Production (quota) is measured in units of "Hours per balanced disposal" Hours are "Examining" hours, the amount of time the examiner works, minus certain "non-examining time". Over the years management has been reducing the amount of non-examining time available to examiners to force up production.
"Balanced disposals" is a figure derived by counting, during any given time period,
1) the number of first actions on the merits (like rejections, allowances, but not including things like restrictions or minor, technical things), and
2) the number of disposals, meaning allowances, abandonments, and the first Examiner's Answer on Appeal in a case, then
3) dividing the sum of 1) and 2) by 2, in other words, an average of the first actions and disposals. Using this average to divide into the number of hours in the time period gives the production for that time period. Typical time periods are a biweek, a quarter, or a fiscal year, although some other time periods may be selected for special purposes.
Production goal achievement for a time period is expressed as the goal/actual x 100 (a percentage). The goal is assigned based on the specific art(s) assigned to the examiner and the examiner's grade and authority grant (Partial or Full Signatory, Senior or Expert designation). Under the the current Performance Appraisal Plan, anything below 95% is considered either "Marginal" or (less than 90%) Unsatisfactory. Examiners who don't get their production up are fired.
One thing to note in this scheme: The incentive is to issue an application on the first action; two "counts" and no additional time to inflate the Hours/balanced disposal. On the other hand sening out rejection after rejection just keeps consuming time, for which the examiner only gets the first action count"; to get the disposal count, the application must either be issued, the applicant gives up, or files a continuing case to keep going (the original application goes abandoned to generate the disposal count), or the applicant appeals, the examiner getting the disposal when the Answer is filed, but before the case is decided by the Board. And, if the the Board decision is a reversal, the examiner has to prepare it for issue, but doesn't get a disposal, since that was given when the Answer was filed.
The system was designed back in the 1960's to cut down on pendency and discourage examiners to keep making rejection after rejection (after 2 rejections the applicant always has the right to appeal)
These are entry level slots; the GS-1225 series (Utility Patent Examiner) defines the following GS Grade levels, all non-supervisory: 5, 7, 9, 11, 12, 13, 14, 15. The levels above 9 are filled via promotion.
After 6 months at the GS-13 level, an examiner can go on a special trial "Partial Signatory Authority" (PSA) program for 6 months during which they can sign some preliminary actions, but not final actions or allowances. The work is evaluated by several supervisors, and if passed, they get the PSA permanently.
After 6 months as a permanent PSA the examiner can go on to a trial Full Signatory Authority (FSA) program similar to the PSA trial, but now with the authority to sign most actions in a case, including final rejections, Examiner's Answers on Appeal, and Allowances. After 6 months the work is again evaluated similarly to the PSA evaluation (but with emphasis on the dtuff only FSAs can sign) and, if passed, FSA is permanently granted. Along with this, the examiner also qualifies for promotion to the GS-14 level. This is considered the "journeyman" level for an examiner.
The GS-15 level can be attained (or at least it used to be attained) by qualifying as a "Senior" or "Expert" examiner. There are (or at least were) relatively few of these since management keeps the totals down and because production requirements increase with these designations.
Not mentioned in the offical position descriptions, but part of the Performance Appraisal Plan (PAP) are the production quotas. These are assigned to each art area and are normalized for an examiner at a GS-12. The production "goal" (95% is the minimum for a "fully successful" rating) is normalized for each grade level and authority: GS-5 - 0.6, GS-7 - 0.7, GS-9 - 0.8, GS-11 - 0.9, GS-12 - 1.0, GS-13 - 1.1, GS - 13(PSA) - 1.25, GS-14 - 1.35, GS-15 - 1.45. These are all from memory, might not be exact, but it should give you an idea of how it works.
(sigh) It almost pains me to see how you had to waste so much time arguing with somone who is either a troll or so ignorant about how basic legal concepts work that he can't get the concept that the same legal requirement applies to patentablility under 35 USC 103 regardless whether it is an application claim being examined or a patent claim before a judge (or, possibly, shudder, a judge and jury).
In any event, this argument is clearly misplaced, since the real problem is getting the best evidence in the case which mostly boils down to prior art. I think but can't support the notion that most claims are invalidated in court on the basis of "printed publications", not knowledge or public use. Thus, the PTO lacking an effective way to get this kind of evidence (can't contact an expert; you have to rely on any public "droppings" he's left in the form of a publication).
Still, too much prior art is being missed and the blame for this is 90% on the PTO management culture, developed over the last 30+ years, that put production and meating date goals throughout the prosecution, and that just winked at "quality"; this attitude was summed up in the expression "We want Chevys, not Cadillacs" by one SPE I heard, quite a change from the old heads who ruled the roost back in the pre-Compact Prosecution days, where NOTHING was ever allowable on the first action.
Except that this is not exactly what the allowed claims state. The claims were rejected for obviousness on various grounds; there were 3 non-final rejections, then the applicant filed an appeal. Apparently there was then some negotiation with the applicant, and then the claims were allowed after all were amended to include the limitation that the orderer and the recipient are different (well, it's a gift, after all, and not a "self-gift").
It's still not rocket science, but it's not quite as broad as just broadly asking for shipping information; the prior art has to show A supplies B's email address to C followed by C sending an email to B asking for the shipping address, followed by B replying with the shipping address, followed by C shipping the order to B.
To defeat this you either have to show this (with the appropriately early enough date) in one reference (anticipation) or a plurality of references that disclose enough to explicitly, positively "suggest" this (obviousness). Hand waving and contempt won't cut the mustard, you have to show the prior art.
I don't want to defend stuff like this; Like the definition of obscenity "You know it when you see it" but, in patent law, you have to present evidence to fully back up your assessment.
"Bulk mail" is advertizing for which Yahoo doesn't get a cut; a banner ad, does. Just keep the stuff to the "moderately" shady/racket side and they can claim "ethics" for dealing with "legitimate" advertizers.
I was in the middle of composing a detailed analysis of the prosecution of the application on which the patent issued, plus analyze that fact that two Continuation in part (CIP) applications have been filed and are pending, but, as now happens all to often, %$#^%$%#$%@ Firefox 1.0.4 crashed on me and I lost everything.
Executive summary:
1) The original application (the "grandparent") was allowed on first action, that is, exactly as the applicant filed; there was no rejection of any claims.
2) The first CIP (10/615,108) is all the claims of the patent with a limitation of a retention element to hold the MP3 player. This is currently under rejection on the basis of obviousness double patenting (which is NOT the usual obviousness under 35 USC 103 ) which, if not argued sucessfully by applicant, can be overcome by filing a terminal disclaimer; the resulting patent will die if and when the parent patent does.
3) The second CIP (10/780,329) has not yet been acted on. It is, as I paraphrase claim 1, a combination of a) and MP3 player and b) an audio player unit containing a speaker, and, optionally, FM receiver, both operatively adapted to the MP3 player.
Information of all the applications (the two CIPs have image file wrapper information) are publically available on the PTO's PAIR portal
I think there is an additional consideration which needs to be considered here. It is not uncommon for one inventor, say, A, to create and get the a broad, pioneer patent in some field. They subsequently produce one or more products, which, du to being an early implementation, works, but doesn't work well enough to be commercially viable.
Meanwhile, competitor B comes up with another product which is clearly superior to A's product, but is covered by A's patent, so they can't make or sell it without A's permission. If the differences that make B's product are unobvious over A's invention (and B hasn't delayed to where a stautory bar would apply to B) B can file and obtain a B on the "improved" product. Now, if A wants to sell a better version of his product he either has to come up with improvements that don't infringe on B's patent, or A has to make a deal with B, which often will involve cross licensing the two patents or one selling out to the other.
If A follows the former course of action, and then patents that, this is called "patenting around" (which B could also do by comming up with and patenting something that totally avoids A's original patent). This is often touted by pro- patent people as encouraging additional innovation. Of course it doesn't guarantee such an outcome, since it assumes good, rational "business sense", which in not so few cases, is lacking.
You are, generally, correct with this; broadly, claims that are totally specified "functionally" are not permitted; however, elements of a combination claim are permitted under 35 USC 112:
...
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof
A functional expression would typically be expressed as means for producing an audio output signal from a digital mp3 file. Traditionally when being prosecuted as an application the examiner could use a reference shpowing the functionality against this ( a broad reading of the "equivalents" in the statute) but, in court, a patent claim would be more narrowly construed ("Doctrine of Equivalents") (not sure if this has been modified vis a vis PTO prosecution, though).
Your example, however, is not what is meant by "functional" as used in patent law; "an arm-based digital media player mount with FM radio" is perfectly fine, functionality-wise, under 35 USC 112 (although I might quibble with the use of "with" as being indefinite and unclear).
Of course, this just defines the claimed scope of the invention; the broader the scope of coverage, the more prior art to which it would be vulnerable , but I don't want to get into the whole 102/103 and missed prior art issues here; plenty of fuel for that fire.
It's true that lots can happen from this point on....the owner can file a response after final rejection (it just can't be entered/considered as a matter of right as a response to a non-final rejection can), or the owner can appeal to the Board or can file a continuation (now that I think of it these might not be possible for a reexam, but I'm too lazy to research this).
More particularly the claims were rejected under 35 USC 102(e) over another patent, 5,877,765, which someone else in this discussion has pointed out is assigned to Microsoft. As far the arguments made by the owner in this case, they tried to "swear behind" ("Rule 131" affidavit) the filing date of the Microsoft patent (establish conception with diligence up to the filing date of SBC's application) but the examiner rejected the affidavit as lacking sufficient proof of conception. It's possible that the owner could get better evidence and overcome this rejection or get the Board (on appeal) to reverse, since there is(are) no back up rejection(s) here.
In any event it would be interesting to look into what the Microsoft patent was claiming; if they claim the same invention, then the 131 affidavit would not come into play, but an interference would be declared, and a battle between SBC and Microsoft would begin, dragging the whole mess out a few more years.
Actually, one time I went a bunch of these shady xxx sites and signed up (not the pay parts) with a special yahoo "pr0n" account I set up. Every once in a while I visit it; most of the email is filtered into yahoo's "Bulk" (spam) folder. Interestingly over 50% of these emails are not sex-related; typically they are drab offers for things like printer ink and "Christian debt restructuring".
Of course, I've never followed any of the links, so I have no idea how many of them are actually malware injection schemes as opposed to simple fraud or dubious offers.
Actually, I'd characterize this more as ignorance coupled with malice. They are ignorant in not recognizing the true risk to their computer as well as to the entire network (not to mention the internet as a whole) and it's malice since they do know it's detrimental.
The approach to this, on first incident, should be a warning not to do this again; on second incident they get fired. This is draconian, but the point here is that (under this fact situation) they deliberately damaged the company.
Actually, this application is continuation (i. e. based strictly on the disclosure) of a previous application which issued as Patent No. 6,615,226 which was filed on 9/12/1997, wich in turn was filed as a Continuation in part of a third application which matured as Patent No. 5,715,399, filed 5/30/1995, which, yet in turn, was based on a fourth application, issued as 5,727,163, filed on 3/30/1995. A "continuation in part" is an application which adds additional disclosure to a previous application; any claim which relies on the newly added material will only get the benefit of the actual filing date of the CIP, but claims supported by the "parent" application get the benefit of the parent application's filing date.
Those wishing to look into the prosecution history for issued patents can get online information via the PAIR portal. The information includes a "Transaction History" from which one may surmise an outline of what happened (rejections, responses, interviews, etc.) More recent applications also provide images of the application contents, so you can actually read the examiner's action and the applicant's responses, including arguments and how the claims were amended.
This application had one rejection, an amendment, and then was allowed. I tried to view the rejection (via the "Image File Wrapper" tab) but got very sporadic results for the built in pdf viewer; maybe it would work better for someone else.
The parent application seems to deal with a totally different invention involving the display of a form document in sections, each section showing some description with a clickable element to then expand to input data fields, which, can, in turn, be collapsed back to the description (seems like the current patent should have been a division rather than a continuation, but what do I know; wouldn't make a difference in the analysis). This parent application was finally rejected to which Amazon appealed to the Board of Appeals (part of the PTO) which reversed the examiner. It doesn't seem to me to be relevant to this patent since the claims are directed to such disparate subject matter. Unfortunately, the parent patent file date is not available online, so one would have to order a copy of the application ($$$ + time) or go to the PTO (or whereever the case is stored these days) to look at it.
The CIP applications seem to deal with using truncated credit card numbers as a security measure, and probably don't have supporting disclosure for this patent, but I didn't check this, so, maybe they do.
As to the merits of this patent, seems like a bunch of crap to me. I'd be curious to see the full rejection by the examiner and applicant's amendment to the claims and arguments to pursuade the examiner to allow the application.
How about the argument that patents on algorithms will turn software development into a trip through a minefield? Well, say you're developing that new braking system. Who's to say that you won't stumble across a number of patents in the design of the mechanical aspects? So why should the software aspect be treated differently?
...
In principle you are correct in addressing this issue, and, in the US, at least, it has been the attitude of the US Court of Appeals for the Federal Circuit and its predecessor, the Court of Customs and Patent Appeals, that "Anything under the sun is potential patentable subject matter" that has brought computer software (as well as business methods) into the fold of patentable subject matter (35 USC 101).
I think the counter argument to this is that, in a practical sense, software is so flexible and has such a huge range of scope, from tiny, basic steps to an entire module or suite constituting 10s and 100s of thousands of steps, with applicability ran ging from almost the totally abstract, mathematical up to only meaningful when applied to a specific mechanical apparatus or process and every level in between. In the "mechanical world" it typically takes a relatively huge investment in manufacturing any part, from a simple tiny piece to a complex machine made of thousands of subassemblies and parts, many of which will tend to be very specific to a limited range of use.
In contrast, while a high level of software may have such a limited use the lower levels of software organization tend to get more abstract and more generally usable in unrelated applications. The metaphor of a minefield is like contrasting the minefield placed at a well defined border between two hostile areas vs being able to suddenly have mines placed almost randomly through a region so an "enemy" never knows when he might step on one even far from the border, thus lowering his feeling of relative security even far from the border.
A secondary effect of this is that it becomes harder to search for prior art since the great flexibility, as well of the generally increased "abstractness" of software, make it difficult to classify related algorithms, an essential part of searching for prior art to keep the result set of reasonable size so each piece of prior art can be compared to the claimed algorithm to assess novelty (35 USC 102) and Nonbviousness (35 USC 103)
This sounds like an interpretation that, on its surface, would limit the threat of, using your example, someone being accused of, say, adapting the software used in the braking system to perform some damping feature of an audio signal processing system.
One must keep in mind, however, that, in the US, at least, there is the notion of "Contributory Infringement." One particular section of US Patent Law provides:
Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
So, someone proposing to sell a braking software "mod" for, say, a Toyota which falls under the claimed braking system of Saab (even though the implementation of computerized braking system hardware is different, e. g. different embedded processor architecture) very well might be liable as a contributory infringer, unless he could somehow convince the Judge/Jury that the program "is a staple of commerce".
Then again, what if the person isn't selling the software, but, as a free software developer, just offers it for free to gearheads to mod their own Saabs, Volvos, Buicks, etc? Even if he's not liable as a contributory infringer might the owners of the cars be liable for direct infringement once they do the mod?
You know the patent is complete bullshit when they start adding in things like:
various modifications may be made without deviating from the spirit and scope of the invention
This is nothing more that standard, age old boilerplate used in patent specifications that has no added meaning. Its presence or absence will make actually no difference in any court case.
But when the PTO could enforce trademark IP to protect the consumer
The PTO's mission has never included the enforcement of trademark registrations, the same as with patent grants; it just creates them for others who bear the burden of enforcing them (any federal criminal provisions are prosecuted by the US Dept. of Justice).
While your idea, in principle, has merit, I don't think it would be practical to implement.
What happens when an "innovation" is nothing more than a concept, something that could have been created in a few minutes, with no development costs?
But how will this be established, and how much additional time will be devoted to this determination? The current examination process already is burdened enough with prior art searching and application to have this thrown in the mix. In fact the following provision was added to the newly created section 103 of major revision of patent law (title 35) made in 1952: Patentability shall not be negatived by the manner in which the invention was made. This was added to the 1952 codification to nullify a Supreme Court ruling where Justice Douglas created a "creative flash of genius" to overcome a "lack of invention" accusation (which the 1952 Act would call "lack of unobviousness"). In order to make an examination system practical, some principles had to be discarded; the guiding principle is that the result should be measured in relation to "those of ordinary skill in the art", and not to how much any particular inventor had to go through to come up with the invention, in other words, in reference to one's peers as evidenced what is "publically known"
Patent holders should be forced to show some claim of development costs that would be protected by the patent, as well as a reasonable expectation that the patent holder will find some way to market the concept. Innovators who can't figure out how to market their concept can be protected if they can show that the concept represents a significant contribution to society, such as a scientific advancement.
Two comments: firstly this, again, would open just a new can of worms for each application. Secondly it, IMHO, would unfairly disadvantage the "little guy" by holding him to a higher standard of patenatability than, say, an employee of a huge corporation whose employer could relatively easily show how they would "work" the invention.
One thing you have pointed out to those who are flaming the PTO for granting software patents at all is that the PTO pretty much has no choice but to examine such applications for novelty and unobviousness; they can not just make policy to not grant "Software Patents" as failing to meet 35 USC 101 (The issue of "silly", "stupid" or obvious patents is a whole other, separate issue, distinct from this utility issue and which merits a whole other discussion).
The Office has traditionally been opposed to software patents (along with business methods; take a look at this site for one discussion of this) and so rejected it, but the US Court of Appeals for the Federal Circuit (CAFC) and it's predecessor, the Court of Customs and Patent Appeals (CCPA), have been hot to trot to permit software patents. This position ended up in the Supreme Court with the Benson case back in the 1960s; the CCPA had reversed the PTO, who o appealed to the Supreme Court, who finally ruled in favor of the PTO (i. e., reversing the reversal of the CCPA).
Scrambling to recover from this smack down, the CCPA and successor CAFC have strained to interpret Benson and other cases as narrowly as possible; as I recall they reversed a PTO rejection of a natural language algorithm, stating Benson only applied to "mathematical" algorithms.
As you have said, the CAFC continues to follow its "Anything under the sun is potentially patentable subject matter" concept as far as it thinks it can stretch beyond the wording of the Benson and Diehr cases; it will take a flat reversal by the Supreme Court or an act of Congress to change this, neither of which looks likely any time soon.
It seems Yahoo serves their own graphics from the same server as their ads. Silly rabbit.
No, rather, wicked rabbit. Think of the Yahoo ad salesman's pitch: "Your ad can't be easily blocked, since it's served from the same server! They either have to see your ad, or the page won't render properly!!!"
Slashdot Mirror
Production (quota) is measured in units of "Hours per balanced disposal" Hours are "Examining" hours, the amount of time the examiner works, minus certain "non-examining time". Over the years management has been reducing the amount of non-examining time available to examiners to force up production.
"Balanced disposals" is a figure derived by counting, during any given time period,
1) the number of first actions on the merits (like rejections, allowances, but not including things like restrictions or minor, technical things), and
2) the number of disposals, meaning allowances, abandonments, and the first Examiner's Answer on Appeal in a case, then
3) dividing the sum of 1) and 2) by 2, in other words, an average of the first actions and disposals. Using this average to divide into the number of hours in the time period gives the production for that time period. Typical time periods are a biweek, a quarter, or a fiscal year, although some other time periods may be selected for special purposes.
Production goal achievement for a time period is expressed as the goal/actual x 100 (a percentage). The goal is assigned based on the specific art(s) assigned to the examiner and the examiner's grade and authority grant (Partial or Full Signatory, Senior or Expert designation). Under the the current Performance Appraisal Plan, anything below 95% is considered either "Marginal" or (less than 90%) Unsatisfactory. Examiners who don't get their production up are fired.
One thing to note in this scheme: The incentive is to issue an application on the first action; two "counts" and no additional time to inflate the Hours/balanced disposal. On the other hand sening out rejection after rejection just keeps consuming time, for which the examiner only gets the first action count"; to get the disposal count, the application must either be issued, the applicant gives up, or files a continuing case to keep going (the original application goes abandoned to generate the disposal count), or the applicant appeals, the examiner getting the disposal when the Answer is filed, but before the case is decided by the Board. And, if the the Board decision is a reversal, the examiner has to prepare it for issue, but doesn't get a disposal, since that was given when the Answer was filed.
The system was designed back in the 1960's to cut down on pendency and discourage examiners to keep making rejection after rejection (after 2 rejections the applicant always has the right to appeal)
These are entry level slots; the GS-1225 series (Utility Patent Examiner) defines the following GS Grade levels, all non-supervisory: 5, 7, 9, 11, 12, 13, 14, 15. The levels above 9 are filled via promotion.
After 6 months at the GS-13 level, an examiner can go on a special trial "Partial Signatory Authority" (PSA) program for 6 months during which they can sign some preliminary actions, but not final actions or allowances. The work is evaluated by several supervisors, and if passed, they get the PSA permanently.
After 6 months as a permanent PSA the examiner can go on to a trial Full Signatory Authority (FSA) program similar to the PSA trial, but now with the authority to sign most actions in a case, including final rejections, Examiner's Answers on Appeal, and Allowances. After 6 months the work is again evaluated similarly to the PSA evaluation (but with emphasis on the dtuff only FSAs can sign) and, if passed, FSA is permanently granted. Along with this, the examiner also qualifies for promotion to the GS-14 level. This is considered the "journeyman" level for an examiner.
The GS-15 level can be attained (or at least it used to be attained) by qualifying as a "Senior" or "Expert" examiner. There are (or at least were) relatively few of these since management keeps the totals down and because production requirements increase with these designations.
Not mentioned in the offical position descriptions, but part of the Performance Appraisal Plan (PAP) are the production quotas. These are assigned to each art area and are normalized for an examiner at a GS-12. The production "goal" (95% is the minimum for a "fully successful" rating) is normalized for each grade level and authority: GS-5 - 0.6, GS-7 - 0.7, GS-9 - 0.8, GS-11 - 0.9, GS-12 - 1.0, GS-13 - 1.1, GS - 13(PSA) - 1.25, GS-14 - 1.35, GS-15 - 1.45. These are all from memory, might not be exact, but it should give you an idea of how it works.
Dude, I think the timecube guy wants to talk to you...
(sigh) It almost pains me to see how you had to waste so much time arguing with somone who is either a troll or so ignorant about how basic legal concepts work that he can't get the concept that the same legal requirement applies to patentablility under 35 USC 103 regardless whether it is an application claim being examined or a patent claim before a judge (or, possibly, shudder, a judge and jury).
In any event, this argument is clearly misplaced, since the real problem is getting the best evidence in the case which mostly boils down to prior art. I think but can't support the notion that most claims are invalidated in court on the basis of "printed publications", not knowledge or public use. Thus, the PTO lacking an effective way to get this kind of evidence (can't contact an expert; you have to rely on any public "droppings" he's left in the form of a publication).
Still, too much prior art is being missed and the blame for this is 90% on the PTO management culture, developed over the last 30+ years, that put production and meating date goals throughout the prosecution, and that just winked at "quality"; this attitude was summed up in the expression "We want Chevys, not Cadillacs" by one SPE I heard, quite a change from the old heads who ruled the roost back in the pre-Compact Prosecution days, where NOTHING was ever allowable on the first action.
Except that this is not exactly what the allowed claims state. The claims were rejected for obviousness on various grounds; there were 3 non-final rejections, then the applicant filed an appeal. Apparently there was then some negotiation with the applicant, and then the claims were allowed after all were amended to include the limitation that the orderer and the recipient are different (well, it's a gift, after all, and not a "self-gift").
It's still not rocket science, but it's not quite as broad as just broadly asking for shipping information; the prior art has to show A supplies B's email address to C followed by C sending an email to B asking for the shipping address, followed by B replying with the shipping address, followed by C shipping the order to B.
To defeat this you either have to show this (with the appropriately early enough date) in one reference (anticipation) or a plurality of references that disclose enough to explicitly, positively "suggest" this (obviousness). Hand waving and contempt won't cut the mustard, you have to show the prior art.
I don't want to defend stuff like this; Like the definition of obscenity "You know it when you see it" but, in patent law, you have to present evidence to fully back up your assessment.
Ethics? What's that? What counts is revenue.
"Bulk mail" is advertizing for which Yahoo doesn't get a cut; a banner ad, does. Just keep the stuff to the "moderately" shady/racket side and they can claim "ethics" for dealing with "legitimate" advertizers.
I was in the middle of composing a detailed analysis of the prosecution of the application on which the patent issued, plus analyze that fact that two Continuation in part (CIP) applications have been filed and are pending, but, as now happens all to often, %$#^%$%#$%@ Firefox 1.0.4 crashed on me and I lost everything.
Executive summary:
1) The original application (the "grandparent") was allowed on first action, that is, exactly as the applicant filed; there was no rejection of any claims.
2) The first CIP (10/615,108) is all the claims of the patent with a limitation of a retention element to hold the MP3 player. This is currently under rejection on the basis of obviousness double patenting (which is NOT the usual obviousness under 35 USC 103 ) which, if not argued sucessfully by applicant, can be overcome by filing a terminal disclaimer; the resulting patent will die if and when the parent patent does.
3) The second CIP (10/780,329) has not yet been acted on. It is, as I paraphrase claim 1, a combination of a) and MP3 player and b) an audio player unit containing a speaker, and, optionally, FM receiver, both operatively adapted to the MP3 player.
Information of all the applications (the two CIPs have image file wrapper information) are publically available on the PTO's PAIR portal
[aol metoo]
I agree
[/aol metoo]
I think there is an additional consideration which needs to be considered here. It is not uncommon for one inventor, say, A, to create and get the a broad, pioneer patent in some field. They subsequently produce one or more products, which, du to being an early implementation, works, but doesn't work well enough to be commercially viable.
Meanwhile, competitor B comes up with another product which is clearly superior to A's product, but is covered by A's patent, so they can't make or sell it without A's permission. If the differences that make B's product are unobvious over A's invention (and B hasn't delayed to where a stautory bar would apply to B) B can file and obtain a B on the "improved" product. Now, if A wants to sell a better version of his product he either has to come up with improvements that don't infringe on B's patent, or A has to make a deal with B, which often will involve cross licensing the two patents or one selling out to the other.
If A follows the former course of action, and then patents that, this is called "patenting around" (which B could also do by comming up with and patenting something that totally avoids A's original patent). This is often touted by pro- patent people as encouraging additional innovation. Of course it doesn't guarantee such an outcome, since it assumes good, rational "business sense", which in not so few cases, is lacking.
A functional expression would typically be expressed as means for producing an audio output signal from a digital mp3 file. Traditionally when being prosecuted as an application the examiner could use a reference shpowing the functionality against this ( a broad reading of the "equivalents" in the statute) but, in court, a patent claim would be more narrowly construed ("Doctrine of Equivalents") (not sure if this has been modified vis a vis PTO prosecution, though).
Your example, however, is not what is meant by "functional" as used in patent law; "an arm-based digital media player mount with FM radio" is perfectly fine, functionality-wise, under 35 USC 112 (although I might quibble with the use of "with" as being indefinite and unclear).
Of course, this just defines the claimed scope of the invention; the broader the scope of coverage, the more prior art to which it would be vulnerable , but I don't want to get into the whole 102/103 and missed prior art issues here; plenty of fuel for that fire.
It's true that lots can happen from this point on....the owner can file a response after final rejection (it just can't be entered/considered as a matter of right as a response to a non-final rejection can), or the owner can appeal to the Board or can file a continuation (now that I think of it these might not be possible for a reexam, but I'm too lazy to research this).
More particularly the claims were rejected under 35 USC 102(e) over another patent, 5,877,765, which someone else in this discussion has pointed out is assigned to Microsoft. As far the arguments made by the owner in this case, they tried to "swear behind" ("Rule 131" affidavit) the filing date of the Microsoft patent (establish conception with diligence up to the filing date of SBC's application) but the examiner rejected the affidavit as lacking sufficient proof of conception. It's possible that the owner could get better evidence and overcome this rejection or get the Board (on appeal) to reverse, since there is(are) no back up rejection(s) here.
In any event it would be interesting to look into what the Microsoft patent was claiming; if they claim the same invention, then the 131 affidavit would not come into play, but an interference would be declared, and a battle between SBC and Microsoft would begin, dragging the whole mess out a few more years.
Actually, one time I went a bunch of these shady xxx sites and signed up (not the pay parts) with a special yahoo "pr0n" account I set up. Every once in a while I visit it; most of the email is filtered into yahoo's "Bulk" (spam) folder. Interestingly over 50% of these emails are not sex-related; typically they are drab offers for things like printer ink and "Christian debt restructuring".
Of course, I've never followed any of the links, so I have no idea how many of them are actually malware injection schemes as opposed to simple fraud or dubious offers.
No wonder all those "3nl4rg ur m3mbr" emails work.
Actually, I'd characterize this more as ignorance coupled with malice. They are ignorant in not recognizing the true risk to their computer as well as to the entire network (not to mention the internet as a whole) and it's malice since they do know it's detrimental.
The approach to this, on first incident, should be a warning not to do this again; on second incident they get fired. This is draconian, but the point here is that (under this fact situation) they deliberately damaged the company.
Actually, this application is continuation (i. e. based strictly on the disclosure) of a previous application which issued as Patent No. 6,615,226 which was filed on 9/12/1997, wich in turn was filed as a Continuation in part of a third application which matured as Patent No. 5,715,399, filed 5/30/1995, which, yet in turn, was based on a fourth application, issued as 5,727,163, filed on 3/30/1995. A "continuation in part" is an application which adds additional disclosure to a previous application; any claim which relies on the newly added material will only get the benefit of the actual filing date of the CIP, but claims supported by the "parent" application get the benefit of the parent application's filing date.
Those wishing to look into the prosecution history for issued patents can get online information via the PAIR portal. The information includes a "Transaction History" from which one may surmise an outline of what happened (rejections, responses, interviews, etc.) More recent applications also provide images of the application contents, so you can actually read the examiner's action and the applicant's responses, including arguments and how the claims were amended.
This application had one rejection, an amendment, and then was allowed. I tried to view the rejection (via the "Image File Wrapper" tab) but got very sporadic results for the built in pdf viewer; maybe it would work better for someone else.
The parent application seems to deal with a totally different invention involving the display of a form document in sections, each section showing some description with a clickable element to then expand to input data fields, which, can, in turn, be collapsed back to the description (seems like the current patent should have been a division rather than a continuation, but what do I know; wouldn't make a difference in the analysis). This parent application was finally rejected to which Amazon appealed to the Board of Appeals (part of the PTO) which reversed the examiner. It doesn't seem to me to be relevant to this patent since the claims are directed to such disparate subject matter. Unfortunately, the parent patent file date is not available online, so one would have to order a copy of the application ($$$ + time) or go to the PTO (or whereever the case is stored these days) to look at it.
The CIP applications seem to deal with using truncated credit card numbers as a security measure, and probably don't have supporting disclosure for this patent, but I didn't check this, so, maybe they do.
As to the merits of this patent, seems like a bunch of crap to me. I'd be curious to see the full rejection by the examiner and applicant's amendment to the claims and arguments to pursuade the examiner to allow the application.
How about the argument that patents on algorithms will turn software development into a trip through a minefield? Well, say you're developing that new braking system. Who's to say that you won't stumble across a number of patents in the design of the mechanical aspects? So why should the software aspect be treated differently?
In principle you are correct in addressing this issue, and, in the US, at least, it has been the attitude of the US Court of Appeals for the Federal Circuit and its predecessor, the Court of Customs and Patent Appeals, that "Anything under the sun is potential patentable subject matter" that has brought computer software (as well as business methods) into the fold of patentable subject matter (35 USC 101).
I think the counter argument to this is that, in a practical sense, software is so flexible and has such a huge range of scope, from tiny, basic steps to an entire module or suite constituting 10s and 100s of thousands of steps, with applicability ran ging from almost the totally abstract, mathematical up to only meaningful when applied to a specific mechanical apparatus or process and every level in between. In the "mechanical world" it typically takes a relatively huge investment in manufacturing any part, from a simple tiny piece to a complex machine made of thousands of subassemblies and parts, many of which will tend to be very specific to a limited range of use.
In contrast, while a high level of software may have such a limited use the lower levels of software organization tend to get more abstract and more generally usable in unrelated applications. The metaphor of a minefield is like contrasting the minefield placed at a well defined border between two hostile areas vs being able to suddenly have mines placed almost randomly through a region so an "enemy" never knows when he might step on one even far from the border, thus lowering his feeling of relative security even far from the border.
A secondary effect of this is that it becomes harder to search for prior art since the great flexibility, as well of the generally increased "abstractness" of software, make it difficult to classify related algorithms, an essential part of searching for prior art to keep the result set of reasonable size so each piece of prior art can be compared to the claimed algorithm to assess novelty (35 USC 102) and Nonbviousness (35 USC 103)
One must keep in mind, however, that, in the US, at least, there is the notion of "Contributory Infringement." One particular section of US Patent Law provides:
(35 USC 271(C))
So, someone proposing to sell a braking software "mod" for, say, a Toyota which falls under the claimed braking system of Saab (even though the implementation of computerized braking system hardware is different, e. g. different embedded processor architecture) very well might be liable as a contributory infringer, unless he could somehow convince the Judge/Jury that the program "is a staple of commerce".
Then again, what if the person isn't selling the software, but, as a free software developer, just offers it for free to gearheads to mod their own Saabs, Volvos, Buicks, etc? Even if he's not liable as a contributory infringer might the owners of the cars be liable for direct infringement once they do the mod?
This is nothing more that standard, age old boilerplate used in patent specifications that has no added meaning. Its presence or absence will make actually no difference in any court case.
The PTO's mission has never included the enforcement of trademark registrations, the same as with patent grants; it just creates them for others who bear the burden of enforcing them (any federal criminal provisions are prosecuted by the US Dept. of Justice).
But how will this be established, and how much additional time will be devoted to this determination? The current examination process already is burdened enough with prior art searching and application to have this thrown in the mix. In fact the following provision was added to the newly created section 103 of major revision of patent law (title 35) made in 1952: Patentability shall not be negatived by the manner in which the invention was made. This was added to the 1952 codification to nullify a Supreme Court ruling where Justice Douglas created a "creative flash of genius" to overcome a "lack of invention" accusation (which the 1952 Act would call "lack of unobviousness"). In order to make an examination system practical, some principles had to be discarded; the guiding principle is that the result should be measured in relation to "those of ordinary skill in the art", and not to how much any particular inventor had to go through to come up with the invention, in other words, in reference to one's peers as evidenced what is "publically known"
Two comments: firstly this, again, would open just a new can of worms for each application. Secondly it, IMHO, would unfairly disadvantage the "little guy" by holding him to a higher standard of patenatability than, say, an employee of a huge corporation whose employer could relatively easily show how they would "work" the invention.
One thing you have pointed out to those who are flaming the PTO for granting software patents at all is that the PTO pretty much has no choice but to examine such applications for novelty and unobviousness; they can not just make policy to not grant "Software Patents" as failing to meet 35 USC 101 (The issue of "silly", "stupid" or obvious patents is a whole other, separate issue, distinct from this utility issue and which merits a whole other discussion).
The Office has traditionally been opposed to software patents (along with business methods; take a look at this site for one discussion of this) and so rejected it, but the US Court of Appeals for the Federal Circuit (CAFC) and it's predecessor, the Court of Customs and Patent Appeals (CCPA), have been hot to trot to permit software patents. This position ended up in the Supreme Court with the Benson case back in the 1960s; the CCPA had reversed the PTO, who o appealed to the Supreme Court, who finally ruled in favor of the PTO (i. e., reversing the reversal of the CCPA).
Scrambling to recover from this smack down, the CCPA and successor CAFC have strained to interpret Benson and other cases as narrowly as possible; as I recall they reversed a PTO rejection of a natural language algorithm, stating Benson only applied to "mathematical" algorithms.
As you have said, the CAFC continues to follow its "Anything under the sun is potentially patentable subject matter" concept as far as it thinks it can stretch beyond the wording of the Benson and Diehr cases; it will take a flat reversal by the Supreme Court or an act of Congress to change this, neither of which looks likely any time soon.
...Truth, Linux and Windows...
Sounds like part of a question on an IQ test:
Which one of these does not belong with the other two?
Well, more like we selected from among representatives of various commercial special interests.
That being said, given I haven't turned on my old Sony TV in over four and a half years I don't think I'll notice this too much.
It seems Yahoo serves their own graphics from the same server as their ads. Silly rabbit.
No, rather, wicked rabbit. Think of the Yahoo ad salesman's pitch: "Your ad can't be easily blocked, since it's served from the same server! They either have to see your ad, or the page won't render properly!!!"
Oh, come on, give 'em a break.
/.'ers totally forgot it.
It's been almost a whole three weeks since that earth-shattering story... I'm sure most
Besides, as one TV network exec once said, defending reruns, something to the effect of "If you didn't see it first time, it's new to you!!"
Actually this sounds like the perfect way to respond to a dupe.