This story is a dupe
but I'll comment further. I'll also make my standard disclaimer when
discussing patents: I am not a patent attorney, but I am a former
patent examiner.
The point you make is known in the patent biz as "hindsight", and is
commonly argued by patent applicants against rejections based on
obviousness ( 35
USC 103). This, of course, is the crux of this issue;given a
patent claim and a set of pieces of "prior art", no one of
which describes the invention in the claim (which would render the
claim unpatentable for lack of novelty (i. e., "anticipation") under 35
USC 102) how does one apply the law to render a conclusion. Of
course, there's one additional factor, beyond mere descriptive
disclosure of the "process, machine, manufacture, or composition of
matter" (35
USC 101) claimed, and that is the mythical "person
having ordinary skill in the art to which said subject matter
pertains". In infringement cases, where there's real money involved (
the patentee/licensee and/or the accused infringer markets), expert
witnesses can give testimony for either side in addition to the prior
art entered as evidence.
In the PTO during application prosecution, on the other hand, there is
no access to expert opinions for the examiner. On average an
examiner has on the order of 15-20 hours to work on a typical
application (varies by examiner's level and the art he/she is
assigned). This includes all handling of the application from initially
reading it, searching for prior art, formulating actions, reading and
responding to amendments and arguments presented by applicant, reading
applicant's appeal brief and writing an examiner's answer in those
cases where applicant appeals the examiner's rejection to the PTO's
appeal board, etc. In this environment, the level of ordinary skill in
the art must derive from the prior art references, themselves, and any
conclusion of obviousness must derive from what the prior art
references show.
The determination, thus, rests with determining whether the things
shown in one reference would be applicable to be used in another. In th
past, patent examiners were often given great weight in making such
judgments, although they had to be supported by some kind of
reasoning. However, over the last few years under the judicial
oversight of the PTO's appeal court, the previous Court of Customs and
Patent Appeals (CCPA), now the Court of Appeals for the Federal Circuit
(CAFC) the ability of examiners to make such determinations has been
limited, with the Court demanding that more and more of the rationale
be expressly stated in the prior art themselves. If you assumed that,
in each case, that the absolute best prior art has been developed this
would tend to decrease the number of rejections that could be
sustained, since even expert testimony would be questioned for not
supporting their conclusions, or being biased, that is, the
expert is using hindsight to reconstruct the invention and this is the
main reason the case is before the SCOTUS. In the PTO there is
the additional burden of increased searching to find "better" prior
art; references that would be perfectly fine in supporting
rejections made under the environment of years ago will no longer
provide such support; the haystack gets larger (more and more prior art
heaps on as time progresses) and the available suitable needles get
fewer and fewer.
The legal requirements derived and applied by the CAFC have not
previously been tested by the SCOTUS; the leading case, which the CAFC
has used as part of its legal reasoning, is GRAHAM
v. JOHN DEERE CO. which, while setting out a ser
he basic issue here is, given that no one "piece" of the prior art shows the invention (which would render the claim unpatentable for lack of novelty), would the invention be obvious to one of ordinary skill in the art at the time the invention was made. The problem is, how does one determine what such a hypothetical person would think? This, then, is a construct that must be made by whomever is interested in it, including patent examiners, judges, juries, competitors, etc. The prior art has to be determined by finding concrete evidence, namely, public disclosures (printed publications, prior use, certain activities of others, etc.).
The key question is how far the one evaluating obviousness can draw inferences from the explicit teachings of each piece of prior art. In court cases it's possible to have "expert testimony" given which can help (but of course their credibility has to be evaluated, particularly if both parties use experts with opposing opinions), but the PTO must rely strictly on things like printed publications. In this circumstance the evaluator has to draw inferences: a "low" standard permits the evaluator to make many implicit inferences; a "high" standard requires that the prior art, itself, must have explicit explanations of disclosed features and how and/or why they could be used. It is believed by many that traditionally, the courts, including the SCOTUS (as the final arbiters of each controversy) used a relatively low standard, but the Court of Appeals for the Federal Circuit (CAFC), now the sole patent court below the Supreme Court, has evolved a standard which is relatively high.
The problem with the PTO, which for decades has been obsessed with cranking out work first over stressing the thorough gathering and assessing of prior art, is that the higher burden to prove obviousness means more and broader claims get issued. The references not only have to literally describe the subject matter, but need to have need to have some discussion of why something is done. Where previously one might find a couple of references showing, among them, all the claimed features and then make a sustainable rejection one must now get references that, while literally showing nothing more, have explanations to support "combining" the features to meet the patent applicant's claims. Now given enough time perhaps better prior art could be developed, but this time is not provided, so it ends up being that the search get cut off, the art is applied as found, then it's off to the next application so that production and timeliness quotas are not missed. The same burden, of course, applies in an infringement case, but most accused infringers will have access to loads more time to find better prior art, secure expert testimony, etc.
You are arguing a different issue, which is what kind of subject matter might qualify for patent protection, which is whether what is being patented falls within one of the four statutory classes (utility) for which patenting is permitted. The KSR case being argued on tuesday concerns the question of obviousness, more particularly if there is no single disclosure in the prior art that exactly "reads on" the claims applicant/patentee make, is it yet "obvious" over the "prior art" that did exist at the time the invention was made. If the invention is not within one of four statutory classes then the question of obviousness is moot. Of course, if both utility and obviousness are in dispute (either during prosecution in the PTO or, as a patent, in court) then both issues will be generally be treated, since both are necessary (but not sufficient) for a valid patent claim.
..holy sh*t, this is incredible (Well, sadly not). For convenience, here's
the PTO's version of the patent, better to use because it has links to
some of the cited prior art patents. Additionally, consider looking at
the prosecution
of the application. You can download a pdf of the "image file
wrapper" which includes the examiner's action and applicant's response.
There was a nominal rejection under 35
USC 101 as covering non-statutory subject matter, which applicant
easily overcame by typical claim redrafting used in software patents.
There was also a rejection under 35
USC 102 as being anticipated by the patent to Schwartz.
The latter patent discloses a singly linked list and an separate array
of pointers to individual items (kind of like an index?). Clearly, this
is not the same as the doubly linked list of the application, and the
applicant responded by pointing this out. The application was then
allowed and issued.
What was clearly missed here was the patent to Porter
which discloses a "...doubly-linked list search and
management method..." Now Porter goes on to add an auxiliary array of
pointers (but for a more refined use than just an index) but the basic
concept of a doubly linked list is here. Even the examiner very briefly
acknowledged in passing that Porter showed a doubly linked list, but
obviously failed to recognize that this fully meets claim 1 (including
the redrafted version); she obviously did not understand what the
applicant was showing. If there are any doubts about what arrangement
of data are being disclosed and claimed here then just look a Figure
one in the drawings (You have to use the "Images" link at the top which
will take you to a clumsy page that displays the sheets of the actual
patent specification using some specific tiff format, so your browser
must be capable of displaying these images).
I'm sure there are lots of other prior art showing this plus the use of
more than two lists (like Fig. 3). In any event I can't see claim 1
surviving even a cursory challenge. Anyone have $ 2,520.00
free to file a reexamination request?
But such a broad claim is unpatentable as anticipated (35 USC 102) over narrower prior art, since the classic double linked list is a just a specific ordering; a broad claim is defeated by a specific one, since it "reads on" every limitation in the claim. In this case, broad claim ony associates the two pointers to respective two sequences, and does not specify any characteristics of what these sequences are. The classic case falls into this definition. In order to avoid anticipation of this prior art one would have to specify some kind limitation on the sequences, such as "said second sequence specifying an order different from the reverse of said first sequence".
That would avoid an anticipation rejection, but only as to the specific prior art, and it does not say anything about non-obviousness under 35 USC 103 and reams of other prior art other posters have brought up.
I'm not an attorney but this is not strictly true. The applicable legal doctrine to be invoked is known as laches. A quickly Googled search brought up this discussion, which, while somewhat directed to lawyers, gives a gist of what an accused infringer can do to mitigate damages after having been judged to infringe valid patent claims.
Basically, invoking the laches defense will prevent all infringing activity prior to the filing of the suit from being included in any damages, but will not prevent a possible assessing of damages after the file, not bar the judge from issuing an injunction to stop further infringement. The patent law also provides a time limit of six years prior to the filing date of the suit for assessing damages; this time period has been used by judges in the consideration of the laches question (see second link for the full discussion of how this works).
There is a co-filed Companion Application which has the following as its broadest claim:
1. An apparatus for associating metadata with at least one image, the apparatus comprising: logic for providing the at least one image for display to at least one user; and logic for accepting input from a plurality of users concerning the at least one image, wherein the input comprises at least two different types of metadata.
The metadata types referred to are tags, comments, descriptions, favorites and annotations. So, this claim would cover presenting one or more images to a user and then accepting at least two of the types, such as tagging and commenting. Claims 1 - 27 are directed various details of this.
Claims 28 - 142 are where the applicants want to really make money from this concept:
28. An apparatus for providing information for use by an ad server, the ad server for associating an advertisement with a media object, the apparatus comprising: logic for providing the media object for presentation to at least one user; logic for accepting metadata from a plurality of users concerning the media object; and statistics logic for determining a metric based at least in part upon the frequency with which at least one metadatum is assigned to the media object, wherein the at least one metadatum is available to the ad server.
Basically they are allowing an adserver to select an ad to show with the media object by sending at least one metadatum to the adserver based on their crunched metric.
I don't understand how the USPTO granted a patent that says "This method has been known for some time, but now we just have the capability to do it.
I can't see what the correspondence during the patent prosecution was, nor what prior art was actually discussed, since the application from which this patent issued was too old have an online public Image File Wrapper, but under current patent law (but under Supreme Court review) to show Obviousness one needs to show positive evidence that "suggests" each aspect of the patent claims. Simple hand waving won't cut it; i. e. saying "It's generally obvious that doing anything in sw can also be done in hw (and of course vice versa).
So, can anyone find a good prior reference that explicitly mentions the desirability of using a floating point based frame buffer in a graphics environment? I know nothing, specifically about this art, but this would be needed to establish a good case. This would have a good shot at invalidating claim 22, the broadest claim to this feature.
Also I noticed that a number of claims, notably the first few independent claims seem to define mention floating point only in the context of individual sub-units of the rasterizing hardware, which, to my perhaps naive mind, do not require that the frame buffer actually store floating point color data, and at least one of the prior art patents cited (Intel's 5,995,122) uses fp in parts of the rasterizing hw. I know I would have used such a reference against to make a rejection, if, for no other reason, to get the applicant on record as saying these claims implicitly requires fp color data in the frame buffer.
The 4 independent claims of 5,319,542, "System for ordering items using an electronic catalogue":
1. A system for electronically ordering items comprising:
at least one supplier computer system, having means for creating and storing at least one catalog containing items offered by the supplier and means for accepting orders for items;
a public computer system containing a complication of catalogs of items offered by the supplier;
means connecting said supplier computer systems and said public computer system for transferring catalog data to said public computer system to create a public catalog;
a first Customer/Requestor computer system containing a first private catalog and having means for accessing said catalogs on said public computer system, means for electronically ordering items directly from the suppler, and means for modifying said first private catalog; and
a second Customer/Requestor computer system containing a second private catalog and having means for accessing said catalogs on said public computer system, means or electronically ordering items directly from the supplier, and means for modifying said second private catalog so that said second private catalog is different form said first private catalog.
8. In an electronic catalog requisition system in which catalogs of items offered by suppliers are stored on a central catalog database system, a method for retrieving information elating to said items and electronically ordering items from suppliers comprising the following steps:
searching the catalog database for information on a customer-selected item, said catalog database residing on a public computer system;
downloading said information on said customer-selected item to a Customer/Requestor computer system;
creating an electronic requisition using the Customer/Requestor computer system; and
transmitting the electronic requisition to a supplier computer system.
11. A method for facilitating the ordering of items offered by a supplier comprising the following steps:
creating a machine readable catalog of information relating to items offered by a vendor at a suppler computer system;
transmitting the machine readable catalog to a public database system for access by Customer/Requestors;
transmitted the machine readable catalog to a customer/requestor system;
and receiving electronic purchase requisitions from said Customer/Requestor system based upon information obtained from said machine readable catalog.
13. In an electronic catalog requisition system in which catalogs of items offered by suppliers are stored on a central catalog database system, a method for retrieving information relating to said items and electronically ordering items from suppliers comprising the following steps:
downloading the catalog database to a Customer/Requestor computer system;
modifying said catalog database to create a private catalog, said private catalog containing data different than said downloaded catalog database;
searching said private catalog for information on an item selected by a user;
creating an electronic requisition for said item using the customer/Requestor computer system; and
transmitting said electronic requisition to a supplier computer system.
If you read the specification, it mentions the prior art manual method, of course, and then makes reference to what was then seen as an example of online ordering, namely Prodigy.
The gist of the patented system and method is that vendors would send their catalog information to either public (i. e. accessible by multiple customers) or private (accessible by individual customers) who could then run purchase queries (either ad hoc or automated) and then cut electronic purchase orders.
Four US patents were cited as prior art. Doesn't sound exactly earth shaking, even for 1990. This seems to have had a B to B flavor to it; wasn't this already established back then, even if not specifically internet oriented?
I basically agree with your points, but would put a bit more emphasis on the role of the internet demonstrated by this incident. There are two factors, IMHO, that the internet contributed.
The first is the rise of chat rooms and other venues of communication that facilitate communication among people. It's often observed that they enable people from around the world to communicate, but, what is often not remarked is that people not so distant, but who would not likely have met, are also able to interact, most relevantly as illustrated in this case in a "reasonably close" proximity for physical contact. The second is the ability of the internet to facilitate "data mining" for information leading to the physical contact.
Now, it is clear that the attacker in this case is off the wall and does not represent the average antagonist on the net, but the ever widening embrace of the net is going bring an increase of the number of such unstable people in contact with others, illustrating that point that in addition to the benefits of such widespread communication are a number of pitfalls.
Well, there already is a Duty to disclose information material to patentability. The Oath (or Declaration) requires the inventor(s) to swear or declare that he/they is/are the "original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought." There is also a general Federal law that prescribes fine and/or imprisonment for up to 5 years for anyone who, in Federal Government proceedings knowingly and willfully
falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
makes any materially false, fictitious, or fraudulent statement or representation; or
makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
In the recent decades it is common practice for patent applicants to submit an "Information Disclosure Statement" where they list prior art they submit to satisfy the foregoing laws and rules. And it's not uncommon to find an examiner using art cited by applicant in formulating prior art rejections. The real question, though, is one of state of mind of the applicant, i. e., the old question if "What did you know and when did you know it?" In asessing applicant's duty to disclose relevant prior art, how much effort to find relevant prior art must applicant show? It is not totally out of the question, even in this age of extensive internet search tools and data sources, that some public, but obscure, piece of prior art might exist, but not readily available. If someone only unearths the reference after searching for hundreds of hours (and quite possibly going to many dead tree sources or making hundreds of phone calls), are you really going to fine/throw in prison the applcant even if they can show they did make a decent search? And a borderline situation often exists in areas that have rapid development, where ideas can be published and spread very quickly. At what point does this become so commonly known that the applicant must be presumed to have known of it prior to the filing of the application, and thus be liable to criminal sanctions?
There's even a more complex situation where the question of obviousness is involved, as it most frequently is. A patent (or application) claim is unpatentable if it describes "subject matter as a whole [that] would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains" (35 USC 103). Who makes the judgment of what this ficticious person of ordinary skill in the art would know, and how he would judge the claim? It's a question of opinion to which different people, even with some credibility in the field, can disagree. What if the applicant, has the same prior art to consider, and decides it's not relevant, and thus, fails to cite it, but later some "expert witness" disagrees and states that, at the time of the invention anyone in the art would have known this? And, remember, the issue here is not that the claim is properly invalidated by this prior art, but that the applicant knew of the prior art, but did not disclose it; was this a good or bad faith omission?
It's hard enough just making the patentable/unpatentable decision under the current law, and it's a good idea to cite prior art even one is almost certain it's not relevant to the patentability determination, but routinely criminalizing such an omission seems a bit over the top.
"The U.S. District Court for the Northern District of Illinois ordered Wednesday that Spamhaus must pay $11,715,000 in damages to e360insight and its chief, David Linhardt, who sued the U.K.-based organization earlier this year over blacklisting.
This is a Federal Court not an Illinois state court (This assumes the fine article is accurate). Of course, Federal courts sometimes have to interpret and apply state laws. I'll let legal experts give a more informed opinion on the merits of this case.
As have some other repliers, I feel the same way. I've used mdk from, IIRC, 7.x and have upgraded since, up to 2006. At the time it was a great distro for someone who lacked the skill set to run a more "hardcore" distro, but allowed me to, on a very selective basis, get into the guts for study, and modification. It offered a great install that (mostly) ended up with lots of things "just working" (well, again, mostly). I was rather enthusiastic, and decided to support the Mandrake effort, even through their bankruptcy, by joining Mandrake Club, even though, on review, I didn't make all that much use of it; it's main use was early downloading access of releases via bittorrent.
But, then they got out of bankruptcy and began a transition from a struggling commercial distro into what they hoped would be another Red Hat or Novell. This was signaled to me when their web site was redesigned. They replaced their cluttered but link rich home page with a boringly slick, but sparse front page that immediately sorted out the business from the casual users, each herded down separate, controlled paths to the common functions. For example, sometimes I needed to to go to mdk's development area, the Cooker. This used to have a link from the old page, but, on a few forays onto the new site, I have yet to find a link to it. Fortunately I had saved a link to the cooker page, but someone new to Mandriva would have to do some work to find this link.
Nevertheless, I was invested in the distro and, not having been shut out completely, continued to renew my club membership through 2005, but earlier this year I just let it expire. Firstly it was mostly working for me, and the update service still works for me, so I can keep it patched. Secondly, the rise of Ubuntu provides a distro that appears to be n00bishly comparable to the old Mandrake I started with. I've torrented a recent (6.06.1 desktop) Live CD and only briefly played with it twice, but I'm reluctant to make the switch now since I don't have a spare box nor hard disk space to create a pristine installation and dread the thought of even thinking of trying to "upgrade" over my existing mdk installation.
So, whither Mandriva 2007 for me? Perhaps I'll wait for the general release in a few months and upgrade (if there aren't a slew of issues with doing this, as has happened in the past). On the other hand if I could be convinced that I could, with minimal risk, transition to Ubuntu with my current resources, I think I'd do it with a parting "Thanks Mandrake (sic) we had great times together, but we've grown apart."
Re:But does it have a useable file-save dialogue?
on
GNOME 2.16 Released
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· Score: 1
Boy, you exactly nailed this annoyance. I just faced this "feature" several times yesterday; it's one of those "little things" that gets a microburst of fury at the developers. I wonder what the thought was that lead to this functionality.
Ehhh, another/. patent article just as I step out for most of the day.
Just a quick comment, based on what a friend and ex-colleague who keeps me up to date with what's going on in the PTO.... a lot of the "quality" initiatives involve lots and lots of "review" by others, other examiners, quality review, etc. The problem with this boils down to whether the reviewer has the same or better working knowlege of the art (i. e. technology) of the application under review. How does one expect such a reviewer to be able to generate better prior art than the examiner who works daily in art? Also, one not knowledgable about the art can misinterpret/misunderstand terminology, and often will think they have a great reference that superficially is great prior art, but really is is irrelevant, wasting time in arguments back and forth. This is like quickly hacking out code and then trying to get it working by bug fixing, a very inefficient process.
The streamlining aspects are just management code-speak for speeding up the assembly line, reducing the amount of time an examiner spends on an application, etc, which has been the real focus of management efforts over the past 30 or more years; it's a hard culture for management to abandon.
So you end up with the worst of all worlds: A system with strict production controls with an add-on review system that just harasses examiners without actually enhancing quality.
...is to not issue then in the first place. As I discusssed previously the "suggestion" test, promulgated by the Court of Appeals for the Federal Circuit and its predecessor, the Court if Customs and Patent Appeals, has greatly increased the burden on patent examiners in making and being upheld on obviousness rejections. As the amicus brief points out the Supreme Court made a fundamental ruling on what obviousness means back in 1966 in the Graham case. The CAFC, essentially, grafted on the "suggestion" test as their interpretation of this.
One factor in supporting this test was the presence of Judge Giles S. Rich who was a co-drafter of the major 1952 reform of the US patent laws, which, among many other changes, introduced the statutory legal requirement of non-obviousness, codifying a previous long line of court-made case law.
Rich was a driver of the suggestion test, and, clearly, had a big influence on the court in its promulgation.
The effect of this requirment on the examination process is twofold. First, it sets an absolute standard for patentablilty; If you, theoretically, had available the most relevant prior art in the universe, the higher standard increases the chance that a particular patent claim will be judged non-obvious (i. e. allowable). Secondly, and following from the first effect, is the reality that one can't actually consider that one has found, in any practical real life sense, every piece of relevant prior art. So, if the examiner searches and starts finding relevant prior art, but still hasn't found enough to reject each claim, at what point does one stop searching?
The answer is heavily dictated by the examiner's production requirment. In the art areas having the most time assigned to them this works out to about 40 hours for the presecution of the entire application, and this is for a GS-12 examiner; for a Primary Examiner (the normal top of the career ladder) this is derated by a factor of 1.35. On top of this, applications are filed, and are maintained with more claims than in the past, and each claim must be explicitly treated. This results in a rats-nest of claims with different sets of limitations, often in various permutations. It is often the case where the examiner has good art on the broadest, independent claims, but then the question of how to reject the express limitations in various dependent claims arises. With the suggestion test, an examiner must go into each of the references and show exactly where in each is the "suggestion"; In the old days you could just toss this off, but now you have to find the words that "suggest" this.
The result is often a war of attrition with the applicant holding the cards. Thus, claims get allowed that you just know are, in your heart of hearts, crap, but which you just can't support, or track down and discuss dozens of additional references that might or might not exist; spending too much time results in either lower production and the risk of being fired, or taking time from other applications, shortchanging their examination.
If the SCOTUS removes this "suggestion" test and restores the standard back to the way it was practiced decades ago with patents issued with narrower claims, if even issued at all. On the other hand, if it is upheld, or, perish the thought, even enhanced, then only Congressional action can change this, and this is very unlikely.
...while some good points about how this scheme can be sabotaged by entities for or against a given application there is one aspect that is critical as to how successful this concept will be, namely, how the PTO will implement this. The key aspect that signals this is hinted at in TFA: examiners, on average, have about 20 hours to spend on an application so that they will be rated "fully successful"; to meet this critical requirment in their Performance Appraisal plan they must average out, over any one year period, at least 95% of their assigned "expectancy" Now the "hot button" technologies have been rated at the highest level, so the software, business methods, biotech areas get roughly twice the time (i. e. about 40 hours).
These time figures have been in place since about the latter 1960s (although the "hot buttons" areas are more recent). Congress has generally critcized the PTO for the excessive application pendency, so a PTO management culture developed dedicated to controlling pendency, and the productivity requirement is, along with some time limits to respond to activity once the first action has been issued, the primary driver used to effect this control.
Over the years, because additional requirements have been added to the examination process, along with the courts increasing the showings needed to legally establish non-obviousness, it has been harder to examine an application. Because the time allotted is constant the quality of issued patents has declined (yes in infringement cases the Courts apply the same, increased burden, but then the parties can devote hundreds of hours, not, at best, 40 hours or so as in the PTO during examination).
As to this current wiki proposal: if PTO management implements this as it has other examination process "enhancements" in the past, it will be "bolted onto" the existing process; just one more "thing" that has to be "checked off" in the prosecution of the application with no more time give to accomodate it. The result will be, if the examiner knows that it will be "wikied" is that less time will be spent during the pre-wiki initial exaamination, betting that the post wiki part of examination will likely develop the best prior art; after all why waste a lot of time with the prior art that will be developed pre wiki when, later, new, better prior art is developed that will just stretch out the prosecution, leading to a lower production figure (remember, it's a constant).
It's possible that PTO management will actually develop a reasonable program that is actually effective, but given their past, deeply ingrained "production line" mentality, I rather doubt it.
Your correction of the GP is mostly correct, but has, itself, one error: There is no retroactive effect to issue of a patent; it is only effective as of the date of issue, and expires no later than 20 years from the effective filing date of the application (the expiration date might be sooner due to things like terminal disclaimers, failure to pay maintenance fees, but might also be longer due the effect of the Patent Term Extension Act, mainly for pharmaceuticals subject to regulatory approvals). The benefit of an earlier filing date is immunizing the application/patent against prior art attacks.
Technically, priduction is measured by a rate described as "Hours per Balanced Disposal" A Balenced Disposal is calculated by counting, during ther time period under consideration (the "Hours") all the first actions on the merits (whether a rejection, an allowance, or an express abandoment), adding to that the nuber of disposals (Allowances, Abandonments, and Appeals) then dividing by 2. Each examiner is given an expectancy (based on the specific area of technology to which he/she is assigned, grade, level of signatory authority, and possible "extra credit" items like "senior examiner" or "expert examiner") and a percent achievment is then calculated.
The minimum achievement to be considered "satisfactory" is 95% (25 years ago this was 75%), but supervisors tend to harass examiners who do not make 100%, and some perssure them to do at least 105% or even more. There is a quality element that also, formally must be met, but it takes work to review the art of record to see if there were good grounds to reject a claim allowed by the examiner (and the chances are that the reviewer is less familiar with the art than the reviewee), and it takes "exponentially more work for a reviewer to search for additional, better prior art then is of record in the application (cited by both the examiner and the applicant).
With the emphasis over the last 40 years or so being to "reduce pendency", and, when evaluating an examiner's performance, the production requirement is automatically computed for each biweek, each quarter, and each fiscal year, the supervisor just looks at the report. To justify a quality deficiency takes work to look at/find prior art and then justify why a rejection should be proper. The result: emphasizing production doevtails with reducing pendency; quality almost always comes up hit or miss when raised by infrequent quality reviews or when the crap hits the fan from outside.
The management is so wrapped up in its production and application management mentality that it is having a hard time tackling the quality issues it finally realizes it must address. From what I have heard they are tackling this by imposing more review processes; unfortuantely they haven't allowed for more time for all this reviewing, so the net is just more mostly ineffective procedures that leave less time to actually perform the examining function (such as search for the best prior art). It's like adding more inspections to a faulty production line rather than fix the root problem. And don't jsut say they just need to hire competant people; The turnover in the examing core is massive and they just can't keep people, and then they wonder "why?"
That's a fair point to make, since, ideally, the law should set a standard from the point of view that considers only the respective positions of the patentee and everyone else (potential accused infringers, not to mention society as a whole). However it is a mistake to ignore the practial impact such a standard imposes on the function of the PTO in establishing the patent grant in the first place. Using a High standard results in either a flood of patents that, in the long run and with more resources available to it, get invalidated, or else more resources need to be given during the examination process (such as better search tools, and more time to gather and interpret the prior art) which boils down to a costlier PTO (they have a goal of reaching 4,000 examiners when I can recall a period during the Carter administration when there were less than 1,000). Part of a functioning patent system in a real world must include some degree of administrative convenience in setting standards like this as opposed to some theoretical perfect world.
Disclaimer: IANAL but I am a former patent examiner.
After reading through a night's worth of comments I think your post most accurately states the principle of patent law that, hopefully, will be given a clear set of guidelines and that these guidelines will result in scaling back what have become, over the many years of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals holdings on interpreting non-obviousness.
The reason this is critical is that, beyond the obvious effect in being able to strike down issued patents only after lengthy and costly litigation it would enable the PTO to issue narrower claims, or even refuse issue of any claims in the first place. The current CAFC case law has put a too high burden on time-constrained examiners to make good cases against with prior art references that are readily available. Thus, if a reference doesn't explicitly babble about all the kinds of things the stuff it discloses could be used for the applicant will scream that it doesn't "suggest" the use described in the claims at issue. The examiner is then stuck with searching more for a better "golden bullet" reference (Hell, you might just find an anticipating reference that knocks out the claim with no sticky obviousness issues) or finding yet another "glue" reference which will risk complicating the rejection, giving applicant more room to attack the rejection.
Doing this routinely, however, will take up time, and the examiners must meet their production quotas or else they will be fired, so it's either to throw in the towel and allow the claim (a very easy thing to do with little time consumption) or if the applicant appeals, to write an examiner's answer on appeal and ship the case off to the PTO's Board of Appeals (which takes a lot more work, not to mention that after the appeal is decided with anything reversed, the examiner must issue the application yet gets no more time to handle this work)
This is why this appeal has the great potential, if the opinion issued by the SCOTUS is clear and in the right direction, of scaling back some of the high barriers erected by the CAFC. On the other hand, if they, in essence, affirm this CAFC case law then we are stuck with the current situation in which case only Congress can change it, the possible results thereof I shudder to even contemplate.
There is a Yahoo IM client with video and voice support, gyachi. I have been using version 1.0.3 for the last few months. It is clearly a work in progress, with lots of rough edges; this version, for example, locks up if you try to talk, but will work fine as a listen only client. This works for me since I frequent a room where others play music (yean, not exactly high quality, but...whatever).
There is a version 1.0.4 that is current, but I found it had some degraded functionality so I've regressed back to 1.0.3, which is a kludged gtk/python (for the voice part) package.
Gee, I would have thought that/. would have posted a story about the fact that the PTO granted a rexam of the Amazon one click patent on Friday, but I guess I'll have to wait...
Disclaimer: IANAL (let alone an IP or Constitutional law Lawyer)
I have nothing to add to the details of this particular case, but I think it is at least interesting that this appeal, from the Court of Appeals for the Federal Circuit (CAFC) was a UNANIMOUS REVERSAL. Over the past 30 years or so, the CAFC (and predecessor Court of Customs and Patent Appeals) has pretty much been the interpreter of US Patent Law. But for a few, scattered reversals by the SCOTUS, what sayeth the CAFC, rules. And the CAFC has been, over this time period, the best friend that patent applicants and owners could ask for, oncluding, beyond this question of injuctive relief, lowering the bar on what is needed to overcome a determination of obviousness (you have to show "motivation" to combine two or more references), or expanding the scope of subject matter that might be patented (software and business methods).
This is an indication that at least some of the antics of the CAFC will not be rubber stamped by the SCOTUS. Of course this is not to say that the SCOTUS won't ratify these other CAFC expansions, but it goves some hope that this judicial loose cannon might have its muzzle plugged, at least a bit.
Slashdot Mirror
This story is a dupe but I'll comment further. I'll also make my standard disclaimer when discussing patents: I am not a patent attorney, but I am a former patent examiner.
The point you make is known in the patent biz as "hindsight", and is commonly argued by patent applicants against rejections based on obviousness ( 35 USC 103). This, of course, is the crux of this issue;given a patent claim and a set of pieces of "prior art", no one of which describes the invention in the claim (which would render the claim unpatentable for lack of novelty (i. e., "anticipation") under 35 USC 102) how does one apply the law to render a conclusion. Of course, there's one additional factor, beyond mere descriptive disclosure of the "process, machine, manufacture, or composition of matter" (35 USC 101) claimed, and that is the mythical "person having ordinary skill in the art to which said subject matter pertains". In infringement cases, where there's real money involved ( the patentee/licensee and/or the accused infringer markets), expert witnesses can give testimony for either side in addition to the prior art entered as evidence.
In the PTO during application prosecution, on the other hand, there is no access to expert opinions for the examiner. On average an examiner has on the order of 15-20 hours to work on a typical application (varies by examiner's level and the art he/she is assigned). This includes all handling of the application from initially reading it, searching for prior art, formulating actions, reading and responding to amendments and arguments presented by applicant, reading applicant's appeal brief and writing an examiner's answer in those cases where applicant appeals the examiner's rejection to the PTO's appeal board, etc. In this environment, the level of ordinary skill in the art must derive from the prior art references, themselves, and any conclusion of obviousness must derive from what the prior art references show.
The determination, thus, rests with determining whether the things shown in one reference would be applicable to be used in another. In th past, patent examiners were often given great weight in making such judgments, although they had to be supported by some kind of reasoning. However, over the last few years under the judicial oversight of the PTO's appeal court, the previous Court of Customs and Patent Appeals (CCPA), now the Court of Appeals for the Federal Circuit (CAFC) the ability of examiners to make such determinations has been limited, with the Court demanding that more and more of the rationale be expressly stated in the prior art themselves. If you assumed that, in each case, that the absolute best prior art has been developed this would tend to decrease the number of rejections that could be sustained, since even expert testimony would be questioned for not supporting their conclusions, or being biased, that is, the expert is using hindsight to reconstruct the invention and this is the main reason the case is before the SCOTUS. In the PTO there is the additional burden of increased searching to find "better" prior art; references that would be perfectly fine in supporting rejections made under the environment of years ago will no longer provide such support; the haystack gets larger (more and more prior art heaps on as time progresses) and the available suitable needles get fewer and fewer.
The legal requirements derived and applied by the CAFC have not previously been tested by the SCOTUS; the leading case, which the CAFC has used as part of its legal reasoning, is GRAHAM v. JOHN DEERE CO. which, while setting out a ser
he basic issue here is, given that no one "piece" of the prior art shows the invention (which would render the claim unpatentable for lack of novelty), would the invention be obvious to one of ordinary skill in the art at the time the invention was made. The problem is, how does one determine what such a hypothetical person would think? This, then, is a construct that must be made by whomever is interested in it, including patent examiners, judges, juries, competitors, etc. The prior art has to be determined by finding concrete evidence, namely, public disclosures (printed publications, prior use, certain activities of others, etc.).
The key question is how far the one evaluating obviousness can draw inferences from the explicit teachings of each piece of prior art. In court cases it's possible to have "expert testimony" given which can help (but of course their credibility has to be evaluated, particularly if both parties use experts with opposing opinions), but the PTO must rely strictly on things like printed publications. In this circumstance the evaluator has to draw inferences: a "low" standard permits the evaluator to make many implicit inferences; a "high" standard requires that the prior art, itself, must have explicit explanations of disclosed features and how and/or why they could be used. It is believed by many that traditionally, the courts, including the SCOTUS (as the final arbiters of each controversy) used a relatively low standard, but the Court of Appeals for the Federal Circuit (CAFC), now the sole patent court below the Supreme Court, has evolved a standard which is relatively high.
The problem with the PTO, which for decades has been obsessed with cranking out work first over stressing the thorough gathering and assessing of prior art, is that the higher burden to prove obviousness means more and broader claims get issued. The references not only have to literally describe the subject matter, but need to have need to have some discussion of why something is done. Where previously one might find a couple of references showing, among them, all the claimed features and then make a sustainable rejection one must now get references that, while literally showing nothing more, have explanations to support "combining" the features to meet the patent applicant's claims. Now given enough time perhaps better prior art could be developed, but this time is not provided, so it ends up being that the search get cut off, the art is applied as found, then it's off to the next application so that production and timeliness quotas are not missed. The same burden, of course, applies in an infringement case, but most accused infringers will have access to loads more time to find better prior art, secure expert testimony, etc.
You are arguing a different issue, which is what kind of subject matter
might qualify for patent protection, which is whether what is being
patented falls within one of the four statutory
classes (utility) for which patenting is permitted. The KSR case
being argued on tuesday concerns the question of obviousness,
more particularly if there is no single disclosure in the prior art
that exactly "reads on" the claims applicant/patentee make, is it yet
"obvious" over the "prior art" that did exist at the time the invention
was made. If the invention is not within one of four statutory classes
then the question of obviousness is moot. Of course, if both utility
and obviousness are in dispute (either during prosecution in the PTO
or, as a patent, in court) then both issues will be generally be
treated, since both are necessary (but not sufficient) for a valid
patent claim.
..holy sh*t, this is incredible (Well, sadly not). For convenience, here's the PTO's version of the patent, better to use because it has links to some of the cited prior art patents. Additionally, consider looking at the prosecution of the application. You can download a pdf of the "image file wrapper" which includes the examiner's action and applicant's response.
..." Now Porter goes on to add an auxiliary array of
pointers (but for a more refined use than just an index) but the basic
concept of a doubly linked list is here. Even the examiner very briefly
acknowledged in passing that Porter showed a doubly linked list, but
obviously failed to recognize that this fully meets claim 1 (including
the redrafted version); she obviously did not understand what the
applicant was showing. If there are any doubts about what arrangement
of data are being disclosed and claimed here then just look a Figure
one in the drawings (You have to use the "Images" link at the top which
will take you to a clumsy page that displays the sheets of the actual
patent specification using some specific tiff format, so your browser
must be capable of displaying these images).
There was a nominal rejection under 35 USC 101 as covering non-statutory subject matter, which applicant easily overcame by typical claim redrafting used in software patents. There was also a rejection under 35 USC 102 as being anticipated by the patent to Schwartz. The latter patent discloses a singly linked list and an separate array of pointers to individual items (kind of like an index?). Clearly, this is not the same as the doubly linked list of the application, and the applicant responded by pointing this out. The application was then allowed and issued.
What was clearly missed here was the patent to Porter which discloses a "...doubly-linked list search and management method
I'm sure there are lots of other prior art showing this plus the use of more than two lists (like Fig. 3). In any event I can't see claim 1 surviving even a cursory challenge. Anyone have $ 2,520.00 free to file a reexamination request?
But such a broad claim is unpatentable as anticipated (35 USC 102) over narrower prior art, since the classic double linked list is a just a specific ordering; a broad claim is defeated by a specific one, since it "reads on" every limitation in the claim. In this case, broad claim ony associates the two pointers to respective two sequences, and does not specify any characteristics of what these sequences are. The classic case falls into this definition. In order to avoid anticipation of this prior art one would have to specify some kind limitation on the sequences, such as "said second sequence specifying an order different from the reverse of said first sequence".
That would avoid an anticipation rejection, but only as to the specific prior art, and it does not say anything about non-obviousness under 35 USC 103 and reams of other prior art other posters have brought up.
I'm not an attorney but this is not strictly true. The applicable legal doctrine to be invoked is known as laches. A quickly Googled search brought up this discussion, which, while somewhat directed to lawyers, gives a gist of what an accused infringer can do to mitigate damages after having been judged to infringe valid patent claims.
Basically, invoking the laches defense will prevent all infringing activity prior to the filing of the suit from being included in any damages, but will not prevent a possible assessing of damages after the file, not bar the judge from issuing an injunction to stop further infringement. The patent law also provides a time limit of six years prior to the filing date of the suit for assessing damages; this time period has been used by judges in the consideration of the laches question (see second link for the full discussion of how this works).
The metadata types referred to are tags, comments, descriptions, favorites and annotations. So, this claim would cover presenting one or more images to a user and then accepting at least two of the types, such as tagging and commenting. Claims 1 - 27 are directed various details of this.
Claims 28 - 142 are where the applicants want to really make money from this concept:
Basically they are allowing an adserver to select an ad to show with the media object by sending at least one metadatum to the adserver based on their crunched metric.
What's the patent number? I'm sure Fuji has boatloads of patents, making it hard to fix just what one is involved here.
I can't see what the correspondence during the patent prosecution was, nor what prior art was actually discussed, since the application from which this patent issued was too old have an online public Image File Wrapper, but under current patent law (but under Supreme Court review) to show Obviousness one needs to show positive evidence that "suggests" each aspect of the patent claims. Simple hand waving won't cut it; i. e. saying "It's generally obvious that doing anything in sw can also be done in hw (and of course vice versa).
So, can anyone find a good prior reference that explicitly mentions the desirability of using a floating point based frame buffer in a graphics environment? I know nothing, specifically about this art, but this would be needed to establish a good case. This would have a good shot at invalidating claim 22, the broadest claim to this feature.
Also I noticed that a number of claims, notably the first few independent claims seem to define mention floating point only in the context of individual sub-units of the rasterizing hardware, which, to my perhaps naive mind, do not require that the frame buffer actually store floating point color data, and at least one of the prior art patents cited (Intel's 5,995,122) uses fp in parts of the rasterizing hw. I know I would have used such a reference against to make a rejection, if, for no other reason, to get the applicant on record as saying these claims implicitly requires fp color data in the frame buffer.
The 4 independent claims of 5,319,542, "System for ordering items using an electronic catalogue":
1. A system for electronically ordering items comprising:
at least one supplier computer system, having means for creating and storing at least one catalog containing items offered by the supplier and means for accepting orders for items;
a public computer system containing a complication of catalogs of items offered by the supplier;
means connecting said supplier computer systems and said public computer system for transferring catalog data to said public computer system to create a public catalog;
a first Customer/Requestor computer system containing a first private catalog and having means for accessing said catalogs on said public computer system, means for electronically ordering items directly from the suppler, and means for modifying said first private catalog; and
a second Customer/Requestor computer system containing a second private catalog and having means for accessing said catalogs on said public computer system, means or electronically ordering items directly from the supplier, and means for modifying said second private catalog so that said second private catalog is different form said first private catalog.
8. In an electronic catalog requisition system in which catalogs of items offered by suppliers are stored on a central catalog database system, a method for retrieving information elating to said items and electronically ordering items from suppliers comprising the following steps:
searching the catalog database for information on a customer-selected item, said catalog database residing on a public computer system;
downloading said information on said customer-selected item to a Customer/Requestor computer system;
creating an electronic requisition using the Customer/Requestor computer system; and
transmitting the electronic requisition to a supplier computer system.
11. A method for facilitating the ordering of items offered by a supplier comprising the following steps:
creating a machine readable catalog of information relating to items offered by a vendor at a suppler computer system;
transmitting the machine readable catalog to a public database system for access by Customer/Requestors;
transmitted the machine readable catalog to a customer/requestor system;
and receiving electronic purchase requisitions from said Customer/Requestor system based upon information obtained from said machine readable catalog.
13. In an electronic catalog requisition system in which catalogs of items offered by suppliers are stored on a central catalog database system, a method for retrieving information relating to said items and electronically ordering items from suppliers comprising the following steps:
downloading the catalog database to a Customer/Requestor computer system;
modifying said catalog database to create a private catalog, said private catalog containing data different than said downloaded catalog database;
searching said private catalog for information on an item selected by a user;
creating an electronic requisition for said item using the customer/Requestor computer system; and
transmitting said electronic requisition to a supplier computer system.
If you read the specification, it mentions the prior art manual method, of course, and then makes reference to what was then seen as an example of online ordering, namely Prodigy.
The gist of the patented system and method is that vendors would send their catalog information to either public (i. e. accessible by multiple customers) or private (accessible by individual customers) who could then run purchase queries (either ad hoc or automated) and then cut electronic purchase orders.
Four US patents were cited as prior art. Doesn't sound exactly earth shaking, even for 1990. This seems to have had a B to B flavor to it; wasn't this already established back then, even if not specifically internet oriented?
I basically agree with your points, but would put a bit more emphasis on the role of the internet demonstrated by this incident. There are two factors, IMHO, that the internet contributed.
The first is the rise of chat rooms and other venues of communication that facilitate communication among people. It's often observed that they enable people from around the world to communicate, but, what is often not remarked is that people not so distant, but who would not likely have met, are also able to interact, most relevantly as illustrated in this case in a "reasonably close" proximity for physical contact. The second is the ability of the internet to facilitate "data mining" for information leading to the physical contact.
Now, it is clear that the attacker in this case is off the wall and does not represent the average antagonist on the net, but the ever widening embrace of the net is going bring an increase of the number of such unstable people in contact with others, illustrating that point that in addition to the benefits of such widespread communication are a number of pitfalls.
In the recent decades it is common practice for patent applicants to submit an "Information Disclosure Statement" where they list prior art they submit to satisfy the foregoing laws and rules. And it's not uncommon to find an examiner using art cited by applicant in formulating prior art rejections. The real question, though, is one of state of mind of the applicant, i. e., the old question if "What did you know and when did you know it?" In asessing applicant's duty to disclose relevant prior art, how much effort to find relevant prior art must applicant show? It is not totally out of the question, even in this age of extensive internet search tools and data sources, that some public, but obscure, piece of prior art might exist, but not readily available. If someone only unearths the reference after searching for hundreds of hours (and quite possibly going to many dead tree sources or making hundreds of phone calls), are you really going to fine/throw in prison the applcant even if they can show they did make a decent search? And a borderline situation often exists in areas that have rapid development, where ideas can be published and spread very quickly. At what point does this become so commonly known that the applicant must be presumed to have known of it prior to the filing of the application, and thus be liable to criminal sanctions?
There's even a more complex situation where the question of obviousness is involved, as it most frequently is. A patent (or application) claim is unpatentable if it describes "subject matter as a whole [that] would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains" (35 USC 103). Who makes the judgment of what this ficticious person of ordinary skill in the art would know, and how he would judge the claim? It's a question of opinion to which different people, even with some credibility in the field, can disagree. What if the applicant, has the same prior art to consider, and decides it's not relevant, and thus, fails to cite it, but later some "expert witness" disagrees and states that, at the time of the invention anyone in the art would have known this? And, remember, the issue here is not that the claim is properly invalidated by this prior art, but that the applicant knew of the prior art, but did not disclose it; was this a good or bad faith omission?
It's hard enough just making the patentable/unpatentable decision under the current law, and it's a good idea to cite prior art even one is almost certain it's not relevant to the patentability determination, but routinely criminalizing such an omission seems a bit over the top.
This is a Federal Court not an Illinois state court (This assumes the fine article is accurate). Of course, Federal courts sometimes have to interpret and apply state laws. I'll let legal experts give a more informed opinion on the merits of this case.
As have some other repliers, I feel the same way. I've used mdk from, IIRC, 7.x and have upgraded since, up to 2006. At the time it was a great distro for someone who lacked the skill set to run a more "hardcore" distro, but allowed me to, on a very selective basis, get into the guts for study, and modification. It offered a great install that (mostly) ended up with lots of things "just working" (well, again, mostly). I was rather enthusiastic, and decided to support the Mandrake effort, even through their bankruptcy, by joining Mandrake Club, even though, on review, I didn't make all that much use of it; it's main use was early downloading access of releases via bittorrent.
But, then they got out of bankruptcy and began a transition from a struggling commercial distro into what they hoped would be another Red Hat or Novell. This was signaled to me when their web site was redesigned. They replaced their cluttered but link rich home page with a boringly slick, but sparse front page that immediately sorted out the business from the casual users, each herded down separate, controlled paths to the common functions. For example, sometimes I needed to to go to mdk's development area, the Cooker. This used to have a link from the old page, but, on a few forays onto the new site, I have yet to find a link to it. Fortunately I had saved a link to the cooker page, but someone new to Mandriva would have to do some work to find this link.
Nevertheless, I was invested in the distro and, not having been shut out completely, continued to renew my club membership through 2005, but earlier this year I just let it expire. Firstly it was mostly working for me, and the update service still works for me, so I can keep it patched. Secondly, the rise of Ubuntu provides a distro that appears to be n00bishly comparable to the old Mandrake I started with. I've torrented a recent (6.06.1 desktop) Live CD and only briefly played with it twice, but I'm reluctant to make the switch now since I don't have a spare box nor hard disk space to create a pristine installation and dread the thought of even thinking of trying to "upgrade" over my existing mdk installation.
So, whither Mandriva 2007 for me? Perhaps I'll wait for the general release in a few months and upgrade (if there aren't a slew of issues with doing this, as has happened in the past). On the other hand if I could be convinced that I could, with minimal risk, transition to Ubuntu with my current resources, I think I'd do it with a parting "Thanks Mandrake (sic) we had great times together, but we've grown apart."
Boy, you exactly nailed this annoyance. I just faced this "feature" several times yesterday; it's one of those "little things" that gets a microburst of fury at the developers. I wonder what the thought was that lead to this functionality.
Check out a timely article, posted on digg itself, that gives the skinny on how it works there.
Ehhh, another /. patent article just as I step out for most of the day.
Just a quick comment, based on what a friend and ex-colleague who keeps me up to date with what's going on in the PTO.... a lot of the "quality" initiatives involve lots and lots of "review" by others, other examiners, quality review, etc. The problem with this boils down to whether the reviewer has the same or better working knowlege of the art (i. e. technology) of the application under review. How does one expect such a reviewer to be able to generate better prior art than the examiner who works daily in art? Also, one not knowledgable about the art can misinterpret/misunderstand terminology, and often will think they have a great reference that superficially is great prior art, but really is is irrelevant, wasting time in arguments back and forth. This is like quickly hacking out code and then trying to get it working by bug fixing, a very inefficient process.
The streamlining aspects are just management code-speak for speeding up the assembly line, reducing the amount of time an examiner spends on an application, etc, which has been the real focus of management efforts over the past 30 or more years; it's a hard culture for management to abandon.
So you end up with the worst of all worlds: A system with strict production controls with an add-on review system that just harasses examiners without actually enhancing quality.
...is to not issue then in the first place. As I discusssed previously the "suggestion" test, promulgated by the Court of Appeals for the Federal Circuit and its predecessor, the Court if Customs and Patent Appeals, has greatly increased the burden on patent examiners in making and being upheld on obviousness rejections. As the amicus brief points out the Supreme Court made a fundamental ruling on what obviousness means back in 1966 in the Graham case. The CAFC, essentially, grafted on the "suggestion" test as their interpretation of this.
One factor in supporting this test was the presence of Judge Giles S. Rich who was a co-drafter of the major 1952 reform of the US patent laws, which, among many other changes, introduced the statutory legal requirement of non-obviousness, codifying a previous long line of court-made case law. Rich was a driver of the suggestion test, and, clearly, had a big influence on the court in its promulgation.
The effect of this requirment on the examination process is twofold. First, it sets an absolute standard for patentablilty; If you, theoretically, had available the most relevant prior art in the universe, the higher standard increases the chance that a particular patent claim will be judged non-obvious (i. e. allowable). Secondly, and following from the first effect, is the reality that one can't actually consider that one has found, in any practical real life sense, every piece of relevant prior art. So, if the examiner searches and starts finding relevant prior art, but still hasn't found enough to reject each claim, at what point does one stop searching?
The answer is heavily dictated by the examiner's production requirment. In the art areas having the most time assigned to them this works out to about 40 hours for the presecution of the entire application, and this is for a GS-12 examiner; for a Primary Examiner (the normal top of the career ladder) this is derated by a factor of 1.35. On top of this, applications are filed, and are maintained with more claims than in the past, and each claim must be explicitly treated. This results in a rats-nest of claims with different sets of limitations, often in various permutations. It is often the case where the examiner has good art on the broadest, independent claims, but then the question of how to reject the express limitations in various dependent claims arises. With the suggestion test, an examiner must go into each of the references and show exactly where in each is the "suggestion"; In the old days you could just toss this off, but now you have to find the words that "suggest" this.
The result is often a war of attrition with the applicant holding the cards. Thus, claims get allowed that you just know are, in your heart of hearts, crap, but which you just can't support, or track down and discuss dozens of additional references that might or might not exist; spending too much time results in either lower production and the risk of being fired, or taking time from other applications, shortchanging their examination.
If the SCOTUS removes this "suggestion" test and restores the standard back to the way it was practiced decades ago with patents issued with narrower claims, if even issued at all. On the other hand, if it is upheld, or, perish the thought, even enhanced, then only Congressional action can change this, and this is very unlikely.
...while some good points about how this scheme can be sabotaged by entities for or against a given application there is one aspect that is critical as to how successful this concept will be, namely, how the PTO will implement this. The key aspect that signals this is hinted at in TFA: examiners, on average, have about 20 hours to spend on an application so that they will be rated "fully successful"; to meet this critical requirment in their Performance Appraisal plan they must average out, over any one year period, at least 95% of their assigned "expectancy" Now the "hot button" technologies have been rated at the highest level, so the software, business methods, biotech areas get roughly twice the time (i. e. about 40 hours).
These time figures have been in place since about the latter 1960s (although the "hot buttons" areas are more recent).
Congress has generally critcized the PTO for the excessive application pendency, so a PTO management culture developed dedicated to controlling pendency, and the productivity requirement is, along with some time limits to respond to activity once the first action has been issued, the primary driver used to effect this control.
Over the years, because additional requirements have been added to the examination process, along with the courts increasing the showings needed to legally establish non-obviousness, it has been harder to examine an application. Because the time allotted is constant the quality of issued patents has declined (yes in infringement cases the Courts apply the same, increased burden, but then the parties can devote hundreds of hours, not, at best, 40 hours or so as in the PTO during examination).
As to this current wiki proposal: if PTO management implements this as it has other examination process "enhancements" in the past, it will be "bolted onto" the existing process; just one more "thing" that has to be "checked off" in the prosecution of the application with no more time give to accomodate it. The result will be, if the examiner knows that it will be "wikied" is that less time will be spent during the pre-wiki initial exaamination, betting that the post wiki part of examination will likely develop the best prior art; after all why waste a lot of time with the prior art that will be developed pre wiki when, later, new, better prior art is developed that will just stretch out the prosecution, leading to a lower production figure (remember, it's a constant).
It's possible that PTO management will actually develop a reasonable program that is actually effective, but given their past, deeply ingrained "production line" mentality, I rather doubt it.
Your correction of the GP is mostly correct, but has, itself, one error: There is no retroactive effect to issue of a patent; it is only effective as of the date of issue, and expires no later than 20 years from the effective filing date of the application (the expiration date might be sooner due to things like terminal disclaimers, failure to pay maintenance fees, but might also be longer due the effect of the Patent Term Extension Act, mainly for pharmaceuticals subject to regulatory approvals). The benefit of an earlier filing date is immunizing the application/patent against prior art attacks.
Technically, priduction is measured by a rate described as "Hours per Balanced Disposal" A Balenced Disposal is calculated by counting, during ther time period under consideration (the "Hours") all the first actions on the merits (whether a rejection, an allowance, or an express abandoment), adding to that the nuber of disposals (Allowances, Abandonments, and Appeals) then dividing by 2. Each examiner is given an expectancy (based on the specific area of technology to which he/she is assigned, grade, level of signatory authority, and possible "extra credit" items like "senior examiner" or "expert examiner") and a percent achievment is then calculated.
The minimum achievement to be considered "satisfactory" is 95% (25 years ago this was 75%), but supervisors tend to harass examiners who do not make 100%, and some perssure them to do at least 105% or even more. There is a quality element that also, formally must be met, but it takes work to review the art of record to see if there were good grounds to reject a claim allowed by the examiner (and the chances are that the reviewer is less familiar with the art than the reviewee), and it takes "exponentially more work for a reviewer to search for additional, better prior art then is of record in the application (cited by both the examiner and the applicant).
With the emphasis over the last 40 years or so being to "reduce pendency", and, when evaluating an examiner's performance, the production requirement is automatically computed for each biweek, each quarter, and each fiscal year, the supervisor just looks at the report. To justify a quality deficiency takes work to look at/find prior art and then justify why a rejection should be proper. The result: emphasizing production doevtails with reducing pendency; quality almost always comes up hit or miss when raised by infrequent quality reviews or when the crap hits the fan from outside.
The management is so wrapped up in its production and application management mentality that it is having a hard time tackling the quality issues it finally realizes it must address. From what I have heard they are tackling this by imposing more review processes; unfortuantely they haven't allowed for more time for all this reviewing, so the net is just more mostly ineffective procedures that leave less time to actually perform the examining function (such as search for the best prior art). It's like adding more inspections to a faulty production line rather than fix the root problem. And don't jsut say they just need to hire competant people; The turnover in the examing core is massive and they just can't keep people, and then they wonder "why?"
That's a fair point to make, since, ideally, the law should set a standard from the point of view that considers only the respective positions of the patentee and everyone else (potential accused infringers, not to mention society as a whole). However it is a mistake to ignore the practial impact such a standard imposes on the function of the PTO in establishing the patent grant in the first place. Using a High standard results in either a flood of patents that, in the long run and with more resources available to it, get invalidated, or else more resources need to be given during the examination process (such as better search tools, and more time to gather and interpret the prior art) which boils down to a costlier PTO (they have a goal of reaching 4,000 examiners when I can recall a period during the Carter administration when there were less than 1,000). Part of a functioning patent system in a real world must include some degree of administrative convenience in setting standards like this as opposed to some theoretical perfect world.
Disclaimer: IANAL but I am a former patent examiner.
After reading through a night's worth of comments I think your post most accurately states the principle of patent law that, hopefully, will be given a clear set of guidelines and that these guidelines will result in scaling back what have become, over the many years of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals holdings on interpreting non-obviousness.
The reason this is critical is that, beyond the obvious effect in being able to strike down issued patents only after lengthy and costly litigation it would enable the PTO to issue narrower claims, or even refuse issue of any claims in the first place. The current CAFC case law has put a too high burden on time-constrained examiners to make good cases against with prior art references that are readily available. Thus, if a reference doesn't explicitly babble about all the kinds of things the stuff it discloses could be used for the applicant will scream that it doesn't "suggest" the use described in the claims at issue. The examiner is then stuck with searching more for a better "golden bullet" reference (Hell, you might just find an anticipating reference that knocks out the claim with no sticky obviousness issues) or finding yet another "glue" reference which will risk complicating the rejection, giving applicant more room to attack the rejection.
Doing this routinely, however, will take up time, and the examiners must meet their production quotas or else they will be fired, so it's either to throw in the towel and allow the claim (a very easy thing to do with little time consumption) or if the applicant appeals, to write an examiner's answer on appeal and ship the case off to the PTO's Board of Appeals (which takes a lot more work, not to mention that after the appeal is decided with anything reversed, the examiner must issue the application yet gets no more time to handle this work)
This is why this appeal has the great potential, if the opinion issued by the SCOTUS is clear and in the right direction, of scaling back some of the high barriers erected by the CAFC. On the other hand, if they, in essence, affirm this CAFC case law then we are stuck with the current situation in which case only Congress can change it, the possible results thereof I shudder to even contemplate.
There is a Yahoo IM client with video and voice support, gyachi. I have been using version 1.0.3 for the last few months. It is clearly a work in progress, with lots of rough edges; this version, for example, locks up if you try to talk, but will work fine as a listen only client. This works for me since I frequent a room where others play music (yean, not exactly high quality, but...whatever).
There is a version 1.0.4 that is current, but I found it had some degraded functionality so I've regressed back to 1.0.3, which is a kludged gtk/python (for the voice part) package.
Gee, I would have thought that /. would have posted a story about the fact that the PTO granted a rexam of the Amazon one click patent on Friday, but I guess I'll have to wait...
Disclaimer: IANAL (let alone an IP or Constitutional law Lawyer)
I have nothing to add to the details of this particular case, but I think it is at least interesting that this appeal, from the Court of Appeals for the Federal Circuit (CAFC) was a UNANIMOUS REVERSAL. Over the past 30 years or so, the CAFC (and predecessor Court of Customs and Patent Appeals) has pretty much been the interpreter of US Patent Law. But for a few, scattered reversals by the SCOTUS, what sayeth the CAFC, rules. And the CAFC has been, over this time period, the best friend that patent applicants and owners could ask for, oncluding, beyond this question of injuctive relief, lowering the bar on what is needed to overcome a determination of obviousness (you have to show "motivation" to combine two or more references), or expanding the scope of subject matter that might be patented (software and business methods).
This is an indication that at least some of the antics of the CAFC will not be rubber stamped by the SCOTUS. Of course this is not to say that the SCOTUS won't ratify these other CAFC expansions, but it goves some hope that this judicial loose cannon might have its muzzle plugged, at least a bit.