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EFF, PubPat Each Seeking Some Patent Sanity
AbstracTus writes "According to Wired, The Electronic Frontier Foundation is trying to get the U.S. Patent and Trademark Office to re-examine 10 patents that were selected from public submissions. We slashdotters often curse patents that should have been rejected, but are not. Do you think that the EFF can have any influence on the U.S. Patent Office? Are there other actions that are more likely to work?" And sharkb8 writes "The Public Patent Foundation is searching for
people with experience in all technical fields to help examine patents. This is the perfect chance for attorneys, law students, and geeks in general to do some pro bono work. PubPat is the group that recently
challenged one of Microsoft's FAT patents."
The best way to influence the PTO is probably through Congress.
If you don't know where you are going, you will wind up somewhere else.
"Armed forces abroad are of little value unless there is prudent counsel at home" - Cicero
By technical experts prior to be granted!
The Public Patent Foundation is searching for people with experience in all technical fields to help examine patents.
As a prominent member of the computing community, I feel that I would be an excellent candidate for "patent examiner". My experience with operating systems, particularly, makes me an excellent choice for verifying technical details. Furthermore, I have a broad knowlege of existing patents, and will be able to discover so-called "prior art" easily. Please consider my application.
Sincerely,
Darl McBride
There is definetly a large need to stop the excessive Patents. Microsoft will go as far as to start Patenting Open Source code if no one else has. I have to say the Patent Busting Competition is one of my favorites. I am running a fight semi-assoicated with the EFF at http://www.uberhacker.com, we are trying to stop the CyberCrime treaty which may shutdown sites like Zone-H or Security-Focus
Do you think that the EFF can have any influence on the U.S. Patent Office? Are there other actions that are more likely to work?
You go get the torches and pitchforks, and I'll round up the angry villagers.
but it looks more like a followup to this earlier story.
An Indian-American Hindu committed to non-violent thought/speech/action alarmed by the global explosion of radical Islam
The problems with the US patent office are two-fold: /.'ers want to see "reject" as the default position).
1. Patent examiners are EXTREMELY over-worked. My future brother-in-law is a patent examiner, and he's often told me of a draconian quota system that rewards being quick and sloppy.
2. The US government is pro-business (as it should be, IMHO). However, this translates into the default standing order at the USPTO being "accept", and not "reject" (whereas most
The USPTO recently underwent some changes (new computer system, IIRC) that should allow patent examiners to be a little bit more effective in the future. But it's obvious to me the USPTO has problems - and they are management issues, not really idiot patent examiners.
-Erwos
Plausible conjecture should not be misrepresented as proof positive.
Face it, patents are screwy because certain large companies profit from that screwyness. It creates a world in which only the big dogs can play, because only the big dogs have the legal teams to field.
Reform Tort law. The patent system will fix itself.
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
Don't forget to add Microsoft's Double Click Patent and Mcafee's patent on Bayesian spam Filtering (filed months after Paul Graham's paper was published). I'm not quite fond of AOL's patent on "evil points" either.
If they hired some nerds that have a CLUE(tm) this wouldn't be needed.
*by reading this you acknowledge all copyrights regarding the placements of letters and numbers in a manner to form meaningful structures for the intent of public communications*
karma, hah...
Great onefor the lawyers: they earn a lump in prosecuting the patents, then leave the s**t hanging around for the chump techies to do free patent busting work.
If this is going to happen, it should be based on an _actively_ votable (i.e. "polling booth") list of patents (or, at least, patent areas) corresponding to important open source projects, e.g. "patents relating to scheduling improvements in operating systems". I think these are more important than "1-cluck shapping".
Patent the patent system then issue a cease and desist to the USPTO.
No.
Because you can't sue the government without their permission.
Patents for an idea makes sense, in part, when an inventor wanted to protect his or her ability to profit or control the result of their effort. Patents and intellectual property protections were designed to prevent people from using your idea or effort to their betterment at your expense. So far, so good. There's very little to argue with as nothing contained in the previous contains anything unreasonable.
Where the process has become abused is when the Patent Office began taking patent applications that didn't require a manifestation of some sort to "prove" your effort is unique or uniquely yours. There's nothing tangible in many of these contentious patents. They're just "ideas" and "descriptions". There's no "proof" or "gadget" that you can gin up to bolster what you're trying to protect. There's no math or engineering involved, such as programmatic effort or time in a machine shop.
That is where the demarcation should begin. When Xerox sued Apple and lost over the use of graphic icons on a 2D screen and similarly, when Apple sued Microsoft over "look and feel" and lost; That should have established the ground rules and in my opinion, neither Xerox nor Apple had a case. Instead, people have been testing the upper limits of what patents protections ever since based on nothing more than the motto, "You might get lucky.".
Mod me troll, if you must, I can't help it.
Pro is to Con like Progress is to Congress.
Unless you're a CEO of a large corporation or otherwise are a Man Of Means, there's no chance in hell to influence congress. And not only do you have to influence congress, but you have to influence a majority, and influence it *more* than your opponents. Which are the big companies holding the patents.
Yes, we have the best government money can buy.
Regards,
--
*Art
None of the items on the "patent hit-list" is what I would consider a high-profile "stupid" patent. These are all patents that are out there being enforced on a daily basis and are causing problems with business
They make no mention of the plethora of inane patents that have been granted (double-click patent, spam filter patent, swinging sideways patent).
The approach they are taking seems less likely to cause a big stir, because they are going to be hard fought with little gains in patent approval procedures
It seems to me that the easier way to get things to change (for the better) would be to gather up a list of 100 patents and systematically prove that every single one of them was extremely foolish to grant. Embarass the USPTO in the media with obvious claims of prior art.
Basically what we are looking for here isn't a few patents to be overturned, which is what the EFF is trying to do (its a nice start, don't get me wrong), but rather we need a change to the system, and unfortunately it appears it can only be done through an act of congress or through repeated abuses of the USPTO in the court system...
Apart from the obvious reasons to patent things (others might get there first), there's no good reason not to. The fee to apply is very low, and there is no penalty for being denied or overturned. At the same time, the examiners (AFAIHH) get bonuses based on how many patents they pass. The way to go currently, especially if you're a big company, is to try patenting everything you can, you might not get all, but the drop-out doesn't hurt you.
One way to change this would be to institute some penalty for filing dodgy patents. Both for the examiner who passed it and for whoever got it. A fine at least and repayment of any license fees garnered on the patent. Covering of expenses for the challenger, perhaps? A system of extra checking of patents from companies/persons that have had patents overturned previously? Repeat offenders? Three strikes and you're out? The possibilities are endless, but frivolous patenting should be as serious an offense as infringing on a patent.
-Lars
Wouldn't it be easier to actually find out what the 10 sane ones are?
I love C++
Frankly, I think granting non tangible IP patents is ridiculous. However, in the real world they aren't going to get rid of them entirely any time soon, not in the US anyway, and this MUST be admitted to I think to move forward in dealing with the problem. Taking them on a case by case by case basis in a retroactive review will be like herding cats. Theoretically possible, pretty dismal results in the real world and mostly a waste of time and resources.
I propose a different approach. Recognize the inherit difference between an intangible IP and a normal tangible product patent, and severely limit the patent exclusivity time limit with any that are IP. Make it a totally separate "class"of patent. Drop it down to two years, then that's it, in the public domain. Make it retroactive as well.
If these stupid patents aren't allowed to be created in the first place then groups like the EFF wouldn't have to fight to get them overturned later.
It's not just stupid patents that are bad though. Patent squatting (just sitting on patents) should be 100% illegal, as it just impedes the use of certain ideas by making them more costly than others.
Patents were intended as a means of helping inventors get novel products to market by creating a brief and artificial "honeymoon" period. Patent squatting is a complete corruption of that idea.
If you are not bringing product to market, you have no moral right to sit on an idea in the hope that someone else will do the hard work of developing a raw concept into a working reality. Companies with teams of lawyers that merely patent squat and actually create nothing are simply scum.
Patents should expire by default within 3 years unless you confirm in writing to the patent office that you are actively working on something that uses the patented idea as a central component or feature. And *all* patents should expire within 10 years, regardless, because skewing the market this way should only be a temporary condition.
Increasing the cost of ideas is not in the interest of humanity at all.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
So, after having read the article, it looked like the reason behind every one of those selections was because the owner of the patent chose to enforce it. There wasn't one word mentioned on why any of the patents themselves were a bad idea. For example:
1) "The EFF is worried that Acacia, which has already sued several large communications companies, is unfairly targeting small audio- and video-streaming websites."
5) "...said the EFF is afraid Ideaflood may try to go after LiveJournal members."
7) "The EFF is afraid Test Central will use its patent to scare off distance-learning organizations."
8) "But Nintendo is being a big bully."
And so on. Now, don't get me wrong. Some of those patents look dangerous to me, given the overly-vague and broad descriptions, but revoking a patent simply because a company is "a big bully" is ridiculous. What would be the point of having a patent if you couldn't use it? Furthermore, just because a technology is extremely useful (read: Kill App) doesn't mean it belongs in the pubic domain.
Let's consider #3 for a moment, Acceris Communication's voice over IP technology patent. Assuming it's much more specific than the article suggests, why should they not be able to benefit from creating that particular VOIP technology? So what if lots of people use it? Isn't that the whole point? Create a killer app, then sell it for tons of money. Then when the patent expires other people can copy it.
There's no mention of prior art anywhere in the article, which is a whole other argument. I mean, if I suddenly patented the wheel, for example, and started suing everyone who had ever used a certain geometrically shaped object, then I could see you having a case.
"Tell me doctor, with all of your defenses, are there any provisions for an attack by killer bees?"
Is the PTO's business model the same as that of a diploma mill? Well, is there anything to stop you from applying for a boatload of abusive patents yourself, then launching swarms of lawsuits against all those vile corporations that are stealing your ideas to transport energy through metal wires, represent infomation as '0's and '1's, make money by selling above cost, etc.?
If you can transform the PTO into a national lottery for millions of little people, with the courts clogged with drawing the winners, and big business bankrolling the prizes, then the system might get fixed. Might.
On another front, the U.S. has signed plenty of treaties promising free trade. Can you argue that the PTO's cluelessness is, in effect, just another form of government subsidy for U.S. companies and/or a red-tape barrier to imports - and thus is a violation of a treaty? Can you find a foreign government eager for an excuse to yell "no fair!" and slap a retaliatory tariff on politically sensitive U.S.-made goods? Take a good look at the recent fuss over protecting the U.S. steel industry - Uncle Sam was forced to back down, eat crow, and change his rules.
It's easy to make up & spread cool- and credible-sounding stuff. Finding & checking hard facts is hard work.
As an ex-Examiner and law student, I have some observations on this.
First, Congress and the PTO are somewhat isolated. The way Congress and divisions of the government make law, as a topic, is called administrative law. This works by Congress making general federal statutes (Title 15 in the case of patents) and the right to make regulations to implement the goals of the federal statues fall to the governmental division concerned (with patents, the USPTO).
So, to influence patent policy, the first level is to influence the USPTO Commissioner. He could likely get the regulations governing how patents are actually examined, as well as the infrastructure withing the PTO, changed to improve the system. Most new Commissioners make changes anyway. As the Commissioner is appointed by the President, he ultimately has a lot of control as well. I'm not sure, but I expect that the Senate has to approve any appointment to the USPTO Commissioner, so in that instance, so contacting the President and your Senators at appropriate times may be influential, but this only occurs every so many years.
The higher level is to influence Congress to pass a bill to amend Title 35 (that part of federal statutes which deals with patents). Here you are up against all the big corporations who benefit from the present situation (IBM, MS, etc.). Still, lobbying is a tool and keeping up pressure effectively (i.e. not calling your representative every week, but applying pressure in lobbying-savvy ways, as by the guidance of an experienced Washingtonian lobbyist).
I would think that setting out goals for change, then adequately supporting them with evidence would be a good tool. Remember that the Constitution states that Congress is to "promote" science and the useful arts. The idea is to prove that some aspect of the current policy does not promote the development of technology, but retards it in some way, then Congress might be open to changing the statutes. I believe this happened with the so-called "submarine patents" - the patent applications that were in the PTO for decades and would get issued allowing the inventor to sue users of mature industries and, basically, extort vast amounts of money. (If this topic intrests you, search for the name Lemelson" - he built a multimillion dollar industry off of this tactic). As I recall, though, Congress modified the patent statutes to discourage submarine patents during the phase to harmonize US patent law with European practice, so the retarding nature of submarine patents may not have been such a big motivation for change.
If you really want to change patent law, the more effective way is as follows. Get elected President with a Congress stacked in your favor. Then do the following:
1) Pressure Congress to amend the Patent Act according to your tastes.
2) Use your treaty making ability to enter into treaties as a run around of Congress for any changes thet don't get implemented. This requires Senate approval but avoids the House.
3) Appoint a PTO Commissioner who will implement your changes in a way you like.
So, will the EFF be effective? What else can be done? Doing something (being heard) is better than not doing anything. Can the average /.er do something as well? Of course. The best thing might be to follow patent issues and contact the appropriate party (President, Congress, PTO Commissioner) at the appropriate time (just before action is taken). It would be nice if there was a companion website to /. that would encourage action on issues of importance to /.ers. I.e. allow postings of example letters, addresses for contacting, discussion of the issues. Sometimes this is done in /. itself - people sometimes post example letters or addresses of the concerned politicians. Maybe we can encourage a new
$770 to file the patent (assuming it comes in under the 20/4 total/indpendent claims allowed) + fee X + fee Y during prosecution. Application is allowed. Now pay issue fee + maintenance fee 1 + maintenance fee 2, etc.
Second scenario:
$770 to file the patent + fee X + fee Y during prosecution. Application is rejected. No issue fee. No maintenance fee.
See the problem? No real monetary incentive to reject a patent. The PTO isn't harmed by patent litigation, so let the holder/infringers battle it out in court. No skin off the PTO's back.
"one of Microsoft's FAT patents"?
Oh, my. They're patenting software that's bloat?
Examiners do not get bonuses based on how many patents they issue.
/. readers don't understand is that for an examiner, an RCE is far more valued than an allowance. That is, an examiner gets 2 counts for a response instead of one (1 abandonment, one FOAM count). It is better for the examiner and applicant to have several rce's prior to allowance, as a better patent is issued, and the examiner achieves much higher production.
/. posters don't have the proper legal training to understand what the patent claims actually protect anyways.
Examiners get paid based on how many counts they get. Examiners get counts for the first response to an application (the first action on the merits) and upon disposal, that is when the case is issued, abandoned, or as usually happens, when the applicant files a request for continued examination, which is technically an abandonment, but restarts the whole process.
What most
Bonus wise, examiners get bonuses for exceeding their quota by certain percentages. Having RCE's are a much easier way to achieve this as they are a "free" count.
Examiner's already have cases reviewed by their supervisors, quality review boards, other supervisors. The number of cases reviewed is pay grade dependant, and for primary examiners, the review processes is once every 3 years.
Most
Bring back the old version of slashdot.
Unless petitioned otherwise, all US patent applications are published after 18 months of filing. This published database is used by examiners, and within a few years should be larger than the current US granted patent database.
Bring back the old version of slashdot.
Church technicians have been cobbling together systems to record and reproduce live events for several decades. Systems that record digitally and have at least a some editing functionality have been around for at least 5 or more.
The main difference between the commercial systems they describe and the Church systems are that they are trying to make money. Until the advent of cheap digital recorders and mp3's they had the market cornered. Now they need to find some way to commercialize what we used to call bootlegging. Unfortunately, a non-commercial entity has been bootlegging for a long time.
People often say this ... what if I invent a spaceship propulsion system (eg the solar sail). How do I get it to the patent office. How does the examiner verify that it is a "working example"?
... "it must be here somewhere ...".
How about a nano-machine, I can just see the examiner with a plastic baggie and a scanning electron microscope
Or perhaps a deadly biological agent.
Or a killer computer virus (where software patents are allowed).
Or a brain implant.
It'd make life interesting for patent examiners I guess.
Like most things that take away freedom, the patent system will always be under pressure to encroach more and more which will always lead to problems like this.
When you assert the right to punish people who copy and immitate for any reason, innocent people are going to get hurt no matter how nice you try to be.