Recall that the claims define the patented invention. Always start reading at the claims, then look to the specification to determine what the claims mean (if necessary). Reading the abstract or specification gives little clue to what is actually patented.
So, I read the claims.
The only semi-unique thing there are the synchronization signals combined with standard MIMD architecture circa 1989. Yes, the transputer predates this patent and is likely to void it. There was a lot of other parallel 'puter research in the mid 80s including hyper cubes and other interconnection schemes. This is when "threading" was introduced into unix (versus the heavier process level stuff). They all used signals to report back that they were done, dead, or ready. The old math coprocessors in IBM PCs might be prior art.
Sony can get this patent tossed, but is more likely to throw the plaintiff a settlement to make it go away. Patent litigation is very expensive. It's often cheaper to just settle.
Why wait so long? The patent is almost expired! gotta use it before it's gone. Also, how much of the engineering level prior art still exists?
Why ask for every infringing device to be impounded/destoryed? Why not? It's within the law to seek that remedy even if it can't be reasonably performed. Since it can't be performed, they'll take money.
Oh yeah, the "impound 'em all" and "irreparable harm" stuff is boiler plate.
Prior art is defined by law under 35 USC 102. 35 USC 103 refers to 102. The letter of the law says "printed publication". The reform act also says printed pub, but also says "in public use". The administrative decision is based on 1) web stuff isn't a "printed publication" and 2) the difficulty the USPTO has in determining the date of publication/public use.
All it takes is one case going to court on the issue and the administrative decision will have to change. If it can be proven that the code was available on a publicly available reposisitory at the time an application was filed, then a judge should be pretty hemmed in by the "in public use by another" language in 102. That or some leaning on of senators/congress critters to get the "printed publication" language changed to "provably published" or some such thing.
Also notice that the new language says "may not be patented" if... printed pub/public use...
The old says "entitled to a patent unless"... This is also huge. It means a patent can be denied for other reasons. We'll see if it works that way.
This bill does a lot to make the US patent system align with the EU one.
Furthermore, it establishes a first to file system, meaning the first inventor to file gets the patent. Currently, we go through lots of litigation involving signed lab books and "dilligent" pursuit of the invention. In the future, we'll just look at the filing date. Prior art still invalidates applications as before.
It also introduces a method for submitting prior art for the examiner's consideration before a patent issues. That means the thing can be squashed before a troll uses it to sue somebody.
There's more, but we're still digesting it at my firm.
Actually, a paper or phone directory system is one thing I definitely would use as prior art. There were also GIS databases in 1996. Most notably, military targeting systems. The other thing out there was, of course, the internet.
You mentioned that the combination has synergies. True. But were there any unexpected properties that arose from the combination or did the combination do exactly what everyone expected and nothing more? Unexpected synergies is part of the argument for argueing against the old 103 obvious rules, it applies just the same.
I don't believe that KSR is a huge change, but it does bring us a little closer to the European system. The "obvious to try" language is going to cause some ripples as will the language about being motivated to try the combination by extant market forces. I expect to some arguments imported from the other side of the Atlantic here. These aren't new concepts, just new in the US.
a couple things
Firstly, the examiners are experts at one thing - the process of filing patents. They could dredge up so much prior art that you'd likely never get the patent.
Unless you are brilliant and really forsee a future need.
Then, because of a national need, they can seize a license to your patent. Eminent domain. It applies to more than real estate.
Firstly, SCO is suing on copyright and trademark, not patent, infringement.
Qualcom is a good example. At first they just held a lot of CDMA IP. As they pushed in court they ended up also building a technology company.
There is at least one fat and juicy patent case a month that makes the patent holder some nice cash. Scan a patent law journal for details.
There are a huge number of cases that end in favor of the patenter after the first nastygram or two. Perhaps a little arbitration. If the license fee is reasonable, folks tend to pay.
It's no longer necessary to have such specificity. All the elements in one document means the invention is anticipated (already invented). All the elements in a set of documents can lead to obvious. Under the KSR ruling though, if it could have been obvious to try.
Here, what is weird is the "hierarchy of geological areas" as an organizational scheme. As such, searches based on distance or metropolitan area could be non-infringing. So, an alternatively organized geographical search system would be pretty decent prior art. Also, under the obvious to try attack, a printed reference might serve as prior art because in 1996 it would have been pretty obvious to put it on line.
There was a slew of patents filed/granted in the late '90s because computer networks weren't mentioned in the prior art and thereby got past the old obviousness test. Expect those to be widely challenged now that the obviousness test has changed.
As for saying the specification wasn't enabling - not a good argument. It is hard for something to be this blazingly obvious yet not enabled. The bar for that is "someone practiced in the art" could go from specification to recreating the invention. I know lots of people who, back in 1996, could have gone from just the claims to the invention.
Patents are pretty much proof against copyright infringement. If you can't name names, then enabling the invention is tougher. Most corporate clients, however, prefer that only their own names/trademarks/etc. appear in a patent.
One patent doesn't violate another patent. Only activities/products can infringe.
Reverse engineering isn't a huge problem. You only have to enable (say how it works) a fix in the application. It doesn't have to be the best fix or the fix that someone with full source access would implement.
The recent supreme court case KSR v Teleflex broadened the test for obviousness a bit. KSR expanded obviousness to include stuff that is "inevitable due to market forces" or "inevitable to try by one practiced in the art" within some unknown limits.
This security bug scheme is borderline obvious under the old test. It is stunningly weak after KSR. Unless the applicant discovers the bug. Hmmmmm.... (whispers: hey f-secure, call me).
Funny, this scheme also encourages folks to reveal security holes immediately because keeping it a "trade secret" leaves the door open for someone else to try to patent the fix. Also, privately alerting the security guys probably leaves the bug open to a patent exploit.
Additional limitations on an already issued patent are no big deal. Amazon already has the 1-click patent. All this does is keep someone from patenting on top of amazon, it doesn't really give them anything more.
Here's how it works...
Amazon patent A: (1 click)
Amazon patent B: (1 click) + (other stuff)
Anyone infringing B also infringes A. All Amazon has done is prevented someone else from patenting this particular flavor of (1 click)+(other stuff). They don't get anything extra because patent A already covers the stuff patent B covers.
So, the only people who should be upset by this are patent trolls who want to patent the nuances around 1 click and then sue Amazon and other etailors.
Interesting, I'm so used to him cutting and pasting a bit of an article into his blog and then submitting to slashdot. For me, he's pretty synonymous with blog spam. Maybe he's upping his game.
Looking at the timing, a couple of countries recently announced a push for open standards and open software for government use. Then there is the wide adoption of OSS in some coutries like India, China,... Huge huge threat to M$ short term strategy. I think their long term plan is to embrace and extend OSS though.
Now, defensive patenting is a valid strategy for companies but doesn't work against trolls. You can't tell a troll that they are infringing your patent (except in rare cases). Having your own patents is kinda like having a gun in your pocket. Everyone with guns tries to be polite to other people with guns. There is occasional shooting. The unarmed regularly get robbed, raped, and beaten.
Regardless, M$ isn't really trolling. I do think they are throwing FUD backed by the threat of an RIAA style witch hunt. Easy enough:
1. Hang dongles on some web sites to catch unwary linux users.
2. Trace the ip_addr
3. ??!!!
4. Profit!!!
The problem they'll face is that some of us evil lawyers will happily attack their patents. Look what happened to SCO. The community really got engaged and gave lots of valuable information and insight. That gives the OSS side a huge advantage. The discovery phase of a case is often where the biggest bills are generated. In an OSS patent infringement action, the defendant simply hands over the code. The plaintiff, however, has thousands of pissed of people dredging up prior art and other ways to invalidate the asserted patents. A few hours effort from thousands of people translates into millions of legal fee dollars that the OSS defendant gets for free. Then a bunch of that gets handed to the plaintiff who spends millions trying to understand/rebut it.
On the other hand, the community has done a horrible job finding a way to get rid of the one click patent.
So, can M$ profitably sue? Yes, they can. They'll sue someone random and make lots of noise about it. Regardless of what the OSS community does, the bulk of the market will be frightened away from "risky" software. A few million is less than a percent of what M$ takes in.
Cool, the lawyers get rich.
How do you prove something is obvious without prior art? There will always be a need for prior art references. Especially when the USPTO doesn't get to an application for a few years. What is obvious today might have been insightful 3 years ago. Many patent applicants go into business with a "patent pending". If someone's own efforts in the marketplace (after filing an application) renders their own invention obvious, then things are even more broken than now.
The biggest problem with prior art on slashdot is that so few people here understand what it actually is. It has to be relevent and it has to be published before an application's priority date. It doesn't matter what people claim they did without credible verification. That's where published prior art comes into play. An assertion that you did something will only buy you an afidavit, a court appearence, and a bit of "impeaching the witness".
So, now we have KSR v Teleflex. Cool. The old test was kinda bogus. I'll read the USSC opinion in the next day or two because it has completely changed how I respond to office actions. I don't believe, however, that much will change. Lots of bad patents will still slip through. Lots of good ones will still get rejected.
Most of all, the new ruling will change things on the litigation side. After all, it is the litigators who fight to overcome patents after they've issued. ka-ching!
The biggest cases recently are the ATT v M$ (no overseas infringement) and the earlier one that said no immediate injunctions for asserted infringement. Those are the ones with the biggest effects on trolls and corporate coffers.
Bruce is completely correct. This article deals with ommisions. Either there is a contract and the submitter failed to read it or there never was a contract. If there wasn't a contract, then copyright vests in the author.
In a lawsuit, one side says it was a work for hire, the other side says it wasn't. The presumption is no asignment unless expressly assigned. From there, you get into all the stuff to assume existence of a contract based on actions by the parties. sigh
What is the software for? Is it for an in-house application or part of a product you expect to sell? If it is part of a product, did the contractor know that? If they knew, then they implicitly agreed that you could distribute their delivery as part of your product.
Oh, and next time get a competent purchasing agent and/or a lawyer involved. Regarding lawyers, we're pretty cheap if used in a preventative role. Head to litigation, though, and thanks for the new yacht.
F.Y.I. I am a lawyer and I occasionally get free beer if I read a contract at the bar.
With open source there's always the question of who to sue for patent infringement. M$, and others, have decided to threaten the customers. Nothing new here. It's always fun to threaten someones customers - it really saps their business.
That is where I think most open source licenses suffer. If the license gave everyone standing to sue on the open software's behalf, then it would pay to sue M$ and others for infringing on open source. Then M$ can try to shake someone down for protection money and the person can respond by shaking down M$ for protection money. Currently, M$ holds all the guns.
Isn't Accenture the scumbags formerly formerly known as Arthur Anderson? I bet their next name begins with an 'A' too. Gotta keep that early listing in the directory.
The same prior art applies in a first to file system. If it is out there and published/used/known, then it is prior art and can be used to reject patent claims.
Trade secrets, however, get a good hosing. If you keep something secret and someone else patents your secret, you could suddenly find yourself paying royalties.
We already have places where folks propose solutions to stuff and then patent what they dream up. Filing a patent app is called "constructive reduction to practice". Individuals who do this are called "patent trolls". Businesses who do this are called "businesses". go figure. This legislation won't do a whole lot to change that business model.
A first to file system keeps folks with trade secrets from challenging a patent. Currently, you can defend yourself against an infringement suit by showing that you invented first and were diligent. Invented first means before the patenter invented, not before they filed. Diligence means you kept at it and didn't go off to do something else. Also, one person can't use a different person's trade secret to defend against an infringement suit.
In the end, this cuts down on a lot of the discovery in a law suit.
The fix to the patent system is on the way. It's called Google (specifically, google cache), Wikipedia, archive.org, and many other names. The trick is time stamping. Even if the uspto is too ossified to use such publications as prior art, the courts very well could. It only takes one court ruling to change the uspto's mind.
Deciding if something is obvious or not is a huge problem for everyone involved in the patent field. Having lots of people working toward the same goal, however, is not a good test. Think Edison vs Tesla. They fought tooth and nail and each invented a lot of very cool things along the way. On the other hand, we ended up with the xor patent.
The guy in TFA who has all the prior art, well, it isn't really prior art for the purpose of invalidating a patent. The work was kept secret. It has to be published to be useful in invalidating a patent. Maybe the guy can out innovate for a while. I doubt it though. If you're going to innovate without patenting, then you gotta go open source. The community can, and should, blow away his lone efforts in a heartbeat. Interestingly, open source code is published and thereby useful for invalidating patents. Best of both worlds.
As for wireless email transmission, look back to the filing date of the application. Email was old. The foundations of the internet date back to the old (from my horrid memory, please be kind) aloha network - an old packet switched network. Back in the mid nineties, the patent office decided (temporarily I hope) that a transceiver pair was a unique nonobvious addition to an old thing.
A wiki page is great if it is timestamped. A wiki page is a publication and can be used to establish prior art.
The "patent expert" might as well have said The journal of machine intelligence and pattern recognition is toilet paper because the pages change from issue to issue.
If archive.org could take an examiner, or anyone else, to a wiki version dated before the filing date of a patent, then I think it can be used to establish prior art.
Even if the USPTO says it won't accept the wiki, a court could over rule them.
Well, they aren't trying to patent statistical analysis or tracking cookies in general, but they are grabbing for a lot. The claims don't look too impressive either. All the claims are too broad without a single super narrow claim that might just get accepted. Maybe the person who wrote the claims didn't understand the math. Double click, some of the old shopping sites, and similar companies must have had this well before the 11/2/2001 priority date. There is nothing in the claims or the application saying it only applies across domains. The examiner is probably going to reject every claim and love it because it won't take too long.
1. A machine-implemented method for extrapolating user profile information from user web page access patterns, comprising:
computing bias values for a plurality of web pages; ancient and general
assigning said bias values to the plurality of web pages; ancient and general
detecting at least a subset of said web pages accessed by a user having an unknown user profile attribute; ancient and general - tracking cookies?
combining said bias values of said subset of web pages to obtain a combination result; and ancient and "combining" is way general
assigning a selected user profile attribute to said user in response to said combination result indicating a positive bias of the selected user profile attribute; ancient
wherein computing said bias values for the plurality of web pages further comprises determining a fraction of users with the selected user profile attribute who visit a selected web page as measured over the plurality of web pages.hmmm, intersting limitation. Calculating a demoographic from the tracked pages. Pretty ancient too.
Eventually, this app is going to land on a junior associate's desk who will try to rescue it. In the long run, there's a decent chance that Xerox will get a patent on a very specific algorithm applied to limited data that is gathered in a few different ways. Hey, inventions like electrostatic duplication don't come along every day.
I'm no fan of the 1-click patent, but Calveley's assertions are more likely to annoy the USPTO examiners than to carry any weight. Based on RTFA, I didn't see any solid points.
To be patentable, something has to be non-onvious, novel, and useful. Amazon submitted stuff about 1-click's usefulness to establish, well, that it is useful. It doesn't have much to do with obviousness.
As for prior art, wikipedia is a perfectly valid source of materials even if it is unreliable. What is important is that the information is published (as in made available to the public). It is a little odd that they used a recent wikipedia entry. Maybe thay couldn't get an old one from the wayback machine. Maybe it was just easier to print out the wiki and stipulate that it talks about stuff that was prior art in 1997.
As for the digicash reference, sure it was around back then. But was their 1-click flavor there back then?
I hope what he gave the USPTO is better than what the article reported. At least the guy has found a source of entertainment.
Slashdot Mirror
Recall that the claims define the patented invention. Always start reading at the claims, then look to the specification to determine what the claims mean (if necessary). Reading the abstract or specification gives little clue to what is actually patented.
So, I read the claims.
The only semi-unique thing there are the synchronization signals combined with standard MIMD architecture circa 1989. Yes, the transputer predates this patent and is likely to void it. There was a lot of other parallel 'puter research in the mid 80s including hyper cubes and other interconnection schemes. This is when "threading" was introduced into unix (versus the heavier process level stuff). They all used signals to report back that they were done, dead, or ready. The old math coprocessors in IBM PCs might be prior art.
Sony can get this patent tossed, but is more likely to throw the plaintiff a settlement to make it go away. Patent litigation is very expensive. It's often cheaper to just settle.
Why wait so long? The patent is almost expired! gotta use it before it's gone. Also, how much of the engineering level prior art still exists?
Why ask for every infringing device to be impounded/destoryed? Why not? It's within the law to seek that remedy even if it can't be reasonably performed. Since it can't be performed, they'll take money.
Oh yeah, the "impound 'em all" and "irreparable harm" stuff is boiler plate.
Prior art is defined by law under 35 USC 102. 35 USC 103 refers to 102. The letter of the law says "printed publication". The reform act also says printed pub, but also says "in public use". The administrative decision is based on 1) web stuff isn't a "printed publication" and 2) the difficulty the USPTO has in determining the date of publication/public use.
... printed pub/public use ...
The old says "entitled to a patent unless" ... This is also huge. It means a patent can be denied for other reasons. We'll see if it works that way.
All it takes is one case going to court on the issue and the administrative decision will have to change. If it can be proven that the code was available on a publicly available reposisitory at the time an application was filed, then a judge should be pretty hemmed in by the "in public use by another" language in 102. That or some leaning on of senators/congress critters to get the "printed publication" language changed to "provably published" or some such thing.
Also notice that the new language says "may not be patented" if
This bill does a lot to make the US patent system align with the EU one.
Furthermore, it establishes a first to file system, meaning the first inventor to file gets the patent. Currently, we go through lots of litigation involving signed lab books and "dilligent" pursuit of the invention. In the future, we'll just look at the filing date. Prior art still invalidates applications as before.
It also introduces a method for submitting prior art for the examiner's consideration before a patent issues. That means the thing can be squashed before a troll uses it to sue somebody.
There's more, but we're still digesting it at my firm.
Actually, a paper or phone directory system is one thing I definitely would use as prior art. There were also GIS databases in 1996. Most notably, military targeting systems. The other thing out there was, of course, the internet.
You mentioned that the combination has synergies. True. But were there any unexpected properties that arose from the combination or did the combination do exactly what everyone expected and nothing more? Unexpected synergies is part of the argument for argueing against the old 103 obvious rules, it applies just the same.
I don't believe that KSR is a huge change, but it does bring us a little closer to the European system. The "obvious to try" language is going to cause some ripples as will the language about being motivated to try the combination by extant market forces. I expect to some arguments imported from the other side of the Atlantic here. These aren't new concepts, just new in the US.
a couple things Firstly, the examiners are experts at one thing - the process of filing patents. They could dredge up so much prior art that you'd likely never get the patent.
Unless you are brilliant and really forsee a future need.
Then, because of a national need, they can seize a license to your patent. Eminent domain. It applies to more than real estate.
Firstly, SCO is suing on copyright and trademark, not patent, infringement.
Qualcom is a good example. At first they just held a lot of CDMA IP. As they pushed in court they ended up also building a technology company.
There is at least one fat and juicy patent case a month that makes the patent holder some nice cash. Scan a patent law journal for details.
There are a huge number of cases that end in favor of the patenter after the first nastygram or two. Perhaps a little arbitration. If the license fee is reasonable, folks tend to pay.
Finally, it does pay the lawyers
It's no longer necessary to have such specificity. All the elements in one document means the invention is anticipated (already invented). All the elements in a set of documents can lead to obvious. Under the KSR ruling though, if it could have been obvious to try.
Here, what is weird is the "hierarchy of geological areas" as an organizational scheme. As such, searches based on distance or metropolitan area could be non-infringing. So, an alternatively organized geographical search system would be pretty decent prior art. Also, under the obvious to try attack, a printed reference might serve as prior art because in 1996 it would have been pretty obvious to put it on line.
There was a slew of patents filed/granted in the late '90s because computer networks weren't mentioned in the prior art and thereby got past the old obviousness test. Expect those to be widely challenged now that the obviousness test has changed.
As for saying the specification wasn't enabling - not a good argument. It is hard for something to be this blazingly obvious yet not enabled. The bar for that is "someone practiced in the art" could go from specification to recreating the invention. I know lots of people who, back in 1996, could have gone from just the claims to the invention.
Patents are pretty much proof against copyright infringement. If you can't name names, then enabling the invention is tougher. Most corporate clients, however, prefer that only their own names/trademarks/etc. appear in a patent.
One patent doesn't violate another patent. Only activities/products can infringe.
Reverse engineering isn't a huge problem. You only have to enable (say how it works) a fix in the application. It doesn't have to be the best fix or the fix that someone with full source access would implement.
The recent supreme court case KSR v Teleflex broadened the test for obviousness a bit. KSR expanded obviousness to include stuff that is "inevitable due to market forces" or "inevitable to try by one practiced in the art" within some unknown limits.
This security bug scheme is borderline obvious under the old test. It is stunningly weak after KSR. Unless the applicant discovers the bug. Hmmmmm.... (whispers: hey f-secure, call me).
Funny, this scheme also encourages folks to reveal security holes immediately because keeping it a "trade secret" leaves the door open for someone else to try to patent the fix. Also, privately alerting the security guys probably leaves the bug open to a patent exploit.
Additional limitations on an already issued patent are no big deal. Amazon already has the 1-click patent. All this does is keep someone from patenting on top of amazon, it doesn't really give them anything more.
Here's how it works...
Amazon patent A: (1 click)
Amazon patent B: (1 click) + (other stuff)
Anyone infringing B also infringes A. All Amazon has done is prevented someone else from patenting this particular flavor of (1 click)+(other stuff). They don't get anything extra because patent A already covers the stuff patent B covers.
So, the only people who should be upset by this are patent trolls who want to patent the nuances around 1 click and then sue Amazon and other etailors.
Interesting, I'm so used to him cutting and pasting a bit of an article into his blog and then submitting to slashdot. For me, he's pretty synonymous with blog spam. Maybe he's upping his game.
Yet more piquepaille blog spam. a robotic cable inspection system is the one and only link to hit.
Looking at the timing, a couple of countries recently announced a push for open standards and open software for government use. Then there is the wide adoption of OSS in some coutries like India, China, ... Huge huge threat to M$ short term strategy. I think their long term plan is to embrace and extend OSS though.
Now, defensive patenting is a valid strategy for companies but doesn't work against trolls. You can't tell a troll that they are infringing your patent (except in rare cases). Having your own patents is kinda like having a gun in your pocket. Everyone with guns tries to be polite to other people with guns. There is occasional shooting. The unarmed regularly get robbed, raped, and beaten.
Regardless, M$ isn't really trolling. I do think they are throwing FUD backed by the threat of an RIAA style witch hunt. Easy enough:
1. Hang dongles on some web sites to catch unwary linux users.
2. Trace the ip_addr
3. ??!!!
4. Profit!!!
The problem they'll face is that some of us evil lawyers will happily attack their patents. Look what happened to SCO. The community really got engaged and gave lots of valuable information and insight. That gives the OSS side a huge advantage. The discovery phase of a case is often where the biggest bills are generated. In an OSS patent infringement action, the defendant simply hands over the code. The plaintiff, however, has thousands of pissed of people dredging up prior art and other ways to invalidate the asserted patents. A few hours effort from thousands of people translates into millions of legal fee dollars that the OSS defendant gets for free. Then a bunch of that gets handed to the plaintiff who spends millions trying to understand/rebut it.
On the other hand, the community has done a horrible job finding a way to get rid of the one click patent.
So, can M$ profitably sue? Yes, they can. They'll sue someone random and make lots of noise about it. Regardless of what the OSS community does, the bulk of the market will be frightened away from "risky" software. A few million is less than a percent of what M$ takes in.
Cool, the lawyers get rich.
The article linked to the application, not to the patent. The claims are fairly different. Try:
T O2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-b ool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=Bystricky. INNM.&OS=IN/Bystricky&RS=IN/Bystricky
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=P
Regardless, another example of an app that should have been reject in whole.
How do you prove something is obvious without prior art? There will always be a need for prior art references. Especially when the USPTO doesn't get to an application for a few years. What is obvious today might have been insightful 3 years ago. Many patent applicants go into business with a "patent pending". If someone's own efforts in the marketplace (after filing an application) renders their own invention obvious, then things are even more broken than now.
The biggest problem with prior art on slashdot is that so few people here understand what it actually is. It has to be relevent and it has to be published before an application's priority date. It doesn't matter what people claim they did without credible verification. That's where published prior art comes into play. An assertion that you did something will only buy you an afidavit, a court appearence, and a bit of "impeaching the witness".
So, now we have KSR v Teleflex. Cool. The old test was kinda bogus. I'll read the USSC opinion in the next day or two because it has completely changed how I respond to office actions. I don't believe, however, that much will change. Lots of bad patents will still slip through. Lots of good ones will still get rejected.
Most of all, the new ruling will change things on the litigation side. After all, it is the litigators who fight to overcome patents after they've issued. ka-ching!
The biggest cases recently are the ATT v M$ (no overseas infringement) and the earlier one that said no immediate injunctions for asserted infringement. Those are the ones with the biggest effects on trolls and corporate coffers.
Bruce is completely correct. This article deals with ommisions. Either there is a contract and the submitter failed to read it or there never was a contract. If there wasn't a contract, then copyright vests in the author.
In a lawsuit, one side says it was a work for hire, the other side says it wasn't. The presumption is no asignment unless expressly assigned. From there, you get into all the stuff to assume existence of a contract based on actions by the parties. sigh
What is the software for? Is it for an in-house application or part of a product you expect to sell? If it is part of a product, did the contractor know that? If they knew, then they implicitly agreed that you could distribute their delivery as part of your product.
Oh, and next time get a competent purchasing agent and/or a lawyer involved. Regarding lawyers, we're pretty cheap if used in a preventative role. Head to litigation, though, and thanks for the new yacht.
F.Y.I. I am a lawyer and I occasionally get free beer if I read a contract at the bar.
With open source there's always the question of who to sue for patent infringement. M$, and others, have decided to threaten the customers. Nothing new here. It's always fun to threaten someones customers - it really saps their business.
That is where I think most open source licenses suffer. If the license gave everyone standing to sue on the open software's behalf, then it would pay to sue M$ and others for infringing on open source. Then M$ can try to shake someone down for protection money and the person can respond by shaking down M$ for protection money. Currently, M$ holds all the guns.
Isn't Accenture the scumbags formerly formerly known as Arthur Anderson? I bet their next name begins with an 'A' too. Gotta keep that early listing in the directory.
The same prior art applies in a first to file system. If it is out there and published/used/known, then it is prior art and can be used to reject patent claims.
Trade secrets, however, get a good hosing. If you keep something secret and someone else patents your secret, you could suddenly find yourself paying royalties.
We already have places where folks propose solutions to stuff and then patent what they dream up. Filing a patent app is called "constructive reduction to practice". Individuals who do this are called "patent trolls". Businesses who do this are called "businesses". go figure. This legislation won't do a whole lot to change that business model.
A first to file system keeps folks with trade secrets from challenging a patent. Currently, you can defend yourself against an infringement suit by showing that you invented first and were diligent. Invented first means before the patenter invented, not before they filed. Diligence means you kept at it and didn't go off to do something else. Also, one person can't use a different person's trade secret to defend against an infringement suit.
In the end, this cuts down on a lot of the discovery in a law suit.
The fix to the patent system is on the way. It's called Google (specifically, google cache), Wikipedia, archive.org, and many other names. The trick is time stamping. Even if the uspto is too ossified to use such publications as prior art, the courts very well could. It only takes one court ruling to change the uspto's mind.
Deciding if something is obvious or not is a huge problem for everyone involved in the patent field. Having lots of people working toward the same goal, however, is not a good test. Think Edison vs Tesla. They fought tooth and nail and each invented a lot of very cool things along the way. On the other hand, we ended up with the xor patent.
The guy in TFA who has all the prior art, well, it isn't really prior art for the purpose of invalidating a patent. The work was kept secret. It has to be published to be useful in invalidating a patent. Maybe the guy can out innovate for a while. I doubt it though. If you're going to innovate without patenting, then you gotta go open source. The community can, and should, blow away his lone efforts in a heartbeat. Interestingly, open source code is published and thereby useful for invalidating patents. Best of both worlds.
As for wireless email transmission, look back to the filing date of the application. Email was old. The foundations of the internet date back to the old (from my horrid memory, please be kind) aloha network - an old packet switched network. Back in the mid nineties, the patent office decided (temporarily I hope) that a transceiver pair was a unique nonobvious addition to an old thing.
A wiki page is great if it is timestamped. A wiki page is a publication and can be used to establish prior art.
The "patent expert" might as well have said The journal of machine intelligence and pattern recognition is toilet paper because the pages change from issue to issue.
If archive.org could take an examiner, or anyone else, to a wiki version dated before the filing date of a patent, then I think it can be used to establish prior art.
Even if the USPTO says it won't accept the wiki, a court could over rule them.
Well, they aren't trying to patent statistical analysis or tracking cookies in general, but they are grabbing for a lot. The claims don't look too impressive either. All the claims are too broad without a single super narrow claim that might just get accepted. Maybe the person who wrote the claims didn't understand the math. Double click, some of the old shopping sites, and similar companies must have had this well before the 11/2/2001 priority date. There is nothing in the claims or the application saying it only applies across domains. The examiner is probably going to reject every claim and love it because it won't take too long.
1. A machine-implemented method for extrapolating user profile information from user web page access patterns, comprising:
computing bias values for a plurality of web pages; ancient and general
assigning said bias values to the plurality of web pages; ancient and general
detecting at least a subset of said web pages accessed by a user having an unknown user profile attribute; ancient and general - tracking cookies?
combining said bias values of said subset of web pages to obtain a combination result; and ancient and "combining" is way general
assigning a selected user profile attribute to said user in response to said combination result indicating a positive bias of the selected user profile attribute; ancient
wherein computing said bias values for the plurality of web pages further comprises determining a fraction of users with the selected user profile attribute who visit a selected web page as measured over the plurality of web pages.hmmm, intersting limitation. Calculating a demoographic from the tracked pages. Pretty ancient too.
Eventually, this app is going to land on a junior associate's desk who will try to rescue it. In the long run, there's a decent chance that Xerox will get a patent on a very specific algorithm applied to limited data that is gathered in a few different ways. Hey, inventions like electrostatic duplication don't come along every day.
I'm no fan of the 1-click patent, but Calveley's assertions are more likely to annoy the USPTO examiners than to carry any weight. Based on RTFA, I didn't see any solid points.
To be patentable, something has to be non-onvious, novel, and useful. Amazon submitted stuff about 1-click's usefulness to establish, well, that it is useful. It doesn't have much to do with obviousness.
As for prior art, wikipedia is a perfectly valid source of materials even if it is unreliable. What is important is that the information is published (as in made available to the public). It is a little odd that they used a recent wikipedia entry. Maybe thay couldn't get an old one from the wayback machine. Maybe it was just easier to print out the wiki and stipulate that it talks about stuff that was prior art in 1997.
As for the digicash reference, sure it was around back then. But was their 1-click flavor there back then?
I hope what he gave the USPTO is better than what the article reported. At least the guy has found a source of entertainment.
No, I'm a patent attorney. I decided "fishcalledoscar" wasn't a good name anymore.