Actually, I found those type of articles to be the most useful for me, since they are more directed to technical and how to subjects. I've found much less use for the user comments (and the recent addition of one-level deep replies is an improvement, but still seriously lacking from the full threading here on/.)
Not strictly true. An earlier publication date less than one year prior to the effective filing date might still be good prior art under 35 USC 102(a), as long as it's date is prior to the date of "invention" by the patent applicant. The date of invention is initally presumed to be the filing date of the application. In order for an applicant to establish that the invention was invented prior to such a publication it must be established under oath or declaration ( 37 CFR 1.131), with supporting evidence.
In your hypothetical, He would have to commit perjury (or, if under declaration, violate similar provisions). Furthermore, if the applcant can be shown to have gotten the idea from the publication (That is, it was copied, not coincidentally independently made) he would not have invented the invention, a violation of 35 USC 102(f).
IANAL, but that is not exactly the case. IIRC You can only collect damages for up to six years prior to some date (The filing date of suit? The first time the infringer is put on notice?) - this part of an equitable legal doctrine known as laches. Thus, if one is going to lay low for a few years until the target finally accumulates 6 good years of infringing sales, it pays to wait, but not if the technology starts a decline.
What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.
It could also be a result of a Continuation under 35 USC 120. (A divisional is made under 35 USC 121 which incorporates the formal requirements of section 120.)
Nitpick...they are supposed to promote progress in the "useful arts"....This clause of the constitution is the basis for present day copyrights and patents so it is written with a parallel structure..."Science and useful arts"...."authors and inventors"... "writings and discoveries" "Science" here was clearly directed to cover "learned" tomes, textbooks etc. I'll leave it to others to explain how this now includes Mickey Mouse and the latest boy band noise.
Ahhh, WordPerfect for DOS; it was fast and, in its day, the market leader, as others have pointed out. But, once again, it was Microsoft's stranglehold on the PC OS that lead to its takedown from Word.
IIRC, WordPerfect for DOS was written in assembler which was part of the reason for its speed. When Microsoft and then friendly partner IBM were planning OS/2 as the successor to DOS, WordPerfect Corp. chose to start development for OS/2, and ignored the then struggling Windows somethingorother ( 3.1?) while Microsoft developed Word with Windows in mind. When Microsoft finally achieved success with Windows 3.1, and then broke with IBM after starting the NT project they were able to perfect Word for Windows since WordPerfect Corp. was caught flat-footed without a marketable Windows product. They tried to scramble to create one, but had to start from scratch, using GUI toolkits they were not familiar with in addition to lacking GUI design expertise (as pointed out in the referenced Wikipedia article). The first Windows version, 6.0, just plain sucked, and Microsoft, with its horde of DOS tax lucre, was able keep refining and flogging Word until they prevailed. To ease the transition they developed import filters to go from WP to Word, but not vice-versa. This has lead to the current situation with WP a minor player, seen only in niche and legacy markets.
What PTO people did you speak with?; What ideas were thrown around, and which, as far as you could tell, seemed to get a positive reception?
From my experience there, plus from what I have heard from former colleagues the management reaction to quality criticism has been things like enhanced "quality review" and additional policies such as "second pair of eyes" that provided little extra substantive value but end up cutting into the time available to productively work on applications.
If upper management is seriously entertaining some real reforms (including increasing the time to work on each application) then, perhaps, this will bear some fruit, but changing the management culture of production and deadlines that has thoroughly penetrated the Directors and SPEs for decades now will not be an easy task.
I'm not commenting on the merits of the prior art involved in this case since I'm not familiar with the history of CMS systems, but a check of the file wrapper history shows the following information:
Both the earlier and the current application had a restriction requirement, the current application being a five way restriction which was maintained
Both of the above applications were passed around like a hot potato; nobody wanted the case; no wonder; the current application was filed with 166 claims
Due to the length of time the current application was pending, its patent term was extended 379 days (i. e. it expires 20 years + 379 days from the filing date
The prosecution outline was utterly normal: Restriction, election by applicant, first action rejection, response with amendment, final rejection, response with amendment after final rejection, allowance. The first rejection had a "double patenting rejection", which was a technicality, since the parent application was still pending; it was allowed to abandon, mooting this ground of rejection. In addition, some, but not all, of the claims were rejected as anticipated (35 USC 102(e)) over a patent with an earlier filing date. There were no other rejections, in particular, no obviousness (35 USC 103) rejections.
A consequence of item 2 above is that the applicant is entitled to file up to four divisional applications, each one, if its claims are limited to the invention outlined in the restriction requirement, are immune to double patenting rejections based on the current application claims (they will still be rejectable, however, based on prior art).
Now, I have no idea what circumstances surrounded the handling of this application, but I can speculate that there was a fight by the examiners not to get stuck with this application ("It's a dog!") and, when the examiner of record got stuck with it he was, additionally pressured to get an action out ASAP, reflecting PTO management's long held policy of keeping production high and time to action short. This is one motivation for making the first action a restriction requirement; it gets the case off the books for a month or two, but of course when the election comes back it's back in play and has to be handled.
The difference? I can't really determine the exact reasons, not being privy to the cirumstances surrounding the prosecution of each application, but one fact is that each was examined by a different examiner. I can speculate on the disparity of treatment, however. It is another fallout from PTO management's 30+ years of emphasis on meeting production and timeliness goals over substantive quality aspects of examination, quality meaning finding and applying relevant prior art and passing judgement on issues such as operability (I don't include aspects such as including software and business methods as patentable subject matter or creating a high standard of proof to support obviousness rejections, since these have been imposed externally by the courts).
The PTO's response to issues of quality has been to establish an entire subbeaurocrocy dedicated to "Quality Review", which has all the pitfalls of centralizing such essential values outside of the main operation. The main failure is how one expects a small core of people, no matter how expert they are in the examination process, to possess the same depth of knowledge as even a mediocre examiner in a give art. PTO management then compounds this with a punitive aspect; if QR "kicks back" an application the examiner will get charged with an error, yet the QR reviewer doesn't have the same kind of production pressure as the working examiner to grind out cases; telling someone "you should have spent more time searching this case" isn't particularly helpful if it doesn't explain how one chooses the other applications from which this time should have been taken.
The negative publicity concerning examination quality has, finally, reached the attention of PTO's upper level management, but, it is an open question if they will recognize that just heaping more "review" on the process will not actually result in an improvment, but that a fundamental return to the ethic of a genuine quality examination is the way to go.
Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected. IANAL, but I believe that if I sell (or "license" as it's usually legally done) you some code that infringes some one else's software patent, then I can still get nicked under the doctrine of "contributory infringement", so it amounts to the same thing.
(Damn Slashdot for posting a patent story just as I go away from the computer for a few hours)
I can think of a few good places for where to start reforming the system.... No patents on mathematics.
Well, this is already law, at least as applies to converting BCD data to binary, Gottschalk v. Benson. In this case, the Supreme Court reversed the Decision of the Court of Customs and Patent Appeals, the predecessor of the Court referenced in the article. The CCPA decision reversed was, itself, a reversal of the Patent Office Board of Appeals decision upholding the Examiner's Final Rejection of this method as not being statutory subject matter able to be patentable, 35 USC 101.
Basically, the Supremes bitch-slapped the CCPA, which stumbled for a while (IIRC, they upheld a rejection for analyzing oil prospecting data something like in re Christiansen(sp?)), but soon decided to narrow Benson as much as possible, reversing the Patent Office Board time after time (for example, a method involving natural language processing was distinguished from Benson since it was dealing with natural language, not mathematics). Basically any non-mathematical data manipulation passes muster under 35 USC 101, according to the CCPA, and it's successor, the Court of Appeals for the Federal Circuit, which inherited the CCPA's judges and case law.
Sorry, but I have no idea on how judges are vetted and nominated for seats on this particular court. They are selected in the same way that all federal judges are: nominated by the President, confirmed by the Senate. I've never followed the inside politics of the judge selection process. This might be an interesting thing to investigate since this is a nationwide court, unlike the various sister Circuit Courts (and the District Courts), who often get involved with the senators involved in the particular state(s).
... in the Court of Appeals for the Federal Circuit (that is, if one or both of the parties doesn't go bankrupt in the meantime). If NTP gets a judgement against RIM, RIM could appeal to CAFC. On the other hand, if NTP's reexaminations result in rejection of all the significant claims, those appeals also would go the CAFC. Thus the CAFC could determine the final outcome here (of course, the loser could finally ask the Supreme Court to reverse the CAFC, but that would be highly unlikely).
Unfortunately, there is a great deal of truth in this observation. The basic fact is that examiners get an average of a little over 20 hours per application do dispose of it by abandonment, allowance, or sending off an appeal by the applicant to the Board. This includes reading the application, performing the search, writing actions, reading and responding to applicant's responses, interviews, etc. I understand that the Hot areas such as Software, Business methods, certain areas of biotech have larger hours, perhaps as high as around 40 hours.
Of course, an examiner can spend more time on an application, but will have to spend less time on other applications, so you end up getting behind, and having to spend overtime just to keep up with the production quota. And, with the current standards set by the court for making obviousness rejections it can searches can tend to infinity to find that "missing" secondary prior art reference to back up an otherwise solid rejection based ond the easy to find primary prior art references.
As production pressure kicks in, at some point in many applications you have to throw in the towel on at least some claims and just wait for some accused infringer who has the deeper pockets to afford more than 40 hours to search the prior art to find the "missing pieces"
Not just congress but also some of the courts. Of the courts there are two problems in seperate areas. The first is the courts that won't uphold ANY patent at all in serveral decades, even ones deserving of it. They have a very high percentage of their rulings overturned on appeal. The other are the ones that people go to to sue the USPTO to get them to accept a patent. The latter has undermined the obvious requirement so that the USPTO has to pretty much accept a patent no matter what. It's not just congress with the funding alone.
Actually, for a long time (IIRC 1982) there has been one court, the Court of Appeals for the Federal Circuit (CAFC) that has been real shaper of US patent law, since all patent appeals, whether from the PTO Board or the District Courts, go to the CAFC; the only autority above them is the Supreme Court, and Certorari is rarely granted, effectively making holdings from the CAFC the law. And the CAFC, as its predecessor, the Court of Customs and Patent Appeals, has long held an "anything under the sun is patentable subject matter" view (leading to Software patents and business method patents) and the "suggestion" requirement for upholding obviousness rejections, making it more difficult to make these rejections.
I don't have any insight as to why Microsoft lost this in District Court, but they have filed a request for reexamination of the patent at issue. They have cited a ton of prior art. I would guess the current patch request for customers is precautionary (or maybe there's a more borg-like reason?). I have no idea if an appeal has been filed, or, if not, still could be filed.
BTW, kudos go to blincoln's post in the previous slashdot discussion last June who finally got the correct patent number (the inventors name on the patent is listed as amada so a simple search would not bring it up). And a big boo to most of the stories online that couldn't be bothered to get essential facts in a story like this. Why not include such basic information for those who want to follow up for more details?
Re:Good move for the wrong reasons.
on
Hopes Rise for RIM
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· Score: 2, Insightful
I don't know what behid the scenes political pressure has been applied (and I doubt that anyting new in the last few weeks has had any effect), but there has been a reexamination (actually two that have been merged); anyone can see what has been going on by checking out 90/006492 in the public PAIR system.
Briefly, there have been two non-final rejections, the last one mailed on November 30, 2005, and all the claims under reexamination (I haven't checked if there are other claims not included that would remain if the rejections are sustained) have been rejected. The only reason the last action was not made final was that additional rejections were made based on prior art made of record between the two rejections.
I don't think an recent publicity about a shutdown of service after the appeal from the District Court was shot down has had any effect on the reexam procedings; I haven't followed this case, however, and don't know what outside influence was brought to bear on the PTO to order the rexams.
Was this published? If wasn't then it's not prior art.
If you invent something and keep it secret you can't use that to later invalidate someone else's patent on that invention if the other inventor independently invented it.
Huh? That's not true, at least in the US. Processes have been patentable since, well, the first patent act. In fact, the very first patent issued in the us was directed to a method of making potash in 1790; the patent was signed by George Washington and Thomas Jefferson (No, it's not patent No. 1; the current utility series dates from 1836 IIRC).
Perhaps if you meant to say "abstract processes" like mathematical algorithms, which the Supreme Court of the US has disallowed. The debate, relative to software patents, is the scope of the adjective "mathematical" (Which, from your user id, I gather you have some informed opinions).
IANAL, but I think the applicable legal doctrine is called "laches." This link gives a brief discussion of the case law and some recent cases.
Basically, it is a defense invoked by the infringer which, at most, bars liablility for infringing acts done before the patent owner's lawsuit was filed. For the defense to be successful the infringer has to show that the patent owner has waited "unreasonably" long; the unreasonableness is subject to lots of consideration.
What the doctrine does not do, however, is bar other remedies, such as damages for acts occuring after the filing of the lawsuit, and/or injunctions against making, using or selling the infringing device, method, etc.(at least for up to the remaining term of the patent).
Well, recognizing a problem is one of the long legally recognized "indicia of unobviousness", but the claimed invention is not the broad concept of solving the problem, but, rather, the actual "stuff" (parts, arrangement, method steps, etc.) that effects one or more solutions to the problem. So, lets say, abstractly, that, in some particular art, there's a device which is composed of parts A and B. The inventor finds some problem, and solves it by adding some other part C to yield ABC. The Examiner searches and finds two prior art references: one shows AB, and a second shows ADC - similar, but not quite the same. In the old days you might be able to argue (and be upheld) that it would be obvious to add C to AB, but now, unless the reference with ADC discussed C's role and said how it really could be used to add it's benefits to similar systems, you'd be out of luck making the rejection, and you'd either have to search further, looking for a better reference, or cut off and allow the claim (sorry to be so abstract, but it's too late in the evening to even make up a concrete example).
And, even if the ADC prior art did have the discussion of C, the applicant could still press the argument that it still didn't suggest Adding C to an AB type device; after all, if it was that specific then the ADC reference would actually be a disclosure of ABC, and constitute a full anticipation under 35 USC 102.
This is why the prior art has to be scrutinized so carefully, and why increasing the amount of showings of prior art (which have no thought, when they were produced, of being used as prior art in some future, unknown patent application prosecution) can very rapidly impair their use to create rejections. Remember, obviousness, in a legal sense, is controlled by legal guidlines enunciated by Courts; it's totally impractical to find persons "of ordinary skill in the art" to testify on all the issues of obviousness (one factor to consider is that, probably, most such persons either work for the inventor's company or for a competator; how do you get someone who is impartial?)
No, I'm not a patent lawyer, nor, even, any kind of lawyer. However, I was a patent examiner (but not since 1991, so I'm sufficiently decontaminated to be able to post on/.)
Slashdot Mirror
Actually, I found those type of articles to be the most useful for me, since they are more directed to technical and how to subjects. I've found much less use for the user comments (and the recent addition of one-level deep replies is an improvement, but still seriously lacking from the full threading here on /.)
Not strictly true. An earlier publication date less than one year prior to the effective filing date might still be good prior art under 35 USC 102(a), as long as it's date is prior to the date of "invention" by the patent applicant. The date of invention is initally presumed to be the filing date of the application. In order for an applicant to establish that the invention was invented prior to such a publication it must be established under oath or declaration ( 37 CFR 1.131), with supporting evidence.
In your hypothetical, He would have to commit perjury (or, if under declaration, violate similar provisions). Furthermore, if the applcant can be shown to have gotten the idea from the publication (That is, it was copied, not coincidentally independently made) he would not have invented the invention, a violation of 35 USC 102(f).
IANAL, but that is not exactly the case. IIRC You can only collect damages for up to six years prior to some date (The filing date of suit? The first time the infringer is put on notice?) - this part of an equitable legal doctrine known as laches. Thus, if one is going to lay low for a few years until the target finally accumulates 6 good years of infringing sales, it pays to wait, but not if the technology starts a decline.
Nitpick...they are supposed to promote progress in the "useful arts"....This clause of the constitution is the basis for present day copyrights and patents so it is written with a parallel structure..."Science and useful arts"...."authors and inventors"... "writings and discoveries" "Science" here was clearly directed to cover "learned" tomes, textbooks etc. I'll leave it to others to explain how this now includes Mickey Mouse and the latest boy band noise.
Ahhh, WordPerfect for DOS; it was fast and, in its day, the market leader, as others have pointed out. But, once again, it was Microsoft's stranglehold on the PC OS that lead to its takedown from Word.
IIRC, WordPerfect for DOS was written in assembler which was part of the reason for its speed. When Microsoft and then friendly partner IBM were planning OS/2 as the successor to DOS, WordPerfect Corp. chose to start development for OS/2, and ignored the then struggling Windows somethingorother ( 3.1?) while Microsoft developed Word with Windows in mind. When Microsoft finally achieved success with Windows 3.1, and then broke with IBM after starting the NT project they were able to perfect Word for Windows since WordPerfect Corp. was caught flat-footed without a marketable Windows product. They tried to scramble to create one, but had to start from scratch, using GUI toolkits they were not familiar with in addition to lacking GUI design expertise (as pointed out in the referenced Wikipedia article). The first Windows version, 6.0, just plain sucked, and Microsoft, with its horde of DOS tax lucre, was able keep refining and flogging Word until they prevailed. To ease the transition they developed import filters to go from WP to Word, but not vice-versa. This has lead to the current situation with WP a minor player, seen only in niche and legacy markets.
What PTO people did you speak with?; What ideas were thrown around, and which, as far as you could tell, seemed to get a positive reception?
From my experience there, plus from what I have heard from former colleagues the management reaction to quality criticism has been things like enhanced "quality review" and additional policies such as "second pair of eyes" that provided little extra substantive value but end up cutting into the time available to productively work on applications.
If upper management is seriously entertaining some real reforms (including increasing the time to work on each application) then, perhaps, this will bear some fruit, but changing the management culture of production and deadlines that has thoroughly penetrated the Directors and SPEs for decades now will not be an easy task.
The prosecution outline was utterly normal: Restriction, election by applicant, first action rejection, response with amendment, final rejection, response with amendment after final rejection, allowance. The first rejection had a "double patenting rejection", which was a technicality, since the parent application was still pending; it was allowed to abandon, mooting this ground of rejection. In addition, some, but not all, of the claims were rejected as anticipated (35 USC 102(e)) over a patent with an earlier filing date. There were no other rejections, in particular, no obviousness (35 USC 103) rejections.
A consequence of item 2 above is that the applicant is entitled to file up to four divisional applications, each one, if its claims are limited to the invention outlined in the restriction requirement, are immune to double patenting rejections based on the current application claims (they will still be rejectable, however, based on prior art).
Now, I have no idea what circumstances surrounded the handling of this application, but I can speculate that there was a fight by the examiners not to get stuck with this application ("It's a dog!") and, when the examiner of record got stuck with it he was, additionally pressured to get an action out ASAP, reflecting PTO management's long held policy of keeping production high and time to action short. This is one motivation for making the first action a restriction requirement; it gets the case off the books for a month or two, but of course when the election comes back it's back in play and has to be handled.
....to how this space drive patent application was treated. When this earlier patent was discussed on Slashdot I made a comment discussing how the patent just sailed through without a single question being raised about operability.
The difference? I can't really determine the exact reasons, not being privy to the cirumstances surrounding the prosecution of each application, but one fact is that each was examined by a different examiner. I can speculate on the disparity of treatment, however. It is another fallout from PTO management's 30+ years of emphasis on meeting production and timeliness goals over substantive quality aspects of examination, quality meaning finding and applying relevant prior art and passing judgement on issues such as operability (I don't include aspects such as including software and business methods as patentable subject matter or creating a high standard of proof to support obviousness rejections, since these have been imposed externally by the courts).
The PTO's response to issues of quality has been to establish an entire subbeaurocrocy dedicated to "Quality Review", which has all the pitfalls of centralizing such essential values outside of the main operation. The main failure is how one expects a small core of people, no matter how expert they are in the examination process, to possess the same depth of knowledge as even a mediocre examiner in a give art. PTO management then compounds this with a punitive aspect; if QR "kicks back" an application the examiner will get charged with an error, yet the QR reviewer doesn't have the same kind of production pressure as the working examiner to grind out cases; telling someone "you should have spent more time searching this case" isn't particularly helpful if it doesn't explain how one chooses the other applications from which this time should have been taken.
The negative publicity concerning examination quality has, finally, reached the attention of PTO's upper level management, but, it is an open question if they will recognize that just heaping more "review" on the process will not actually result in an improvment, but that a fundamental return to the ethic of a genuine quality examination is the way to go.
Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected. IANAL, but I believe that if I sell (or "license" as it's usually legally done) you some code that infringes some one else's software patent, then I can still get nicked under the doctrine of "contributory infringement", so it amounts to the same thing.
... on a technology news site.
Well, this is already law, at least as applies to converting BCD data to binary, Gottschalk v. Benson. In this case, the Supreme Court reversed the Decision of the Court of Customs and Patent Appeals, the predecessor of the Court referenced in the article. The CCPA decision reversed was, itself, a reversal of the Patent Office Board of Appeals decision upholding the Examiner's Final Rejection of this method as not being statutory subject matter able to be patentable, 35 USC 101.
Basically, the Supremes bitch-slapped the CCPA, which stumbled for a while (IIRC, they upheld a rejection for analyzing oil prospecting data something like in re Christiansen(sp?)), but soon decided to narrow Benson as much as possible, reversing the Patent Office Board time after time (for example, a method involving natural language processing was distinguished from Benson since it was dealing with natural language, not mathematics). Basically any non-mathematical data manipulation passes muster under 35 USC 101, according to the CCPA, and it's successor, the Court of Appeals for the Federal Circuit, which inherited the CCPA's judges and case law.
Sorry, but I have no idea on how judges are vetted and nominated for seats on this particular court. They are selected in the same way that all federal judges are: nominated by the President, confirmed by the Senate. I've never followed the inside politics of the judge selection process. This might be an interesting thing to investigate since this is a nationwide court, unlike the various sister Circuit Courts (and the District Courts), who often get involved with the senators involved in the particular state(s).
... in the Court of Appeals for the Federal Circuit (that is, if one or both of the parties doesn't go bankrupt in the meantime). If NTP gets a judgement against RIM, RIM could appeal to CAFC. On the other hand, if NTP's reexaminations result in rejection of all the significant claims, those appeals also would go the CAFC. Thus the CAFC could determine the final outcome here (of course, the loser could finally ask the Supreme Court to reverse the CAFC, but that would be highly unlikely).
Unfortunately, there is a great deal of truth in this observation. The basic fact is that examiners get an average of a little over 20 hours per application do dispose of it by abandonment, allowance, or sending off an appeal by the applicant to the Board. This includes reading the application, performing the search, writing actions, reading and responding to applicant's responses, interviews, etc. I understand that the Hot areas such as Software, Business methods, certain areas of biotech have larger hours, perhaps as high as around 40 hours.
Of course, an examiner can spend more time on an application, but will have to spend less time on other applications, so you end up getting behind, and having to spend overtime just to keep up with the production quota. And, with the current standards set by the court for making obviousness rejections it can searches can tend to infinity to find that "missing" secondary prior art reference to back up an otherwise solid rejection based ond the easy to find primary prior art references.
As production pressure kicks in, at some point in many applications you have to throw in the towel on at least some claims and just wait for some accused infringer who has the deeper pockets to afford more than 40 hours to search the prior art to find the "missing pieces"
I don't have any insight as to why Microsoft lost this in District Court, but they have filed a request for reexamination of the patent at issue. They have cited a ton of prior art. I would guess the current patch request for customers is precautionary (or maybe there's a more borg-like reason?). I have no idea if an appeal has been filed, or, if not, still could be filed.
BTW, kudos go to blincoln's post in the previous slashdot discussion last June who finally got the correct patent number (the inventors name on the patent is listed as amada so a simple search would not bring it up). And a big boo to most of the stories online that couldn't be bothered to get essential facts in a story like this. Why not include such basic information for those who want to follow up for more details?
I don't know what behid the scenes political pressure has been applied (and I doubt that anyting new in the last few weeks has had any effect), but there has been a reexamination (actually two that have been merged); anyone can see what has been going on by checking out 90/006492 in the public PAIR system.
Briefly, there have been two non-final rejections, the last one mailed on November 30, 2005, and all the claims under reexamination (I haven't checked if there are other claims not included that would remain if the rejections are sustained) have been rejected. The only reason the last action was not made final was that additional rejections were made based on prior art made of record between the two rejections.
I don't think an recent publicity about a shutdown of service after the appeal from the District Court was shot down has had any effect on the reexam procedings; I haven't followed this case, however, and don't know what outside influence was brought to bear on the PTO to order the rexams.
How is this incorrect?
The only non-publication prior art are:
102(a) "known or used" this has long been held to be interpreted as "public" knowledge and/or use
102(g) refers to an invention having been made, but only such that it was not "abandoned, suppressed, or concealed"
Neither case supports the keeping secret scenario as negating patentablity.
Was this published? If wasn't then it's not prior art.
If you invent something and keep it secret you can't use that to later invalidate someone else's patent on that invention if the other inventor independently invented it.
Huh? That's not true, at least in the US. Processes have been patentable since, well, the first patent act. In fact, the very first patent issued in the us was directed to a method of making potash in 1790; the patent was signed by George Washington and Thomas Jefferson (No, it's not patent No. 1; the current utility series dates from 1836 IIRC).
Perhaps if you meant to say "abstract processes" like mathematical algorithms, which the Supreme Court of the US has disallowed. The debate, relative to software patents, is the scope of the adjective "mathematical" (Which, from your user id, I gather you have some informed opinions).
Well, just to show how retarded you are, the patent you reference is a Design patent, which is not a Utility patent.
Design patents cover Ornamental designs, as opposed to the software patents under discussion, which are regular utility patents.
There are sure enough examples of crap utility patents, but using a design patent an example of a silly patent isn't one.
IANAL, but I think the applicable legal doctrine is called "laches." This link gives a brief discussion of the case law and some recent cases.
Basically, it is a defense invoked by the infringer which, at most, bars liablility for infringing acts done before the patent owner's lawsuit was filed. For the defense to be successful the infringer has to show that the patent owner has waited "unreasonably" long; the unreasonableness is subject to lots of consideration.
What the doctrine does not do, however, is bar other remedies, such as damages for acts occuring after the filing of the lawsuit, and/or injunctions against making, using or selling the infringing device, method, etc.(at least for up to the remaining term of the patent).
Well, recognizing a problem is one of the long legally recognized "indicia of unobviousness", but the claimed invention is not the broad concept of solving the problem, but, rather, the actual "stuff" (parts, arrangement, method steps, etc.) that effects one or more solutions to the problem. So, lets say, abstractly, that, in some particular art, there's a device which is composed of parts A and B. The inventor finds some problem, and solves it by adding some other part C to yield ABC. The Examiner searches and finds two prior art references: one shows AB, and a second shows ADC - similar, but not quite the same. In the old days you might be able to argue (and be upheld) that it would be obvious to add C to AB, but now, unless the reference with ADC discussed C's role and said how it really could be used to add it's benefits to similar systems, you'd be out of luck making the rejection, and you'd either have to search further, looking for a better reference, or cut off and allow the claim (sorry to be so abstract, but it's too late in the evening to even make up a concrete example).
And, even if the ADC prior art did have the discussion of C, the applicant could still press the argument that it still didn't suggest Adding C to an AB type device; after all, if it was that specific then the ADC reference would actually be a disclosure of ABC, and constitute a full anticipation under 35 USC 102.
This is why the prior art has to be scrutinized so carefully, and why increasing the amount of showings of prior art (which have no thought, when they were produced, of being used as prior art in some future, unknown patent application prosecution) can very rapidly impair their use to create rejections. Remember, obviousness, in a legal sense, is controlled by legal guidlines enunciated by Courts; it's totally impractical to find persons "of ordinary skill in the art" to testify on all the issues of obviousness (one factor to consider is that, probably, most such persons either work for the inventor's company or for a competator; how do you get someone who is impartial?)
No, I'm not a patent lawyer, nor, even, any kind of lawyer. However, I was a patent examiner (but not since 1991, so I'm sufficiently decontaminated to be able to post on /.)