Interview With 'Idiot' Behind Key Software Patent 223
An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"
Errors in the Article (Score:5, Informative)
There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.
"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112 [cornell.edu]. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.
"End the venue shopping for lawsuits"
The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).
"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"
Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.
Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
Re:Double standards and people (Score:4, Informative)
The PTO does hire CS people, but not IT grads. IT grads tend not to have enough science and math credits and don't meet the PTO's requirements of hiring people with science and engineering backgrounds.
The below discloses the requirements for a computer science position.
http://jobview.usajobs.gov/GetJob.aspx?JobID=101034973&JobTitle=Patent+Examiner+(Computer+Science)&q=CP-2011-0013&rad_units=miles&brd=3876&pp=25&sort=rv%2C-dtex&jbf574=CM56&jbf785=&vw=b&re=134&FedEmp=N&FedPub=Y&caller=basic.aspx&ss=0&AVSDM=2011-07-19+19%3A09%3A00 [usajobs.gov]
BASIC QUALIFICATION REQUIREMENTS:
Successful completion of a full 4-year course of study in Computer Science at an accredited college or university leading to a bachelor's or higher degree that included a major field of study or specific course requirements.
Education can be substituted for experience.
Basic Qualification Requirements for Patent Examiner (Computer Science), GS-1224:
A. Degree: professional computer science. Bachelor's degree in computer science or bachelor's degree with 30 semester hours in a combination of mathematics, statistics, and computer science. At least 15 of the 30 semester hours must have included any combination of statistics and mathematics that included differential and integral calculus. All academic degrees and course work must be from accredited or pre-accredited institutions.
Quite a few of the people working at the USPTO are from Virginia Tech as it is one of the closer big schools. Examiner's are hamstrung, not by their own knowledge, but by legal requirements. KSR rationales have made it easier than the old TSM guidelines.