It doesn't matter. If the people behind Bitcoin never bothered to file for a patent, JP Morgan is now going to get it first--meaning Bitcoin will then be in violation of said patent (as unfair as that is).
That's not how first-to-file works. If the people behind Bitcoin kept Bitcoin secret, never published anything, never used it publicly, etc., and then (i) JP Morgan filed a patent application on it, and (ii) subsequently the people behind Bitcoin filed a patent application on it, then JP Morgan would win and get the patent - because, given two applications by two different inventors on the same invention, the first-to-file wins (hence the name). This is as opposed to the first-to-invent system, where in the above scenario, Bitcoin would win if they could show lab notebooks and internal documents showing that they actually invented it prior to JP Morgan and were working on reducing it to practice the whole time. Those proceedings were called interferences, and they occurred, on average, about 20 times a year. Out of half a million applications. That's literally all the change to "first to file" means, and those.004% applications are all that were affected. It has nothing to do with what's prior art or whether Bitcoin, which predates JP Morgan's application, can infringe any patent granted from it - and no, it can't. Not unless they change their implementation to incorporate something new that's in the JP Morgan application. If they freeze the implementation here, they can't possibly ever infringe.
Isn't this exactly what marketing research companies have done before. A quick web search says:
corn is a powerful consumer classification that segments the UK population. By analysing demographic data, social factors, population and consumer behaviour, it provides precise information and an understanding of different types of people. Acorn provides valuable consumer insight helping you target, acquire and develop profitable customer relationships and improve service delivery.
This is just another case of adding "... on a computer" or "... over wifi" to something that's already an established practice to gain a patent.
No, this is another case of not reading the claims. The patent claims go into confidence metrics and applying advertising criteria based on those metrics. Now, maybe there's other prior art out there that teaches that element, but your link is the equivalent of saying "Tesla got a patent on the power train in the Model S? But isn't that really just a Ford Model T adding '... with a battery'?"
The obviousness test has failed us time and time and time again. To me, that's a simple reason for simply banning all software patents, as other countries have done without major mishap.
A common misconception. "Software-only" patents are banned in Europe and many other countries, but they're also banned here in the US, under Bilski. What gets issued here are "software" patents that also claim portions of the machine executing the software - and the same exact claims get allowed in Europe. For example, this one was granted in Europe in September. Claim 5 sure looks like what you would call a "software patent that has been banned in other countries", right?
An issue with software engineers and programmers is that, at least in my experience, they tend to be rather smart people (if sometimes narrowly focused), and thus have a rather skewed view on what they consider to be "obvious". If we rely on non-experts to agree with us on obviousness, we're always going to be disappointed. And creating some clever process to determine obviousness is going to succeed no better than creating some magical process to solve any challenging and creative problem in the real world. No offense regarding your solution, but I'd guess you're probably looking at this problem through the lens of a programmer or mathematician - solving challenging problems with algorithms and processes is what we do. But it tends not to work as well in the real world, which is much messier and more complex than a computer simulation.
But the people at the patent office are also experts - programmers with a background in the specific technology. The patent office is divided into art groups for all the different areas of industry, with Examiners hired specifically for those areas - so biologists and chemists examine pharma stuff, mechanical engineers examine tools and engines, electrical engineers examine circuits, and programmers examine software.
Two things here, though - first, the patent office didn't accept programmers until about the mid to late 90s, so you had EE guys examining software that they couldn't really wrap their heads around. That's why we see a bunch of bad patents from that time, and since patents tend to get filed, granted 5 years later, and sued on 5 years after that, that's why they're in the news. The ones getting issued now are better.
Second, there still needs to be that objective test, because even if you have the greatest programmer in the world examining the patent, they're still human and prone to looking at something in hindsight. And in hindsight, many inventions look obvious, but that's because the patent application just explained to you exactly how it's done. I bet you could draw a model of an internal combustion engine or steam engine on a napkin right now... but does that mean it was obvious in the 1700s? Or does it mean that you've had years of knowledge and looking at those diagrams and now it's ingrained? So, the test is set up specifically to avoid that problem - you can only show obviousness by using references that existed at the time of filing.
I'm afraid we simply just have to toss out the entire category. Patenting software just needs to be abolished. Copyright is plenty to legally protect the interests of development companies and/or individuals. Anything more than that just leads to overly anti-competitive behavior through sleazy legal maneuvers in the long run.
Copyright is next to useless for smaller programmers, because it's protecting the wrong thing. Basically, copyright protects the exact work, so it's really handy when people want that exact work: you want to see Hollywood's "Thor", not Bollywood's "Hammer-God". You want the latest Britney Spears album (maybe for use as a coaster?), not the elevator music version. And that can even w
I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me.
Yes, but "obvious" doesn't mean legally what you think it means: it's a legal conclusion, like "guilty", with a specific definition. Just like we say someone is guilty or a patent is obvious, legally, it's not true unless the government has proven beyond a reasonable doubt or without a clear error, respectively, that the person actually committed the crime or the inventor didn't invent something obvious.
And there actually is an objective test for obviousness (and I'm happy to talk about why or why not it's a good one) that is crafted to avoid hindsight: specifically, the USPTO can show that a patent is obvious is every element of a claim is taught or suggested by one or more pieces of prior art, alone or in combination. So, if your patent claims A+B+C+D, and one piece of prior art shows A+B, another shows C, and a third shows D, the patent claim is obvious. But if the art just shows A, B, and C, but no D, then it's not, even if you think that D is stupid obvious. The test, however, rules out that conclusion, if you can't actually show that anyone had ever thought of D before - maybe you think it's stupid obvious only because you read the patent? If D was never mentioned before elsewhere, maybe it's not obvious, even if in hindsight it looks simple. Maybe the solution is brilliant in its elegance and simplicity.
IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different.
Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.
IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?
But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.
'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.
This is correct. The problem is that in arguing against patents, most people look at the title "methods for sorting data" or the abstract "Disclosed herein are methods for sorting data", rather than the claims, which are the only part with any legal weight. A patent claim for a bubble sort likely wouldn't be infringed by a quick sort, and, if it's broad enough that the quick sort would infringe, then there's likely anticipatory prior art in the general art of "searching" that would invalidate it.
The most amazing thing is that TQP's argument against Diffie involved them finding potential prior art to show that Diffie wasn't the inventor of public key cryptography. Even if this argument succeeded, then it should have put an even bigger nail in their coffin since it would show even more prior art for the patent.
TQP's patent wasn't invalid over Diffie's invention alone. Rather, TQP even admits that their patent is a combination of Diffie's work and some other work by Lotus - if the two prior art* references are applied together, then the invention is obvious in light of the combination.
But, their argument was that the Lotus work doesn't legally count, because Lotus kept it secret until after they applied for the patent.
So, as you note, they found some earlier work before Diffie that shows that he wasn't really the inventor of public key cryptography. He disagreed and said that it doesn't count, because they kept it secret until after he published his paper.
Playing devil's advocate here... Why is this result some failure of the judge/jury of this case?
When the guy who invented public key encryption tells you that the basis of the patent had been around for years, that is a failure of the jury in this case.
Except he didn't, and they didn't. Read page two of this article from yesterday about his testimony.
Basically, TQP admits that their patent is obvious in view of a combination of two references, one of which is Diffie's work, and the other of which was some work by Lotus: neither Diffie nor Lotus invented TQP's invention, but if you slap the two together in a reasonable way, they teach everything in TQP's invention, so it's obvious.
Except, Lotus didn't publish their work until after TQP filed their application. And legally, that means it's not prior art, even though they were working on it in secret for some time. In other words, even though someone else invented what they did, it doesn't count, because that someone else kept it secret.
So, Diffie gets on the stand and talks about his work on crypto, which was the first half of TQP's combination. On cross examination, TQP's lawyer points out that he didn't really invent it, did he? And Diffie says that someone else invented what he did, but it doesn't count, because that someone else kept it secret.
So, it sounds like the jury was persuaded by Diffie that TQP's patent was valid.
You haven't been in my lab, it's pretty loud in there... Earplugs are standard and in fact are issued for free just inside the door. So, I might or might not hear a PSK conversation over the din. However, in such an environment would not be very hospitable to acoustic communications in the first place. But I don't think that trying to be covert is going to do anything but lower your though put to near useless... I say this is either easily heard, not that useful, prone to interference or low bandwidth.
And since we're talking about transferring small pieces of data, such as user names, passwords, account numbers, etc., you're talking about maybe 10-12 bytes at a time, tops. It could take a minute and you'd never hear it.
This is new how? We have been sending data using audio cards between computers for decades. I remember cranking up the cassette tape drive to load programs into my TRS-80 in high school and hooking up to an acoustic modem to get on dial up AOL. Recently I've used my computer to talk to another computer halfway around the world though an RF link provided by my ham radio. Hams routinely transfer "data" over packet, PSK and other modes over audio links using their audio cards in their computers.
Oh, wait, so the ad-hock links are the new thing? Um, not so fast there either. Mesh networks have been around long enough to fall in and out of favor once or twice. Ham radio operators might know about HSMM Mesh http://www.broadband-hamnet.org/ has been doing mesh networks for nearly a decade, and the protocol it uses internally wasn't the first. So this is not new..
I conclude that NOTHING here is new, except perhaps combining an audio network link with a mesh networking protocol.... But I don't see that as ground breaking..
Maybe you missed the "covert" part. If your computer was hissing and whining away like a 56kbps modem to talk to the computer in the room next door, you'd probably notice.
... Although, maybe not, since it's the third word in the/. headline and second word in the article headline, and yet you still missed even this rudimentary visual communication.
>With lack of copyright, there would be major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs.
There are major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs.
There, fixed that for you.
Customers aren't generally required to sign NDAs, because copyright law provides protection without requiring them. Sorry that point went so far over your head.
I would assume they concluded that settling would be less costly than fighting it. The fact that it was settled for an undisclosed amount probably suggests that the original author was asking something more reasonable then what was awarded in court.
The problem with copyright is that dissemination or distribution in and of itself is a violation so even if I swore to you that I owned the copyright and you could distribute it, you are not entirely off the hook if I was not truthful. Of course any sane court would likely keep any penalties as low as possible if you could prove that. Some juries might even toss it out because of the mens rea involved but it would require going to court and risking losing the case.
No, if I can prove you swore to me that you owned the copyright and I could distribute it, I'm entirely off the hook... Or technically I am off the hook, and you're the one who's boned.
The rule is Rule 14, which states that if I'm sued, I can bring you in as a third-party defendant if you're liable for all or part of the claim against me: I infringed the copyright, but because of your fraud, you're responsible for my actions. The best part is, if I can prove that tiny piece of it - show my contract with you, for example - I can walk away from the copyright infringement case and never have to show up in court. If "I" lose that one, then even if I owe the plaintiff a million dollars, you're 100% liable to me, so really, it's you who loses. Hence why I could take a default judgement and not care.
This also comes up in insurance proceedings. If you sue me and I'm fully covered by insurance, I'll just bring in my insurance company and let them defend the suit if they want. I don't care because, win or lose, I don't pay anything.
However, it is also based on cultural relevance. It's enough time for the original work to be commercially exhausted
Mix stations, broadcasting "the greatest hits of the 70s, 80s, 90s, and today!" frown at your shenanigans.
but for further adaptations (eg. for music, samples or covers) to remain relevant. This is the approximate amount of time it takes for a series reboot to occur, or for a movie to be remade, if we want to keep it relevant to your particular field instead of mine.
But you have a point here, but your solution isn't tailored to your point. Copyright involves a bundle of rights - the right to copy and distribute, as well as the right to make derivative works. There's a huge argument to be made that the exclusive period for making derivative works should be less, as you point out - there are series reboots, remixes, sampling, etc. and if the original author isn't going to do it, then we shouldn't have to wait a century. Where would electronica or hip hop be without sampling?
But that's sampling and reboots and the like... Copying and distribution of the original work? That doesn't have the same moral argument for the creation of new works... If you want to copy and redistribute Star Wars - and mind you, the original Star Wars, not your Minecraft-based recreation that replaces stormtroopers with zombies- then why should you get to do so for free, merely because a decade has passed? The original is certainly still in publication, and there's a market for it.
Basically, it's the difference between an homage and parody, and plagiarism. We do want to protect people who make something new based on the bones of something that existed before. But simply copying something and presenting it as your own? Why should we give you any protection, and why should we harm the original author when you're just a copycat?
That's why I'd advocate a split copyright term. Life+70 if you want for the copying and distribution of the original work, or whatever other term makes sense. 5-10 years for derivative works. It even fits with many of your justifications that aren't based on just a "why should people make money from their creations for years" complaint:
Imagine film students learning their craft by re-editing classics. Imagine films being translated and dubbed into any language with a speaker who cares enough to translate it.
with lack of copyright there would be nothing from stopping reverse engineering and modifying the programs. that field would be far more advanced by today if we didn't have copyright(and already, despite copyrights, we're seeing hobby projects which disassemble amiga code and turn it into x86 binaries with added functionality like opengl graphics).
With lack of copyright, there would be major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs. Sure, you could reverse engineer something without running afoul of copyright law, and they'd take your house and garnish your wages for the next hundred years since it may not necessarily be dischargeable in bankruptcy.
Wheels is a new concept. Inflatable tires on the wheels is a new concept. Springs on the axle is a new concept. Steerable wheels is a new concept. That just about covers it. Most of the rest of the improvements around the wheel and axle are derivative, unworthy of a patent. They don't advance the state of the art enough to merit giving their creators exclusive control.
The differential drive weeps at you.
That's what patents are about, right? They're supposed to encourage leaps of brilliance by making it practical for their inventors to profit off them. If there's no genius, just plodding iterative improvement, there shouldn't be a patent.
Not at all. You want a reward for a leap of brilliance, go get a Nobel. Patents are - to use Jefferson's term - an "embarrassment". And bear in mind that he was not only the drafter of the first patent act, but the first patent examiner. Patents are a monopoly, grudgingly granted by society, in exchange for public disclosure of the invention. They aren't a reward - they're a payment offered to the inventor to encourage them to destroy trade secrets. Absent patents, inventors would keep their ideas as quiet as possible (this is business, not academia, after all). There would be (and have been in the past, and are in non-patent regimes) major non-disclosure agreements, intense security against corporate espionage, etc. Instead of all of that inter-corporate fighting, society has said "we'll give you a time-limited monopoly in exchange for destroying your trade secret". But it's certainly not a reward. You can make the greatest invention ever known to man, and if you don't disclose it, you deserve nothing.
With that in mind, plodding improvement is exactly what the patent system is about. Say a flash of genius comes about once every hundred years... we don't need to encourage public disclosure, because it's so rare and major that you'll get your damned Nobel prize and publish papers for the fame of it. But what about the invention that takes a mere hundred man-hours to make? Well, if you keep that secret, and you have a thousand competitors in your field, they have to spend a combined hundred-thousand man-hours duplicating what you've already done. That's a huge waste for society. If instead you reveal your invention and they pick up a simple license, then those 99,900 hours may be spent on new inventions, encouraging innovation.
Basically, if you're the only person who could ever come up with an idea, then giving you a patent is useless to society. On the other hand, if you're the first person to come up with an idea by a non-negligible time period, then giving you a patent in exchange for you telling everyone else how to make and use the invention is very beneficial to society. The value of the patent to society can almost be calculated in terms of hours-to-produce/rarity: the more hours something takes, the better, but only if it's not so rare that you're the only person who will ever spend those hours.
JPEG was based on the notion that digital photographs were not pixel perfect to begin with, so why maintain that non-perfection perfectly if not doing so would make high compression rates possible. Acceptably lossy compression. This was a fresh, novel concept. The invention based on it deserved patent protection.
MPEG and MP3 took the then-well-known concept of lossy compression and ground on it until they came up with something that worked well for video and audio. After all, if the concept works for one media type, it should work for others, right? No unexpected originality, no unforeseen change to the state of the art, just grinding. Should not have been patentable.
I disagree completely. JPEG didn't patent the notion of lossy compression, nor were the MPEG and MP3 patents trying to claim "JPEG, but for video/audio" or a similarly broad notion of lossy compression. MP3, for example, exploits psychoacoustic masking across both frequency and temporal windows. It has nothing to do with JPEG wavelet-based compression.
Under your definition, a cart with wheels would be a new concept, worthy of a patent, but every vehicle since then, from the Model T to the Tesla Roadster to the Space Shuttle would simply be "the same concept, but at different speeds/altitudes" and unworthy. That's simply not true at all.
I think you're confused about what patents claim. The section at the end of each patent, with individual numbered sentences, are the claims. Patents don't claim "notions", but specific inventions, bounded by limitations in those claims.
That's why I used the word "justify" and not the word "prove."
Right now the presumption is that if a half-hearted and formulaic search turns up no prior art then the invention is novel. I want to turn that on its head: the invention is presumed obvious until you explain why it isn't in terms folks in your field agree with. Who are the people in your field and why aren't they half a step behind you?
Most applications will have something like that in the background and summary - the background says "here's what most folks in the field think, and here's a problem they've run into" and the summary is "here's how we solved it and why we're so cool".
Now, you can (and rightfully should) be skeptical of such an explanation, since the applicant is going to be biased in their own favor, but if you're not just going to plug your ears and say "I'm not going to believe you", you have to have some sort of objective standard for when they've overcome that presumption and it falls to the Examiner to rebut them.
There's an additional wrinkle - you say "in terms folks in your field agree with"... Folks now? Or folks at the time of writing the application. If something sits in a backlog at the USPTO for 3 years, during which time, the applicant has been marketing and selling their invention to everyone, all the folks in the field will now say "yeah, that's obvious, we've seen it for the past three years." How do you determine what "folks in the field" think back at the time of filing? Currently, they use prior art, since it represents all published knowledge in existence at the time, without any danger of accidentally using hindsight.
I've read some of the software patents. I have better than average skill in the art and I couldn't implement the software described from *any* of them. Not. A. Single. One.
They all include flow charts... Are you saying you couldn't write a program if you were given a flow chart?
1. Fix "obviousness." The courts didn't like the examiner affirmatively finding that something was obvious so turn it around and require the applicant to justify why anyone of average skill seeking the same result would not have found the same method. Require the examiner to affirmatively find that it isn't obvious. No justification = no patent.
Unfortunately, I think you're asking someone to prove a logical negative: the applicant has to prove that something isn't obvious by showing... what, exactly? Definitive proof that no one has ever thought of the something?
2. A person of average skill in the art should be able to implement the technology from the contents in the patent. Start rejecting packets where that isn't true. Vague or stilted language in the application = no patent.
3. Patent duration should be from application, not from the grant. Effective protection starts with the application. You can't sue anybody until after the grant, but no one dares use the tech unless they're sure the patent won't be granted. That's been abused by delaying the final grant for years or even a decade.
These are both good suggestions, and, of course, they're already in the statutes. 35 USC 112 requires that the patent have a written description that enables one of ordinary skill in the art to make and use the invention. And patent term is calculated as 20 years from filing (or 20 years from the earliest priority date, if the application claims priority to an application before its filing date).
Translation: "We love the absurd and unfair amount of power that the broken patent system gives us over any and all future start-ups and rivals, and will oppose any legislation that doesn't maintain the status quo."
No - see the summary:
An IBM spokesman told Politico, "While we support what Mr. Goodlatte's trying to do on trolls, if the CBM is included, we'd be forced to oppose the bill."
The proper translation is "yes, we want to stop the troll problem, but this nuclear option you've got goes too far. We like all of your other proposals." Just because you don't like 5% of a proposal doesn't mean you necessarily hate 100% of the proposal.
"If they don't like it, there are plenty of other jobs out there". There's always that risk I suppose. It's hard enough to get good people to go into law enforcement. Let's make it even less appealing.
I'm willing to take the tradeoff of driving away potential cops who won't go into law enforcement if they have to follow the law.
On the other hand we shouldn't forget that coppers are also persons with a right to privacy and that the ones who pick up drunks, get called to petty disputes and car accidents are notoriously underappreciated, underpaid and overworked with a high risk for burn-out. They do deserve our appreciation for that.
No, they are not. They are agents of the state, and the state has no right of privacy. When they're off duty, you're absolutely right - these GPS trackers should not be implanted in their bodies, sewn into their street clothes, or placed on their personal vehicles. However, when they're on duty, they are employees and state actors and have no right to privacy. If they don't like it, there are plenty of other jobs out there.
Right, but is it complete? Is it well indexed and searchable? Is it blocked by any corporate firewalls?, any mobile firewalls in places like the UK because of explicit content?
A reduced number of sites still means a reduced amount of ability to search for your product.
But the sites that are being blocked tend to be the ones with malware, obnoxious popups, and weird javascript. A reduced number of sites doesn't actually impair your search ability, if you're only getting rid of the chaff.
Slashdot Mirror
It doesn't matter. If the people behind Bitcoin never bothered to file for a patent, JP Morgan is now going to get it first--meaning Bitcoin will then be in violation of said patent (as unfair as that is).
That's not how first-to-file works. If the people behind Bitcoin kept Bitcoin secret, never published anything, never used it publicly, etc., and then (i) JP Morgan filed a patent application on it, and (ii) subsequently the people behind Bitcoin filed a patent application on it, then JP Morgan would win and get the patent - because, given two applications by two different inventors on the same invention, the first-to-file wins (hence the name). This is as opposed to the first-to-invent system, where in the above scenario, Bitcoin would win if they could show lab notebooks and internal documents showing that they actually invented it prior to JP Morgan and were working on reducing it to practice the whole time. Those proceedings were called interferences, and they occurred, on average, about 20 times a year. Out of half a million applications. That's literally all the change to "first to file" means, and those .004% applications are all that were affected. It has nothing to do with what's prior art or whether Bitcoin, which predates JP Morgan's application, can infringe any patent granted from it - and no, it can't. Not unless they change their implementation to incorporate something new that's in the JP Morgan application. If they freeze the implementation here, they can't possibly ever infringe.
Isn't this exactly what marketing research companies have done before. A quick web search says :
corn is a powerful consumer classification that segments the UK population. By analysing demographic data, social factors, population and consumer behaviour, it provides precise information and an understanding of different types of people. Acorn provides valuable consumer insight helping you target, acquire and develop profitable customer relationships and improve service delivery.
This is just another case of adding "... on a computer" or "... over wifi" to something that's already an established practice to gain a patent.
No, this is another case of not reading the claims. The patent claims go into confidence metrics and applying advertising criteria based on those metrics. Now, maybe there's other prior art out there that teaches that element, but your link is the equivalent of saying "Tesla got a patent on the power train in the Model S? But isn't that really just a Ford Model T adding '... with a battery'?"
The obviousness test has failed us time and time and time again. To me, that's a simple reason for simply banning all software patents, as other countries have done without major mishap.
A common misconception. "Software-only" patents are banned in Europe and many other countries, but they're also banned here in the US, under Bilski. What gets issued here are "software" patents that also claim portions of the machine executing the software - and the same exact claims get allowed in Europe. For example, this one was granted in Europe in September. Claim 5 sure looks like what you would call a "software patent that has been banned in other countries", right?
An issue with software engineers and programmers is that, at least in my experience, they tend to be rather smart people (if sometimes narrowly focused), and thus have a rather skewed view on what they consider to be "obvious". If we rely on non-experts to agree with us on obviousness, we're always going to be disappointed. And creating some clever process to determine obviousness is going to succeed no better than creating some magical process to solve any challenging and creative problem in the real world. No offense regarding your solution, but I'd guess you're probably looking at this problem through the lens of a programmer or mathematician - solving challenging problems with algorithms and processes is what we do. But it tends not to work as well in the real world, which is much messier and more complex than a computer simulation.
But the people at the patent office are also experts - programmers with a background in the specific technology. The patent office is divided into art groups for all the different areas of industry, with Examiners hired specifically for those areas - so biologists and chemists examine pharma stuff, mechanical engineers examine tools and engines, electrical engineers examine circuits, and programmers examine software.
Two things here, though - first, the patent office didn't accept programmers until about the mid to late 90s, so you had EE guys examining software that they couldn't really wrap their heads around. That's why we see a bunch of bad patents from that time, and since patents tend to get filed, granted 5 years later, and sued on 5 years after that, that's why they're in the news. The ones getting issued now are better.
Second, there still needs to be that objective test, because even if you have the greatest programmer in the world examining the patent, they're still human and prone to looking at something in hindsight. And in hindsight, many inventions look obvious, but that's because the patent application just explained to you exactly how it's done. I bet you could draw a model of an internal combustion engine or steam engine on a napkin right now... but does that mean it was obvious in the 1700s? Or does it mean that you've had years of knowledge and looking at those diagrams and now it's ingrained? So, the test is set up specifically to avoid that problem - you can only show obviousness by using references that existed at the time of filing.
I'm afraid we simply just have to toss out the entire category. Patenting software just needs to be abolished. Copyright is plenty to legally protect the interests of development companies and/or individuals. Anything more than that just leads to overly anti-competitive behavior through sleazy legal maneuvers in the long run.
Copyright is next to useless for smaller programmers, because it's protecting the wrong thing. Basically, copyright protects the exact work, so it's really handy when people want that exact work: you want to see Hollywood's "Thor", not Bollywood's "Hammer-God". You want the latest Britney Spears album (maybe for use as a coaster?), not the elevator music version. And that can even w
I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me.
Yes, but "obvious" doesn't mean legally what you think it means: it's a legal conclusion, like "guilty", with a specific definition. Just like we say someone is guilty or a patent is obvious, legally, it's not true unless the government has proven beyond a reasonable doubt or without a clear error, respectively, that the person actually committed the crime or the inventor didn't invent something obvious.
And there actually is an objective test for obviousness (and I'm happy to talk about why or why not it's a good one) that is crafted to avoid hindsight: specifically, the USPTO can show that a patent is obvious is every element of a claim is taught or suggested by one or more pieces of prior art, alone or in combination. So, if your patent claims A+B+C+D, and one piece of prior art shows A+B, another shows C, and a third shows D, the patent claim is obvious. But if the art just shows A, B, and C, but no D, then it's not, even if you think that D is stupid obvious. The test, however, rules out that conclusion, if you can't actually show that anyone had ever thought of D before - maybe you think it's stupid obvious only because you read the patent? If D was never mentioned before elsewhere, maybe it's not obvious, even if in hindsight it looks simple. Maybe the solution is brilliant in its elegance and simplicity.
IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.
IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?
But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.
'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.
This is correct. The problem is that in arguing against patents, most people look at the title "methods for sorting data" or the abstract "Disclosed herein are methods for sorting data", rather than the claims, which are the only part with any legal weight. A patent claim for a bubble sort likely wouldn't be infringed by a quick sort, and, if it's broad enough that the quick sort would infringe, then there's likely anticipatory prior art in the general art of "searching" that would invalidate it.
It's important to remember that East Texas almost invariably sides with the NPE. That's why most of these suits are brought up in East Texas.
55% of the time isn't "invariant".
The most amazing thing is that TQP's argument against Diffie involved them finding potential prior art to show that Diffie wasn't the inventor of public key cryptography. Even if this argument succeeded, then it should have put an even bigger nail in their coffin since it would show even more prior art for the patent.
TQP's patent wasn't invalid over Diffie's invention alone. Rather, TQP even admits that their patent is a combination of Diffie's work and some other work by Lotus - if the two prior art* references are applied together, then the invention is obvious in light of the combination.
But, their argument was that the Lotus work doesn't legally count, because Lotus kept it secret until after they applied for the patent.
So, as you note, they found some earlier work before Diffie that shows that he wasn't really the inventor of public key cryptography. He disagreed and said that it doesn't count, because they kept it secret until after he published his paper.
Sounds like their argument did succeed.
When the guy who invented public key encryption tells you that the basis of the patent had been around for years, that is a failure of the jury in this case.
Except he didn't, and they didn't. Read page two of this article from yesterday about his testimony.
Basically, TQP admits that their patent is obvious in view of a combination of two references, one of which is Diffie's work, and the other of which was some work by Lotus: neither Diffie nor Lotus invented TQP's invention, but if you slap the two together in a reasonable way, they teach everything in TQP's invention, so it's obvious.
Except, Lotus didn't publish their work until after TQP filed their application. And legally, that means it's not prior art, even though they were working on it in secret for some time. In other words, even though someone else invented what they did, it doesn't count, because that someone else kept it secret.
So, Diffie gets on the stand and talks about his work on crypto, which was the first half of TQP's combination. On cross examination, TQP's lawyer points out that he didn't really invent it, did he? And Diffie says that someone else invented what he did, but it doesn't count, because that someone else kept it secret.
So, it sounds like the jury was persuaded by Diffie that TQP's patent was valid.
You haven't been in my lab, it's pretty loud in there... Earplugs are standard and in fact are issued for free just inside the door. So, I might or might not hear a PSK conversation over the din. However, in such an environment would not be very hospitable to acoustic communications in the first place. But I don't think that trying to be covert is going to do anything but lower your though put to near useless... I say this is either easily heard, not that useful, prone to interference or low bandwidth.
And since we're talking about transferring small pieces of data, such as user names, passwords, account numbers, etc., you're talking about maybe 10-12 bytes at a time, tops. It could take a minute and you'd never hear it.
This is new how? We have been sending data using audio cards between computers for decades. I remember cranking up the cassette tape drive to load programs into my TRS-80 in high school and hooking up to an acoustic modem to get on dial up AOL. Recently I've used my computer to talk to another computer halfway around the world though an RF link provided by my ham radio. Hams routinely transfer "data" over packet, PSK and other modes over audio links using their audio cards in their computers.
Oh, wait, so the ad-hock links are the new thing? Um, not so fast there either. Mesh networks have been around long enough to fall in and out of favor once or twice. Ham radio operators might know about HSMM Mesh http://www.broadband-hamnet.org/ has been doing mesh networks for nearly a decade, and the protocol it uses internally wasn't the first. So this is not new..
I conclude that NOTHING here is new, except perhaps combining an audio network link with a mesh networking protocol.... But I don't see that as ground breaking..
Maybe you missed the "covert" part. If your computer was hissing and whining away like a 56kbps modem to talk to the computer in the room next door, you'd probably notice.
They are often required to sign non reversing engineering requirements and non-review agreements, which is an NDA by another name.
CAD tools are notorious for this.
Yes, but you're not typically required to do so when you purchase the latest Batman movie.
>With lack of copyright, there would be major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs.
There are major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs.
There, fixed that for you.
Customers aren't generally required to sign NDAs, because copyright law provides protection without requiring them. Sorry that point went so far over your head.
I would assume they concluded that settling would be less costly than fighting it. The fact that it was settled for an undisclosed amount probably suggests that the original author was asking something more reasonable then what was awarded in court.
The problem with copyright is that dissemination or distribution in and of itself is a violation so even if I swore to you that I owned the copyright and you could distribute it, you are not entirely off the hook if I was not truthful. Of course any sane court would likely keep any penalties as low as possible if you could prove that. Some juries might even toss it out because of the mens rea involved but it would require going to court and risking losing the case.
No, if I can prove you swore to me that you owned the copyright and I could distribute it, I'm entirely off the hook... Or technically I am off the hook, and you're the one who's boned.
The rule is Rule 14, which states that if I'm sued, I can bring you in as a third-party defendant if you're liable for all or part of the claim against me: I infringed the copyright, but because of your fraud, you're responsible for my actions. The best part is, if I can prove that tiny piece of it - show my contract with you, for example - I can walk away from the copyright infringement case and never have to show up in court. If "I" lose that one, then even if I owe the plaintiff a million dollars, you're 100% liable to me, so really, it's you who loses. Hence why I could take a default judgement and not care.
This also comes up in insurance proceedings. If you sue me and I'm fully covered by insurance, I'll just bring in my insurance company and let them defend the suit if they want. I don't care because, win or lose, I don't pay anything.
However, it is also based on cultural relevance. It's enough time for the original work to be commercially exhausted
Mix stations, broadcasting "the greatest hits of the 70s, 80s, 90s, and today!" frown at your shenanigans.
but for further adaptations (eg. for music, samples or covers) to remain relevant. This is the approximate amount of time it takes for a series reboot to occur, or for a movie to be remade, if we want to keep it relevant to your particular field instead of mine.
But you have a point here, but your solution isn't tailored to your point. Copyright involves a bundle of rights - the right to copy and distribute, as well as the right to make derivative works. There's a huge argument to be made that the exclusive period for making derivative works should be less, as you point out - there are series reboots, remixes, sampling, etc. and if the original author isn't going to do it, then we shouldn't have to wait a century. Where would electronica or hip hop be without sampling?
But that's sampling and reboots and the like... Copying and distribution of the original work? That doesn't have the same moral argument for the creation of new works... If you want to copy and redistribute Star Wars - and mind you, the original Star Wars, not your Minecraft-based recreation that replaces stormtroopers with zombies- then why should you get to do so for free, merely because a decade has passed? The original is certainly still in publication, and there's a market for it.
Basically, it's the difference between an homage and parody, and plagiarism. We do want to protect people who make something new based on the bones of something that existed before. But simply copying something and presenting it as your own? Why should we give you any protection, and why should we harm the original author when you're just a copycat?
That's why I'd advocate a split copyright term. Life+70 if you want for the copying and distribution of the original work, or whatever other term makes sense. 5-10 years for derivative works. It even fits with many of your justifications that aren't based on just a "why should people make money from their creations for years" complaint:
Imagine film students learning their craft by re-editing classics. Imagine films being translated and dubbed into any language with a speaker who cares enough to translate it.
with lack of copyright there would be nothing from stopping reverse engineering and modifying the programs. that field would be far more advanced by today if we didn't have copyright(and already, despite copyrights, we're seeing hobby projects which disassemble amiga code and turn it into x86 binaries with added functionality like opengl graphics).
With lack of copyright, there would be major non-disclosure agreements and contractual restrictions against reverse engineering and modifying the programs. Sure, you could reverse engineer something without running afoul of copyright law, and they'd take your house and garnish your wages for the next hundred years since it may not necessarily be dischargeable in bankruptcy.
Wheels is a new concept. Inflatable tires on the wheels is a new concept. Springs on the axle is a new concept. Steerable wheels is a new concept. That just about covers it. Most of the rest of the improvements around the wheel and axle are derivative, unworthy of a patent. They don't advance the state of the art enough to merit giving their creators exclusive control.
The differential drive weeps at you.
That's what patents are about, right? They're supposed to encourage leaps of brilliance by making it practical for their inventors to profit off them. If there's no genius, just plodding iterative improvement, there shouldn't be a patent.
Not at all. You want a reward for a leap of brilliance, go get a Nobel. Patents are - to use Jefferson's term - an "embarrassment". And bear in mind that he was not only the drafter of the first patent act, but the first patent examiner. Patents are a monopoly, grudgingly granted by society, in exchange for public disclosure of the invention. They aren't a reward - they're a payment offered to the inventor to encourage them to destroy trade secrets. Absent patents, inventors would keep their ideas as quiet as possible (this is business, not academia, after all). There would be (and have been in the past, and are in non-patent regimes) major non-disclosure agreements, intense security against corporate espionage, etc. Instead of all of that inter-corporate fighting, society has said "we'll give you a time-limited monopoly in exchange for destroying your trade secret". But it's certainly not a reward. You can make the greatest invention ever known to man, and if you don't disclose it, you deserve nothing.
With that in mind, plodding improvement is exactly what the patent system is about. Say a flash of genius comes about once every hundred years... we don't need to encourage public disclosure, because it's so rare and major that you'll get your damned Nobel prize and publish papers for the fame of it. But what about the invention that takes a mere hundred man-hours to make? Well, if you keep that secret, and you have a thousand competitors in your field, they have to spend a combined hundred-thousand man-hours duplicating what you've already done. That's a huge waste for society. If instead you reveal your invention and they pick up a simple license, then those 99,900 hours may be spent on new inventions, encouraging innovation.
Basically, if you're the only person who could ever come up with an idea, then giving you a patent is useless to society. On the other hand, if you're the first person to come up with an idea by a non-negligible time period, then giving you a patent in exchange for you telling everyone else how to make and use the invention is very beneficial to society. The value of the patent to society can almost be calculated in terms of hours-to-produce/rarity: the more hours something takes, the better, but only if it's not so rare that you're the only person who will ever spend those hours.
JPEG was based on the notion that digital photographs were not pixel perfect to begin with, so why maintain that non-perfection perfectly if not doing so would make high compression rates possible. Acceptably lossy compression. This was a fresh, novel concept. The invention based on it deserved patent protection.
MPEG and MP3 took the then-well-known concept of lossy compression and ground on it until they came up with something that worked well for video and audio. After all, if the concept works for one media type, it should work for others, right? No unexpected originality, no unforeseen change to the state of the art, just grinding. Should not have been patentable.
I disagree completely. JPEG didn't patent the notion of lossy compression, nor were the MPEG and MP3 patents trying to claim "JPEG, but for video/audio" or a similarly broad notion of lossy compression. MP3, for example, exploits psychoacoustic masking across both frequency and temporal windows. It has nothing to do with JPEG wavelet-based compression.
Under your definition, a cart with wheels would be a new concept, worthy of a patent, but every vehicle since then, from the Model T to the Tesla Roadster to the Space Shuttle would simply be "the same concept, but at different speeds/altitudes" and unworthy. That's simply not true at all.
I think you're confused about what patents claim. The section at the end of each patent, with individual numbered sentences, are the claims. Patents don't claim "notions", but specific inventions, bounded by limitations in those claims.
That's why I used the word "justify" and not the word "prove."
Right now the presumption is that if a half-hearted and formulaic search turns up no prior art then the invention is novel. I want to turn that on its head: the invention is presumed obvious until you explain why it isn't in terms folks in your field agree with. Who are the people in your field and why aren't they half a step behind you?
Most applications will have something like that in the background and summary - the background says "here's what most folks in the field think, and here's a problem they've run into" and the summary is "here's how we solved it and why we're so cool".
Now, you can (and rightfully should) be skeptical of such an explanation, since the applicant is going to be biased in their own favor, but if you're not just going to plug your ears and say "I'm not going to believe you", you have to have some sort of objective standard for when they've overcome that presumption and it falls to the Examiner to rebut them.
There's an additional wrinkle - you say "in terms folks in your field agree with"... Folks now? Or folks at the time of writing the application. If something sits in a backlog at the USPTO for 3 years, during which time, the applicant has been marketing and selling their invention to everyone, all the folks in the field will now say "yeah, that's obvious, we've seen it for the past three years." How do you determine what "folks in the field" think back at the time of filing? Currently, they use prior art, since it represents all published knowledge in existence at the time, without any danger of accidentally using hindsight.
I've read some of the software patents. I have better than average skill in the art and I couldn't implement the software described from *any* of them. Not. A. Single. One.
They all include flow charts... Are you saying you couldn't write a program if you were given a flow chart?
Real patent reform has three key parts:
1. Fix "obviousness." The courts didn't like the examiner affirmatively finding that something was obvious so turn it around and require the applicant to justify why anyone of average skill seeking the same result would not have found the same method. Require the examiner to affirmatively find that it isn't obvious. No justification = no patent.
Unfortunately, I think you're asking someone to prove a logical negative: the applicant has to prove that something isn't obvious by showing... what, exactly? Definitive proof that no one has ever thought of the something?
2. A person of average skill in the art should be able to implement the technology from the contents in the patent. Start rejecting packets where that isn't true. Vague or stilted language in the application = no patent.
3. Patent duration should be from application, not from the grant. Effective protection starts with the application. You can't sue anybody until after the grant, but no one dares use the tech unless they're sure the patent won't be granted. That's been abused by delaying the final grant for years or even a decade.
These are both good suggestions, and, of course, they're already in the statutes. 35 USC 112 requires that the patent have a written description that enables one of ordinary skill in the art to make and use the invention. And patent term is calculated as 20 years from filing (or 20 years from the earliest priority date, if the application claims priority to an application before its filing date).
Translation: "We love the absurd and unfair amount of power that the broken patent system gives us over any and all future start-ups and rivals, and will oppose any legislation that doesn't maintain the status quo."
No - see the summary:
An IBM spokesman told Politico, "While we support what Mr. Goodlatte's trying to do on trolls, if the CBM is included, we'd be forced to oppose the bill."
The proper translation is "yes, we want to stop the troll problem, but this nuclear option you've got goes too far. We like all of your other proposals." Just because you don't like 5% of a proposal doesn't mean you necessarily hate 100% of the proposal.
"If they don't like it, there are plenty of other jobs out there". There's always that risk I suppose. It's hard enough to get good people to go into law enforcement. Let's make it even less appealing.
I'm willing to take the tradeoff of driving away potential cops who won't go into law enforcement if they have to follow the law.
On the other hand we shouldn't forget that coppers are also persons with a right to privacy and that the ones who pick up drunks, get called to petty disputes and car accidents are notoriously underappreciated, underpaid and overworked with a high risk for burn-out. They do deserve our appreciation for that.
No, they are not. They are agents of the state, and the state has no right of privacy. When they're off duty, you're absolutely right - these GPS trackers should not be implanted in their bodies, sewn into their street clothes, or placed on their personal vehicles. However, when they're on duty, they are employees and state actors and have no right to privacy. If they don't like it, there are plenty of other jobs out there.
Right, but is it complete? Is it well indexed and searchable? Is it blocked by any corporate firewalls?, any mobile firewalls in places like the UK because of explicit content?
A reduced number of sites still means a reduced amount of ability to search for your product.
But the sites that are being blocked tend to be the ones with malware, obnoxious popups, and weird javascript. A reduced number of sites doesn't actually impair your search ability, if you're only getting rid of the chaff.