given that it's one of the many cases of hers that were overturned the instant it hit the Supreme Court
When did three cases become "many"?
When three was actually six, five of which reversed her, and one which upheld her ruling while overturning her reasoning. You can interpret that how you want, and you can like her or not, but it is true that her opinions have not fared well in the Supreme Court.
On the other hand, I think it was Scalia who is purported to have said, "We don't go last because we're always right. We're always right because we go last."
Probably much of this is cultural, but that's where the real disparity lies, and you're never going to get parity unless you figure out how to change interest.
On the other hand, changing interest is always tricky, because you run the risk of trying to tell people they ought to be interested in something they really don't seem to be interested in.
There's the real problem. Why should we pursue parity for parity's sake? What's wrong with just having a level playing field and letting people decide what they want to do with themselves. If more women want to do elementary education, and more men want to do engineering, why are we so antsy to push them into something else? On the other hand, if both sexes are equally inclined and have equal ability, then with time they will approach numerical equality. I agree that it doesn't make sense to edge somebody out of a career path because of race or gender or whatever. If Sally wants to be a mathematician, good for her. Let her be a mathematician, and let all of her friends who have the inclincation and ability be mathematicians too. But I don't think it makes any sense to try to force somebody into a field because some social scientist arbitrarily decided that certain career fields need to be 50/50 so that we can have some vague Social Justice.
And while I'm at it, who's working to close the gender gap in sanitation workers? I don't know if I've ever seen a female garbage collector in my life! Or do the Great Social Scientists only wring their hands about equality in vocations that they deem, in their boundless wisdom, to be worthy of equality? Do they have a list of jobs that need to be equal to achieve Social Justice? Is it on Wikipedia or something?
In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented.
Absolutely true.
a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.
That's what the Supreme Court has agreed to decide.
Process, as used in 35USC referred to manufacturing processes not thought processes.
Well, that's the whole question the Court has to decide. The CAFC says the process has to be tied to a particular machine or it has to transform matter. The Supreme Court will decide if they're right.
If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.
On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).
Here is where you show me where in the petition for cert. anybody has raised constitutional questions, since according to Supreme Court's Rule 14, they won't consider it if it wasn't raised in the petition.
True, but I haven't heard anybody argue that process statutes are unconstitutional. I've only ever heard that in connection with proposed first-to-file statutes.
I hope they throw out all the process patents but it'll be very long if ever.
Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter... may obtain a patent therefor[.]"
You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.
[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]
Well, if a Swiss temporary injunction works like a U.S. temporary injunction, nothing at all has been decided yet. The court just says, "Okay, we're going to put things on hold until we've actually tried the case." It's quite possible that the eventual outcome of the case will be that the courts says there was nothing improper and allows the contract to move forward. So it's a little premature to ask if Microsoft is going to be able to re-bid, because there may not be a re-bid at all.
this just highlights the truth behind Stallman's point that the phrase "Intellectual Property" is a bogus propaganda term designed to make you think about patents, copyrights, and trademarks in terms of property, in the *same* ways that you think about things that actually are property.
Ok, I see what's going on. You've been listening to Richard Stallman. That would be enough to throw Donald Chisum into fits of confusion about patents.
Here's the problem. Stallman understands IP law, and he knows what it means to "own" something, but he counts on others to not understand, so he spews rhetoric about how everything should be liberated and counts on you to believe him because he's smart and it sounds good. But think about it. What does it mean to "own" something? My wife and I own a home, and the property it sits on. What does that mean? What does it mean when I say I "own" my car, or a computer?
It means the government recognizes a "bundle of rights" that the law attaches to that thing and will help me enforce those rights. For example, if I "own" real property, I have the right to inhabit that property, and to exclude others from it. I have the right to modify it, and to exploit its resources for gain as I see fit. I have the right to transfer ownership, or encumber the property with a lien or security interest. "Ownership" is nothing more than a list of things that the government permits me to do and/or prohibit others from doing with the property, whatever it is.
Now, if I "own" an invention (or more precisely, a set of claims that define the meets and bounds of my invention), I have the right to transfer the invention, to prohibit others from making, using, selling, or importing it, to encumber it with a security interest, etc. etc. The patent law does not grant me the right to practice my invention, but everybody has the right to practice an invention absent an exception like a patent. So I may naturally have the right to practice my invention, and by virtue of my right to exclude others, may in fact have the exclusive right to practice. A patent is very strongly analogous to a big "No Trespassing" sign on a piece of land with a line drawn around the property line.
So whatever Richard Stallman wants you to believe, the law can and does treat intellectual property very much like any other property. The bundle of rights that attaches to IP is very similar to the bundle of rights that attaches to personal property and the bundle of rights that attaches to real property. The real issue is that Richard Stallman wishes it were not so. He wants a world where intellectual property cannot be owned, so his propoganda is to speak as though the concept itself is inaccurate, when in fact he just doesn't like it.
sorry, you have a property right in the patent grant (in that you can possess it, trade it, use it as collateral, etc). you do NOT have a property right in the invention itself. that is a subtle but crucial difference.
Your patent rights do not begin and end with the little ribboned booklet the USPTO sends you. That by itself is worth a couple of bucks at best. You have a property right in the claimed invention. That is exactly what the patent grant you speak of is. In fact, patent claims are often analogized to the "meets and bounds" portion of a real property title. You are saying, "Here is where you may not trespass."
What the patent law doesn't do is grant you a property right in any embodiment of the claimed invention. For example, if I have a patent on a pencil, that does not give me a property right in all the pencils in the United States, or any of them at all. In fact, my patented pencil may be an improvement on a previously-patented part of the pencil, in which case I have no right to make pencils. The patent gives me a right to exclude others from making pencils, and to get damages if they do make them. Perhaps this is what you're talking about.
And yes, you're right, Title 35 only applies in the U.S. But two things. One, since this is a story about a U.S. Patent application, I'd say it's pretty relevant. Two, I'd like to see any patent law in the world that doesn't use the same basic theory that you have property rights in the claims. I've done a fair number of PCTs, and I haven't seen a country that doesn't operate on this basic premise.
Sorry, I'm going to have to disagree with you. 35 U.S.C. s. 261, "[P]atents shall have the attributes of personal property." There are some differences. For example, you generally have the right to "possess" your property, whereas a patent does not give you the right to practice the claimed invention---just the right to exclude others from practicing it. But subject to a few exclusions, yes, a patent is in fact a property right.
YOU LET IT OUT?!?!?! Well, there's your problem. The magic blue smoke only smells like incense INSIDE the little grail. If you let it out, that changes the smell.
I guess I missed the part in your link where Joseph Smith was convicted of fraud (or anything else for that matter, ever). He was responsible for a failed effort to raise money for the Church through a quasi-banking corporation (a widely accepted practice in Ohio at the time, and something that he did on the advice of competent non-Mormon legal counsel). And when it failed, some people became very angry about their losses. But he was never very business savvy, and never claimed to be. The Church in his lifetime was a financial mess. It survived and even thrived, and now operates without any debt. But it still doesn't make anybody personally wealthy. Joseph Smith's current successor (Thomas S. Monson) is not personally wealthy and never has been.
So I'm curious---in a church where even the very highest leaders are not wealthy, and where, in fact, you can't choose to be in the upper leadership (there's no campaigning or posturing; you are simply called to the position)---where's the scam? What's the payoff? With an unpaid lay clergy, who's getting rich off of my tithing money?
This is the trap lots of people fall into when discussing software patents. They see obvious software patents and use those as an argument against all software patents. I have seen reasonable and logical arguments both for and against software patents as a class. But obviousness is not one of them. KSR was not about software patents. It was about a brake pedal. The point of KSR was to strengthen the obviousness standard overall. I happen to agree with the conclusion (and that's certainly not herd mentality---most patent attorneys are very critical of KSR). But it has no bearing on whether software is patentable subject matter. If you think software patents should be categorically prohibited, you can have that opinion. Just find a different reason. On the other hand, if your problem with Amazon 1-click is that it was obvious, then your problem is with section 103, not section 101.
Care to provide some evidence to backup your claim that the USPTO went through all the work to find the prior art and research your invention only to fall short on the analysis and do a knee jerk rejection?
Ah, young grasshopper, if only you knew. I see lazy, sloppy rejections on an almost daily basis. But no, you're not going to see me specifically criticize a sitting examiner on a public message board. I'll complain about the way the place is run, but the examiner I criticize today may be the one I have to ask for a notice of allowance tomorrow (to any examiner who may be reading this: you, obviously, are one of those diamonds in the rough who issues only clear, well-reasoned office actions). And to be fair, if you ask an examiner, he'll probably tell you that he sees lazy, sloppy responses from attorneys on an almost daily basis.
The real problem is the fact that the examiners are evaluated on a stupid "count" system that encourages them to breeze through an office action without taking the time to understand the application or the prior art. So he reads the claims, pulls out a couple of key words, searches his patent database, finds a couple of references that look promising, and shoots off a quick 103 (obviousness) rejection. And then he ticks one off his list and breathes a sigh of relief, because the application is somebody else's problem now. Ironically, this system of over-burdened examiners is just as bad for those who aren't a fan of patents. With so little time, it's hard for the examiner to find and understand the best art. So he just tosses out whatever looks good and leaves it on the attorney to convince him. This means that often the examiner and the attorney are arguing about junk that doesn't even matter, while real, relevant art is sitting out there unexamined. Believe me, I would LOVE it if I could count on the examiners to understand what's going on with the application and find the very best art. That would mean that whatever claims got allowed would be very nearly bullet-proof in court.
Says the guy with the.sig "The patent system. The whole edifice is based on handwaving."
You're right about one thing. A patent != invention. A patent is an exclusive property right in an invention. But I'm not sure what that has to do with anything. I am not "assuming" that they are the same thing. I am well aware of how they are related. For example, the title of 35 U.S.C. s. 101 is "Inventions Patentable." The text is "Whosoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." A patentable invention is one that is novel (see s. 102), non-obvious (see s. 103) and useful (from s. 101).
Now, as for your patent search, the fact that a patent has the word "software" somewhere does not make it a "software patent." Most patents will mention software somewhere if they have anything to do with technology. And since I doubt you have read and analyzed all those claims, your blanket statement that most of them are obvious looks a lot like "handwaving." If you were just going off of the titles, you need to learn how patents work. It's fine to think the system is broken, but understand it before you complain about it. Here's a pretty good primer one of our partners wrote. You ought to read it, even if you think you understand patents (he made me read it when I started, despite the fact that I was already a registered patent agent, and I learned some things). Remember, if you're going to go crusading, you should at least know what you're fighting against.
Aaah. I see my error now. I was responding to your inane publicly-visible post instead of your secret invisible post where you said something insightful. The publicly-visible post just said, "Awww, do you want us to cry because you actually have to work hard to get a patent? Let me call the waaahmbulance for you." Next time, I'll be sure to remotely hack your computer and locate and decrypt "SuperSecretInsightfulPost.html" so I can be sure to respond to all of your brilliant points.
Haha, how clever you are. Seriously, I'm stunned at your masterful retort. But here's the problem. The patent office rejecting an application is GREAT for my business. Every time the patent office sends me a rejection, whether it's legitimate and well-reasoned or flat-out crap, the client has to respond. That means I keep getting paid. So it's not like KSR put patent attorneys out of business.
My entire point, which you seemed to have missed, is that this notion that the USPTO rubber stamps patent applications (and especially software patent applications) is absolutely, demonstrably false. Now, that said, yes, it would be great for my clients if the USPTO only issued legitimate rejections. And I wouldn't really mind seeing it either, because maybe then I could help more people get patents. But in the end, even the most craptastic, infuriating rejections aren't harming my personal interests.
My post is flamebait and yours is "funny"? [Shakes head in disbelief]. This isn't a flame or a joke. It's absolutely true. I've seen a former examiner say, on the record in a deposition, that he had to get permission from his boss's boss to allow an application on the first action. The assumption is that you will reject all applications at least once (and preferably at least twice so you can draw an RCE with those yummy fees).
Slashdot Mirror
When did three cases become "many"?
When three was actually six, five of which reversed her, and one which upheld her ruling while overturning her reasoning. You can interpret that how you want, and you can like her or not, but it is true that her opinions have not fared well in the Supreme Court.
On the other hand, I think it was Scalia who is purported to have said, "We don't go last because we're always right. We're always right because we go last."
Probably much of this is cultural, but that's where the real disparity lies, and you're never going to get parity unless you figure out how to change interest. On the other hand, changing interest is always tricky, because you run the risk of trying to tell people they ought to be interested in something they really don't seem to be interested in.
There's the real problem. Why should we pursue parity for parity's sake? What's wrong with just having a level playing field and letting people decide what they want to do with themselves. If more women want to do elementary education, and more men want to do engineering, why are we so antsy to push them into something else? On the other hand, if both sexes are equally inclined and have equal ability, then with time they will approach numerical equality. I agree that it doesn't make sense to edge somebody out of a career path because of race or gender or whatever. If Sally wants to be a mathematician, good for her. Let her be a mathematician, and let all of her friends who have the inclincation and ability be mathematicians too. But I don't think it makes any sense to try to force somebody into a field because some social scientist arbitrarily decided that certain career fields need to be 50/50 so that we can have some vague Social Justice.
And while I'm at it, who's working to close the gender gap in sanitation workers? I don't know if I've ever seen a female garbage collector in my life! Or do the Great Social Scientists only wring their hands about equality in vocations that they deem, in their boundless wisdom, to be worthy of equality? Do they have a list of jobs that need to be equal to achieve Social Justice? Is it on Wikipedia or something?
If you apply for a patent on gold purified from ore, section 101 will not be what holds you back from getting a patent. It will be section 102.
In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented.
Absolutely true.
a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.
That's what the Supreme Court has agreed to decide.
Process, as used in 35USC referred to manufacturing processes not thought processes.
Well, that's the whole question the Court has to decide. The CAFC says the process has to be tied to a particular machine or it has to transform matter. The Supreme Court will decide if they're right.
If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.
On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).
Here is where you show me where in the petition for cert. anybody has raised constitutional questions, since according to Supreme Court's Rule 14, they won't consider it if it wasn't raised in the petition.
True, but I haven't heard anybody argue that process statutes are unconstitutional. I've only ever heard that in connection with proposed first-to-file statutes.
I hope they throw out all the process patents but it'll be very long if ever.
Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"
You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.
[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]
Well, if a Swiss temporary injunction works like a U.S. temporary injunction, nothing at all has been decided yet. The court just says, "Okay, we're going to put things on hold until we've actually tried the case." It's quite possible that the eventual outcome of the case will be that the courts says there was nothing improper and allows the contract to move forward. So it's a little premature to ask if Microsoft is going to be able to re-bid, because there may not be a re-bid at all.
this just highlights the truth behind Stallman's point that the phrase "Intellectual Property" is a bogus propaganda term designed to make you think about patents, copyrights, and trademarks in terms of property, in the *same* ways that you think about things that actually are property.
Ok, I see what's going on. You've been listening to Richard Stallman. That would be enough to throw Donald Chisum into fits of confusion about patents.
Here's the problem. Stallman understands IP law, and he knows what it means to "own" something, but he counts on others to not understand, so he spews rhetoric about how everything should be liberated and counts on you to believe him because he's smart and it sounds good. But think about it. What does it mean to "own" something? My wife and I own a home, and the property it sits on. What does that mean? What does it mean when I say I "own" my car, or a computer?
It means the government recognizes a "bundle of rights" that the law attaches to that thing and will help me enforce those rights. For example, if I "own" real property, I have the right to inhabit that property, and to exclude others from it. I have the right to modify it, and to exploit its resources for gain as I see fit. I have the right to transfer ownership, or encumber the property with a lien or security interest. "Ownership" is nothing more than a list of things that the government permits me to do and/or prohibit others from doing with the property, whatever it is.
Now, if I "own" an invention (or more precisely, a set of claims that define the meets and bounds of my invention), I have the right to transfer the invention, to prohibit others from making, using, selling, or importing it, to encumber it with a security interest, etc. etc. The patent law does not grant me the right to practice my invention, but everybody has the right to practice an invention absent an exception like a patent. So I may naturally have the right to practice my invention, and by virtue of my right to exclude others, may in fact have the exclusive right to practice. A patent is very strongly analogous to a big "No Trespassing" sign on a piece of land with a line drawn around the property line.
So whatever Richard Stallman wants you to believe, the law can and does treat intellectual property very much like any other property. The bundle of rights that attaches to IP is very similar to the bundle of rights that attaches to personal property and the bundle of rights that attaches to real property. The real issue is that Richard Stallman wishes it were not so. He wants a world where intellectual property cannot be owned, so his propoganda is to speak as though the concept itself is inaccurate, when in fact he just doesn't like it.
sorry, you have a property right in the patent grant (in that you can possess it, trade it, use it as collateral, etc). you do NOT have a property right in the invention itself. that is a subtle but crucial difference.
Your patent rights do not begin and end with the little ribboned booklet the USPTO sends you. That by itself is worth a couple of bucks at best. You have a property right in the claimed invention. That is exactly what the patent grant you speak of is. In fact, patent claims are often analogized to the "meets and bounds" portion of a real property title. You are saying, "Here is where you may not trespass."
What the patent law doesn't do is grant you a property right in any embodiment of the claimed invention. For example, if I have a patent on a pencil, that does not give me a property right in all the pencils in the United States, or any of them at all. In fact, my patented pencil may be an improvement on a previously-patented part of the pencil, in which case I have no right to make pencils. The patent gives me a right to exclude others from making pencils, and to get damages if they do make them. Perhaps this is what you're talking about.
And yes, you're right, Title 35 only applies in the U.S. But two things. One, since this is a story about a U.S. Patent application, I'd say it's pretty relevant. Two, I'd like to see any patent law in the world that doesn't use the same basic theory that you have property rights in the claims. I've done a fair number of PCTs, and I haven't seen a country that doesn't operate on this basic premise.
Sorry, I'm going to have to disagree with you. 35 U.S.C. s. 261, "[P]atents shall have the attributes of personal property." There are some differences. For example, you generally have the right to "possess" your property, whereas a patent does not give you the right to practice the claimed invention---just the right to exclude others from practicing it. But subject to a few exclusions, yes, a patent is in fact a property right.
Run away Whitehouse
True, but I think they all get a little heady at the start of the first term.
One expert recommended that everyone spend some time practicing dialing 911 so that their brains are adequately prepared to do it under stress.
You may want to unplug your phone from the PSTN before trying this.
YOU LET IT OUT?!?!?! Well, there's your problem. The magic blue smoke only smells like incense INSIDE the little grail. If you let it out, that changes the smell.
I guess I missed the part in your link where Joseph Smith was convicted of fraud (or anything else for that matter, ever). He was responsible for a failed effort to raise money for the Church through a quasi-banking corporation (a widely accepted practice in Ohio at the time, and something that he did on the advice of competent non-Mormon legal counsel). And when it failed, some people became very angry about their losses. But he was never very business savvy, and never claimed to be. The Church in his lifetime was a financial mess. It survived and even thrived, and now operates without any debt. But it still doesn't make anybody personally wealthy. Joseph Smith's current successor (Thomas S. Monson) is not personally wealthy and never has been.
So I'm curious---in a church where even the very highest leaders are not wealthy, and where, in fact, you can't choose to be in the upper leadership (there's no campaigning or posturing; you are simply called to the position)---where's the scam? What's the payoff? With an unpaid lay clergy, who's getting rich off of my tithing money?
Because Scientology won't let you walk away, casinos will.
Well, theoretically anyway. Addiction can be a funny thing.
And if somebody builds on what's already there its not an invention, thats called innovation
Title 35 of the United States code disagrees with you. If it's new, non-obvious, and useful, it's a patentable invention.
If you trace the history of software patents
This is the trap lots of people fall into when discussing software patents. They see obvious software patents and use those as an argument against all software patents. I have seen reasonable and logical arguments both for and against software patents as a class. But obviousness is not one of them. KSR was not about software patents. It was about a brake pedal. The point of KSR was to strengthen the obviousness standard overall. I happen to agree with the conclusion (and that's certainly not herd mentality---most patent attorneys are very critical of KSR). But it has no bearing on whether software is patentable subject matter. If you think software patents should be categorically prohibited, you can have that opinion. Just find a different reason. On the other hand, if your problem with Amazon 1-click is that it was obvious, then your problem is with section 103, not section 101.
Care to provide some evidence to backup your claim that the USPTO went through all the work to find the prior art and research your invention only to fall short on the analysis and do a knee jerk rejection?
Ah, young grasshopper, if only you knew. I see lazy, sloppy rejections on an almost daily basis. But no, you're not going to see me specifically criticize a sitting examiner on a public message board. I'll complain about the way the place is run, but the examiner I criticize today may be the one I have to ask for a notice of allowance tomorrow (to any examiner who may be reading this: you, obviously, are one of those diamonds in the rough who issues only clear, well-reasoned office actions). And to be fair, if you ask an examiner, he'll probably tell you that he sees lazy, sloppy responses from attorneys on an almost daily basis.
The real problem is the fact that the examiners are evaluated on a stupid "count" system that encourages them to breeze through an office action without taking the time to understand the application or the prior art. So he reads the claims, pulls out a couple of key words, searches his patent database, finds a couple of references that look promising, and shoots off a quick 103 (obviousness) rejection. And then he ticks one off his list and breathes a sigh of relief, because the application is somebody else's problem now. Ironically, this system of over-burdened examiners is just as bad for those who aren't a fan of patents. With so little time, it's hard for the examiner to find and understand the best art. So he just tosses out whatever looks good and leaves it on the attorney to convince him. This means that often the examiner and the attorney are arguing about junk that doesn't even matter, while real, relevant art is sitting out there unexamined. Believe me, I would LOVE it if I could count on the examiners to understand what's going on with the application and find the very best art. That would mean that whatever claims got allowed would be very nearly bullet-proof in court.
Your bias is showing.
Says the guy with the .sig "The patent system. The whole edifice is based on handwaving."
You're right about one thing. A patent != invention. A patent is an exclusive property right in an invention. But I'm not sure what that has to do with anything. I am not "assuming" that they are the same thing. I am well aware of how they are related. For example, the title of 35 U.S.C. s. 101 is "Inventions Patentable." The text is "Whosoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." A patentable invention is one that is novel (see s. 102), non-obvious (see s. 103) and useful (from s. 101).
Now, as for your patent search, the fact that a patent has the word "software" somewhere does not make it a "software patent." Most patents will mention software somewhere if they have anything to do with technology. And since I doubt you have read and analyzed all those claims, your blanket statement that most of them are obvious looks a lot like "handwaving." If you were just going off of the titles, you need to learn how patents work. It's fine to think the system is broken, but understand it before you complain about it. Here's a pretty good primer one of our partners wrote. You ought to read it, even if you think you understand patents (he made me read it when I started, despite the fact that I was already a registered patent agent, and I learned some things). Remember, if you're going to go crusading, you should at least know what you're fighting against.
Aaah. I see my error now. I was responding to your inane publicly-visible post instead of your secret invisible post where you said something insightful. The publicly-visible post just said, "Awww, do you want us to cry because you actually have to work hard to get a patent? Let me call the waaahmbulance for you." Next time, I'll be sure to remotely hack your computer and locate and decrypt "SuperSecretInsightfulPost.html" so I can be sure to respond to all of your brilliant points.
Haha, how clever you are. Seriously, I'm stunned at your masterful retort. But here's the problem. The patent office rejecting an application is GREAT for my business. Every time the patent office sends me a rejection, whether it's legitimate and well-reasoned or flat-out crap, the client has to respond. That means I keep getting paid. So it's not like KSR put patent attorneys out of business.
My entire point, which you seemed to have missed, is that this notion that the USPTO rubber stamps patent applications (and especially software patent applications) is absolutely, demonstrably false. Now, that said, yes, it would be great for my clients if the USPTO only issued legitimate rejections. And I wouldn't really mind seeing it either, because maybe then I could help more people get patents. But in the end, even the most craptastic, infuriating rejections aren't harming my personal interests.
My post is flamebait and yours is "funny"? [Shakes head in disbelief]. This isn't a flame or a joke. It's absolutely true. I've seen a former examiner say, on the record in a deposition, that he had to get permission from his boss's boss to allow an application on the first action. The assumption is that you will reject all applications at least once (and preferably at least twice so you can draw an RCE with those yummy fees).