A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.
My point was that the article claimed that "obvious things are patented because the PTO focuses on prior art rather than obviousness." In fact, the PTO focuses a great deal on obviousness (at least one obviousness rejection is raised in a majority of applications, I believe).
Even when they deny a patent for "obviousness", all they're focused on is prior art.
How could you possibly decide whether something was obvious without using prior art? Simply asking a person of skill "in your opinion, without any other evidence, would this have been obvious?" is a subjective mess.
There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.
"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.
"End the venue shopping for lawsuits"
The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).
"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"
Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.
Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
Motorola is also involved in multiple patent lawsuits as the plaintiff, including suits against Google competitors like Apple, Microsoft, and TiVo. Unless Google promptly dismisses those suits, this purchase represents Google getting into the lawsuit filing game. So it remains to be seen how much this is about defense and how much about offense.
Fire is a natural phenomenon, which is one of the judicially-created exceptions to patentable subject matter. Genes may be natural, but gene patents do not typically claim genes as such but rather an isolated, purified form of the DNA corresponding to a gene or a test for a gene or a method of treatment that involves testing for a gene. None of those are natural.
As for "it comes from a natural source therefore it's natural": the logical conclusion of that argument is that a new antibiotic that occurs naturally in a fungus (e.g. the way penicillin was discovered) could not be patented. What is the distinction between isolated, purified penicillin and isolated, purified BRCA1 (one of the breast cancer-related genes at issue in this case) that allows the former to be patented but not the latter?
"Knew or should have known" is not the standard for willful infringement. Since In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) the test for willful infringement has been recklessness. That is, "to establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." 497 F.3d at 1371. That is a higher standard than it was pre-Seagate, when the standard was closer to what you stated.
From the Patent Act: "The term 'invention' means invention or discovery." 35 USC 100. Furthermore, "Patentability shall not be negatived by the manner in which the invention was made." 35 USC 103. So a chance discovery is just as patentable as the result of a planned experiment.
You can argue that there should be a distinction between inventions and discoveries, but the current US patent laws explicitly preclude such a distinction.
So a secret conspiracy involving fraternities and Elks lodges created the gender gap in programming?
Not a secret conspiracy, just the natural result of self-interested behavior and network effects. In a new field a slight imbalance can create a snowball effect that dominates the field.
this shift is described as taking place in the 60's, and according to the original article, there were still lots of women programming in the 80's.
No, the shift is described as starting in the 60's. The fact that 37% of undergraduate CS majors were women in 1985 does not contradict the claim that women were discriminated against beginning in the late 1960's. Cultural shifts take time. Women had to retire, change jobs, etc in order for men to dominate the field. And it took time for the trend to become obvious enough that women stopped enrolling in CS programs.
could be a good skill in programming where taking some open source code and inserting in your program can speed up development time...for sys admins, well pirating can be a useful skill I suppose.
Properly using open source code isn't cheating. Cheating would be using GPL'd code without releasing the source to the derivative work. If the company was caught it could seriously harm the company (imagine if Microsoft was found using GPL'd code inside Windows or Office). And a pirate sysadmin sounds great until the BSA extracts licenses from the company at roughly 3 times the market rate. So no, cheating is not a good skill for a programmer.
stats showing a large number of graduates and low employment in their field would be proper evidence that this discrimination is happening.
Why would women spend 4 years studying CS if they knew the employment rate was disproportionately low? The number of women studying CS has fallen to reflect diminished employment prospects.
Eager to indentify talented individuals to train as computer programmers, employers relied on aptitude tests to make hiring decisions.... [T]he tests were widely compromised and their answers were available for study through all-male networks such as college fraternities and Elks lodges.... [A] second type of test, the personality profile, was even more slanted to male applicants. Based on a series of preference questions, these tests sought to identify job applicants who were the ideal programming “type.” According to test developers, successful programmers had most of the same personality traits as other white-collar professionals. The important distinction, however, was that programmers displayed “disinterest in people” and that they disliked “activities involving close personal interaction.” It is these personality profiles, says Ensmenger, that originated our modern stereotype of the anti-social computer geek.... Although the stereotype of the anti-social programmer was created in the 1960s, it is now self-perpetuating. Employers seek to hire new recruits who fit the existing mold. Young people self-select into careers where they believe they will fit in—for example, women currently comprise 18% of computer science undergraduate majors, down from 37% in 1985.
The gender disparity in programming is not the result of slight differences between men and women or subtle unconscious biases. It is the result of overt discrimination going back decades to the origin of the profession. And it will take overt action to correct the disparity.
This is not true. From Morton Salt Co. v. GS Suppiger Co., 314 US 488, 492 (1942):
The grant to the inventor of the special privilege of a patent monopoly carries out a public policy adopted by the Constitution and laws of the United States, "to promote the Progress of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right . .." to their "new and useful" inventions. United States Constitution, Art. I, 8, cl. 8; 35 U.S.C. 31. But the public policy which includes inventions within the granted monopoly excludes from it all that is not embraced in the invention. It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant.
The Court identified promoting the progress of science and useful arts as a public policy that limits patent rights. Admittedly, this is a high bar, and patent misuse (the issue in the Morton Salt case) is rarely a successful defense to infringement, but the principle is there.
Industrial espionage is a criminal offense in the US as well, although I am not sure what the punishment terms are.
Fines or up to 10 years in prison or both, if the stolen trade secrets stay in the US. 18 USC 1832. If it benefits a foreign entity then it's up to a $500,000 fine or up to 15 years in prison or both. 18 USC 1831.
What do you mean collapsed? I think 99% of Americans would support this. Oh, you mean support by the few people that make decisions and can easily be bought.
The proposed law was blatantly unconstitutional under the Supremacy Clause. Support collapsed because the legislators realized that it was stupid even as a protest. It had nothing to do with being bought.
But that's just it - there are exceptions to warrantless searches on grounds such as public safety and worker safety... e.g., health inspections, nursing home inspections, OSHA compliance, etc.
Actually, no, the Supreme Court has held that a warrant is required for an OSHA inspection. Marshall v. Barlow's, Inc., 436 US 307 (1978). Warrantless inspections require special circumstances, and the Occupational Safety and Health Act's jurisdiction was simply too broad.
Businesses are not people, they don't have any rights against warrantless search.
This is completely false. "The Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." New York v. Burger, 482 US 691, 699 (1987).
My purpose was to inform people about the law as it is, not to argue what the law should be or curse the Court for making the law what it is. Polemics don't help anybody understand whether this law is likely to be upheld or not.
For decades the Supreme Court has recognized the constitutionality of warrantless administrative inspections of closely regulated businesses with a long tradition of close government supervision. "Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978). This has come to be called the Colonnade-Biswell doctrine, after the cases of Colonnade Corp. v. United States and United States v. Biswell. Industries in which warrantless searches have been approved include pawn shops that sell firearms (the Biswell case), liquor stores (the Colonnade case), quarries, and automobile junkyards.
However, even if warrantless searches of CD duplication businesses are allowable as a threshold matter, there are still three important limits on those searches. First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. Third, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See New York v. Burger, 482 US 691, 702-03 (1987).
Here, it's not clear to me that CD duplication businesses are closely regulated businesses with a tradition of close government supervision. It's possible that the copyright laws (particularly the criminal copyright laws) amount to such regulation, but in my opinion it would be a close case. In most cases there is some kind of government licensing regime, and I don't think a license is required to operate a CD duplicating business. But it's important to note the limits on those searches that would still be in place even if they are allowed.
Companies do not invent anything. Employees at companies invent things. The employees assign the patent to the companies.
I'm aware of this, but the distinction was not particularly important in this case. Furthermore, most of the world outside the US does not take that approach. In Europe, for example, the company is the applicant, not the inventing employee.
A frequent comment here on Slashdot is that patents should not be transferable or that a company should not be allowed to own a patent covering technology that it did not invent or that a company shouldn't be able to own a patent covering technology that it doesn't intend to use. Here, Google is doing all of these things, since no doubt at least some of the patents cover technologies that Google will never put into practice.
Many licensing-focused non-practicing entities got their patents from bankruptcy sales. This process encourages investment by ensuring that investors will be able to recoup some of their investment via the sale of IP assets. The NPEs then focus on extracting value from the IP assets in much the same way that a company that buys a warehouse at a bankruptcy auction might try to extract value from it by renting warehouse space to others. This is especially valuable for startups that may have significant IP assets but comparatively little in the way of tangible assets.
Here, Google will try to extract value from the IP assets in its own way. For some of the patents it means not having to take a license from whomever else might have bought them. For others it might mean adding patents to a defensive portfolio. Others might even be licensed or sold to other companies.
It's fine to argue that patents shouldn't be transferrable or that NPEs shouldn't be allowed to exist, but those policies would also prevent sales like this one and lead to less investment in companies with significant IP assets, particularly startups.
For starters there's the pseudocode implementation in the appendix and the flowcharts in the drawings. Those describe the record search means and list accessing means using a linear search through the linked list and accessing the records through pointers. The specification itself discusses the use of a search key. That's probably adequate structure to support the means-plus-function elements. But I'm not taking a position on the validity of the patent. I'm only taking issue with the claims that a) the patent was reduced to pure math (it clearly wasn't because it claims physical components) and b) software patents in general are vulnerable to this kind of attack (they generally aren't because they usually claim some kind of physical component).
Various software patents may be invalid for other reasons, but this isn't actually a novel or effective attack.
When discussing the issue of software patents, one always refers to "computer system" implementations. Since the domain has already been selected it is perfectly acceptable to claim that the basis of a software patent can be reduced to pure mathematics without refuting your argument.
I disagree. If I take the pseudocode from the patent, copy it, think about it, analyze it, or modify it, none of that will infringe the patent because the patent requires a physical computer system. I can do pure, abstract mathematics about the algorithm all day with impunity. So in what way has the patent been reduced to pure mathematics if pure mathematics cannot infringe the patent?
Parent post, in short: The "on a computer" suffix is still enough to make anything patentable.
Not at all. My point was that "on a computer" means that it isn't a patent on pure math. As I mention elsewhere in the thread, multiple cases have made it clear that slapping "on a computer" or "on the internet" on a known invention is a good way to get the patent rejected or invalidated as obvious. This patent may well be invalid for obviousness. But it was not reduced to pure math because its claims require multiple physical components.
And my claim is that if you patent for all possible useful applications, then you haven't actually patented for any of them (because you have not mentioned any).
Actually, the patent mentions specific uses (e.g. OS-level garbage collection), although the claims are indeed very broad.
So in short, if you patent algorithm for working with abstract data, you patent pure math.
In what way are a physical CPU, a physical disk storage unit, and all the other physical components of an information storage and retrieval system pure math? Pure math cannot conjure a physical computer out of the aether. These things are simply not equivalent. As such, working with the algorithm itself at the mathematical level (e.g. by thinking about it or reasoning about it in the abstract on pencil & paper) would not infringe the patent. This is not a patent on pure math.
The combination of two things, each in the prior art, can be patentable. However, the Supreme Court has it made it clear that such combinations are unlikely to be patentable where the components are fulfilling known, predictable functions and the number of possible combinations was itself known and finite. But again, this is an obviousness argument. I'm not arguing that the invention was or was not obvious. I'm only explaining that the fact that part of the invention is based on (or is equivalent to) a mathematical formula does not necessarily render the entirety of the invention unpatentable.
Are you saying that patent law requires a selling a physical machine with this on them to fall under the definition?
The Bilski case didn't precisely spell out the test(s) for patentable subject matter in this area, but the machine-or-transformation test remains one approach. So yes, that is basically one way to satisfy the patentable subject matter requirement. Note that it does not necessarily satisfy the obviousness requirement, which is a completely different issue. And in fact slapping a known algorithm on a computer is a quick way to get an obvious rejection these days.
Patentable subject matter is an early, coarse filter. Just because something can pass that filter does not mean it won't be invalidated because of anticipation, obviousness, lack of enablement, failure of the written description requirement, or any number of other things. I'm not arguing that this particular patent is or is not valid. I'm simply explaining that it was not, in fact, reduced to math, and that software patents in general are not subject to that attack. Whether that should or should not be the case is another matter, and I'm not taking a position on that here.
Slashdot Mirror
A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.
My point was that the article claimed that "obvious things are patented because the PTO focuses on prior art rather than obviousness." In fact, the PTO focuses a great deal on obviousness (at least one obviousness rejection is raised in a majority of applications, I believe).
Even when they deny a patent for "obviousness", all they're focused on is prior art.
How could you possibly decide whether something was obvious without using prior art? Simply asking a person of skill "in your opinion, without any other evidence, would this have been obvious?" is a subjective mess.
There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.
"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.
"End the venue shopping for lawsuits"
The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).
"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"
Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.
Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
Motorola is also involved in multiple patent lawsuits as the plaintiff, including suits against Google competitors like Apple, Microsoft, and TiVo. Unless Google promptly dismisses those suits, this purchase represents Google getting into the lawsuit filing game. So it remains to be seen how much this is about defense and how much about offense.
Fire is a natural phenomenon, which is one of the judicially-created exceptions to patentable subject matter. Genes may be natural, but gene patents do not typically claim genes as such but rather an isolated, purified form of the DNA corresponding to a gene or a test for a gene or a method of treatment that involves testing for a gene. None of those are natural.
As for "it comes from a natural source therefore it's natural": the logical conclusion of that argument is that a new antibiotic that occurs naturally in a fungus (e.g. the way penicillin was discovered) could not be patented. What is the distinction between isolated, purified penicillin and isolated, purified BRCA1 (one of the breast cancer-related genes at issue in this case) that allows the former to be patented but not the latter?
"Knew or should have known" is not the standard for willful infringement. Since In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) the test for willful infringement has been recklessness. That is, "to establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." 497 F.3d at 1371. That is a higher standard than it was pre-Seagate, when the standard was closer to what you stated.
From the Patent Act: "The term 'invention' means invention or discovery." 35 USC 100. Furthermore, "Patentability shall not be negatived by the manner in which the invention was made." 35 USC 103. So a chance discovery is just as patentable as the result of a planned experiment.
You can argue that there should be a distinction between inventions and discoveries, but the current US patent laws explicitly preclude such a distinction.
So a secret conspiracy involving fraternities and Elks lodges created the gender gap in programming?
Not a secret conspiracy, just the natural result of self-interested behavior and network effects. In a new field a slight imbalance can create a snowball effect that dominates the field.
this shift is described as taking place in the 60's, and according to the original article, there were still lots of women programming in the 80's.
No, the shift is described as starting in the 60's. The fact that 37% of undergraduate CS majors were women in 1985 does not contradict the claim that women were discriminated against beginning in the late 1960's. Cultural shifts take time. Women had to retire, change jobs, etc in order for men to dominate the field. And it took time for the trend to become obvious enough that women stopped enrolling in CS programs.
could be a good skill in programming where taking some open source code and inserting in your program can speed up development time...for sys admins, well pirating can be a useful skill I suppose.
Properly using open source code isn't cheating. Cheating would be using GPL'd code without releasing the source to the derivative work. If the company was caught it could seriously harm the company (imagine if Microsoft was found using GPL'd code inside Windows or Office). And a pirate sysadmin sounds great until the BSA extracts licenses from the company at roughly 3 times the market rate. So no, cheating is not a good skill for a programmer.
stats showing a large number of graduates and low employment in their field would be proper evidence that this discrimination is happening.
Why would women spend 4 years studying CS if they knew the employment rate was disproportionately low? The number of women studying CS has fallen to reflect diminished employment prospects.
Women didn't leave the field voluntarily. Once it became apparent that programming was becoming a lucrative field women were systematically driven out by a system that favored men:
The gender disparity in programming is not the result of slight differences between men and women or subtle unconscious biases. It is the result of overt discrimination going back decades to the origin of the profession. And it will take overt action to correct the disparity.
This is not true. From Morton Salt Co. v. GS Suppiger Co., 314 US 488, 492 (1942):
The Court identified promoting the progress of science and useful arts as a public policy that limits patent rights. Admittedly, this is a high bar, and patent misuse (the issue in the Morton Salt case) is rarely a successful defense to infringement, but the principle is there.
Industrial espionage is a criminal offense in the US as well, although I am not sure what the punishment terms are.
Fines or up to 10 years in prison or both, if the stolen trade secrets stay in the US. 18 USC 1832. If it benefits a foreign entity then it's up to a $500,000 fine or up to 15 years in prison or both. 18 USC 1831.
What do you mean collapsed? I think 99% of Americans would support this. Oh, you mean support by the few people that make decisions and can easily be bought.
The proposed law was blatantly unconstitutional under the Supremacy Clause. Support collapsed because the legislators realized that it was stupid even as a protest. It had nothing to do with being bought.
But that's just it - there are exceptions to warrantless searches on grounds such as public safety and worker safety... e.g., health inspections, nursing home inspections, OSHA compliance, etc.
Actually, no, the Supreme Court has held that a warrant is required for an OSHA inspection. Marshall v. Barlow's, Inc., 436 US 307 (1978). Warrantless inspections require special circumstances, and the Occupational Safety and Health Act's jurisdiction was simply too broad.
Businesses are not people, they don't have any rights against warrantless search.
This is completely false. "The Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." New York v. Burger, 482 US 691, 699 (1987).
My purpose was to inform people about the law as it is, not to argue what the law should be or curse the Court for making the law what it is. Polemics don't help anybody understand whether this law is likely to be upheld or not.
For decades the Supreme Court has recognized the constitutionality of warrantless administrative inspections of closely regulated businesses with a long tradition of close government supervision. "Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978). This has come to be called the Colonnade-Biswell doctrine, after the cases of Colonnade Corp. v. United States and United States v. Biswell. Industries in which warrantless searches have been approved include pawn shops that sell firearms (the Biswell case), liquor stores (the Colonnade case), quarries, and automobile junkyards.
However, even if warrantless searches of CD duplication businesses are allowable as a threshold matter, there are still three important limits on those searches. First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. Third, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See New York v. Burger, 482 US 691, 702-03 (1987).
Here, it's not clear to me that CD duplication businesses are closely regulated businesses with a tradition of close government supervision. It's possible that the copyright laws (particularly the criminal copyright laws) amount to such regulation, but in my opinion it would be a close case. In most cases there is some kind of government licensing regime, and I don't think a license is required to operate a CD duplicating business. But it's important to note the limits on those searches that would still be in place even if they are allowed.
Companies do not invent anything. Employees at companies invent things. The employees assign the patent to the companies.
I'm aware of this, but the distinction was not particularly important in this case. Furthermore, most of the world outside the US does not take that approach. In Europe, for example, the company is the applicant, not the inventing employee.
A frequent comment here on Slashdot is that patents should not be transferable or that a company should not be allowed to own a patent covering technology that it did not invent or that a company shouldn't be able to own a patent covering technology that it doesn't intend to use. Here, Google is doing all of these things, since no doubt at least some of the patents cover technologies that Google will never put into practice.
Many licensing-focused non-practicing entities got their patents from bankruptcy sales. This process encourages investment by ensuring that investors will be able to recoup some of their investment via the sale of IP assets. The NPEs then focus on extracting value from the IP assets in much the same way that a company that buys a warehouse at a bankruptcy auction might try to extract value from it by renting warehouse space to others. This is especially valuable for startups that may have significant IP assets but comparatively little in the way of tangible assets.
Here, Google will try to extract value from the IP assets in its own way. For some of the patents it means not having to take a license from whomever else might have bought them. For others it might mean adding patents to a defensive portfolio. Others might even be licensed or sold to other companies.
It's fine to argue that patents shouldn't be transferrable or that NPEs shouldn't be allowed to exist, but those policies would also prevent sales like this one and lead to less investment in companies with significant IP assets, particularly startups.
For starters there's the pseudocode implementation in the appendix and the flowcharts in the drawings. Those describe the record search means and list accessing means using a linear search through the linked list and accessing the records through pointers. The specification itself discusses the use of a search key. That's probably adequate structure to support the means-plus-function elements. But I'm not taking a position on the validity of the patent. I'm only taking issue with the claims that a) the patent was reduced to pure math (it clearly wasn't because it claims physical components) and b) software patents in general are vulnerable to this kind of attack (they generally aren't because they usually claim some kind of physical component).
Various software patents may be invalid for other reasons, but this isn't actually a novel or effective attack.
When discussing the issue of software patents, one always refers to "computer system" implementations. Since the domain has already been selected it is perfectly acceptable to claim that the basis of a software patent can be reduced to pure mathematics without refuting your argument.
I disagree. If I take the pseudocode from the patent, copy it, think about it, analyze it, or modify it, none of that will infringe the patent because the patent requires a physical computer system. I can do pure, abstract mathematics about the algorithm all day with impunity. So in what way has the patent been reduced to pure mathematics if pure mathematics cannot infringe the patent?
Parent post, in short: The "on a computer" suffix is still enough to make anything patentable.
Not at all. My point was that "on a computer" means that it isn't a patent on pure math. As I mention elsewhere in the thread, multiple cases have made it clear that slapping "on a computer" or "on the internet" on a known invention is a good way to get the patent rejected or invalidated as obvious. This patent may well be invalid for obviousness. But it was not reduced to pure math because its claims require multiple physical components.
And my claim is that if you patent for all possible useful applications, then you haven't actually patented for any of them (because you have not mentioned any).
Actually, the patent mentions specific uses (e.g. OS-level garbage collection), although the claims are indeed very broad.
So in short, if you patent algorithm for working with abstract data, you patent pure math.
In what way are a physical CPU, a physical disk storage unit, and all the other physical components of an information storage and retrieval system pure math? Pure math cannot conjure a physical computer out of the aether. These things are simply not equivalent. As such, working with the algorithm itself at the mathematical level (e.g. by thinking about it or reasoning about it in the abstract on pencil & paper) would not infringe the patent. This is not a patent on pure math.
If there exists an isomorphism between every element in the claim and a Turing Machine (TM) then the patent is pure bullshit
Why? All you've done is put a label on something. You haven't actually given an argument or a rationale.
The combination of two things, each in the prior art, can be patentable. However, the Supreme Court has it made it clear that such combinations are unlikely to be patentable where the components are fulfilling known, predictable functions and the number of possible combinations was itself known and finite. But again, this is an obviousness argument. I'm not arguing that the invention was or was not obvious. I'm only explaining that the fact that part of the invention is based on (or is equivalent to) a mathematical formula does not necessarily render the entirety of the invention unpatentable.
Are you saying that patent law requires a selling a physical machine with this on them to fall under the definition?
The Bilski case didn't precisely spell out the test(s) for patentable subject matter in this area, but the machine-or-transformation test remains one approach. So yes, that is basically one way to satisfy the patentable subject matter requirement. Note that it does not necessarily satisfy the obviousness requirement, which is a completely different issue. And in fact slapping a known algorithm on a computer is a quick way to get an obvious rejection these days.
Patentable subject matter is an early, coarse filter. Just because something can pass that filter does not mean it won't be invalidated because of anticipation, obviousness, lack of enablement, failure of the written description requirement, or any number of other things. I'm not arguing that this particular patent is or is not valid. I'm simply explaining that it was not, in fact, reduced to math, and that software patents in general are not subject to that attack. Whether that should or should not be the case is another matter, and I'm not taking a position on that here.