Patent Law Tidbits

Comments: Thousands of patent attorneys read Patently-O every day. (This week, we’ll reach 3,000,000 visits).  In addition to ‘passive’ readers, Patently-O has also been recognized as fostering an open discourse on patent law and its application to particular cases. These discussions — usually through comments — are written at a fairly high-level and continue to help me develop an understanding of the changing law. Thanks to all of you who have left comments or otherwise contacted me about our recent patent law debates. Two things to put people on notice:

  • I allow anonymous and unfiltered comments because many patent attorneys don’t want to go ‘on record’ about much of anything. You should be aware that the Typepad software does record your network’s IP address. Thus, I can tell if you are writing from the FAA, US Courts, Quinn Emanuel, etc.  Although I don’t know, I suspect that a networking expert could potential drill-down for more specific information.  I won’t give this information out to anyone without a subpoena  — but Typepad does keep it on record. 
  • There should be no need to mention this, but perceived anonymity sometimes blinds people — comments sometimes get out of line. My tendency not to censor comments, but instead to simply block offending commenters from ever posting.

Around the horn:

Quote of the week comes from Dan Ravicher discussing Patriot Scientific’s troll-like behavior:

“While one can’t blame them for doing what is in their self interest – much like one can’t blame cockroaches for appearing when it is you who left crumbs on the counter – it is past time for our policy makers to ask themselves whether such activity is beneficial for the public, or is instead a siphoning of resources that could be better spent on doing technological research or passed on to consumers in lower prices for goods.”

 

69 thoughts on “Patent Law Tidbits

  1. “insert Quote from someone else ”

    Add Drivel

    (Cite: I don’t know because I’m not a member of any bar, even though I play one in chatrooms, Fed Cir 200?)

  2. stepback

    This is not about the virtuous little guy and predatory big business. It is about the common good. Patents are provided for to further the common good and having too low a thresh-hold will do more harm than good. If we are to err we should err on the side of non-patentability, rather than patentability.

    You should be careful about using Edison as your example. He has rather a lot in common with Bill Gates. You may want to deify Edison but Nicolai Tesla and George Westnghouse would have had very different views of Edison.

  3. Despite this wonderful, colorful back-and-forth, the simple fact remains that there will never be a patent system on which everyone will agree.

    Bright-line tests are rare, and one simply will not work for patents at least because of the problem of hindsight and questions about who is one of skill in the art. This is why Joe’s test is more problematic.

    In addition, although it is nice to argue for more consistent results in terms of what should be patentable, it may not be achievable unless the PTO is able to implement any test successfully. Malcolm touched upon this point earlier. While there are a number of good examiners and good office actions, there are also a large amount of the opposite. Rejections are crapshoots depending on the examiner and supervisor. Giving the PTO more time and resources to hire, train, and oversee examiners may serve much better than an attempt to change the law.

    Just my $0.02.

  4. “I don’t think that the insiders understand how close you are to having the current system swept away, by Congress or SCOTUS, as a result of your collective over-reaching. ”

    Some of us do, Joe. Some of us are, in fact, are aware of a so-called “Coalition for Patent Fairness”
    ( http://www.patentfairness.org ) that uses psycho-linguistic techniques and bribery to manipulate the easily gullible public (including, sadly, you Joe) that there are these evil “trolls” out there, everywhere, under every bridge; lurking and waiting to pounce on poor indefensible Microsoft or Intel and beat them over the head with a patent because poor poor Microsoft and Intel are the good guys and they never trespass on other people’s inventions and they never use the patent system for their own selfish gains; they are just the innocent as pure snow victims of these horrid “trolls” as are other admitted members of this “coalition”
    (link to patentfairness.org )

    Some of us are not so close minded as to never listen to the other side of the story (see Ron Rijley’s comment at the Patently-O posting:
    link to patentlyo.com)
    and to start understanding what is really going on.

    Some of us are not so close minded as to not understand the extent to which Microsoft embraces the idea of open source programming and the idea of “sharing” for free all the programming that they generated, the software that anybody would have come up with anyway in just a few years and so therefore everything poor poor Microsoft does should be free instead of being “proprietary” and suffocated under shrink wrap licenses.

    It’s a complex story Joe.

    Please don’t be a simpleton and believe there is only one version of the truth, the administration’s version of the truth. Keep reading Patently-O and other resources to get a better picture of what is really happening to the “American Dream”, the dream of some down in-the-luck every-day-Edison coming up with a bright idea and actually being compensated for that idea. Or is the truth more often that there are predators out there waiting to pounce on any unsuspecting inventor and suck the life blood out of him?

    Yes Joe, keep believing in Santa Claus.
    But at the same time, verify before you trust.

  5. “I don’t think that the insiders understand how close you are to having the current system swept away, by Congress or SCOTUS, as a result of your collective over-reaching. ”

    Some of us do, Joe. Some of us are, in fact, looking forward to a change because we are tired of looking at absurdly broad claims that are — at least as often as not — achieved through deception, “good for nothing, debate-club lawyering,” and the old reliable tactic of flooding the stage.

  6. Stepback – you asked what I thought and then slam me for telling you – interesting tactic.

    Five years has an element of arbitrariness to it but the idea was if we are going to grant someone exclusivity for 20 years what is a reasonable trade-off in terms of time for the patent system getting it for us sooner. Five years seems reasonable to me.

    The problem with your position and the in terrorem arguments you make is that it leads you to say, as I understand you, that trivial inventions should be patentable because drawing distinctions is too hard. But the law is all about drawing distinctions and the in terrorem argument can be turned on its head and if the distinctions are too hard to draw then maybe nothing should be patentable.

    Judeg Giles Rich may have been a genius but the literal wording of the test for obviousness is far too low from a public policy point of view and is too low from a constitutional authority point of view.

    If we divide the persons knowledgeable in the art into quintiles then a literal reading of obviousness says that the invention is patentable unless it is obvious to someone in the third quintile – so even if something is completely and immediately obvious to the first and second quintile, if it is not obvious to that magic third quintile it is patentable. I think that is wrong.

    As an outsider to the patent industry, I don’t think that the insiders understand how close you are to having the current system swept away, by Congress or SCOTUS, as a result of your collective over-reaching. Just my opinion of course … until we see what SCOTUS does with KSR and Teleflex.

  7. Joe Smith wrote —”On balance I would say that the law should be that Visicalc would not be patentable.”

    Joe Smith wrote —”1) if the invention would probably have been independently invented within five years by someone else without the existence of a patent protection system the idea should not be patentable;”

    Joe,
    Clearly you are not a sneaky, good for nothing, debate-club lawyer. So I forgive you for not realizing you have started sliding down two slippery-slope roads to oblivion with the positional corners you just painted yourself into.

    Let’s start with the second first. Why 5 years? That’s an arbitrary number picked by you. Let’s make it 7 years, or 15 years or 1000.

    And why make the test as one based on “probably would have been independently invented”? Let’s arbitrarily pick a different burden of proof like, “might possibly have been invented by somebody else even if he or she needed some ‘nonindependent’ help that would have come around anyway”.

    Do you see where this is going and why it is unworkable? Wrting a law is not as easy as it seems. Judge Giles Rich was a genius. He wrote the 1952 Patent Act based on his reading of thousands of patent cases and his coming to grips with why the “synergy” test or the “stroke of genius” test were unworakable and had to be discarded. Long before you were born, Joe, many a smart legal scholar have already debated much of this stuff and have tried out a lot of dead end roads. The current obviousness test under 35 USC 103(a) is one that survived the test of time.

    As for your Smithian “on-balance test” regarding Visicalc, who died and appointed you lord chancellor of all matters o’patent? Why can’t we use my “balancing” test or small guy’s? Why only yours? That does not sound too fair or balanced. :-) Peace.

  8. Small guy – I have tried Dragon Dictate and I was disappointed. I know people who are using Dragon Dictate on newer machines and it seems to be working ok for them. As I said the progress seems to be a result of increasing processing power. If it ultimately works better in the future because of increased power then there is no reason for a patent, on the other hand, if there is an algorithmic breakthrough – it might deserve a patent.

    Stepback – I don’t understand the point you are trying to make. You seem to want to deal in absolutes and I don’t. Visicalc was a far more important development than many of the things being patented now and yet:
    1. Visicalc was invented without the incentive of patent protection;
    2. Visicalc at its core was an interactive interpreter and that type of software had been available for a long time in computer terms – link to en.wikipedia.org – I personally was using APL in 1973.
    3. Visicalc was an automation of a paper and pencil technique using standard programming methods.

    It is perhaps interesting to note that Dan Bricklin who was one of the inventors of Visicalc is opposed to software patents: link to bricklin.com

    On balance I would say that the law should be that Visicalc would not be patentable.

    You and I both know what hardware and software are in general terms and there is no point is debating in a general discussion such as this where the precise line is to be drawn between the two. The problems with the current test for patentability are not limited to software – see e.g. Teleflex v. KSR or eBay v. MercExchange. The problems with patents are acute in software because of the economic importance of software, the low barriers to entry and the fact that software systems are hugely complex and built on foundations of earlier innovations.

    So far as what should be patentable – as a general proposition I think we need a different paradigm than the current patent model to protect big investments in development work (the sort of work that pharmaceutical companies do to prove that a drug will work). Using a one size fits all model is causig too many problems. For inventions falling within a patent model the test should be:
    1) if the invention would probably have been independently invented within five years by someone else without the existence of a patent protection system the idea should not be patentable;
    2) where an infringer has independently invented the concept then the remedy available to a patent holder would be limited to a fair licencing with no opportunity for a hold-up.

  9. Hey Joe,

    The reason I brought up speech recognition is that, unlike you, I actually know some theory behind it…
    The current paradigm is based on purely statistical framework developed back in 70s and 80s -so-called Hidden Markov Models, or HMMs. This paradigm hasn’t changed much since then, but due to hardware improvements you can buy software nowadays like Dragon Naturally Speaking and run on your Pentium PC in real time.
    Try it for yourself – most probably you will be dissapointed.

    Many leading experts in the field believe that the current paradigm is a dead end…

  10. Dear Joe Sixpack Smith,

    You can’t drink your beer and keep it too.
    So which is it? Make up your vacilating mind and step forward out here into the sunshine with your final answer:

    (A) Visicalc “deserved” a patent, or
    (B) Visicalc did not “deserve” a patent.

    Your answer ________

    While we have you answering these very simple test questions, here are a couple of fill-in-the blanks:

    “Hardware” is _____
    A “computer” is ______
    An “idea” is ______
    The only things that qualify as being any novel and useful machine, process, manufacture, and composition of matter are: _____

    You have 30 minutes to complete your answers and turn in your bluebook. We know you won’t disappoint us.

  11. Small guy
    I think you are wrong. Speech recognition has been improving as processing power has increased. When (if) we finally see “robust speaker independent speech recognition” it will be a result primarily of hardware improvements. If there is a software breakthrough that allows that type of recognition on existing hardware then I don’t begrudge the guy the patent but if it is simply an adaptation of existing thinking to a new opportunity then there is no reason for him to get a patent. The economic pay-offs from real time robust voice recognition are so high that there is lots of incentive with or without patents.

  12. Joe wrote:
    “That seems to happen a lot in software. Hardware advances make new types of software possible and the new software is then promptly invented by someone. The innovation is being driven by the expanding capabilities of the hardware, not the incentives to individual programmers. ”

    Hey, Joe, this is just plain nonsense..

    Take computer speech recognition, for example.

    The hardware to make it possible has been available for at least 5-10 years ( I am talkign about real-time speech recognition: with the batch-processing it could be done back in 60′s on the mainframe)
    Now, where do you find a truly robust speaker-indepnedent speech recognition today ?

    I can tell you this: is hasn’t been invented yet.
    Now, do you want to deny a patent protection incentive to the guy who finally makes it possible ? You won’t see it then, or it will be kept a trade secret.
    Trade secrets = no progress.

  13. Stepback

    Not every person sceptical about software patents will say that every piece software development should be unpatentable. Visicalc may be a good example of a software concept which should have been patentable. Remember however that Visicalc was invented at a time when software patents were not being granted – so it was invented in spite of a lack of patent protection. Visicalc was invented as a computerized embodiment of a pencil and paper process which had been in place for decades so it may not have been sufficiently novel to be patented. Visicalc was invented about as soon as the computer hardware had advance far enough and computer time had become cheap enough to make it a viable concept. That seems to happen a lot in software. Hardware advances make new types of software possible and the new software is then promptly invented by someone. The innovation is being driven by the expanding capabilities of the hardware, not the incentives to individual programmers.

  14. Software visualizer you’ree right. Ignore stepback – he is probably a lawyer playing the usual lawyer games of setting up straw men, quibbling over definitions and making flood gate arguments.

    Stepback may be right that foreigners are patenting software in the US but that does not mean that patent protection is encouraging development in the US. If Microsoft loses in the Supreme Court we can expect them to accelerate the movement of development activities offshore.

    With respect to this site generally I find that the arguments, and I include myself, tend to be repetitive. The arguments also tend to mix up arguments over what is, what could be and what should be. Each of us of course tends to pick that field of argument which interests us the most and where we feel the most confident in our arguments.

    It might be nice if we could reduce the arguments to some set of numbered propositions so that a person could make their argument simply by referring to whether they agree with standard propositions. For example my arguments boil down to just a few propositions – everything else flows from these:
    1. there is no natural property in an idea;
    2. the constitutional authority of Congress to grant patents is limited to a system which in each of its severable aspects on balance promotes the advance of the useful arts;
    3. every useful idea is inevitable (so long as it remains useful)
    4. a patent system may accelerate some inventions but it comes at costs in terms of (a) discouraging some innovation (no one wants to spend a bunch of money only to file second for a patent) (b) transaction costs of negotiating licencing fees (c) dead weight losses when the patent holder is not able to effectively discriminate between those willing to pay a lot and those willing to pay only a little for the invention (d) dead weight losses from the opportunities which a patent system creates for extorting payments from others who have inadvertently infringed a patent and incurred large sunk costs in the process. The interest of society requires a balancing of these effects and the definitions of concepts like “obvious” need to driven by the ideas of whether or not the invention would have been made within a short period of time whether or not there was a patent system.
    5. If what we are really trying to protect with a patent system is not the moment of inspiration but the periods of perspiration in bringing an idea to market then we should say so – it may provide a useful way to protect pharmaceutical investments while remvoving protection from most software.

  15. Stepback,

    Here is another web-page of interest:
    link to swiss.ai.mit.edu

    One notable quote about inventions and patents in general:

    “Jealousy and Envy deny the merit or the novelty of your invention; but Vanity, when the novelty and merit are established, claims it for its own… One would not therefore, of all faculties, or qualities of the mind, wish for a friend, or a child, that he should have that of invention. For his attempts to benefit mankind in that way, however well imagined, if they do not succeed, expose him, though very unjustly, to general ridicule and contempt; and if they do succeed, to envy, robbery, and abuse.”
    -Ben Franklin, 1755

    The human nature hasn’t changed much….

  16. These little write ups often take one on diversionary “surfs” through the internet. So here is one I hadn’t though of looking up (it wasn’t “obvious” to me at the moment):

    link to en.wikipedia.org

    I keep wondering how “obvious” Visicalc was before it was invented and why no one had thought of it before –I mean even during the mainframe era?

    I keep wondering why each critic of software patents is not right now inventing the next great thing instead of waiting for someone else to do it and then, only then, coming out of the woodworks to argue, gee this is trivial and I “could have” easily invented it, no way it “deserves” a patent.

    That said, the open source community still produces great stuff. Take AutoHotKeys (AHK) for example, great stuff. Makes my everyday keyboard life much easier. Sleep, 1000; Send {End}.

  17. Small-guy,

    Thank you for the kudos.
    But that said, let us not go overboard. Given that “software” is a touchy feely word without any clear definition, we cannot say what “software” clearly is or what it is not.

    I tried to do a google search on the etymology of the word “software” and came up fairly dry but for one ancient reference to software meaning soft garments such as made of wool. Because of the rapid pace of change it is very difficult to put a fix on an ever changing word like “software”. Consider instead the term: “software bug”. At least Wiki has an etymology on that one:

    link to en.wikipedia.org

    See also:
    link to en.wiktionary.org and
    link to en.wikipedia.org

    For what it’s worth, my personal recollection of what “software” meant back in the 1960′s was that it was easier to change than “hardware”. Hardware was “hard” to change because you had to bring out the big soldering guns, soak up the old solder and its flux, clean everything, cut the traces on the PCB and add new wiring patches. A real headache. “Software” meant you could swap the locations of Fortran punchcard 233 with that of 234 and now the program operated differently. :-)

  18. Excellent comment, Stepback,

    I’ll just add couple more ridiculous arguments frequently used by anti-swpatent folks:

    1. “Software is math, and math is not patentable”
    (From Ben Klemens’ recent tretise “Math you can’t use” – I am wondering who pays for this kind of “research” ?)

    2. “Software is speech”, it is written just like a poem and therefore should be free of patents (“Copyright is all we need”)

    Needless to say, both of the above statements are completely false.

  19. Software-visualizer,

    There are so many things wrong with your algorithmic logic (not with you, you’re a cool guy & this is not an ad hominum attack) that I can barely begin to list them. Let’s start with a short list:

    1. There is no universal defintion of “software”. Thus no one can draw a line in the sand to determine what is a “software patent” and what is not. If I file a claim for an FPGA programmed to implement a Fast Fourier transform in an efficient manner, is that a “software patent”? (BTW, an FPGA is a piece of hardware, a chip that comprises an array of programmable electronic building blocks and programmable interconnect. There is no debate that an FPGA is hardware. A programmed FPGA is hardware that “includes” a set of preconfigured memories in it. Thus software is a subcombination of a clearly hardware entity in this example.) Similarly, BTW, there is no universal defintion of “business” and thus of what a “business patent” is is.

    2. One psycho-linguistic one-liner from the League propaganda keeps reappearing in your arguments. You argue about how: “No one is motivated to innovate in our precious and special field of software because they think they will get a patent for it” (a paraphrase). Well Doh. That psycho-babble applies to essentially every field of technological endeavor. What do you think, Thomas Edison sat down one night and said, “First I’m going to think about getting a patent for an improved light bulb, and THEN I will invent the thing”? No. It’s almost always the other way around. The invention comes first (in every field, not just our precious one) and THEN the inventor –if he is a small guy rather than a lackey of some big brother corp.– starts worrying about how to prevent others from simply Control-C’ing his ideas.

    3. On moving to “technology friendly” Europe –go ahead and do that, but you’ll be going against a massive flow heading in the other direction. “They” are all coming to America. Why? No patents in Europe. So they come here & file here.

  20. To those above who have personally attacked another, I implore you to stop. Do you really want to force Dennis to play the role of babysitter?

    If someome insults you, maintain your cool and demand that they stop it. Don’t return fire and turn this site into yet another internet flame fest.

  21. “If the claim were to describe the software as stored on a magnetic or optical disk, or on a generic “computer-readable media,” the claim would be patentable.”

    Paper is computer-readable. Novel information written on paper (e.g., instructions) can not impart patentability to an otherwise unpatentable combination (Cite I Can’t Recall Offhand, Fed.Cir. 200?).

    So the language following “or” won’t work. Or shouldn’t.

  22. Neither type of descriptive material is patentable alone. However, functional descriptive material (software and data structures) does become patentable when it is claimed in combination with computer-readable media. Thus if an inventor submits a patent application with a claim to computer software standing alone, the claim will be rejected as unpatentable. If the claim were to describe the software as stored on a magnetic or optical disk, or on a generic “computer-readable media,” the claim would be patentable. Alternatively, the software or data structures can be claimed in combination with a computer or processor that operates on the data structure or utilizes the software.

    Most software developers call THAT an algorithm, and they’re right. Algorithms such as the famous RSA algorithm are patented. Period.

  23. Noel Le:

    I did read your blog post at
    link to weblog.ipcentral.info

    and also the material you cited by McDonough at:
    link to papers.ssrn.com

    I was specifically looking for arguments that would support your thesis that the promiscuous (my term) use of patents helps the “market place” of ideas and “diffuses innovations across technological community and society.” (your words).

    All of McDonough’s references to buttress his arguments are tangential and essentially conclusionary. For instance, he has a quote from former Fed Chairman Greenspan that the new currency in the market place is IP or ideas. Etc. etc. Here is a quote from that paper in defense of so called patent trolls:

    First, by increasing patent liquidity and decreasing risk, patent dealers incentivize individual inventors and small entities to invent, making more technology available to the public.

    This is the sort of evidence he provides- just the assertion that this is so!

    I was not able to locate any evidence for the conclusion that patents incentivize software innovation.

    Here is the presumption underlying both his and your arguments as it applies to software development, which is my concern – software developers lack incentive to innovate and invent outside of the possibility of obtaining patents for their algorithms. A corollary to this would be without patents for algorithms, software will not be written as well, as often or with the same degree of innovation. A weaker form of this argument says that software developers will develop better and more if patents are permitted. I hope I am not misrepresenting anything here.

    Each of the assertions in the above are proven wrong. Software has thrived without patents. SOftware developers are highly incentivized to write code without obtaining patents for a variety of reasons that they find compelling, including personal financial gain, reputation, curiosity, a desire to create etc. etc. Financial gain and economic activity have blossomed under a no-patent regime and large corporations, including Oracle, Computer Associates and others have gone on record saying they do not want or need patents to be profitable. I can make money if I am permitted to compete, but I cannot compete if I have to pay 10,000 patenters or one IP company for 10,000 patents or whatever.

    I will agree with you both on one major point- patent trolls are wrongfully villified.

    When Microsoft deliberately and maliciously plans to use patents against software developers who may threaten them with strong competition link to news.com.com
    then a rational individual software developer may conclude that his or her ONLY possible chance for existence in the software economy IS to fight an asymmetrical war against the behemoths by innoculating his or her self against retaliation.

    It was the behemoths who wanted software patents so THEY may fight an asymmetrical war against programming competence by using their ability to patent patent patent (because they have money money money) every twit and twiddle of an idea and then demand, in a scenario described by Malcom above (Malcolm Mooney | Feb 02, 2007 at 01:47 PM ) that you fight it out in the courts with Microsoft. That will of course mean pulling your extra million out of your mattress. link to theregister.co.uk

    In defense of so called trolls, amongst whom I AM NOT counted, we see that a sociopathic approach to market-dominance on the part of Microsoft- through patenting patenting patenting, is being met by people who themselves patent. Somehow it’s OK when big business conspires to decimate market value and innovation by using patents yet when the small guy attempts to use patents to his or her advantage, they’re morally reprehensible.

    Is this the naked face of the worst sort of non-free-market monopoly-back-by-the-state economics, or what? Large corporations can benefit from patents, small companies and individuals will not. Large corporations can write code with impunity through the use of patent thickets and Mutally Assured Destruction IP swaps and small companies with good ideas are priced out of ever starting up.

    Don’t kid yourself that this kind of economic and legal landscape doesn’t have a negative motivational effect on innovation- it does. The Supreme Court is deciding if software written here and sold in Europe is infringing. I’ll tell you this, if they decide it is, I for one am leaving to go to Europe and I will NOT be selling software into the American market. I cannot afford nor do I desire nor is it in society’s interest that I attempt to look over each and every line of my code and cross reference it into the flotilla of vaguely worded software patents that are issued every week to be sure I haven’t infringed. Neither am I in a position to patent each apparently patentable innovation I author. If I patent one and sell it, I am a troll. I do not want to be a troll either. So if the Court decides that it is infringing, I will simply pack up my family and find programming freedom in Europe. Also, I will broadcast my plight as widely as possible. I will encourage, educate and incentivize like-minded software developers to do that same. I only say this so no one kid themselves that somehow all patents are good and the more patents the better and that patents encourage innovation on the part of individual s and small companies. That’s a lie. I can’t believe even the people asserting it believe it to be true. Patents will kill software in the US and you’ll pay monopoly prices for garbage.

  24. CaveMan

    “if its so important to you to get rid of them, where are you when its time to submit third part art?”

    Probably busy writing an opinion for a client explaining why some claims in an issued patent are invalid and should never have issued.

    That’s good for me (assuming the patent isn’t so crappy that the project is dull) and if I were a more selfish person I could just count my money and get on with it.

    “I wonder why given all the shrill rhetoric from the anti-property rights crowd, there aren’t more third party submisssions?”

    Gosh, CaveMan, maybe it’s because people don’t trust the PTO to do the right thing with that third party art. Maybe people suspect that the PTO does such a poor job with the art that they have, that the PTO will mishandle the third party submissions. Maybe people think they have a better chance tanking an issued patent with that art than they do by putting it in front of a patent examiner. Pure speculation here, CaveMan. It’s not like this issue has been discussed here already ad nausuem, and I certainly don’t ever come into contact with clients who abstain from throwing a patent into reexam based on a new reference because they feel they are worried that the PTO is going to botch it and soften one of the client’s bullets.

    “for your information Greg Aharonian is not a patent attorney”

    Thanks for the information. For your information, Henry Fonda suffered from prostate cancer.

  25. To the software geek, algorithms are not patentable.

    I suggest you just shut up and write code. Your manager will let you know if you have a patent problem.

    The problem with software developers (especially really good ones) is that they are always worried about what “might” happen. Its a form of professionalized anxiety. Like I said, the better developers have a refined sense of this. However, the better developers, once beset with the frisson of an imagined catastrophe, usually come back to earth to discover that things aren’t as bad as they thought.

    Its the same things with so-called software patents. I suggest you just let yourself come gently back to earth and have another look at your delivery schedule. Those modules aren’t going to write themselves!

  26. Malcom’s tiresome AOL-caliber format:

    1) cut and paste from previous quote
    2) add drivel

    …talk about a lack of novelty and glaring obviousness. Perhaps you should move to Canada.

    I have to admit, while you have put a lot of words down, its hard to tell whether you’re taking a position at all. That aside, in response to my substantive post (rather than my challenges to you to read more than you write – which you will probably not listen to) you are essentially posing the would-be-infringer-friendly resource efficiency argument that I thought I covered. My exact words were that your drivel, er I mean your theory, “is at odds with the fundamental right of the inventor to seek protection in the first place.”

    In other words, your assertion that its a waste of resources and the rest of your gobbeldygook about “crap patents” and the like (as opposed to a “good patent on a real non-obvious invention”) doesn’t really make sense when you consider that anyone has a right to file on whatever they want. Who are you to define what a “crap” patent is?

    If the patent claims survive normal examination or third party intervention (people like you love to talk about “crap” patents, but if its so important to you to get rid of them, where are you when its time to submit third part art?) then you have a presumably valid patent. Contrary to your specious assertions, the submission of third party art is rare. I wonder why given all the shrill rhetoric from the anti-property rights crowd, there aren’t more third party submisssions?

    In this vein, there is no record that PUBPAT submitted thier so-called prior art during prosecution, which they could have done.

    And for your information Greg Aharonian is not a patent attorney and is not currently listed on any patent or published application.

    UGH!

  27. “Dennis has done a wonderful job with this blog, it is the 1st thing I read every morning when I turn my pc on.”

    It’s in my top five. I also prefer the new format. One possible area of improvement: better snacks.

  28. Appeal for Cease Fire!
    Dennis has done a wonderful job with this blog, it is the 1st thing I read every morning when I turn my pc on. I do not recall ever seeing the type of personal attacks and unprofessional exchanges of the type posted today. If this continues, it will destroy this wonderful blog and further demean the important work all of us do on behalf of ourselves or our clients. I certainly would not waste my time reading these types of exchanges. I call on all contributors to return to the decorum that we have come to expect from Dennis’ blog.

  29. With all due respect, CaveMan, I appreciate your sense of humor and I think you will live longer and happier for it. Serious colleagues are not devoid of humor.

    This is a tough business, not for the faint of heart, and I have always found that humor aids and abets creativity and wards off depression.

    Most importantly, for what it may be worth, I like the tone of your more serious thinking on patents.

  30. “Perhaps what needs to happen is we need to malignantly extend the current patent system into areas people hadn’t thought of before. Business method patents are a good start. And from there start invading every aspect of society in which there are useful step-by-step procedures of every kind. When we’ve effected enough people and incensed enough people and generated enough outrage then Congress will wake up. I quite like my scheme.”

    Didn’t Greg Aharonian already file on that?

  31. Reminds me: it’ll be interesting to see how law firms react if their remote access software gets shut down by Accolade’s lawsuit against Citrix and Symantec.

    Well that is the very problem with software patents. Not just pubpats site but, literally, every interactive website, including this one, is a violating some software patent or another.

    Noel Le- thank you for the link, I will peruse it and see what it has to say. As a long time software developer, I do believe that Dan Ravicher is doing important work. I can understand disagreeing with him, but I don’t understand the name calling; he works for a tiny fraction of what he could be getting working the other side and that hardly qualifies as cockroach behavior.

    As far as undeserved patents go, the problem with software patents is that they fail the first criteria to be patentable subject matter- they do not advance the useful arts and sciences, they stymie them. People forget that there’s a reason for patents to exist at all. Prior to the widespread patenting of software, software thrived and industries built around it thrived. The internet was built patent-free and see what society got for it’s investment.

    To a software developer, patenting the idea of (which is exactly what software patents are and NOT the specific implementation of), say moveable windows, which patent is fair game under the current regime by claiming it’s a novel “user interface”, is like patenting the ability to make an argument using the Toulmin Argument Form, or again like patenting a novel’s plot, or better, the idea that a novel HAS a plot. It’s crazy. Can you patent an argument you use in court? What if it’s really really novel? What if it’s highly useful? I am telling you you’re reaction to that idea is just how software developers react to software patents for exactly the same reason. What’s the problem with patenting an argument? It’s a step by step procedure to achieve a useful end. It’s an algorithm, just like the algorithms in software that are patented by Microsoft. There is no difference.

    Perhaps what needs to happen is we need to malignantly extend the current patent system into areas people hadn’t thought of before. Business method patents are a good start. And from there start invading every aspect of society in which there are useful step-by-step procedures of every kind. When we’ve effected enough people and incensed enough people and generated enough outrage then Congress will wake up.

    I quite like my scheme. I somehow believe I’d have a lot of IP lawyers on my side lining up to feed at the trough of their own destruction. After all, there’s money to be made.

  32. “If the patent is so “undeserved” then find some art and invalidate it through 1) Third party Re-exam; 2) Third party art submission under Rule 1.99 while the application is still pending; or 3) litigation.”

    As a reason for others to keep their mouths shut, this is about as compelling as, “You don’t like the President’s policies? Then move to Canada.”

    Patents are invalidated using the mechanisms you recited on a daily (if not hourly) basis. Nobody is asserting that, with the expenditure of significant amounts of time and money, bad patents can’t be invalidated.

    But what a waste of time.

    Imagine if your city decided to increase revenues by hiring a bunch of incompetent hacks to ticket more illegally parked cars. Of course, they’ll ticket a bunch of legally parked cars while they’re at. But hey (your city will say) you can always assemble your evidence, take a day off of work and wait in line at the local parking enforcement department, and present your plea. So what’s the problem?

    I don’t doubt that bad actors of the sort referred to colloquially as “patent trolls” exist but, unlike facially invalid overbroad patent claims, there is nothing “wrong” about asserting your patent rights. The “wrongness” arises from the crap patent. If it’s a good patent on a real non-obvious invention, well, tough luck for the infringer. If our Congress wants to get involved and pass new laws which require patentees to practice their inventions, they are free to do so. But they damn well better apply those walls to the big businesses who play the patent game as well (or better) than any so-called “trolls.”

  33. With all due respect to Mr. Ravicher,

    The notion that “undeserved patents” cause harm always astounds me. If the patent is so “undeserved” then find some art and invalidate it through 1) Third party Re-exam; 2) Third party art submission under Rule 1.99 while the application is still pending; or 3) litigation. I’m sure the readers know of other ways to invalidate so-called “bad” patents that I hear people grousing about.

    The argument that these patent should never have been granted and cause unsuspecting companies the need to hire counsel is at odds with the fundamental right of the inventor to seek protection in the first place.

    Of course if you can’t accomplish any of the above, it may be a clue that the patent is robust after all, which suggests that you may want to get out your check book.

    All this “bad patent” and “patent troll” talk sometimes seems like a bunch of sour grapes to me – and I’m just a simple cave man. UGH.

  34. OK Lenny, first of all, I’m not 100% in love with your tone.

    Tone notwithstanding, you and Malcom and Homer (probably all the same person) go on and have a happy Monday with your emoticons and LOLs (there is simply no emoticon to express what I’m feeling right now) and banal AOL-quality posts.

    In the mean time, I and my more serious colleagues will go on with our religious reading of Patently-O, and our genuine prosecution efforts to bring you more foundational inventions like walking upright, and the wheel, and stuff.

    Er, I mean, UGH.

  35. Dennis, while I’ve followed Daniel Ravicher’s work for a while and respect what he does, I believe a more balanced view of patent licensing firms is called for.

    See an IPcentral write-up I did regarding the benefits of patent licensing firms on the market for patents, diffusion of innovation and technological progress.

    link to weblog.ipcentral.info

    Noel Le
    Research Fellow
    The Progress and Freedom Foundation

  36. With all due respect, CaveMan, maybe you woke up on the wrong side of the rock.

    I appreciate your advice nonetheless.

    Here is mine: People with a sense of humor live longer happier lives, even us patent people.

  37. The Ravicher quote is from a PubPat press release:

    PUBPAT CHALLENGES PATRIOT SCIENTIFIC MICROPROCESSOR PATENT: Patent
    Office Asked to Review and Revoke Patent Licensing Company’s Widely
    Asserted Patent

    New York, NY — February 1, 2007 — The Public Patent Foundation
    (“PUBPAT”) announced today that it has filed a formal request with the
    United States Patent and Trademark Office to review a patent held by
    Patriot Scientific Corp. (OB: PTSC) that the company, which boasts of
    “primarily focusing on deriving revenue from licensing patents”, is
    widely asserting against producers of computer microprocessors. In its
    filing, PUBPAT submitted prior art that the Patent Office was not aware
    of when reviewing the application that led to the issuance of the patent
    (U.S. Patent No. 5,809,336), described in detail how the prior art
    invalidates the patent and asked that the patent be revoked.

    Despite no longer making any product or service itself, Patriot
    Scientific is asserting the patent against those that produce or
    distribute microprocessors, either alone or with a computer. Patriot
    Scientific’s assertion of the patent has included the filing of
    infringement lawsuits and the sending of over 150 letters threatening
    litigation. PUBPAT challenged the patent because Patriot Scientific’s
    aggressive assertion of it is causing substantial public harm by
    threatening to levy additional costs on the production of
    microprocessors, which could make every computer Americans buy more
    expensive.

    “Patriot Scientific is yet another corporate front for contingency fee
    patent attorneys to sue and threaten productive members of society,”
    said Dan Ravicher, PUBPAT’s Executive Director. “While one can’t blame
    them for doing what is in their self interest – much like one can’t
    blame cockroaches for appearing when it is you who left crumbs on the
    counter – it is past time for our policy makers to ask themselves
    whether such activity is beneficial for the public, or is instead a
    siphoning of resources that could be better spent on doing technological
    research or passed on to consumers in lower prices for goods.”

    The Request for Reexamination filed by PUBPAT against the patent Patriot
    Scientific is widely asserting against microprocessors can be found at
    link to pubpat.org.

    Contact:

    Daniel Ravicher, Executive Director
    Public Patent Foundation
    (212) 796-0570
    info@pubpat.org

    About the Public Patent Foundation

    The Public Patent Foundation (“PUBPAT”) is a not-for-profit legal
    services organization working to protect the public from the harms
    caused by the patent system, particularly the harms caused by undeserved
    patents and unsound patent policy. PUBPAT provides the general public
    and those specific persons or businesses otherwise deprived of access to
    the system governing patents, with representation, advocacy, and
    education. To be kept informed of PUBPAT News, subscribe to the PUBPAT
    News List by visiting http://www.pubpat.org. To be removed from the
    PUBPAT News List, send an email with “unsubscribe” in the subject line
    to news-request@pubpat.org.

    ###

  38. I believe the phrase is: “*with* all due respect” Lenny (with all due respect). With all due respect Lenny, you are only slightly less annoying than Malcom – and I’m just a simmple cave man.

    But I do know one thing, in the venerable word of patent law, there is no room for smiley faces, LOL or the like. This is not an AOL chatroom (Lenny and Malcom).

  39. small guy, not everyone is behind a proxy firewall, or any firewall at all, and not every firewall works the same. The tracking available depends on how the firewall is set up and who is looking. When I was in charge of a network, I always tried to have every kind of firewall or network address translation device set up so that it would be as easy as possible for us to match the IP address the rest of the world saw with the one used inside, so that if we got a complaint we would know which of our users was responsible. Now if the issue was that someone wanted to know who posted something here, then of course they’d have to subpoena both this site and the originating organization, if the organization did keep those kinds of records, but the point is, the records might exist and be obtainable.

    An outside anonymizer is a better bet — IF you’re sure that IT doesn’t keep records that could be subpoenaed. Or just bought. I’m not suggesting any of them are doing anything questionable — in fact I believe most people running anonymizers do it because they genuinely believe in privacy — I’m just saying that you don’t know.

    I would guess most people here just want to avoid casual notice by employers or clients and are not worried about the kind of situation that would result in a subpoena to find the identity of an anonymous poster. But if you are, then you should be aware, that’s all.

    Anyway, some organizations make detailed logs of everything going out of their network, so if you want complete privacy from your employer, then the very first rule is: DO NOT post here from your employer’s network.

  40. ‘”In the end, our beef is not with Microsoft per se,” says Ravicher. “It’s with our broken patent system that is completely failing to ensure only deserving patents get issued.”‘ (from: link to mega.nu:8080)

    Completely?
    You mean the USPTO has NEVER rejected an application? You mean nothing “deserves” a patent?

    Hey Ravicher, is that PotAsh in your pocket or are you just happy to see me?

  41. Dennis–I also like the new layout (tho’ I liked the previous one as well). Very “clean,” functional, easy-to-read, and professional.

    By the way, did you ever get a response to your request a while back for a copy of the 08/06 revision 5 of the 8th Ed. of the MPEP markups? I may need them soon.

    In response to “another anonymous,” above, isn’t “a bad episode of Jerry Springer” redundant?

    Finally, I’d like to thank you; and your contributing readers; for taking the time to share the latest patent news as well as your knowledge, experience, and advice with everyone wise enough to make it part of their regular reading…

    As a pro se relatively new to the complex “patent world,” it is a wonderful resource.

  42. Re the question about cockroach Dan (Ravicher) and his quote, I haven’t had luck locating it yet either. But here is another quote of Dan’s (and its source):

    “DR: The software ecosystem actually prefers free software, open software, sharing and learning what others have done and advancing that. The patent system, this form of government regulation, gets in the middle of the software ecosystem and mucks it up. The winners in the software marketplace should be determined by consumer choice — whichever products are cheaper and faster — not by some regulatory scheme.”

    from: link to technologyreview.com

  43. CaveMan,

    I’ll bet you get really annoyed at the CaveMan ads on TV.

    Please, in all due respect, live and let live. You are, of course, free to scroll (or use the clicker).

    And the rest of us are free to read.

  44. Can we limit Malcom Mooney to one post per column? He annoys me AND puts me to sleep at the same time – like a bad episode of Jerry Springer.

  45. I like the layout too. Does anyone have a link to the Dan Ravicher quote? My google skills are failing me this morning.

  46. Dennis,
    I do want to say a word or two about civility & annonimity:

    1. Many of us who are attorneys or prosecution agents earn our livings (our livelyhoods) by being subserviant to corporate masters. That is just the way things are. If you look at the Top 10 list of patent receivers, they are all large corporations. If we want to keep our jobs and sources of income we have to appear to be always agreeable with our corporate masters no matter how vile and/or hypocritical and/or illogical the positions are that they take.

    2. If you want some truth to leak out on your site, then preservation of annonimity is essential. This is no different than news reporters who have their deepthroats to report on the misdoings of those in power. If news reporters did not honor their commitments of annonimity for their “sources”, then pretty soon we would live in a fascist state.

    3. Those in power generally do commit misdeeds (a polite word for crimes and/or down right mean & dirty tricks). How do you think those in power got to be the ones in power? They cheated, they lied, they climbed up a ladder whose rungs are populated by the dead bodies of enemies whom they stepped on in order to get to the top. Don’t believe me? Look at all the corporate leaders (and Boards of Directors, and corporate lawyers) who are getting caught with having back-dated stock options.

    4. Many a so-called law professors are nothing but sycophantic lackies for whatever corporate sponsor will fund their “research”. They are all too happy to grab their 30 coins of silver and sign on to the schoolyard bullying technique of calling legitimate owners of presumably-valid patents, “trolls”. Actually it is the law professors who are trolls and judas goats. They have no shame. They will do anything for a quick buck.

    5. What is going on today at the US Patent Office is beyond shameful. What is going on in Congress with the help of K-Street backed legislators who claim to be improving patent “quality” is uber-shameful. Basically it is a total scam and a lie. The only way to have the USPTO issue “quality” output is to first hire “quality” people, to pay them valid salaries for the market value of their work (which comes out of general funds and not off the backs of small guy inventors) and to hire enough such “quality” examiners so as to meet the quantity of filings pouring into the USPTO. The exact opposite is happening at the PTO. They are hiring the largest crop of incompetents ever seen in history. They are failng to properly train them and supervise them. The old saw about GIGO (Garbage In, Garbage Out) applies equally to Garbage Examiners and SPE’s as it does to attorneys/agents who file Garbage applications and to Litigators who file Garbage briefs and to Judges who issue gobbledygook opinions that have no basis in evidence or science.

    6. The only way to clean the mess is to shine the spotlight on these cockroaches, these who feed off the grabage piles of our unenlightened society. Unfortunately; hypocritical as it may seem, annonimity must be provided to those few brave enough (stupid enough? is there a difference?) to hold the flashlights and point them at the cockroaches.

  47. “While one can’t blame them for doing what is in their self interest – much like one can’t blame cockroaches for appearing when it is you who left crumbs on the counter – it is past time for our policy makers to ask themselves whether such activity is beneficial for the public”

    Excuse us for living and engaging in legitimate, legal commercial activity. If a patent is property, one of those sticks in the bundle is the right to dispose of it. This includes an inventor’s right to sell the patent, at whatever price he deems sufficient, to any other person. This investor (the “troll” as you call them) takes an investment risk, and if he is so fortunate, 1 in 10 patents will be economically relevant.

    How are you going to stop this activity? About the only thing I can think if is something akin to the copyright system where an author can reclaim a copyright that was given away by assignment. But patents have such a short shelf-life (relatively speaking) that such a system would probably make most patents unmarketable.

    You suggest that trolls don’t benefit the public. Let’s see, they buy a patent for $5000, enforce it against a dozen or so large companies and walk away w/ $200 M at the end of the year. That doesn’t benefit society? Investing those profits into other ventures, creating jobs doesn’t benefit society? Building houses, buying consumer goods, paying taxes all fail to benefit society?

    And I suppose that failing to enforce the patent and allowing companies to trample property rights of smaller companies and individual inventors would benefit society?

  48. Loose Lips Sink Ships and can tank a patent case with equal ease.

    In all due respect, anything an inventor says can and will be used against his patent, e.g., have limiting effects, in prosecuting an infringer, or processing a patent application in the PTO, or possibly even in licensing talks or with his own attorney if privilege is waived, or even in his sleep if someone were listening.

    Getting back to the injunction debacle for a moment, in Document #641 in the “eBay v MERC” case (2:01-cv-00736, Eastern District of Virginia, Norfolk), in a 31 page Order and Opinion available on PACER, the Court granted part of eBay’s motion requesting that experts that viewed eBay’s confidential information be prohibited from further involvement in the PTO reexamination of the patents at issue.

    And, most notably, on August 28, 2006, MERC made a Motion for Permanent Injunction in Document #615, not available on PACER (does anyone know how that is going?).

    I wonder if the District Court would appreciate amici curiae briefs?

    I wonder if the Court granted MERC’s Injunction, and the CAFC upheld that Injunction, what would happen??

    How does that tune go, It ain’t over till it’s over over there.

  49. Dear Dennis,
    You make reference to the fact that “thousands of patent attorneys read Patently-O every day”. I think it is safe to assume that a good percentage of your readers are registered patent agents, rather than patent attorneys and that you make no effort to distinguish between the two. If that is the case, I suggest that you make reference to “patent attorneys and agents”, or the generic “patent practitioners”. We, patent agents, are a sensitive bunch. Thus, I remain anonymous in this case.

  50. Excuse me. Is there any article or comment concerning the latest case of Qualcomm v. Broadcom. I am searching some sources for studying this case. Thankyou!!

  51. “You know, we, small garage inventors, are simple types: we don’s say “plaintiff suffered irreparable damage”, we simply say “this dude got f*****”..”

    Colorful and concise. I can dig it, even if I don’t necessarily agree. ;)

  52. “Thus, I can tell if you are writing from the FAA, US Courts, Quinn Emmanuel, etc. Although I don’t know, I suspect that a networking expert could potential drill-down for more specific information.” ?

    As a networking expert I can tell you that there is no tracking behind proxy firewall.

    We (still) have a freedom of speech in this country, so there is nothing you can do other than exersizing your right as a blog owner to filter out the messages from some disgruntled patent holders using the f* word to describe the current situation with patents after EBay…
    You know, we, small garage inventors, are simple types: we don’s say “plaintiff suffered irreparable damage”, we simply say “this dude got f*****”..

  53. “You should be aware that the Typepad software does record your network’s IP address. Thus, I can tell if you are writing from the FAA, US Courts, Quinn Emmanuel, etc. Although I don’t know, I suspect that a networking expert could potential drill-down for more specific information. I won’t give this information out to anyone without a subpoena — but Typepad does keep it on record.”

    I’ll let you know if I receive any death threats. ;)

  54. “Quote of the week comes from Dan Ravicher discussing Patriot Scientific’s troll-like behavior:”

    Reminds me: it’ll be interesting to see how law firms react if their remote access software gets shut down by Accolade’s lawsuit against Citrix and Symantec.

    link to ip.law360.com

  55. “Would your boss/employer/firm really object to such a personal expression of your views of the law? If so, please consider looking for a new job.”

    LOL! How much are you paying?

  56. To those who post without disclosing their identity, I ask you to reconsider your decision. Why have a disclaimer at the bottom of your post that the views expressed are yours and not necessarily your employer’s, clients’, firm’s, etc.?

    Would your boss/employer/firm really object to such a personal expression of your views of the law? If so, please consider looking for a new job.

    Why not stand behind your opinions?

  57. I allow anonymous and unfiltered comments because many patent attorneys don’t want to go ‘on record’ about much of anything.

    Indeed. There are many patent prosecutors who don’t want other patent prosecutors to discuss certain aspects of the business of patent prosecution, on the record or off.

  58. Commenters who want true anonymity can use any number of “anonymizing” proxy servers. Although there is a theoretical possibility that your identity could be determined through an anonymizing service, the likelihood is vanishingly small and I am not aware of any cases where a user of an anonymizing service has been unmasked. Probably the best known service is Anonymizer. There are also a number of free, easy to use services, e.g., the-cloak.com.

Comments are closed.