how often the Sharks say “you have nothing proprietary to offer. You will be squished.”

    You made it without patent protection and I truly respect that. We are all a product of our own life’s experiences. But don’t assume your experiences are typical. In an alternate universe, Broadcast.com filed for patent protection, the technology was ripped off by CNN and almost put Broadcast.com out of business but for your patents which came to your rescue. In that scenario, I think you would have a completely different view of our patent system.

  100. step back October 16, 2015 2:46 pm

    mark cuban @98

    There out of your own mouth is the perfect solution YOU can invent.

    After all, invention is easy. Any lemonade stand kid can do it.
    Financing is where the real “innovation” starts.

  101. angry dude October 16, 2015 3:21 pm

    Mr. Cuban really cracks me up…

    The correct question to ask is this one:

    How does a bunch of “kids” with “tech ideas” (as well as a bunch of engineers from you name it tech companies) all come up with the exact same simple solution to exact same problem and about the same time ???
    And this same solution just happens to be disclosed in some patent a few years earlier.
    Now, if sued for patent infringement, they will all cry loud “We discovered it independently! We knew nothing about the stinking patent !! This is all MATH! Math should be free! Software should be free ! TROLL!!!”

    There are only two possible answers to choose from:
    either USPTO completely screwed up and issued a ridiculously obvious garbage patent
    OR
    all those people (and their lawyers) are simply telling bald-faced lies.

    Which one do you think it is ?

  102. Night Writer October 16, 2015 4:33 pm

    @98 Mark:

    I noticed you didn’t answer my question about whether the companies you work with would be worth less without patents. My guess is that without patents that the whole ecosystem is going to change and it will be ugly for start-ups. Microsoft in the 1990’s was notorious for just sitting back and waiting for a start-ups to get something going and then just reverse engineering their tech.

    I think it comes down to this: either you have patents or you don’t. If you have patents, then you have to be able to search them and figure out what is out there related to your product. There are inventors that are much better at using Google patents than I am. They do better searches than I do and get ideas from looking at what their competitors did. Maybe a partial solution is far better software to search the patent database.

    I don’t think automatic licenses are a good idea. I get what you are saying about reducing the friction to get companies going. Maybe there is something to what you are saying. (Be good if you fleshed it out more with Gene in an interview.)

    I think you need to incorporate patents into your thinking about companies/products. It is a game and it costs money, but it is a game you have to play if we are going to have patents.

    Also, if someone came to you with a new product would you invest in it without checking out if they just copied it from someone else? You probably want to know what else is on the market and how the new product relates to what is already there. You would want to get an idea if they are just copying what is out there or if they really have something new. Patents searches are just the same game.

    (And, the reality is that probably most if not all high-tech inventors can figure out how to search the patent database. (www.google.com/patents). It isn’t that hard. I get inventors that do a better job than the commercial services and they say they learned a bit by doing the search.)

    Your licensing point is harder to respond to. I really think you should let Gene put together your thoughts on this. Gene is very fair. He lets even people like Mark Lemley express their ideas in a fair forum where the point appears to be to let the interviewee express the ideas in the best light so we can all try to understand where they are coming from. He doesn’t take cheap shots. (Now, the comment section is a different matter.)

  103. nat scientist October 16, 2015 4:52 pm

    So the payoff question here is how much will you pay up for what % of the Works you desire…if you take care of protecting the IP details and media?

  104. Dave October 16, 2015 5:10 pm

    Dear Marc Cuban,

    I am a CEO of a Small Startup, we raised $4 million, We started with an Idea and made a product, but after 3 years Google, Apple, Samsung and many other companies started giving “similar but same” product for FREE.

    I had filed for patents on our Idea and Now I have few patents. My team has spent more than 5 years of our life on this product. It got great reviews but we could NOT compete with FREE.

    After 6 years of filing the USPTO granted us 5 patents. What should I do with my 5+ patents?

    Thank you for your advice.
    -Dave.

  105. Dave October 16, 2015 5:11 pm

    Dear Mark Cuban,

    I am a CEO of a Small Startup, we raised $4 million, We started with an Idea and made a product, but after 3 years Google, Apple, Samsung and many other companies started giving “similar but same” product for FREE.

    I had filed for patents on our Idea and Now I have few patents. My team has spent more than 5 years of our life on this product. It got great reviews but we could NOT compete with FREE.

    After 6 years of filing the USPTO granted us 5 patents. What should I do with my 5+ patents?

    Thank you for your advice.
    -Dave.

  106. Small Tech October 16, 2015 7:43 pm

    Insurance against troll suits aimed at small companies (<$20m/yr) is now available for $995/yr. In other words, the market has responded, clearly determining from data rather than from anecdotes that the expected financial risk of trolls to small businesses is less than $1k/yr. Next issue . . .

  107. mark cuban October 17, 2015 6:09 pm

    @nightwriter
    my companies would be worth much more without software patents.

    I would start and invest in more companies without software patents.

  108. mark cuban October 17, 2015 6:11 pm

    @patent leather
    Courtesy goes how far ? Again, you make my point. If a young startup has to find the most cost effective lawyer in order to determine whether or not they are able to start their business

    we all have lost

  109. nat scientist October 17, 2015 11:15 pm

    How are levers, gyros, struts and wheels any more or less physical than electrons switching specifically through gates in semi-conductors following new “sets of instructions” which can be properly called algorithms and thus by s-witchcraft become ephermeral as gravity was pre-Issac Newton. Ban the software and the rest of s-witchcraft that gets gnarly on the fast buck. One thing is for sure; the risks involved in children hoverboarding you will arbitrage away; and may God Bless your noble efforts at the entertainment trough, the need is beyond dire.

  110. step back October 18, 2015 2:30 am

    Dear Nat Scientist @107

    Please try not to confuse the Hollywood Celebs with facts and science.
    Is it not better that they practice their thespian arts through bluster and carnival barking?

    For sooth my dear Shakespeare, shall we not first snuff from this mortal coil those inventors of the software and their cunning lawyers? Shall we not praise the quickened viper fangs of the Sharks swimming in yonder Tank?

    Who knows what happens to the alternating currents as they spread out from the Tank Studio, cross over the horizon and pass through to other dimensions, other truths, other times, perchance even into ..
    The Twilight Zone.

    http://patentu.blogspot.com/2015/10/twilight-zone-make-it-go-away-lawyer.html

  111. Night Writer October 18, 2015 8:01 am

    @Mark: I get it that patents are causing friction. I think you could reduce the friction by getting your start-ups up-to-speed on http://www.google.com/patents. It would probably only add only 20-50 hours of work for them over the course of starting their business. You would be surprised at how easy it is to use and how inventors often become better because of it. (You may also be amazed at some of the stuff that is disclosed in patent applications.)

    Maybe you have a point about licensing that if you don’t practice (or license it to be practiced) your patent for the first three years that you must license it. Maybe that makes sense. This might make sense. (Maybe put in there something too about claims that are allowed after you are practicing your invention forcing the person then to have to license.)

    So, what I think is that you should have to do some work to figure out the patents that you might infringe with your product, but you should get more certainty that if you do the work that you should be good to go except maybe for some compulsory licensing. And, I think you have a good point about people sitting around for many years without practicing their invention. (Although, you know that the PTO has done something about this by raising the maintenance fees making it much more expensive to sit on a patent.)

    I do think, though, that you are not appreciating the very favorable environmental benefits of patents that you enjoy. Disclosure, favorable employment contracts, massive search spending from large corporations, etc.

    I do wish we could have rational people try to make the system work better.

  112. Night Writer October 18, 2015 8:06 am

    @Mark, and again, I think it would be fine for you to say to entrepreneurs, “did you search Google patents to see if there are patents that might be a problem?”

    I have seen many inventors get up-to-speed on Google patents in a short amount of time and become very good at it. One guy who writes software for back-end servers, which is part of a real company that has received millions in funding, actually did an analysis as part of the patent application. He actually hit exactly the same patents that the examiner cited in the first Office Action.

    The reality is that the patent database is a vast resource that is under utilized and doesn’t have that steep of a learning curve for technical people.

  113. Anon October 19, 2015 7:07 am

    After more than 110 additional posts, I reflect that my posts way back at 2 and 3 are even more germane to the point here that some people place ideology over reason and refuse to have their lack of knowledge removed ostensibly in order to preserve their pre-knowledge viewpoint (for whatever pragmatic or business related reasons) .

  114. patent leather October 19, 2015 10:50 am

    @Mark Cuban 108,

    Thanks for replying to one of my comments. When I wrote, “my law firm offers $500 searches as courtesy” I suppose the “as courtesy” wasn’t necessary as I just meant we don’t profit from such searches. I’m not sure I understand your point. I think the average price for a law firm search is probably around $1,000. Any startup is going to need a small budget for general startup expenses and if they don’t even have the $1,000 for the search then I can’t imagine they will get very far. We’ve been contacted many times by people with no money and let me tell you, these people generally don’t have viable business ideas or any type of real technology.

    Let me ask you a question. consider these scenarios:

    #1) Company A’s business plan revolves around their proprietary cutting edge software technology. Software patents are all abolished.

    #2) Company A’s business plan revolves around their proprietary cutting edge software technology. Software patents are allowed. Company A has issued patents.

    Which company would you prefer to invest in? I assume your answer is going to be #1, but please explain why. Which inventors do you think will be more likely to be rewarded for their hard work? If you were young again (sorry, not implying that you are old) and one of these inventors, which scenario would would you prefer to be in? Thanks.

  115. A Rational Person October 19, 2015 12:05 pm

    Mark Cuban@98

    “How does a kid with a tech idea hire an ip firm ?”

    They look up a local patent attorney or patent agent on-line. Happens all of the time.

    “That’s not going to happen and shouldn’t happen”

    Sorry, this is untrue, see above. Why do you think this doesn’t happen all of the time? Why do you think it is hard to find and/or hire a patent attorney or patent agent?

  116. A Rational Person October 19, 2015 12:12 pm

    Mark Cuban@98

    “The issue isn’t respect for the IP, it’s the difficulty in finding related patents and licensing them”

    Why do you think this is difficult? There are several ways to search patents on-line including Google Patents, Freepatentsonline, the USPTO database, etc. There are also search services and intellectual property firms that will perform this service at a minute fraction of the cost of defending a patent suit.

  117. A Rational Person October 19, 2015 12:16 pm

    Mark Cuban@98

    Why isn’t what WARF has done sufficient?

    WARF publishes its patents on a website that is accessible by search engines with options on how to license its technologies:

    http://www.warf.org/technologies/inventions-patents-and-portfolios.cmsx

    WARF even has an FAQs section for licensing:

    http://www.warf.org/home/for-industry/licensing-faqs/licensing-faqs.cmsx

    and how to contact their licensing managers:

    http://www.warf.org/home/about-us/employee-directory/employee-directory.cmsx#technology-commercialization

    Why should WARF have to do more than this to avoid being referred to as a Patent Troll by you?