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Speak Up On Software Patents And WIPO Rules
Jim Madison writes: "Today, the Department of Commerce's United States Patent and Trademark Office (USPTO) announced that it is soliciting public comment in a Federal Register notice on the databases it uses to find prior art relevant to its examination of software-implemented business method patents. We've discussed this topic ad naseum, so here's an opportunity to make sure that policy-makers understand our perspective. Maybe slashdot mgmt. could even forward the top rated comments to them directly!"
And an unnamed reader points out that tomorrow is the due date for comments on the Interim Report of the Second WIPO Internet Domain Name Process, which "has some crazy suggestions such as reserving domains using pharmaceutical names and bolstering the claims of commercial entities against 'cybersquatters.'"
Oh great, another IP story!
I can't wait until that really funny guy posts... you know, the one who always says "I have patented air and as a result you owe me all royalties.
And then there's his friend, the one who laments the idiocy of the patent office and cites the Amazon 1-Click patent.
There is a well established method for determining what is a truly novel and worthwhile contribution: peer review. The academic journals and conferences do it, and the basic principle is that the best people to evaluate a particular submission are those who actively do work in that area. It operates under the assumption that it is the professional responsibility of people to be willing to review and comment on the work of others. The right to do this could be guaranteed under law just like jury duty is protected from employers retaliation.
:-) By having people who are truly skilled in the specific art evaluating the patent applications, it would be much less likely for truly obvious things to get blocked by trivial patents. The knowledge that the patent applications are going to be subjected to such strict scrutiny would probably be enough to discourage some of the most egregious attempts to patent obvious things. This would make the volume of applications much more manageable as well.
If we must have a patent system, then it seems necessary that the patent applications be peer reviewed by real practicioners and academics in their fields and not just by the underpaid patent clerks at the PTO. They're not all Albert Einstein!
Any additional costs imposed by this system could be recovered in the form of higher patent fees. At the current time, the US patent fees are a small fraction of the attorney fees that most of us have to pay to prepare the patent.
Douglas Adams didn't have live insurance?
Down that path lies madness. On the other hand, the road to hell is paved with melting snowballs.
I read the internet for the articles.
First of all, not all of the dotcoms could be considered "boondoggles." Even the many that were don't really help your point. Where did those "boondoggles" get their money? That's right, from old VCs. Who's the bigger fool?
Second, he's got a point about the people making decisions not having a good understanding of the technology they are making decisions about. They DO often believe what the lobbyists tell them. The lobbyists DO often lie. That is a problem. That's why his suggestion makes some sense.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
There's a difference between software and source code. The code is speech. The program is math.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Well, they requested public comment on the DMCA also, more than once, and did it work? We are dealing with too strong lobbies. Anyhow, if you are American, you better shout. Loud. This is a battle fought in every country. It only happens to be your time of action this time.
If you want to protect your family's financial interests in the event of your unexpected death, you should take out life insurance like everyone else, NOT look to the government to subsidize your family by granting them an unearned copyright monopoly at the public expense.
I would disagree with (4) for a different reason however. If copyrights expired upon an author's death, this would provide an incentive for rival publishers, and targets of copyright infringement lawsuits to murder successful authors.
Or, alternately, zero-click shopping. Here's how it works:
Each item on the screen has a "buy it now" icon next to it. By moving the mouse pointer over the icon, you automatically purchase the item.
The only drawback is that one must be very careful in moving the cursor around the screen.
remeber Walmart-sucks--this-is-not-walmarkt.com is confusingly simular to walmart.com
Grey (Chris Lusena)
Isn't that a little bit like "guilty until proven innocent?" If so, it's certainly -- metaphorically speaking -- a violation of the *spirit* of the Constitution, which was, if I am not mistaken, to *limit* the power of the government.
This little clause seems to go the other way, saying that the government (in the form of the Constitutionally established Patent office) *must* act, unless it can be shown that there is a reason for it *not* to.
At what point did the government move from *allowing* patents to *requiring* them?
DNA is a Turing machine. You, however, being dynamic and emergent, are not.
You are confusing the map and the territory. Software is *not* just "textual representation of numbers and mathematical formulas*, it is the *action* which *operates utilizing* the numbers and the mathematical formulas. By your definition, "thinking" is equivalent to "sucking your thumb" since they both use the action of the brain to accomplish a task. Clearly, to both you and me, "internal cogitation" is not equal to "external thumb wetting". Unless you externalize what you are thinking (via voice, say), it *appears* that the external action (hardware) accomplishes something and the internal action (software) does not. Thus, by your definition, thumb-sucking would be patentable and thinking would not be. But, as humans, we know that the output of thought is *just as important* as the wetting of thumbs, so your idea does not hold as much water as your thumb might. 8^D
Okay, I've just read what I wrote (mmm...reading...software...) and I guess it might be confusing if you can't make the telelogical distinction. Let me try another tack.
Think of software as being a machine built out of information. So is a novel. But software is a *special kind* of a machine, because it acts and has a telelogical (er, "tool-using") effect in the world that the novel does not. All the novels in the world piled up one on top of the other are just a pile of unliving paper and cannot cause as much action as a tiny software machine that can take the input of "2+2" and give you back the output of "4". Do you see the difference?
[This gets us around the 'software is patentable *because* it can be turned into hardware' argument. Unfortunately, this argument can also be used to justify the 'therefore DNA is patentable because it *does stuff*' argument. However, in my view, DNA is *specifically NOT patentable* because it is pre-existing in nature and hence represents Nature's prior art. The mere re-combination of pre-existing patterns does not, to my view, necessarily qualify as 'something new'. If that were so, someone would have already tried to patent "sex" -- and succeeded. But I digress...]
So, to conclude, software, to the unknowing, simply looks like a stream of letters and numbers -- hence the idea that, since it may be an *original* stream, that it is *at least* free speech. But software is *special* in that it also, situated in the proper hardware context, can *do* things (i.e. achieve a telelogical result independent of its creator). I hope that I have made myself clear; to wit, used the telelogical function of language by combining pre-existing patterns to cause a meaningful result in your brain independent of myself -- *without* therefore asserting that I have a right to patent "language". Yes?
DNA is a Turing machine. You, however, being dynamic and emergent, are not.
(2) Copyright must belong to a person, not a corp. and must not be sellable or in any way transferrable
(4) Death of the author == instant relinquishment.
This follows logically from point 2, but it could have unexpected consquences. e.g. A corp might decide that if they can't own a copyright then making it public domain, through murder, is an alternative.
Period. Without passing upon the merits of your solution, they are irrelevant to the question at hand. Entirely.
The USPTO has no authority to change the term of the patents they issue. None. That is set forth in the Patent Act, and is not subject to interpretation by the USPTO.
Godwin's law, indeed. Remarks such as that --including the insistance that it is "legitimate" to suggest the USPTO compliance with the United States Patent Act somehow corresponds or can even be related to the Holocaust-- evidence the absence of seriousness with which some people treat the argument.
Such offensive comments, and mindless adherence to a conclusion regardless of the merits, only lead to further marginalization of the anti-patent movement. You should be ashamed of yourself.
. . . any response to a request for comments about databases addressing the subject matter for patentability would be taken seriously at all?
Look, the USPTO has absolutely no say at all as to the scope of patentable subject matter. None, nada bupkis. Zero.
The United States Patent Act provides in Sections 101, 102 and 103 the criteria for patentability, and the USPTO has no authority to deviate from that. Not one inch. Nor are they given authority to interpret the statutes independently of the United States Judiciary.
The only time they deviated from statutory requirements recently, regarding examination of means plus function language, the Commissioner had his a** handed to him in an unequivocal swat on the derriere.
So, give these guys a break. They don't decide whether or not to examine software patents -- their only rule they applied (it was a no software patent rule!) was held improper in the Supreme Court case of Diamond v. Diehr.
The Supreme Court and Federal Circuit have spoken, and theirs is the authoritative decision. The only way they can be overruled is by an act of Congress.
So leave these poor bureaucrats alone. Your remarks about the propriety of granting software patents will AND SHOULD fall on deaf ears there.
On the other hand, if you were inclined to do something usful or constructive, you could help them out by proposing decent databases from which to examine present applications, and thereby improving the quality of examination.
Professors and students from separate Universities would be less biased then having hordes of corporate drones come up with a solution. Sure you will find many people who are biased, but I would rather see a slew of business, ethics, and legal students and Professors resolve this problem than a slew of IBM, MickeySoft, Sun employees.
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The answer to that is relatively old, at least with respect to chemicals. Just because something would be interesting to study, does not make it patentable. I would expect the patent office to adhere to that answer until forcibly dislodged.
There have been many patents that have passed on these notions as it stands. My argument would be to keep that in place for those who have ideas, but those who possibly don't have the resources to test it, nor the current need to test it.
Why should big corporations solely be allowed to hold a patent if they have the resources to show proof of a concept, but say the little person @ home with an idea, be restricted because he cannot show `just cause' for his patent?
Patents, remember were designed to provide a framework to continually go forward in technology, not something you one creates for the sake of placing their arms around it and stating "Give me one million dollars for my idea or I'll sue."
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The law requires that a patent be granted for an invention unless USPTO can establish, typically based on prior art references, that the invention is not new or that it is obvious when viewed in the context of what is already known in the technology. Additionally, the invention must have a concrete, tangible and useful result, and how to make and use the invention must be disclosed.
What if someone were to discover something they thought would be relative towards future improvements in technology, would they be denied a patent should they not be able to demonstrate its use?
Sorry to say but I see the office is doing one of a few things, 1) trying to avoid doing the proper jobs they're already paid to do 2) looking to pass blame should they be criticized for something in the future. Could be they just don't understand technology enough, and with all the crappy patent suits around their looking around for an answer which could be a bad reason, for reasons following.
Suppose programmers at IBM set out to comment on things which would typically affect the scale to IBM's interest. Wouldn't be fair now would it. Or if it were Microsoft or someone other company, contractor. Personally I think what they should do is have an educational institution of Professors, and students come up with a resolution to their problems, on both the technological side of things, as well as a legal aspect of it to avoid future scrutiny.
Leaving it up to the community in my eyes is a bad idea, since humans being humans will generally tend to have biased views whether they realize it or not.
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Not sure how you don't understand? ... Bingo.
Here's an easy analogy:
When was the last time an author's book was protected under Free Speech? That's right, they all are.
How about the last time an author's novel was patented
-Mith
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The problem is not that there is a lack of understanding about technology or the internet, but rather a lack of a system that is effective in consulting experts in whatever field is necessary. If you bring in experts for internet-related matters, you leave out experts in chemistry, physics, engineers, the medical field, biology, etc. As science advances, we need to have a system in place that embraces these new developments as they come out, not after they have wreaked complete havoc on our processes with their archaic way of dealing with the relics of the past.
This from the only guy whose web site is more outdated than Linus's
Got Rhinos?
What exactly is "our" perspective? I'd be willing to bet that your opinion and mine differ greatly.
has some crazy suggestions such as reserving domains using pharmaceutical names and bolstering the claims of commercial entities against 'cybersquatters.Am I the only person who doesn't like the idea of some script kiddie going in and reserving every trademarked name as soon as the new TLDs arrive? "First come, first served" is a terrible way to run anything, because some punk kid gets everything in the first fifteen minutes and then ransoms them. Yeah, it's real funny when it's Microsoft or Verizon, but what if it was VA Linux?
Got Rhinos?
I demand that you stop using the word "proactive".
Got Rhinos?
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It's clear that any government office in the US is managed by older men and women, most of which probably don't know much more than how to turn a computer on and get email. These are the people making decisions that affect us technologically savvy people and our jobs. Lobbyists tell them what they want to know, and as we've seen with RIAA and other large groups, they get their way even if they're not telling the truth.
What the government needs, including USPTO, is people that specifically deal with technology - people that understand this stuff like many of the fine people that use Slashdot everyday. We can't know everything about all the patents for technology, but we might have better insight as where to start.
I've only used the USPTO databases (rather, the public accessible databases) a few times - just for curiosity's sake - but I know that the information dealing with technology can be gotten. You just have to know what you're looking for. Joe Smith who uses AOL might not understand the technology behind the patent pending technology, so he's not going to know where to start. Now, CowboyNeal sees the technology and investigates it further (or perhaps already knows about it because of the fast-paced Slashdot News service) and know exactly (or close to) where to start looking.
This isn't a be-all, end-all solution, but it's something the government definitely needs to think about as a whole. We need people that understand technology making policy on technology lest we patent and put a stop to everything technological so that no one can innovate ideas based on current innovations or use technology to better this world (like multilingual DNS).
I just ran across this story, which pretty much lays out the debate in the biotech area.
Having a combined 10 patents and patents pending, I think I have some perspective on this.
The best change to the prior-art system would be to open up potential patents for examination by the public before they are granted, and give some limited public comment time for identification of prior art in the public domain. (Please note, prior art not in the public domain is a whole different kettle of fish, I won't go into here.)
That said, such a change in the system would certainly exceed the authority of the USPO to do on its own. It would have to be done as an act of Congress.
Within the limited scope of just database management issues, I think the USPO could reasonably argue that Web Search Engines are extremely useful in finding prior art, and that at the very least, these should be consulted prior to issuing any patent.
There are actually a host of other data gathering mechanisms that aren't http based that the USPO could also use as data sources for prior art. I think these could be adopted within the normal bounds of federal administrative guidelines.
There was some discussion about the patentability of software - at the time (1995?) software patents weren't easy to come by. (At least that's what it seemed like - I was the only non-lawyer there, and I'm still a programmer.)
The argument posited by a young attorney there basically was as follows:
Software is basically programmable hardware - i.e., anything that is stored as software could have also been burned directly into the circuitry of a computer. Circuitry and computer hardware -is- patentable; hence, any person that wanted to patent software could in principle place it into the circuitry in the hardware. The fact that a program is stored on magnetic disks is simply a convenience for updating the software.
So his argument basically came down to the notion that if you could patent hardware that did the same thing as software, patenting software makes sense for everyone.
Interestingly, noone at the conference had any questions after his presentation. I don't think anyone had even considered the ramifications of what he was talking about - or even cared back then.
I'd be interested in counterarguments to this line of reasoning . . .
You know, if you're going to simply cut and paste your previous rants, you might at least use some cute fake html tags.
But, nitpicking aside, you're "Intelectual Property is bunk" position still fails to address the obvious question of what will motivate organisations such as drug companies to develop new treatments if they cannot recover costs, let alone make a profit.
And as someone said before "Since you can't put a fence around your bank balance, does that mean that I can have it?"
Man I hope I didn't just waste my time feeding a troll...
. --- If you're looking for free e-mail you won't find it here! http://www.noemailhere.com
I would have to disagree with this part. If I publish a book and then die the next day, my family should benifit from the work I did...
MG
Randomly distributing Karma whenever possible.
Okay, I'm generally pretty cynical, but there was a UK request for comments six or so months ago. I spent a few minutes filling out thier questionaire and, eventually, their patent office issued their official recomendation and my name was on the list of contributers. Pretty cool.
Of course, there are differences.
I guess if I get around to commenting on this I'd push for a database that allowed the very least amound of flexibility in how a business method patent could be interpreted. In other words, don't let companies fish for related applications for thier (IMHO) bogus business applications.
Second, make sure that the database links to whatever databases already exist in the patent office so that any application that comes through that is basically a copy of some "real world" patent but has the words "computer, internet, wireless, or web" attached to it is immediatly tossed out the window.
Waltz, nymph, for quick jigs vex Bud.
Since all software is basically textual representation of numbers and mathmatical formulas, wouldn't software patents be equivalent of patenting Math so that nobody could use formulas without paying royalties?
Just thinking outloud again.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
Add a Update to this posting and invite the following:
Users can submit a comment, as AC or under there normal account, with a Subject of "petition"
Then each user adds there comments they wish to be included.
Each user signs his/her name && address (city/province/country would suffice). Possibly including some credentials (education/experience/knowledge/position-at-work)
Then our faithful editors will do a "select body from comments where topic = '%this_story%" and subject = 'petition'" (or somesuch). Our Editor friends can then print out these comments, collectively write a thesis outlining the major points against the USPTO land grab, a description of Slashdot (its purpose/history/reputation/etc). Append our 'petition' comments and fire it off to the USPTO..
I know were not supposed to take this site too seriously, but all 'preaching to the choir' that goes on here I believe is not very productive. This could be an opportunity for Slashdot's forums to actually try and amount to something - other than our amusement. Not everyone will take the time to write a major article and mail it to the USPTO - we know that... but based on the responses that this article will likely illicit, maybe we can get the Slashdot editors to agree to do something constructive on our behalf...
I will reply to this message below as an example to be included.
I'm under the impression that the government stopped caring about patents a long time ago.
You bet your ass they care about the PTO! It's one of the few governemnt offices that generates it's own profits through fees accrued from patent prosecution. 75% of those fees are taken by the Govenrment for other things. That's half the reason the PTO is in the straits it's in because they could be using that money to get more and better educated examiners, but it's funnelled into other programs by the Powers-That-Be (TM).
The other reason the PTO is so backward on software patents is because to be an Examiner, you have to have a degree in one or more of a range of 30-something "hard sciences". Computer Engineering qualifies. Computer Programming does not which means they have very (if any) few people who know anything about programming examining patents.
"...heroic hearts, made weak by time and fate, but strong in will, to strive, to seek, to find, and not to yield."
If the USPTO improved their research capability with regard to prior art, what would all those IP lawyers do with all the free time they'll suddenly have? Once all this input is hathered by the USPTO, and they make recommendations to improve their system, they'll draft a budget with a line item for making the recommended improvements. Mark My words, Lobyists for the IP Lawyers will be out in force trying to get the budget cut, vecause after all, if they could do adequite research into Prior Art, The current torrent of IP lawsuits will be reduced to a trickle. What ever would the lawyers to with themselves?
Here's hopeing they jump out of a top floor window.
--CTH
---
--Got Lists? | Top 95 Star Wars Line
OK,
- B
--
http://www.bradheintz.com/
- updated
Nice to see the USPTO making an effort to improve things. I for one will be submitting my comments ASAP. Here's hoping they will a) listen and b) take proactive steps to improve a process we all know is broken.
Top Most Bizarre/Disturbing Error Messages
To quote the attorney that Slashdot interviewed recently:
The amount of protection given particular speech depends upon it's content. While some speech can easily be categorized as political, commercial, verbal acts or otherwise, First Amendment analysis often looks at the speech's expressiveness as opposed to its functionality to determine the corresponding level of protection. Purely expressive speech regarding public affairs, politics and government (think "F--- the draft!" on the back of a jacket worn by an individual with no intent to cause imminent lawlessness) gets heightened First Amendment protection, while purely functional speech (think "Do you have any drugs?" to an undercover police officer or "I accept" to a party which has offered a contract) gets little First Amendment protection. This leaves speech which is both expressive and functional, such as commercial speech (think "Eat at Joe's!"), lying somewhere in the middle. Further, indecent speech (think adult porn) gets very little protection while obscene speech (think child porn) gets no protection whatsoever.
Since source code is by its nature functional, it seems unlikely that any court would ever find that it is purely expressive. However, the courts which have addressed the issue have concluded that source code can also be expressive. In fact, in 1999 a federal court in California wrote, "While source code can be easily compiled into object code by a user, ignoring the distinction between source and object code obscures the important fact that source code is not meant solely for the computer, but is rather written in a language intended also for human analysis and understanding." Therefore, there is no universal answer to the question of how much First Amendment protection applies to source code. Rather, the issue depends in part on the particular expressive versus functional nature of the source code in question.
Either some tech-savvy people should be assigned to these review these patent applications, or we should have a Geek Jury Duty that randomly chooses professional techies to do reviews for either prior art or just plain idiocy (i.e. one click patent), and force them to swear to secrecy lest they lost all bandwidth for life.
It looks like Amazon already patented using databases to hold examples of prior art, and Rambus has, actually, already patented the U.S. Patent Office.
I envision many IP lawsuits for this story as a result.
Think about what you've proposed. I think this is what will happen:
I don't think that's what I want to see.
Software is nothing more than fancy math, really. And the USPTO established long ago that math could not be patented. The first "software" patent was issued on a chemical manufacturing process that included a software program on a computer to control the process.
Unfortunately, the validity of software patents was never successfully challenged, and here we sit with morons like Amazon patenting one-click shopping. And the USPTO thinks that if we can somehow find a better database to prove that someone else had one-click first, they'll somehow improve?
Here's a database suggestion for them: Google.