Google Asks USPTO To Reexamine Four Oracle Patents

An anonymous reader writes "Google leaves no stone unturned in its defense against Oracle's patent and copyright infringement allegations. eWEEK reports on the latest development: Google has asked the USPTO to reexamine four of the seven patents asserted by Oracle. Patent watcher and skeptic Florian Mueller believes 'the world would be a better place without those virtual machine patents,' which he considers excessively broad and not really technical inventions. He also reports on a Google letter to the court, asking for permission to file a motion to throw out Oracle's copyright infringement allegations as soon as possible, without further discovery."

Comments

Obvious things

[Anonymous Coward]

like computer code, etc, shouldn't be able to be patented. Period! It would be better for Google to ask USPTO to re-evaluate more than just those 4 and throw them out and deny all the new coming.

Re:Obvious things

[AvitarX]

Especially since the computer code has copyright protection anyway.

Re:Obvious things

[Darkness404]

No, copyright shouldn't be enforceable simply because it is silly to claim that something is property without having the entire reason we created property laws which is that two people can't do what they wish with the property simultaneously.

Google should certainly be able to not release the code and keep it a secret, but Google shouldn't be able to take legal action if someone reverse-engineers code, decompiles the code, if Google releases it themselves, or if someone else releases the code (Google should however, if it was an employee to sue them for breach of contract).

Get rid of copyright and patents, after all, the company who created them is most likely going to be better at understanding how to practically apply that code and would have the inbuilt competitive advantage.

Re:Obvious things

[bluefoxlucid]

This is always dumb. A computer implementation of existing inventions should never be patentable, for example most of the code that goes into graphing calculators is just mathematics. However, a new encoding algorithm is a novel invention. Specific new methods in MP3 and AAC were new inventions when created: new methods of doing things. A patent is a set of instructions: make this bore, bend this sheet, combine these materials, bolt here, and you have an engine. If you designed a novel mechanical process (i.e. otto cycle instead of diesel cycle, rotary instead of reciprocating), you just invented a whole new class of engines.

I see no good reason why the inventor of Spectral Band Replication, for example, couldn't patent his work and license it for use in AAC. And if the inventor worked at a software company that happened to create AAC, then why not? If they don't patent it, then Ogg Vorbis v2 gets much higher quality at lower bitrates (Xiph has, in fact, lusted after SBR for a while, but the patent hasn't expired); that indicates that they did indeed just create a new, non-obvious invention.

Most of all patents are crap. Software patents especially. Still, I don't see how software can't be an invention.

Re:Obvious things

[h4rr4r]

No it does not indicate that it was new and non-obvious. Only that it was new. Maybe lots of people had come up with the idea and just not had time to set pen to paper. The fact that they are waiting until the patent expires only means they do not want to be sued.

Re:Obvious things

[FuckingNickName]

No employee at "bring information to everyone" Google has decided that freedom of information is more important than the risk of being sued. IOW, none has simply released Google source, knowing full well that no amount of legal force would reverse the effect on the marketplace. This says so much about the homogeneity of the working environment at Google.

Re:Obvious things

[Darkness404]

Um... so in other words, you are saying that if you were a (high ranking) employee at a profitable company like Google you would risk being sued, losing your job and all other job offers, simply because you think that releasing code increases "freedom of information"? Look, I can admire the people who leaked information about abuses to Wikileaks because people deserve to know where their tax dollars are going and that is the only way they can make informed choices. On the other hand though, releasing something like Google's code does really no good while putting you/your family in financial ruin.

Re:Obvious things

[Eponymous Coward]

Software or an algorithm shouldn't be patentable because they aren't inventions, they are ideas or mathematics. Inventions are patentable, ideas are not.

Re:Obvious things

[FuckingNickName]

The world is full of martyrs. I fear most the institutions which lack them.

Re:Obvious things

[sjames]

Much of the patented work on MP3 and related psycho-acoustic modeling technology were well predated by work on signal processing for cochlear implants. If the USPTO had vaguely qualified examiners with enough time ti actually examine the patents, they would have realized that.

Re:Obvious things

[Anonymous Coward]

Of course, doing something USEFUL with the mathematics is what is patented, not the math itself. You may as well say that all mechanical or electronic devices are 'just physics', drugs are 'just chemistry', etc.

Re:Obvious things

[king neckbeard]

That something was useful and desirable doesn't mean it's non-obvious. Some obvious ideas are useful. Inherently, somebody is going to be the first party to do something, whether it is obvious or non-obvious.

Re:Obvious things

[Darkness404]

You aren't a martyr for any worthwhile cause then. If you want to look at a martyr, look a Bradley Manning.

Explain how releasing Google's source code benefits the world as a whole. It doesn't. Sure, it might be -neat- and sure, Microsoft, Yahoo, and the rest of them want the information but it doesn't benefit the world as a whole. This isn't some lifesaving cancer drug, this isn't stopping a war, this isn't deposing of a dictator. This is a search algorithm. The most it would do if released would benefit Yahoo, Microsoft, Ask, etc.

He wouldn't be a martyr because this isn't a cause to make someone a martyr because releasing this isn't benefiting the world.

Re:Obvious things

[steveha]

Much of the patented work on MP3 and related psycho-acoustic modeling technology were well predated by work on signal processing for cochlear implants.

As I understand it, it is possible to patent a really new application of known principles. For example, if you invent a new machine that includes a rotating axle, it is not a problem that axles are a known technology.

Some of the principles behind MP3 were known since the 1940s and even earlier. But nobody had ever applied them to the problem of reducing the bit rate of recorded music.

Not only was MP3 a novel invention, it was so novel it was an uphill battle to get MPEG to standardize it. It barely made it in, as the third and least of three audio coders; the "experts" figured everyone would use layer 1 or layer 2, because layer 3 was "too complicated". Those "experts" pointed out that the signal to noise ratio of layer 3 was worse than the other layers; that's actually true, but useless (MP3 was designed to exploit quirks in how the human auditory system works, so it can save space by chopping out parts of the signal that humans can't hear anyway). History has shown that the psychoacoustic approach was the correct one for a reduced bitrate coder, but it was far from "obvious" at the time.

I think the patents related to MP3 and AAC were examples of the patent system working, not the patent system being broken.

Disclaimer: I am not a patent lawyer, but I am working in the area of audio signal processing and I'm somewhat exposed to these issues (so I'm not just making stuff up, here).

steveha

Re:Obvious things

[Eponymous Coward]

That's exactly right. The idea of a laser is not patentable. An actual design of a laser is.

It all comes down to whether or not you think an algorithm is a device. Reasonable people can disagree about this.

Re:Obvious things

[lgw]

Algorithms patents usually are written as device patents, usually starting with "A System and Method to ...". The disctinction is a bit arbitrary to begin with.

Is "a computer programmed to do X" a device? If I have a cool new algorithm for the shift plan for an automatic transmission, is a non-computerized implementation fundamentally different than a computerized one?

Re:Obvious things

[ToasterMonkey]

Especially since the computer code has copyright protection anyway.

Why, lacking patent protection would someone feel encouraged to give you the source to a valuable algorithm? The natural response from those losing wanted patent protection is going to be increased secrecy.

Sure, you can eventually reverse engineer most things, but I fail to see how that advances the state of the art more than full disclosure. I can see how the patent systems needs some reforms, but not protecting software at all is going to evolve valuable software into "hardware", appliances and such.

And uhh, sorry, but the impedance of patents is not holding free software back enough for it to spring up and supplant these black boxes once they come.

Re:Obvious things

[mug funky]

i suspect they chose the 4 weakest patents that they know are bunk and have the highest chance of being overturned.

this will set a very good example for all those other pesky patents they're being sued over.

TFA misses a very important point of strategy - Google aren't filing patents like mad because that's not a game they are playing. they are massive innovators, but their business model is not technology so much as advertising. the patents aren't as valuable to them as they are to Oracle, and if Google lose 576 patents it'll be nothing to the many thousands that other companies stand to lose if they are ever challenged.

Google can afford many lawyers, and these 4 patents might just be the tip of the wedge that they plan to drive into ALL software patents.

here's hoping. the MPEG-LA are already shitting bricks at Google's VP8 e-penis.

Re:Obvious things

[tcr]

Except it's search code would be worthless if publically available. It would be trivial to game it.

Re:Obvious things

[williamhb]

TFA misses a very important point of strategy - Google aren't filing patents like mad because that's not a game they are playing. they are massive innovators, but their business model is not technology so much as advertising. the patents aren't as valuable to them as they are to Oracle, and if Google lose 576 patents it'll be nothing to the many thousands that other companies stand to lose if they are ever challenged.

You might want to check the date of Google's patents. More than half of them are less than a year old. Google is filing patents like mad, to try to catch up with its competitors that already have an armoury of them.

Re:Obvious things

[FuckingNickName]

Nope, SEO outfits are doing a fine job of that already - mostly because PageRank is (imho) a fucking awful and easily exploitable way of judging usefulness.

Re:Obvious things

[Samantha Wright]

I think tcr was trying to make a more general point. Even if it is possible to currently game PageRank, the world will not benefit if it becomes easier to do so, and it certainly won't benefit if Google fixes those shortcomings and then the code is released. Any way you put it, it's a lose–lose situation for us and Google.

Re:Obvious things

[Anonymous Coward]

>valuable algorithm

Algorithms are unpatentable in the entire world.

>more than full disclosure.

Have you read some "computer-implemented method" loophole patents? They usually don't even include a reference implementation.

As for secrecy, there's no way for algorithms to be kept secret. If it's important (and most are not), someone will "reverse-engineer" (i.e. read) it, or just rediscover the same algorithm by himself. It's just mathematics.

And nowadays reverse compilers get you almost the original code back, automatically.

As for putting stuff into hardware, fine, vote with your wallet (also, it's still in there and can be read).

Patent protection for computer-implemented inventions are worse than useless. There's copyright already and the pace of the computer industry is so fast you don't need patents (which is why we don't have them, I guess). If your competitors want to copy something, let them. In the time they take to copy it you are at version 93953539 and they are at version 0.1. How does this even become an issue?

On the other hand, some weirdos who think they invented fourier transform (only a few hundred years late) would be making signal processing a minefield.

And don't forget that pure software shops are the minority of all programming jobs, why have special protection for 0.1% of the programmers (and of these, they would mostly block each other with trivialities), blocking the other 99.9% from doing their work (since everything would be a patent minefield)?

I really wonder where this damn elitism comes from, it's not that there's a lot of missing stuff in computer science anyhow. We've figured out how to program computers, now we program computers.

Re:Obvious things

[Ihmhi]

I think skippy has it right:

Patent Reform:

Patents Are For Inventors Act

You can only file a patent on a physical object. You must have a working prototype, or a set of schematics that can be followed to build a working prototype. Specifically illegal to attempt to patent anything that was not created yourself, or by an authorized representative of you. Attempting to patent something that you did not invent will now be a felony.

No more patenting software, game mechanics, or ideas on how to accomplish things.

Patent Trolling will result in Federal Prison.

Re:Obvious things

[sjames]

I'm not claiming that there was no innovation at all in MP3, it was some nice work but that it was hardly so non-obvious and novel that it deserved a 20 year legal monopoly plus the thicket of follow on patents extending the monopoly. The very same techniques were already in use for years at the time in an even more extreme form.

The objective of the processor in the cochlear implant was to take the entire human auditory range in and drop it down to a signal in 8 to 16 frequency bands (later 32) such that it would be usable for understanding speech or even appreciating music. The big difference between that and MP3 was that the bandwidth was far more restricted and instead of writing the bits out to a file they were translated into voltages on the implanted electrodes.

Patents are supposed to cover new inventions, not new uses for old inventions. The new inventions may contain old inventions within (really that's inevitable) but that's quite different.

There was NO question that lossy compression based on a transform to the frequency domain and dropping information that a listener couldn't perceive would work. The only question was if the reconstructed audio would be good enough for a listener with normal hearing to accept in trade for the compression. A secondary question was if the amount of compression could beat simple lossless compression.

Re:Obvious things

[AvitarX]

I agree with you.

People getting software patents should publish their source code, and not get copyright on it. After 15 years it's public domain. A very good point.

Re:Obvious things

[shutdown -p now]

I don't see the fundamental difference between the arrangement of cogs, springs and rods (say), and the arrangement of conditionals and loops.

Re:Obvious things

[shutdown -p now]

There was NO question that lossy compression based on a transform to the frequency domain and dropping information that a listener couldn't perceive would work.

But isn't MP3, essentially, a specific method of determining "information that a listener couldn't perceive"? I'm not familiar with details, so excuse my ignorance, but doesn't Vorbis also does what you describe, without touching MP3 patents? If so, the latter would seem to be pretty specific, as a good patent should be.

Re:Obvious things

[dave87656]

Patenting software is like patenting math.

Re:Obvious things

[sjames]

Actually, it's a huge mess. Many entities have made many claims on pretty much anything that conforms to the standard file structure and plays audio. Every possible abuse of patents has been tried in some form or another in the area of MP3.

Re:Obvious things

[bit01]

I don't see the fundamental difference between the arrangement of cogs, springs and rods (say), and the arrangement of conditionals and loops.

Artificial scarcity anyone? One is copyable/usable by 6,900,000,000+ people at little or no cost. The other isn't.

The onus is on any patent proponent to show why billions of people should be blocked from using an idea, their free speech, to give a small number of people additional profit, for every single area of technology. Not for anybody else to prove that patents are not applicable.

Patents are a damaging, unnatural monopoly and by default should not exist unless there is compelling, scientific evidence, not anecdotes, that patents actually help rather than hinder in every single area of technology where they may be applied.

Particularly since there are vast swathes of ideas that have no patent protection and those areas of technology work just fine. Everything from cooking recipes to math to locating businesses to business organization to artistic ideas to political ideas to ...

The whole patent edifice is based on handwaving about what it means to say two ideas are the same or different (fundamental to deciding whether something is original or not). They can't even cope with the difference between inventing new words and inventing new ideas. The PTO's depth of thinking is atrocious.

---

"It is difficult to get a man to understand something when his job depends on not understanding it." - Upton Sinclair

Re:Obvious things

[thirtyfour]

Computer code is not patentable. If you actually read a "software patent," you'll see that they claim something along the lines of "A computer-based method for doing X, comprising using a computer to calculate A, B, and C, running operation Y on values A, B and C, then doing Z." If you try to file an application for "a computer program for doing X, comprising..." it will be swiftly rejected as not patentable subject matter.

Re:Obvious things

[thirtyfour]

Software or an algorithm AREN'T patentable. If you submit a patent application for some software code or an algorithm per se it will be immediately rejected as non-patentable subject matter.

Re:Obvious things

[Eponymous Coward]

I think the difference between a device and an idea is the specificity of it. You can't (or shouldn't be able to) patent the idea of a device that catches mice. However, you should be able to patent a particular arrangement of springs and levers that constitute your particular device that catches mice.

For computer code, you don't patent your source or object code as it's covered by copyright. Trying the patent the idea that is manifested in that code is akin to patenting the idea of a mouse trap.

Even if you were able to convince me that the benefits of allowing software patents is greater than not allowing them, you would never be able to convince me that a 20 year term makes any sense at all.

Re:Obvious things

[shutdown -p now]

Artificial scarcity anyone? One is copyable/usable by 6,900,000,000+ [census.gov] people at little or no cost. The other isn't.

Um, what? Both are ideas. Idea easily copyable. That's why we have patents in the first place.

In any case, you seem to be anti-patent in general. I don't see much point in debating that angle - there's too little common ground. I was responding to GP, who was contrasting algorithm (software) patents against device patents and trying to demonstrate that there is some fundamental difference that makes algorithms unpatentable.

Re:Obvious things

[shutdown -p now]

You can't (or shouldn't be able to) patent the idea of a device that catches mice. However, you should be able to patent a particular arrangement of springs and levers that constitute your particular device that catches mice.

Patents are by definition about protecting ideas. Consequently, you're not required to be overly particular - for example, you don't have to restrict the patent to a very precise placement of components, or specify exactly what material they're made of. Just so long as your description is for a clearly separate and distinct idea. For example, Watt had effectively patented the use of a separate condenser in his steam engine.

Patenting very specific things is essentially useless, since then anyone could replace or adjust one bit such that the patent no longer applies, without hampering the effective function of the device. Though I do agree that some reasonable middle ground must be found - overly broad patents are actively harmful.

But then all of the above also applies to algorithms. Again, replace mechanical arrangement of components with arrangement of common code "building blocks" (functions, loops etc), and that's it. And, again, it would be useless if you could only patent, say, the precise arrangement of tokens in a particular language, such that merely rewriting the algorithm in a different language, or refactoring a few parts into their own separate functions, would be enough to circumvent it. It needs to be as specific as it takes to cover a new and clearly distinct idea, and only it - but no more specific than that.

As for copyright. I do think that a reasonable requirement for software/algorithm patents would be for the submitter to provide an implementation of said algorithm, with all rights to that code signed off to public domain. Maybe with additional restrictions - e.g. require a certain language or choice of languages that are reasonably expressible (so that they don't supply it in form of a Brainfuck program). The patent owner could then still have the code fir the actual products in which he uses the patent (which can, in fact, use code different from the patent submission) to be copyrighted; the point is that a reference implementation exists, both as a proof that the patent represents an implementable idea, and to be there for everyone to use immediately once the patent expires. It would also serve as a stricter formalization of the patent clauses, keeping them narrow, and helping anyone determine whether and how the patent affects.

On terms, I agree absolutely. For that matter, I think that copyright terms (even as originally specified, 14+14 years) are not reasonable, either. Though perhaps this should be field-specific - in fast-developing fields (such as IT), you'd want shorter terms so as not to block progress, and because it is reasonable to assume that all new inventions are "borderline obvious" (i.e. if not this guy, than another would discover it anyway in a year or so). In well-established fields with little new research, longer terms for genuinely new ideas can be provided. Same for copyright - some types of media have longer "shelve life" than others, and it makes sense to vary the term accordingly (e.g. books longer than music, music longer than movies, movies longer than software) - with at most 5 years on the shortest end of the scale.

Better yet, don't restrict the term at all, but require a fee to be payed after a certain reasonable but short period of time (say, 1-2 years), with said fee increasing linearly with time - that way it becomes economically unreasonable to maintain copyright for too long, but the precise length is defined by ongoing commercial success (which presumably roughly reflects quality and originality) of the work. Once the fee stops being paid, the work falls to public domain.

Re:Obvious things

[Eponymous Coward]

You might be technically correct, but practically you are not.

Try writing and distributing a video compressor without getting sued by MPEG-LA. If I can write software that infringes on a patent, then software is effectively patentable.

Re:Obvious things

[Eponymous Coward]

Patents are by definition about protecting ideas.

This patent attorney disagrees with you.

Re:Obvious things

[WorBlux]

Algorithms are unpatentable. All the current patents are about the application of a particular algorithm to a particular application.

A singular value disposition is just math. You may no patent a natural law., but a singular value disposition using variable names related to dating is patent #6,734,568.

It's pretty inane, and this usually any software patent is.

Now compared to rockets. The idea of thrust is not patentable, just as the idea of a singular value disposition is not patentable.

Now a particular instantiation of thrust say using ion beams of a particular metal alloy isn't exactly obvious even if you know about the general idea of thrust. Give any rocket scientist the general idea of thrust or even ion beam thrust, and it's not particularly obvious to anyone that this particular alloy has exceptional qualities.

However knowing the general idea of a singular value disposition, any software engineer worth his wage can quickly figure out how to map to to data with variable names related to dating into that algorithm.

Re:Obvious things

[shutdown -p now]

Frankly, this is just legalese. An invention is an idea, fundamentally. Yes, you need an actual implementation to patent it rather than a "mere idea", but it's the formalized idea that is the core of any invention. Simply put, an invention is an idea that is implemented and works. And the novelty requirement (at least when properly applied) essentially requires it to be a new idea.

Re:Obvious things

[Hognoxious]

Patents are by definition about protecting ideas.

No, no, no. An idea on its own is worth no more than a wish or a prayer. "Wouldn't it be great if..." requires no effort and deserves no reward.

A horseless carriage is an idea. You can't patent that.

But an Otto cycle engine is an implementation of an idea, and that is patentable.

Re:Obvious things

[Hognoxious]

Artificial scarcity anyone?

The scarcity is only artificial if you think the original magically fell out of the sky.

One is copyable/usable by 6,900,000,000+ people at little or no cost.

Little or no marginal cost.

You talk, in pseudo-economic jargon, about the cost of copying as if it was the act of creation. It isn't. Symphonies, stories and software don't write themselves. If someone didn't put in the initial labour, there'd be nothing to copy.

Only somebody who's never created anything could possibly talk such retarded shit.

Re:Obvious things

[Hognoxious]

WTF is an 'obvious idea'?One that - when you see it become commercially successful - you and your buddies at Moe's Tavern are 100% sure you thought of first.

Re:Obvious things

[Raenex]

Algorithms are unpatentable. All the current patents are about the application of a particular algorithm to a particular application.

That's a meaningless statement, in that the same applies to a mechanism in the physical world. It has to do something useful. So for all practical purposes, algorithms (like RSA, for instance) are patentable.

Quoting Florian

[symbolset]

Dangerous business, that. Bad for an author's reputation. He's just another Enderle, O'Gara, or DiDio now. A shame, that. He did good work once upon a time.

Re:Quoting Florian

[omb]

Seconded, and He certainly dosn't understand how irritating and anoying are his intervention in blogs eg "lwn.net" which are technical and we do not care for one who must have the political LAST WORD, again and again and ...

Not going to happen.

[olsmeister]

I'm pretty sure if they granted them the first time around, they're not changing their mind. It's not like there's been some kind of change to the patent laws between now and then, and changing the decision would really amount to admitting they screwed up the first time.

Re:Not going to happen.

[Anonymous Coward]

It's lobbying game now, actually. The one who pulls the right strings wins.

Re:Not going to happen.

[icebike]

Why, yes, there has been changes to patent laws since then.

Several court rules, including a couple from SCOTUS have changed the rules. You might think these don't apply retroactively, but a review is not strictly a retroactive action. They would have to apply the current standards for any review.

Things like Prior Art, Obviousness, overly broad patents have all had reviews in the courts, as any google search will reveal.

Patents are challenged almost weekly, and a significant number of these are invalidated.

Re:Not going to happen.

[king neckbeard]

patents do get invalidated fairly often.

Re:Not going to happen.

[Lloyd_Bryant]

I'm pretty sure if they granted them the first time around, they're not changing their mind. It's not like there's been some kind of change to the patent laws between now and then, and changing the decision would really amount to admitting they screwed up the first time.

Don't bet on that - the USPTO does grant reexaminations, but regularly changes or invalidates patents based on reexaminations.

In the case of 3rd party requests for reexamination such as this, if the reexam is granted, there's a very good chance the patent will either be invalidated, or some of the claims will be removed or changed (about 71% according to this (somewhat old) report).

Re:Not going to happen.

[macshit]

Eh? The courts most certainly have invalidated patents before...

A lot of granted patents probably wouldn't stand up to the higher level of scrutiny given by a court.

Re:Not going to happen.

[VMSBIGOT]

I would say that Zork has them beat by quite a few years on VM design. Now I agree that you could say that it wasn't a general VM but it obviously is prior art.

http://en.wikipedia.org/wiki/Z-machine

Re:Not going to happen.

[Dachannien]

The key is that a re-exam is granted when the requestor presents evidence (i.e., prior art) indicating a "substantial new question of patentability". Usually, this means prior art that the PTO didn't have ready access to, such as something not published online.

Patent examination is not a perfect process. It's essentially an attempt to prove a negative (i.e., the prior art in question doesn't exist). The examiner can search for an increasingly long period of time, but the return on that increased time diminishes rapidly. Maybe there's one item of prior art out there somewhere, but if the examiner can't find it within the time allotted, it might as well not exist.

That's not cricket grommit

[Anonymous Coward]

I was under the distinct impression that the way this game is played is that they make a backroom deal, then cross license their "technologies," and then threaten and intimidate all the "little people." Actually fighting back and going after the patents themselves seems very unfair and not very nice. Shame on google for not playing nice and thinking different. This can only be bad for business.

Re:That's not cricket grommit

[AvitarX]

Doesn't work with GPL code.

Unless they only allow distribution in areas that the patents are invalid (there is an exception in the GPL allowing that restriction to be placed on redistribution).

This could be interesting...

[bogaboga]

...because if any of the patents are found to be unenforceable, because of either prior art or obviousness, then Oracle's suit falls apart. Take a look at RE38,104. This appears to be prior art.

Interesting times lie ahead.

Disclaimer:

I am rooting for Google.

Re:This could be interesting...

[Bill_the_Engineer]

Take a look at RE38,104 [google.com]. This appears to be prior art.

I looked at it and it appears to be owned by Oracle. Was there something else we were supposed to look at?

Re:This could be interesting...

[thunderdanp]

...because if any of the patents are found to be unenforceable, because of either prior art or obviousness, then Oracle's suit falls apart.

It's important to understand that in reevaluation, Oracle's patents would not be considered unenforceable, but simply not patentable as being anticipated or obvious. In reexamination, there is no patent

Re:This could be interesting...

[thunderdanp]

I meant reexamination, not reevaluation

Re:This could be interesting...

[VGPowerlord]

...because if any of the patents are found to be unenforceable, because of either prior art or obviousness, then Oracle's suit falls apart. Take a look at RE38,104. This appears to be prior art.

Interesting times lie ahead.

How did this get modded "Insightful?"

Here's a quote from the original lawsuit filing from August last year:

Android (including without limitation the Dalvik VM and the Android software development kit) and devices that operate Android infringe one or more claims of each of United States Patents Nos. 6,125,447; 6,192,476; 5,966,702; 7,426,720; RE38,104; 6,910,205; and 6,061,520."

(emphasis added)

In other words, this "prior art" you posted is one of the patents that Oracle is suing Google over, that Oracle acquired when they bought Sun Microsystems, Inc.

Re:This could be interesting...

[The Moof]

Not only is it owned by Oracle, it's even listed at one of the patents being infringed upon in the original complaint.

Re:This could be interesting...

[arth1]

Um, so? Who owns the patent that's prior art doesn't exclude it from being prior art, does it?

Of course, it can't be considered prior art for itself, but it can very well invalidate the other patents by the same patent holder.

If I patent "generic drinking vessel made from glass", I can't very well patent "generic vessel for drinking made from crystallized silicates" a couple of years later, because my own prior art would exempt it. Else one could abuse the system to prolong a patent ad infinitum.

Re:This could be interesting...

[mywhitewolf]

source? that's pretty big news.

A better source...

[messagelost]

Here's a better dissection of Google's letter: http://www.groklaw.net/article.php?story=20110216210828960

Some choice parts excluded from the OP's articles:

> materials identified by Oracle as infringing in fact created by a third party and released into the public domain

> the only two files allegedly containing "copied" code were created by Google and provided to Oracle for use in open source releases of Java

Hypocrisy

[Tharsman]

I am one to agree that software patents should not exist (and non software ones should be only for exceptional inventions, not for tiny progress in a field) but I hate hypocrisy even more.

Google, go for revision requests the day you stop requesting patents left and right, and volunteer your own collection to be invalidated.

It won't be until some of the big patent holders themselves complain to the government about the horrible use of patents that things may change.

As long as they try to play the patent game, though, they should suck it up and play by the rules of the game they support when it's convenient for them.

This holds true for Apple too, won't bother bringing Microsoft since they are beyond hope.

Re:Hypocrisy

[thunderdanp]

I don't see how Google's actions are hypocritical. What is the link between four patents owned by Oracle and Google's entire patent portfolio? If Google's patents are a: invalid and/or b: standing in the way of progress, rest assured Google's competitors will contest their validity, much the same as Google has done here.

Re:Hypocrisy

[Tharsman]

All patents are in the way of progress, Google patents included.

Re:Hypocrisy

[king neckbeard]

What Google is doing is pretty standard practice. When you get sued for patent infringement, you do your best to invalidate the patents in question because if you can, then the lawsuit becomes meaningless. Google is about the only big player that hasn't started any high profile lawsuits, so I don't really see it as hypocritical. I would love for Google to vocally stand against software patents, though.

Re:Hypocrisy

[thunderdanp]

While that's true to a certain extent, one cannot overlook the value of patents in rewarding innovation by preventing intellectual theft.

Re:Hypocrisy

[Tharsman]

In the world of software, that is addressed by copyrights. Patents simply monopolize progress, and the worst part is very often is a monopoly only used to lock a door, not even to actually implement said progress.

Re:Hypocrisy

[thunderdanp]

Copyrights and patents function very differently. One difference is the so-called independent creation, where if two people write the same code, neither having seen the others, they both have rights to use that code and obtain copyright in it. This protection is very different from the monopoly granted by a patent, which prevents all second-comers, regardless whether they knew of the patent, from practicing the invention. So when comparing copyright and patent law, one does not supplant the other, and frequently they address different issues. Boiling that down, patents protect the idea/function achieved by the code (performed by a machine, of course), while copyright protects the expression of that idea/function (the individual lines of code).

Patents simply monopolize progress, and the worst part is very often is a monopoly only used to lock a door, not even to actually implement said progress.

What are you relying on when you say this? Oh, and as a patent agent, I can tell you that patents do nothing simply :)

Re:Hypocrisy

[king neckbeard]

Intellectual theft does not exist, so we can ignore that part, and the point of the patent system is not to reward innovation, but to encourage it. If the patent system is getting in the way of innovation more than it is encouraging it, then the social value of the patents is negative.

Re:Hypocrisy

[Bill_the_Engineer]

Unfortunately, the patent system is being abused and the USPTO appears ill-equipped to evaluate the patent worthiness of software.

If word processing was patented then Wang would have prevented most of home and small business computing in the 80's. It could've happened.

I'm not commenting on the validity of Oracle's patents that they purchased from Sun.

Re:Hypocrisy

[thunderdanp]

Intellectual theft does not exist, so we can ignore that part

To me, that suggests you do not believe there is any such thing as intellectual property, since the wrongful taking of property is usually regarded as theft. With how easily you summarily dismiss the notion of intellectual theft, I don't think I will bother to point out the folly in your position.

and the point of the patent system is not to reward innovation, but to encourage it

While I recognize and appreciate the distinction you have pointed out, I think that the method in which innovation is encouraged in the U.S. and the rest of the world could fairly be characterized as a reward. Patent systems only give inventors beginning their inventive work the promise that, if the invention is sufficiently creative and different from the prior art, they will be able to prevent others from copying their invention. This ex post facto system, to me, is equally a reward as well as an encouragement.

If the patent system is getting in the way of innovation more than it is encouraging it, then the social value of the patents is negative.

This is an extremely difficult determination to make. I suggest that if you make it based on those instances where there is litigation around a given patent, and more to the point the media picks up on it, then your judgment might be skewed. The value of the patent system goes far beyond what the media reports.

Re:Hypocrisy

[thunderdanp]

Then let us be thankful we have the judicial system to address those instances where the PTO issued a patent they might not ought to have. No system is perfect.

Re:Hypocrisy

[Tharsman]

Patents simply monopolize progress, and the worst part is very often is a monopoly only used to lock a door, not even to actually implement said progress.

What are you relying on when you say this?

What you yourself said (bolded)

Copyrights and patents function very differently. One difference is the so-called independent creation, where if two people write the same code, neither having seen the others, they both have rights to use that code and obtain copyright in it. This protection is very different from the monopoly granted by a patent , which prevents all second-comers, regardless whether they knew of the patent, from practicing the invention. So when comparing copyright and patent law, one does not supplant the other, and frequently they address different issues. Boiling that down, patents protect the idea/function achieved by the code (performed by a machine, of course), while copyright protects the expression of that idea/function (the individual lines of code).

If you refer to the "door lock" part, I refer to the flood of patent trolls that do just that.

That paragraph also happens to very clearly state some of the reasons I dislike patents (for one it is becoming more expensive to research if whatever you are doing is already patented than it is to develop anything in the software world.) I should not be able to redistribute some one else's code, I should not be able to clone some one else's software to the T, but I should have the freedom to come up with things on my own that happen to work the same way some other guy somewhere thought off first.

Re:Hypocrisy

[thunderdanp]

but I should have the freedom to come up with things on my own that happen to work the same way some other guy somewhere thought off first.

I know this goes against everything Slashdot discussion board stands for, I disagree with your position, but understand and respect it.

My only question is where does this line of reasoning end? Does it only apply to software? If so, why? Does it have to do with the generally lower cost of development when compared to other industries? Or is it something else? I've never been quite sure why. Another reason I have heard is that an invention patented in a "software patent" is usually obvious. If so, should the PHOSITA for software be higher? Or should software have a different test for obviousness? I am pretty comfortable in saying the SCOTUS won't go for that.

Re:Hypocrisy

[king neckbeard]

To me, that suggests you do not believe there is any such thing as intellectual property, since the wrongful taking of property is usually regarded as theft. With how easily you summarily dismiss the notion of intellectual theft, I don't think I will bother to point out the folly in your position.

I acknowledge that patents and copyrights exist, but even if one compares copyright and patents to physical property, what happens is infringement, not theft. It's actually much more like trespassing (use without permission) and even vandalism (harming value) than theft (taking), but a comparison to any of these is a poor choice. Theft is the absolute worst choice for a description.

This ex post facto system, to me, is equally a reward as well as an encouragement.

The point is that the reward is the means to an end, not an end unto itself. We reward inventors because we think that rewarding them will cause them to be more likely to invest in research, and that the social benefits of the reward will outweigh the social costs. If we conclude that what we thought happens doesn't, than patents are malicious, and we should rid ourselves of them.

This is an extremely difficult determination to make. I suggest that if you make it based on those instances where there is litigation around a given patent, and more to the point the media picks up on it, then your judgment might be skewed. The value of the patent system goes far beyond what the media reports.

I'm not basing this just upon media reports, although they often report some disturbing flaws within our system. It can be difficult to determine, but analyzing evidence with a proper methodology can give us some kind of idea. Most of the data I've seen suggests that it's not an effective mechanism, typically resulting in roughly the same or lower levels of productivity. Perhaps especially worrisome is the cultural imperialism we've engaged in, using trade policy to pressure developing nations into adopting laws on par with our own, and the ratchet-like mechanism of 'harmonization' that keeps saving Mickey Mouse from falling into the public domain.

Re:Hypocrisy

[JustSomeProgrammer]

I think that this is probably the calmest most rational discussion of this subject I've ever seen on Slashdot

Re:Hypocrisy

[mywhitewolf]

If I understand his statement, his line of reasoning ends when there is no patients, to which i agree. If you have an invention (you spent thousands developing let say) but you struggle to make money off it because competitors are doing it cheaper, is that a fault of "the system" or just the inventors bad business sense. if a competitor is able to copy your design / idea before you can re-coup your losses then its not a very ingenious invention is it?

Re:Hypocrisy

[Rysc]

Oh yeah? Well how about I patent your FACE with my FIST?

Re:Hypocrisy

[Hognoxious]

If you have an invention (you spent thousands developing let say) but you struggle to make money off it because competitors are doing it cheaper, is that a fault of "the system" or just the inventors bad business sense.

Ummm, it's the fault of the freeloader benefitting for free from the R&D that the inventor paid for.

if a competitor is able to copy your design / idea before you can re-coup your losses then its not a very ingenious invention is it?

Well said. We all know that when a new invention comes out everybody who is going to buy one does so the day it's released, keeps it for life, and never needs to buy another.

Patent-trolling

[sageres]

As a Sun admin I have found that ever since Oracle bought Sun, they have dropped support and development for number of products, and asserted their "big brother" control over others. Oracle has since bullied many (including Google) for the patent code. I keep wondering... Is Oracle becoming a patent-trolling company? It is obvious that only Google at this time can go head-to-head with Microsoft in every area of the Market... why can't Oracle do what it did best... continue working on the databases? Otherwise, I do not think the computer industry can afford another SCO to hinder innovation and development being threatened by the patent-holders.

Re:Patent-trolling

[lakeland]

Nah, not patent trolling. Oracle cares about control, and they'll get control any way they can. If they can leverage patents to get control they will.

Summary Time

[YojimboJango]

Article summary from this and Groklaw:

Court: You're slamming us with paperwork so if you want to load our asses up with any more you have to summarize it first and give the other guy a chance to write a short summary of why you're full of it.

Google: Summary time then. You can't patent byte code and virtual machines. We're asking the US Patent office to take a second look at these dumb patents, and we're also asking that we put the whole trial on hold till we get an answer.

Court: You're still on the hook because Oracle says you have bunch of copied source files in Android. That's copyrights not patents.

Google: All but 12 of those source files are interfaces and we've got 3 previous cases that show that you can copy interfaces because they're interfaces and don't contain any actual code.

Google: Also two of the 12 files that they're suing us for were written by Google employees and given to Sun under an open source license.

Google: The remaining 10 files that we're totally not admitting that we straight stole from Java comprises less than one percent of the Android code base so we can get away with it because of "de minimus", which basically means we legally get to copy your crap so long as we don't do it too much.

Google: So basically Oracle copyright claim is full of crap and we should dismiss this whole case till the USPTO gets a chance to look at the patents.

Oracle: We've got two days to come up with reasons that you're full of crap, so expect a formal response soon.

Re:Summary Time

[slimjim8094]

As I understand it, the 10 files aren't even part of Android - just a test suite. Sure, they should've been more careful, but this is perhaps the least significant part of the code base - a small and unnecessary (could be replaced with custom code) part of a *test suite*.

And as soon as it was brought to their attention, they deleted the files. Of course, it's source control, but the files are already available as part of the Java testing kit - their source is available, but it's not open-source.

I think the patent allegations are flabbergastingly more important than this. I'm astonished they're even trying to make a case for copyright - or I would be surprised if it wasn't Oracle.

Have a look over here

[bogaboga]

Sorry for the late response but a read over here can tell you a lot about what I was talking about.

Patently Mad Re:Obvious things

[Anonymous Coward]

Is 250 patents per year really filing like mad? IBM received over 5000 patents in 2010. It took them more than 50 years to get their first 5000...

So if they got 5000, how many did they file (actually the way the USPTO works it was probably close to the same). Still, I suspect that the GP was closer to right than the parent. They both raise valid points. Certainly Google is smart to get some patents as armour. Still, I suspect their primary tactic is going to remain simply out innovating the competition so fast that the patents are meaningless. And if they can kill two birds with one stone (scrapping software patents and winning java freedom) all the better.

Re:Patently Mad Re:Obvious things

[Permutation Citizen]

Anyone working in software R&D for a big company knows that such patent filling numbers are absurd. Sure great research is done at IBM, but 5000 patents... This becomes just another metric for management. Employees have objectives and rewards to fill maximum number of patent idea.

Off course quality of these patents is really low. I have seen patent on stuff everybody already do for years.

I've even seen someone patenting a design failure. We had to cope with his faulty software, because to save time for him he used a ugly trick that cause plenty of issues for other system parts. Then we heard he was given a reward for patenting his bug.

Re:Patently Mad Re:Obvious things

[thirtyfour]

The PTO has about a 25% allowance rate, so assuming IBM's applications are "average," they would have to file about 20000 applications to get those 5000 patents. Of course, they might have a strategy of filing tons of very narrow (and so easy to get) applications rather than fewer broader (and so harder to get) applications.

Re:Florian Mueller should not be trusted at all.

[Rysc]

Anyone serious about this topic should most of the above. Mr. Mueller is knowledgeable but his opinions must be taken with a large grain of salt.