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.'"
Double standards and people (Score:3, Insightful)
Re:Double standards and people (Score:5, Insightful)
Or they change their opinion based on more information. Not all people are underhanded or double-dealing. Some people just learn from their (and others') mistakes.
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I say 80% of evil on earth is ignorance-driven.
Re:Double standards and people (Score:5, Funny)
And the other 25% is just a rounding error.
Re:Double standards and people (Score:5, Funny)
Still using that Pentium CPU?
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Still using that Pentium CPU?
These days it doesn't matter so much, if he's using any Intel processor and compiling with 'fast' rather than 'precise'.
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How many code refactorers does it take to change a lightbulb?
"Heck, you don't even need a full person. Just take part of the skeleton and some of the muscles, maybe some nerves, and there you go!"
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80% of the evil on earth stems from, "Fuck you buddy! Where's mine?" The fact its ignorantly executed speaks to the quality of humanity as a whole, not to the motivation for doing so.
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I say 80% of evil on earth is ignorance-driven.
I would say most types of behavior we would call 'evil' stems from lack of empathy rather than just plain ignorance.
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I would say it stems from envy rather than a lack of empathy.
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I would say it stems from envy rather than a lack of empathy.
The combination is frequently what was call sociopaths. Or more commonly referred to as titans of industry.
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Not that empathy and charity is bad, by any means; but it needs to be tempered with discretion. It can lead to a net loss of freedom if pursued too zealously.
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Or rather, from empathy distributed locally: concern about one's family and friends, rather than generic "humanity." Love of leader, love of country, love of team.
And, of course, there is the need to survive, or to resolve stress (paying for one's housing for a month, etc.)
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“The awful thing about life is this: Everyone has his reasons.”
Jean Renoir
Re:Double standards and people (Score:5, Insightful)
Or, they don't have double standards, but in order to succeed at business they have to do things that they know actually harm business and innovation, because that is how the system is set up and they can't change it. Which seems to be what happened in this case.
It's a bit like the two-party system in the US. Neither party may be very (any?) good, but since one of them is going to be elected, might as well vote for whomever you think is better than his opponent.
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I've never been a big fan of the broad swath of business method patents and even less of a fan of the process for creating and litigating patents. That said, it's the world we live in. So, like every other Silicon Valley entrepreneur, I file patents.
He clearly wants the patent system to change, but can't. True, he doesn't seem to think his patent(s) is (are) junk, but that the entire system is broken so only patents that really are innovative (software or not) are allowed.
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Or, they don't have double standards, but in order to succeed at business they have to do things that they know actually harm business and innovation, because that is how the system is set up and they can't change it. Which seems to be what happened in this case.
It's a bit like the two-party system in the US. Neither party may be very (any?) good, but since one of them is going to be elected, might as well vote for whomever you think is better than his opponent.
Both of these things that you describe are Self-fulfilling Prophecies. They are only true because people accept and believe the premise that they are true before choosing to act. Once people begin believing that premise that they are not true, they will cease to be true.
Re:Double standards and people (Score:5, Insightful)
I see no double standards. Handicapping yourself does not improve the world. If you want it to change you need to play by the rules and work to change it, just ignoring bad rules will not make them go away.
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...just ignoring bad rules will not make them go away.
Sometimes it will. It worked for (the original) prohibition, before it Zombie-Jesused sixty years later...
Re:Double standards and people (Score:4, Insightful)
No, it shows that software patents are the equivalent of digital extortion. You have to patent whether you want to or not simply to protect yourself from being sued. It's a business necessity.
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Or they file the software patent because that's the game, and not filing it means the competition will shut them down when they have no stack of IP to bring to the table.
Just because you're stuck in that game doesn't mean you like it. Deciding not to play just means you're going to get sued into bankruptcy (or charged extortionate royalties that lead to the same thing).
File the patent and license it under DFSG (Score:2)
Or they file the software patent because that's the game, and not filing it means the competition will shut them down when they have no stack of IP to bring to the table.
As opposed to a stack of IPX, or a stack of DECnet, or a stack of AppleTalk?
Seriously, an inventor might file the patent application and offer a blanket license for use of the invention in software distributed under a copyright license meeting the DFSG. This gives the FSF and friends what they want while keeping the option open for the inventor's company to add its stack of patents to uniform-royalty patent pools for non-free use.
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Sometimes, you file patent applications because your employer wants you to, perhaps against your better judgement. Yes, it's an ethical issue, but you have to choose your battles. Idealists rarely survive long enough to accomplish anything. I have some patents that I'm proud of, some that I'm not, and I successfully got my name removed from one inane application that someone else wrote up, without getting my ass fired.
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Yo retard, RTFA.
When you work at a hi-tech corporation, and you are competent, everything you do that is novel is filed as a disclosure for patent. About 10% of my time is spent writing up disclosures on everything I do, which then go to legal, and every now and then a patent pops out. It's almost like writing a status report. I have no idea which concepts will be deemed patent-worthy, but it is required, and sometimes I'm surprised at what makes it. THis is done to protect innovation and intellectual p
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It just shows that most people have double standards. When they or someone they know do it, it's all good. When it's someone else, it's the root of evil.
Or it just shows that when someone reads TFA, they realize the summary and headline is misleading and that the man in question actually has a decent bit of experience and insight in software patents. And when they don't read it they start making up generalized statements based on an incorrect summary to sound like they have enough general knowledge to offer insight on everything at first glance.
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Probably because everyone who is skilled in the art of software spends all day on the internet bitching about the patent office?
Re:Double standards and people (Score:4, Interesting)
How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?
Reword it positively (Score:3)
How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?
I know next to nothing about the USPTO's hiring practices, but I don't see anything wrong with this statement once it has been reworded using positive language: "I want to focus on quality to make sure that only inventions worthy of a patent get a patent. This will bring good reputation to the Office."
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Re:Double standards and people (Score:5, Insightful)
...which begs the question: Why can't the patent office employ a few people who are skilled in the art of software?
No, it doesn't beg the question. A more proper way to do that, would be to state that it would be a good idea to hire computer scientists because it would be a good idea to hire computer scientists. It's a very thin line between that and circular reasoning, which I might have crossed.
Whatever, anyway, the reason why they don't employ CS grads or even IT grads, is they don't employ many grads at all. Its about like the ratio of title examiners to real estate purchasers, or the ratio of grocery shoppers to grocery checker employees. There just are not many of them, compared to the scope of human knowledge.
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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.
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But it would be producing most very large number of lulz old chap, isn't it?
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The USPTO only hires examiners with degrees in a hard science or engineering. Many have CS or CompE degrees.
So - they could hire starlets from the porn industry? Hmmmm - things couldn't get any worse, let's try it!
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They do hire people skilled in the art of software. To be an examiner you have to be qualified in the field you are examining for.
The problem is that the job of patent examiner is mind numbingly boring. Any engineer in that kind of job with any energy and creativity would be unravelling his brain trough his ear hole in short order.
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...which begs the question: Why ...
Sigh. Consider this a visit from the literacy police. Go learn what "beg the question" means. Please.
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a) I just won a bet ... thanks!
b) This is almost a perfect example of begging the question.
If patent examiners are being allowed to examine patents then there's an implicit assumption that they're qualified to do so.
We're all debating whether the patent system is any good but we'll never know so long as 99.9999% of patents are complete junk. The problem of junk is what needs addressing, not the system.
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It's the same reason that the people doing tech support aren't skilled software engineers - yes it would be helpful if the guy answering the phone knew the minute details of the application you needed help with...
Anyone smart enough to write a computer program is doing that - they aren't sitting there for 20-30 dollars an hour reviewing patents.
Check this out:
http://jobview.usajobs.gov/GetJob.a [usajobs.gov]
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FTA: "Unfortunately the patent industry relies far too much on patent prior art and ignores the vast corpus of open material. The result is that many patents look stupid on their face to anybody 'skilled in the art.' "
...which begs the question: Why can't the patent office employ a few people who are skilled in the art of software?
Money. If you are really good at it, do you want to start as a GS-5 at $27K and maybe, years later, be a 13 step 10 at $93K (at which point you haven't done examination work for a number of years anyway); or would you rather make multiples of that in private industry? While there are many good people who work GS jobs, you can imagine how hard it is to hire and retain people with specific talents that are demand in the private sector
Anonymous? (Score:2)
How is he an anonymous reader if his name is in the second sentence of the article?
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I doubt the person described as 'Idiot' in the summary, is the one who submitted it.
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How is he an anonymous reader if his name is in the second sentence of the article?
Remember that in addition to being "anonymous," he is also a self-proclaimed "Idiot."
CmdrTaco? (Score:2)
It's CmdrTaco's fault we have idiotic software patents?
response to summary (Score:2)
But I hate individual website comment systems...
...back to
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:Errors in the Article (Score:5, Insightful)
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.
So? Those are not mutually exclusive scenarios. A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.
Moreover, the obviousness analysis is based on prior art.
Great, so you just proved the original point, the point you were trying to argue with. The USPTO focuses too much on prior art. Even when they deny a patent for "obviousness", all they're focused on is prior art.
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A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.
My point was that the article claimed that "obvious things are patented because the PTO focuses on prior art rather than obviousness." In fact, the PTO focuses a great deal on obviousness (at least one obviousness rejection is raised in a majority of applications, I believe).
Even when they deny a patent for "obviousness", all they're focused on is prior art.
How could you possibly decide whether something was obvious without using prior art? Simply asking a person of skill "in your opinion, without any other evidence, would this have been obvious?" is a subjective mess.
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How could you possibly decide whether something was obvious without using prior art?
You don't ignore prior art, but you also don't ignore prior art just because it isn't exactly the same as the patented idea. Yeah, you show someone who's skilled in that area a piece of prior art and ask them, "in your opinion, is this an obvious modification of this prior art?"
Hell, you want something less subjective? Maybe you give them a specific enough description of the problem they need to solve, and see if they come up with the same solution on their own. If so, it's obvious.
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but you also don't ignore prior art just because it isn't exactly the same as the patented idea. Yeah, you show someone who's skilled in that area a piece of prior art and ask them, "in your opinion, is this an obvious modification of this prior art?"
That's pretty much precisely what the KSR decision says.
Hell, you want something less subjective? Maybe you give them a specific enough description of the problem they need to solve, and see if they come up with the same solution on their own. If so, it's obvious.
That would be rife with hindsight bias unless you have a time machine.
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Because not everything that is obvious is patented? Like this one,
A computerized list is provided with auxiliary pointers for traversing the list in different sequences. One or more auxiliary pointers enable a fast, sequential traversal of the list with a minimum of computational time. Such lists may be used in any application where lists may be reordered for various purposes. [google.com]
This is not a new idea, but it was issued in 2006! But I guess it is easier to just treat the patent office database as the complet
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You do realize that that patent cites as prior art numerous patents describing linked lists and other data structures, right? The patent doesn't claim a plain, CS101 linked list. The idea is a linked list with two pointers per node such that the pointers describe two different sequences (e.g. in a list of customer records, one set of pointers traverses the list according to last name and the other according to first name).
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The idea is a linked list with two pointers per node such that the pointers describe two different sequences (e.g. in a list of customer records, one set of pointers traverses the list according to last name and the other according to first name).
And, this is the problem with software patents.
Anybody who has ever used indexes in a database would immediately realize that this patent is the same thing using a slightly different data structure. Every CS student who takes a data structures class has had to endure the "now use to implement assignment 3", and would see this patent as obvious. And yet, the reason it was approved as a patent is because nobody sane had ever believed that something as simple as a linked list could be patented, so there isn
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The real problem I think is the standard for obviousness; that is "obvious to one with ordinary skill in the art".
Well pooh. Someone with ordinary skill in the art isn't going to be all that creative, and 'obvious' means that he can come up with the same idea without any substantial time or effort.
That's a damn low hurdle.
Patents should be granted for something that clears a significantly higher hurdle, not something that could be thought up by any shlub who spent an evening on the problem.
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Moreover, the obviousness analysis is based on prior art.
Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked. This leads to patents being issued for obvious art, as defined by other practitioners of that art.
Stupid example:
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Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked.
No, the PTO has access to lots of non-patent databases (e.g. scientific journals). Rejections based on non-patent literature are very common, including in software. They should probably be more common, and the examiners need both better search tools and more time to perform their searches, but it is not the case that examiners only consider patents and patent applications.
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They should probably be more common
You have got to be kidding. The software patent system is a joke. Just what bizzaro planet do you live on.
In my entire life, I have *never* heard of a software developer going to a patent to find out how to do somthing.
Just what is the point of software patents anyway? Artificial barriers to entry that can be used as negotiating tools? Innovative bussines model for patent trolls? Job creation program for Lawyers?
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Oddly enough, your example reminded me of Hofstadter's Gödel, Escher, Bach [wikipedia.org], particularly [handwaving-description]Gödel's method of assigning integers to sentences in logical systems, which he used as part of his proof of the Incompleteness Theorem.[/handwaving-description]
Re:Errors in the Article (Score:5, Insightful)
"Patents are meant to protect innovation so they should be held to a high standard."
Patents aren't meant to protect innovation at all. Patents are made to grudgingly protect an inventor's rights, for a limited time, in exchange for public disclosure. The alternative is that the inventor still innovates, but keeps his or her innovations secret and exploits them behind closed doors. Others then have to duplicate that effort, wasting time and money.
Trade secrets do a much better job of protecting innovation, since they last forever. But that's bad for society, so we want to encourage public disclosure of innovations, so that the overall pace of innovation is accelerated. But we, as a society, couldn't really care less about any individual inventor's rights.
There's another, more important one, that I think the author got completely backwards:
We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:
This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome.
This is something the CAFC and Supreme Court have been wrestling with, but they haven't fully enunciated their reasoning yet. I think it's pretty clear if you look, not at the patent, but at the remedy for infringement. If you have a patent where the claim can be done fully in your head (1. A method for determining a summation, comprising adding two and two, and realizing the result is four) or on paper, then it's possible to infringe by thinking. One of the remedies for infringing a patent is an injunction, preventing the defendant from performing the patented method until the patent expires... so, stop thinking. I patented imagining a pink elephant. Don't think of a pink elephant. Wait, you just did! You owe me more money now.
This applies to software patents, business method patents, diagnostic method patents, etc. In the latter, a method that claims "determining a patient has an elevated blood count of chemical X; realizing the patient has disease Y," can be infringed simply by reading an example in the patent specification itself!
The courts have realized that's a problem, and that's why they started requiring a physical machine or transformation in Bilski. If the claim says "determining, via a testing kit, that the patient has an elevated blood count" or "adding, by an FPU of a computing device," then it's impossible to infringe the patent in your head, and injunctive relief is possible: think all you want, do whatever you want with pen and paper, but don't use a testing kit to measure this chemical or use a computer to determine this value.
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The courts have realized that's a problem, and that's why they started requiring a physical machine or transformation in Bilski. If the claim says "determining, via a testing kit, that the patient has an elevated blood count" or "adding, by an FPU of a computing device," then it's impossible to infringe the patent in your head, and injunctive relief is possible: think all you want, do whatever you want with pen and paper, but don't use a testing kit to measure this chemical or use a computer to determine this value.
The difference would be between "use A computer to determine this value" and "use THIS SPECIFIC computer to determine this value." I think if I embedded my grandiose idea in an FPGA's gateway, I have a tangible thing that produces concrete results, and the machine it is a part of should be patentable.
So there's my grandiose idea, that I should obviously patent: "A method for patenting software. Express the software you want to patent by burning it in an FPGA. You have now produced a concrete, tangible m
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I've heard (long time ago and it was probably wrong anyway) that the first software patent was granted on an invention that incorporated an embedded computer into the process. It was something like a machine that automatically mixed a batch of chemicals, and the computer was an integral part of the monitoring and feedback control this process required. Did that machine deserve a patent? It sure sounds like it to me. It passes both the machine and transformation tests. It was useful. It probably wasn't
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The alternative is that the inventor still innovates, but keeps his or her innovations secret and exploits them behind closed doors.
This justification doesn't hold for software patents. We know this, in part, because nobody learns software by reading patents. The bargain is broken; society gets no benefit.
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Trade secrets do a much better job of protecting innovation, since they last forever.
Just to be pedantic, trade secrets last as long as they are kept secret. Post the recipe for your secret sauce on the company website, and your innovation is no longer protected. Unless of course you require every one that accesses the site to sign an NDA. And it provides no protection from reverse engineering.
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Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
Which is one of the problems with patents per TA, patents are not reviewed prior to rubber stamping them which leads to patent trolling and settling for those who cannot afford to defend themselves against bogus violations claims. Proper review coming in the door would reduce the problems.
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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?
More exact: Would it have been obvious for someone with total and complete knowledge of all the prior art in existence, and with infinite amount of time and patience, but with no inventiveness of his own, to put these pieces of prior art together to create the claimed invention?
So if there are two commonly known pieces of prior art, but it is not obvious that combining them would give the wanted result, that is non-obvious. If there are two extremely obscure pieces of prior art, that nobody on Slashdot e
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but with no inventiveness of his own
That is not accurate, at least not since the KSR decision, which held that "A person of ordinary skill is also a person of ordinary creativity, not an automaton."
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fix patents (Score:3)
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Relevant article [wordpress.com] - Congress siphons off patent fees instead of allowing the money to be spent by the USPTO to do it's job properly.
Use it as a weapon (Score:2)
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Just to hang a number on it, according to a web site that cited the US Treasury, $1 million in $100 bills (10,000 bills) weighs about 22 lbs., or 10 kg. So a metric ton (1000 kgs.), aka 'tonne', would be about $100 million. If one uses $1 bills then it's only about $1 million.
Idiot's Call for Epic Fail? (Score:2)
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RTFA...he's not involved in the court case (Score:2)
So he can't defend it badly.
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He doesn't own the patent. It's not his to defend.
Two reasons software patents should not be (Score:2)
1. It is a mental process or it could be. I like that argument if it weakens software patents. But as the article points out, generally speaking, software patents are obvious or have prior art which has not been patented previously. Moreover, we see a lot of implementation shifting where "... on the internet" or "... on a computer" is added to things which are already done elsewhere.
2. Software development and innovation is a massive community effort. Even in the closed source world, ideas, methods and
Re:Two reasons software patents should not be (Score:5, Insightful)
OK, so let's trot out the old chestnut of pharmaceutical patents. Let's say I invest $100 million to do the research needed to create a new drug, I create it, and the doses cost only $1 to make. Extrapolating from current demand, I will sell a million doses in the next 20 years while my patent is in force. I set my price at $200 per dose; with the costs being $1 in manufacturing and $100 in repaying my investment, so I'm making $99 in profit per dose. After 20 years, I have $99 million dollars in profit.
If I don't have patent protection, as soon as my drug hits the market someone will do an analysis and make a generic clone of it, selling it for $100 a dose, also settling for a $99 profit margin. They would take over 99% of the business from me, leaving me stuck with the tab for about $99.99 million dollars in research investment.
Would any pharmaceutical company ever do research again? Would anyone be trying to cure anything if they thought it would bankrupt them to do so? My guess is that a few celebrities will be affected by some diseases and create "foundations for the cure" efforts on a one-off basis, but in general, innovation in drugs would die without the patent system.
Of course, this is a simplistic picture, and the real world of shady marketing, fraudulent studies, suppressed side effect reporting, drugs to treat imaginary ailments, and all the other unethical stuff the pharmaceutical companies do certainly complicates things. And there are ongoing costs to the inventors and manufacturers of the drug: lawsuits over side effects, wrongful deaths, etc. But at its core, without the patent system these drugs would never be created.
So if we've established that pharmaceutical patents are necessary to drive research that may benefit us as a whole, then at least part of the patent system should at least be salvaged and not dismantled.
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Actually cost of sales is about 50%, operations is probably in the range of 20% to 25%, liability insurance is on the order of 10% to 15%, so profit is only about 15% to 20%. Oddly enough, that's about what the companies report as a rule.
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Why does a drug cost $100,000,000 to develop?
Well, let's see. How's that cure for the common cold working out? Haven't figured it out yet? How about vancomycin-resistant Enterococcus (VRE)? Or methicillin-resistant Staphylococcus aureus (MRSA)? Multiple sclerosis? How about herpes? Strokes? Blood clots? Well, we gave you a million dollars, so everything must be cured, right?
Let's say you've spent 10 years doing the research, paying hundreds of scientists, lab workers, assistants, administrators, managers, etc. You're in an expensive lab in a
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The aspect unique to the pharmaceutical industry is the size of the investment. I can't sit in my garage and test a hundred thousand compounds, or even test one compound on a level 4 biohazardous material. I may not have a hundred friends with herpes who want to inject themselves with John's Herpes Drug Trial #317. And after the trial, I may only have 88 friends left, and a dozen multi-million dollar wrongful death lawsuits. I can perhaps build a wristwatch that houses a fishing reel, or a hat that hold
Still sounds like he's missing the point (Score:2)
it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules.
But should it be?
I think that a new novel invention that takes metabolic readings should be patentable. I mean, it has to have some form of input from the patient, be it a new invention to measure blood pressure or a new invention to measure blood-sugar levels, etc...
But why should adding an 'alarm' to it be patentable? That sounds like a really OBVIOUS addition. Why should making it 'automatic' be patentable? Not only does it sound like an obvious idea, it's not an invention, it's a process.
-Rick
Wake Up Congress?!? (Score:3)
From the article:
This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.
HAHAAHAHAHHHHAHAHHHHHAHHHAAAAHAHAA. That was awesome. My eyes are watering. Man, I've been working long hours for the past week or two, and I needed a good laugh this morning.
That is absolutely precious. OK, Mr. Masnick: I hate to be the one to bear this bad news, so I'll try to do it gently. Congress is not interested in protecting entrepreneurs, the middle class, small business, or any of the other drums they beat so frequently. When a Congress person says "We have a responsibility to protect XYZ", it is like when the President says, "I have complete confidence in Michael Brown". It means "The referenced person/class is a freaking albatross that I would sooner toss down the oubliette than spend one more minute thinking about, but professional politicianing requires that I pretend I don't want to gut it and sell the tender innards to my friends."
Congress cares about lobbyists with a lot of money. Period. End of story. Entrepreneurs have jack shit. Entrenched incumbents have the money. Entrenched incumbents are who is served by patent policy. Congress is entirely awake and aware of who their puppet masters are.
Want proof? Read this. [wikipedia.org] We are the only country in the world that still rewards the inventor with the patent, instead of the company with the fastest lawyers. It is blindingly obviously the right way to reward innovation instead of litigation. It is so obvious that for Congress to accept First-to-File would be indefensible as supporting innovation or entrepreneurs to anyone who has even a remote knowledge of the patent process. And for inventors who have lots of patents, like my Father, the idea of First-to-File is enough to send him into a half hour apoplectic tirade that makes me fear for his heart. Yet the movement to make the switch is alive and kicking, and probably going to happen within the next few years. Why? Mostly because with every check Microsoft writes to damned near every person in Congress, they say, "Oh, and pass first-to-file -- we're tired of only getting patents when one of our employees invents something."
Patent vs. patent, not patent vs. prior art (Score:2)
Patents: not what he thinks (Score:2)
US Constitution, Article 1, Section 8, Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
That's ->TO PROMOTE THE PROGRESS-, and "SECURING FOR LIMITED TIMES", not "protect innovation".
mark
Obviousness Test (Score:2)
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Semi related.. but someone tried (or maybe succeeded, I can't remember) to patent patent trolling as a business model...
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Then patent all known court procedures too, then license them on a case by case basis.
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Well that's because a lot of it comes from the hindsight perspective. Would we do "that" again? We then tell ourselves "no, we won't ever do that, now we'd do it on Rails and that STL stuff was just a fad!"
But then again, it was 3AM and the code had to be done by 7, so you only had 4 hours to unit test.
In all honesty we always look back on our past work with a lot of disgust but it's not as disgusting as some of the morons we worked for who told
us to ship buggy code to make revenue for the quarter. Yeah,
Even worse. . . (Score:2)
I was once reading the "letters to the editor" column in a major trade journal, and ran across a letter that said everything I always wanted to say about a particular subject. The letter was concise, insightful, and incredibly lucid, so I looked down to the end of it to see what genius wrote it -- and it was me!
A few weeks earlier I had had a case of shingles, and was given some pretty stiff prescriptions for Vicodin and Percocet to dull the pain. As it turns out, they also caused memory problems; I had t
Misunderstanding of 'prior art' and 'obvious' (Score:3, Interesting)
From TFA: "... 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."
I couldn't agree more.
Except that both the article author and you don't understand what prior art and legal obviousness are. That prior art exists does not mean that something is not new: prior art is any relevant art in the field that was published or publicly available prior to the filing date. RFC 793 (TCP) is prior art for RFC 2460 (IPv6) because it's in the relevant field (networking protocols, albeit a different layer) and was published earlier.
What you and the article author think prior art means - "is this new" - is a
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RFC 793 (TCP) is prior art for RFC 2460 (IPv6)
RFC 791 for IP addrs ... you're crossing ISO layer boundaries there.
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How about this one [google.com]. In hindsight, I'd call it pretty obvious.
I wouldn't call it "pretty obvious", but I would say that we definitely need to go back to the "supply a working model" requirement for patents like this. Otherwise, anybody can just put together a few things that may or may not be "obvious", but could eventually hamstring an industry, since the patent would be much broader than any actual device.
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if, "A+B" exists, and "C" exists, but there's no explicitly written and published in a specific form art for D, then A+B+C+D can't be be proven beyond any doubt, to be obvious except in hindsight
.
Fixed that for you. Because there are many things that could give you a pretty good idea of obviousness.
For example, call a few engineers in the appropriate field and give them the scenario the patent was developed under and remind them of 'A+B+C' - if 'D' if the first thing out of their mouths, it IS obvious.
Also, if there's a list of similar methods D-G, and ABC+D is known to work, applying any of E-G is obvious. The way the people in whose name the law is enacted would use the word,.maybe not the way yo
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An invention is not new if a single piece of prior art discloses each and every element in the claimed invention.
Which leads to so many stupid patents of the form "...with a computer" or "...on the Internet".
Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention.
So, what you're saying is that because nobody has patented "a computer" or "the Internet", all those stupid patents can't be rejected because "they're not obvious". Well, that explains the mess we're in.
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they can't just say, "eh, I think this invention is obvious." Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention.
It was my understanding that the patent claims are obvious if anyone with average skill in the field could of come up with them if presented with the same/similar problem. There are some problems, especially in software, where there are only a few possible solutions and they are obvious to any programmer if given the task to solve the problem. In software what usually isn't obvious, are the problems themselves. Problems, as far as I'm aware, are not patentable.
For instance, I am a problem-solver, it is my n