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Interview With 'Idiot' Behind Key Software Patent
An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"
My God, what idiot wrote this mess, without even commenting it. A few beats later. Oh, I did this. Oh this is bad, very bad. I can see why I didn't comment this. :::moves on:::
It just shows that most people have double standards. When they or someone they know do it, it's all good. When it's someone else, it's the root of evil.
Thank Slashdot, it was really helpful.
How is he an anonymous reader if his name is in the second sentence of the article?
I wonder, could you get a patent on patents?
After all, its a business model. Isn't that patentable in the US?
If so, you can charge the patent office, and presumable make it uneconomic to enforce any patent
It's CmdrTaco's fault we have idiotic software patents?
But I hate individual website comment systems...
...back to court!
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
I couldn't agree more.
Ever look at some crappy code, wonder what moron wrote it, then go to the change log and see your own name?
Been there, done that.
There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.
"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.
"End the venue shopping for lawsuits"
The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).
"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"
Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.
Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
and he is us.
If there is no God then free will is an illusion.
"As we've pointed out in the past, it's incredibly difficult to get a totally bogus patent lawsuit dismissed without it first costing you a ridiculous amount of money. Other types of lawsuits are much easier to get dismissed. Why not patents?"
It's simple. In the judicial realm it is assumed that the Patent Office has already thoroughly examined the patent in question through a rigorous process and that the chances it could be invalid in some way are considered to be slim.
Of course, that's half the problem, because the assumption of thoroughness is wrong, which is why the Patent Office really does need something like the "panel of experts" mentioned in the article.
Either give the USPTO sufficient time/resources to determine if applications are valid, or assume they are invalid until proven in court.
From TFA: "... because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
I couldn't agree more.
Except that both the article author and you don't understand what prior art and legal obviousness are. That prior art exists does not mean that something is not new: prior art is any relevant art in the field that was published or publicly available prior to the filing date. RFC 793 (TCP) is prior art for RFC 2460 (IPv6) because it's in the relevant field (networking protocols, albeit a different layer) and was published earlier.
What you and the article author think prior art means - "is this new" - is actually whether an invention is novel under 35 USC 102. An invention is not new if a single piece of prior art discloses each and every element in the claimed invention.
Obviousness, on the other hand, means that while a single piece of prior art doesn't disclose the whole invention, multiple pieces of prior art can be combined to teach or suggest each and every element of the invention. In other words, if the patent application claims "A+B+C+D" and no one has ever done that before, it's new... but if a prior art "A+B" exists, and prior art "C+D" exists, then it may be obvious to combine those two pieces of prior art to get "A+B+C+D" and the invention is obvious.
Why this is important is because, by misunderstanding that art has to be prior, even for the purposes of obviousness analysis, you're asking the wrong question... Essentially, you're asking whether, in hindsight, the innovation was too trivial or minor to be awarded with a patent. But that's improper - almost everything is obvious in hindsight. That's why the patent office has to rely on prior art to show obviousness - they can't just say, "eh, I think this invention is obvious." Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention. If they can't find one - if, "A+B" exists, and "C" exists, but there's no art for D, then A+B+C+D can't be obvious except in hindsight.
If he thinks that patents are stupid, and have one key patents on which depends the almighty credit system, could be used as a tool to really invalidate all those trivial and not so trivial patents hanging around that are screwing innovation worldwide. Or just make a metric ton of cash of it, anyway that alone won't solve the deeper problem.
Hey, as long as he's an "idiot", how about getting him to lose the case defending his patent, so badly that it sets court precedent? Most of the ruling precedents (on adapting and reusing and refurbishing something patented) go back to an 1800s cotton baler case. http://www.wcl.american.edu/journal/lawrev/48/gajarsa.pdf?rd=1 Please, defend your patent! Just try to do it hideously and incompetently.
Gently reply
1. It is a mental process or it could be. I like that argument if it weakens software patents. But as the article points out, generally speaking, software patents are obvious or have prior art which has not been patented previously. Moreover, we see a lot of implementation shifting where "... on the internet" or "... on a computer" is added to things which are already done elsewhere.
2. Software development and innovation is a massive community effort. Even in the closed source world, ideas, methods and techniques are borrowed from all over. And development moves extremely fast as new and revolutionary things appear quite frequently. The problem is there are people who have decided that the realm of software development is ripe with patent violations because, as mentioned, the culture exists where everyone borrows from everyone in one way or another. So how we have a patent system where innovation is being hampered by the very same system which was supposed to enable it.
The way I see it, as early as the rotating table in a microwave oven, we have outgrown the patent system. [The threat/fear of] Patent litigation has been putting a pall on all sorts of creation and innovation. It has been a way to prevent, block and kill competition. It is no longer a thing which serves the people and now it harms the people.
Let's not debate whether or not some software is worthy of being patented. Let's look at the institution of patents to see if it is still a good idea. I'm just not sure it is any longer.
So he can't defend it badly.
it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules.
But should it be?
I think that a new novel invention that takes metabolic readings should be patentable. I mean, it has to have some form of input from the patient, be it a new invention to measure blood pressure or a new invention to measure blood-sugar levels, etc...
But why should adding an 'alarm' to it be patentable? That sounds like a really OBVIOUS addition. Why should making it 'automatic' be patentable? Not only does it sound like an obvious idea, it's not an invention, it's a process.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
I was once reading the "letters to the editor" column in a major trade journal, and ran across a letter that said everything I always wanted to say about a particular subject. The letter was concise, insightful, and incredibly lucid, so I looked down to the end of it to see what genius wrote it -- and it was me!
A few weeks earlier I had had a case of shingles, and was given some pretty stiff prescriptions for Vicodin and Percocet to dull the pain. As it turns out, they also caused memory problems; I had the nervous pleasure over the ensuing weeks of finding several letters-to-the-editor over my name in journals to which I subscribe, none of which I remember writing.
Fortunately, none were defamatory or otherwise embarrassing -- or maybe the editors just deleted those.
The "idiot" says that his "invention" is a mental process (so that it can not be patented) because anyone could do it without a machine. But then he stated that in reality the process would be very slow, so in reality a machine is needed and thus his "invention" can be patented.
This line of reasoning is flawed because that would make the Fast Fourier Transform patentable too. It is mental process but it is too slow to do it without a computer. And FFT affects everything and anything more complex that summing the expenses of the groceries. Imagine the revolutions that would not have happened if FFT was patented.
The same could be said about the pythagorean theorem; it is a mental process but too slow to compute without a calculator. And don't forget that D. Knuth has famously said that algorithms ARE math.
From the article:
This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.
HAHAAHAHAHHHHAHAHHHHHAHHHAAAAHAHAA. That was awesome. My eyes are watering. Man, I've been working long hours for the past week or two, and I needed a good laugh this morning.
That is absolutely precious. OK, Mr. Masnick: I hate to be the one to bear this bad news, so I'll try to do it gently. Congress is not interested in protecting entrepreneurs, the middle class, small business, or any of the other drums they beat so frequently. When a Congress person says "We have a responsibility to protect XYZ", it is like when the President says, "I have complete confidence in Michael Brown". It means "The referenced person/class is a freaking albatross that I would sooner toss down the oubliette than spend one more minute thinking about, but professional politicianing requires that I pretend I don't want to gut it and sell the tender innards to my friends."
Congress cares about lobbyists with a lot of money. Period. End of story. Entrepreneurs have jack shit. Entrenched incumbents have the money. Entrenched incumbents are who is served by patent policy. Congress is entirely awake and aware of who their puppet masters are.
Want proof? Read this. We are the only country in the world that still rewards the inventor with the patent, instead of the company with the fastest lawyers. It is blindingly obviously the right way to reward innovation instead of litigation. It is so obvious that for Congress to accept First-to-File would be indefensible as supporting innovation or entrepreneurs to anyone who has even a remote knowledge of the patent process. And for inventors who have lots of patents, like my Father, the idea of First-to-File is enough to send him into a half hour apoplectic tirade that makes me fear for his heart. Yet the movement to make the switch is alive and kicking, and probably going to happen within the next few years. Why? Mostly because with every check Microsoft writes to damned near every person in Congress, they say, "Oh, and pass first-to-file -- we're tired of only getting patents when one of our employees invents something."
Stop-Prism.org: Opt Out of Surveillance
..then all laws are reasonable.
The legal definition of obviousness as you describe it is not what I would call a definition, it's a method for testing obviousness (has it been patented?). Was that what was intended when they first formulated the principle that an invention is only patentable when non-obvious to someone with ordinary skill in the art (before working out the details I mean)? Or did they have the ordinary meaning of obvious in mind? If so, the method should do a reasonable job in testing the ordinary meaning. If in a changing world the result of the test drifts away from that meaning then it's time to design a better test. Not doing that undermines the justification for having a patent system.
US Constitution, Article 1, Section 8, Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
That's ->TO PROMOTE THE PROGRESS-, and "SECURING FOR LIMITED TIMES", not "protect innovation".
mark
In your stupid story description, you wrote:
"then I realized the idiot in question was me."
should read:
"then I realized the idiot in question was I." ....Moron.
Yours In Novosibirsk,
Kilgore Trout
The FIRST step to a patent approval should be "Could this be done as a trade secret?". If the answer to that is "No", then no patent. The quid-pro-quo of a patent is that INSTEAD of keeping something secret and holding back innovation or improvements on the design, you're given a patent so that you don't have to keep it a secret to protect your investment.
If you can't keep it secret, then we, the public, have nothing to gain by letting you have a patent. You either use it and we can see what you did, or you don't, in which case you make no money.
I hold the patent on the process of filing for a patent.
How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?
I know next to nothing about the USPTO's hiring practices, but I don't see anything wrong with this statement once it has been reworded using positive language: "I want to focus on quality to make sure that only inventions worthy of a patent get a patent. This will bring good reputation to the Office."
Or they file the software patent because that's the game, and not filing it means the competition will shut them down when they have no stack of IP to bring to the table.
As opposed to a stack of IPX, or a stack of DECnet, or a stack of AppleTalk?
Seriously, an inventor might file the patent application and offer a blanket license for use of the invention in software distributed under a copyright license meeting the DFSG. This gives the FSF and friends what they want while keeping the option open for the inventor's company to add its stack of patents to uniform-royalty patent pools for non-free use.
'Obviously, this ridiculous patent is valuable to the huge filing corporation, so I'm green lighting it in exchange for a large stack of untraceable hundreds that will surreptitiously show up in my mailbox.'
The only difference between first to invent and first to file is what happens when two inventors independently invent the same thing and file patent applications within a short period of time. It applies only to patent application vs. patent application disputes. Patent application vs. prior art disputes are still handled under novelty.
It's a pity that this phrase is meaningless. Software is a means of execution of an idea, not its embodiment.
> Patents aren't meant to protect innovation at all.
His idea of "innovation" is more along the lines of promoting the progress of science and useful arts.
> Trade secrets do a much better job of protecting innovation, since they last forever.
Yours idea of it is very different.
The US federal government already pays for about 99.9% of medical research.
The major pharmaceutical companies all spend more than two dollars on marketing for every dollar they spend on research and about as much on lobbying. Most of all their "research" is government required safety and effectiveness testing and a significant part of the remainder is "market research" which is really more marketing than science too.
Likewise most fundamental research in other fields is also supported by the public: Even with the full protection of patents real inventiveness is seldom very profitable.
I get frustrated whenever I read someone saying this sort of thing: "Software patents aren't inherently bad. It's just that the patent office doesn't review them well and grants a lot of low quality patents." Wrong wrong wrong. The patent office could do a perfect job, and software patents would still be a monstrosity that had no business existing. Ditto for business method patents. Consider:
1. Software patents do not encourage innovation. They never have, and quite likely never will. The software industry was doing a great job of innovating before software patents were ever legalized, and all the innovation that has happened since then was in spite of software patents, not because of them.
2. Software patents do a huge amount of harm. This is slashdot, so I assume I don't need to convince anyone of that. Just look at the billions of dollars being wasted by patent lawsuits in the mobile phone industry right now.
3. Software patents simply function as a protection racket for patent lawyers. The idea that every hobbyist programmer or three person company developing iPhone apps should be required to hire a patent lawyer to make sure they aren't violating any patents is just absurd. There are literally tens of millions of people in that position. But that's exactly what the patent lawyers (and the courts) claim is true.
Perhaps some day society or the software industry will change so much that software patents actually make sense - so that, as the US constitution demands, they serve "to promote the Progress of Science and useful Arts." But at present, they don't do that, and they have no business existing.
"I'm too busy to research this and form an educated opinion, but I do have time to tell everyone my uninformed opinion."
I agree with Pettitt's idea of implementing a shorter term for software patents. Instead of the usual costly, 20-year patent, why not consider an inexpensive, limited, 5-to-10-year software patent that reflects software's low overhead and rapid obsolescence? Some other countries offer multi-tiered patent systems; I think it's time the U.S. started discussions in that area.
As the article said one of the problems seems to be that there isn't enough knowledge to deem whether the patent is obvious when its granted.
Maybe one solution would be a Jury of experts. Basically the same as traditional jury service in the US/UK etc, you get called up and then, instead of deciding if he did or not, you spend a week going through patents in your field with other experts?
----- I refuse to have an argument with an unarmed person