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ABA Journal On One-Click (And Even Sillier) Patents
smarner writes: "The American Bar Association's Journal (ABA Journal) just came out today, and there's a thorough and interesting article called 'Patent This' regarding the one-click and other business method patents that have been drawing the ire of many lately (including /.ers). The article is on-line here."
I read a scifi book in the past year that was set in the "near" future (~50 years or so). The book was partly about how the US had fallen apart, primarily because its economy had been wiped out by the Chinese who had made available for free via Satellite any and every "protected" bit of American intellectual property.
This crushed the US economy because instead of being good at doing something, the US instead became good at owning the rights to something. In an economy where those rights are protected, this can make you rich and powerful. When someone can take them away, those rights are nearly worthless.
I wonder to what extent the US economy is really vulnerable to this kind of exploitation -- could the Chinese or some other nation suddenly decide that US IP rules are just too much and actively work to break their power by pirating US designs, content and so on?
You have documentary evidence that the wheel was patented? Archaeologists estimate that the wheel was first used in 3500-3000 BC, which wasn't exactly the golden age of intellectual property law, but if you have a better reference, I'd love to know.
Post hoc, ergo propter hoc. Show me the connection.
Or, conversely, those seeking frivolous patents will be encouraged by the utter abdication of authority on the part of an already weak-kneed PTO, and the spate of "one-click shopping" and "web indexing" patents will spiral out of control, until not even the most basic of technical operations can be implemented without paying a king's ransom in licensure and legal fees.
Just a thought.
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"You owe me a case of beer. Sucka'."
Business Method patents are only the newest complaint. Before that it was Software Patents. Before that, it was Genetics patents. Before that, it was patents on anything that involved any math. The fact is, separating these things out is almost impossible. How do you draw the line between a software patent and a hardware patent? How about a software patent and a business method patent?
I read Amazon's one click patent, and to me at least, it looks like a software method. After all, what's the claim? The computer receives certain inputs, processes them in a certain way, and generates a certain output. This is exactly what a software claim would look like. And if their lawyer had needed to, changing this claim to a hardware claim is trivial. Merely make reference to the processor/memories that perform each of these actions.
So, eliminating a subgroup of patents is very close to impossible. Now, if you want to eliminate all patents, that's a different matter. You could certainly do that. Of course, you'd affect patents that most folks support, in addition to silly reverse auctions. Reality is that patents help the little guy. Something like 99.9% of patents are never litigated. The're simply for one of two things. First, to get money from investors because investors love to see that there is something defineable that is novel. Second, to build a portfolio, in case of negotiation with a competitor.
Personally, I think there are two solutions to the low quality of patents being issued today.
First, publication. The Patent Office has already implemented this. Most patents filed after November of last year will be published. (The inventor can request non-publication, but only if the patent is not going to be filed in any other country.) This should allow folks to review future patents, and send prior art to the inventor or to the PTO.
Second, hiring competent examiners. The real problem is that the PTO is paying $30K for engineers, to live in DC. In today's economy, this is not realistic. You have to pay people a reasonable amount if you want to get competent people. There are only two types of people who work at the PTO right now. Those who really need the job security/insurance benefits provided by the PTO and those who can't hack it in the real world. I talk to Examiners on a regular basis, and I'd say 75% of them don't speak English. This makes it very hard for them to even understand the claims, much less make a competent prior art search & rejection. The suggestion has been floated by someone that we hire from overseas. One of the few perks a government agency can offer is guaranteed green cards of visas, outside the normal bounds of immigration. So, they could hire competent programmers, say from India, who speak proper English, and in addition to their $30K, they could offer a green card after four years. There are plenty of folks who'd jump at this chance. And I expect that the quality of examination would rapidly rise.
Thalia
Tiger Woods may have won the U.S. Open, but the golf phenom might lose in U.S. District Court if he infringes on Dale D. Miller's patented putting technique. Since April Fools' Day 1997, Miller has had rights to a "putting method in which the golfer controls the speed of the putt and the direction of the putt primarily with the golfer's dominant throwing hand, yet uses the golfer's nondominant hand to maintain the blade of the putter stable." Patent No. 5,616,089.
Using this logic, I should submit a patent to prevent others from using the foremost fingertip for the purpose of striking where the result is a character or set of characters appearing on a vertical or horizontal surface in a prescribed order. I believe this would cover both paper and electronic forms.
As for the issue of "prior art", I believe the requirement is that I report any known version. I am not going to go out of my way to find examples. I mean alternative entry devices which may conflict with my patent.
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A 10 foot rope in a 20 foot hole is not a partial solution
[stock rant on the subject]
Patents are not about who is right, or who is first; patents are about who can sue.
The US PTO is a money-making service for the government, and this fact is why it operates as it does.
There is a misconception that it is the central duty of the PTO to form a blockade against granting patents. The PTO can and will block applications where there's heavy similarity with prior art or existing patents, but that's really just a guideline to using the service, not the core function.
The PTO's purpose is to grant patents for a fee, and it's wholly suited to do so.
The application vetting process of the PTO is a cost center for the operation of the PTO. This is akin to saying that customer service is a cost center for the operation of AT&T. It is required, but they'll cut costs as much as they can get away with.
To fix the patent application vetting process, two things must happen:
At the minimum, if the PTO would publish the abstract for each patent application at the time of filing, then third parties could submit "helpful" arguments against controversial applications. The PTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.
Once a patent has been granted, the Patent Office does not get involved in disputes; that is a matter for the courts.
[end of stock rant on the subject]
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Very good summary article, although I take issue with one point:
"...O?Reilly had established a cult reputation as a crusader against the commercialism of cyberspace."
Maybe against the brainless and money-grubbing commercialism of cyberspace, but I don't think I've ever heard Tim say that the internet should go back to a pure and commerce-free medium. If he did, he should stop selling books online.
I think Tim is just against using the novelty internet as an excuse for stifling innovation and stealing. (including bad patents)
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
What are the chances of getting one of /.'s "patented" interviews of the author of this article or another relatively impartial and knowledgable patent lawyer? I think I'm getting tired of the IANAL comments (including my own) when it comes to the patent issue.
Waltz, nymph, for quick jigs vex Bud.
* Inventor Edward Pechter of Valencia, Calif., for example, patented a "method of bra size determination by direct measurement of the breast." U.S. Patent No. 5,965,809; granted Oct. 12, 1999. In pertinent part, Pechter?s pectoral procedure gauges cup size "by directly measuring with the tape the circumference of each unclothed breast from the beginning of the breast mound at one side laterally to the parasternal area medially."
Measuring success one cup at a time. The Linux Pimp
--It's Pimptastic!--
[Due to laws in six states, we are obligated to put the word clients in quotes.]
A few weeks ago, our patent was challenged by another software company. In their legal brief, they claim to have invented quasi-wire-fraud. Indeed.
Hopefully, we can fight off the lawyers (and the DOJ) and keep the patent that is rightfully ours. But we will need your help.
Zero Click Legal Defense Fund
And it should work especially well with the American Bar Association
Send them this a nice little e-mail telling them that you are blind and their public site is violating the Americans With Disabilities Act, as it won't work with an audio browser.
Trolls throughout history:
Jonathan Swift