Slashdot Mirror
Tim O'Reilly Debates Patent Office Director
jbc writes "The O'Reilly Network is running a debate between Tim O'Reilly and Patent Office Director Q. Todd
Dickinson. Among the highlights is Tim's call for a Slashdot-like forum to serve as a means of identifying prior art."
A bare-knuckled debate, not as in-depth as I'd have liked, but it's good to know Dickinson's perspective. Someone else mentioned a
list of educational patents
on computer assisted instruction techniques some of which go back to the 1960s.
The patent office should locate and talk to 3 people in the field. Ask them whether the discussed patent is an original and innovative idea. If 2/3 cannot help but laugh, throw it out.
Most of the software patents would quickly die by this test...
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
But, let me point out that your clarification makes Dickenson, the patent office, and Amazon's one-click patent even emptier: if the patent is "one-click ordering", are you really having trouble seeing the prior art, your definition? Do you know what a mouse is? They click. That's what they do. Do you know what a browser cookie is? Did you realize that the standard for cookies allows for them to be saved between sessions, or not? Why would the standard allow for it if they didn't expect it to be used that way? Plenty of websites allow clicking. Plenty of websites allow ordering. Plenty of websites recognize who you are when you come back. There is nothing new here, including the business practice: "you know who I am, put it on my tab" probably goes back to the early days of the world's oldest profession.
So, by clarifying my language, you have still utterly failed to "rebut" my position; rather, you have sharpened it. What scientists are good at doing is integrating new information with what they already know. We admit when we're wrong because it is necessary to find the truth. I'm not a lawyer and I'm not ashamed about not knowing the exact definitions lawyers have made up for common words. But I do know that patents shouldn't be allowed on obvious things and that the Amazon patent is one that was. Too bad lawyers and government bureaucrats don't have the same egoless approach to the the truth. We won't hate you if you'd just admit that you were wrong about the Amazon one-click patent. Actually, we will only if you don't.
Thanks for the VERY informative post. A couple nit piks, though, mostly in the are of "form"
/. They are us, we are they, and all of us are stupid at something. It's a community, and it has biases and misconceptions like any other.
1) Line breaks : These are GOOD, they help people read and understand. Try changing that little box below your reply to "Plain Old Text" to help here.
2) The Moderator : It is not the moderator, but moderator(s) which moderate posts. They are picked from the user base of
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That being said, thanks for clearing up the "obvious" part of the patent process. Keeping things in context is VERY important.
There is one area that I think still leaves a chink in the armor of the patent system (at least for IP).
If the invention is anticipated, it is also (but redundantly) obvious, for anticipation is the epitome of obviousness.
Could you clarify this? How must an invention be anticipated? What proof is needed? As far as software and internet business process patents go, a great deal of things can be anticipated, and in fact, have been anticipated. How does one prove this?
Either way, thanks for a VERY useful post.
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+&x
Slashdoters seem to feel a lot of cognitive dissonance with these ideas. Perhaps one reason is that, in the area of programming and the internet, these goals are already being accomplished without patents... through Open Source. If open source can generate a lot of very novel ideas (linux, apache...) without legislation, then patents don't seem to be very necssary. And even if patents are necessary, then only for ideas that require great amounts of thought (on par with html standards or linux), not something on the level of one-click shopping.
Patents are somewhat costly to the public; taxpayers have to fund the USPTO... competing organizations have to spend time and resources to make sure that they're not accidentally using an idea that's already patented. Therefore, patents should only be issued if they provide more advantage to the public than their cost to the public. Again, patents akin to one-click shopping don't seem to fit the bill.
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btw, for anyone who only read the interview, i recommend you listen to the real audio stream--you can't appreciate the full humor of Dickinson's arguments without hearing his tone of voice..
high bandwidth real audio stream
low bandwidth real audio stream
mp3 of interview
the best part is when tim points out that very new subjects are being raised that need to be dealt with and Dickinson responds "Bah!" (unfortunately translated to "Nah." in the text version..)
but what does everyone think about patenting a lawyer's argument? could a defense lawyer patent the (albeit obvious) argument that the prosecution is going to make, and thereby the prosecution couldn't make that argument? of course, patents take a while to go through the system, but what about a situation where a trial was being delayed greatly (to go to the supreme court or whatever)--could one side in the intervening time patent the other side's argument?
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Like it or not, if you're going to coexist with the legal system in the United States, you're going to have to interact with the laws. And if you're going to interact with the laws, you really should either know the laws yourself or hire an advocate who knows the laws. If you think you know patent law well enough to do it on your own, no one is forcing you to hire a lawyer, but if you're concerned that you aren't sharp enough to protect your interests on your own, you're probably going to regret it if you don't get a lawyer to do it for you.
Many situations - for instance crossing the street - are simple enough, law-wise, that you probably don't need a lawyer. And the consequences of screwing up (legally) are appropriately low. But complex, high-stakes situations such as intellectual property require a much more complex system of laws. And if you don't know them, you tend to get screwed.
Mr. Dickenson doesn't dictate the cost of a lawyer, nor does he decide whether big corporations will screw you out of your invention or not.
But look on the bright side: If your idea is worth enough to warrant companies trying to screw you out of it, you'll probably be able to find someone willing to buy in and help you protect it.
Unless I'm mistaken Dickinson has just guaranteed the eventual starvation of all lawyers. He admits that he would permit a patent of a legal argument if it were software. As soon as the first software lawyer becomes presentable in court, all other lawyers are going to have their arguments taken by the software developers of CyberLawyer1.0
If arguments in language are considered to be expression as art, isn't programming anything akin to prose?
Programming languages are languages in their own right. If I describe something in a novel that's a new idea, it doesn't mean that I'm going to develop it, and therefore I shouldn't be able to patent it. If two authors come up with a similar idea for a book, one can't just sue the other.
In code it should be the same. Two sites may allow a similar experience for their visitors, but they should really only be allowed to copyright the code to implement that. Not patent the experience. I mean, what would have happen if Eddison had patented the experience of light shining on walls?
I think there are two real problems here:
And can just say about that stuff Dickinson said about going out and getting yourself a lawyer to sort out the legal problems: what a twat. Where the fuck does he think an average programmer is going to get that sort of cash from? I think the fact that he is a lawyer helped him conceive this truely inspired comment from the back of his arse.
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Jimadilo
Jimadilo
'... I was here, you just didn't see me.'
as so many subjects on slashdot dance around a central issue, I find myself repeating and wondering when I'm gonna be wrongly accused of advertising.
http://www.mindspring.com/~timrue/KNMVIC.html
I could give the url to the patent office doc that contains this information, but it's a little more difficult to access.
3 S.E.A.S - Virtual Interaction Configuration (VIC) - VISION OF VISIONS!
You are deluding yourself. Your choices are hardly choices. People go to law school for years and at great expense to learn "the rules," and even then they have to specialize in a certain area of law in order to know it well enough to succeed in court. That is not even an option for most people. You can pretend that everybody has the same resources and the same chances to learn as everybody else, but you'd be very, very wrong. Perhaps if everyone in this country was able to make a certain minimal amount of money, and this amount afforded them the ability to have good legal representation whenever they needed it, we'd have a more level playing field. We both know that that isn't how our economy works.
If people begin to make more money, then everything starts to cost more money. Somebody has to work at McDonald's. Somebody has to work in the factories. These people are not going to be paid well, even though they are needed by these companies. When people start finding better jobs, these companies have to pay more to hire workers. That is the sort of thing that causes Mr. Greenspan to slam the brakes on the economy in order to avert inflation. This causes many people to lose jobs, thus freeing up more labor, which lowers wages again. Someone has to end up on the bottom. Millions of people, in fact. And barring some stroke of genius or luck, that is where they will remain, because the country needs someone to be on the bottom, and the economy enforces this to a great degree.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
That presupposes that inventions are our property and that someone else is harming us by implementing the idea. However, there are several problems with this:
1) An invention is simply someone's mind coming to an understanding of reality.
2) Why is the first person who comes to this understanding (actually, the first person to apply for the patent) enshrined as the "owner" of this concept, while everyone else with the same understanding must pay royalties simply to implement that same understanding?
3) The more people who are able to freely share of this idea, the more the world has been enriched! Actually, a person who is able to claim exclusive rights is the one who is stealing from humankind.
The truth is, patents were created not because some person has an inalienable right to that idea, but as a mechanism of a) encouraging invention and b) encouraging the disclosure of that invention to the public in exchange for "protection" (otherwise it could be kept as a trade secret).
I hardly think that in this day and age, invention needs to be encouraged. People enjoy inventing things and there are plenty of ways of making money off inventions without being exclusive rightsholders. For example, if someone comes up with an idea for a hoozit, they could express their idea, and perhaps a dozen manufacturers might start making hoozits. The manufacturers profit and compete with each other to make the best hoozits. The inventor is honored for being such a clever person, but let's face it - anyone can and will come up with ideas. The inventor doesn't "deserve" loads of money for it - in fact, their reward will be simply to see the product come to be used in the real world.
I know someone is going to ask about the small inventor who can't get any company to take their idea seriously and so needs funding for themself. If they go big time, and another company "steals" the invention, it was all for naught. But I argue that it is much harder for the inventor to get off the ground with this product than it would be for an existing manufacturer to start producing it. In the long run nobody's hurt if it's left to those with the capital.
As for the trade secret problem, that's fine. If it's an obvious invention, everyone else will figure it out anyway and it won't be a secret anymore. If it's not obvious, well we'll all just have to wonder how they do it. And someone else will figure it out eventually.
As for the history of "marvelous inventions" produced by patent law, let's take an example: the light bulb. If Edison hadn't been able to patent it, would he have done it? Perhaps, perhaps not. I tend to think he would be motivated enough by the sheer fun of it all, if he hadn't been turned greedy by the opportunity to patent his work. If not, someone else would have done it.
The problem is, in this great experiment of intellectual property law, that we haven't got a control to compare against. What if IP law didn't exist? Would we be better or worse off? Let's try it. Obviously, the transition would be painful, and could perhaps be attempted gradually. But in the end, I think the world would be better off without it.
survey says: you are not making sense.
They're also required, under a very stringent rule called "Rule 56," to supply to the office all the prior art of which they're aware that's material to the examination of that application.
This is kind of like asking Bill Gates list any ways he thinks his company may have violated anti-trust laws.
134340: I am not a number. I am a free planet!
I'm only up to page 4 so far, but the feeling Im coming away with is that Dickinson was engaged in an entirely separate and unrelated conversation to the one O'Reilly and the moderater were having.
Take, for example, O'Reilly's question of "How would you feel if a legal argument could be patented?" Dickinson avoids answering the question several times. He starts of saying "sure, if it meets the statutory requirements and is incorporated in software" - but the O'Reilly question asked about a theoretical change in statutory requirements. Dickinson then falls back on arguing that lawyers arguments are not patentable. At no stage did he answer that question, although he tried his best to appear to have answered it!
Dickinson is also adopting clearly partisan positions on the issue, and is commenting on issues he's clearly not up to speed on. His argument actually outlines a definition of "obvious" - he only considers things obvious if prior art exists! This ignores the fact that if there wasn't a prior need, then prior art cannot exist. Prior art is only a valid qualifier if you can also establish long standing prior need.
Perhaps this would be one way to fix the patent system. Make it a requirement to establish prior need dating back, say, the same amount of time as the patent will last. If there is no significant prior need, or if there is prior art, no patent can be granted.
As things are, Dickinson is claiming that if somebody arrives at a particular need first, arrives at an instant and obvious solution, and patents it, then the patent should be allowed because by his definiton it's not obvious (there is no prior art).
I'm pretty sure the Amazon One-Click patent will fail this test, because the patent itself is little more than a patent of that which is needed! In this case, once you have the need you have the "invention".
On the other hand, I think he failed to convey the full impact of something I found very compelling. We might very well *not* have demanded increased Article 56 burden, if we'd been at the hearings.
Right now we're looking at pro-corporate examples that make out blood boil one way, but there *is* another side, even for an ardent anti-corporatist. [Let's forget for the moment that half of SlashDot is rabidly anti-IP right now. We *have* a patent system. Let's work with that] How many of us have tinkered and invented since we were kids, and at some point considered having an inventions produced and marketed? What's the first thing you worry about? The system and being ripped off by the Big Guys. Result: no one wins. The product doesn't get made -- or gets made years later, when someone else comes up with it (and probably *that* person gets ripped off.
Most of us have wished it wasn't so difficult to get a patent. The more inventive you are, the more likely you've wished it. A lot of us would love to be able to support ourselves with our explorations of the possible... so that we could spend our lives inventing more.
But we're 'little guys'. The cost, the search, lawyers, the years to approval -- all are scary!
On the other hand, it realy burns our beans to see someone else patent something that seems 'obvious' (to us) -- often *so* obvious that it seems like the major cleverness lay in imagining the idea of patenting it. Then we start demanding more rigorous standards for patenting.
So which will it be? Easier patents or harder? I choose "easier". Why? because a corporation can more readily carry the burden of increased Artcle 56 demands than 'the little guy', the Yankee tinkerer, the one-man R+D shop. And that seems to be Dickinson's view, too. What we need is easier, more consistent, transparent and less painful patent review. Unfortunately, he simply isn't equipped to perform that review. he wants our help (on his terms, of course - whaddya expect?)
In the extreme, the patent system could be like the internet -- anyone can put up a site (stake a claim), but that claim can be shot down too. That isn't the no utopian vision it might seem. The Internet has plenty of problems that we wrestle with daily: spam, threatigation (coercion by threat of litigation -- just made it up), cybersquatters... you all know the list.
But since patents aren't hobbled by free speech concerns, which *need* to be generously oversized, due to the power differential between individuals and coercive groups (private or government), there is a reasonable opportunity to construct a system where scientific and enginneering principles reign and not 'legal principles' (oxymoron).
We don't have to have a 'wild west', we can have a collaborative 'open source patent review'
Admittedly, a lot of people (including many lawyers I know) would find purely technical grounds to be too "cold" or "restrictive". They prefer softer standards, like 'social values' or consensus, or even fantasy. That's not a slap -- we're all sometimes a little less rational that we'd like to believe. My point is: not everyone will agree with *any* patent, when it keeps them from doing what *they* want. We all secretly hate the guy who gets 'our' girl, 'our' parking place or 'our' lottery jackpot.
We'll all sometimes want to decide patents on the basis of what we imagine the consequences would be, rather than whether it is a genuine advance over prior art. We will find the battle for to make rational patent decisions is not, and may never be, as easy as we should.
My 2 cents. Harder or easier? I say easier -- both to create patents and to contest them.
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If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
We don't patent obvious inventions. We just don't. And if you believe that it's obvious, and you've got prior art to show that it is obvious, send it on in
our patent system is in the hands of a moron. Dickenson doesn't understand the difference between "obvious" and "prior art". If there is prior art, it doesn't matter if it's obvious. Obvious is for the case where there is no prior art.
And saying that the one-click patent was very narrow: Barnes and Noble used two clicks so they didn't infringe? That is the stupidest reasoning ever!
People don't hate lawyers because they are stupid. We hate them because they are stupid and have influence over anything.
I'll try not to be rabidly anti-IP, but I believe there is a case for abolishing patents based on what you say, rather than tweaking the system.
So it goes something like this: you have a neat-o idea, and you think, "wow! I should patent that!" but the patent system scares you off. The patents have failed to act as an incentive to publish your idea, which was their very reason for existing in the first place. Not only are you not going to patent your idea, you are not likely to release it into the public domain because you don't want to give up on the opportunity for patenting it, despite the fact that there't not much chance you'll actually do so. The mere possibility that you could (theoretically) make money out of this idea by patenting it, is causing you to jealously guard it as your property rather than share it! Patents are an active disincentive to publish!
If patents did not exist, however, you might consider one of two possible courses of action. One is to think that your idea is a good one, but probably not something that you are going to make any money out of, so you publish it somewhere in a specialist newsgroup or something. If the idea has legs, it will run on its own. You'll probably get some fame and recognition, and that can be financially rewarding in the long run, depending on how good the idea really was.
On the other hand, maybe you think the idea is so good that you can make money out of it yourself. But how do you sell an idea without a patent to protect you? I'd suggest this approach: contact a company that could use the idea, and see if any are interested in the general concept. Invite one company to see it demonstrated. It doesn't matter if this gives the game away, because you then offer to sell them one important thing: an offer to not go and tell all their competitors the same thing. If this idea really confers a competitive advantage, then they'll appreciate the head start and pay for it.
This has the advantage that nobody has exasperating restrictions placed on their freedom in terms of not being able to do patented things, and nobody gets to choke-point key ideas. Inventors may not Make Money Fast this way, but frankly we can do with a decrease in the rate of invention for the sake of fewer moronic restrictions on the programs that we are allowed to write, especially given the quality of the average "invention" embodied in patents these days.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
But let's talk about law. I think your comment is pretty characteristic of the irrational polemics that surround many of these discussions. You paint first-to-invent as a small inventor vs. big company issue and try to gain sympathy and support for the current US patent system by trying to get sympathy for a hypothetical small inventor that might get harmed under a particular set of circumstances by a big company.
Of course, you provide no support, not even anecdotal, for your situation. If we analyze it theoretically, I would think the small inventor is much more likely to be harmed by first-to-invent: big companies are much more likely to have the paper trail to document first-to-invent and much more likely to have the legal muscle to push through a first-to-invent case. Unlike first-to-file, first-to-invent is a fuzzy and complex doctrine, and those kinds of legal complexities favor interests with good legal support.
Of course, implicit in your statement is also the assumption that the delay for the small inventor is caused by the inadequate legal representation he has for the preparation of his patent. I think we should ask why the inventor ought to require complex legal assistance for filing a patent in the first place. That, too, strikes me as a serious flaw, in particular in the US patent system, something that greatly stacks the deck against the small inventor. If you are concerned about small inventors, address that issue.
So, in short, yes I favor first-to-file because it's easy to understand and easy to adjudicate. I also think the US notion that you can patent within a year of publication is wrong because it makes it even easier for companies to get their patented technology into standards without anybody knowing until it's too late.
I'm not sure what you mean by "business law patents", but if you are referring to "business method patents", I don't see what the problem is. Business methods aren't chemical process methods, and the patent office ought to have no problem distinguishing the two; allowing one does not in any way require allowing the other. I don't know what the current status of business method patents is in Europe, but I would be surprised if they were allowed.
In fact, chemical process patents are, in my opinion, far preferable to the patents on chemical substances themselves that are allowed now; the whole reason industry hasn't been satisfied with chemical process patents is because they feel that chemical process patents do not afford enough of a monopolistic protection--clever competitors have become increasingly good at finding alternative chemical processes, so that effectively process patents were much more short-lived.
I don't know what your background is or whether you have ever even written a patent. But perhaps you should seek the cause for the "closed minded responses" from engineers in the insubstantial nature of your own arguments. If you want to make arguments about protecting small inventors, I suggest you support them with actual facts: how frequently do these cases arise, who usually wins them, etc.
As for me, I'll stick to what I observe directly, and that is that European patent examinations appear to be significantly more skilled and careful than US patent examinations. It won't fix the US patent system, but I think it would certainly help if examinations could be brought up at least to that level of care.
What you say isn't necessarily true; Buckminster Fuller maintained that with our current resources and technology, everyone on earth could potentially enjoy the standard of living which only the wealthiest enjoy now.
But obviously everybody does not have that standard of living. What does that comment have to do with reality?
I don't really see how inflation is in any way relevant to patent law, but you brought it up.
It was relevant to my point that many people cannot afford any legal representation, and most people cannot afford good legal representation. Nor do their jobs and families leave them with the kind of time it takes to learn these things, nor do most people receive the kind of education it would take to really understand the law. Then consider that they probably won't even know what area of law they need to learn about until it's too late.
Back to the original subject, the laws in place in the patent system are in place for a reason. It takes a complicated system to regulate something as complex as ideas.
Not the way Mr. Dickinson runs the place. Anything that doesn't get voided during a quick prior art search gets patented. Anything that does seem to have prior art gets rewritten and patented.
One doesn't necessarily need to be a lawyer to be familiar (or even competent) with patent law
No, but you do have to have the time (which usually means having money since money can be traded for time, and vice versa) and educational background to allow to you learn it, just as you would need those two things to learn any area of the law.
Someone will always find a way to abuse the system, and complex rules will have to be drawn up to prevent those abuses.
We've already seen that the patent system is laughably easy to abuse. The current director is a buffoon that wants to patent anything and everything possible, which is no wonder considering that's how the patent office makes its money (another ridiculous idea that some moron came up with in order to cut spending, without much consideration for the consequences).
The patent system does not have to be complex to be effective. The current system is extremely subjective, so changing some guidelines and still giving examiners the ability to use their informed judgement could only be an improvement. The trick is to take away incentives to do shoddy work, and lay down some guidelines to make sure that investigations are thorough and sensible. Such a system may have some internal complexities that will be dealt with by the examiners and other PTO employees, but would not be complex for those who are seeking a patent.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
This is an ongoing and increasing problem with the legal system in general. They are almost making it so you have to have lawyers working for you just so you can live, but the cost of lawyers is too high for a typical person to afford.
The cost of justice is a major topic of debate internally in the law community as well. Believe it or not, there are honest lawyers out there who are as appalled with the cost of justice as we are, and want to do things to reduce those costs. Unfortunately, they are severely outnumbered because lawyers generally like their Armani Suits, BMWs and backyard swimming pools. What's more, Judges are lawyers, and most politicians are lawyers.
Isn't it obvious that, by now, the Slashdot community should be calling Tim O'Reilley by his earned TLA? It's time to add TOR to the list of people immortalized by a TLA :P
You should never take life too seriously - You'll never get out of it alive.
The sad fact is that software patents are downright stupid. They skirt the very edge of patenting "laws of mathematics" (many of them blatantly patent trivial algorithms like interpolation, run length encoding, etc.) But even without that debate, allowing the entire 20 years that it will be valid for well over the useful lifetime of many of these patents; completely destroying the patent system which was designed to encourage inventors to publicly release their secret techniques in exchange for a time limited monopoly. Since it takes about two years for a patent to be processed, the patent is often useless by the time it is granted, let alone when it expires.
magic
The only real difference, as I said, is how the two licenses define "stealing code."
The GPL defines code theft as hoarding the code, making modifications and not releasing them as the original code was released to you. It grants you additional rights, but these are only means of preventing said theft.
Microsoft's EULA, by contrast, defines code theft as using it in any capacity other than a certain narrow range (the Win95 and 98 licenses don't even let you run servers on them for more than 5 users). It takes away rights, even those normally granted under typicl copyright, but again they're only a means to preventing you from "stealing" the code.
Both very different licenses, but still similar in many ways. Just opposite ends of the same pole.
It does make it kind of disingenuous, though, to talk big about "protecting the small inventor" while at the same time requiring you to hire a big-time lawyer just to get anything done.
So let's not pretend that the patent system is about its original purpose (encouraging innovation) or about "helping the little guy" (as Dickenson would have us believe). Let's just admit that patents exist to help rich guys get richer at the expense of poor bright people, and be done with it.
Before we put him against the wall (not that we shouldn't, but before) let's remember that he didn't create the system, and he doesn't have a whole lot of leeway in how it works. Patent law is pretty patchy. I think it's mostly OK, except for a few of the provisions for what's patentable.
But the law allows patent claims that are exceedingly convoluted and arcane. The main reason it's "of the lawyers"... etc. is that a lot of legal jargon is used to make the claim incomprehensible. Remember when they posted Transmeta's claims? You can't do your own patent search, 'cause you could be staring right at a conflicting claim and not recognize it. Sometimes I wonder if they're just trying to confuse the PTO into giving up and issuing the patent.
I think part of patent reform will have to be fully-defined, simplified language, as well as an industry review for obviousness. In the meantime, the advice he gave you is about as far as he can go in print. Otherwise you might write an RSA implementation and point to his advice, as a defense :-).
Many companies submit the same patent to European and the US patent offices. In my experience, the USPTO just rubber stamps them. The European patent examiners frequently make insightful technical comments, point at related prior art, and narrow claims considerably. The European patent offices also have largely refused to broaden notions of patentability in areas like business methods, biology, and software without explicit legislative direction.
Republicans often like to claim that the EPA or other federal agencies are bureaucracies out of control. I think the USPTO is a much clearer example of a bureaucracy that makes policy without much oversight, and people like Dickinson are responsible. The kind of intellectual pollution the USPTO creates will stifle innovation and US competitiveness for decades to come.
Of course, none of this is surprising giving Dickinson's legal background. The benefits of the patent system that Dickinson has seen throughout his career are the ability to extract big legal fees from patent disputes among large corporations.
I think the USPTO should be run by people with creative engineering backgrounds, not by lawyers. Engineers should become politically more active to fill such posts with people who actually have first hand experience with innovation and creativity. If we leave it to law school graduates to run these kinds of institutions, we shouldn't be surprised at the results. So, get politically active: that's the only way this is going to change.
The Mongrel Dogs Who Teach
Are the sets of things that can be patented and things that can be copyrighted mutually exclusive? Or can you patent the 'process' and copyright a specific 'implementation' of it?
Patents and copyrights are orthogonal; neither diminishes or augments the right to the other. I could, for instance, patent a process, copyright a book describing the process, and trademark a name for the process. Trade secrets, OTOH, are in fact mutually exclusive to patents: a patent discloses the invention, and then it isn't a secret anymore.
A GIF implementation would be subject to the author's copyright, unless released to the public domain; it would also be subject to Unisys's patent. One would need a license under the author's copyright and under Unisys's patent.
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Ooh, moderator points! Five more idjits go to Minus One Hell!
Delenda est Windoze
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Ooh, moderator points! Five more idjits go to Minus One Hell!
Delenda est Windoze
Ooh, moderator points! Five more idjits go to Minus One Hell!
Delendae sunt RIAA, MPAA et Windoze
So what you're trying to say is that the existing clearcut rules that everyone is subjected to equally should be replaced with the impossible to quantify "informed judgement", and that everyone who tries to patent anything should be placed at the mercy of an examiner who has absolute power to reject their patent for any reason.
No, I'm saying that that's basically the way it is now. The problem is that the PTO has financial incentives to grant as many patents as possible and reject as few as possible. This leads them to perform inadequate prior art searches. It leads them to ignore the whole part about not granting patents on inventions that are "obvious" to an expert in the field. It leads them to reward some examiners for granting more patents than other examiners. Basically the current system is set up completely wrong. They have incentives that are completely backwards.
We could set the system up where the examiners still make the final judgement (which they do now), but where they don't have the same incentives they have now, and they have to follow different guidelines for the examinations than they do now. I'm not talking about making it more complex necessarily, I'm talking about changing the current system to another that is probably no more complex than the current one, but that doesn't bias the process by making the PTO depend on revenue generated by the number of patents it grants, and where examiners have no incentive to grant patents that they wouldn't grant if they went by stricter guidelines for searches and "obviousness."
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
When I said it would be "no more complex," I was talking about internal PTO procedures that will be guiding the examiners. I think it could be made significantly less complex for those who are seeking patents.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Dickinson: I think there's a disconnect there, Tim. You just told me that all these folks, they have eight out of ten of these in their back pocket. If they've got them in their back pocket, they don't even need to do a search. If they're aware of invalidating prior art, send it on in.
Our system derives a substantial portion of the information it requires to reject patents by trusting the client to provide that information.
If you're aware of prior art out there that invalidates a patent that is existing, file a re-examination. We'll be happy to take a look at it. I've done a couple of these. Mr. O'Reilly hasn't filed any. I've actually filed two myself in the last six months.
In six months, I've initiated formal procedures to correct two misappropriations of IP assignments. You've merely noted that the entire procedure of assigning IP is hopelessly insecure.
Tim: But let me just ask the other question. In terms of filing for a re-examination, my understanding is that once you ask for a re-examination, the patent holder gets to comment to the private ruling, and then that prior art can no longer be used in any court cases, so it seems weighted very heavily in favor of the applicant.
Should a flaw be found with our security system, that flaw will only be recognized once, with us trusting the original client to determine whether that flaw was indeed serious. After this initial evaluation, no futher challenges will be accepted.
Dickinson: Absolutely, Mr. O'Reilly. One thing we were lacking was your very cogent voice last year as this legislation was pending on Capitol Hill. We very strongly supported expanding that re-examination, and it only passed in November, and I didn't hear you or Mr. Bezos raise your voices once to try to keep that kind of loophole from being included in the legislation.
It's not our fault that our security policy is broken; you didn't email our management any detailed proposals defining exactly what a loophole was.
Tim: How would you feel if a lawyer was able to patent an argument?
Dickinson: If it was new and non-obvious, I wouldn't have a problem with it at all.
Tim: And the ability to basically extract a royalty from other lawyers for using that same legal argument?
Dickinson: As I say, if it's new, and if it met the statutory standards for patentability (and that's the key question here), and it was incorporated into software in some form, that wouldn't be a problem.
Today's security policy is brought to you by Franz Kafka.
(side note: We now have the world's best example to get software patents eradicated.)
Dickinson: Obvious functions are not patentable. We don't patent obvious inventions. We just don't.
Attacks against our system do not exist, have never existed, will never exist. Our trust of the client is completely secure.
And if you believe that it's obvious, and you've got prior art to show that it is obvious, send it on in, as I've said many times.
We respond to systematic failures in our security policy by analyzing each penetration on a case by case basis, rather than rewriting our access control lists to actually do something.
I am eager for Mr. Bezos to get moving and fund the comprehensive software database he said he was going to fund, because we need that kind of prior art, we need those kinds of databases to help us do our work better.
We have no problem moving from a system where nobody respects our patents to one where nobody can write a line of code without knowing which dozen patents they're violating. We like the idea of insecurely authorized policies being grandfathered into our system.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
- A.P.
--
"One World, one Web, one Program" - Microsoft promotional ad
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
1) Business Methods and Software Methods are not part of the 'traditional' patent system. They have only recently been allowed.
2) The only way to change the system is to get political. When you sat back and let Congress allow the above changes to the Patent Office's mandate, *you* made it possible for this current absurd situation to arise.
Now, IMHO, it's too damn late. The mandate has been expanded, and it is *impossible* to shrink it back.
Which leads to...
3) The *ONLY* solution is to work *with* the PO and *with* Congress.
Work with the PO to help them get their shit together wrt prior art and obviousness. Sounds like the database idea is a good start.
Work with Congress to exert pressure to help refine the way that Business Methods and Software Methods go through the patent process. You can't remove them from the process: you can only change the way they're validated.
You gotta get involved. S'only way.
--
--
Don't like it? Respond with words, not karma.
For example, the first time I realized the patent system was out of control was when I read in New Scientist that a company had succeeded in genetically engineering cotton for the first time and had patented *all genetic engineering of cotton*.
Here we have a case where the means was inobvious and patentable, but the end (genetically engineered cotton) was obvious and should not have been patentable. Similarly, patents such as "selling music downloads over the internet" should not be patentable, but implementation details possibly should be.
A reverse example is the Hula Hoop. It was not at all obvious that this object was desirable, but once you know what it is, how to make it is obvious. Nobody should be able to make Hula Hoops by other methods, but the Hula Hoop patent (assuming it exists) should not prevent people from using loops of hose in other ways.
(Of course IANAL. Perhaps the distinction exists already, but the patents I see being granted doesn't give me any confidence that it does.)
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
I think this goes to the heart of it, and where they were talking at cross purposes. Every time Tim talked about obviousness, Dickenson talked about prior art. I agree that the patent office should only consider published material as prior art, but obviousness is a much fuzzier thing, apparently.
I'd have thought you could show obviousness if someone tried to patent a standard mail-order or phone-order convention as applied to the Internet by citing those as prior art, and making the argument that it's obvious to do the process with another communications medium. Can anyone think of some specific examples (I've had a long day) that we can write up and send in? I'd like to see how well the process works :-).
Too bad Tim didn't get to say what he meant by
18 out of 20 developers having whatever in their back pockets. What he meant (and should have said, outright) was that they could pull it out of their ASSES! These are patents of obvious solutions to common problems. Any developer faced with the same problem to solve, would come up with the same solution (patentwise).
And, to have the Director of the Patent Office of the USA state that "no obvious patents have been granted" is very embarassing for me (note the bare assing part) as an American. Given that I have only looked at a very small number of patents granted and ignoring the slew of internet patents issued recently, I have seen several which are beyond obvious, such as patents relating to database cursors (which are beyond obvious); certainly the idea of having a reference (pointer? index? handle?) to your current location within a list of data objects is not patentable, Right?! Not so. Thank god (or whomever you want to thank) that the company holding this patent isn't defending its patent! Everyone using a linked-list (much less a database engine) is in violation right now! Perhaps the Director would like to examine the amount of software he is using on a regular basis that are not paying royalties to the legal patent owners for their illegal use of patented (i.e. those granted patents, not those which deserve patents) inventions. The fact is, the patent owners know their patent is bogus and that only the legal fees required to defend against a patent infringement suit are a deterent.
Hence the need to patent everything, so you have a defense against everyone else.
In the case of the Internet, prior art is almost useless given the pace the internet and internet software are progressing. As someone else said, you can't have prior art without prior need. This stuff hasn't existed long enough for prior art to be developed.
From the interview, the Director is:
A) A moron
B) Doesn't care and is simply carrying out his duties
C) Part of the system
I don't think he's A, as he was very good at cutting Tim off and reciting the law and the charter of the patent office. I can't decide between B and C. In any case, he is certainly an ASS!
Citing actual inventions, such as the light bulb, morse code, the telegraph or the telephone, in defense of the patent system is a very good ploy; however, it doesn't really stand up very well to the situation at hand. These inventions (with perhaps the exception of the lightbulb) preceeded their need. No one even thought about calling someone else before the the telephone was invented, patent applied for, and marketed. Too bad Tim didn't push this further.
Perhaps, rather than attempting to help the patent grantors (not just the patent office in the US, but patent grantors worldwide), we should show them for the idiots they are! Rather than submitting "re-examination applications", simply show how simple the patented idea is or show prior art where available or provide a multitude of alternate solutions to the problem solved by newly granted patents. Instead of having a website which provides prior art, maybe we should have website that debunks patents granted. Show them for the fools they are! If nothing else, perhaps we could make these patents useless and undefendable.
Derry Bryson
You just wish your ID was as low as mine! I used to be proud to have such a low id, but not so much now. Slashdot most
After having read the interview/debate and most of the posts
here, so far, I conclude that the posts here are just as out
of touch with reality as Dickenson's answers seemed to be.
Dickenson is not stupid. He is perfectly capable of understanding
that software is like a regular human language - it is not a
mechanical invention. Human languages and software concepts
and are like evolving organisms or ecosystems. Further, the
kind of logic employed in 99% of software design is very, very
basic and simple - much simpler than high school algebra.
It's nothing new. What the software engineer or programmer
does more than anything is write a meaningful story - one
which is meaningful both to the machine and to the human user
or human designed meta interface, as in imbedded systems
where there is no immediate "human" interface. This is true
just as much in the creation of a new computer language as
it is in a simple file processing application or graphics hack.
Like any story, software can be copyrighted, perhaps, but it
is not an "invention" in a real sense.
The problem with Mr. Dickenson is that he has sold his soul.
He pretends not to know. The kind of "knowledge" that
people are trying to patent in software and internet applications
is so basic and so central to ALL forms of human intelligence
and logic that it is part of our heritage and belongs only to God
or, if you are an atheist, to nature or to the universe. Mr.
Dickenson and his ilk will destroy our civilization. He has
no heart or soul. Maybe he did at one time, but such a person
has no place as the administrator of our patent system which
has a larger responsibility to protect the repository of human
knowledge and to help nurture it, even. Instead, he does the
exact opposite - he poisons the wellsprings of creativity by
serving the corrupt interests of corporations which also lack
a heart or soul. His arguments are so empty and vapid that
no prior art is required to reveal them for what they are -
boldface lies to cover up a massive corruption of our system'
of government by lawyers and corporate interests over the
rights of persons and of society itself.
What we need is a revolution. An evolution of conciousness
would be preferable, but it may be too late for that. When
things reach the point that people are afraid to write any
new software unless they have corporate sponsors with
deep pocketbooks, "open source" and "free software" as we
know it will be dead. This is worth a fight. If you think your
petty little job is more important you are wrong, and if you are
not prepared to lose it for your right, and the rights of
others, to create software at all in the future, then you are no
better than Mr.Dickerson.
He repeatedly stated that he is strongly in favor of anything that will improve the patent office's access to prior art. He also made it clear that people who argued for changes in the system (i.e. the independent inventors lobby) got those changes. He rightfully pointed out that there was no significant representation from people who share Mr O'Reilly's point of view.
What he didn't come out and say, but what I'm inferring is basically, since we didn't lobby then, we don't have a right to bitch now. And, if we *do* want to bitch, then go through the proper channels and get new legislation introduced.
To me, this seems analogous to voting -- if you participate, you earn the right to complain. If you choose not to vote, you have no right to whine later when things don't go your way.
Gentoo Linux http://gentoo.org/
Let me sum up what you just said:
"If you want any justice in this country, you'd better be able to afford it."
While Mr. Dickenson doesn't dictate the cost of a lawyer, he does have a lot of control over how the patent system works. If it currently requires you to hire a lawyer in order to have a reasonable chance at protecting your invention, perhaps it needs to be changed.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Your standard, on the other hand, degenerates into a pissing match between an inventor and an Oracle of Obviousness, whose sole duty is to say, "I could have done that," without needing any evidence to back him up.
Couldn't be any worse than the current system where they just patent any old crap that someone sends in. Personally, I'd rather see fewer patents than the flood of patents we have now. I think the flood is doing a lot more harm.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
What does one have to do in order to be heard by these people? I've written many letters to my congresscritters. I rarely get any kind of response, except the occaisional cookie-cutter, "thank you for your comment" reply. What's it take to get their ear if you don't happen to be the CEO of a large corporation?
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Mr. Dickenson said at one point "That's why you need a good lawyer," in reference to paten applications and such. Does he know how much even a mediocre lawyer costs? I had one a while ago, and for six one-hour sessions, it set me back around $3000. He also said a couple of times about how he patent system was "for the little inventor", you know, the garage-inventor type person whose intellectual property would be stolen by the big companies. So, the system is in place to protect the inventor who has just spent his life savings on his invention, but yet that same inventor is expected to have all these thousand-dollar bills around to pay a lawyer?
Bite me.
Dave
Barclay family motto:
Aut agere aut mori.
(Either action or death.)
writes jbc, he does "Running a debate, between Tim O'Reilly and Q. Todd Dickinson, Patent Office Director he is, it is, the O'Reilly Network is. Tim's call, for a forum, like Slashdot it is, as a means of identifying prior art, serve it will, among the highlights it is." Patents leads to hate. Hate leads to fear. Fear leads to suffering. A debate, bare-knuckled it is, not as in depth as like, I would have, it is. To know Diskinson [sic]'s perspective, good it is. Always an open mind, a Jedi must keep. A list of educational patents, on computer assisted instruction techniques, they are, which go back to the 1960s, some fo them do, mentioned someone else mentioned. Patents, intellectual property, a Jedi craves not these things.
Yu Suzuki
Yu Suzuki
Deamcast. It's thinking.
Mr. Dickinson's argument seems to be:
If you didn't catch it when it was being maneuvered in back rooms, I don't care if it's right or not, tough shit, you should have been richer.
Mr. Dickinson, you are part of the problem, not part of the solution, and I hope you need help with your system from a clueful hacker some day.
--
So what does the license on the code say? I find the following in the example file to which you refer:
This is not a free-software or open-source license, because of the clause restricting users from using the code in "any other book, publication, or educational product" without special permission. Free software, according to the Debian Free Software Guidelines or the Open Source Definition, requires "no discrimination against fields of endeavor". Discounting that provision, however, it does permit you to use, modify, and redistribute the code "in source or binary form, so long as an acknowledgment appears in derived source files."Hypocrisy? Not here.
There's a very large difference between copyrights and patents.
Copyright means, under normal circumstances, that you cannot lift the code outright and use it in your own stuff. It's possible that the book you mention does allow you to use the code in your own stuff. In fact, I'd put money on that assertion. Check the book out; it should say.
Patents are different. Patents protect more than a person's work. Let's say I one-up Amaon and write a "no-click system" for e-commerce (impossible with current technology, I know, but it makes for a handy example). You can't lift my code, because it's copyrighted. However, you cannot write any no-click system at all, due to the patent. This is simply unethical practice, as it's applied to discourage competition in the marketplace.
What is software? Software is code, in both object and source form. Code is copyrightable, and this is good; it lets you protect your work from those who would steal it, by whatever you define "stealing" to be (the GPL and Microsoft's standard EULA differ only in their definition of what stealing code is; other than this they do exactly the same thing).
But patents, copyrights, and trademarks were always meant to be mutually exclusive. Can you copyright a car? Hardly; that's a patent's job. Can you patent a specific word, perhaps "Microsoft"? Again, no; that's what a trademark is for. Why, then, should you be able to patent something which is copyrightable? There is no difference between that example and any of the others.
In reading the interview, one thing became clear. O'Reilly was interested in discussing the theory of patents. While Dickinson is from the patent office, he largely deals with the technical aspects of patents.
So when O'Reilly asks if Dickinson believes a legal argument should be patentable, Dickinson gives a technical answer. When O'Reilly questions other aspects of our patent system, Dickinson informs O'Reilly that a LARGE review was held a year ago, and no one voiced the opinions that O'Reilly had.
Patents need a certain degree of secrecy in the review process. Otherwise the intellectual property could be easily stolen. That is why having a peer review patent process would not work. If O'Reilly stopped to think about this from an inventor's viewpoint, he might get this.
Prior art, as used by Dickinson, is not just an existing implementation of the invention and claims, but is also anything similar enough that the invention and claims are an obvious extension. Do not forget that. Prior art is NOT just a pre-existing invention, but is also anything from which the invention would be an obvious extension.
Thus, if you can demonstrate that 8 out of 10 software engineers could create the same invention given the same starting point and a not-so-hard amount of effort, the invention does not meet patent criteria.
Free software advocates are just not used to working the patent system. Many people get rich from their inventions. It is an idea that was framed in the constitution of the US. The problems people point out have historically been considered problems with every major technological advance - the Motion Picture (Edison vigorously defended his rights), the telephone...
The problem, of course, is money. It takes a few thousand dollars for a fairly simple patent. And that alone puts it out of reach for a lot of programmers with great ideas.
The concept of patenting as opposed to the advertised concept of patenting is to trade a reasonable compensation for disclosure of works.
The advertised concept is sole proprietorship. That's a load of bull.
Let me explain something: Invention does not exist. The laws of physics already state what is possible and what isn't. As a result there is only educated discovery.
The best example is the gui gallery here:
http://www.pla-netx.com/linebackn/guis/
Take note how many of ideas Xerox metions have come to life in other systems.
Another reason this issue bothers me is that I've been fantasizing the next level of development of OSes. The idea is simple: Do what 's been done since the old days -- make the system more modularized in developer's point of than it already is. Guess what? Mac OS X is there I still hate the company and its attempt to wipe out all experienced users from the general audienmce. But aside from the coplexity this step creates, it's an amazing system. It should be called PDFos or Micromac OS. The fact that I or anyone else is capable of conceiving of such a so called breakthrough makes me very concerned about the way the system works.
And there's also a concept of a period of time when the world is ripe for that "invention". That throws even more doubt on the concept of isolated originality, which is what the notion of invention really is.
AmigaOS was 32-bit preemptive multitasking 10 years before the appearance of Windows9x. The Amiga also had WebTV style addons way before the explosion of the web we're used to.
The point Dickinson refuses or fails to recognize is that the patents presented are not inventions, but integrations.
I'd accept a 9 month period to grant monopoly on integrations in specific regions.
Comments?
The message on the other side of this sig is false.