Harvard’s Journal of Law & Technology is generally considered on of the top two academic journals focusing on Law & Technology (along with Berkeley’s TLJ). JOLT recently increased its online footprint with the JOLT DIGEST where they regularly cover important new cases. - Software Patents: Although in Bilski, the CAFC is not likely to consider software patents per se, there is a strong and growing movement to eliminate all software patents. The descriptively named “End Software Patents” group is led by Ben Klemens (Author of Math You Can’t Use) and is continuing to move forward. Interestingly, Microsoft Explorer crashed when I visited their site. [See LegalPad’s article]
- Software Patents: On the more academic side, two serious patent dataheads (Iain Cockburn and Megan MacGarvie) have analyzed economic results of software patents in various industries. Their results: (1) When patents are held by those currently market, it is more difficult for a startup to get financing; and (2) When a startup holds patents, it has a greater chance of obtaining financing. [LINK] DDC Comment: This is, of course, exactly how we would expect the market to react.
- Auctioning the Right to File a Patent Application: Ayres and Parchomovsky have an interesting, if misguided, paper on patent rights. They see a problem with too many patents and suggest a “cap.” The right to file patent applications could be auctioned and then traded or sold in a secondary market. [LINK]
- Kempton Lam has an interesting discussion on patents and other matters with Mike Dillon GC of Sun. [LINK]
Harvard’s Journal of Law & Technology is generally considered on of the top two academic journals focusing on Law & Technology (along with
JustAnExExmr wrote “The problem with this is that interviews shouldn’t be used to feel the Examiner out, such as:
Attorney: “How about this?”
Attorney: “Ok, then how about this?”
Attorney: “Ok, not those two, then how about this?””
Why not? OK, maybe the previous example was a little broad, but sometimes I don’t know what the Examiner is looking for and I would like guidance on what the Examiner is looking for.
“back in the early 80’s examiners and attorneys had better working relationship, which made the job more productive and more pleasant. You could sit down with the examiner in a personal (or telephone) interview and work out allowable claim language”
Since when is this still not true? I routinely call examiners and have found most to be curteous and willing to work with me to move the case along.
JD, I would go along with that. I did few 2NFs or re-openings after appeal (maybe 2 or 3?). Now just the patent bar & congress & Dudas, etc. to agree with it. Have fun with lobbying 🙂
thanks,
LL
JustAnExExmr.
Yes, fishing expeditions are not only a waste of time but also not acceptable in accordance with the MPEP (though lawyers still try to do it – you just need to call them on it when they do).
However, if they come in with a solid proposal beforehand that you can review (and HOPEFULLLY you have reviewed the case & prior art before the interview), you should be able to make a reasonable decision about the amendment and give an answer. I always have (as well as my examiners) & never had problems making production. Giving the applicant a direction to go in does not commit you to allowing the case. It does increase the chances of disposing of it sooner (either with an allowance or RCE). It also increases the chance of them doing what YOU want them to do rather them guessing as to what you want in the claim to overcome the rejections.
Why examiners (and many lawyers) do not realize the the examining job is a lot easier to do if we actually communicate & try to work together??
thanks,
LL
“pendency would get WORSE (NOT better) because a lot of examiners (and SPEs) would be afraid to send out the final rejection, just like a lot of them are afraid to allow cases.”
Not so. The statute only requires that the claims be twice rejected. You don’t have to receive a final rejection to appeal.
LL, I’ll make a deal with you. I’ll accept your proposal (i.e. amend and/or add claims only once) if you’ll accept mine (NO re-opening or new grounds).
Deal?
JD, my guess is that if your proposal went thru, one of 2 things would happen. Either (1) there would be a LOT of bad (i.e., invalid) patents being issued or (2) pendency would get WORSE (NOT better) because a lot of examiners (and SPEs) would be afraid to send out the final rejection, just like a lot of them are afraid to allow cases.
We both agree that the rej-appeal-reopen cycle is bad & needs to be broken. And we both agree that the reject mentality and the “Quality = Reject, Reject, Reject” is also incorrect way to do business. I just don’t think that making a rigid rule like that is the answer.
How about if we set a rule that once a 1st action is given, you can not amend or add any claims (or even give the applicant 1 chance to amend after the 1st action, but no more)? Cancel or combine claims? OK. Amend before (to allow for your own review of prior art or “further study” of the invention and its uses, etc. before 1st action) but once prosecution starts, you are locked in. That would help speed things up too. Is it a good idea? Depends on who you ask.
That’s the thing. Rigid rules make for a very difficult situation in many instances.
thanks,
LL
LL,
Mr. Dudas has been there quite a while. And Mr. Doll has too.
They have control over quite a bit. Second pair of eyes is their baby. And it is directly responsible for the lion’s share of the 760,000+ case backlog and 32+ month pendency.
Rewarding examiners for “Quality = Reject, Reject, Reject” and then telling applicants, “Well, if you disagree then go ahead and appeal” when they know darn well that leads to “appeal, reopen, appeal, reopen, appeal, reopen, etc.” is also their doing.
By PTO (mis)management’s own admission, about 60+% of the cases that get appealed, either pre-appeal request or actual brief filed, get re-opened. What does that tell you about the quality of final rejections in being issued? It tells you they are garbage. Nothing but attempts to extort RCE counts. Plain and simple.
If 37 CFR were changed, and it should be, to REQUIRE the examiner, in response to an appeal brief to 1) issue an examiner’s answer, or 2) allow the case, (no re-opening, no new grounds in then answer) what do you think would happen to the pendency and backlog at the BPAI? Take a wild guess.
Go review the disposals stats for the BPAI and note the about 1,200 case increase in pending appeals in the past year. Do you think that number is going to go up or down?
Mr. Long wrote: “1) I agree that those 2nd Friday calls @ 4:45 by examiners are bad. But your side is just as guilty in their own way. Ever notice that the number of requests for interviews go WAY up the last couple of weeks of a quarter/fiscal year? I am sure that this is coincidence & not the lawyers trying to push an allowance out of an examiner trying to make production. And, you can also throw in the filing of after-finals in this same time frame. And do not deny it. I have been told a plurality of time (off the record, of course, or by friends that have gone to the “dark side”) that this is done on purpose since lawyers figure that their chances of getting an allowance are higher.”
I will be frank and admit that I engage in this practice. To be clear, though, I do NOT expect an examiner to depart all reason and give me invalid claims merely because of the timing. My goal is to have the examiner adopt an open mind as to the claims, my position on the art, and the differences therebetween. A number of times, I’ve had examiners essentially ignore clear teachings in asserted references, ignore 132 declarations rebutting rejections, and so on (in one case, the examiner dismissed the declaration as referring to a nebulous device/method and not to the claimed invention, despite the declarant having referenced the device/method ONLY as “claimed device”/”claimed method” numerous times in a two-page declaration). Interviewing in the last 2-3 weeks of the quarter seems to reduce the adversarial tenor otherwise prevalent.
And FWIW, I always send proposed claims and remarks in advance for the examiner’s review. By the close of the interview, I’ve gotten a commitment less than half the time, and NO commitment in any interview undertaken in the last three years.
“While I agree that an examiner can not comment on things that they have not seen (or art they may later find), if provided with a proposal a day or 2 b4 the interview, they should be able to commit that it does or does not overcome the CURRENT rejection in the case. To do so is just bad examining & we need to get rid of that type of backwards attitude.”
The problem with this is that interviews shouldn’t be used to feel the Examiner out, such as:
Attorney: “How about this?”
Attorney: “Ok, then how about this?”
Attorney: “Ok, not those two, then how about this?”
The place and time to judge whether amended claims overcomes art of record is in an actual amendment, not a series of proposed amendments that you get a measly 1 hour to write-off time for.
The fact that I was required to forgo endless hours of my life to review endless chains of proposed amendments under the guise of an “Interview” was one of the reasons I left the Office. Not the major one (which was Upper Mis(Management)), but a reason nonetheless.
JustAnExExmr – thankfully
RE: coast,
What those examiners had done/said is pure B$. They are clearly operating against office policy and should be “corrected”. Personally, if either of the last 2 instances (I’ll discuss the 1st later) were one of my examiners, I would really want to know about it. I would have a “very long talk” with them & correct their notions of what we are supposed to be doing as examiners.
While some on here will tell you it is a waste of your time, I would strongly suggest contacting their SPEs. If that does not get any results, go up the food chain until you do get satisfaction. Sooner or later (hopefully sooner) you will get someone that is PO-ed that it had to get to their level & things will start flowing downhill to where it started from.
The one who works at home is completely wrong. Every examiner that works at home MUST come in at least one day a week. Part of that is to make them available for interviews.
As to not agreeing to anything at an interview, that is also wrong and NOT the way we (or at least in my little area of the PTO) are taught to do (or do) things. Interviews are a great place to come to some agreement and move the case forward to disposal of some sort. While I agree that an examiner can not comment on things that they have not seen (or art they may later find), if provided with a proposal a day or 2 b4 the interview, they should be able to commit that it does or does not overcome the CURRENT rejection in the case. To do so is just bad examining & we need to get rid of that type of backwards attitude.
Now, as for the case where the SPE overruled the examiner, IF the SPE (probably reviewing the allowance as a 2nd pair of eyes (an AWFUL idea, but for another post) caught an error (e.g., knew of art not in the case or saw a 112 or 101 that should have been made) they are right in having the examiner get the error corrected. If it is just a case of the SPE thinking that the claims is “too broad” and not wanting it issued because they are afraid, then they are wrong and should not be a SPE, in my opinion. A SPE has to be willing and able to trust the work of the people under him/her and accept the responsibility of the position. If they won’t, they need to find a new position.
“coast”, I am sorry that you had to deal with examiners like you cite in your post, but please believe that not all of us are like that. Many of us do try to do a good job and realize that we are there to issue valid patents and NOT just to get counts.
thanks,
LL
Hey, JD,
A couple responses to your comments, since I haven’t seen your name around in a while.
1) I agree that those 2nd Friday calls @ 4:45 by examiners are bad. But your side is just as guilty in their own way. Ever notice that the number of requests for interviews go WAY up the last couple of weeks of a quarter/fiscal year? I am sure that this is coincidence & not the lawyers trying to push an allowance out of an examiner trying to make production. And, you can also throw in the filing of after-finals in this same time frame. And do not deny it. I have been told a plurality of time (off the record, of course, or by friends that have gone to the “dark side”) that this is done on purpose since lawyers figure that their chances of getting an allowance are higher.
2) While I do agree with you that upper management for many years (and not just the current crop, but going back at least to the Clinton era) have messed up many things. However, the backlog is not entirely their fault. When I started back in the mid-80’s, my art had over a 2 year backlog. Of course, it now is around 3.5 years.
Some of this is due to office policies. Some is due to the awful search systems that didn’t work well & were rolled out prematurely and poorly designed for what was needed (some was management’s fault, some was Congress’s, some was legal (PTO had to lower the design criteria of the search systems so that smaller companies could bid on the contract. This caused the contract to go to some small company that never actually designed a system & the whole things was pure cr4p.) A lot is due to the Congress keeping our funds and keeping the office from hiring the #s we needed in the 90’s. A lot is due to the tremendous increase in filings, particularly foreign over the last 2 decades.
Could (and should) at least some of this been anticipated? Yes. Was it all (or even most) preventable? Probably not. Particularly when you throw in the constant change in leadership (commissioner/director of PTO, other Sec. positions, etc.) There have probably been around 10 different commissioners/directors since I have been in the office. Hard to set a long range path/goal when the captain of the ship keeps changing, often dramatically from left to right & back with changes of administration.
How much of this do you really think PTO management had control over? Particularly current management? It’s a lot like Obama said. We were already in a ditch when they got here. Of course, we are still IN the ditch & just spinning our wheels trying to get out…
Maybe if we just issue anything* older than 2-3 years….
* (with an * on the patent, of course (sort of like Bonds’ records 🙂 )
Just of few points to ponder.
thanks,
LL
[“because, in most instances, the code is worthless.” I believed I touched on that already. It hardly supports your position, and does service to mine.]
Your position is that you should be able to patent the things easy to design around (i.e., the code) but not the underlying invention. Should that apply to everything and not just computer-related inventions?
[And strangely, those patents said more in 5 pages than you’ll manage to say in 100.]
If you say so ….
“They all researched the problem FOR A REASON, to make better devices with a better machine.”
Welcome to the real world buddy … research for the sake of research may exist in small isolated pockets, but most of the world performs research to make money.
“Oh, everyone with a brain in the art knows it can be done, so we’re going in the lab to do it now, using several obvious combinations that haven’t been fully explored yet (that nonetheless take time and effort to produce, nobody ever said such a thing did not).”
Always easy to say in hindsight, never in foresight … otherwise you would be the inventor of hundreds of inventions by now.
In case you didn’t realize it, most (if not a very large of patentable ideas) were recognizable as being capable of implementation once the idea was formulated. It is the getting to the idea itself that, in many instances, is the hard part.
[What incentive do the companies have? I’m pretty sure I addressed that in the next or the surrounding sentence(s).]
You haven’t … except perhaps in the utopian communist world that you believes exists out there.
Truce accepted …. except I got to take the last shots.
“Another examiner refused to meet with us, no matter what time or day, because he said that he now worked from home and no longer conducted personal interviews”
Now seems like a good time to pop in and express the very reasonable viewpoint that the entirety of these “personal interviews” (as well as phone interviews) should be recorded for future reference. Neither Applicants or Examiners should be allowed to make “off the record” statements at critical points in the prosecution.
Hey hey JD, you aren’t getting that call from me. I’ve had to very rarely say I’d have to send them a Restriction the monday after the next, but nothing like that. Though I will say I’ve had to tell people I’m going to have to send them a final as a result of their pathetically weak amendment, and moreso their lack of substance in the application, but, eh, such is life. Haven’t had any real problems with that yet, for some reason it even seems like it settles attorney’s down a bit to tell them that you’ll be happy to hear them out on whatever they have to say, but from what you can see they’re likely going to have to continue the case based on what’s currently on the record. I’m not 100% sure why though, but it’s worked everytime so far.
Frankly though, I’m not sure why you are against getting those calls, you can either a. admit they may have a point and try to get in touch with your client post haste to see what they think b. say screw you! and later overturn his bad final with a flick of your wrist or c. ask him to contact his SPE to see if he will hold off workflow points since he knows it is being considered by applicant for substantial amendment and you’ll get back to them within the week.
c. would work in my AU, but maybe not all of them, I don’t know. As long as the applicant isn’t pissed about the 2-4+ month turn around time nobody at the office Really cares, excepting maybe a director somewhere and most of them are reasonable if you explain to them. Because think about it, the only pressure the examiner is under is workflow to send out a final, and both him and his SPE would rather have the quicker disposal 100% of the time than just sending out a final (unless he has great art to RCE you, in which case you’re boned). Quicker counts are the best counts, you know that.
Anyway gtg, got the gal coming down in a few hours to King St for a walk through old town or some such so I gotta finish up quickly.
examiner#6k
My personal experience — in the past couple of years I have traveled some distance to the PTO with my client to interview cases that had already been through a number of office actions.
We reached agreement with two primary examiners on allowable claims and when we returned home we got phone calls that their supervisors had overruled them
We interviewed another examiner (a long time primary examiner) and had two proposed claim amendments sent to him days before the interview and only asked if the amendments distinguished over the A v B rejections — he said that it was his policy not to reach any agreement during personal interviews.
He also would not conduct any meaningful discussions on the amendment we had filed a couple of weeks earlier in another application because it was his policy …
Another examiner refused to meet with us, no matter what time or day, because he said that he now worked from home and no longer conducted personal interviews
“I’ve got a question about x (could you please pick up the case cold and discuss it with me?)”
That phone call sounds similar to the one that I get every second Friday at 4:45 PM telling me that if I don’t agree to a kitchen sink amendment to my independent claims, then the examiner’s gonna have to send out a final.
Thanks for the professionalism.
“You could sit down with the examiner in a personal (or telephone) interview and work out allowable claim language”
That is an excellent point, so far as I know that hasn’t changed, people ask me about such things all the time. And unless I can’t see anything except something leading them right into a 103 then I tell them.
They’re wanting me to be an 11 after I think next quarter? this quarter? and start doing interviews “on my own”. I wonder what they think I’ve been doing when the attorney’s call me up and “I’ve got a question about x (could you please pick up the case cold and discuss it with me?)” with x being what the whole application hinges on. Guess those don’t really count.
… my oh my some code i should not have included
expoundlessthan6: >> 43 <<
expoundlessthan6 ::
Dear Lionel,
Re: “I just meant there is no such thing as blind justice.”
No complaint out of me. I know that. If there were blind justice I’d be sitting on a 9 figure bank account.
Re: “By personal ambition, I meant furthering their career or seeking public approval over doing justice.”
That issue was my Leap Day/Night misunderstanding. Please excuse my mistake.
What I just meant is that I despise judicially-dishonest result-oriented patent decisions which seem to be more prevalent in today’s corrosive troll-tracker, bounty-reward and lynch-the-troll atmosphere.
Please, make no bones about it: Readers should be aware that I, Jaoi(TM) have a strong personal bias for a strong-as-possible within reason American patent system.
I like America to be the number one destination spot for all tired and lonely people. American innovation contributes to our leadership, and a strong patent system is inherently helpful toward that end. And, oh yes, it goes without saying, I am religiously patriotic.
I admire all who take their oath of office seriously and all who lead biblically principled lives. Incidentally, I wouldn’t trust Hillery or Billery to tell me the time of day. I believe they and those like them shame our country.
I hope someday to get my bread buttered big time by adhering to my beliefs and following these my own personal principles of which I am proud and I don’t mind saying so.
One more thing before I forget – one of my favorite movies is the 1976 movie “The Shootist,” which marked the final film role of an iconic hero, a giant to be admired, John Wayne, a great American inspiration.
There’s a memorable quote I abide by from terminally ill J. B. Books, played by John Wayne, the most celebrated shootist extant:
“I won’t be wronged,
I won’t be insulted, and
I won’t be laid a hand on.
I don’t do these things to other people,
and I require the same from them.”
You got a problem with that pardner (;-?
I could be wrong now, but I don’t think so,
By personal ambition, I meant furthering their career or seeking public approval over doing justice.
JAOI,
You don’t know me well at all. To call me a bleeding heart liberal is to label too conservative. For example, if I were a judge, I would give every nonviolent drug offender the absolute minimum sentence I could possibly give and generally try to keep them out of the prison system. I don’t like HRC because there is nothing liberal about her and her husband’s policies while in office. My guy was Kucinich of course.
I just meant there is no such thing as blind justice. Otherwise, why aren’t all trial judges simply replaced with computers.
For the last time ironic: … /= .
pds: “BTW, you need to find something better to do at 11:00PM on a Saturday night.”
Better than examining more applications and taking time after several hours of the same to rip your ridiculous positions a new one before setting into the home stretch of doing the same to the applicants? Pshaw, not much better to do here, play bejeweled 2?
“Activist examiners” blah blah blah, same with TT, we’re people in the system, we have the right to express our views just as much as you do as long as we make sure everyone understands it is not from the USPTO itself. Which, fyi, it expressely is not. Remember, I’m only an intern lol.
“because, in most instances, the code is worthless.” I believed I touched on that already. It hardly supports your position, and does service to mine.
“As a practical matter, who is going to patent any computer-related invention if they are limited to the specific code being used?” Precisely my point sherlock.
“I glad to hear further evidence of the USPTO’s dysfunction.” Maybe you prefer your sources to be more along the lines of the POPA president talking to Congress. link to judiciary.house.gov
“You have to be kidding me. Find a patent from the 1970s and, on average, you are looking at 5-10 page specs with 2 sheets of drawings. If an associate presented me, today, with much of what was issued as a patent back in the 1970s, I would hand it back to them with the comment of “nice outline, I don’t want to see it again until add some real disclosure.” And strangely, those patents said more in 5 pages than you’ll manage to say in 100.
“The problem with all your hypotheticals is that they assume that these companies/researchers/etc. would all be working to solve these problems,” This was not a hypothetical, it is RL, and well documented at that. They all researched the problem FOR A REASON, to make better devices with a better machine. Their “GOAL” is not “omg I got a patent”, it’s “OMG I CAN MAKE A BETTER PRODUCT THAN EVERYONE ELSE”. Problem is, everyone knew they could do this, and setting the person who manages it first as a gate keeper hardly motivated them to go faster, the market was aplenty motivation, as was the competition, they all needed a working model machine, so they all made one.
“Not only do less people start trying to solve the problem, but in many instances, nobody even tries to solve the problem.” I’m yet to see the proof of this, though, even if we assume it to be true, those same people readily understand the benefit for them in the marketplace if they can do it better faster, etc. than those with a “license” but not the underlying know how. This becomes especially a consideration in high-tech as you well know.
“If there was no benefit to being first, would the development have taken 8 years? or 15 years? or 30 years? If you didn’t have a count system and bi-week requirements, would you produce as much work as you do?” You confuse “hardcore innovations Hmmm, that’s a great idea!” Let’s see if that works! with “softcore” Oh, everyone with a brain in the art knows it can be done, so we’re going in the lab to do it now, using several obvious combinations that haven’t been fully explored yet (that nonetheless take time and effort to produce, nobody ever said such a thing did not). You also confuse “work” and “quality work” as regards my own production system. If anything, the production system is part of the mechanism that would lead me to produce bad worthless work, instead of worthwhile work, but, I’m a masochist so there I am on the weekends thinking what I do matters (lol).
What incentive do the companies have? I’m pretty sure I addressed that in the next or the surrounding sentence(s).
“As such, I’m not sure why you are getting worked up over it.” I’ll tell you why, because a footnote in some professor’s writtings somewhere is not enough to provide a good case against your specific embodiment many times because of the legal ways of twisting around the issue. “Oh, well I had a specific purpose to doing it my way blah blah bs”. And not only that, it’s that there are certain inferences that anyone of ordinary skill makes when they read a paper, thus why everyone in the industry knows such and such is possible, but nobody’s saying, “well we’ve made this machine yet”. And to get around the obviousness of the idea? Just claim the machine doing it, and put in some functional language amirite? Trust me, it looks easier than it is to put together a case like that.
Anyway, I gtg, I declare truce in our nuclear war here. You’re right about my presentation though, many times I don’t properly present my views on here for a detailed analysis, then again, I’m not getting paid to. Shooting the intellectual shi is for fun, not work, at least until I’m in Congress. Don’t take that as an excuse ironicslip.
“back in the early 80’s examiners and attorneys had better working relationship, which made the job more productive and more pleasant. You could sit down with the examiner in a personal (or telephone) interview and work out allowable claim language”
Those claims were teh awesome too unless you were one of those unlucky infringer dudes.
Further to JustAnExExmr, back in the early 80’s examiners and attorneys had better working relationship, which made the job more productive and more pleasant
You could sit down with the examiner in a personal (or telephone) interview and work out allowable claim language
There was less need for RCE’s, CPA’s and continuation applications
I blame the change in the working relationship on today’s PTO management
Anon E Mouse :: btw, i was not railing at auctions per se … it is the notion that you can have auctions without liquidity and a fair meeting of the minds … not a monopsonist system that forces the seller into a less than optimal market value for their property … and options market without an underlying market adds nothing but a further abstraction from what exactly determines value creation/innovation in the first place …
the crappy turing test as relates to captcha too is getting cracked more easily as machines increasingly deploy more bandwidth and brute force the ocr — nice example …
trolls, provide needed liquidity … vulture capitalists do as well … so do hedge funds and other pools of money being managed … the issue that continues to be dismissed is identifying just who or what is responsible for value-creation in an economic sense … an auction should do that but an option on your right to file a patent is mishigah
an example :: all of those options on massive portions of the former ussr being scooped up by politically connected folks to re-consolidate power … “made in russia”? hasn’t reached my consumption yet (well, maybe a tube or 2 for a tube amp) & ocean tomo is the only auction for issued patents that i can observe … it is not terribly liquid
Posted by: step back | Mar 03, 2008 at 09:22 AM
“JD:
“trust me, there ain’t that much different at the PTO today then there was 10 years ago. Twenty years ago. Thirty years ago.”
While I often agree with what you write, this one is way off the mark.
The USPTO today is a completely different animal than it was 30 years ago (1978).
Back then, examiners knew technology.
Back then, examiners tried to follow the rules and law.
Back then, examiners believed what they were doing mattered.”
I think you forgot a couple:
Back then, examiners had supervisors who knew technology (or weren’t just promoted merely because they did 130%).
Back then, examiners were given the time to review the related technology that was consistent with how much related technology there actually was.
step back,
Sadly, I can’t disagree with you on that.
JD
JD:
“trust me, there ain’t that much different at the PTO today then there was 10 years ago. Twenty years ago. Thirty years ago.”
While I often agree with what you write, this one is way off the mark.
The USPTO today is a completely different animal than it was 30 years ago (1978).
Back then, examiners knew technology.
Back then, examiners tried to follow the rules and law.
Back then, examiners believed what they were doing mattered.
“You’re hardly the only one JD, so don’t take it personal, you just happen to be the most vocal.”
I don’t take anything personal. I’m fully aware of the reasons examiners do what they do. I was one too. And I know you love to rant and rave about us “old timers,” but trust me, there ain’t that much different at the PTO today then there was 10 years ago. Twenty years ago. Thirty years ago.
Except the current crop of (mis)managers who ardently believe that they are not required to obey the law.
That is new and different.
They’ve also infused the examining corps with their beliefs and attitude. Your posts are evidence of that.
Get rid of the (mis)managers. Re-educate the examining corps. The backlog and pendency issues will be solved. It will take time. But it will happen.
BTW, I hardly think I’m the most vocal. While I appreciate your nominating me for such a prestigious honor, I think there are others who deserve it much more than me.
Interesting post. BTW, you need to find something better to do at 11:00PM on a Saturday night.
“We think that intellectual property is taking too much of what is validly already public property and is not a valid contribution, so it should not be their property in the first place.”
Personally, I don’t care what you or “we” think and what opinions you express on this message board. However, as a federal employee, I expect you to follow the rules and the law that govern your actions, no matter what you think of them. Activist examiners have no place in the USPTO.
“But that’s just it, you’ll tell in your app the problem, and overall the general obvious way of fixing the problem, but not the specific manner (i.e. the code) and even in the rare case that you do, you won’t limit yourself to that code, you’ll limit yourself to the functionality. There is no quid pro quo there.”
The reason why nobody (or close to nobody) discloses code or even claims code is because, in most instances, the code is worthless. Inventorship in the software art isn’t about coming up with new code, it is coming up with a specific way of solving a particular problem or performing a particular function. Having someone write the code (to implement the invention) is like an inventor giving a blueprint to a mechanic to build a particular machine. Nobody cares whether or not the mechanic uses a combination wrench, a flare-nut wrench, an adjustable wrench, a pipe wrench, or a crowfoot socket wrench to make the machine. Similarly, (in most instances) nobody cares about the code being used to implement the software-related invention.
As a practical matter, who is going to patent any computer-related invention if they are limited to the specific code being used? In most cases, the design-around would be effortless, which would make the patent worthless.
“Do you know how many official duties are shirked around here to make the system even mildly functional at present?”
I glad to hear further evidence of the USPTO’s dysfunction.
“I many times hoped that that particular (not all) patetent owner fails horribly.”
I hope you never call yourself a “professional” because comments like those evidence you are not a professional in the slightest.
“The public wants a browser with all the nice features, and it doesn’t want to have to wait 20 years for it, but until Firefox stops being a buthl and lets microsoft license the tabbed browsing, then they’ll be waiting the 20 years.”
Boo hoo … the public wants a browser with tabbed browsing and unless the patent holder acquiesces, the public will only have one source. My heart is breaking. I think you are going to get a much greater public outcry regarding such inventions such as a life-saving medical device, which costs $25 to make, but is being sold to doctors for $1,500 or about life-saving drugs, or about energy/fuel-efficient devices. These devices have a much greater impact on the public’s well-being than a tabbed browser, yet I don’t see you leading the way to get the patent term on those reduced or that subject matter considered to be non-patentable.
BTW: I did a search on interference decisions by the BPAI over the last year. Zero, nil, none, nada of those decisions included the keyword “software,” and only two interferences (with a decision) included the keyword “computer.”
“I can compare nearly any randomly selected patent in one of the technological arts from the 1970’s and compare it to one today. The difference in the amount of information being relayed is astronomical, and amusingly enough, astronomical usually in favor of the patent from 1970, though the one from today spans 20 extra pages.”
You have to be kidding me. Find a patent from the 1970s and, on average, you are looking at 5-10 page specs with 2 sheets of drawings. If an associate presented me, today, with much of what was issued as a patent back in the 1970s, I would hand it back to them with the comment of “nice outline, I don’t want to see it again until add some real disclosure.”
“Adhering more or less strictly to the law will not have any effect on the backlog at this point.”
The “backlog” is the USPTO’s/federal government’s problem of its own doing. From fee diversion, to poor examining, to management so out of touch with reality that they actually think that examinations have improved over the past couple of years. Moreover, the “backlog” is no excuse for the USPTO not to do the job is was mandated to do.
“The tech became the new standard for a very good reason. Oh, and yeah, one other thing, there were other labs working on it too, just like I said, the only innovation they legitimately made was their particular machine they made, not the broad overclaim to the whole genus of machines that do that particular function.”
How many of those labs would have been working 3-4-5 years to solve that problem if in the end, they thought wouldn’t have a chance at obtaining a patent on the technology? The problem with all your hypotheticals is that they assume that these companies/researchers/etc. would all be working to solve these problems, even if they didn’t have a large incentive (e.g., a patent) to do so. I go back to my communism analogy … just like Firefox, its early adopters were excited about a utopian world in which everybody would work hard to contribute to the benefit of the community. What eventually happens is that the smart ones figure out that they don’t have to work hard because they’ll still reap the benefits of the others who kept working hard. It was fun for all the open-source crowd to work on Firefox in the beginning, but in the end, you have to pay your bills, and working on Firefox to improve on it doesn’t pay those bills.
Turning to your professor’s story, would all of these labs struggled for years to solve the problem if they knew all they had to do was wait for somebody else to develop it and then they could commercialize it without having to pay a dime for the technology? What happens when this attitude becomes prevalent? People start asking themselves, “why should I solve this (in)significant problem (that will take a lot of time to solve, if everybody else will copy my idea and I get nothing from it?” Not only do less people start trying to solve the problem, but in many instances, nobody even tries to solve the problem.
However, one only need look at the history of the last century to see how incentives effect the rate of improvement of a technology. Both of the World Wars brought about tremendous advancements among a multitude of technologies because there was an incredible incentive to do so. This is what the patent system does, it provides incentives to people to innovate.
“I believe we’re putting way too much incentive to “be first” rather than restricting it to the actual promotion of the art that the inventor made.”
If there was no benefit to being first, would the development have taken 8 years? or 15 years? or 30 years? If you didn’t have a count system and bi-week requirements, would you produce as much work as you do?
BTW. Innovation is also served when huge blocks of technology are placed out of limits. The reason why is that it forces others to either pay a royalty or find an entirely different way to solve the same problem. What can happen is that the conventional (and previously patented) way of solving the problem was an eventual dead-end solution, but the initially harder solution (to the same problem) will ultimately prove to be the best solution. This solution, however, would not have been discovered if the easier solution would have been available to all at the very beginning.
“the people at my prof’s workplace didn’t come up with the idea of doing that, they came up with a specific embodiment for the idea,”
Problem solved … if somebody else came up with the idea (and they actually wrote about it … quite common in academia) then your prof. couldn’t get a patent on the broad idea, only on their specific implementation. As such, I’m not sure why you are getting worked up over it.
“I say they all have a big incentive anyway”
What incentive is that? They get to present the first paper????? Hardly a big incentive. Unless they can monetize their 4 years of research, not many people/companies are going to invest it that type research.
“it’ll only prove that you’re incapable of understanding what I’m talking about as it has 0 to do with hindsight”
If anybody is incapable of understanding what you are talking about is that you ramble, your grammar is very suspect, and your logic poorly presented/supported. In many instances, I read what you write, and say to myself, “and your point is????”
spending a weekend talking about overthrowing “our” precious system? who is really paying you to spill your silly bile?
i would have paid a lot of money seeing wm. buckley dress down the mental giant ex 6 -pound-this …
ex6 you aren’t that smart get over it and show me the money!
coast … except a “pioneer patent” that is able to message terminology in a broad interpretative sense …
ironically you cite hyatt …
by defining the searchable art, laying the city limits before the metes and bounds of specific non-pioneering innovation, make undue breadth a very debatable concept especially if the market value is exhausted before the patent can be properly prosecuted and litigated … like the corporate raiders of the 1980s … the coalition for patent fairness would prefer to expense “patents” and prevent the rogues of trolls … nice future … wanna buy some land in detroit?
you win the market and equivalents even as m. slonecker correctly points out that doe and other such alleged mental contrivances may be legal questions that cannot undermine true innovation under objective examination and the inertia of the system and political pressure to encourage job creation (read taxation) … i perhaps see higher risks as costs and access to the system are increased without any real benefit to the folks who invent … no clients no representation …
my strawman about responsible examiners & the office, notwithstanding:
i would prefer that decisions concerning patentability be made by those who believe in promoting the progress by protecting those who seek to add value not simply manage or make predictable “litigation expenses” — a clear admission that the entity involved filed patents “first” defensively clearly no intent to innovate …
but i know money still has mental steps and a poor determination of value for those mental steps … … money do you assume that an expression as per a copyright is *easier* to copy and thus deserving of less examination (or simple registration) and some how the method or manufacture (i’ll leave a proper definition of E=mc2 (that would be squared)) that you accord “patentable subject matter” is harder to copy? what if they are entirely equivalent except for the “composition of matter” … then greg aharonian (ive not seen the quote and as a former client this may not be properly attributed) but yes, there could be movie scripts that would be patentable subject matter or should at least elucidate issues over what exactly constitutes mental effort versus flash of genius standards.
do the tool-makers (inventors) really deserve less than the folks using the tools? and, is that really a legal question (akin to scopes monkey) for jurists or reserved to more general perspective on societal resources? or does there need to be a policy emphasizing the “information wants to be free”-ly accessible aspect that T. Jefferson argued for in compromising over the Patent Act? frankly, i don’t think a jurist can decide what is economically productive especially if productive means disruptive in any real context? value creation versus wealth (re-)allocation are constant struggles in any government.
The productivity questions are “shoot-the-engineer”-type questions we deal with in industry standard meetings with lots of antitrust types. taking the side of those who do not effectively or efficiently create jobs, including the government itself, is not a terribly innovative approach to promote the progress of anything … except more government … and less innovation …
what would buckley (rip) have said about the level of competence of our leaders?
That’s the amendment though, that wasn’t in the original claim.
my bad coast, 2nd line of claim 1; wherein the transporting is done by a transporter.
my bad coast, 2nd line of claim 1; wherein the transporting is done by a transporter.
“So now #6K is telling us that he doesn’t understand the purpose of broad claims…”
Um, no, I’m saying that the purpose of broad claims and the effect of that purpose outweighs the benefit to society by having one person get his machine online faster than another by 5 months when that whole genus is now taken away from the public for another 20 years, or at least, it’s there, with a toll.
“getting in the race” so to speak is just my point, none of the people that are in the race have any real doubts in their minds that the purpose can be accomplished the real “intellectual property” of that whole race goes to the guy who first dreamed up that idea and realizes that it’s a near certainty that with a bit of spit the whole idea is nothing but routine labwork. My point is, the people at my prof’s workplace didn’t come up with the idea of doing that, they came up with a specific embodiment for the idea, and that’s all they should be allowed to protect, whether or not they barely beat the other guys to getting the machine working or not. You say it provides some huge incentive for them to get it done faster (and presumably bring it to market), and that that is a good thing, I say they all have a big incentive anyway (otherwise the whole idea probably isn’t that usefull) and don’t need a first place medal that functions as a 20 year monopoly as an extra incentive. Unless, of course, they were the ones to come up with the whole idea in the first place, then, and only then, can they legitimately claim to be THE inventor of their machine etc.’s genus because they simply are not. They are the winner of a race to make a machine everyone pratically (CL99.9%+? for our example) knows can be made.
Oh, and yeah, of course the rest should file to protect their designs also, but that doesn’t mean that the first place winner should necessarily get a 20 year fee collection over all the rest. Don’t think I don’t understand how it works, I take issue with the very foundations of the reasoning behind why it works the way it works, especially in light of the way patents are issued, and the criteria for obviousness, definiteness, etc, as they stand (even now).
You can say E6k hindsight this, hindsight that blah blah all day long, and it’ll only prove that you’re incapable of understanding what I’m talking about as it has 0 to do with hindsight, and merely with how the administrative functions are carried out in the rewarding of the people who bring ideas to reality.
“#6K is a classic example of the problem so prevalent in today’s slightly younger population. His ego is writing checks his knowledge and experience can’t cover.”
Probably very true CaveM, but nevertheless, what I believe is grounded on what I see on an everyday basis. Surely, I’m not pretending to be the be all end all to the conversation, and am certainly open to actual reasoned, non-I<3theoldsystemyayit biased views the contrary.
What's got to be scarier for you though, is what if age doesn't dispell all these "myths" we believe, and we overthrow your precious system? What happens when our opinions really are based on a generational difference in the way we view the world?
“A transporter comprising:
means to transport a person from point a to b instantly.”
2164.08(a) Single Means Claim
A single means claim, i.e., where a means recitation does not appear in combination with another recited element of means, is subject to an undue breadth rejection under 35 U.S.C. 112, first paragraph. In re Hyatt, 708 F.2d 712, 714-715, 218 USPQ 195, 197 (Fed. Cir. 1983)
Is it just me what smells a rat?
I’ll give my opinion never having examined or met 6k, or even having read most of his too-tedious remarks: 6k is not taken his meds as prescribed – he demonstrates classic symptoms of a Professional-Wannabe Personality Disorder, PWPD, and is probably committed somewhere for life in a state facility that does not keep a close enough eye on its patients/inmates.
“Think about all the other firms who knew it could be done, but got their machine working 5 months after my prof’s firm. Do they deserve to have to pay huge royalties to their firm just because they made the first model?”
No ~ unless they’re infringing. And if they’re smart, THEY will file on the detailed embodiments regardless. Hey, they got in the race, if they weren’t prepared to lose, they shouldn’t have gotten in the running. Patents serve the economic purpose of efficiently allocating capital to R&D efforts. It doesn’t make economic sense to have two players plodding along trying to make a transporter. If two enter the race, such as you have described. If one drops out because of a broad claim, in the long run its more efficient.
Does anyone really know what this 6k i-d-i-o-t is saying most of the time, or are you guys just humoring him as one would humor a friend who is in a nut house trying hard to be coherent?
Why do I think 6k is a put-up job trying to throw serious commentary off track?
#6K is a classic example of the problem so prevalent in today’s slightly younger population. His ego is writing checks his knowledge and experience can’t cover.
So now #6K is telling us that he doesn’t understand the purpose of broad claims…
“working prototype he will reject it out of hand” absolutely, why? Because he’ll try to claim:
A transporter comprising:
means to transport a person from point a to b instantly.
Or some other such nonsense instead of claiming “A machine with xyzto the tenth number of components that transmit a person digital signature (or whatever) to another machine comprised of abcto the tenth number of components that recieve the information and put the person back together”.
As is typical, the only real problem is that your “innovation” was obvious, it was only your very specific method of solving the problem even has a chance in heck at being actually non-obvious and you submitted a huge overclaim (and further, the only real worth that the patent has to you is if you get the overclaim and are not restricted to you one way of fixing the problem). But our current system, even under KSR, fails horrendously to take that into account, especially when the problem was some insignificant nothing that there are 100000 ways to fix, but they’re only telling one way and holding out the whole lot of ways from the public for the next 20 years because they’re simply the first one to implement anyone of the ways. Further, they’ll attempt to use that functionality to lend credence to the obvious combination they used to fix the problem. Ridiculous, and yet, I see it every week.
In my professor’s example, again, it is a shining jewel of a situation where patents would be legitimately needed (i.e. supporting your position), but upon looking further, we notice that if a lot of people didn’t steal the tech straight up (lawlessness) they would have been out of business very shortly thereafter. And I don’t mean a few companies here or there, I mean literally a crpton. The tech became the new standard for a very good reason. Oh, and yeah, one other thing, there were other labs working on it too, just like I said, the only innovation they legitimately made was their particular machine they made, not the broad overclaim to the whole genus of machines that do that particular function. Lots of people knew it was possible to do it, but nobody had been able to do it yet. That, btw, for you lawyers does not mean there was long felt need for it to be developed, iirc it only took 4 years for them to make it. Think about all the other firms who knew it could be done, but got their machine working 5 months after my prof’s firm. Do they deserve to have to pay huge royalties to their firm just because they made the first model? You’ll say yes, but I do not necessarily agree, I believe we’re putting way too much incentive to “be first” rather than restricting it to the actual promotion of the art that the inventor made.
You’re hardly the only one JD, so don’t take it personal, you just happen to be the most vocal. And as to adherence to the law, I’m going to have to give you a hearty lol. Adhering more or less strictly to the law will not have any effect on the backlog at this point. As to the “sins of our fathers” from 5+ years ago that you conclude led to the problems of today, it can be debated either way, the fact of that matter is, the backlog is unaccpetably large right now, and is only getting larger. No amount of strict adherence to the law will be sufficient to remedy the situation.
Ex#6K says “the thing they made was something that many knew was possible, they just made the first machine to do it)”
I suppose actually being the first one to do it doesn’t count for much in #6K’s analysis.
His is such a great example of the cynical post-hoc hindsight reasoning that so many people get caught up in when considering the ins and outs of the innovation process. Its always easy, as has been expounded on greatly by many great jurists, to consider something “obvious” after the fact. In Star Trek they knew teleporting was possible. I suppose when someone finally submits the application to #6K based on a working prototype he will reject it out of hand…
“For all their mouthing off about mismanagement, there are some real issues as well.”
Nothing that obeying the law wouldn’t solve.
“What there is are differences of opinion about the “patent system” and the policies underlying it.”
“If there is a generational gap…”
Well from what I’ve been hearing from the sociological schools there certainly is, and it is of necessity spilling over into patent law. Look for new books about the subject in your local B&N shortly. A spillage into patents I will readily admit is being hastened by the lack of quality of so many of today’s submissions. I can compare nearly any randomly selected patent in one of the technological arts from the 1970’s and compare it to one today. The difference in the amount of information being relayed is astronomical, and amusingly enough, astronomical usually in favor of the patent from 1970, though the one from today spans 20 extra pages.
I agree it’s a difference of opinion, but the historical precedent for such opinions amongst the people of one generation being the grounds for change in how the law is made or applied is outrageously present for this country.
In the end though, by the time I’m 50 if I stay in law at all, I’ll probably think much more the same way you do, if not entirely. It’s much the same as people transform from being more liberal to more conservative (generally) as they progress in years.
Though perhaps unfortunately, problems with the old system that you espouse being practically implemented lend credence to my position for change.
Dear Mr. M. Slonecker,
As a general rule I haven’t been reading examiner#6k but that may change if he carefully considers your comments above.
I was preparing to post the comment below to Also Anon when you posted. If you care to follow the link, you may find Endnote 1 about eBay and KSR relevant to your comment that suggests:
“…as much as certain aspects of the “patent system” have come under the fire, the system in substantial measure remains largely intact.”
To me, eBay and KSR, for example, are signs of, and are leading to, serious corrosion of our patent system.
* * * * *
Dear Also Anon,
In regard to your comment in which you referenced my question:
“‘Anybody still reading this Leap Night got a problem with that?’”
You wrote the following:
“In a vacuum, your comments make sense. However, since our country is a common law country, judges must often rely on precedent to define what the law is. Precedent is by nature made by judges. And precedent is rarely directly on point (otherwise there would be no room to dispute the results). Therefore, judges must use their sense of right and wrong to construe the precedent that they feel is more applicable, and make new precedent. See the problem with the generic arguments of ‘judges should follow the law and not make the law’? In a common law society such aas ours, this is nearly impossible.
Thank you for your comment – you are, of course, right as rain.”
———–
Also Anon — I apologize to and thank you, as well as to Lionel Hutz, Leopold Bloom and Clive Fenster for indulging my loud and too loose Leap Night comments with such kindness and courtesy. I suspect spiked my Early Times with 101 Wild Turkey.
When it comes down to it, I don’t think we are at serious odds – on Leap Night, I was narrowly focused on judicially-dishonest result-oriented decisions which seem to be more prevalent in today’s corrosive troll-tracker, bounty-reward and lynch-the-troll atmosphere.
Gentleman, please also accept my admiration — you have intellectual and professional class. Thank you for reading my posts and the honor of your edifying comments.
Your collective teachings and suggestions have added to my motivation to write a lengthy comment that relates to aspects of your insightful Leap Night comments and my rambling appurtenances thereto. My lengthy comment responds to Mr. Curtis Sorbel’s comment found on this link
link to patentlyo.com
examiner#6k,
Having followed your many posts over the past few months, it is clear that you are sincere in what you opine, appear to be conscientious in your work at the PTO, and do support the “patent system”. In all candor, however, many of the opinions you express in your posts are in significant measure undercut by your continuing references to a generation gap, and by your continuing comments relating to the gap that old timers are in your view an apparently dying breed that will in the near future be supplanted by others sharing your views of the “patent system”.
Just some words of advice that you are free to do with as you wish. There is no generation gap. What there is are differences of opinion about the “patent system” and the policies underlying it. These policies have been articulated in the statutory scheme enacted by Congress, and have been “refined” by the judiciary in an effort to interpret the statutes while ever mindful of the important principle known as stare decisis. The latter is particularly important in order to try and retain some measure of predictability in the law, though it is clear that such predictability can at times wax and wane to a somewhat modest degree by judicial pronouncements. By and large, however, such pronouncements are not cardinal changes in law that stand the “patent system” on its head and represent a significant reversal of law that has developed since the enactment of the original Patent Act of 1790.
If there is a generational difference, it is likely due to the fact that those practioners who have been actively engaged in the practice of law for an extended period of time have time and again seen seemingly significant changes in law contained in judicial decisions large fizzle out in the real world. Graham came and went with only a relatively minor ripple on the practice of patent law. The same can be said for many other of the “landmark” decisions emmanating from the Supreme Court. For example, DOE in its most basic sense is still DOE as it has historically existed. Sections 102, 103 and 112 likewise basically remain the same but for the occassional amendments made to them by Congress. The basic construct of an application since the 1952 codification of patent law is largely unchanged.
101 is likewise largely unchanged, with the current debate being largely centered on whether or not certain new technological achivement is embraced within its terms. This is hardly a new debate. It has been ongoing for decades as new “products” enter the market.
My point is simply that as much as certain aspects of the “patent system” have come under the fire, the system in substantial measure remains largely intact. As you gain more experience over the course of your career I believe you will see this to be the case.
“Yup …. you think theft of intellectual property is OK, I do not.”
No, we think that intellectual property is taking too much of what is validly already public property and is not a valid contribution, so it should not be their property in the first place, and that the system currently does not do a good job of sorting out the rif raf. I state specifically my professor’s situation that the situation above that the theft was bad, but that there was no other way for the other people to validly compete because it was such an integral part to the new generation of devices. Breaking the law becomes mandatory for survival, we need laws that promote the progress while at the same time rewarding the “inventor” (which btw, the thing they made was something that many knew was possible, they just made the first machine to do it) and at the same time allowing for valid competition without having to break the law. Basically, we want for nonmandatory injunctions, but an acceptable restitution for the inventor, and heavy handed obviousness determinations. It is not that we don’t believe in it, we believe in a different form of it. And you’re going to have to deal with that, because that is the way the future is headed, whether you like it or not, you’ve fighting change, just like people fighting the sexual revolution, voting rights for women minorities etc. in this country, you’re going to lose out to new times eventually, because reasonable people start to see things differently. And even though you hold on to your old time beliefs quite strongly, they’ll die out/down eventually.
“and the solution to the problem was known (but perhaps being performed in a different context), then the invention is obvious” proving that legally in terms of literary works in 18 hours has never been harder, especially for software. That one huge glaring problem.
“for many symptoms of problems (the underlying cause being unknown), identifying the underlying cause (and implementing a solution) isn’t worthwhile unless one gets a patent on the solution. In these instances, where people once didn’t think the problem was worth solving, they now have an incentive to do so (the quid pro quo you were looking for).”
But that’s just it, you’ll tell in your app the problem, and overall the general obvious way of fixing the problem, but not the specific manner (i.e. the code) and even in the rare case that you do, you won’t limit yourself to that code, you’ll limit yourself to the functionality. There is no quid pro quo there. And I disagree that it’s not worth it, mainly because you’re talking about in the short term. In the long run of 20 years it’s a diffenent story. Your company keeps on ignoring the small things you need to fix and someone else will do them and take your market. The problem in that situation is the term of 20 years. Perhaps if you got a smaller term the problem might be largely mitigated, and a resonable quid restored, but even then, it’s (too) tough to judge for a general purpose.
“Do you know how many interferences I am personally aware of in the software arts?”
Do you know how many interferences I personally know of being squelched because of their difficulty and generally pissing everyone off? (the answer is 3 btw, after one year in a non-software specific art) Do you know how many official duties are shirked around here to make the system even mildly functional at present? I bust my balls to be one of the “doing things by the book” as well as I can examiners. Eventually everyone wises up that if they want to advance (and not spend all their weekends here for 30 years) they’ve got to find the things that can be let go, and then let things go.
What’s the main reason? How many counts do you get when you’re near the end of your search (when you’ve found a very nice 102 to take it through RCE already) and you find an interference? How much extra time in sending it to the proper place and talking it over with people to get it sent there?
You looking in from the outside, yeah, things seem all hunky dorey. Try coming on the inside, spend some time here, and stop listening to people who are now attorney’s who were examiners 10 years ago. For all their mouthing off about mismanagement, there are some real issues as well.
There, my hypothetical stands. And even considering if interferences aren’t anywhere near like I said, many times companies wouldn’t file for a patent if they waited a year to fix x problem, because they see the new software released one month before with that same thing in it. And the new software released is a blatant indication to them that SOMEONE already filed most likely, or at least there is no way they can claim to be the inventor anymore.
“how many inventors have you had a talk with in your life? and when I mean talk, I mean that got to tell you the problems they were facing and what they understood the state of the art to be at the time, what they tried to do to solve the problem and then how they came up with their ultimate solution.”
Considering my uncle is a proud owner of 3 “very crappy” patents and a decent one, and considering I know several other patent owners (or lol inventors who signed their stuff to a company for 100$ that will make the company 10k), I’d say I’ve talked to quite a few, really talked. I in fact ask everyone I hear about inventing something as much as I can usually. You’re right, many times they’re FAR behind the state of the art. Quite irrelevantly right though. The fact that they don’t try to keep up with the art isn’t indicative of anything but their own ignorance. Btw, a quick aside, my uncle will be in the new football movie coming out about old school football in the 50’s as an official. Pretty cool to get to be in a major blockbuster eh? They were filming near where he lives so he got the part, said the old timey shoes really hurt though.
Oh, and lets not forget the smug sons of guns that they brought in to the pto to talk to us during pta. Lol, they think their invention is sooooo great. A new flashlight perhaps. As smug as they are, I many times hoped that that particular (not all) patetent owner fails horribly. They’ve got the solution to a problem that is a very minor concern to everyone and they think they’re the greatest thing since sliced bread because people praise invention so much. Ridiculous.
Also, on the thing about Firefox, let’s be honest, I said anyone that’s not a retard. 18% is doing quite well, they even got a large portion of the non-retards. Though, like you point out, they’re losing share, they’re not continuing to improve their product (as far as I can tell), and microsoft now has caught up on many important features, and bundles it’s crp with every new dell shipped etc. Firefox can’t just sit on it’s haunches and do nothing, it’s got to keep up and improve itself (maybe make an OS? lol). That’s called a market, and market forces fyi. There is nothing special about Firefox, they’ll get taken out if they don’t keep improving.
Now let’s say they had a verifiable patent on tabbed browsing, then what? Maybe they withhold that (and other nice features) from microsoft, microsoft then goes another way of implementing features (some lame sidebar tabbed browsing maybe) because of an injunction. The people now get a product from microsoft that has all the nice features they came up with, or the alternative, Firefox which has the tabbed browsing, but doesn’t have the other features microsoft brought in after a few years. The public wants a browser with all the nice features, and it doesn’t want to have to wait 20 years for it, but until Firefox stops being a buthl and lets microsoft license the tabbed browsing, then they’ll be waiting the 20 years. Now, you’ll say, well if it’s that important, then MS will pay a big enough sum to get it. True, but then FF can inflate the price of what it’s worth because they control it, and they include in that inflated price the “value” of only them having it. So, MS decides to just leave it’s product that much crappier. GG good browser with all the functions. You can choose between crappy product no. 1 and no. 2 until 20 years is up.
Sure, this doesn’t always happen, but let’s be honest, this is the case that guy was using, where his opponents will steal the idea unless they patent it, thus barring them presumably for 20 years with no desire to license.
Don’t even try to portray me (or other examiners) as not thinking IP laws and adherence thereto are a good thing, but only when it is within reason, and I certainly feel that the balance has gone too far in one direction and that the system is ripe for changes to correct that.
“I suppose this is why everyone and their friend (who aren’t retards) now use Firefox instead of IE.”
Never good with the facts are you.
link to pcworld.com
As of the writing of the article (July 2007), Firefox had only about 28% market share in Europe and 18% in the USA. However, it appears that Firefox is now on the decline:
link to ejobdescription.com
“Just because there’s some small startup that comes up with some small idea does not mean they are entitled by RIGHTS to keep that very likely obvious solution that everyone was want to have already to themselves.”
They do if they patented those ideas. Welcome to the current state of patent law in the US of A.
“We’re a diff. generation, we just think about things fundamentally differently. There is a lot of talk about this lately, and it is very telling.”
Yup …. you think theft of intellectual property is OK, I do not. This is why many practitioners have a problem with the USPTO at this time … the USPTO is populated by many individuals who are against intellectual property rights.
“The thing about it is, you think that just because a company somewhere can find some small problem and fix it, that is wanting to be fixed by likely thousands of users, with the solution readily apparant to all, and just waiting for someone to code it they should somehow now get a 20 year monopoly, or in the alternative, the ability to bilk money out of companies they taught NOTHING, because they likely didn’t share their code, nor would the code likely be operable on the competitors already in place code anyway. Where’s the quid, the pro, or the quo? It’s nowhere, that’s where.”
Under current obviousness law, if the problem was known, and the solution to the problem was known (but perhaps being performed in a different context), then the invention is obvious. However, you are approaching every situation as if every problem was already obvious to everybody (except the problem wasn’t written down or already solved).
BTW: for many symptoms of problems (the underlying cause being unknown), identifying the underlying cause (and implementing a solution) isn’t worthwhile unless one gets a patent on the solution. In these instances, where people once didn’t think the problem was worth solving, they now have an incentive to do so (the quid pro quo you were looking for).
Question: how many inventors have you had a talk with in your life? and when I mean talk, I mean that got to tell you the problems they were facing and what they understood the state of the art to be at the time, what they tried to do to solve the problem and then how they came up with their ultimate solution.
“you fail to be progressing the arts by having someone do it “faster first” rather than everyone just getting to it a few months later”
Typical (factually unsupported) assumption by an examiner. If what you said were true, given that it takes at least a couple of years before a software application is even picked up for examination, the software arts would be littered with interferences because of all these companies trying to beat each other for a filing date. Do you know how many interferences I am personally aware of in the software arts? The answer is ZERO. If all these obvious problems were getting addressed with obvious solutions, as you asserted, there would be a lot more interferences than there are. There goes your hypothetical blown to pieces …..
BTW: I see that you completely ignored the case law that I cited.
“”So you are saying that despite these patents, the semiconductor industry wasn’t slowed down???”
Also, obeying the law would have set most corps back 17 years. Literally. So are you trying to tell me that obeying the law sets back the progress? Yes, I think you are. You implicitely refer to lawlessness to support your position of the law being fine and dandy. Ridiculous. Nice lawyer speak though.
“corp that has no inherent right as people to do so.” meaning inherent right as people to take from the public sector as their own.
“Another step involves actual implementation of the idea. For software, that may be harder or easier than the average patent depending upon exactly what is involved. Another step involves marketing the idea. The belief that by building a better mousetrap, the world will beat a path to your door is just wrong. Everybody claims to have a better mousetrap. As such, not only do you have to have a better mousetrap, you have to be able to get into a potential client’s door to actually show that the mousetrap works. All this involves marketing.” “Lots of blah blah startup company”
I suppose this is why everyone and their friend (who aren’t retards) now use Firefox instead of IE, face it, anyone cthat an make a better mousetrap, and if it is TRUELY better (if it’s “meh, it’s better in a few respects” hardly anyone gives a crap, and rightly so), then word will spread and the unweildy giant is left catching up. I’m yet to see IE protect me from spyware even half as well as Firefox does, and that’s after my fiddling with options. It took them FOREVER to get tabbed browsing, but I suppose it was hard for them to see the blatant want for it amongst users who are beyond the basic, “hur, I have one window open, that’s enough” or “hur I’d like to open a brand new window everytime I’d like to have another page displayed so my system can get that much more bogged down by running the code for a whole new window every time”. I’m not saying it doesn’t take marketing, but nothing in life is free. You’re not going to bust in on MS’s market without the marketing whether you have a patent or not.
Get your bs arguments out of here, new software is coming all the time, microsoft gets it’s behind kicked regularly, and then later puts in the features, don’t try to tell me that this was in some way hugely blocked by some small patent Firefox’s company or someone else had, they’d put it in and worry about the legalities later. Just because there’s some small startup that comes up with some small idea does not mean they are entitled by RIGHTS to keep that very likely obvious solution that everyone was want to have already to themselves.
The thing about it is, you think that just because a company somewhere can find some small problem and fix it, that is wanting to be fixed by likely thousands of users, with the solution readily apparant to all, and just waiting for someone to code it they should somehow now get a 20 year monopoly, or in the alternative, the ability to bilk money out of companies they taught NOTHING, because they likely didn’t share their code, nor would the code likely be operable on the competitors already in place code anyway. Where’s the quid, the pro, or the quo? It’s nowhere, that’s where.
Don’t act like I don’t know what the law currently is pds, I’m saying that the law blatantly fails to assist in anything but making the first person to do something obvious a bit richer. And further, most importantly, that doing so just doesn’t balance out on the scale of retarding the progress vs. having it done 5 months sooner by a small corp that has no inherent right as people to do so.
“So you are saying that despite these patents, the semiconductor industry wasn’t slowed down??? It seems to me that is what you are saying. If you think semiconductor patents aren’t doing any good in protecting copying, why do you think software patents are more successful?”
I didn’t say it wasn’t slowed down, the people they did sue made by the bucket-load. And in this case, it is one shining gems of the patent system actually promoting the progress (precisely because everyone stole, that’s the ironic part) and by providing his company with an interest in making that process.
“If you think semiconductor patents aren’t doing any good in protecting copying, why do you think software patents are more successful?”
I’m not saying they are, I’m saying that they retard the progress in a huge amount of the cases when they do actually come into play and are asserted. Precisely because of the ways the laws you cited above, and the ones I cited further above, are setup. They provide too much incentive to be the first on any problem, and then the borderline obvious solution with all the public outcry’s for fixing that problem (likely bundled with the solution that is later implemented) completely ignored is allowed and presumed valid. Once being first to a problem that is going to be fixed (because it was a manufactured problem) passes a certain point, you fail to be progressing the arts by having someone do it “faster first” rather than everyone just getting to it a few months later and the public enjoying it from all providers in the coming 20 years without having to pay extra to someone who “invented” the solution.
I can only hope KSR fixes the majority of the problem. The last piece of the puzzle is the applicant’s submitting all relevant info, and the well based patent system will be set to go.
We’re a diff. generation, we just think about things fundamentally differently. There is a lot of talk about this lately, and it is very telling.
“Their features must not be that great if the incentive to bring them to market first isn’t enough to win them clients and keep them. Remove all the software patents, your firm gets all it’s competitors features and gets to be the one that is doing all the “ground breaking” user friendliness work.”
Not too familiar with business I see. Having a great idea is just *one* part of the process of profiting from that idea. Another step involves actual implementation of the idea. For software, that may be harder or easier than the average patent depending upon exactly what is involved. Another step involves marketing the idea. The belief that by building a better mousetrap, the world will beat a path to your door is just wrong. Everybody claims to have a better mousetrap. As such, not only do you have to have a better mousetrap, you have to be able to get into a potential client’s door to actually show that the mousetrap works. All this involves marketing.
You are a startup company with a great new software-related concept, it could take years to gain industry acceptance or even industry visibility. However, if you are Microsoft and you are able to copy/implement the same software-related concept in a much shorter time (because of much greater resources), this product can be in the hands of millions of customers literally overnight. This is why being “first to market” doesn’t matter as much as you think it does.
“Who says your firm is entitled to that business strategy of coming up with likely obvious solutions to PROBLEMS THEY DISCOVERED OR ACTED ON FIRST. That’s key, they discovered the problem, they didn’t INVENT a solution, the solution was just an ordinary combination (i.e. typing code), it was the fact that they found and/or acted on the problem first that allowed them to get the patent. That, in mine, and in many other’s, opinions should not be the basis for awarding monopolies of features, because the problem was inherent, and waits for all to see it and act on it, what of the company that sees it one day after you file your patent?”
Have you actually read the language of 35 USC 103 …. “Patentability shall not be negatived by the manner in which the invention was made.” You also need to bone up on the case law that states that recognition of a problem is an indicia of obviousness.
In fact, I’m going to direct you to MPEP 2142.02(III):
“[A] patentable invention may lie in the discovery of the source of a problem even though the remedy may be obvious once the source of the problem is identified. This is part of the ‘subject matter as a whole’ which should always be considered in determining the obviousness of an invention under 35 U.S.C. § 103.” In re Sponnoble, 405 F.2d 578, 585, 160 USPQ 237, 243 (CCPA 1969).
link to uspto.gov
Anyway …. thanks for the laugh of the day #6k. I’m glad to see that you again evidence your ignorance of the patent code, case law, and even the MPEP.
“According to him, the vast majority of the industry just straight up stole the tech anyway because it was just that valuable even despite great patent coverage. A lot of good patents did there eh?”
So you are saying that despite these patents, the semiconductor industry wasn’t slowed down??? It seems to me that is what you are saying. If you think semiconductor patents aren’t doing any good in protecting copying, why do you think software patents are more successful?
“Anybody still reading this Leap Night got a problem with that?”
In a vacuum, your comments make sense. However, since our country is a common law country, judges must often rely on precedent to define what the law is. Precedent is by nature made by judges. And precedent is rarely directly on point (otherwise there would be no room to dispute the results). Therefore, judges must use their sense of right and wrong to construe the precedent that they feel is more applicable, and make new precedent. See the problem with the generic arguments of “judges should follow the law and not make the law”? In a common law society such aas ours, this is nearly impossible.
I would also like to say, it might apply to more than software though quite honestly. Lots more. Hopefully that might be a silver bullet with which to kill the patent system monster.
I would like to say, that the above does not necessarily apply to anything other than software, lest it be twisted and mangled. There’s a difference in writting code to implement your solution and in actually making something with a physical structure. Call me biased, I don’t care.
“Their product is an industry leader because of these kinds of features, and the developers and researchers get paid well. The very first thing they do when they settle on a solution is file a patent, because otherwise their competitor will surely copy them (as they commonly do with unpatented features). It’s not a hypo. There are a lot of companies that rely on patents as part of their business strategy.”
So? Their features must not be that great if the incentive to bring them to market first isn’t enough to win them clients and keep them. Remove all the software patents, your firm gets all it’s competitors features and gets to be the one that is doing all the “ground breaking” user friendliness work. Who says your firm is entitled to that business strategy of coming up with likely obvious solutions to PROBLEMS THEY DISCOVERED OR ACTED ON FIRST. That’s key, they discovered the problem, they didn’t INVENT a solution, the solution was just an ordinary combination (i.e. typing code), it was the fact that they found and/or acted on the problem first that allowed them to get the patent. That, in mine, and in many other’s, opinions should not be the basis for awarding monopolies of features, because the problem was inherent, and waits for all to see it and act on it, what of the company that sees it one day after you file your patent? You see, it’s overkill in terms of incentive to bring features to the market, and at the same time limits me from getting all the good features of your competitors in your products, and limits me from geting all the good features of your products if I choose your competitors. Horserubish, the PROBLEMS were in both of your previous versions, an I as a typical heavy user noticed them all and knew exactly (just like you did once you saw and decided to fix the problem) how to fix it. You see this kind of stuff on the tech support boards of nearly EVERY piece of software out there. Fix this feature, why don’t we have x feature like this other product when it’s so much nicer, but we have some decent features in yours that would blend sooooo well with the others? Too bad market, you have to deal with crappy software for 20 years before we can blend the two great ideas or pay corp a enough for their products to license the obvious solution to corp b. Why can’t they just count the patent as invalid? Because the idea is novel (nobody had fixed the problem hitherto), and it’s borderline non-obvious based on a search of 1%- of the prior art that probably didn’t even have either corp’s pre-instant invention program functionalities included in an IDS “because they’re not relevant!!!” (even though they make up most of the body of the claim).
That’s just great, and you know what that’s called? RETARDING the progress, not PROMOTING the progress. For what public gain is the trade made? We got the disclosure of something that’s blatantly shown your newest line of products that you took to market? GREAT, NEATO, gj on getting off your arse and implementing features, here’s a 20 year monopoly for showing us something we’d see anyway. We need to make 104 read: Allowing a patent on this subject matter, while not strictly proven to be not novel, or non-obvious, would retard the progress of the country rather than advance it, feel free to take it to market though if you’d like, but don’t expect us to stop your competitors from implementing it also. Rejected under U.S.C 104 (a).
PDS you asked two questions, to which I responded, yes to the first, and no to the second with little blurbs about each. You then did not refute my yes, you merely said that it’s a fact of life that there will be patent lawsuits in SW, which I’m not how such an answer can possibly flow from asking “have SW patents slowed down the industry to a great extent?” and my answering yes. Why is it a fact of life? Nobody and no facts per se make it be a fact of life, it’s up to those people that make the decisions as to if there will be SW patents or not.
As to the semiconductor industry whose litigation rates I have unfortunately not been watching, I agree, they probably lead SW litigation, again, because they have a firm footing in 101 for one thing and they are a new art for another. I pointed out that both arts started around the same time because that means they’re both around the same level of development. That was my only point, they’re similar in terms of development times, and so it is no wonder that between two “new” arts that the one with a firmly established basis in the 101 law would have more cases if only because there are less Semi cases rejected through abandon by the Office under 101.
Thus I say your point about Semis being more litigated than SW is irrelevant at best. Not to mention that just because nuclear patent war is going on in one art doesn’t mean it’s a good thing to have it going on elsewhere as well.
I would venture my best guess as to say that a lot of the patent wars in Semis are bad too, but based mainly on obviousness and the failure of the system to take into account technical skill of those involved. Such a thing might include setting the skill of an ordinary person at that of a Masters /w 3- years exp, when really the ordinary skill is probably a Masters/PhD with 20 years exp.
That is my gripe with high tech fields, of which Semis is a good example from what I know of it and what it shows on the surface. Just as in my art, I have no doubt there is a gargantuan (we so rarely get to use that word in a sentence) amount of art in Semis that is in with IEEE, AlChE?, IBM, etc. etc. as well as East, how much of that can you search in 12-18 hours? Let me clue you in, about 1%- of it and that’s assuming you don’t actually read anything and use only East autoflip .4 secs each ref, when you start READING sht the amount goes to .1%- REAL FAST. The same kind of problem is in my art. Thus, the word search comes in very handy. Then you run into the problem of 100001 ways to say the simplest things (much less the complicated ones), and praying that your 1%- happened to be so focused that you’ll find that needle you’re looking for. And I know you’ll say, “well if it’s hard to find then why wouldn’t you consider that it might be an invention?”, because I’ve not looked at but a tiny fraction of what there is to look at, the classification (at least of my art) is in shambles, and despite difficulty of finding information it does not mean that any other person might randomly find it on their first word search, and further, you can sometimes see a very real potential burden you could be laying smack down on a whole industry by allowing a decent size overclaim. It’s like staring straight into the face of taking responsibility for causing someone a whole CRAPTON of trouble and maybe money all because you typed in one word different than would bring up that last part you need for a 103. Why in gracious would you even want to presume something is valid under such circumstances? “Because it’s RL”. Yeah, but there’s gotta be a balance between RL and in actually doing what the law is meant to do, stop old/obvious ideas from being taken out of the public domain for another 20 years, or at the least, harrassing people with legalities once again.
Bringing up Semis is fun though, I had a professor who told us a few times about how his company made this great new process that became the industry standard years and years ago and how he’d worked on the project. According to him, the vast majority of the industry just straight up stole the tech anyway because it was just that valuable even despite great patent coverage. A lot of good patents did there eh? That story was actually one of the things that made me realize that patents don’t, in many cases, really “protect” things that are way popular anyway because you a lot of times can’t stop the floodgates. All they do is help someone out against a few specific targets of his ire (injunction), and sometimes make him richer off of other people’s work in bringing that product to market, instead of bringing it to market himself and making all those dollars by being a good merchant. While, I will freely admit, could be a good thing in some occasions, but considering the above about the search problems and presumption o valid, I just can’t say that it necessarily is at the moment. Funnily enough, anyone know how rich Thomas E (patent people’s patron saint) was when he died? Great inventor, horrible business man. I’d like a concrete house please!
Overall, just like my art, I’d bet Semis are probably also a good example of why KSR and a limiting of the “presumption o validity” was and is needed. But that’s a different topic.
I just finished a whole small tv show while typing that. Hope you didn’t read it all, hah we’ve got all weekend now right? Hah, till I go to work in the morn!
JAOI(TM), I”m pretty sure Mr. Hutz meant the judges’ PERSONAL sense of right and wrong, rather than the right and wrong imposed by the legal system in which they operate.
Dear Leopold,
I didn’t thank you for noticing and correcting my mistake — Thanks.
However, given his statement, I do not think I was mistaken to ask Mr. Lionel Hutz to answer, and to press him for, a response to these questions:
Should not American justice be BLIND JUSTICE?
Or should our Constitution be retired altogether?
Typhoid Louie wrote:
“The point is that the software industry doesn’t need, and has not needed, patents as an incentive to innovate.”
This is bunk. There are a lot of companies spending scads of money on patents the “don’t need”. There is a moral dimension to this discussion. It’s the moral right of someone to own, as property, something they create.
“Everyone arguing for monetizing software inventions..”
It’s not all about monetizing. In fact, most patents, softare included, are never monetized. But they without question can have a hard-to-measure benefit. When your competitor looks and sees how much money you’re making because customers like feature X, a sophisticated firm, before copying X, will go look to see if there are any patents covering it. If there are, they may chose not to copy that feature.
“All they do is impose an added burden on downstream innovators without providing any upstream incentives. Tons of solid economic work has shown that the first-movers advantage is more than enough incentive to innovate and bring software inventions to market.”
There’s some truth to this; first mover is an advantage. But it’s a logical fallacy to say that someone should forego an advantage (a patent) just because they have some other advantage. Why shouldn’t the innovator have all the advantages that brings, including both patents and first-mover?
“The only people arguing strongly for software patents are (guess who) patent attorneys and large companies that have invested decades in securing them.”
What is wrong with a large company wanting to protect its investment? Nothing at all. That’s how it should be.
You underestimate the importance of a software patent to some firms, especially smaller firms. I used to work with a firm that spent a lot time and money to learn how to make their product easier to use… they would study how users behave, what their experiences were like, what was slowing them down, etc., they experimented with solutions, studied user feedback, and they would come up with elegant improvements to their software. Their product is an industry leader because of these kinds of features, and the developers and researchers get paid well. The very first thing they do when they settle on a solution is file a patent, because otherwise their competitor will surely copy them (as they commonly do with unpatented features). It’s not a hypo. There are a lot of companies that rely on patents as part of their business strategy.
It’s easy for some to say that first-mover is sufficient, because they’re in a certain subset of companies; first-movers with mass/inertia and very complex software and sometimes with few competitors. But the software industry is diverse, and in areas where imitation is cheap and easy, the patent fills a niche.
Dear Also Anon,
You are absolutely right!: “But, doesn’t ‘justice’ require a sense of right and wrong in the first place?”
The embodiment of which you speak, i.e., “a sense of right and wrong,” are our American laws. We are a nation of laws, end of story; these are the facts, and they are not in dispute.
The job of every Judge sitting on every American bench, from the Honorable Magistrates in the Ozarks to the Honorable Supreme Court Justices, every one of which has sworn to an Oath of Office, and their only lawful job, is to abide by the appertaining laws of the every State in America and every Federal Court of these United States of America. These too are the facts, and they are not in dispute.
In God We the American People Trust, and We the American People should first and foremost be able to trust in every duly constituted American Court and the Honorable Judges presiding thereover. These too are the facts, and neither are these facts in dispute.
At least that is the theory of the American Constitution. This too is a fact, and it is not in dispute.
Anybody still reading this Leap Night got a problem with that?
“Well, lets see, considering the outrageous payouts and costs of litigation that could better be spent on other things like hiring additional programers to have ideas … yes?”
And how is that any different from the semiconductor industry, drug/biotech industry, medical device industry, consumer electronic industry? Let me clue you into one of the facts of life …. combine innovative industries with lots of money involved and you are going to get patent lawsuits. What’s the common theme with the industries I discussed (as well as the software industry)? Innovation and lots of money.
“No, how many? More than double the software industry? Is it because they’re both “new” arts but one has a solid footing in 101 and the other one is sorely lacking such? I’m pretty sure the software boom happened right around the time of the transistor boom right?”
And your point is???? I have no solid statistics, but my guess is that the semiconductor industry leads … there are a lot more players, there is more money involved, and infringement is typically easier to prove.
BTW: You want to get an idea on patent lawsuits … subscribe to the free newsletter here:
link to ip.law360.com
You get a once/daily e-mail with headlines and brief synopsis for free.
Typhoid Louie wrote:
“The point is that the software industry doesn’t need, and has not needed, patents as an incentive to innovate”
Sorry brother Louie,
gotta dissapoint you:
Pure “software industry” (MShit, Adobe, Oracle etc.) is really just a part of economy
(and btw your statement is completely untrue)
But ALL industries nowdays HEAVILY rely on software to the point of being shut down if software malfunctions…
In particular, your cell phone owes its existence to the decades of basic research on algorithms in places like Bell Labs and most of this “software” research was patented from the very beginning (starting actually in the days before digital computers arrived, everything was analog back then)
Go get your GED before you post here…
It may be possible to clarify some of the issues relating to software patents by considering an example at the opposite end of the spectrum from those usually provided.
Consider the Fast Fourier Transform (FFT). This is clearly a method. It is also clearly a nontrivial advance over brute force computation of the FT. For definiteness, suppose FFT refers here to the specific algorithm published in the 60s by Cooley and Tukey.
The first question about this example is whether it is within the scope of 101. This seems to be unnecessarily difficult to resolve in the present legal framework. If the Fourier transform is regarded as “the idea” of a 101 analysis, and the FFT is regarded as a practical application thereof, the conclusion would be that the FFT is eligible under 101. However, if the FFT itself is regarded as “the idea”, any general claim to the FFT would preempt all practical applications of this idea, and not be allowed under 101.
The second question is whether the boundaries of patentable subject matter should be drawn to include or exclude the FFT. In my opinion, the FFT and things like it should be included. Trivialities should be disposed of with 103, not with 101.
The third question is what value is added by claiming a “computer readable medium having code executable for performing a FFT”. This seems driven primarily by the way infringement is determined and damages calculated (i.e., the “article” claim is to catch the guy selling the disk having the FFT code). As a result, a legal theory has developed to the effect that such computer readable medium is somehow a “machine”. It seems to me that it may be more productive to improve the way infringement for method claims is determined than to further refine strange legal theories about equivalence of computer readable media and machines.
“Should not American justice be BLIND JUSTICE?”
But, doesn’t “justice” require a sense of right and wrong in the first place?
Dear Leopold,
Ok, ok maybe, yes, you are right; I flew of the handle too far too fast.
However, Lionel did write:
“I do not believe that filtering the law through a lens colored by a sense of right and wrong is a bad thing.”
Do you buy that from the benches of American courts?
Should not American justice be BLIND JUSTICE?
Or should our Constitution be retired altogether?
Good grief, JAOI(tm), Lionel’s comment suggested that a judge motivated by personal ambition was worse than one motivated by “right and wrong.” That doesn’t seem to be a very controversial proposition. And he certainly wasn’t talking about you.
Lionel,
And another thing, what the hell do you mean by this emphasized portion of your comment:
“BTW, neither of my posts on judges were cynical in any way, just observational. I do not believe that filtering the law through a lens colored by a sense of right and wrong is a bad thing. A LENS COLORED BY PERSONAL AMBITION IS MORE PROBLEMATIC.”
My personal ambition, as every reader hereof knows, for America to continue to be the world leader, for example, is not problematic. You may disagree. After all this is America.
On the other hand, however, Hitler thought his sense of right and wrong was the way to go. At that, I submit, you must disagree!
How the hell do you figure your “– observational posts –” are anything but sick?
“despite all the software related patents having been issued over the years, has the software industry been slowing down? Has it been unduly constrained? Would you consider it a declining industry?”
Well, lets see, considering the outrageous payouts and costs of litigation that could better be spent on other things like hiring additional programers to have ideas … yes?
Another BTW: Have you ever looked at the numbers of patents/law suits coming out of the semiconductor industry?
No, how many? More than double the software industry? Is it because they’re both “new” arts but one has a solid footing in 101 and the other one is sorely lacking such? I’m pretty sure the software boom happened right around the time of the transistor boom right?
BLIND JUSTICE
Dear Lionel,
Re: “I do not believe that filtering the law through a lens colored by a sense of right and wrong is a bad thing.”
What a far gin let down, you! Not too jaded are you? You must be a judge, right? I’ve seen those movies, about vigilante justice. Shoot the co-sucker if he seems guilty, or better yet, hang ’em high in the town square, or better yet, let’s just stone them on TV!, so all will see.
What the hell to you mean?? Are you too tired to make sense?
So much for our American Constitution; who needs it if we got your type on the bench, and in the PTO, and in our Congress? Just let every a-hole who manages to get to the bench or an office do whatever the hell he wants, right? The laws are there to be colored just as you suggested at 6:05 PM.
Why have any laws in the first place, let’s just have lords of the manner — trust the judges, and trust the congress people, and trust the executive people. No need for our three branch system to have checks and balances — just go with the Lionel’s lens colored by a sense of right and wrong.
Now maybe I have blown a head gasket, or maybe I’m not reading your comment right.
Please explain yourself, e.g., what do you think of BLIND JUSTICE?
JAOI,
BTW, neither of my posts on judges were cynical in any way, just observational. I do not believe that filtering the law through a lens colored by a sense of right and wrong is a bad thing. A lens colored by personal ambition is more problematic.
“The point is that the software industry doesn’t need, and has not needed, patents as an incentive to innovate.”
Quid pro quo for obtaining a patent is not “innovation.” Trade secrets provide (albeit imperfect) protection for innovation. The quid pro quo for obtaining a patent is disclosure. Innovation is encouraged when inventive ideas are disclosed, discussed, and improved upon. In a world where inventive ideas are not protected, there is less incentive to disclose those ideas for fear of them being stolen and used by others/competitors.
BTW: despite all the software related patents having been issued over the years, has the software industry been slowing down? Has it been unduly constrained? Would you consider it a declining industry?
Another BTW: Have you ever looked at the numbers of patents/law suits coming out of the semiconductor industry?
“Tons of solid economic work has shown that the first-movers advantage is more than enough incentive to innovate and bring software inventions to market.”
If software inventions are so easy to copy, as been alleged by others on this board, any “first-movers advantage” will be short lived. Instead, it will be those with extensive market (e.g., Microsoft, Google) who will be able to quickly copy (and distribute for free) the software-related inventions that others developed and tried to profit on.
“a ‘software’ invention is easy for a trained examiner to identify regardless of the medium.”
This sentence is very telling in that it indicates to me that you have a very limited familiarity with how software-related patents are dealt with at the patent office. Not only do applicants not hide the fact that their inventions are software-related, the USPTO has an entire group (e.g., 2100) dedicated to those inventions.
“Even aside from that, software is a crowded and highly incremental field.”
If so, then designing around a particular patent should be easy. Moreover, given the constant refrain about how these patents become obsolete so quickly, I’m not sure why there is a problem? Given the backlog in the 2100 group, most of these inventions should both narrow in scope and obsolete by the time the patent ever issues.
My guess is what gets people’s panties tied up in a knot over software patents are a few things. One is that many detractors don’t have a long-term perspective. Many of the alleged “outrageous” and “obvious” inventions that are poster children of the anti-software group (e.g., “1-click”, JPEG on a website, etc.) will expire in a relatively short period of time. This “technology” is in its infancy, and as such, there are many “bedrock” innovations that are still under patent.
Another reason for the popularity of the anti-software group is the culture of the twenty- to thirty-somethings, which is that anything that comes from the internet should be free. Those of us with a slightly larger perspective had the opportunity to see the great experiment (and failure) of communism. When “stuff” (to use an expression of George Carlin) is given away for free, the production of that stuff eventually wanes. Tell me what software designer (or group of designers) are going to spend a couple man-years of time designing a computer architecture and coding it when the likes of Microsoft and Google can reverse-engineer the architecture and do the coding in much less time and distribute it for free in order to keep people using Microsoft’s OS and going to Google’s search engine. With no patent protection, small software designers will be relegated to offering their product as free-ware with pleas to donate money to them.
Yet another reason is that the infringers of many of these software-related patents are well-heeled software/computer-related companies who are able to fund grass-root anti-software organizations (e.g., Cisco).
“Someone should do a study of “troll” suits and figure out what percentage were software “inventions” – I’d guess it was above 75%, and has certainly been 80%+ of the many troll suits I have been involved in defending.”
Depending upon how one defines troll (excuse me JAOI), such as one that doesn’t practice the invention yet attempts to enforce it, then trolls are less likely to use software patents, since software patents are fairly easy to implement.
BTW: if 80% of the troll suits you’ve defended involved software inventions, it likely means that you are defending one ore more large software clients who are infringing other people’s patents.
Typhoid Louie wrote “The point is that the software industry doesn’t need, and has not needed, patents as an incentive to innovate. Everyone arguing for monetizing software inventions with patents ignores the lack of necessity for them. All they do is impose an added burden on downstream innovators without providing any upstream incentives. Tons of solid economic work has shown that the first-movers advantage is more than enough incentive to innovate and bring software inventions to market.
“Even aside from that, software is a crowded and highly incremental field. According to the law of obviousness prior to its evisceration by the CAFC, it is difficult to get nonobvious patents in such fields because of the density of prior art, which makes sense from a purely analytical perspective if you ignore the role of obviousness as a way for courts and the PTO to tamp down on patent grants.”
Now those are arguments against the value of SW patents, which there is validity to and I may be persuaded by.
I want to distinguish policy arguments such as these from patentability arguments.
JAOI,
I believe it’s true of all of them. They are human and use human judgment and each has their own sense of justice. To the extent they can interpret the law to support their POV, they will. I have read many cases where it was clear the law was being interpreted to support the decision author’s POV. Sometimes it’s subtle. Other times, the judges wear their biases on their sleeve.
YAY! I’m so excited about the End Software Patents People! Ben Klemens is a GENIUS—If you haven’t read his book Math you can’t use, you should head to amazon now and buy a copy.
Here’s an amazon review: “he book’s central claim is that there is a lot of math out there (theorems, lemmas, propositions, algorithms and so on) that you can’t use because someone else came up with that math before you and now insists that the said math is his and his alone to cherish, protect and profit from. The main theorem that drives the ideas in this book is the Church Turing Thesis which allows us to show that a lot of software code is actually just a bunch of mathematical statements. Klemens creatively uses this thesis to argue his main points in the book.
‘Math You Can’t Use’ actually reads like a generously embellished academic article which is a good thing as far as the pace at which ideas are presented in the book is concerned. For people interested in the area of software patents, this book will serve as a self-contained, down and dirty introduction to this area. From how computers work (for instance, how does a keystroke translate to text on the screen) to reporting rigorous economic theory, Klemens does an elegant job of walking the tightrope between academic rigour and readability. This book will be useful to students of the economics of innovation, computer scientists who read and policy makers. ”
Perhaps some of these patent attorneys should think about getting into environmental law or something actually useful before attacking mathematical algorithms. I wouldn’t want to be the one to stifle innovation and research!!
Gobhicks asks “Are you there Max?”. I guess he means me. I am occasionally here, but patentability of CII isn’t really my field. I am asked “In the EPO, what is “technical”?” I answer that in a civil law jurisdiction like mainland Europe, or Asia, it’s a dumb question because there is no Binding Precedent. Tribunals decide each case, as it comes along, in accordance with the statutory provisions and the writings of the gurus, and helped by the leading cases, to the extent that they are useful. With 24 Technical Boards of Appeal (TBA), all working flat out, there are thousands of Decisions on patentability flowing out of the EPO. According to a process of “survival of the fittest legal line of logic” a legal line emerges. As of now, there is competition between the TBA and the English courts, for the line of legal logic that prevails, under the statutory provisions of the EPC (no computer programs (as such), no presentation of information (as such), no methods of doing business (as such)). Legal certainty suffers, in the short run. In the long run, the EPO isn’t doing so badly, because European Patent Attorneys can tell you, with a high degree of confidence, what claims are patentable in Europe (including UK) and which not. And that’s despite (or maybe precisely because of) the absence of a Supreme Court CII expert/guru pronouncing the final word on what “technical” really means.