The USPTO alread requires applicant's to comply with the duty of disclosure:
37 CFR 1.56 Duty to disclose information material to patentability.
(a) A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim until the claim is cancelled or withdrawn from consideration, or the application becomes abandoned. Information material to the patentability of a claim that is cancelled or withdrawn from consideration need not be submitted if the information is not material to the patentability of any claim remaining under consideration in the application. There is no duty to submit information which is not material to the patentability of any existing claim. The duty to disclose all information known to be material to patentability is deemed to be satisfied if all information known to be material to patentability of any claim issued in a patent was cited by the Office or submitted to the Office in the manner prescribed by 1.97(b)-(d) and 1.98. However, no patent will be granted on an application in connection with which fraud on the Office was practiced or attempted or the duty of disclosure was violated through bad faith or intentional misconduct. The Office encourages applicants to carefully examine:
(1) Prior art cited in search reports of a foreign patent office in a counterpart application, and
(2) The closest information over which individuals associated with the filing or prosecution of a patent application believe any pending claim patentably defines, to make sure that any material information contained therein is disclosed to the Office.
If the applicant does not supply prior art which is known to him/her, then the patent can be thrown out. There is also an oath/declartion requirement that requires the applicant to swear under penalty of fine/imprisionment that all statements made are true or believed to be true.
The patent date is January 1999, so this could be a very real barrier to many companies. IANAL
Obviously not. If you were a lawyer or knew any patent law you would have looked for priority data, such as:
This application is a division of Ser. No. 08/636,477, filed Apr. 23, 1996, now U.S. Pat. No. 5,894,554.
Both of these patents have the same effective filing date (the date you have to beat for something to qualify as prior art under 35 USC 102): April 23, 1996. The second patent is a division of the first patent.
Not that I am overly paranoid, but I fail to see how this will change anything.
Even with paper ballots being printed, how are we to know that our vote gets tallied on the right column? What is to stop the program from printing one result while tabulating another?
Furthermore, even if source code is publicly available, what guarantees are there that the publicly available code is the actual code running on the balloting machine?
I would personally have more confidence in the system if completely separate systems are responsible for creating a ballot and for counting the ballot with the only link between the two machines being a printed ballot which is verified by the voter prior to entering it into the counting machine. Although, even then there are no guarantees that it will be counted correctly.
1. Submit patent -> gets rejected. 2. Change a word and resubmit -> gets rejected. 3. Change another word and resubmit -> gets rejected 4. Change another word and resubmit -> gets rejected 5. Change another word and resubmit -> gets rejected 6. Change another word and resubmit -> gets ACCEPTED.
Technically it goes more like this:
1. Submit patent -> gets rejected. 2. Change a word and resubmit -> gets rejected. ---Applicant Pays $790 for continued examination--- 3. Change another word and resubmit -> gets rejected 4. Change another word and resubmit -> gets rejected ---Applicant Pays $790 for continued examination--- 5. Change another word and resubmit -> gets rejected 6. Change another word and resubmit -> gets ACCEPTED.
Gee, maybe I'm wrong, but aren't Beethoven's symphonies public domain? How dare the BBC introduce a great composer's copyright-free works to a larger audience! They're devaluing it! And by "devaluing the music", you mean "devaluing your stock value", right?
As far as I know the symphonies themselves are, but specific performances aren't (depending on when they were recorded).
One reason, despite their higher quality, has to be the onerous copy protection attached to each format, including such idiocy as disabling digital bass management at the player level thus requiring users to run six analog connections between their SACD/DVD players and their home theater receivers. Most consumers looked at this and said "fuck this higher quality multi-channel noise".
No, most consumers don't even know what SACD and DVD-Audio are due to zero marketing for the formats. Even if they did they wouldn't know that digital bass management was disabled or that any other copy-protection schemes exist. You give consumers way way to much credit.
The court sets the high water and low water marks, they are free to interpret between these marks in accordance with the law. They *must* be taking a position when they choose the high water mark, yet they are equally free to choose the low water mark.
As stated in the parallel argument, I have yet to see any evidence presented of a low water mark which the patent office is able to choose. Furthermore the case cited was Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747, 3 USPQ2d 1766, 1767 (Fed. Cir. 1987), not Beckson Marine, Inc. v NFM, Inc. to which you linked.
You have repeatedly stated that there is a high water mark and a low water mark yet have shown no evidence of the existance of the low water mark.
Furthermore I fail to see how a presumption of validy requires a range of opinions on what is required by the tests for obviousness and novelty. Presumption of validity only requires that there be two possible options: valid and invalid. Neither of which requires any specifics of the tests used.
Yet here we have a case where its so common as to be not documented and time stamped and is clearly in existing use.
You can claim that it is valid and clearly in use, but if you can not back up that statement with solid evidence you will get nowhere in the courts.
They have free range between water marks by choosing the high water mark they are choosing one result.
Even assuming for the sake of argument that a low water mark exists, the patent office can not freely choose which one to use since that would in effect be interpreting the law which is not an available option to the executive branch.
Put it this way, if the high water mark and the low water mark were the same, the courts would not have to presume the patent is valid unless proved otherwise because the level of proof would be the same (whether they presumed or not) as if they were originally granting it.
The courts presume a patent is valid because the question of validity is usually not before them in a trial. Usually the trial centers on whether there is infringement or not. Secondly, they presume a patent is valid since the law states that "[a] person shall be entitled to a patent unless" certain conditions are met. Neither has any bearing on the test for obviousness or novelty.
Furthermore I would guess that you have not thoroughly read the case law present by me and the case law cited in those cases which serves as the legal rationale for their decisions. Nor have you yet present one single piece of evidence to back up your statement that "[t]he patent office could define obviousness anyway it chooses".
So again I point you to the separation of powers in the US as well as the MPEP and the court cases which serve as its basis (see links in my other posts).
This court requires that a party seeking to invalidate a patent under 102 show that the allegedly invalidating prior art contains "each and every element of [the] claimed invention." Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747, 3 USPQ2d 1766, 1767 (Fed. Cir. 1987).
If you follow this back to the original case I'm willing to bet this is a requirement for examiners as well.
The simplest way to state this is that the patent office falls under the executive branch of the government which does not have the power to interpret the law as it pleases. If, as you say, the patent office can set the requirements for obviousness in any way it sees fit, it would be violating this principle and would be acting unconstituionally.
If you want the know all of the details, read the Manual of Patent Examining Procedure paying particular attention to chapters 700 and 2100. If you wish you can also read the court decisions which are cited therein and any decisions cited by those decisions.
If you do manage to prove that the patent office is capable of defining the law however they wish I am sure the patent office as well as the rest of the governement would love to hear about it.
Hate to say it, but Amazon beat you by at least a year, if not two. See the continutity data tab in the link:
This application is a Division of 09/151,617 09-11-1998 Pending - Which is a Continuation in part of 09/046,503 03-23-1998 Abandoned - Which is a Continuation in part of 08/928,951 09-12-1997 Patented 5,960,411
5) The courts decides that to overrule the patent officers judgement you need that high level of proof of X Y Z.
The same test of X Y Z used by the courts to overrule a patent is used by the patent examiners when they try to reject patents. If you want court cases try any of the follwoing:
In re Royka, 490 F.2d 981, 180 USPQ 580 (CCPA 1974) In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970) Graham v. John Deere, 383 U.S. 1, 148 USPQ 459 (1966) Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987) Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed. Cir. 1989) In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990)
or any number of other cases where an examiner was reversed because the rejection made did not live up to the requirements which the courts have set.
Part of the trouble is that the laws are written such that a patent applicant is entitled to a patent unless it can be shown that he/she is not, similar to the concept of innocent until proven guilty. Therefore, unless it can be proven by the standards layed out by the courts that the patent appplication is either non-novel or obvious, the patent must be granted. The patent office is not allowed to simply call something obvious or say that it has been done before to reject the patent. They must come up with solid evidence which proves that it has been done or is obvious. If the courts do not agree with the evidence given or do not agree with the methodology used in the proof they will reverse the examiner and require the patent to be issued unless new evidence can be shown.
In your original post you were talking about defining obviousness in any way which the office chooses. Here you have quoted 35 USC 102(a) and the very beginning of 35 USC 103(a).
35 USC 102(a) deals with novelty and is much more clear cut than 103. For a patent to be rejected under 35 USC 102 all elements must be shown in a single reference in the same manner as claimed. From MPEP 2131:
"A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987). >"When a claim covers several structures or compositions, either generically or as alternatives, the claim is deemed anticipated if any of the structures or compositions within the scope of the claim is known in the prior art." Brown v. 3M, 265 F.3d 1349, 1351, 60 USPQ2d 1375, 1376 (Fed. Cir. 2001) (claim to a system for setting a computer clock to an offset time to address the Year 2000 (Y2K) problem, applicable to records with year date data in "at least one of two-digit, three-digit, or four-digit" representations, was held anticipated by a system that offsets year dates in only two-digit formats). See also MPEP 2131.02. "The identical invention must be shown in as complete detail as is contained in the... claim." Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed. Cir. 1989). The elements must be arranged as required by the claim, but this is not an ipsissimis verbis test, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990). Note that, in some circumstances, it is permissible to use multiple references in a 35 U.S.C. 102 rejection.
Obviousness is much trickier and the procedure for testing obviousness was layed out by the Supreme Court in the Graham Factual Inquiries:
Patent examiners carry the responsibility of making sure that the standard of patentability enunciated by the Supreme Court and by the Congress is applied in each and every case. The Supreme Court in Graham v. John Deere, 383 U.S. 1, 148 USPQ 459 (1966), stated:
Under 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquires may have relevancy. ..
The judicial branch only becomes involved later, when they are faced with the situation where the patent officer has already effectively accepted that it is not "KNOWN OR USED" or "DISCLOSED OR DESCRIBED " and are taking a challenge.
Judicial review is not a strictly one way process. When the courts issue a decision they are interpeting the law in a way which the patent office must then abide by. For example, in Graham v. John Deere cited above the Supreme Court layed out reqruiements for testing obviousness which has since served as the basis by which the Patent Office has been forced to use when rejecting patents as being obvious.
The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.
Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.
The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".
The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.
They are paper pushing businesses in whose best interest it is to relax the conditions for what is considered patentable.
The Patent Office does not set the conditions for patentability. Those are set by congress and the courts.
Sure, the problem begins with patents themselves (esp software and pharmaceutical patents) but this can be stemmed at the level of the State even allowing Patent Offices to operate as enterprises (with marketing divisions, lobbyists, investment incentives) in their own right.
Marketing divisions? Investment incentives? Care to provide some evidence to back these claims up.
In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (Appellant argued that claims to a permanent mold casting apparatus for molding trunk pistons were allowable over the prior art because the claimed invention combined "old permanent-mold structures together with a timer and solenoid which automatically actuates the known pressure valve system to release the inner core after a predetermined time has elapsed." The court held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art.).
The question then becomes whether or not automatically generating an e-mail to the recipient instead of calling the recipient is "broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result" according to the courts. Having not read the decision I really can't comment on that.
Can you prove that this has been done for years? Unfortunatley the courts have set the burden of proving obviousness so high that it becomes difficult to reject something as being obvious.
If you would like to take a crack at doing it here is basically what would be required:
1) a dated publication or with a date prior to 9/12/1997 which discloses at least part of the claimed invention.
2) one or more dated publications with dates prior to 9/12/1997 which disclose the features that are not disclosed in the first dated publication and disclose motivation to add these missing features into the system of the first publication (i.e. simply because the features may exist individuallly does not mean that it would be obvious to combine them into a single system according to the courts).
If the claim is truly frivolous as you say they should have no problem getting the case thrown out in court. Any competent engineer/manager should be able to defend against a frivolous case. If they can't manage to do that properly either the case has merit or they shouldn't be in business to begin with.
If they can afford counsel then all the better, but if they can't and are in danger of being put out of business by a patent claim they should at least have the guts to stand up for themselves if they think they are in the right.
My point is that DVForge notes on their website that they cannot *afford* to challenge the patent, and that, despite the merit of their claim, they are surrendering to the threat..... DLO is counting on DVForge's unwillingness to spend tens of thousands of dollars in attorney's fees to find a way to market
Regardless of what you may have been lead to believe a lawyer is not required to challenge a patent or go to court. It may help your chances, but if you have a good case you can pursue it yourself easily enough with a little bit of work.
If you can't come up with an alternative way to design a UI that lists genre, artist, album and song you are either incredibly unimaginative or the worlds worst designer. Take about 12 seconds to think about it and I'm sure you will come up with something.
Something that is "simple" is both "obvious" and not "novel".
If you choose to define simple as being obvious and not novel then that would be true. However, if you check the dictionary, simple is more traditionally defined as being easy or uncomplicated.
Of course you may disagree, but then the issue is what "is" an "obvious" invention ? At the moment professionals around the world think that what is "not obvious" for the patent office is instead quite "obvious" to them.
This would also be a common misunderstanding of patent law. The test is not whether something this is "obvious to one of ordinary skill in the art" as is so often talked about here(assuming we are discussing US patent law, EU law is similar). The question is whether something is "obvious at the time the invention was made to a person having ordinary skill in the art". While you can read most of the issued patents and say that they are obvious after reading them, the question is whether they were obvious at the time they were invented/filed. While it is easy to say that they would be, actually proving that they were obvious is an entirely different ball game. Thus far I have yet to get any slashdotter to take up that challenge and even come close to succeeding on any of the patent stories posted here.
The problem is: Give user graphic feedback on background tasks.
Solution: Something that grows over time and is visually representable. Can be anything, from a growing baloon to a growing bar. Is any of the peculiar implementation a "novelty" ?
I do get the point, however you are ignoring many other possible solutions which would solve the same problem. For example, a colored block could be presented which would transistion from black to white (or red to violet) as the taks completes, or a text box which displays a percentage of task completion, or a audible tone which increases in frequency as the task nears completion. How exactly is a progress bar which grows as the task nears completion the one and only solution that any person skilled in the art would think of when presented with the problem?
On the other hand, the courts have ruled that if something has provided a solution to a long-felt need in the art, that it actually lends credibility to the solution being non-obvious. See MPEP 716.04. Take this as you will, but to some extent it does make sense.
Why should you stop providing your "own" solution ? You didn't COPY it ! You didnt even know it existed !
Granted this is a problem, but it is also the reason why penalties are smaller in this situation than when someone knowningly infringes.
What i'm saying is, that in my opinion, this argument is void because it is possible to innovate in Software without any considerable investment in anything other than your own time.
Be careful of your word selection. It is also "possible" (as in a probability not equal to 0) to innovate in pharmaceuticals without any considerable investment in anything other than your own time.
It may not be equally probable, but it is certinly possible. That being said, you seem to be considering ones time as not terribly valuable in comparison to money. Should someone only be rewarded for the financial investment they put into creating a new product and not be rewarded for their time put into a new product?
You might think these ideas are so simple that no patent office would have issued them. We programmers are often amazed by the simplicity of the ideas that real software patents cover - for instance, the European Patent Office has issued a patent on the progress bar, and one on accepting payment via credit cards. These would be laughable if they were not so dangerous.
I see this point constantly being brought up everytime patents are discussed here and it represents a major misunderstanding of patent law. As RMS points out those concepts may be simple, however just because something is simple does not mean it is obvious or non-novel.
Slashdot Mirror
Obviously not. If you were a lawyer or knew any patent law you would have looked for priority data, such as:Both of these patents have the same effective filing date (the date you have to beat for something to qualify as prior art under 35 USC 102): April 23, 1996. The second patent is a division of the first patent.
Not that I am overly paranoid, but I fail to see how this will change anything.
Even with paper ballots being printed, how are we to know that our vote gets tallied on the right column? What is to stop the program from printing one result while tabulating another?
Furthermore, even if source code is publicly available, what guarantees are there that the publicly available code is the actual code running on the balloting machine?
I would personally have more confidence in the system if completely separate systems are responsible for creating a ballot and for counting the ballot with the only link between the two machines being a printed ballot which is verified by the voter prior to entering it into the counting machine. Although, even then there are no guarantees that it will be counted correctly.
1. Submit patent -> gets rejected.
2. Change a word and resubmit -> gets rejected.
3. Change another word and resubmit -> gets rejected
4. Change another word and resubmit -> gets rejected
5. Change another word and resubmit -> gets rejected
6. Change another word and resubmit -> gets ACCEPTED.
Technically it goes more like this:
1. Submit patent -> gets rejected.
2. Change a word and resubmit -> gets rejected.
---Applicant Pays $790 for continued examination---
3. Change another word and resubmit -> gets rejected
4. Change another word and resubmit -> gets rejected
---Applicant Pays $790 for continued examination---
5. Change another word and resubmit -> gets rejected
6. Change another word and resubmit -> gets ACCEPTED.
Gee, maybe I'm wrong, but aren't Beethoven's symphonies public domain? How dare the BBC introduce a great composer's copyright-free works to a larger audience! They're devaluing it! And by "devaluing the music", you mean "devaluing your stock value", right?
As far as I know the symphonies themselves are, but specific performances aren't (depending on when they were recorded).
One reason, despite their higher quality, has to be the onerous copy protection attached to each format, including such idiocy as disabling digital bass management at the player level thus requiring users to run six analog connections between their SACD/DVD players and their home theater receivers. Most consumers looked at this and said "fuck this higher quality multi-channel noise".
No, most consumers don't even know what SACD and DVD-Audio are due to zero marketing for the formats. Even if they did they wouldn't know that digital bass management was disabled or that any other copy-protection schemes exist. You give consumers way way to much credit.
The court sets the high water and low water marks, they are free to interpret between these marks in accordance with the law.
They *must* be taking a position when they choose the high water mark, yet they are equally free to choose the low water mark.
As stated in the parallel argument, I have yet to see any evidence presented of a low water mark which the patent office is able to choose. Furthermore the case cited was Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747, 3 USPQ2d 1766, 1767 (Fed. Cir. 1987), not Beckson Marine, Inc. v NFM, Inc. to which you linked.
You have repeatedly stated that there is a high water mark and a low water mark yet have shown no evidence of the existance of the low water mark.
Furthermore I fail to see how a presumption of validy requires a range of opinions on what is required by the tests for obviousness and novelty. Presumption of validity only requires that there be two possible options: valid and invalid. Neither of which requires any specifics of the tests used.
Yet here we have a case where its so common as to be not documented and time stamped and is clearly in existing use.
You can claim that it is valid and clearly in use, but if you can not back up that statement with solid evidence you will get nowhere in the courts.
They have free range between water marks by choosing the high water mark they are choosing one result.
Even assuming for the sake of argument that a low water mark exists, the patent office can not freely choose which one to use since that would in effect be interpreting the law which is not an available option to the executive branch.
Put it this way, if the high water mark and the low water mark were the same, the courts would not have to presume the patent is valid unless proved otherwise because the level of proof would be the same (whether they presumed or not) as if they were originally granting it.
The courts presume a patent is valid because the question of validity is usually not before them in a trial. Usually the trial centers on whether there is infringement or not. Secondly, they presume a patent is valid since the law states that "[a] person shall be entitled to a patent unless" certain conditions are met. Neither has any bearing on the test for obviousness or novelty.
Furthermore I would guess that you have not thoroughly read the case law present by me and the case law cited in those cases which serves as the legal rationale for their decisions. Nor have you yet present one single piece of evidence to back up your statement that "[t]he patent office could define obviousness anyway it chooses".
So again I point you to the separation of powers in the US as well as the MPEP and the court cases which serve as its basis (see links in my other posts).
The simplest way to state this is that the patent office falls under the executive branch of the government which does not have the power to interpret the law as it pleases. If, as you say, the patent office can set the requirements for obviousness in any way it sees fit, it would be violating this principle and would be acting unconstituionally.
If you want the know all of the details, read the Manual of Patent Examining Procedure paying particular attention to chapters 700 and 2100. If you wish you can also read the court decisions which are cited therein and any decisions cited by those decisions.
If you do manage to prove that the patent office is capable of defining the law however they wish I am sure the patent office as well as the rest of the governement would love to hear about it.
Hate to say it, but Amazon beat you by at least a year, if not two. See the continutity data tab in the link:
This application is a Division of 09/151,617 09-11-1998 Pending -
Which is a Continuation in part of 09/046,503 03-23-1998 Abandoned -
Which is a Continuation in part of 08/928,951 09-12-1997 Patented 5,960,411
5) The courts decides that to overrule the patent officers judgement you need that high level of proof of X Y Z.
The same test of X Y Z used by the courts to overrule a patent is used by the patent examiners when they try to reject patents. If you want court cases try any of the follwoing:
In re Royka, 490 F.2d 981, 180 USPQ 580 (CCPA 1974)
In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970)
Graham v. John Deere, 383 U.S. 1, 148 USPQ 459 (1966)
Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987)
Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed. Cir. 1989)
In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990)
or any number of other cases where an examiner was reversed because the rejection made did not live up to the requirements which the courts have set.
Part of the trouble is that the laws are written such that a patent applicant is entitled to a patent unless it can be shown that he/she is not, similar to the concept of innocent until proven guilty. Therefore, unless it can be proven by the standards layed out by the courts that the patent appplication is either non-novel or obvious, the patent must be granted. The patent office is not allowed to simply call something obvious or say that it has been done before to reject the patent. They must come up with solid evidence which proves that it has been done or is obvious. If the courts do not agree with the evidence given or do not agree with the methodology used in the proof they will reverse the examiner and require the patent to be issued unless new evidence can be shown.
If you want to know the exact requirements and read about the numerous court cases which have layed out these requirements I suggest reading the Manual of Patent Examining Procedure Chapter 2100.
35 USC 102(a) deals with novelty and is much more clear cut than 103. For a patent to be rejected under 35 USC 102 all elements must be shown in a single reference in the same manner as claimed. From MPEP 2131:Obviousness is much trickier and the procedure for testing obviousness was layed out by the Supreme Court in the Graham Factual Inquiries: The judicial branch only becomes involved later, when they are faced with the situation where the patent officer has already effectively accepted that it is not "KNOWN OR USED" or "DISCLOSED OR DESCRIBED " and are taking a challenge.
Judicial review is not a strictly one way process. When the courts issue a decision they are interpeting the law in a way which the patent office must then abide by. For example, in Graham v. John Deere cited above the Supreme Court layed out reqruiements for testing obviousness which has since served as the basis by which the Patent Office has been forced to use when rejecting patents as being obvious.
The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.
Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.
The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".
The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.
They are paper pushing businesses in whose best interest it is to relax the conditions for what is considered patentable.
The Patent Office does not set the conditions for patentability. Those are set by congress and the courts.
Sure, the problem begins with patents themselves (esp software and pharmaceutical patents) but this can be stemmed at the level of the State even allowing Patent Offices to operate as enterprises (with marketing divisions, lobbyists, investment incentives) in their own right.
Marketing divisions? Investment incentives? Care to provide some evidence to back these claims up.
If you would like to take a crack at doing it here is basically what would be required:
If the claim is truly frivolous as you say they should have no problem getting the case thrown out in court. Any competent engineer/manager should be able to defend against a frivolous case. If they can't manage to do that properly either the case has merit or they shouldn't be in business to begin with.
If they can afford counsel then all the better, but if they can't and are in danger of being put out of business by a patent claim they should at least have the guts to stand up for themselves if they think they are in the right.
My point is that DVForge notes on their website that they cannot *afford* to challenge the patent, and that, despite the merit of their claim, they are surrendering to the threat. .... DLO is counting on DVForge's unwillingness to spend tens of thousands of dollars in attorney's fees to find a way to market
Regardless of what you may have been lead to believe a lawyer is not required to challenge a patent or go to court. It may help your chances, but if you have a good case you can pursue it yourself easily enough with a little bit of work.
$9.99 is expensive. I buy a lot of my CDs for $5.99 shipped. The rest of the CDs are purchased from local music stores or from various small labels on the net.
Plus that way I actually own the music instead of being stuck with a lossy file with DRM.
If you can't come up with an alternative way to design a UI that lists genre, artist, album and song you are either incredibly unimaginative or the worlds worst designer. Take about 12 seconds to think about it and I'm sure you will come up with something.
Something that is "simple" is both "obvious" and not "novel".
If you choose to define simple as being obvious and not novel then that would be true. However, if you check the dictionary, simple is more traditionally defined as being easy or uncomplicated.
Of course you may disagree, but then the issue is what "is" an "obvious" invention ? At the moment professionals around the world think that what is "not obvious" for the patent office is instead quite "obvious" to them.
This would also be a common misunderstanding of patent law. The test is not whether something this is "obvious to one of ordinary skill in the art" as is so often talked about here(assuming we are discussing US patent law, EU law is similar). The question is whether something is "obvious at the time the invention was made to a person having ordinary skill in the art". While you can read most of the issued patents and say that they are obvious after reading them, the question is whether they were obvious at the time they were invented/filed. While it is easy to say that they would be, actually proving that they were obvious is an entirely different ball game. Thus far I have yet to get any slashdotter to take up that challenge and even come close to succeeding on any of the patent stories posted here.
The problem is: Give user graphic feedback on background tasks.
Solution: Something that grows over time and is visually representable. Can be anything, from a growing baloon to a growing bar. Is any of the peculiar implementation a "novelty" ?
I do get the point, however you are ignoring many other possible solutions which would solve the same problem. For example, a colored block could be presented which would transistion from black to white (or red to violet) as the taks completes, or a text box which displays a percentage of task completion, or a audible tone which increases in frequency as the task nears completion. How exactly is a progress bar which grows as the task nears completion the one and only solution that any person skilled in the art would think of when presented with the problem?
On the other hand, the courts have ruled that if something has provided a solution to a long-felt need in the art, that it actually lends credibility to the solution being non-obvious. See MPEP 716.04. Take this as you will, but to some extent it does make sense.
Why should you stop providing your "own" solution ? You didn't COPY it ! You didnt even know it existed !
Granted this is a problem, but it is also the reason why penalties are smaller in this situation than when someone knowningly infringes.
a year because they don't have the $10,000,000 to fund the challenge.
Care to point out a reference or two or breakdown of the costs you used to come up with this figure?
What i'm saying is, that in my opinion, this argument is void because it is possible to innovate in Software without any considerable investment in anything other than your own time.
Be careful of your word selection. It is also "possible" (as in a probability not equal to 0) to innovate in pharmaceuticals without any considerable investment in anything other than your own time.
It may not be equally probable, but it is certinly possible. That being said, you seem to be considering ones time as not terribly valuable in comparison to money. Should someone only be rewarded for the financial investment they put into creating a new product and not be rewarded for their time put into a new product?