Slashdot Mirror

First, while you are in patent pending, you are protected.

You are only protected after your application is published, and only if you have not substantially altered the scope of the claims while you're before the USPTO. A published claim must have substantially the same scope as an issued claim, or there is no practical protection. This not necessarily an easy task when there is extensive prior art. If you file an application blindly (also relevant to your second point below), it is practically impossible.

Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.

The filing fee is $395 for an individual, assuming that you qualify as a small entity. The filing fee cannot get you a patent. If you prosecute the application perfectly, meaning everything you need is in the specification (no affidavits or declarations), you argue allowable claims within two office actions (not an easy task, it is not uncommon for an examiner to be wrong, and they do not tend to "roll over" as some suggest), and you ask for no extensions of time to make your arguments, the typical patent itself will cost you an additional $1000 (issue fee and publication fee).

If you file an application without performing a patentability search and analysis, you are almost guaranteed to obtain an inferior patent (no pre-grant protection, claims that can only be interpreted literally) or no patent at all. A search costs ~$500 in a simple case. The time spent analyzing the results will at least equal that, unless your opportunity cost for your time is $0.

Patent lawyers are expensive because patent law is hard. The USPTO offers free copies of past patent bar examinations with answers here. You need to score 70% or better to pass, i.e. be minimally competent, and you need to complete the examination in 6 hours or less. Good luck.

Third, a patent is a way of saying you had it first, but there are other ways.

True. But most people seeking patents claim that they are not only seeking notoriety. Patent grants rights. Publishing your paper on the internet grants others the ability to copy you mercilessly. People who come up with truly novel and non-obvious inventions typically prefer to obtain rights.

Forth, This would be even more abused then the current system

I don't have an opinion on this, at least not yet. Many European countries have had petit patent systems for historically significant periods of time. Literature discussing the experiences in those countries would be a good place to being if you want to form an informed opinion.

How much technology is an outgrowth of the USPTO? ZERO?

I think the button does the following (all are automated except #4 I think):
0) Copy to /tmp.
1A) If big company paying express fee, then pull from /tmp and grant patent.
1B) Else randomly pull from /tmp over next 4.5 years.
2) Search http://patft.uspto.gov/ for 4 pre-existing patents with some matching keywords.
3) Produce form letter citing matches: Office Action rejection.
4) Spend 15-30 minutes reading patent and insert a few quick statements into the form letter. 5) Send form letter.
6) Ignore responses to Office Action even when registered (USPTO doesn't do registered mail, they mail you back a postcard.)
7) After faxing copies to them, calling many times, and providing the affirmation of the returned postcard, still no response. It's only been five years.

    After my experience I plan to never file a patent again. If I invent something great then I'll just sell it faster than anyone else can make it. Or make each customer sign their savings away if they reveal the IP. Of the cited patents none covered what I did and at least three were a joke. They were trivial. This tells me the USPTO granting is indeed random (unless bigco). Who can forget the Amazon.com single click patent. After that one the USPTO should have locked the doors and closed their business. And stayed home in shame. An embarrassment to the USA.

An important question:
How much technology is an outgrowth of the USPTO? ZERO?
USPTO's grade: ___

I would hope that you won't be allowed to "patent" this proposal because it is not "new type of patent."
In fact, IEEE's proposal parallels the system in Australia, which allows "innovation" patents to issue without review. http://www.ipaustralia.gov.au/patents/what_innovat ion.shtml

Australian Innovation Patents, as they are called, last a maximum of 8 years, are granted without examination within 1 to 3 months. However, before enforcement or even threatened enforcement of an innovation patent, someone (not just the owner of the patent) must request a formal examination of the patent.

These systems have their problems as well. See: http://news.bbc.co.uk/1/hi/world/asia-pacific/1418 165.stm in which a lawyer patented the wheel using this system.

Nevertheless, with sad state of affairs in this country, you probably could file an application and get a piece of paper back granting you a patent this "process." :)

[ Begin Rant ]

The problem with these types of "IEEE" or "innovation" patents is that they worthless.

First, without the initial review, the patent owner is left unaware if there are serious deficiencies in his patent until he tries to enforce it. Between 2000 and 2003 roughly 300,000 patent applications were filed each year. Between 2001 and 2004 roughly only half those applications matured into granted patents. http://www.uspto.gov/go/taf/us_stat.htm. During the examination process, there are ways to cure these deficiencies. For example, the inventor may amend the claims or file another application. The system currently proposed by IEEE does not serve inventors because it cannot forewarn applicants that there is a problem. (Of course, the current system is broken, but in other ways.)

Second, even if the owner has a valid patent, he would not be able to recuperate the costs of enforcing that patent. By giving a limited monopoly for 4 years, the patent owner can only recover damages for those 4 years. Take this example: Inventor A gets invents a widget and wants to bring it immediately to market (and can), so he gets an "IEEE" patent. Company B sees A widget and decides to reverse engineer and sell the widget. If it takes Company B a year to reverse engineer and market widget, then the soonest A would realize that B is infrigning is in the 2nd year of his patent's 4 year term. However, before he can even threaten B, he must have the patent reviewed by the patent office for validity. This might take 3-6 months (I am guessing). This puts him into his 3rd year. After a finding of validity, A then has to commence suit, which generally takes more than a year. So after everything is said and done, B only has to pay royalties for 3 years and can continue manufacturing the widget because A's 4-year patent term has expired by the end of litigation. What was accomplished by suing B? A expended hundreds of thousands of dollars in litigation only to gain 3 years worth of royalties, which probably weren't that much.

On the other hand, with a standard patent, the patent owner, A, could recover damages for 20 years and/or charge Company B a royalty for the remaining term of the patent. Now, if that widget was, for example, the iPod, then A would have benefited by obtaining a standard patent.

For these reasons, no major company will pursue an "IEEE" patent even if it was allowed.
[/end Rant]

Here is the relavant part of the United States Code you can interpret yourself...

35 U.S.C. 301. Citation of prior art. Any person at any time may cite to the Office in writing prior art consisting of patents or printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent. If the person explains in writing the pertinency and manner of applying such prior art to at least one claim of the patent, the citation of such prior art and the explanation thereof will become a part of the official file of the patent. At the written request of the person citing the prior art, his or her identity will be excluded from the patent file and kept confidential.

Prior art in the form of patents or printed publications may be cited to the Office for placement into the patent files. Such citations may be made without payment of a fee.

"would last only 4 years from date of first commercial product"

This part I can buy, and I would go further and change the entire patent system to limit to 4 years on ALL patents from date of first commercial product. After all, the original objective of the patent system was to advance science, industry, etc. in the United States, it was not intended as a means of leeching cash from a productive industry or building monopolies. Shorter terms would force the hand of patent holders to put up or shut up.

I would also implement stricter rules on acceptance of patents. Today we hear over and over the excuse that lame patents are accepted because the office is overworked. I've read the rules on the uspto.gov website and several of the questionable patents that have been in the news and from what I've seen every one of them should have been rejected in the first 5 minutes of reading the abstract and claims.

The rules are simple and most patents don't pass muster. The patent office should be pushing back on those who file patents to submit applications which easily pass the initial tests:

"The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."

http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#whatpat

And from these basic rules it becomes obvious that SOFTWARE IS NOT PATENTABLE, you use copyrights for software. And just to add to the rant, a reimplementation of a concept or idea by someone else is not infringement of a copyright. I suspect that is why we have this big mess with software patents. I also suspect that part of the problem is interference from lawyers and lawmakers who have beaten the USPTO into submission, but at some point we need to stop all this stupidity.

burnin

Wouldn't it have been easier to just disallow patenting this in the *first* place?

The five patents are 5,625,670, 5,631,946, 5,819,172,
6,067,451,
and 6,317,592.

Let's take a look at the first of these patents:



1. A system for transmitting information from one of a plurality of originating processors contained in an electronic mail system to at least one of a plurality of destination processors contained in an electronic mail system with the information including originated information originating from one of the plurality of originating processors and being transmitted by an RF information transmission network to at least one of the plurality of destination processors and other originated information originating from one of the originating processors is transmitted with the electronic mail system without using the RF information transmission network to at least one of the destination processors comprising:

at least one interface, one of the at least one interface connecting the electronic mail system containing the plurality of originating processors to the RF information transmission network; and wherein

the originated information is transmitted in association with an address of the one interface from the one of the plurality of originating processors to the one interface with the electronic mail system responding to the address of the one interface to direct the originated information from the one of the plurality of originating processors to the one interface; and

the originated information is transmitted from the one of the at least one interface to the RF information transmission network with an address of the at least one of the plurality of destination processors to receive the originated information being added at the originating processor originating the originated information, or by either the electronic mail system that contains the plurality of originating processors or the one interface.

So, basically, written as confusingly as possible, these turkeys have filed for a patent that covers any email system in which some information is sent via RF and some is not and the devices involved have addresses. The last is pretty much a given, and the first is pretty straightforward.

I'm serious. Advances in device development simply do not require patents. This is stupid. Why should anyone be granted a monopoly over this? Why does the production of RF devices require a patent at all? Say I'm an engineer. I want to send email from a mobile computer (hardly a stretch to envision). So I select a data transmission medium. Well, there's RF, IR, etc. These all have different properties. I choose the one that is most appropriate -- RF.

Yes, this patent got thrown out, but what I'm saying is that this is not a field in which patents -- guaranteed, time-limited government monopolies -- are necessary to produce advancements. The lifecycle of a new device is mayb

Wouldn't it have been easier to just disallow patenting this in the *first* place?

The five patents are 5,625,670, 5,631,946, 5,819,172,
6,067,451,
and 6,317,592.

Let's take a look at the first of these patents:



1. A system for transmitting information from one of a plurality of originating processors contained in an electronic mail system to at least one of a plurality of destination processors contained in an electronic mail system with the information including originated information originating from one of the plurality of originating processors and being transmitted by an RF information transmission network to at least one of the plurality of destination processors and other originated information originating from one of the originating processors is transmitted with the electronic mail system without using the RF information transmission network to at least one of the destination processors comprising:

at least one interface, one of the at least one interface connecting the electronic mail system containing the plurality of originating processors to the RF information transmission network; and wherein

the originated information is transmitted in association with an address of the one interface from the one of the plurality of originating processors to the one interface with the electronic mail system responding to the address of the one interface to direct the originated information from the one of the plurality of originating processors to the one interface; and

the originated information is transmitted from the one of the at least one interface to the RF information transmission network with an address of the at least one of the plurality of destination processors to receive the originated information being added at the originating processor originating the originated information, or by either the electronic mail system that contains the plurality of originating processors or the one interface.

So, basically, written as confusingly as possible, these turkeys have filed for a patent that covers any email system in which some information is sent via RF and some is not and the devices involved have addresses. The last is pretty much a given, and the first is pretty straightforward.

I'm serious. Advances in device development simply do not require patents. This is stupid. Why should anyone be granted a monopoly over this? Why does the production of RF devices require a patent at all? Say I'm an engineer. I want to send email from a mobile computer (hardly a stretch to envision). So I select a data transmission medium. Well, there's RF, IR, etc. These all have different properties. I choose the one that is most appropriate -- RF.

Yes, this patent got thrown out, but what I'm saying is that this is not a field in which patents -- guaranteed, time-limited government monopolies -- are necessary to produce advancements. The lifecycle of a new device is mayb

Wouldn't it have been easier to just disallow patenting this in the *first* place?

The five patents are 5,625,670, 5,631,946, 5,819,172,
6,067,451,
and 6,317,592.

Let's take a look at the first of these patents:



1. A system for transmitting information from one of a plurality of originating processors contained in an electronic mail system to at least one of a plurality of destination processors contained in an electronic mail system with the information including originated information originating from one of the plurality of originating processors and being transmitted by an RF information transmission network to at least one of the plurality of destination processors and other originated information originating from one of the originating processors is transmitted with the electronic mail system without using the RF information transmission network to at least one of the destination processors comprising:

at least one interface, one of the at least one interface connecting the electronic mail system containing the plurality of originating processors to the RF information transmission network; and wherein

the originated information is transmitted in association with an address of the one interface from the one of the plurality of originating processors to the one interface with the electronic mail system responding to the address of the one interface to direct the originated information from the one of the plurality of originating processors to the one interface; and

the originated information is transmitted from the one of the at least one interface to the RF information transmission network with an address of the at least one of the plurality of destination processors to receive the originated information being added at the originating processor originating the originated information, or by either the electronic mail system that contains the plurality of originating processors or the one interface.

So, basically, written as confusingly as possible, these turkeys have filed for a patent that covers any email system in which some information is sent via RF and some is not and the devices involved have addresses. The last is pretty much a given, and the first is pretty straightforward.

I'm serious. Advances in device development simply do not require patents. This is stupid. Why should anyone be granted a monopoly over this? Why does the production of RF devices require a patent at all? Say I'm an engineer. I want to send email from a mobile computer (hardly a stretch to envision). So I select a data transmission medium. Well, there's RF, IR, etc. These all have different properties. I choose the one that is most appropriate -- RF.

Yes, this patent got thrown out, but what I'm saying is that this is not a field in which patents -- guaranteed, time-limited government monopolies -- are necessary to produce advancements. The lifecycle of a new device is mayb

Wouldn't it have been easier to just disallow patenting this in the *first* place?

The five patents are 5,625,670, 5,631,946, 5,819,172,
6,067,451,
and 6,317,592.

Let's take a look at the first of these patents:



1. A system for transmitting information from one of a plurality of originating processors contained in an electronic mail system to at least one of a plurality of destination processors contained in an electronic mail system with the information including originated information originating from one of the plurality of originating processors and being transmitted by an RF information transmission network to at least one of the plurality of destination processors and other originated information originating from one of the originating processors is transmitted with the electronic mail system without using the RF information transmission network to at least one of the destination processors comprising:

at least one interface, one of the at least one interface connecting the electronic mail system containing the plurality of originating processors to the RF information transmission network; and wherein

the originated information is transmitted in association with an address of the one interface from the one of the plurality of originating processors to the one interface with the electronic mail system responding to the address of the one interface to direct the originated information from the one of the plurality of originating processors to the one interface; and

the originated information is transmitted from the one of the at least one interface to the RF information transmission network with an address of the at least one of the plurality of destination processors to receive the originated information being added at the originating processor originating the originated information, or by either the electronic mail system that contains the plurality of originating processors or the one interface.

So, basically, written as confusingly as possible, these turkeys have filed for a patent that covers any email system in which some information is sent via RF and some is not and the devices involved have addresses. The last is pretty much a given, and the first is pretty straightforward.

I'm serious. Advances in device development simply do not require patents. This is stupid. Why should anyone be granted a monopoly over this? Why does the production of RF devices require a patent at all? Say I'm an engineer. I want to send email from a mobile computer (hardly a stretch to envision). So I select a data transmission medium. Well, there's RF, IR, etc. These all have different properties. I choose the one that is most appropriate -- RF.

Yes, this patent got thrown out, but what I'm saying is that this is not a field in which patents -- guaranteed, time-limited government monopolies -- are necessary to produce advancements. The lifecycle of a new device is mayb

Wouldn't it have been easier to just disallow patenting this in the *first* place?

The five patents are 5,625,670, 5,631,946, 5,819,172,
6,067,451,
and 6,317,592.

Let's take a look at the first of these patents:



1. A system for transmitting information from one of a plurality of originating processors contained in an electronic mail system to at least one of a plurality of destination processors contained in an electronic mail system with the information including originated information originating from one of the plurality of originating processors and being transmitted by an RF information transmission network to at least one of the plurality of destination processors and other originated information originating from one of the originating processors is transmitted with the electronic mail system without using the RF information transmission network to at least one of the destination processors comprising:

at least one interface, one of the at least one interface connecting the electronic mail system containing the plurality of originating processors to the RF information transmission network; and wherein

the originated information is transmitted in association with an address of the one interface from the one of the plurality of originating processors to the one interface with the electronic mail system responding to the address of the one interface to direct the originated information from the one of the plurality of originating processors to the one interface; and

the originated information is transmitted from the one of the at least one interface to the RF information transmission network with an address of the at least one of the plurality of destination processors to receive the originated information being added at the originating processor originating the originated information, or by either the electronic mail system that contains the plurality of originating processors or the one interface.

So, basically, written as confusingly as possible, these turkeys have filed for a patent that covers any email system in which some information is sent via RF and some is not and the devices involved have addresses. The last is pretty much a given, and the first is pretty straightforward.

I'm serious. Advances in device development simply do not require patents. This is stupid. Why should anyone be granted a monopoly over this? Why does the production of RF devices require a patent at all? Say I'm an engineer. I want to send email from a mobile computer (hardly a stretch to envision). So I select a data transmission medium. Well, there's RF, IR, etc. These all have different properties. I choose the one that is most appropriate -- RF.

Yes, this patent got thrown out, but what I'm saying is that this is not a field in which patents -- guaranteed, time-limited government monopolies -- are necessary to produce advancements. The lifecycle of a new device is mayb

Her is MY proof..where is yours??? This is from the USPTO web site.... Basic qualifications for Patent Examiners include United States citizenship and a minimum of a bachelor's degree in a physical science, life science, engineering discipline or computer science. Your salary will be dependent on your individual knowledge and experience DUTIES Reviewing patent applications to assess if they comply with the basic format, rules and legal requirements, determining the scope of the protection claimed by the inventor, researching relevant technologies to compare similar prior inventions with the invention claimed in the patent applications, and communicating the examiner's findings to patent practitioners/inventors with reasons on the patentability of applicant's inventions. Patent Examiners. Patent Examiners are responsible for the quality, productively, and timely processing of patent applications, which is the basis of their performance evaluation. NOTE that you are measured on productivit and timely processing NOT making a good determination of if the patent should be granted. Here is the requirement for Software Patent Examiner... COMPUTER SCIENCE Completion of a four-year course of study leading to a bachelor's degree or possession of a bachelor's degree in computer science or a related field of study. This course of study must have included 30 semester hours in a combination of mathematics, statistics and computer science, and at least 15 of the 30 hours in combination of statistics and mathematics that includes differential calculus. A BS/BA in CS is NOT ENOUGH. Clearly you need some experience. http://www.uspto.gov/go/ac/ahrpa/ohr/jobs/qualific ations.htm The higher grade levels do require some experience, such as a PhD. But they pay at a GS-11 Salary (max of 76K) and you have to live in Washington DC. 76K is crap salary in DC for a PhD. A PhD in a defense firm can clear 150K easy. So obviously the USPTO does NOT get the best. I can't find the rate of increase in patents applications but in 2004 there were about 350,000 applications which averaged about 20 claims per submission. The USPTO lists about 50 openings right now, most at the lower GS-5/7/9 grade levels.

The patent is here: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PT O1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm &r=1&f=G&l=50&s1=6,990,338.WKU.&OS=PN/6,990,338&RS =PN/6,990,338

I don't have any insight as to why Microsoft lost this in District Court, but they have filed a request for reexamination of the patent at issue. They have cited a ton of prior art. I would guess the current patch request for customers is precautionary (or maybe there's a more borg-like reason?). I have no idea if an appeal has been filed, or, if not, still could be filed.

BTW, kudos go to blincoln's post in the previous slashdot discussion last June who finally got the correct patent number (the inventors name on the patent is listed as amada so a simple search would not bring it up). And a big boo to most of the stories online that couldn't be bothered to get essential facts in a story like this. Why not include such basic information for those who want to follow up for more details?

I found two between 1976 to present, neither of which seem on the face of it to be relevant. Anyone know the actual patent in question?
News reports should include such basic info so that
readers can do some of their own analysis if they so choose.

This is what I found at http://patft.uspto.gov/:

1. 5,701,400 Method and apparatus for applying if-then-else rules to data sets in a relational data base and generating from the results of application of said rules a database of diagnostics linked to said data sets to aid executive analysis of financial data
2. 5,537,590 Apparatus for applying analysis rules to data sets in a relational database to generate a database of diagnostic records linked to the data sets

Digging a little Deeper...Claim23/23 states:23. A wireless local area network adapted for use by users traveling on a mobile platform, wherein the mobile platform has a plurality of rows of seats, the network comprising: a network server located on the mobile platform; a plurality of network access components each forming a network access point, and each being independently associated with a different, predetermined seating row on the mobile platform, and each being in communication with the network server; each network access component being accessible wirelessly by at least one portable electronic device located in its associated said seating row; each of said network access components including an antenna; each of the network access components further being configured to wirelessly communicate via its associated said antenna with said portable electronic devices within an associated one of said seating rows on the mobile platform while enabling roaming of a given one of said electronic devices between said different ones of said network access components; and a communication system for wirelessly communicating information between said network server on said mobile platform and a subsystem disposed remotely from said mobile platform, said communication system including a receive antenna and a transmit antenna.
Perhaps the diagram of the "invention" illustrates that a"practitioner having ordinary skill in the art" could have come to the same conclusion.

-p-

There's a geologist in my department who developed a technique for measuring earth density. This could be good for looking for oil or other valuables underground. He published his work, like all scientists. So some mining/prospecting company read up on it, patented a related method and then tried to stop him from doing any more research on it, lest he give away 'their' secrets to their competitors.

Assuming that the facts are exactly as you've claimed then to be, then:

1. Your geologist should order a copy of the file history for the patent from the USPTO.

2. Your geologist should look to see whether his publication was cited by the mining/prospecting company during the prosecution of the patent.

2a. If your geologist can prove that the patent was derived from his work and that the applicant did not disclose his work to the patent office, then he has at least a couple of defenses should the company ever accuse him of patent infringement. This way lies potential litigation, however the potential damages are limited to a reasonable royalty on the geologist's activities (possibly enhanced for willful infringement), which considering that he's an academic is unlikely to amount to something worth litigation. He would have to discuss this with a patent attorney once he's gathered the necessary information. I'm telling you how he can find out what to do, not what to do.

3. If your geologist discovers that his work was not cited in the patent application, then he can file a request for ex parte reexamination (35 U.S.C. 302) for $2520 and the cost of writing a persuasive letter. In this case, discussing the letter with a patent attorney would be wise but not strictly necessary. Yes, the fees can be galling, but I've paid comparable fees just to obtain licensing, and have annual fees that approach $1000 just to practice, so it's not as if he's being uniquely abused. Unfortunately, clearing legal obstacles is sometimes a cost of doing business.

What are these guys talking about? If you want something that's patented, you go and buy it at the store. How does that interfere with research? I don't get it. What am I missing?

It could apply in to non-software patents as well. Just because something is patented doesn't mean that it is being sold anywhere.

You mean like approved patent?

Your argument implies that an inventor cannot transfer the rights to his intellectual property. It's an absurd argument that falls to pieces under any scrutiny at all. It would mean that your employer cannot use the invention that you developed for them, while employed by them, while spending their R&D dollars, simply because you died or terminated employment. The very same implication utterly eradicates the notion of the small inventor getting his just reward through the patent system if he does not own the capital and manufacturing facilities to see his invention to market - without those, he'd have to transfer his patent rights to (*gasp*) some totally unrelated third party that had nothing to do with conceiving of the invention!

Obviousness is a matter of fact, not just a matter of law. The fact is that combining wireless technology + email to get wireless email is obvious to anyone who has ever used either technology. Whether the law's definition of "obvious" reflects that is a different issue. If the law fails to recognize that wireless email is obvious, then the law is broken.

I'd love to see any evidence that obviousness is a matter of fact, aside from a handful of minority opinions from the CAFC. The ones I'm familiar with don't even come forth and call it an issue of fact - they merely point out the flaws in considering obviousness a matter of law. Further, your argument hinges on equivocation - "obviousness" in conversational English is an entirely different concept from "obviousness" under 35 USC 103, which is what we are discussing. Your explanation of what is "obvious" is completely irrelevant in the context of patents. If you'd like a crash course on what obviousness means in terms of patents and prior art, please see MPEP 2143 and MPEP 2144.01.

Second, the point of patents is to provide an incentive to inventors.

Yes, and that incentive is the right to exclude others from importing to this country or practicing your invention for commercial gain.

A dead man can't do any more inventing. Do you think his wife and kids are going to be inspired to invent something new [...] now that they inherited this patent? Or could it be that they're just going to sit back, collect royalties, and shut down existing services? In other words, does giving them this ability provide any benefit to anyone but them?

Everything in the above paragraph is irrelevant to the issue. Would you legislate that this wife and kids are required to "be nice"? They are no more under that obligation than you are to be truthful to your mother or than I am to buy my wife a Valentine's Day card. (First you would sacrifice the rights of the few for the good of the many, and now you seem to suggest mandating morality - in a philosophy class, this would be trolling.) The patent granted its assignee the right to exclude others from practicing the invention. In this hypothetical situation, that right was transferred to a wife and kids - it could have been to his employer, or he could have dedicated that right to the public.

And when I say "profits of that patent," I am referring to the rights granted by the patent. You are correct to point out that this was a careless use of the term "profit". Sorry for the confusion.

Your argument implies that an inventor cannot transfer the rights to his intellectual property. It's an absurd argument that falls to pieces under any scrutiny at all. It would mean that your employer cannot use the invention that you developed for them, while employed by them, while spending their R&D dollars, simply because you died or terminated employment. The very same implication utterly eradicates the notion of the small inventor getting his just reward through the patent system if he does not own the capital and manufacturing facilities to see his invention to market - without those, he'd have to transfer his patent rights to (*gasp*) some totally unrelated third party that had nothing to do with conceiving of the invention!

Obviousness is a matter of fact, not just a matter of law. The fact is that combining wireless technology + email to get wireless email is obvious to anyone who has ever used either technology. Whether the law's definition of "obvious" reflects that is a different issue. If the law fails to recognize that wireless email is obvious, then the law is broken.

I'd love to see any evidence that obviousness is a matter of fact, aside from a handful of minority opinions from the CAFC. The ones I'm familiar with don't even come forth and call it an issue of fact - they merely point out the flaws in considering obviousness a matter of law. Further, your argument hinges on equivocation - "obviousness" in conversational English is an entirely different concept from "obviousness" under 35 USC 103, which is what we are discussing. Your explanation of what is "obvious" is completely irrelevant in the context of patents. If you'd like a crash course on what obviousness means in terms of patents and prior art, please see MPEP 2143 and MPEP 2144.01.

Second, the point of patents is to provide an incentive to inventors.

Yes, and that incentive is the right to exclude others from importing to this country or practicing your invention for commercial gain.

A dead man can't do any more inventing. Do you think his wife and kids are going to be inspired to invent something new [...] now that they inherited this patent? Or could it be that they're just going to sit back, collect royalties, and shut down existing services? In other words, does giving them this ability provide any benefit to anyone but them?

Everything in the above paragraph is irrelevant to the issue. Would you legislate that this wife and kids are required to "be nice"? They are no more under that obligation than you are to be truthful to your mother or than I am to buy my wife a Valentine's Day card. (First you would sacrifice the rights of the few for the good of the many, and now you seem to suggest mandating morality - in a philosophy class, this would be trolling.) The patent granted its assignee the right to exclude others from practicing the invention. In this hypothetical situation, that right was transferred to a wife and kids - it could have been to his employer, or he could have dedicated that right to the public.

And when I say "profits of that patent," I am referring to the rights granted by the patent. You are correct to point out that this was a careless use of the term "profit". Sorry for the confusion.

For a better understanding of prior art in patents, please read Part II of the Patent Act, United States Code Title 35. The big thing to remember is that for the purposes of prior art, the invention is treated on a claim-by-claim basis. See 35 USC 111(a), and 35 USC 112, para. 2. Prior art can invalidate a patent because the invention isn't new (35 USC 102), or because the invention may be new, but is obvious "to a person having ordinary skill in the art" (35 USC 103).

I don't know what behid the scenes political pressure has been applied (and I doubt that anyting new in the last few weeks has had any effect), but there has been a reexamination (actually two that have been merged); anyone can see what has been going on by checking out 90/006492 in the public PAIR system.

Briefly, there have been two non-final rejections, the last one mailed on November 30, 2005, and all the claims under reexamination (I haven't checked if there are other claims not included that would remain if the rejections are sustained) have been rejected. The only reason the last action was not made final was that additional rejections were made based on prior art made of record between the two rejections.

I don't think an recent publicity about a shutdown of service after the appeal from the District Court was shot down has had any effect on the reexam procedings; I haven't followed this case, however, and don't know what outside influence was brought to bear on the PTO to order the rexams.

This combination of technologies was both novel and original,

You had to sneak that in didn't you? Those patents (5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) are completely and utterly obvious to somebody versed in the art at the time, despite what the airheads at the patent office might like to claim. Those patents do not protect innovation or hard work in any shape or form, they just protect the USPTO's, and assorted other parasites', gravy train.

Just because RIM might be an obnoxious company doesn't somehow justify NTP being an obnoxious company also. RIM's actions such as stonewalling NTP are entirely appropriate if the patents are bullshit. Even the USPTO is now being forced to admit the majority of patents it issued are bullshit.

Both NTP and RIM should be suing the USPTO for all their legal and other costs, and RIM should be suing NTP for vexatious litagation. Of course in practice they can't do that, so there's no checks and balances on an out of control USPTO and assorted other patent parasites.

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The USA and Europe should harmonize their software patent laws with China and India.

This combination of technologies was both novel and original,

You had to sneak that in didn't you? Those patents (5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) are completely and utterly obvious to somebody versed in the art at the time, despite what the airheads at the patent office might like to claim. Those patents do not protect innovation or hard work in any shape or form, they just protect the USPTO's, and assorted other parasites', gravy train.

Just because RIM might be an obnoxious company doesn't somehow justify NTP being an obnoxious company also. RIM's actions such as stonewalling NTP are entirely appropriate if the patents are bullshit. Even the USPTO is now being forced to admit the majority of patents it issued are bullshit.

Both NTP and RIM should be suing the USPTO for all their legal and other costs, and RIM should be suing NTP for vexatious litagation. Of course in practice they can't do that, so there's no checks and balances on an out of control USPTO and assorted other patent parasites.

---

The USA and Europe should harmonize their software patent laws with China and India.

This combination of technologies was both novel and original,

You had to sneak that in didn't you? Those patents (5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) are completely and utterly obvious to somebody versed in the art at the time, despite what the airheads at the patent office might like to claim. Those patents do not protect innovation or hard work in any shape or form, they just protect the USPTO's, and assorted other parasites', gravy train.

Just because RIM might be an obnoxious company doesn't somehow justify NTP being an obnoxious company also. RIM's actions such as stonewalling NTP are entirely appropriate if the patents are bullshit. Even the USPTO is now being forced to admit the majority of patents it issued are bullshit.

Both NTP and RIM should be suing the USPTO for all their legal and other costs, and RIM should be suing NTP for vexatious litagation. Of course in practice they can't do that, so there's no checks and balances on an out of control USPTO and assorted other patent parasites.

---

The USA and Europe should harmonize their software patent laws with China and India.

This combination of technologies was both novel and original,

You had to sneak that in didn't you? Those patents (5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) are completely and utterly obvious to somebody versed in the art at the time, despite what the airheads at the patent office might like to claim. Those patents do not protect innovation or hard work in any shape or form, they just protect the USPTO's, and assorted other parasites', gravy train.

Just because RIM might be an obnoxious company doesn't somehow justify NTP being an obnoxious company also. RIM's actions such as stonewalling NTP are entirely appropriate if the patents are bullshit. Even the USPTO is now being forced to admit the majority of patents it issued are bullshit.

Both NTP and RIM should be suing the USPTO for all their legal and other costs, and RIM should be suing NTP for vexatious litagation. Of course in practice they can't do that, so there's no checks and balances on an out of control USPTO and assorted other patent parasites.

---

The USA and Europe should harmonize their software patent laws with China and India.

This combination of technologies was both novel and original,

You had to sneak that in didn't you? Those patents (5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) are completely and utterly obvious to somebody versed in the art at the time, despite what the airheads at the patent office might like to claim. Those patents do not protect innovation or hard work in any shape or form, they just protect the USPTO's, and assorted other parasites', gravy train.

Just because RIM might be an obnoxious company doesn't somehow justify NTP being an obnoxious company also. RIM's actions such as stonewalling NTP are entirely appropriate if the patents are bullshit. Even the USPTO is now being forced to admit the majority of patents it issued are bullshit.

Both NTP and RIM should be suing the USPTO for all their legal and other costs, and RIM should be suing NTP for vexatious litagation. Of course in practice they can't do that, so there's no checks and balances on an out of control USPTO and assorted other patent parasites.

---

The USA and Europe should harmonize their software patent laws with China and India.

Dont forget Microsoft has a patent application of custom emoticons too. US should toss software patens into (_|_).

Actually, no. The application number is 11/092,511.

What I posted above is the old ATT patent on this, filed in 2001 and just granted. Very narrow anyway.

The one referenced in the article is application #20060015812 which is even narrower!

link

This new one is just for:

At a mobile device, a method for generating a displayable icon that indicates the mood or emotion of a user of the mobile station, the method comprising: providing an emoticon key that is to be selected by a user of the mobile station in generating the displayable icon, wherein the emoticon key is provided on a physical keypad of the mobile device, and wherein the emoticon key is labeled with a known emoticon; in response to the emoticon key being selected, displaying a collection of graphical displayable icons that the user may select from, wherein at least some of the graphical displayable icons from the collection of graphical displayable icons indicates a mood or emotion; and in response to a selection of one of the graphical displayable icons from the collection of graphical displayable icons, generating the one of the displayable icons for display on a display component of the mobile station, wherein the selection of the one of the graphical displayable icons is made using one or more navigation keys and selection keys on the physical keypad, and wherein the one of the graphical displayable icons is displayed in association with a textual message to be sent by the user using the mobile station.

Who cares, it is sooo narrow. The rest of the claims are for the method, device, and apparatus to do this thing. Not very exciting. They want to put emoticon buttons on their phone. :-O (Yawn)

Applications publish 18 months after their submission date. Likely, nobody has even looked at this yet.

Now read the claims in the patent. Everything else is just informative (mainly).

To save you the trouble, here are the only independent claims. All the others just narrow them down. When you read them, they are nothing exciting. They are just trying to patent the method that their phones use for customers to insert multimedia emoticons by choosing them from a list using some specific button pushes. Since the patent was only filed in 1994, these guys might still be out of luck trying to get this patent.

Note that these claims are long, but all of the items are "and'ed" together, making them very narrow. Basically, they probably paid some designers a lot of money to design something that they think is really great and a signature of how they want their service to work. With the patent, they can tell their vendors to build phones and software to work that way, without risking having a competing network just telling their vendors to copy that method.

As someone else mentioned, if this provides a barrier to people sending animated emoticons in their mobile IMs, all the better.

CLAIM 1

A method of customizing a multi-media message with emoticons, the multi-media message being created by a sender for a recipient wherein the multi-media message comprises an animated entity audibly delivering a text message, the method comprising: storing emoticons related to actions associated with the animated entity; providing to a sender at least one button option for choosing emoticons to insert into the text message at a location of a cursor; and upon the sender choosing an emoticon using one of the at least one button options, inserting an emoticon into the text message at the location of the cursor, wherein when the animated entity delivers the text message, the animated entity exhibits the actions associated with the inserted emoticons beginning at a point corresponding to a first predetermined number of words before a respective one of the emoticons and ending at a second point corresponding to a second predetermined number of words after the respective one of the emoticons, wherein the first predetermined number of words and the second predetermined number of words are associated with respective word lengths of words before and after a position of the respective one of the emoticons within the text message.

9. A method of customizing a multi-media message by choosing emoticons from a group of stored emoticons, the multi-media message being created by a sender where text typed by the sender is presented to a recipient using an animated entity in the multi-media message, the method comprising: providing to the sender at least one button option, each button option of the at least one button option associated with an emoticon is associated with an emotion displayed by the animated entity during delivery of the multi-media message; and upon the sender choosing an emoticon using one of the at least one button options, inserting the emoticon into the text typed by the sender, wherein as the multi-media message is delivered to the recipient, the animated entity displays the associated emotion beginning at a point corresponding to a first predetermined number of words before the emoticon and ending at a second point corresponding to a second predetermined number of words after the emoticon, wherein the first predetermined number of words and the second predetermined number of words are associated with respective word lengths of words before and after a position of the emoticon within the text message.

16. A method of pr

An hot news story that makes the outrageous inducing claim that Cingular has just patented the Emoticon appears to be untrue, since the US Patent office shows no such listing for the claimed Cingular patent. But that's not to say it's not outrageous :-0 since in fact AT&T, some guy in kirkland WA, and a dozen others have patented the emoticon or aspects of it. Perhaps most galling is that the patents actually use the word "emoticon" to describe what they are patenting. They of course don't actually patent the emoticon itself but the act of entering an emoticon into multi-media, sort of like patenting the one-click patent versus patenting, say, commerce. Is this one of the whackiest patents ever :-p

An hot news story that makes the outrageous inducing claim that Cingular has just patented the Emoticon appears to be untrue, since the US Patent office shows no such listing for the claimed Cingular patent. But that's not to say it's not outrageous :-0 since in fact AT&T, some guy in kirkland WA, and a dozen others have patented the emoticon or aspects of it. Perhaps most galling is that the patents actually use the word "emoticon" to describe what they are patenting. They of course don't actually patent the emoticon itself but the act of entering an emoticon into multi-media, sort of like patenting the one-click patent versus patenting, say, commerce. Is this one of the whackiest patents ever :-p

An hot news story that makes the outrageous inducing claim that Cingular has just patented the Emoticon appears to be untrue, since the US Patent office shows no such listing for the claimed Cingular patent. But that's not to say it's not outrageous :-0 since in fact AT&T, some guy in kirkland WA, and a dozen others have patented the emoticon or aspects of it. Perhaps most galling is that the patents actually use the word "emoticon" to describe what they are patenting. They of course don't actually patent the emoticon itself but the act of entering an emoticon into multi-media, sort of like patenting the one-click patent versus patenting, say, commerce. Is this one of the whackiest patents ever :-p

This is not a patent, it is a published patent application. Applications in the U.S. are published 18 months after they are filed. The patent application has not even been examined yet. Feel free to look up the application in the Patent Application Information Retrieval system http://portal.uspto.gov/external/portal/pair bleat .

I just checked PAIR at http://portal.uspto.gov/external/portal/pair, which gives the status/history of the patent examination process. This application has a long way to go....it has only recently been assigned to an examiner:

Date Contents Description
08-20-2005 IFW TSS Processing by Tech Center Complete
08-20-2005 Case Docketed to Examiner in GAU
07-13-2005 Application Dispatched from OIPE
07-13-2005 Application Is Now Complete
06-27-2005 Additional Application Filing Fees
06-27-2005 Applicant has submitted new drawings to correct Corrected Papers problems
04-26-2005 Corrected Paper
04-14-2005 Cleared by OIPE CSR
04-09-2005 IFW Scan & PACR Auto Security Review
03-28-2005 Initial Exam Team nn

It is 6,990,452.

I am certain this is the patent referred to in the article. It was granted yesterday. It took the Patent Office 5 years to grant it!

TFA had a bogus number.

Check the actual patent out.

Cingular has not received any patent such as the article describes. The number that appears in the article, US2006015812, is actually a publication number for a U.S. patent application. The application itself can be found on the U.S. Patent & Trademark Office's web site.

Not only is this only an application for a patent, and not only has this application not yet been granted, but the PTO hasn't even examined it yet. (You can look up the status of the application yourself using PAIR.)

Cingular is not going to wind up with a patent that will stop you from using smileys in you text messages. In fact, on a quick read, the claims and specification appear to discuss ways to make it easier to insert emoticons in your text, not the mere use of emoticons. And the patent examiners, despite what you may have heard, are pretty tough about claims like this, too.

In short, it looks like the writer of the article dropped the ball here, not the U.S. Patent Office.

Cingular has not received any patent such as the article describes. The number that appears in the article, US2006015812, is actually a publication number for a U.S. patent application. The application itself can be found on the U.S. Patent & Trademark Office's web site.

Not only is this only an application for a patent, and not only has this application not yet been granted, but the PTO hasn't even examined it yet. (You can look up the status of the application yourself using PAIR.)

Cingular is not going to wind up with a patent that will stop you from using smileys in you text messages. In fact, on a quick read, the claims and specification appear to discuss ways to make it easier to insert emoticons in your text, not the mere use of emoticons. And the patent examiners, despite what you may have heard, are pretty tough about claims like this, too.

In short, it looks like the writer of the article dropped the ball here, not the U.S. Patent Office.

Cingular has not received any patent such as the article describes. The number that appears in the article, US2006015812, is actually a publication number for a U.S. patent application. The application itself can be found on the U.S. Patent & Trademark Office's web site.

Not only is this only an application for a patent, and not only has this application not yet been granted, but the PTO hasn't even examined it yet. (You can look up the status of the application yourself using PAIR.)

Cingular is not going to wind up with a patent that will stop you from using smileys in you text messages. In fact, on a quick read, the claims and specification appear to discuss ways to make it easier to insert emoticons in your text, not the mere use of emoticons. And the patent examiners, despite what you may have heard, are pretty tough about claims like this, too.

In short, it looks like the writer of the article dropped the ball here, not the U.S. Patent Office.

This just published and is years from becoming a patent. This is just a laundry list of claims that they want, not that they will get.

You can see it here: http://appft1.uspto.gov/netahtml/PTO/srchnum.html/

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

Okay, everyone take a deep breath. Though the original post says this is a patent, it is not. It is a patent application. Anyone can file whatever they want, and it will get published as a patent application in 18 months. ANYTHING. I could write something up for "kissing up to my boss" and it would get published. This application has yet to see an examiner, who will in all likelihood reject it pretty much as quickly as you all have based on a slew of prior art out there. Check back in two or so odd years to see if this issues or not. Link to the full text... http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=P TO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2F srchnum.html&r=1&f=G&l=50&s1=%2220060015812%22.PGN R.&OS=DN/20060015812&RS=DN/20060015812

The article references patent number US2006015812. The USPTO site says that number does not exist, and a search for the word "Emoticon" in patents gives 14 hits, none of them matching the story... and a few of them arguably providing prior art!

US utility patent numbers have sequential numbers and are currently in the 6 million range. Application numbers have a year (2006) and a serial number within the year (15812).

A method and system for generating a displayable icon or emoticon form that indicates the mood or emotion of a user of the mobile station. A user of a device, such as a mobile phone, is provided with a dedicated key or shared dedicated key option that the user may select to insert an emoticon onto a display or other medium. The selection of the key or shared dedicated key may result in the insertion of the emoticon, or may also result in the display of a collection of emoticons that the user may then select from using, for example, a key mapping or navigation technique.

They were granted a trademark for that, not a patent.

Perhaps it's more the case that this shit is freakin obvious.

Most patented material is at least somewhat obvious to a specialist in the field, particularly after the fact. That's why people patent things in the first place. The criterion according to the USPTO is that it cannot be obvious to someone with ordinary skill in the field--and it cannot have been reduced to practice, published and sold. Personally I think that the KA9Q guys sending email to each other over amateur wireless radio links means that wireless email had been reduced to practice years before the original patent was filed, and might make a more competent case to the judge than "this shit is freakin obvious".

Perhaps a more effective approach would be to summarize your evidence in the context of 35USC and 37CFR and provide it to opposing counsel, along with your oh-so-well-reasoned suggestions.

Good Luck!