BUT, the fact the PHOSITA didn't come up with it but for your question, indicates it isn't obvious. In other words, if it's so obvious, why hasn't it been done before?
And the one-click patent still stands after several looks at it by the patent office. Have you actually ever looked at the claims, or do you - like most hear - just assume it's obvious? It's a pretty narrow patent despite its moniker.
With all due respect, you didn't provide any citation to the basis of your statement. I've never seen anything that says patents used to be awarded for things other people couldn't figure out without the patent.
Geekoid wasn't very eloquent, but his point stands.
Anthony, thank you again. These are well articulated, well thought out issues and for whatever it's worth, I sincerely appreciate you taking the time to write them. I think we're on different sides of the river, but I can at least see why you prefer your side to mine. I won't convince you mine is better, but here are my thoughts on it.
To respond to your limitations issue, I hear what you're saying - most of the claim is scaffolding and there's really only one interesting nugget of invention. This is often the case because there needs to be context and antecedent basis. It sounds like what you'd prefer is if everyone wrote a Jepson claim. A Jepson claim is where you say:
A system|method for blah blah blah... wherein the improvement comprises:X.
In those claims you are acknowledging all the prior art and laying out the single improvement, which is X. Then everyone automatically knows what's novel and what's not. The problem with those from a patentee standpoint is: everyone automatically knows what's novel and what's not. What if I thought steps A and B of my process were obvious when in fact they weren't and I said the improvement was just step C. Well I just gave up all rights to A and B. And to turn your own issue on its head, there is no way for me know - no seer I can consult - to know if what I am giving up is actually in the prior art. Let's consider the yard and fence analogy. If a surveyor didn't exist to say where exactly your property line was, when you set up a fence around your house, do you set it up as far out as you think you're reasonably entitled, or do you put it as close to your house as you can so you don't offend anyone? It's the same thing. Why would I intentionally give up claim scope? I can understand why that's a greedy approach, but I hope you can see - it is to me at least - that it's a reasonable one.
Re: the uncertainty, you can get no more certainty that you don't infringe than you can that someone hasn't copied unlicensed code into your codebase. You can take steps to address the latter, e.g., code monitoring and review, but you never really know unless you have a development team of one - yourself. That's a risk of doing business. You can mitigate the risk - for code hire a code scrubber (which admittedly has a finite data set to compare against), and for patents get a freedom to operate opinion - but you'll never be free of the uncertainty. I don't know what to tell you.
As a final question: where are all the stories of big companies completely crushing the little guys in legal fees? Everyone throws it around as a problem, but it seems that more often than not the big companies are fighting each other or the trolls are going after the big guys. I know David and Goliath battles are academically possible, but where are they in reality? I'm not even looking for a case cite; I'm looking for even just a news article that says Company X was a big meanie and used its patents to crush li'l ol' Y. It's bandied about as a scary possibility; I just want to see a real-world example of it.
I don't have statistics, but... maybe? Honestly, most of the people I work with, I'd say 95%, - which are almost all patent people - are just hardworking Joes that work in this particular field. They used to be scientists or engineers, they have families they love and life goals just like you and me.
As for reasonableness, they argue by profession, so they tend to look at all angles and if you give them a good argument, they'll consider it. And just like any profession, there are bad apples too (primarily they are just greedy, not amoral); sadly I know of some. But the vast majority of attorneys are normal people.
There are problems with the patent system. I openly agree to that. And I have very reasonable friends that disagree with me, even on the troll issue (the argument being that although trolls are bad, forcing some sort of use requirement or preventing the assignment of IP would be worse). But no system is going to be perfect. I give Obama and Congress credit for pushing some good change through. For example, it is now impossible for trolls to file a lawsuit against unrelated parties. All we can do is keep trying to tweak it to get it right.
Thank you for the response. Now I see where your coming from. But let's take it a step back. Creation will happen whether there are patents or not. Can we agree on that? Cavemen didn't need patents to invent the wheel. The goal though is disclosure. I'll tell the world about my wheel if I get some sort of exlcusivity. That exclusivity IS a weapon against the competition. That's exactly what a patent is. It's anti-competitive by nature.
What really sticks in people's craw - as best I can tell - is that unlike copyright, where originality is a defense, patents are a strict liability tort. You can infringe without knowing about the patent at all. Developers can grok that code shouldn't be stolen, but can't wrap their head around someone preventing you from independently coming up with something. But that's what patents are.
As for the delay, honestly, whether you sue someone or not is a huge decision. If it would cost 2 million for Acme to sue yoyodyne, but in 2002 it looked like yoyodyne was only going to take away 100k in business, it doesn't make sense to sue them. And no one can really predict the future. In 2007 though, "holy crap, yoyodyne is a big issue, and they are doing exactly what we did," then it makes sense to sue. Plus there's the delay that you're not going to know all your competitors right away, etc, etc. There are dozens of factors that come into play.
I don't buy that the software industry is faster-paced than any other. Moorse's Law? Not software related. Pharma? New drugs come out every day.
Then you're not listening (or reading). The problem is software patents. There have been plenty of responses showing why they are bad. The very fact that companies like Apple and Microsoft couldn't exist if they started today should be enough reason.
I disagree. There have been only two or three responses, mostly by Anthony Mouse, that really illustrate some issues. Most are just saying "I write software. My beliefs do not align with patents [in general, whether the poster realizes it or not]. Therefore software patents are bad."
It is complete speculation whether or not Apple or Microsoft could exist today. Google rose during the Time of Patents, as have many tech companies. And in fact, many startup investors will NOT invest in a company that doesn't have patents, simply because it gives the investors something to hold onto if the business is a failure. Your response is no better than anyone else's. You state a conclusion (important companies couldn't exist), but have provide zero analysis or supporting facts. Which are all necessary for a cogent, well-thought out rebuttal.
I don't know where this idea came from, but it's supposed to protect both equally. It doesn't say in the Constitution to secure for small entities and garage inventors. I know it's a nice idea, but if a company is throwing $10 Million into R&D, and they come up with somethings innovative, they deserve just as much protection as the little guy.
So the answer is to throw the baby out with the bath water? People here are saying ALL software patents should go. Should they or shouldn't they? I'm all for being stricter and more regimented in the examination, but I don't think they should be abolished wholesale.
But if you don't use the protected functionality, then you don't infringe. I can import java.util.*, but if I don't actually implement anything from that library, I'm not really including everything, and I'm not performing any combinations.
Getting back to your examples, the businesses could cooperate without patents, but if you were going to pick a horse in the race, wouldn't you want the horse that can stop other horses from running?
Patents are by their nature anti-competitive; they grant monopolies, which can lead to injunctions (except as to patent trolls. Patent trolls can't get injunctions thanks to the eBay decision). Developers don't like this anti-competitive aspect. That seems to be the issue; it tells them what they can't do.
It totally explains it. Engineers don't like being told no when they see a clear path to the objective. What's interesting is that many engineers don't want their code stolen, i.e., for a competitor to succeed by deriving his code from theirs (and is protected by copyright), but independent invention is a complete defense. But that's not what patents allow. Patents are a strict liability issue: Knowledge or intent are immaterial for the baseline finding of infringement (though they come into play with respect to willfulness).
You're assuming it's a given that the progress of science and the useful arts are not being promoted. I disagree. And there's no objective way to say it IS happening or not. But patents have existed for hundreds of years yet industries still flourish.
Your arguments that the software industry is somehow special still don't add up. It's no different. Parties don't release their work simultaneously: someone releases it first. And then that becomes prior art to whatever is not on file. If someone files a patent application later on, that person is denied because what's out in the public domain makes it not-novel/obvious.
The idea is that once someone else has done it, yes it is obvious. But for the first person to come up with it, it's not obvious.
Subsequent independent inventors are relying on the current state of the art, which now includes the previously non-obvious invention, even if they didn't know about it.
Nothing will prevent you from getting sued. I can sue you right now for just about no reason. It will get thrown out, but I can still sue you.
And the point is not that unless it could be patented, no one would develop it, it is that the first person to solve this problem that no one else solved is currently rewarded. And for telling the world how to solve this problem, they are granted a limited monopoly.
I know you and every other developer hates the one click patent, but the fact is, it has withstood repeated attacks and no one has shown that it is obvious. Sure, you think it is now - with the gift of hindsight - but it has been examined and reexamined and, considering hundreds of references in the process, nothing at the time the invention was made has shown the specific steps in the claims to be obvious.
The bar isn't "if it wasn't patentable no one would do it," it's is it useful, is it novel, and is it non-obvious. The steps of the one click patent have withstood all of these tests.
With all due respect AC, I know how to interpret claims; I've been doing patent prosecution and defending my clients from troll suits almost excursively in E.D.Tx for 8+ years. And while it is true that claim steps are not necessarily given any order, the retrieving additional information references the received request, so it inherently must be performed after the request was received.
Nothing you've said negates my potential non-infringement arguments.
You having to work around it means you have to come up with a new and different way of doing it. If it's worse, and the person that has the patent came up with THE best way to solve a particular problem, shouldn't they be rewarded for that ingenuity?
No. Absolutely not.
Patents are supposed to promote the useful arts and sciences, period. They're not a reward, nor an inherent property right.
See, there's the rub. The whole clause in the Constitution is (my emphasis added):
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;
The reward is written right there.
I get that you see promoting the arts and sciences as providing more consumer choice, but that's not what patents are - any patents, not just software patents. They are a limited monopoly granted as a quid pro quo for not keeping something as a trade secret.
I understand where you're coming from. As a former software developer, I really do. I've just come down on the other side of the fence because I don't - at a certain level - see any difference between software as a field of innovation and any other, other than maybe - just maybe - software allows anyone to "fabricate" anything in their basement given sufficient time. But arguably so could a biochemist at least mentally.
But each day I think about these things and I'm trying to figure out a real solution. I appreciate your viewpoint and thanks for sharing.
ya know, I've had a lot of conversations about patents before, but this idea has never come up. I need to think about it, but I like it. The counter argument is that English is the language that satisfies this, and we already have it, but maybe we do need something a little technically deeper.
Then you haven't really looked at the things your against.
Every software patent has method claims that walk through a specific set of steps. They walk through the process. I understand you'll get behind a specific implementation, but are you really saying that if I code up something innovative in C++ and two years later you do the same thing in Java, then I lose because you did it in a different language?
Not true. Patents on software cover specific ways of doing things, the same as sparkplugs. Using your example, Amazon's one-click patent is not on the idea of all one click shopping, it is on a specific way of doing it. Claim 1 reads:
1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
If you do something that is different than any of these steps, e.g., you do use a shopping cart model and periodically the cart object is polled and processed, then you aren't infringing the patent (this is not legal advice). I am just spitballing here too. Or if you don't "retrieve additional information," in response to the click and instead load it at the beginning of the session, you don't infringe the patent (again, not legal advice). And that's without me even looking at the file history to see what other concessions they made.
They didn't patent the idea of one-click, they patented a specific way of doing it. You can license the patent or just choose not to use the Amazon one-click method.
This is not legal advice, but if you don't think it's new, useful, or nonobvious, I'd reconsider signing the Oath/Declaration that your patent attorney gives you. Or at least I'd reconsider posting about your misgivings on slashdot.
Fraud on the Patent Office is grounds for inequitable conduct which, if your patent is granted - and maybe the Patent Office will do it's job and it won't be granted - inequitable conduct will nullify everything that was done.
I'd also make sure you tell your patent attorney to cite that other company's product and patent to the patent office (see above). You have a duty to disclose anything material to the patentability of the claims.
Thank you for the sarcasm. Your non-contribution to the topic is duly noted. Please see any of the other responses; they are moving the conversation forward.
Slashdot Mirror
Hi, I'm an IP attorney. Thanks for wishing biological warfare - boils, seizure, death - on me because you don't agree with my profession.
And you say we are jerks.
BUT, the fact the PHOSITA didn't come up with it but for your question, indicates it isn't obvious. In other words, if it's so obvious, why hasn't it been done before?
And the one-click patent still stands after several looks at it by the patent office. Have you actually ever looked at the claims, or do you - like most hear - just assume it's obvious? It's a pretty narrow patent despite its moniker.
With all due respect, you didn't provide any citation to the basis of your statement. I've never seen anything that says patents used to be awarded for things other people couldn't figure out without the patent.
Geekoid wasn't very eloquent, but his point stands.
Anthony, thank you again. These are well articulated, well thought out issues and for whatever it's worth, I sincerely appreciate you taking the time to write them. I think we're on different sides of the river, but I can at least see why you prefer your side to mine. I won't convince you mine is better, but here are my thoughts on it.
To respond to your limitations issue, I hear what you're saying - most of the claim is scaffolding and there's really only one interesting nugget of invention. This is often the case because there needs to be context and antecedent basis. It sounds like what you'd prefer is if everyone wrote a Jepson claim. A Jepson claim is where you say:
In those claims you are acknowledging all the prior art and laying out the single improvement, which is X. Then everyone automatically knows what's novel and what's not. The problem with those from a patentee standpoint is: everyone automatically knows what's novel and what's not. What if I thought steps A and B of my process were obvious when in fact they weren't and I said the improvement was just step C. Well I just gave up all rights to A and B. And to turn your own issue on its head, there is no way for me know - no seer I can consult - to know if what I am giving up is actually in the prior art. Let's consider the yard and fence analogy. If a surveyor didn't exist to say where exactly your property line was, when you set up a fence around your house, do you set it up as far out as you think you're reasonably entitled, or do you put it as close to your house as you can so you don't offend anyone? It's the same thing. Why would I intentionally give up claim scope? I can understand why that's a greedy approach, but I hope you can see - it is to me at least - that it's a reasonable one.
Re: the uncertainty, you can get no more certainty that you don't infringe than you can that someone hasn't copied unlicensed code into your codebase. You can take steps to address the latter, e.g., code monitoring and review, but you never really know unless you have a development team of one - yourself. That's a risk of doing business. You can mitigate the risk - for code hire a code scrubber (which admittedly has a finite data set to compare against), and for patents get a freedom to operate opinion - but you'll never be free of the uncertainty. I don't know what to tell you.
As a final question: where are all the stories of big companies completely crushing the little guys in legal fees? Everyone throws it around as a problem, but it seems that more often than not the big companies are fighting each other or the trolls are going after the big guys. I know David and Goliath battles are academically possible, but where are they in reality? I'm not even looking for a case cite; I'm looking for even just a news article that says Company X was a big meanie and used its patents to crush li'l ol' Y. It's bandied about as a scary possibility; I just want to see a real-world example of it.
*Moore's Law
I don't have statistics, but... maybe? Honestly, most of the people I work with, I'd say 95%, - which are almost all patent people - are just hardworking Joes that work in this particular field. They used to be scientists or engineers, they have families they love and life goals just like you and me.
As for reasonableness, they argue by profession, so they tend to look at all angles and if you give them a good argument, they'll consider it. And just like any profession, there are bad apples too (primarily they are just greedy, not amoral); sadly I know of some. But the vast majority of attorneys are normal people.
There are problems with the patent system. I openly agree to that. And I have very reasonable friends that disagree with me, even on the troll issue (the argument being that although trolls are bad, forcing some sort of use requirement or preventing the assignment of IP would be worse). But no system is going to be perfect. I give Obama and Congress credit for pushing some good change through. For example, it is now impossible for trolls to file a lawsuit against unrelated parties. All we can do is keep trying to tweak it to get it right.
Thank you for the response. Now I see where your coming from. But let's take it a step back. Creation will happen whether there are patents or not. Can we agree on that? Cavemen didn't need patents to invent the wheel. The goal though is disclosure. I'll tell the world about my wheel if I get some sort of exlcusivity. That exclusivity IS a weapon against the competition. That's exactly what a patent is. It's anti-competitive by nature.
What really sticks in people's craw - as best I can tell - is that unlike copyright, where originality is a defense, patents are a strict liability tort. You can infringe without knowing about the patent at all. Developers can grok that code shouldn't be stolen, but can't wrap their head around someone preventing you from independently coming up with something. But that's what patents are.
As for the delay, honestly, whether you sue someone or not is a huge decision. If it would cost 2 million for Acme to sue yoyodyne, but in 2002 it looked like yoyodyne was only going to take away 100k in business, it doesn't make sense to sue them. And no one can really predict the future. In 2007 though, "holy crap, yoyodyne is a big issue, and they are doing exactly what we did," then it makes sense to sue. Plus there's the delay that you're not going to know all your competitors right away, etc, etc. There are dozens of factors that come into play.
I don't buy that the software industry is faster-paced than any other. Moorse's Law? Not software related. Pharma? New drugs come out every day.
Then you're not listening (or reading). The problem is software patents. There have been plenty of responses showing why they are bad. The very fact that companies like Apple and Microsoft couldn't exist if they started today should be enough reason.
I disagree. There have been only two or three responses, mostly by Anthony Mouse, that really illustrate some issues. Most are just saying "I write software. My beliefs do not align with patents [in general, whether the poster realizes it or not]. Therefore software patents are bad."
It is complete speculation whether or not Apple or Microsoft could exist today. Google rose during the Time of Patents, as have many tech companies. And in fact, many startup investors will NOT invest in a company that doesn't have patents, simply because it gives the investors something to hold onto if the business is a failure. Your response is no better than anyone else's. You state a conclusion (important companies couldn't exist), but have provide zero analysis or supporting facts. Which are all necessary for a cogent, well-thought out rebuttal.
By that argument, manufacturing processes - which no one seems to have an issue with - should also not be patentable. Yet they are.
I don't know where this idea came from, but it's supposed to protect both equally. It doesn't say in the Constitution to secure for small entities and garage inventors. I know it's a nice idea, but if a company is throwing $10 Million into R&D, and they come up with somethings innovative, they deserve just as much protection as the little guy.
So the answer is to throw the baby out with the bath water? People here are saying ALL software patents should go. Should they or shouldn't they? I'm all for being stricter and more regimented in the examination, but I don't think they should be abolished wholesale.
But if you don't use the protected functionality, then you don't infringe. I can import java.util.*, but if I don't actually implement anything from that library, I'm not really including everything, and I'm not performing any combinations.
Getting back to your examples, the businesses could cooperate without patents, but if you were going to pick a horse in the race, wouldn't you want the horse that can stop other horses from running?
Patents are by their nature anti-competitive; they grant monopolies, which can lead to injunctions (except as to patent trolls. Patent trolls can't get injunctions thanks to the eBay decision). Developers don't like this anti-competitive aspect. That seems to be the issue; it tells them what they can't do.
It totally explains it. Engineers don't like being told no when they see a clear path to the objective. What's interesting is that many engineers don't want their code stolen, i.e., for a competitor to succeed by deriving his code from theirs (and is protected by copyright), but independent invention is a complete defense. But that's not what patents allow. Patents are a strict liability issue: Knowledge or intent are immaterial for the baseline finding of infringement (though they come into play with respect to willfulness).
You're assuming it's a given that the progress of science and the useful arts are not being promoted. I disagree. And there's no objective way to say it IS happening or not. But patents have existed for hundreds of years yet industries still flourish.
Your arguments that the software industry is somehow special still don't add up. It's no different. Parties don't release their work simultaneously: someone releases it first. And then that becomes prior art to whatever is not on file. If someone files a patent application later on, that person is denied because what's out in the public domain makes it not-novel/obvious.
The idea is that once someone else has done it, yes it is obvious. But for the first person to come up with it, it's not obvious.
Subsequent independent inventors are relying on the current state of the art, which now includes the previously non-obvious invention, even if they didn't know about it.
Nothing will prevent you from getting sued. I can sue you right now for just about no reason. It will get thrown out, but I can still sue you.
And the point is not that unless it could be patented, no one would develop it, it is that the first person to solve this problem that no one else solved is currently rewarded. And for telling the world how to solve this problem, they are granted a limited monopoly.
I know you and every other developer hates the one click patent, but the fact is, it has withstood repeated attacks and no one has shown that it is obvious. Sure, you think it is now - with the gift of hindsight - but it has been examined and reexamined and, considering hundreds of references in the process, nothing at the time the invention was made has shown the specific steps in the claims to be obvious.
The bar isn't "if it wasn't patentable no one would do it," it's is it useful, is it novel, and is it non-obvious. The steps of the one click patent have withstood all of these tests.
With all due respect AC, I know how to interpret claims; I've been doing patent prosecution and defending my clients from troll suits almost excursively in E.D.Tx for 8+ years. And while it is true that claim steps are not necessarily given any order, the retrieving additional information references the received request, so it inherently must be performed after the request was received.
Nothing you've said negates my potential non-infringement arguments.
You having to work around it means you have to come up with a new and different way of doing it. If it's worse, and the person that has the patent came up with THE best way to solve a particular problem, shouldn't they be rewarded for that ingenuity?
No. Absolutely not.
Patents are supposed to promote the useful arts and sciences, period. They're not a reward, nor an inherent property right.
See, there's the rub. The whole clause in the Constitution is (my emphasis added):
The reward is written right there.
I get that you see promoting the arts and sciences as providing more consumer choice, but that's not what patents are - any patents, not just software patents. They are a limited monopoly granted as a quid pro quo for not keeping something as a trade secret.
I understand where you're coming from. As a former software developer, I really do. I've just come down on the other side of the fence because I don't - at a certain level - see any difference between software as a field of innovation and any other, other than maybe - just maybe - software allows anyone to "fabricate" anything in their basement given sufficient time. But arguably so could a biochemist at least mentally.
But each day I think about these things and I'm trying to figure out a real solution. I appreciate your viewpoint and thanks for sharing.
ya know, I've had a lot of conversations about patents before, but this idea has never come up. I need to think about it, but I like it. The counter argument is that English is the language that satisfies this, and we already have it, but maybe we do need something a little technically deeper.
I'm going to chew on this. Thank you!
If you think that a software patent claim is:
1. The idea of one click shopping.
Then you haven't really looked at the things your against.
Every software patent has method claims that walk through a specific set of steps. They walk through the process. I understand you'll get behind a specific implementation, but are you really saying that if I code up something innovative in C++ and two years later you do the same thing in Java, then I lose because you did it in a different language?
Not true. Patents on software cover specific ways of doing things, the same as sparkplugs. Using your example, Amazon's one-click patent is not on the idea of all one click shopping, it is on a specific way of doing it. Claim 1 reads:
If you do something that is different than any of these steps, e.g., you do use a shopping cart model and periodically the cart object is polled and processed, then you aren't infringing the patent (this is not legal advice). I am just spitballing here too. Or if you don't "retrieve additional information," in response to the click and instead load it at the beginning of the session, you don't infringe the patent (again, not legal advice). And that's without me even looking at the file history to see what other concessions they made.
They didn't patent the idea of one-click, they patented a specific way of doing it. You can license the patent or just choose not to use the Amazon one-click method.
And from this example, it actually sounds like your management is broken, not the patent system itself.
This is not legal advice, but if you don't think it's new, useful, or nonobvious, I'd reconsider signing the Oath/Declaration that your patent attorney gives you. Or at least I'd reconsider posting about your misgivings on slashdot.
Fraud on the Patent Office is grounds for inequitable conduct which, if your patent is granted - and maybe the Patent Office will do it's job and it won't be granted - inequitable conduct will nullify everything that was done.
I'd also make sure you tell your patent attorney to cite that other company's product and patent to the patent office (see above). You have a duty to disclose anything material to the patentability of the claims.
Again, not legal advice, just sayin'.
which is all completely subjective.
Thank you for the sarcasm. Your non-contribution to the topic is duly noted. Please see any of the other responses; they are moving the conversation forward.