Parties Behind Eolas Patent Reexam Revealed

theodp writes "While news accounts credited Tim Berners-Lee's mighty pen with triggering the USPTO reexam of the Eolas plug-in patent that could negate a $520+ million judgment against Microsoft, newly released USPTO interview notes suggest the reexam may owe more to an alliance of tech giants who appear to have quietly advanced the same arguments to the USPTO weeks prior to Berners-Lee." See also some previous coverage of the Eolas patent circus, and more below about the USPTO reexam.

theodp continues "According to a 4-27 Interview Summary, the USPTO presented Eolas with a 10-14 letter signed by in-house counsel from Microsoft, AOL and Macromedia, a 10-15 letter from Adobe, and a 10-22 letter from the law firm of Sidley Austin (aka Microsoft's lawyers) in connection with its proposed rejection of Eolas' patent claims. All predated the 10-24 letter from the W3C's counsel as well as Berners-Lee's widely-publicized 10-28 letter, which seems unlikely to have prompted the USPTO's detailed 10-30 Reexam Order. The W3C has repeatedly had no comment when asked if the 'newly cited art' provided in its 10-24 filing had already been supplied earlier to the USPTO by others. UPDATE: In response, the W3C's Danny Weitzner points out that the preceding words are mine and should not be confused with those of a distinguished journalist."

Comments

What, again?

[agoatley]

What, you mean that there's more than one patent the USPTO has wrongly green-lighted?
-Ashton

Re:What, again?

[tambo]

I'm a patent attorney who plans to build a career out of prosecuting software patents. I'm also halfway through earning an MCIS and several MCP certifications.

So I think that I'm well-positioned to state that awful software patents are bad for everyone - including the patentee.

Eolas is only the latest example in this stream of patents that should never have been filed, let alone examined and issued. Microsoft's double-click patent, Amazon's 1-Click patent, Yahoo's patent for an Internet search engine - these are not only completely unenforceable, but serve as albatrosses to the patentees attempting to assert them.

I blame these patents on four factors:

• USPTO: Horrific ineptitude in examining even the most obviously (in the conventional sense) non-novel inventions.
• Patentees: A fundamental misunderstanding of the purpose of acquiring a patent, and the ramifications (legal, business, and PR) of asserting it against competitors.
• Patent prosecutors: A lack of technical skill in software (far too many software patents are prosecuted by EEs who view software as just another circuit* - with poor results), and/or a reprehensible willingness to prosecute such patents. (Indeed, one wonders how filing a patent on "double-clicking application buttons" complies with the patent attorney's ethical obligation of candor before the USPTO.)
• The simple fact that the field of software patents, in reality, is only six years old - the landmark court ruling that compelled the USPTO to issue software patents en masse issued in 1998. The USPTO has not had the time or resources to adjust, e.g., to hire an army of examiners skilled in the software arts and to build up a technical reference library.

While these patents are a collective debacle for the USPTO, the premise that software should constitute patentable subject matter is generally well-settled among the legal community (though, of course, the /. community has its own views.) I present the textbook example of an elegant, useful software invention worthy of patent protection: RSA - the public-key system that permits relatively effortless secured communication via one-way encryption.

There is a silver lining to this story. If you go back 30-40 years, you will see a host of complaints about these new-fangled patents on biotechnology - many claims that allowing inventors to patent novel organisms, gene sequences, proteins, and research techniques posed a horrific threat to biotech research and product development. These claims assumed the same basis as many of today's complaints against software patents: examiners were hopelessly lacking in technical skill in these areas; the subject matter qualitatively differed from conventionally patentable fields of art; a 17-year monopoly (pre-1995) represented a calamity to rapidly-evolving technology and typically-cooperative research. History has shown that those fears were hugely outweighed by the overall benefits of biotech patents - as evidenced by a thousand, wonderfully effective therapies and drugs (many of which, like prozak, are now expired, transferring the technology to the public domain.) Biotechnology and medicine are experiencing a huge upsurge in the pace of technical development - thanks in large measure to the willingness of corporations to invest in (potentially patentable) biotech R&D.

I posit that the software arts will experience a similar upsurge in innovation in short order, directly related to the allowance of software patents. The boondoggles that make for provocative /. headlines are the regrettable consequence of an unplanned transition, which time will remedy. These awful patents will expire - and, indeed, will serve as documented prior art for future corps of examiners to assert against future idiot patentees. It will simply take time to gear up the system.

- David Stein

*

Re:What, again?

[Anonymous Coward]

I blame these patents on four factors

How about factor #5: patent attorneys who help file bad patents to collect their fee, rather than talking their clients out of a bad idea (and thus making less money).

too often, such inventions are claimed as [hardware + software]

It's my understanding that, at least historically, this was a requirement of the USPTO. You could not patent a naked, abstract, algorithm or method. It had to be embodied in some particular device, hearkening back to the days when you had to submit a working model of your invention to the patent examiner. Thus, patents were written to apply to whole system, rather than just the software. And, as you know, the legal system is very conservative. Once you find the textual formula that results in successfully defended patents, no one ever dares change it.

Re:What, again?

[Alsee]

the premise that software should constitute patentable subject matter is generally well-settled among the legal community

I don't know just how "well-settled" that is in the US legal community, but it certainly is NOT true outside the US. In particular the EU Parliment is well-settled that software is not patentable subject matter, and that the European Patent Convention explicitly declares that software is not patentable subject matter. This would imply that any software patents granted thus far in Europe have been improperly issued and are invalid.

Yes, the European Council is pushing to validate existing and future software software patents, but as I understand it the Parliment gets the final vote. (Anyone more knowledgable in EU politics is welcome to correct me or elaborate on the process.) Very few software patent cases have been brought to court, but from what I hear they have generally been tossed out as invalid, particularly in Germany.

I present the textbook example of an elegant, useful software invention worthy of patent protection: RSA - the public-key system that permits relatively effortless secured communication via one-way encryption.

Yes. A perfect textbook example of a patent on pure math. Utterly absurd. What next? A patent on doing a basic integral? Oh wait, Diamond v. Diehr was the inital Software Patent upheld by the Supreme Court. It was a patent on preforming a basic integration of heat over time. A patent on a simple equation to calculate time.

Prior to that ruling the US Patent Office consistantly rejected all efforts to patent computer programs on the grounds that programs are mathematical techniques, therefore not patentable. The patent office's own commision said "A series of instructions which control or condition the operation of a data processing machine, generally referred to as a program, shall not be considered patentable regardless of whether the program is claimed as (a) an article, (b) a process described in terms of the operations penformed by a machine pursuant to a program, or (c) one or more machine configurations established by a program.

The US assistant Attorney General had said "The practical results of extending patent monopolies into this area would be to inhibit interchange of information and techniques, to restrain innovation, efficiency and competitive vigor in the growing computer industry, and to raise barriers to new entry. These anti-competitive consequences would result without giving the public, as consideration for the patent grant, any `inventive' contribution to the progress of the arts and sciences."

The initial Diamond v. Diehr ruling REVERSED settled US policy against software patents. The Patent Office then threw the doors wide open. The US Supreme Court simply goofed in Diamond v. Diehr. They thought they were upholding a patent on a physical manufacturing process. There was absolutely nothing new or inventive in the physical manufacturing process, the supposed "invention" was purely in math.

Further note that the RSA patent - and ANY software patent for that matter - can be implemented through PURE THOUGHT. It is possible to preform the RSA exponention just by thinking the calculations in your head. Using a computer merely makes it easier, faster, and more reliable to preform those basic math calculations. There is absolutely nothing new, "inventive", or non-obvious in using an ordinary computer to preform basic math calculations faster and more reliably.

It is just absurd to suggest that a person stitting motionless and just *thinking* could violate the RSA patent (or any other software patent). And it is also absurd to suggest that the obvious step of using an abacus, a slide-rule, a calculator, or an ordinary computer to speed up the exact the same calculations is somehow new, inventive, non-obvious, or patentable. If you want to defend software patents then this is the ke

Re:What, again?

[Alsee]

the premise that software should constitute patentable subject matter is generally well-settled among the legal community

Nonsense. For starters that is false outside the US. Secondly, the only thing that is "well-settled" is that the US has recently REVERSED it's position and has been issuing and upholding such patents.

In particular the EU Parliment is well-settled that software is not patentable subject matter, and that the European Patent Convention explicitly declares that software is not patentable subject matter. This would imply that any software patents granted thus far in Europe have been improperly issued and are worthless.

Yes, the European Council is pushing to legitimize existing and future software software patents, but as I understand it the Parliment gets the final vote. (Anyone more knowledgable in EU politics is welcome to correct me or elaborate on the process.) Very few software patent cases have been brought to court, but from what I hear they have generally been tossed out as invalid, particularly in Germany.

I present the textbook example of an elegant, useful software invention worthy of patent protection: RSA - the public-key system that permits relatively effortless secured communication via one-way encryption.

Yes. A perfect textbook example of a patent on pure math. Utterly absurd. What next? A patent on doing a basic integral? Oh wait, that was the initial Software patent upheld by the US Supreme Court in Diamond v. Diehr. It was a patent on preforming a basic integral of heat over time. An absolutely trivial math equation if you are the least bit familiar with calculus, integrating heat over time.

Prior to that ruling it was well-settled that the US Patent Office rejected all efforts to patent computer programs on the grounds that programs are mathematical techniques and not patentable. The patent office's own commision said "A series of instructions which control or condition the operation of a data processing machine, generally referred to as a program, shall not be considered patentable regardless of whether the program is claimed as (a) an article, (b) a process described in terms of the operations penformed by a machine pursuant to a program, or (c) one or more machine configurations established by a program."

The US assistant Attorney General said "The practical results of extending patent monopolies into this area would be to inhibit interchange of information and techniques, to restrain innovation, efficiency and competitive vigor in the growing computer industry, and to raise barriers to new entry. These anti-competitive consequences would result without giving the public, as consideration for the patent grant, any `inventive' contribution to the progress of the arts and sciences."

The initial Diamond v. Diehr ruling REVERSED settled US policy against software patents. The Patent Office threw the doors wide open to software patents based on that ruling. The US Supreme Court simply goofed in that case. They thought they were upholding a patent on a physical manufacturing process. There was absolutely nothing new or inventive in the physical manufacturing process, the supposed "invention" was purely in math.

Further note that the RSA patent - and ANY software patent for that matter - can be implemented through PURE THOUGHT. It is possible to preform the RSA exponention just by thinking the calculations in your head. Using a computer merely makes it easier, faster, and more reliable to preform those basic math calculations. There is absolutely nothing new, "inventive", or non-obvious in using an ordinary computer to preform basic math calculations faster and more reliably.

It is just absurd to suggest that a person stitting motionless and just *thinking* could violate the RSA patent (or any other software patent). And it is also absurd to suggest that the obvious step of using an abacus, a slide-rule, a calcula

Re:What, again?

[Anonymous Coward]

two words: prior art.

Re:What, again?

[tambo]

How about factor #5: patent attorneys who help file bad patents to collect their fee, rather than talking their clients out of a bad idea (and thus making less money).

Yes, I wonder about the ethical implications of patent attorneys filing bogus patents like this, as it strongly appears to violate their ethical obligations (both to the client, and to the USPTO.)

It's my understanding that, at least historically, this was a requirement of the USPTO. You could not patent a naked, abstract, algorithm or method.

True, but that requirement was pointedly confronted and dismissed by State Street Bank (the case leading to the 1998 ruling that the USPTO must issue software patents.) Previously, in order to stem a flood of software patent apps that couldn't be handled effecively, the USPTO and federal courts conjured up imaginary reasons for denying them. For instance, the patent had to have a "real-world impact" or rely on "real-world inputs."

All of these requirements - including the embodiment requirement - are anachronisms. They should not appear in any software patent application filed in the past five years.

- David Stein

Re:What, again?

[Jtheletter]

Bravo, although I do appreciate - and certainly take advantage of - the "armchair-expert" style of debate that Slashdot affords us, it's extremely refreshing to get the viewpoint of someone who is actually deeply involved in a field relevant to a posting. Hopefully we will be hearing more of your insight into the legal side of patents in future article discussions.

Re:What, again?

[tambo]

Nonsense. For starters that is false outside the US.

...but becoming less so as time goes by. I recall seeing an article here on /. a week or two ago with news of the EU's growing inclination to allow software patents. (But you're correct - I mis-wrote by not specifying the U.S. legal community. Sorry 'bout that.)

Yes. A perfect textbook example of a patent on pure math. Utterly absurd.

This is a very common myth. Notice that the claims (which, as you know, completely define the scope of the patent) read:

1. A cryptographic communications system comprising: ...

This is not a claim to "pure math" - this is not, "A method of adding two digits, comprising..." This is a claim to an element of a communications system, which ordinarily comprises two people who are each using a whole lot of equipment tied to a huge communications network.

Could you reason through a 128-bit encryption scheme? Sure, much like you could build yourself a 747 all by yourself, in your backyard, with a wrench and a whole lot of trips to Home Depot, and infringe a bunch of Boeing's patents. Fantastic, unrealistic examples are not a sound basis for broad legal precedent.

It is just absurd to suggest that a person stitting motionless and just *thinking* could violate the RSA patent (or any other software patent).

Good luck to the patentee who tries to sue you for infringing their patent in your mind. Can you imagine how that complaint would read? "Mr. Jones violated our patented process by thinking through the steps..."

Do you honestly envision this scenario ever arising? Ever? Patents are tools of reality, and, in virtually every case, are asserted only when the alleged infringement seriously harms one's business. I fail to imagine how your wish to think up the RSA encryption for your message would prompt anyone to wave their Letters Patent in your general di-rection.

Moreover: There is USPTO precedent to suggest that your fears are unfounded. For a short while, the USPTO issued patents for medical techniques (fictitious example: "the process of diagnosing appendicitis by palpating the abdomen and observing pain response.") Patentees actually attemped to assert these patents against competing physicians. In response, the USPTO issued an exception to the enforcement rules: you can still get a medical technique patent, if you really want one... but you can't enforce it against any medical practitioner. Medical practitioners have an unlimited right to use medical techniques, whether or not patented.

So if the impossible happens, and if patentees prove to be idiotic enough to assert "pure math" claims against mathematicians, the USPTO will explicitly carve out an exception.

Every peice of software is literally nothing more than a fancy math function.

Your rationale applies more broadly to all "process" patents. Consider that you can patent a hammer, and also - as a separate invention - the process of using a hammer to pound in a nail. What is a "process?" How is a "process" an invention? It's just a thought to use something to reach an intended goal. There is nothing truly tangible about a process - it is an event... much like encrypting a message with a private key.

Yet, process patents have been part of the U.S. patent system since its first incarnation. Stopping someone from conducting your patented process is exactly what's happening with a software patent. It's just a different kind of technical process.

the Association Of Computing Machinery (programmers and computer scientists) found about 90% opposition to software patents.

Heh. Yes, be sure you don't ask their employers when conducting a survey like this, or anyone with true business experience. Be sure you just ask the scientists who write software, without any knowledge or interest regarding its commercial uses.

Similarly, I wonder how doctor

Re:What, again?

[Alsee]

the EU's growing inclination to allow software patents

It appears the growth is in the opposite direction. At first Parliment was all set to pass the Council's software patent directive. Once the issue actually faced debate the Parliment passed amendments reversing the text of the directive to state that software is not and cannot be an invention.

This is a very common myth. Notice that the claims (which, as you know, completely define the scope of the patent) read:

Yes, I am aware that it's all about the claims. I have (unfortunately) been reading a number of US software patents in the last few years.

Perhaps I'm an ignorant programmer. Perhaps I do not know how to read patent claims. Perhaps I am confused. If so then please explain my error to me:

We are talking about patent 4,218,582, claim 1. Explain how claim 1 is NOT a patent on two people (the transmitter and receiver) sitting in their offices off a common hallway (an insecure communication channel), thinking certain steps and shouting back and forth.

Either I am a moron or the US patent office is granting patents on MENTAL PROCESSES.

Perhaps it qualifies as a "novel" and "non-obvious" by patent standards, but even so it is still nothing more than a novel and non-obvious sequence of thoughts.

Could you reason through a 128-bit encryption scheme?

I don't think you realize that programmers routinely run software purely mentally! Practically ALL software gets run purely mentally at one point or another! It's a normal part of the coding and debugging processes. I could easily run 128 bit encryption, though I'd need pencil and paper to artificially enhance my short-term memory capacity.

Due to the DMCA situation I have seriously been thinking about training to do DeCSS (40 bit decryption) purely mentally, without even using pencil and paper. I checked the code, the math is trivial and the memory requirements are not excessive. It would make an awesome live demonstration in court to stare at an encrypted E-book and slowly circumvent the DRM and illegally read the book. You can violate the DMCA and commit circumvention crime and illegally access content through pure thought. Go ahead, imprison me for thinking prohibited thoughts.

It is absurd for any law to create thought crime, whether it's the DMCA or patent law.

It's disgusting the way the US is going around and (economicaly) threatening/extorting other countries into reversing their rules that expliticly prohibit patents on math. For example "Jordan shall take all steps necessary to clarify that the exclusion from patent protection of 'mathematical methods' in Article 4(B) of Jordan's Patent Law does not include such 'methods' as business methods or computer-related inventions." Such a demand is unnecessary except where you are actually trying to patent a mathematical method.

Do you honestly envision this scenario ever arising?

The very fact that it is POSSIBLE for thinking to be a patent infringment shows that allowing patents on math is fundamentally broken. However I really would love to intentially provoke exactly that sort of test case to get software patents thrown out.

Your rationale applies more broadly to all "process" patents.

False.

Can you violate a process patent for extracting purified metal from raw ore by THINKING? Can you violate a process patent for synthesizing a drug by THINKING?

No, you can't.

I am not objecting to physical process patents. I am objecting to mental process patents.

You invent physical objects and physical processes. EXPANDING patents to cover a sequence of thoughts is absurd and broken. The fact that you can make the obvious step of using a computer t

Re:What, again?

[Alsee]

Weird, for some reason my attempt to link to patent 4,218,582 seems to be returning patent 4,351,982. Try this link instead.

Worst case if that fails too, use the search page and put 4,218,582 in term 1 and set feild 1 to Patent Number then click search.

-

Ken Brown replies

[shoppa]

See, I told you there was no way that a single guy, in just six months, could write an original operating system (backspace xxxxxxxxx)letter to the US patent office. He clearly pirated his letter from Microsoft's letter! See, Microsft came first! And Linux used the same alphabet as Microsft did! And Microsoft has thousands of lawyers, so how could a single guy do the same thing! In, mind you, just six months!

Re:Ken Brown replies

[gregfortune]

Huh?

This is the *little* guy against the giant and this time the little guy is looking for a free handout. I don't use MS products, but we need to back MS on this one. As has already been said, this is a threat to all of us... Even the dead OS, *BDS ;o)

Seriously, with submarine patents a high risk/threat to any successful software company, this won't be a fun field to work in. I know that was probably a joke, but it still rubs me the wrong way. Save the corny Microsoft jokes for when they deserve them...

Re:Ken Brown replies

[Andy_R]

Given the way the US justice system works, the only way to get patent reform is if a really big company puts a lot of money into it, otherwise we'll be stuck using 17 year-old (or is it 20 in the US now?) technology from now on, so MS getting mixed up in this is a good thing

This is good but...

[LibrePensador]

If this kind of web-neighbor due diligence was carried out more often, we would not see all these spurious software patents being issued.

Why don't we create an industry funded board whose job is to make sure that silly software patents are no longer awarded? Oh wait... The industry only dislikes SOME software patents, while anyone who cares to look will see that all software patents threaten innovation and are largely anti-competitive because they rig the game in favor of big corporations.

Unfortunately, software patents have become the last hurdle that the proprietary world can throw at the free software movement.

Moglen and Lessig are both very persuasive (If you got a bit of free time, read "Free Culture" by the latter) I hope that upon hearing their arguments European Commission will be wise enough to reconsider its position on software patents.

Re:This is good but...

[torpor]

Why don't we create an industry funded board whose job is to make sure that silly software patents are no longer awarded

I asked the same question a few days ago on another /. story about patents, and was referred to PubPat...

If only people knew more about these things, and cared about them. As a developer, I despise the fact that the obvious things that I may design/develop to assist my fellow man in using my software have become 'owned' by someone else in order that they may profit.

Patents suck. Period.

Re:This is good but...

[Groote Ka]

The industry only dislikes SOME software patents, while anyone who cares to look will see that all software patents threaten innovation and are largely anti-competitive because they rig the game in favor of big corporations.

I do not entirely agree with you. Minor companies can play that game as well and perhaps even better. When a minor company has a patent on a groundbreaking (or little less) invention, it can be a major pain in the *rse of a big company(with a proper sponsoring for the small one, ok), especially when that small company has no product portfolio to which the big company can assert its patents.

Just think about Intertrust vs. Microsoft (settled out of court).

With respect to the part of your story with which I might (yeah, I'm a legal techie) agree: When major companies block the small ones from sales + development of certain software and bind them with strangling contracts (give us all your IP or we will break your back with our IP), yes, patents are not very good things and will surely suffocate innovation.

But at long as licenses are available under reasonable and non-discriminatory (RAND) terms, I do not see any problems.

Re:This is good but...

[gregfortune]

Yep, I'm pretty sure Microsoft has the upper hand in this one... Or maybe they are the little guy? And Eolas is the huge corporation?

Microsoft *will* use its patent arsenal against Linux when the need arises, but right now they are on our side fighting *against* patents. If we can help them destroy software patents, all the better.

Re:This is good but...

[kcbrown]

Moglen and Lessig are both very persuasive (If you got a bit of free time, read "Free Culture" by the latter) I hope that upon hearing their arguments European Commission will be wise enough to reconsider its position on software patents.

No amount of eloquence or quality of argument is as persuasive as a sufficiently large wad of cash (even if said wad of cash is used indirectly). This is why the EU Commission will, in the end, not listen to Moglen and Lessig, and will instead listen to Microsoft and the other multinational corporations.

Re:This is good but...

[Halo1]

I do not entirely agree with you. Minor companies can play that game as well and perhaps even better. When a minor company has a patent on a groundbreaking (or little less) invention, it can be a major pain in the *rse of a big company(with a proper sponsoring for the small one, ok), especially when that small company has no product portfolio to which the big company can assert its patents.

Not just especially, but only if the small company has no product portfolio. In other words, if the small company is a patent parasite, which contributes virtually nothing useful to society (name one software company that turns to the patent database to find new ideas for stuff to put in its applications)...

All it does is sue the companies which do contribute something useful to the economy (a product that can be sold and which people can use). Yes, it's a great way to make money, and in the end it's those big companies who always argued for unlimited patentability who are now on the wrong end of the stick, because some smart people simply optimized their business model to maximise their profit in the system created by the patent junkies.

So now the big companies start whining and complaining, accusing those parasites of being "patent trolls" and play the innocent third party harmed by the bad practice of the USPTO... While it's the fault of their own patent trolls (IP lawyers who wanted more influence in the company) it came to this in the first place.

Re:This is good but...

[LibrePensador]

"When a minor company has a patent on a groundbreaking (or little less) invention, it can be a major pain in the *rse of a big company(with a proper sponsoring for the small one, ok), especially when that small company has no product portfolio to which the big company can assert its patents."

The problem is that this is fairly rare. If you are a small company doing some kind of interesting software development, your product is bound to in some obscure way violate one of the thousand patents that the big guys have.

Besides two wrongs really don't make a write and I am more concerned with the well-being of free software developers, salaried or not, who independently do not probably have the resources to fight a patent-infringement case.

As a writer, I care about copyright infringement. And the mathematicians who understand software fail to understand how anyone can really claim to have "invented" something in software. Written it yet, invented it no.

Re:This is good but...

[Halo1]

You are wrong in thinking that all large corporations are in favour of software patents, or that there is even an economical majority (in Europe) in favour of software patents. In Germany, 80% of the people employed in IT work for SME's, in Belgium 60%. As for large corporations against software patents, have a look at this letter written by the ObjectWeb Consortium, representing these companies. Some names you might recognise are Dassault Aviation, France Telecom R&D and the Thales Group.

Further, the current Commission stance on software patents is mostly dominated by Bolkestein, an extremely conservative "liberal" who longs for a European Microsoft (and failing that, just Microsoft: a few all-encompassing companies as "backbone" for the economy). Bolkestein is now leaving the Commission. Of course, his people will most likely remain, but it will still be interesting to see whether this will bring any change. And failing that, there's still the Parliament and more and more to some extent even the Council that could help us.

Re:This is good but...

[AVee]

Just think about Intertrust vs. Microsoft (settled out of court).

Or just think Eolas vs. Microsoft... Eolas isn't a big company but managed to get a nice amount of cash out of MS with an invalid patent.

Re:This is good but...

[Anonymous Coward]

Yes, but you need a consortium or collective group that has a shared interest.
Based on the tactical principles of Go lets
identify a target company to sacrifice an an example. Since the entire philosophy of conceptual patent is flawed,
and has hitherto been outlawed for that very reason, we will exploit its weakness of trivial inductive extension.

Pick company target A, whos domain of operation is well within the established mercantile commons, say an online retailer.
A must satisfy the properties of:

Has filed an ill-spirited conceptual patent - you can't catch out an honest man

Reasonable size - it's little use making an example of a small target. Plus they must win.

Refuses to publicly recind and publish their trivial patent(s) by way of an apolgy.

Identify all the trivial extensions to their claim covering the patentable ground surrounding their area of operation.
For example, if they are trying to assert ownership of 'one click installation' we would take

1) 'one click install using a password'
2) 'one click install using a server redirect'
3) 'one click install using a clientside applet'
4) 'one click install using a remote authenication service'
5) 'one click install using a scripted link involving encrytion'
6) 'one click install using specifically the tcp ip protocol' ...etc ad nauseum

Now, understand, we want to provoke A to challenge the patents and win.
The only principle at Law that could win a victory for them would invalidate
their original patent too, namely that it was inductively defined from trivial
first principles and merits no recognition as a creative work.

To beat them, first you will need a 'We'. We is any concerned comapnies willing to buy into a
collective war chest. 'We' is any individual programmer or computer user who wants to be a small
shareholder in an seemingly utterly worthless patent for a self evident truth, whos only real
value is as a weapon to slap down greedy and anti-competitive practices. Money serves only one
function. As fuel to buy patents. All the legal, and intellectual work must be available for free.

Hopefully
this patent watchdog can be put down once reasonable and acceptable law is reestablished, and any
gains given to charity.

Re:This is good but...

[cperciva]

RAND is poison to free software. Authors of free software cannot afford ANY fee, "reasonable" or not.

Costco is poison to free lunches. People who want to give away free lunches cannot afford to pay ANYTHING for the raw ingredients, "low cost" or not.

half-backed, recycled and slopped up to the USPO

[falsemover]

let's face it; software patenting is a rich boys club; or another manifestation of the motto "the one with the most money wins". There are thousands of patents like this; scads of unoriginal montages of half-baked and recycled ideas, cleverly disguised and slopped up to the USPO, and approved, cha ching.
It takes this kind of outrage and political pressure to get one patent reviewed. What chance does the small software company have protecting itself against patents with a lineage of prior art? It's also a positive feedback system; patents breed patents, just look at the crazy exponential explosion of USPO patents over the last five years. And sitting in the middle of the web is the black widow, the USPO, raking in the fees while spending precious little fix the spiraling problem. Once practical answer: maybe register your software company in the Cayman Islands or Vanuatu, or some other such place and take your international profits offshore. Better defensive legal system; and better protection against the system fueled by common-revenue-oriented legislation and wayward lawyers.

Prior art.

[ScouseMouse]

I vaiguely remember that the Amiga OS 3 had an application called Multiview which allowed extensible embedded viewing of almost everything with the correct plugins (Called datatypes if I remember correctly). I dunno if this is the same thing though, but i think it predates the Web completely (Although only by a year or two). Hmm, have to dig out my old Amiga and check.

Re:Prior art.

[johannesg]

AmigaOS 3.0 was released in 1992. "Datatypes" was a system of filters used to convert between the standard internal types for bitmaps, sound, movies, text documents, etc. and any external type.

Datatypes were OS objects and could be embedded in windows. Multiview used this to display files of any type, but the same system was also used by Amiga webbrowsers like AWeb, IBrowse, or Voyager. Thus Amiga was the first system to support .PNG files in all of its browsers - simply because a datatype for .PNG was written.

The web came into existence about a year later - 1993 saw the first graphical webbrowser, Mosaic, being released as an alpha version.

Re:Prior art.

[Anonymous Coward]

Heh. And also the ONLY system, probably ever, to support PNG in all of its browsers. And automatically, to boot. I'll have to look this "datatypes" up.

Re:Prior art.

[Anonymous Coward]

Well, not stricly true, as lynx was ported to amiga (very easy with ixemul, the amiga equivalent of cygwin) without png support :-)

Opposition?

[Groote Ka]

One of the most important conclusions I draw from this issue that it is time for a proper inter partes opposition procedure as available in - among others - Europe and Japan.

After grant of a patent, any person (in Europe, this does not include the patent proprietor) can challenge the granted patent with all prior art available. And this person is party to the proceedings; the European Patent Office coordinates the procedure and judges it.
Remark to be made here is that in first instance, the EPO is not very willing to revoke a patent (the examiner of the grant procedure is in the opposition division as well), but appeal may be a good remedy.

I heard that the US patent law may be amended to allow inter partes proceedings for invalidation/re-examination. Any news on that?

Re:Opposition?

[SquarePants]

Inter-partes re-examination proceedings have been available in the US since 1999 (See 35 U.S.C. 311 to 318). They have been rarely used but are available. At last count, less than 20 inter-partes reexams had been filed since 1999. This compares to over 1,000 ex-parte reexams filed in the same period.

Re:Opposition?

[Groote Ka]

At last count, less than 20 inter-partes reexams had been filed since 1999.

Seems low to me. Any reason for that? I have asked US colleagues to go for a re-issue sometimes in the past. Is that the same as re-exam? I can imagine that if so, there is a number of ex parte proceedings.

But anyway, I would expect the number of inter-partes a lot higher. Especially taking into account all the issues with the patents about which a lot of people at Slashdot complain.

Re:Opposition?

[SquarePants]

Off the top of my head, a couple of reasons:

First, cost. Just looking at filing fees, the fee for an ex-parte reexam is $2,520 while that for an inter-parte reexam is $8,800. And that is just the filing fees. An inter-parte reexam is very much like a mini-trial so you can expect the attorneys fees' involved to be probably 10 to 20 times what they would be in an ex-parte. I cannot see any lawyer worth his salt doing an inter-partes for under $30,000. An Ex-parte can be done for under $10,000.

Second, startegic considerations. If you file an inter-partes exam you must agree to forego any federal court action in connection with the relevant patent and cited prior art. With an ex parte, that is not the case, if you loose you can still file a federal lawsuit seeking to invalidate the patent. So, in essence, you can get a second bite at the apple with an ex parte.

Re:Opposition?

[Groote Ka]

Thank you.

FYI: opposition fee @ the EPO is only EUR 610. I do not know about attorney fees, but probably from EUR 4000 and up, depending on the location of your attorney as well (trips to Munich may be costly; fees are not the same all around Europe).

Big red nose, floppy shoes

[Killjoy_NL]

"the Eolas patent circus"

They have already sent in the clowns though :)

Panties Behind Eolas Patent Reexam Revealed???

[drfishy]

I can't be the only one that read it that way...

Re:Panties Behind Eolas Patent Reexam Revealed???

[JamesTRexx]

Yes you are, you dirty, dirty person!
Now you infected me with dirty thoughts. :-P

OMG

[jb.hl.com]

Big corporations being behind something which would stem their losses! Say it isn't so!

So, Big Business will make it all better?

[EasyTarget]

Humm, The BBC had a article related to this too, Here, and it scared me since the companies that are lobbying for changes to the Patent regieme are all the existing 'effective monopolies', MS, Cisco, Ebay, etc..

I don't think a patent system re-written by Big-Business is going to be good for anyone other than Big-Business.

The more I think about this, the more I fail to see any answer, only problems. How can a patent system protect the genuinely innovative little guys, whilst preventing the abuses the Big Business will practice in order to protect their market share?

Re:So, Big Business will make it all better?

[kfg]

How can a patent system protect the genuinely innovative little guys, whilst preventing the abuses the Big Business will practice in order to protect their market share?

If we are discussing software patents, don't give the big guys patents in the first place--or the little guys.

Extending patent protection to ideas was a braindead idea.

KFG

Re:So, Big Business will make it all better?

[smurf975]

Your comment makes me think about the paperclip and any patents it may have had.

Compare that to the arguments on Slashdot against patenting algoritmes. As a paperclip is basically a algorithme to deform a piece of metal to some useful.

Doesn't the guy who invented the paperclip deserve some money? If so why don't software developers that invent some algorithme?

Re:So, Big Business will make it all better?

[flossie]

Doesn't the guy who invented the paperclip deserve some money?

The paperclip was patented. Several times.

However, the purpose of the patent system is not to ensure that money goes to those who "deserve" it. Patents are state-granted, limited term, monopolies on inventions. They serve a very specific purpose - to encourage inventors to disclose how there inventions work so that they can be reproduced by others when the patent expires; they exist to act as a balance to the economic advantages that can be enjoyed by inventors who keep their inventions secret.

They also serve to motivate research in some areas (pharmaceuticals, for instance) because the very high returns that can be gained through having a monopoly more than offset the high development costs.

They do not, however, have anything to do with fairness or rewarding deserving people.

Re:So, Big Business will make it all better?

[smurf975]

You may be right as I don't know any patent of Coca Cola except maybe bottle shapes and other things. Which according to you would have eventually hurt their business and make anyone make cola like coca cola.

On a side note I found this site after looking at your about.com one. This one shows pictures of all the different kinds of paperclips.

Groklaw for Patents?

[stiggle]

What there should be is a Groklaw for Patents.
So that the prior art can be collated and checked.

It might not stop the tide, but it could help reduce the stupidity of some of the claims.

Re:half-backed, recycled and slopped up to the USP

[SquarePants]

It doesn't take "outrage and political pressure" to get a patent reviewed. If you know of invalidating prior art it is fairly simple to request a re-examination. It is also fairly inexpensive if you choose to request reexamination inter partes since it involves only filing a single paper.

But you do have to do some research. Something which most people here are unwilling to do for any purpose other than to rant about the USPTO's inadequacies.

Madness absolute Madness

[blackest_k]

Someone once said something along the lines that it was only because they had stood on the shoulders of giants that they had achieved so much.

Perhaps the only fair solution is to limit patients to a maximum life of 2 years, and why not do the same for copyright too?

Ok I see the point if you invent create something unique that people are prepared to pay for then you should be entitled to some reward and a patient/ copyright gives you exclusive rights for a time and the opportunity to make some money by granting you a monopoly on this but for how long should independent development be halted?

very rarely if at all does something come without development using somebody elses work and idea's.

This Post is unique and the words I choose and the order I place them is mine alone. However they start with the basis of an article on slashdot, using technology that was developed by somebody else. If I had to pay for everything i did that used somebody elses work in someway or had to check to see who's copyrights i might be infringing I wouldn't be able to do anything and niether could you!

If we want the computer industry to stagnate then lets continue the madness and copyright and patent everything and why stop there.

Short limited life patents and copyrights seem to be the only sensible solution.

Re:Madness absolute Madness

[amw]

the only fair solution is to limit patients to a maximum life of 2 years

I hope I never end up in your hospital ...

Re:Madness absolute Madness

[Anonymous Coward]

Someone once said something along the lines that it was only because they had stood on the shoulders of giants that they had achieved so much.

That was me, it's trademarked, and I'll be seeing you in court.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:half-baked, recycled and slopped up to the USPO

[falsemover]

It is fairly easy (but not cheap) to request examination of a patent that has been granted on the grounds of prior art or obviousness. I refer you to Ashley Parker's lucid document

http://www.jolt.unc.edu/vol3/Parker-V3I2.pdf

to ponder the considerable problems in the reexamination system, including the $10,000 fee for proposing it plus considerable legal fees, maybe $10k - $100k +fees for filing it and researching it properly. If you are being asked for $5,000 in licensing fees for violating some frivolous patent it' a tough call. In 2003 the Commissioner ordered only 17 reexaminations of stupid patents. 17. This was somewhat better than 2001 when they only ordered 2. Wake up Commissioner!

Slugging it out in court is not an option for most small software companies as the average patent litigation fee through trial is cited to be 1.2 million.

Happy programming everyone. Maybe, just don't code anything more complicated than a REM statement as it will probably violate a whole bunch of patents.

Amiga datatypes vs, patents

[The Conductor]

It wasn't just web browsers either. Datatypes supported both read/display, & write/save operations. Commercial paint programs for the Amiga were able to make an end-run around the Unisys GIF patent by leaving out GIF support in the main program, but having datatype support. To save as GIF you downloaded an open-source GIF datatype (Unisys didn't attempt to enforce against open source implementations), dropped the class description and the library code in the required directories, and the paint program handled GIF equivalently to the native formats.

Pretty slick, eh?

Re:half-backed, recycled and slopped up to the USP

[Anonymous Coward]

"Fairly inexpensive" still being more than my present net worth. :-(
Yet, I could write new software today that violates 100s of US patents. The patent system creates exclusion of the poorest, creating a "members club", and the developing world would do well to reject intellectual "property" outright, but are probably too greedy and corrupt to do so :-((

Bio Tech Patents Have Plenty Of Problems

[rben]

There is a silver lining to this story. If you go back 30-40 years, you will see a host of complaints about these new-fangled patents on biotechnology - many claims that allowing inventors to patent novel organisms, gene sequences, proteins, and research techniques posed a horrific threat to biotech research and product development. These claims assumed the same basis as many of today's complaints against software patents: examiners were hopelessly lacking in technical skill in these areas; the subject matter qualitatively differed from conventionally patentable fields of art; a 17-year monopoly (pre-1995) represented a calamity to rapidly-evolving technology and typically-cooperative research. History has shown that those fears were hugely outweighed by the overall benefits of biotech patents - as evidenced by a thousand, wonderfully effective therapies and drugs (many of which, like prozak, are now expired, transferring the technology to the public domain.) Biotechnology and medicine are experiencing a huge upsurge in the pace of technical development - thanks in large measure to the willingness of corporations to invest in (potentially patentable) biotech R&D.

There are extensive problems with allowing companies and individuals to patent biotechnology and there is little evidence to suggest that all the patents were necessary.

The genetic information within natural organisms should be part of the common property shared among everyone. Allowing some individual to claim ownership of the genetic code of a natural organism is obviously absurd.

Corporations have been rapidly patenting genetic information from crops that have been developed over thousands of years by indigenous populations in third-world countries. The thousands of years of cultivation apparently entitles those people to nothing, while using an automated machine to decode the genetic code entitles the corporation to ownership of the genetic code of the plant? How is this reasonable or equitable? These patents are robbing people in third world countries.

The explosion of development in bio-technology has more to do with the available technology and automation than allowing patents on natural organisms. There is plenty of profit to be made in developing medicines from natural genetic codes without granting ownership of those codes to corporations. Rightfully, the ownership of the genetic information should be held in common trust. There is nothing to stop businesses from patenting and profiting from treatments and therapies developed from that knowledge.

It seems that the current trend in the U.S. is to rush to grant ownership of everything, including knowledge, to some single individual or corporation. This headlong rush is being done largely without regard to the consequences of eliminating the public commons and the benefits which it provides. All knowledge and progress builds on what came before. If there is a price tag on every bit of knowledge, it won't be long before progress in the sciences slows dramatically.

There is nothing wrong with the idea of patents for novel inventions. I think it is an appropriate way to reward and spur invention. We need to make sure, though, that it's invention that we are rewarding and not political lobbying skills.

Re:Bio Tech Patents Have Plenty Of Problems

[travler]

The real problem with software and other IP patents/copyrights are that they create a ridiculous self-fulfilling prophecy:

1. As innovation becomes more and more stifled (creativity IS the act of building one thing on top of another which is becoming harder and harder to do legaly) fewer and fewer new things come into the world.
2. **AA people will assert that this is do to piracy.
3. This leads to even more draconian laws.
4. Cycle repeats until innovation is entirely crushed.

Of course I'm being a bit facetious in saying that inovation will be entirely crushed. People will just ignore the laws en masse such as they do with current drug laws and to a large extent current copyright laws. However then we get into a system where everyone is more or less a criminal under the law. This is bad becouse it gives the state the power to arbitrarily persecute those individuals and groups that it dislikes and turn a blind eye to those it finds favor with.

Re:Bio Tech Patents Have Plenty Of Problems

[tambo]

As innovation becomes more and more stifled (creativity IS the act of building one thing on top of another which is becoming harder and harder to do legaly) fewer and fewer new things come into the world.

Heh. Do you really believe this? Reminds me of Charles Duell's fateful statement: "Everything that can be invented, has been invented." That was back in 1899, and innovation has barely slowed down. (It's a shameful fact that Mr. Duell was commissioner of the U.S. Patent & Trademark office at the time.)

The U.S. patent system was founded in the Constitution, and has existed since shortly thereafter. Indeed, previously the colonies each granted their own monopolies; and continuing back, England, Venice, and even ancient Rome and Greece had their own monopoly systems. Innovation has hardly slowed.

Keep in mind, too, that patents expire. Whereas the body of technology grows hugely every moment, the inflow of new patents is (to some extent) offset by the expiration of old patents. So you hardly have a vast body of growing patents to contend with - you have a small crust of recent patents, backed by a huge body of expired ones.

As a last point, but a very strong one: Even a patented invention can be freely used, so long as the patentee doesn't sue you. In virtually every case, the infringer is trying to sell an allegedly patented invention: e.g., your for-sale operating system utilizes a patented algorithm. If you're just using it in your own open-source project, the patentee is not likely to notice, care, or spend a million bucks suing you over it.

2. **AA people will assert that this is do to piracy.

You're mistakenly equating patents with copyrights. Music, movies, etc. are not patentable. Copyright law has massive problems right now, but it's a separate issue.

3. This leads to even more draconian laws.

Patent infringement claims are strictly a civil matter. You can't go to jail for it, because there are no such laws. Again, you're thinking copyright.

- David Stein

Re:Bio Tech Patents Have Plenty Of Problems

[tambo]

The genetic information within natural organisms should be part of the common property shared among everyone. Allowing some individual to claim ownership of the genetic code of a natural organism is obviously absurd.

Agreed, and this is the current view of gene patents, both by the USPTO and the patent community. Novel genes and their novel protein products are patentable, but any case where a natural protein (or genetic precursor) is being claimed requires something unusual, bordering on extraordinary. For instance, I've seen some natural proteins patented, but in a purified, crystallized form that occurs nowhere in nature. (This is apparently useful, for instance, in determining atomic coordinate structure.)

The explosion of development in bio-technology has more to do with the available technology and automation than allowing patents on natural organisms.

Biotechnology? Yes. Commercial biotechnology - drugs, devices, and therapeutic techniques? No.

Between the lab bench and the patient bedside resides an obstacle that is both enormous and often overlooked in posts such as yours. Even aside from the normal business of promoting a new drug (manufacturing, distribution, marketing, etc.), biotech companies must conduct safety and efficacy studies and obtain FDA approval. Those processes are tremendously expensive and time-consuming - and once the drug is proven and FDA approved, anyone can use it.

What company in its right mind would spend millions to obtain FDA approval of a drug if their competitors can use it the next day? Sheesh, this is /., the very epicenter of bitching about how Microsoft's theft of innovation is dragging down potential software R&D (which I believe to be true.) Pfizer could well do the same: conduct no research, but simply commercialize their formulations of drugs for which third parties obtain FDA approval.

No company would attempt FDA approval in those circumstances. We'd have a million fantastic basic-biotech observations a year, but no resources to turn them into real tools of medicine. Applied biotechnology research would cease to exist.

The only prevention of this calamity of non-innovation is the promise of a limited-time patent on such drugs. Pfizer will pay for a hundred FDA approval trials because it gets exclusive access to the drug market for a short window. - And that window is, indeed, short: by the time a drug hits the market, probably 15 years of its patent have already passed.

It seems that the current trend in the U.S. is to rush to grant ownership of everything, including knowledge, to some single individual or corporation.

(Current trend? These processes were first made available in the U.S. Constitution.) That aside - I agree with you. The details of protection have changed, and their ramifications are not well-considered. Business method patents are generally bogus, and should be allowed only in exceptionally meritorious cases. The "fixed duration" of copyright has been stretched to absurdity. We do need to resolve these misuses, or wanton abuses, of IP protection.

If there is a price tag on every bit of knowledge, it won't be long before progress in the sciences slows dramatically.

As noted in other responses - the beauty of patents is that they expire 20 years after the date of first filing. They don't just block the public domain; they become public domain. The obstacles only concern the most recent inventions, and, one would hope, the most commercially valuable (which are the only ones that warrant $20,000 in prosecution fees and expenses.) Past this, though, you have a massive body of freely usable public knowledge. That is, of course, one of the two central purposes of the patent system.

- David Stein

Re:Bio Tech Patents Have Plenty Of Problems

[travler]

Please let me clarify:

I do believe that anything created is based on what has come before it. That creativity is basically re-ordering of what has come before. I dare you or anyone else to come up with a single instance of a creative work that does not use some form of 'prior art'.

I was not implying that creativity itself will die just that 'legal creativity' is being hurt which removes the economic insintive to create. Creating something costs time and effort, to the degree that I am unable to recoup some of my costs becouse I can not publish/sell my work it is a disinsitive for me to create.


The U.S. patent system was founded in the Constitution, and has existed since shortly thereafter. Indeed, previously the colonies each granted their own monopolies; and continuing back, England, Venice, and even ancient Rome and Greece had their own monopoly systems. Innovation has hardly slowed.

Actually neither you nor I know what marvelous inventions/works of art have NOT been created becouse of existing laws. That is why they are so dangerous. It is impossible to say exactly how much damage they do. Maybe we would be living in 'the world of tomorrow' with ultra-cheap electicity, cures for every known disease, and terahertz desktop computers. It is a GAMBLE that the laws help more than they hurt but as they broaden it becomes more of a certainty that they do more harm than good.

You're mistakenly equating patents with copyrights. Music, movies, etc. are not patentable. Copyright law has massive problems right now, but it's a separate issue.

I agree that in my fevor to make a basic point that I was making a more general argument against 'intelectual property' laws in general and strayed a bit off-topic. My appologies.


Patent infringement claims are strictly a civil matter. You can't go to jail for it, because there are no such laws. Again, you're thinking copyright.

Civil judgements can take my real property (house/money/cars) away from me. Just becouse I don't go to jail doesn't mean that I don't lose things that aren't important to me and so won't effect my behaviour. Imagine how much it would suck to work several years building your business just to have someone else take it away from you.

Re:Bio Tech Patents Have Plenty Of Problems

[tricorn]

No company would attempt FDA approval in those circumstances. We'd have a million fantastic basic-biotech observations a year, but no resources to turn them into real tools of medicine. Applied biotechnology research would cease to exist.

The only prevention of this calamity of non-innovation is the promise of a limited-time patent on such drugs. Pfizer will pay for a hundred FDA approval trials because it gets exclusive access to the drug market for a short window. - And that window is, indeed, short: by the time a drug hits the market, probably 15 years of its patent have already passed.

There's another model that could work. Since drugs are so tightly controlled by the FDA, don't rely on patenting them, rely on FDA permission to manufacture and market them.

An example of this can be seen in aviation. An aircraft is certified by the FAA, but that certification is very strict. You basically can not modify the aircraft or the way it is flown from the way it was approvied (which is however the manufacturer got it certified by testing and proving it to be safe). If you do want to make modifications, you can get approval from the FAA to do testing, and if you can prove that your changes are safe then YOU (and only you) can authorize others to do the same modification, and you can charge whatever you want for that authorization. For example, many aircraft can be safely flown on ordinary unleaded automobile gasp;ome; however, they are rarely certified to use it. If you purchase an "STC" (Supplemental Type Certificate) from someone who has done FAA-approved testing and shown it to be safe, you can now use auto gas as well. The only thing you get when you pay your fee (usually based on horsepower of the engine) is some paperwork and a sticker you post next to the gas cap that says auto gas is allowed.

ANYONE else can do the same exact testing, and get the same authorization. Thus, the price is limited on what you can charge based on how much that testing will cost someone else. However, the length of time is forever, and often whoever did the original modification did so for their own purpose, and being able to sell that authorization to others is a bonus.

Now, it is true that knowing ahead of time that a certain drug indeed works can eliminate false starts, which can save significant money. However, it seems to me that the original company still gets a good time advantage, plus if it never runs out, they can compete with any newcomers by lowering the price closer and closer to production margin. In addition, it is valuable to have re-testing of drugs, as the original studies are sometimes found later to have been flawed.

Finally, a large amount of the cost basis for drugs is from the marketing of that drug, not the actual development and testing. If, indeed, such marketing is so effective as to justify the consumer being forced to pay for it (as part of the price of the drug), then the companies spending that money shouldn't have to worry so much about an upstart for a while. If it isn't all that effective, then they should stop spending so much on it and lower the price of the drugs!

I'm not arguing that drugs should or should not be patentable. I'm arguing that there are other models that can be used to achieve the same goal of rewarding innovation that the patent process is supposed to do.

Re:Bio Tech Patents Have Plenty Of Problems

[tricorn]

Reminds me of Charles Duell's fateful statement: "Everything that can be invented, has been invented."

I think the current situation is actually the exact opposite. Too many things are being invented, with too low a threshold of what counts as "invention". This creates an ever-increasing tarpit that makes it more difficult to create true innovation, with (to mix metaphors) large minefields for new products that are found to have infringed on bogus patents by courts that misinterpret what the patent covers, what prior art actually exists, and what "novel" and "obvious" should mean.

Whereas the body of technology grows hugely every moment, the inflow of new patents is (to some extent) offset by the expiration of old patents.

"to some extent" is overstating it, I think. The number of unexpired patents right now is much larger than the number of unexpired patents 20 or 50 years ago. Patents are harmful when it is difficult to determine if what you are producing might infringe on a patent. You either spend most of your effort on patent searches, or you risk the uncertainty of being sued later. Patents should help you produce new products - find a solution to what you're trying to do so you can license it for (some amount) less than it would cost you to come up with the same solution. When it is used strictly to enforce a monopoly, preventing others from innovating, it costs more to society than the good a patent is supposed to be doing by encouraging innovation.

In addition, with bogus patents, the public never actually gets the reward it is supposed to receive after the patent expires, as the patent never actually reveals anything that wasn't already known before. Unless the gains to society are greater than the costs, each particular patent shouldn't have been granted. An inventor isn't owed protection; society chooses to grant it for the greater good of all.

The one good thing about all this is that it forces exploration of entirely new fields. Unfortunately, that means that those fields will soon be clogged with overreaching patents which will stifle innovation for 20 years.

In an earlier post, you mentioned RSA as being an example of a good software patent. The problem with that is, while innovative and non-obvious, it was also too broad. It prevented many other schemes which had true inventiveness from being used, and had the effect of killing a lot of development of public key cryptography until the patent ran out. Without the RSA patent, we might be living in a much more secure world, communications-wise (although US munitions export laws didn't help either).

Re:I agree

[PD]

You think that movie is unnerving? Try watching "The Ring". It freaked me out. Very well done, and a little different than your regular horror movie.

One thing I like to do is watch the frightening parts of a horror movie in very slow speed on my TiVo. It's a good way to remove all the horror, and you might get to see what went into the special effect. That technique doesn't work on "The Ring". That move is just plain spooky at any speed.

It's an English remake of a Japanese horror film, and trust me, nothing gets lost in translation.

I know I'm offtopic, but it was a really entertaining movie. I just wish that it wouldn't "entertain" me when all the damn lights in the house are off. Seems like that's the case every time I recall the film.

Ah yes: The Altruistic Multi-national....

[Saeed al-Sahaf]

This is the *little* guy against the giant and this time the little guy is looking for a free handout.

As opposed to what? The big fish like Microsoft who patent clicking a button two times? Big fish like Amazon who patent clicking a button once to check out? Other multi-nationals patenting silly things simply because they can? Look, these big fish are hardly acting altruistically here; they are acting because they don't want to pay licensing fees. But hey, just you little fish walk on one of their silly patents. Start a business that can significantly compete with Amazon, and watch them sue you for your check out button.

Re:Ah yes: The Altruistic Multi-national....

[gregfortune]

But that's *not* what's happening here. They are fighting for the same thing we want. Use them for all it's worth...

Re:half-backed, recycled and slopped up to the USP

[SquarePants]

Well, the costs partly act as a check to prevent frivolous filings. If it was free, everybody would file frivolous objections and no patent would ever issue. It would also make it infitely more expensive for the PTO to handle the objections forcing a rise in fees. Can you say vicious cycle?

Lets face it, we live in a capitalistic society and our system has helped this country to develop into a very prosperous nation. It is very easy for another country to reject anything as property (why stop at IP, lets reject land as property) when it doesn't own it and has not invested anything to develop it.

The reason countries do not issue such blanket "rejections" is that they know are better off. If they want the rest of the world to respect their "property" when and if they acquire it, they must abide by the rules now.

Re:half-backed, recycled and slopped up to the USP

[Halo1]

Lets face it, we live in a capitalistic society and our system has helped this country to develop into a very prosperous nation. It is very easy for another country to reject anything as property (why stop at IP, lets reject land as property) when it doesn't own it and has not invested anything to develop it.

Being against software patents is not the same as being against all forms of (intellectual) property. Most studies show that software patents do not result in more prosperity nor innovation. In some cases (such as software/maths), other factors are much more important to spur innovation and investment than the foresight of being able to get a monopoly (and these patent monopolies aren't generally used/necessary to win back investments, but simply to block others from entering the market or making sure you're not block from the market).

The fact that other can get a monopoly on some small component of your work allowing him to basically block your entire investment, may even hamper the willingness to invest more than it helps. I know at least one company that went from writing software for other companies to pure consulting, because of the fear that a software patent owner could render their work suddenly worthless/useless. And that's even a European company...

I've allways wonder....

[obdulio]

What would have happened if Newton had patented the laws of gravity....

Big difference between Bio and Software...

[scsirob]

Bio technology is not, never has been, and never will be something accessible to small companies or even individuals. The equipment investments are just too large for people with small pockets.

Software development on the other hand is something that anyone with a $298 computer can start. Maybe not to invent something great and patentable, but to implement anything that strikes your fancy. The big problem is that there is absolutely no way to know that you are stepping on someone's software patent if you write something at home.

Quick example. I designed a neat little hand-held GPS logger, capable of recording NMEA sequences and playing it back. I've built two, and I may even build more if there's demand. Now I'm almost certain that someone out there will have patented a "methode to store and retrieve locator information" or something along those lines. But how am I to find out? And what's the impact of me finding out? I simply don't know. If I happen to be successful with it, I may sell 100. How am I to prevent *BigCorp Inc* from hunting me down for "billions in lost revenue"?

Re:Big difference between Bio and Software...

[tambo]

The big problem is that there is absolutely no way to know that you are stepping on someone's software patent if you write something at home.

Obviously, that knife cuts both ways. Why would a patentee care - or how would he even discover - that you're using his patented invention for a personal project? Even if he knows and cares, why would he waste legal fees ($HUGE) suing you to stop you from using it? Unless you're actually harming his business by using his invention, attempting to stop you is a tremendous waste of his own money.

- David Stein

Re:half-backed, recycled and slopped up to the USP

[SquarePants]

My point is that the rationale used by the author of the parent post in support of the proposition that IP should be "rejected" as property could just as easilly be applied to other forms of property.

Your rationale could also be applied to other types of IP, not just software, which come about in rapidly developing fields. The same "sky will fall" arguments were made in the past (some over 100 years ago) and they proved to be dead wrong or wildly exaggerated.

Software patents have only been arround since 1998 (date of the State Street decision) so I don't really give much credence to your conclusion that they "do not result in more prosperity or innovation." There just hasn't been enough time to develop evidence in support of such a proposition.

I could respond by saying that the US leads the world, by far, in the software industry and is the only country that allows software patents. But that would be an oversimplification of the complex issues involved.

For every one of the "studies" you refer to, I can probably point to another "study" that says the opposite.

As for the unnamed company you refer to, I believe that all buggy whip manufacturers went belly-up around the time that automobiles became widely available. Such is the price of progress.

I goofed. Sorry for the double post.

[Alsee]

Okay, I deserve a redundant mod. If you want to mod one down please mod down the first one. The second one has corrections in it.

-

Re:half-backed, recycled and slopped up to the USP

[Halo1]

My point is that the rationale used by the author of the parent post in support of the proposition that IP should be "rejected" as property could just as easilly be applied to other forms of property.

And my point was that he wasn't arguing for rejecting IP as a whole, just that software patents create a climate where someone who could normally set up a business on his own (with the only required investment being a computer), now potentially needs an enormous amount of money to either defend himself from software patents (at least $US1.5-2 million per case), or to obtain a portfolio of defensive patents (not free either, and not a guarantee for not being sued).

Something that impedes the free market like that, needs quite good hard data in favour of it for it to be defendable from a macro-economical point of view imho.

our rationale could also be applied to other types of IP, not just software, which come about in rapidly developing fields. The same "sky will fall" arguments were made in the past (some over 100 years ago) and they proved to be dead wrong or wildly exaggerated.

I'm not saying the sky will fall or that software development will come to a halt. Microsoft, IBM and friends will happily go on. It's just that you create a climate where the big players can more or less control who can join the club and who can't, buying out or suing to bankruptcy the ones that don't play according to their rules. A bit like in the telecom sector. Where are all the small time businesses there that don't have to base their business on patenting stuff to license it to the big players?

Also, I'm not claiming patents only have a mainly negative effect on software, it wouldn't surprise me if the case is similar in certain other fields. However, I have not studied them there, so I can't make any statements about that.

Software patents have only been arround since 1998 (date of the State Street decision) so I don't really give much credence to your conclusion that they "do not result in more prosperity or innovation." There just hasn't been enough time to develop evidence in support of such a proposition.

Software patents have been around since quite a bit earlier, even in Europe (the base patent on mp3 compression dates from 1985 or 1986). As far as enforcement in courts is concerned, the slippery slope in the US started already with Diamond vs. Diehr in 1981. And it's not my conclusion, it's the conclusion of those studies (see below for a few).

I could respond by saying that the US leads the world, by far, in the software industry and is the only country that allows software patents. But that would be an oversimplification of the complex issues involved.

Absolutely, since the US dominance started well before there was any talk of software patents. However, it's not the only one that allows them, at least Japan has them as well.

For every one of the "studies" you refer to, I can probably point to another "study" that says the opposite.

Here are some of "my" "studies". I'd love to see yours.

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.

That is the set-up...

[mengel]

... for the big problem we have now. Because everyone is used to looking only for pre-existing patents, not pre-exisiting implementations

Given that, if you go for N years asserting that software is not patentable, so no-one patents software, and then you allow software patents -- since nothing in the field is yet patented, everything looks novel (at least compared to existing patents, which seems to be the only thing the patent office actually looks at).

What you needed to have done to make that transition smooth is to

1. have a comprehensive review of the research literature and past computer related businesses, and
2. pre-issue patents (possibly already expired) to the people who have already invented novel bits of computing
3. and then open the doors to new patents.

Re:That is the set-up...

[tambo]

What you needed to have done to make that transition smooth is to

1. have a comprehensive review of the research literature and past computer related businesses, and
2. pre-issue patents (possibly already expired) to the people who have already invented novel bits of computing
3. and then open the doors to new patents.

Very insightful. In an ideal world, it would work this way. But it played out differently for several reasons:

1. The USPTO proved remarkably inflexible in dealing with software patents. For an organization tha focuses on technology, the USPTO, historically, has been shockingly reluctant to change and modernization. (I find it incredibly ironic that the nation's center for innovation has 80386 computers.)

   It really came down to a shoving match between the USPTO and the Court of Appeals for the Federal Circuit (CAFC), and the CAFC just knocked them down. The USPTO had fair warning that a sea change was imminent - a string of cases leading up to State Street Bank suggested as much - it just failed to prepare.

2. The federal government looks at the USPTO as a cash cow, and consistently siphons off much of its income. The odd result of this fact is that the USPTO generates huge revenue, but still operates on a shoestring budget. And the fees continue to rise (which, unfortunately, increasingly excludes sole inventors who can't afford the process.) Particularly, the USPTO had no resources to build up a software reference for determining obvious vs. non-obviousness.

So, we have a train wreck. But this problem will cure iteself: bad patents expire and serve as prior art. It's outrageous that anyone can patent "double-clicking application buttons" in 2004... but no one will ever be able to claim it again.

- David Stein

An analogy in support

[IBitOBear]

I am actually put in mind of the European expansionism of the 16 and 17 hundreds. The popes and princes ceeded whole tracts of the earth they hadn't even seen to people and organizations they had no interest in managing. It was a "we natrually own everything, and we cede this part of everything to you, if you go away and play with it in peace."

Arguing that software (and biotech) patents are good is like arguing that Spain was the best possible thing to happen to the Aztec.

We would like to act like we have learned from our past, but the facts are simple and obvious.

The "Intelectual Property Land Grab" isn't a vague metaphore, it is a simple extension of the might-makes-right imperialisim at the core of our technology.

[ASIDE:] before the Ad Hominem attacks start up, I am a white male, SUV driving American, who doesn't think "meat is murder", beleives in gun ownership but doesn't actually own a gun, and I expect to continue to make my living selling computer hardware and software even though I have made public contributions to GPL'd source and my name is principle inventor on at least one patent applicaiton.