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How Newegg crushed the “shopping cart” patent and saved online retail

arstechnica.com

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Re: How Newegg crushed the “shopping cart” patent and saved online retail

#81

Post by ScottBurson »

creamyhorror wrote: post #72

A victory for common sense, the tech industry, and right-thinking citizens everywhere. May the gods of the market continue to smile upon Newegg (a prosperous Lunar New Year to them!). Points of interest to me: Lee Cheng: And we'll take a case through trial as a matter of principle because we want to accomplish the purpose of making good law. Like eBay did, like Quanta did when they challenged LG. It's part of our dut…

I understand that the recent pattern has been that settling with one troll brings more out of the woodwork.

Once that becomes common knowledge, I think it has to change the calculation. Settling is no longer about how much the troll in front of you is asking for; it's about the unknown number behind them in line, as well.

While it certainly sucks to have to bet your company to get these trolls to go away, if the alternative is for dozens of them to bleed you slowly dry, the bet may seem more worth taking.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#82

Post by robomartin »

We need more of this. A lot more. We also need to stigmatize law-firms willing to take-on patent troll clients.

Looking at the companies who got sued by these trolls one can only wonder why it is that these companies don't unite to create a legal and financial firewall of sorts to go against trolls each and every time they stick their heads out of the slime they live in. All you really need is for trolls to be summarily destroyed for a few years to create the conditions for change.

I have not bought anything from Newegg in a long, long time. Sometimes I almost instinctively just buy through Amazon. Now it will be different. Because I admire, respect and appreciate what Newegg did here I will do my small part and move whatever business I can their way. It's my own little way of saying "thank you" to a company that didn't just stand-up for themselves but rather for all of us.

Maybe if enough of us chose to vote with our cash more companies might be convinced to fight trolls rather than cave in.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#83

Post by svachalek »

monochromatic wrote: post #73
mfringel wrote: post #65

Earlier quoted context omitted.

They are willfully responding, and that makes all the difference in the world.

What does that even mean?

They are not robots, they make choices. If I offered money to steal babies, that's an incentive. If someone did it and tried to defend themselves by saying "I was just responding to the incentive" that does not make them any less reprehensible.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#84

Post by robomartin »

From the article:

"The American justice system has issues, but it fundamentally works. The jury system is sound. Juries are people of good will and have common sense."

This system "fundamentally works" if you have the money to make it work for you. Most individuals, small and medium businesses simply cannot afford the cost of seeking justice. In my opinion this is true of civil, business an criminal law.

Example:

Back when I was younger and far dumber I client stiffed me for about $125K of work. Of course, off I went to a lawyer. By the time I spent about $8,000 in legal fees I realized that all I was doing was paying for my attorney and their attorney to write what I came to call "love letters" to each other. I called them "love letters" because every time they wrote one, regardless of content, they got paid handsomely by both parties. I decided to lick my wounds and move on. Good thing I did. The client ultimately filed for bankruptcy protection and stiffed a bunch of other businesses out of hundreds of thousands of dollars. They formed a new corp pretty much in parallel and have been operating ever since.

Would money have made a difference here? Maybe. Don't know. I had a similar situation with a large (multi-billion dollar global corp) that cause us huge damage. There was simply no way to go after them without putting-up at least $500K in the bank for legal fees. Not a fight I could have considered. And so, even though they were decidedly in the wrong, they, effectively, "wrote their own laws" or were able to ignore them because they could fight a fight I couldn't even begin to consider.

What I do know is that it sure felt like there was a huge asymmetry in justice. It's almost like one can exist in this parallel universe where the practical result was that laws simply were not applied in the same way to those with less money to "buy" justice.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#85

Post by robomartin »

dankohn1 wrote: post #48

I founded NetMarket [1], which actually did build the first shopping cart on the web in August 1994, 5 months before OpenMarket launched and filed their application. I was deposed in the 2004 Amazon case due to an email Amazon discovered from Open Market to NetMarket demonstrating that they were aware of our site. Unfortunately, I didn't have screen shots or source code definitively demonstrating our work, and Amazon…

I'm interested in learning more. Are you saying that one should deliberately take and store screen shots to document the chronological use of various technologies? Would screen shots have been pivotal or simply one more checkbox item?

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#86

Post by monochromatic »

svachalek wrote: post #83
monochromatic wrote: post #73

Earlier quoted context omitted.

What does that even mean?

They are not robots, they make choices. If I offered money to steal babies, that's an incentive. If someone did it and tried to defend themselves by saying "I was just responding to the incentive" that does not make them any less reprehensible.

What I meant was to question whether responding to an incentive is ever not willful.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#87

Post by AnthonyMouse »

mark-r wrote: post #62
csense wrote: post #42

Earlier quoted context omitted.

Maybe we should set up a tradition of patent-busting bounties. I.e. when Victoria's Secret gets hit with $10 million a year in royalties (or whatever the number was), they can say "We're not going to fight these patents in court, but if somebody else fights them and wins, so we don't have to pay that $10 million/year royalty anymore, we'll give them a one-time $3 million payment." Victoria's Secret has an incentive t…

Great idea, but the lawyers would shoot it down immediately (if they haven't already). The terms of a settlement would just have a clause preventing them from offering such a bounty.

So just do it ahead of time. As soon as the troll approaches you, before you so much as sign an NDA, immediately set up an independent trust with the money in it which will give it to whoever invalidates the troll's patents, and if the patents expire without being invalidated the money plus interest goes back to the company. Do this immediately, for every troll, by every company. It could put a pretty good sized dent in the problem.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#88

Post by waqf »

svachalek wrote: post #83
monochromatic wrote: post #73

Earlier quoted context omitted.

What does that even mean?

They are not robots, they make choices. If I offered money to steal babies, that's an incentive. If someone did it and tried to defend themselves by saying "I was just responding to the incentive" that does not make them any less reprehensible.

I was deliberately not talking about whether it was reprehensible. I was talking about how and whether you would succeed in inducing everyone to stop doing it.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#89

Post by creamyhorror »

ScottBurson wrote: post #81
creamyhorror wrote: post #72

A victory for common sense, the tech industry, and right-thinking citizens everywhere. May the gods of the market continue to smile upon Newegg (a prosperous Lunar New Year to them!). Points of interest to me: Lee Cheng: And we'll take a case through trial as a matter of principle because we want to accomplish the purpose of making good law. Like eBay did, like Quanta did when they challenged LG. It's part of our dut…

I understand that the recent pattern has been that settling with one troll brings more out of the woodwork. Once that becomes common knowledge, I think it has to change the calculation. Settling is no longer about how much the troll in front of you is asking for; it's about the unknown number behind them in line, as well. While it certainly sucks to have to bet your company to get these trolls to go away, if the alte…

Indeed, and this increased risk would make it an even greater imperative for potential victims to form or support a patent-busting cooperative as suggested by several commenters already - much like how some prey animals form defensive herds against hunting packs. Hopefully cases like these will push companies to band together and not remain tight-lipped like they were on the Soverain case (until Newegg broke the chain).

There's a coalition for the open Internet, why not a coalition for fair innovation in technology? (Perhaps in collaboration with the EFF's Defend Innovation initiative?)[1]

[1] https://defendinnovation.org/

edit: Interesting trivia from a legal news site:

http://www.americanlawyer.com/digestTAL.jsp?id=1358711387829

In Tuesday's decision, the Federal Circuit ruled that three of Soverain's core patents are invalid on obviousness grounds. "The district court's conclusion that a prima facie case of obviousness was not met is not explained by the court by Soverain, and does not accord with the record," the appellate panel ruled. "[T]he trial record contains extensive testimony of the experts for both sides, discussing every claimed element of the patented subject matter and the prior art system."

If I understand this right, Judge Davis simply ignored all Newegg's testimony about prior art and ruled that they hadn't even made a prima facie case for obviousness. Thankfully the Court of Appeals didn't think so. I wonder if Davis was simply leaving the issue of patent validity to a higher court to decide, or if he really had a good legal reason to ignore prior art and the evidence for obviousness. The Soverain lawyer's blogpost provides an inside view on the 2010 case: http://mcsmith.blogs.com/eastern_district_of_texas/2010/08/j...

In the end the jury's $2.5m award might not even have covered Soverain's legal costs, meaning that it wasn't a win for them either - more of a draw.

Reading the fresh Appeals opinion is interesting too: http://www.cafc.uscourts.gov/images/stories/opinions-orders/...

Precedent agrees with Newegg that a person of ordinary skill[2] could have adapted the CompuServe order command to known browser capabilities when these capabilities became commonplace, and that it was obvious to do so. The product identifier message term does not distinguish the shopping cart claims from the prior art CompuServe Mall.

Clearly sensible reasoning, not misled by technicalities and sophistry - I like it. The opinion is basically a no-nonsense slap-down of Soverain's arguments and Davis's ruling, which will no doubt restore your confidence in the justice system a little. It was surprisingly easy for a layman like me to read, too.

Re: How Newegg crushed the “shopping cart” patent and saved online retail

#90

Post by rdwallis »

svachalek wrote: post #83
monochromatic wrote: post #73

Earlier quoted context omitted.

What does that even mean?

They are not robots, they make choices. If I offered money to steal babies, that's an incentive. If someone did it and tried to defend themselves by saying "I was just responding to the incentive" that does not make them any less reprehensible.

Sadly, when people are offered money to steal babies they steal babies.[1] The moral outrage is important because it increases the cost of the action but removing the incentive is generally a more effective way to change behavior.

[1] http://www.economist.com/news/china/21570762-curb-widespread...

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