Which is also generally obfuscated to hell, from the ones I have read. If normal patents include a drawing, software ones should include some source.
Then some people might think that only that particular language was covered or only those variable names. How about something a little more widely applicable, like a flow chart or pseudocode?
I thought that was their point I am sorry if I was mistaken.
Where is the information? Without it simply conveying information it seems to miss the whole point.
Nope. The Claims are there to define the metes and bounds of the patent owner's property. The rest of the application is there for conveying information about the invention.
Think of it this way - you own a house and some land. The deed is recorded at the registry of deeds, and includes very precise language defining the metes and bounds of your land - so many feet and inches this direction, turning to this angle, so many feet and inches that way, etc. However, that deed doesn't tell you that your house is blue, or has three bedrooms, or that you live there with your dog. To find that out, someone has to go look at the actual property, not just the deed defining it.
In the same way, the claims just say what the patent owner owns... but to get the knowledge, you have to read the rest of the document.
If the claims are incomprehensible then the patent has no value. How many times has it been stated that reading the summary doesn't actually tell you what the patent is up to?
Summaries are often vague, and from some companies the summary doesn't change between patents though the claims do. That's broken.
... you could always read the rest of the patent, you know. Given a hundred or hundred-fifty page document, why should it be a requirement that you have to extract all of the knowledge in it merely by reading the last two or three pages, or a few paragraphs up at the front?
If the claims are incomprehensible they fail to make the trade of sharing knowledge in exchange for a limited time monopoly. How is that legal?
Because the claims are only one or two pages of the entire disclosure. Why should the requirement of what part of the patent shares knowledge be so artificially limited?
The rejection states that "iPad" itself is also merely descriptive. If this holds up (and I doubt it will), Microsoft could make a "Microsoft iPad", and LG, Samsung, Asus, would also be able to make "iPad" devices of their own. This would be a disaster for Apple, but I seriously doubt it is going to happen.
Specifically, the rejection states that "iPad" itself is also merely descriptive, but Apple can submit evidence to show that that term has acquired secondary meaning and distinctiveness in the marketplace... and that other registered mark is conclusive evidence.
while a patent claiming "adding a first number to a second number to generate a third number" would be an unpatentable algorithm, a patent claiming "executing an adder by a processor of a computing device, the adder configured for adding a first number to a second number to generate a third number, the third number stored in a memory of the computing device" would not be an unpatentable algorithm, as it is tied to a specific machine.
Read the claims of the Uniloc patent (which was invalidated) -- some of them are similar to your example of patentable material.
Nope, none are. The only ones that are close are the apparatus claims that claim a circuit but the specification doesn't define the apparatus or circuits in hardware terms, and so can be read as, for example, a human and brain.
First of all the Groklaw statement you quoted was clearly opinion, it wasn't presented as interpretation of the court ruling at all.
... when I said "Groklaw... is predictably bad on analysis," did you think I meant the court's analysis? Sorry, I thought it was clear that I was referring to Groklaw's statements, not the court's.
Also you're entirely wrong any way.
Part of the ruling quoted by Groklaw:
“[I]nventions with specific applications or improvements to technologies in the marketplace [may not] be so abstract that they override the statutory language and framework of the Patent Act.” Research Corp., 627 F.3d at 869. However, according to the patent itself, the claims’ novelty and improvement over the standard is the rounding of the floating-point number before, rather than after, the arithmetic computation. ‘697 Patent Col. 4:32–48. So, as in Flook, Claim 1 merely constitutes an improvement on the known method for processing floating-point numbers. Id. at 595 n.18. Claim 1, then, is merely an improvement on a mathematical formula. Even when tied to computing, since floating-point numbers are a computerized numeric format, the conversion of floating-point numbers has applications across fields as diverse as science, math, communications, security, graphics, and games. Thus, a patent on Claim 1 would cover vast end uses, impeding the onward march of science. Benson, 409 U.S. at 68. Under Flook, the improvement over the standard is insufficient to validate Claim 1’s otherwise unpatentable subject matter."
So novelty and non obviousness were ruled on by the court... that's what Flook is all about.
Nope, you're wrong. Re-read that paragraph again: the court is saying that, even according to the patent, the novel and nonobvious subject matter in the claims is "merely an improvement on a mathematical formula," and is therefore not patent eligible under Bilski. At no point does the court rule on novelty or obviousness or state that the patent claims were not novel or invalid under 35 USC 102, or were obvious or invalid under 35 USC 103.
I mean, really, "improvement" should be a hint to you that they're not ruling that the claims were not novel. By definition, an improvement is not anticipated by the device or method it's improving. And if you're saying that the court held that the claims were novel, that's based only on a statement in the patent itself, and frankly, with the deference due to the non-moving party in summary judgement, is worth all the legal weight of the period at the end of this sentence.
And furthermore, you're misreading Flook. Flook was another 35 USC 101 case about patent eligibility, not novelty or nonobviousness. From the first line of the syllabus:
Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under 101 of the Patent Act.
The groklaw article wasn't written by PJ, it was written by Mark Webbink. RTFA. MW was Redhat's lead lawyer for *years* and he may still be.
Hadn't noticed that. Good point. According to the USPTO practitioner search, he's also not a patent attorney. Does Groklaw have any actual patent practitioners they can call on to explain some of this stuff to them?
... available here has more details and quotes from the decision, but is predictably bad on analysis. In particular, in spite of PJ's bluster about how this wasn't "new, novel, non-obvious" and it's "unbelievable" that the USPTO would allow the claim, the decision had nothing to do with novelty or nonobviousness. Rather, the decision was strictly on patent eligibility under 35 USC 101, relying on the Supreme Court's Bilski decision: merely abstract ideas, not tied to a machine or transformative of matter, are unpatentable subject matter and exempt from the patent act, regardless of how new they are.
In other words, you could have the most novel and nonobvious algorithm in the entire world, and the USPTO could literally spend the entire GDP of the United States searching for prior art and interviewing every engineer, mathematician, and programmer in the world, to be told unanimously that this was a literally once-in-a-lifetime idea with not even a hint of relevant prior art out there, and it still would be unpatentable if it were just an algorithm. You could invent the mathematics that allow time travel or teleportation, winning the Nobel prize for your utter genius, and nonetheless, if it's just the math, it's not patent eligible.
So, this has nothing to do with novelty or obviousness, and, since the Bilski decision came out long after this patent was issued, there's nothing unbelievable about the USPTO thinking it was patent eligible. That was the state of the law back then. It's a good thing it's changed, but that doesn't mean that anything done prior to that change is an unbelievable departure from common sense.
But, don't most machines do things that can already be done by hand...just much faster? I'm not trying to be combative. It just seems that this is a questionable criteria to use for patentability.
The guy that invented that little rubber cover that goes over the connector of good ethernet cables to keep the clip from catching on all the other cables (best invention EVVARR!!). Well, that was something that you could already do by keeping your finger on the clip, but I think the invention was invaluable and the guy deserved some patent protection.
Yes, and the unpatentability of software is actually based on a policy decision that most anti-software patent people miss. Specifically, one of the remedies for patent infringement is an injunction. If your patent claims can be fully performed by hand - or in someone's mind - then you can (theoretically) get an injunction to prevent people from thinking about something. Not only does that not actually work in practice, it also creates a thoughtcrime, which the courts are loathe to do.
Instead, under the Bilski decision, an idea has to be non-abstract, which typically means that it transforms matter or is tied to machine. So (novelty and obviousness aside, for the sake of clarifying the distinction), while a patent claiming "adding a first number to a second number to generate a third number" would be an unpatentable algorithm, a patent claiming "executing an adder by a processor of a computing device, the adder configured for adding a first number to a second number to generate a third number, the third number stored in a memory of the computing device" would not be an unpatentable algorithm, as it is tied to a specific machine.
Now, of course, the method still has to be novel and nonobvious, and merely adding the computing device won't make it so. However, if you have a novel and nonobvious algorithm, it can still be protected, albeit in a way that doesn't create a thoughtcrime or prevent someone from performing the algorithm mentally or on paper.
The isolated genes do not exist in nature, and never have. "Products of nature" is not read so broadly as to include any combination of hydrogen, carbon, or other elements, regardless of what isolation or manipulation you perform on them, or no machine would ever be patentable either, by definition.
Using this logic, wouldn't trans-uranic elements also be patentable, since they are all unstable and thus not found in nature? To my knowledge, nobody has ever suggested these elements could possibly be patented, but I don't see why not, given the similarity of the circumstances.
And that's where their investigation ends. Which is why I think their Chris Crawford example is bogus. Because all it did was lead to shell companies who were pursuing litigation and IV was an "interested party" on the docket.
What makes that "bogus"? The fact that IV apparently uses shell corporations suddenly means that the patent doesn't exist, or that Crawford doesn't exist, or that he didn't make money from the sale? I think you're confusing two topics - taxes and patents.
But yeah, tell who ever is paying you to come on Slashdot and defend these guys that it's not going to work.
Troll much? I disagree with you, so therefore I must be a shill. It's unusually telling that you jump straight to ad hominems, since you have no substantive response.
First, titles are not patent claims.
I don't think that was ever said on that episode and, if you pay attention, they're just highlighting that five thousand people were trying to patent a particularly thing that was very similar in achieving the same overall goal.
Yeah, like look at all those "wheels", trying to achieve the same overall goal of moving something. It's weak journalism.
And they were right and the reason they did that was to show the listener that it's impossible for the small time inventor to read over these things and stay up to date on inventions -- take what you want from that, you obviously took it to the level of someone who's just skimming this looking for out of context errors. Congratulations!
I copied and pasted from your transcript, so I'm not sure what "out of context" complaint you have... particularly since you didn't provide any context. Congratulations, you're a hypocrite.
In fact, most of that This American Life episode was pretty poor, research-wise.
"Most of it"?! You didn't even listen to it, it's an hour long and you cite one out of context sentence!
... or, like many NPR listeners, I listened to it when it first aired. I also was in the thread here on Slashdot that we had about it, two years ago when it first aired. Did you really think that you just discovered this?
How can you possibly say that, they actually went to Marshall, Texas, they actually did legwork
Wow! A journalist got on a plane! Everything they said MUST be true!
they actually tried to ask questions and they got shut down by everyone, Myhrvold (autocomplete wants me to put Voldemort in there btw) wouldn't even talk to them and now you're jumping all over me for trying to answer these questions they uncovered?
Except that they didn't get "shut down by everyone". They interviewed a patent attorney, Rick McLeod, but curiously, didn't ask him any of their patent-related questions, like the one about the titles or the three applications with the same name. Instead, they apparently only asked him to find invalidating prior art for the Crawford patent. They get three quotes from him, nothing specific, and then they boot him from the show. That's terrible researching.
I can't believe it, you're some kind of anti-investigative journalism person?
No, troll, I'm a pro-investigative journalism person, as in, I like journalists who investigate. Not ones who travel around on junkets and claim they're doing "legwork", but never bother asking questions of experts, or even asking the same question of two different people to verify that they get the same answer. You know, stuff that used to be considered the lowest, simplest requirement for a news article, before NPR decided that the whole "read someone's press release a la Fox News" style was cheaper and easier.
"This American Life" covered Intellectual Ventures extensively about two years ago (PDF transcript here audio here) in an episode called "When Patents Attack!" And Joe Chernesky referred them to Chris Crawford as an example of where Intellectual Ventures had helped an inventor license his/her patents to customers. Since the Chris Crawford lead largely turned up to be bogus, could you refer us to a few small time inventors that Intellectual Ventures has helped license their patents to licensees without having to get into extensive litigation?
I'm not sure that's even remotely reasonable. From your linked PDF:
We found Chris Crawford in Clearwater, Florida, but as predicted, he never responded to our many e-mails and phone calls. You will never hear from him in this story.
If someone refuses to talk to you, that doesn't give you license to say that their story was turned up to be bogus. You may assume that it is, and you may assume various negative things about them or their credibility, but you haven't actually shown anything.
In fact, most of that This American Life episode was pretty poor, research-wise. Consider this quote:
Alex: And on David Martin’s computer screen, we see lots of patents with slightly different language, but covering essentially the same idea. For example patent number 6003044 for “efficiently backing up files using multiple computer systems.” Patent 5933653 for “mirroring data in a remote data storage system.” And then there were three different patents with three different patent numbers but that all had the same title, “System and Method for Backing Up Computer Files Over a Wide Area Computer Network.”
First, titles are not patent claims. There are literally tens of thousands of patents titled "wheel" and hundreds of thousands titled "engine". That doesn't mean they're all claiming the same invention. In fact, the title has no legal weight whatsoever.
Second, those "three different patent numbers that all had the same title" are really one application and two continuations. By definition, they have to have the same title, so it's really just spreading so much FUD to complain about it.
One of my favorite radio shows called "This American Life" covered Intellectual Ventures extensively about two years ago (PDF transcript here audio here) in an episode called "When Patents Attack!" They tried to visit Oasis Research offices at 104 East Houston Street, Suite 190 in Marshall, Texas but found them largely vacant. What is IV's relationship with Oasis Research and Lodsys and why are these empty offices in Marshall, Texas? What sort of partners are Lodsys and Oasis Research? Customers? Licensees?
If IV isn't related to Lodsys and Oasis Research, then I don't see how Myhrvold could possibly answer this question. Is this a witch hunt or a real question?
"The isolated genes do not exist in nature, and never have."
I would not be so sure. They got there in the first place somehow... we know that in some cases it was via mutation, in other cases genes were inserted by viruses, etc.
As I pointed out above, I could use the same argument to say that if I pull a rose bush out of the ground it isn't a "product of nature" either. After all, rose bushes do not normally exist without topsoil.
That would be an apt analogy if, typically, the rose bush disintegrated as soon as you pulled it from the ground, and you had to take extreme measures to stabilize it.
Find a company which "owns" a gene that controls some specific disease, like a cancer. Now, everyone with that disease files a lawsuit against the patent holder. They own it, they should be liable for the damages it is causing by being released into the general population. By claiming a patent, this implies invention, therefore we can infer liability!
After a few multi-million dollar lawsuit awards, no one would want to "own" a gene. Problem solved.
... unless the company says "I have no idea what you, some Slashdot submitter, or a journalist with some crappy liberal arts degree and no science education since 8th grade is talking about. Of course we don't 'own' the gene that's in your body, and you'd have to be a complete idiot to think we did, or even think we thought we did. What we own is a specific isolated gene, one that couldn't possibly exist in a human. Are you human? Then GTFO. Oh, and here's a bill for your frivolous lawsuit attempting to sue us for damages for something we never owned nor claimed to own."
How did all these patents get issued, when legally in the U.S., patents cannot be issued for products of nature?
The isolated genes do not exist in nature, and never have. "Products of nature" is not read so broadly as to include any combination of hydrogen, carbon, or other elements, regardless of what isolation or manipulation you perform on them, or no machine would ever be patentable either, by definition.
"The U.S. Supreme Court will review genomic patent rights in an upcoming hearing on April 15. At issue is the right of a molecular diagnostic company to claim patents not only on two key breast and ovarian cancer genes — BRCA1 and BRCA2 — but also on any small sequence of code within BRCA1, including a striking patent for only 15 nucleotides. "...
"This means if the Supreme Court upholds the current scope of the patents, no physician or researcher can study the DNA of these genes from their patients, and no diagnostic test or drug can be developed based on any of these genes without infringing a patent," says Dr. Mason.
* Personally I believe the supreme court will throw out these patents.
While the Supreme Court could go either way in Myriad, if upheld, it will not bar physicians or researchers from studying the DNA of these genes from their patients, nor will it bar any drugs from being developed. And while yes, many diagnostic tests will infringe the patent, (a) not all will, and (b) maybe the BRCA1 discoverers deserve some payback for the tens of millions of dollars they spent to discover that that gene was relevant, at least for the next few years until the patent expires, at which point it will be fair game for all.
While I don't know law that well, submarine patents are a well-known concept. From your description, they seem impossible. So from your perspective, what are submarine patents, and how do they differ from continuations?
Submarine patents were a huge problem. Prior to 1995, (a) patent applications were not published until they were issuing, and (b) patents lived for 17 years from issue. So what you could do, if you were an evil sneaky bastard, would be to file an application in, say, 1970, and drag your heels on prosecuting it, asking for various examination delays and extensions. Say it issued in 1980 and published then (to expire in 1997)... You file a continuation application just before it issues, and again drag your heels. Maybe now it issues in 1985 and pops up, expiring now in 2002. And again, you file a continuation, and drag your heels further. And maybe the new one issues in 1990... twenty years after you first filed, and not expiring for another 17 years.
So, basically, a submarine patent is a continuation patent on old technology that only recently has issued and published (popping up to the surface). They're tough to invalidate, since the priority date is so long ago, and you need prior art that pre-dates that original filing date, but they can last for so long that everyone believes the technology is public domain and its in widespread use.
But this got fixed in the TRIPS treaty back in 1995. All patent applications publish after 18 months, with a few minor exceptions, and last for up to 20 years from the filing date, no more.
It also got fixed in a second way - courts started applying the laches doctrine, which says that if you intentionally delay getting your patent so as to sucker people in to infringing it, then you lose the ability to enforce it.
Technically, there are still a few submarine patents out there with pre-1995 priorities, but they're disappearing.
In other words, much of the patent (ignoring the wireless power bit) is covered very well by existing software and hardware stacks. It's not even an innovative use of either.
Certainly seems that way... But, otoh, that implies that you could strike all of the data transmission bits from the claims, have a claim that's just about wireless power transmission and handoffs, and you may be patentable. And if so, then adding the data stuff back in doesn't take away from patentability. A Delorean with a Mr. Fusion and time travel capability is still novel and nonobvious, even if a Delorean itself is well known.
Of course does the list contain duplicates. Patents are usually limited to specific jurisdictions. Patents granted by the US patent office are only valid in the US. That is why companies file the same patent in many jurisdictions.
That's absolutely correct. However, there's another type of "duplicate" that Groklaw mentions, which is a continuation application:
But even in the US-only context, you see the same title more than once. Those are continuations. What's that?
It's where the really elaborate machinations live, and the submarine patents. It's how you argue with the USPTO when it doesn't approve your patent application or if it does how you keep adding to what you already got approved from the USPTO, something you can do over and over to time indefinite... Sigh. In other words, that's where you try to get more than you had in the beginning, maybe as you see what others are inventing so you can sue them. Blech. I so hate patent law.
Well, of course PJ hates patent law, since her understanding of it is so flawed. In reality, continuation applications are new applications, tied to the parent, that are typically filed to claim an invention in a slightly different way, to fix errors in the claims, or to address other unclaimed aspects of the invention. For example:
1) You claim A+B+C+D+E. The patent office determines it's patentable because even though A+B+C is known, no one has ever done D+E and it's not obvious to do so. So, in a continuation, you claim just D+E, leaving out the unpatentable cruft;
2) You claim A+B+C+D+E, but without realizing it, you accidentally said that A is ~B. Whoops. Pay the filing costs all over again, and fix the error;
3) Your patent application describes A+B+C+D+E but also F+G+H+J. You did this to save drafting and filing costs by bundling it all into one giant application, but you didn't have enough money to pursue both inventions initially. Now, a few years later, you file a continuation claiming F+G+H+J so that you can pursue it.
PJ's complaints, however, are incorrect: these aren't submarine patents, since continuations are published almost immediately. You also can't add anything to what the parent application contained. Change anything beyond a misspelled word, and the application is rejected as containing new matter. And finally, you can't do it for time indefinite, since the continuations all expire on the same date as the parent. If you file an application on Jan 1, 2010, any patents issuing from it or the continuations expire on Jan 1, 2030. So, while you can keep filing continuations right up until Dec 31, 2029, they all expire on that final day, so you really aren't extending any rights temporally.
For someone who writes a lot about patents and talks to a lot of professors and patent lawyers, PJ sure misses some fundamental details.
I'm not ranting at you. I'm ranting about the patent.
Not that these claims are patentable as is, but it seems to be more about smooth handoff between the first base station and second base station.
That's the irritating thing about these patents. It doesn't actually cover how to do the smooth handoff (a difficult problem with many extant solution), it just says "it happens by magic and I invented it".
And? It's just a patent application and Bezos is entitled to write whatever he wants in it. But, if any other piece of prior art does something remotely similar (and I'm sure we can find something), then he'll have to amend his claims to claim a specific way of doing it... and if all his specification says is "it happens by magic," then he won't be able to make that amendment.
Also, wouldn't the VNC or X11 or RDP or a whole variety of other protocols running over 802.11 in infrastructure mode, or GSM/3G/whatever cell data cover the whole part of wireless remote image display with smooth handoff?
The GSM/3G stuff is probably closer - VNC/X11/RDP are all session layer protocols, and this is hand off at the data layer. But you also need to find the power handoff, which might be more complicated. Most remote power stuff is still tied to a single area and source.
It relates to automatic cable tensioning:
Now, I'm really not an expert in this area. But this whole area itself is not new, and I'll bet it's been patented to death 50 years ago by mechanical engineers. There are thousands of different spooling systems out there for thoudands of different tasks. We'll see...
Agreed. It may be one of the reasons it's not actually claimed in this application.
I think I would rather my lawyers tell ICANN to not let someone buy a gTLD with my trademark in it.
Particularly because this system seems to be that you have a right of first refusal to buy a gTLD with your mark when someone else tries to buy one... and if you refuse to pay whatever ICANN asks, not only does the other guy get the gTLD, you waive all rights against them. In other words, this seems to waive your rights to a UDRP dispute and seizure of the domain.
It's more common at large tech companies to claim that one of your engineers invented something after careful study in the lab etc etc. Then you have them file a patent, but with assignment to the company. You don't typically put the CEO's name on the patent, because it's not so plausible that random things the CEO sketches out are properly patentable inventions that have had real technical work go into them.
That's not necessarily true, as it depends on what's in the claims. The inventor is the one (or ones) who fully conceived of the invention as recited in the claims. The engineer may reduce the invention to practice and figure out the technical details, but unless they've specifically contributed to a claimed idea, then they're not an inventor on that patent.
So, for example, Steve Jobs can come up with the idea for the design of the iPad and then hand it off to an engineer to figure out how to make all of the internal components fit. Jobs is still the inventor of the design patent. The engineer may, instead, be an inventor of a novel form factor of battery.
Slashdot Mirror
Which is also generally obfuscated to hell, from the ones I have read. If normal patents include a drawing, software ones should include some source.
Then some people might think that only that particular language was covered or only those variable names. How about something a little more widely applicable, like a flow chart or pseudocode?
I thought that was their point I am sorry if I was mistaken.
Where is the information? Without it simply conveying information it seems to miss the whole point.
Nope. The Claims are there to define the metes and bounds of the patent owner's property. The rest of the application is there for conveying information about the invention.
Think of it this way - you own a house and some land. The deed is recorded at the registry of deeds, and includes very precise language defining the metes and bounds of your land - so many feet and inches this direction, turning to this angle, so many feet and inches that way, etc. However, that deed doesn't tell you that your house is blue, or has three bedrooms, or that you live there with your dog. To find that out, someone has to go look at the actual property, not just the deed defining it.
In the same way, the claims just say what the patent owner owns... but to get the knowledge, you have to read the rest of the document.
Any possibility of a cookbook relating to the science behind baking? And if you're already working on one, any rough year for an ETA?
If the claims are incomprehensible then the patent has no value. How many times has it been stated that reading the summary doesn't actually tell you what the patent is up to?
Summaries are often vague, and from some companies the summary doesn't change between patents though the claims do. That's broken.
... you could always read the rest of the patent, you know. Given a hundred or hundred-fifty page document, why should it be a requirement that you have to extract all of the knowledge in it merely by reading the last two or three pages, or a few paragraphs up at the front?
If the claims are incomprehensible they fail to make the trade of sharing knowledge in exchange for a limited time monopoly. How is that legal?
Because the claims are only one or two pages of the entire disclosure. Why should the requirement of what part of the patent shares knowledge be so artificially limited?
The rejection states that "iPad" itself is also merely descriptive. If this holds up (and I doubt it will), Microsoft could make a "Microsoft iPad", and LG, Samsung, Asus, would also be able to make "iPad" devices of their own. This would be a disaster for Apple, but I seriously doubt it is going to happen.
... except for the fact that Microsoft, Samsung, Asus, and LG would be infringing Apple's Trademark Reg. No. 3776575 for "IPAD".
Specifically, the rejection states that "iPad" itself is also merely descriptive, but Apple can submit evidence to show that that term has acquired secondary meaning and distinctiveness in the marketplace... and that other registered mark is conclusive evidence.
Read the claims of the Uniloc patent (which was invalidated) -- some of them are similar to your example of patentable material.
Nope, none are. The only ones that are close are the apparatus claims that claim a circuit but the specification doesn't define the apparatus or circuits in hardware terms, and so can be read as, for example, a human and brain.
First of all the Groklaw statement you quoted was clearly opinion, it wasn't presented as interpretation of the court ruling at all.
... when I said "Groklaw... is predictably bad on analysis," did you think I meant the court's analysis? Sorry, I thought it was clear that I was referring to Groklaw's statements, not the court's.
Also you're entirely wrong any way.
Part of the ruling quoted by Groklaw :
“[I]nventions with specific applications or improvements to technologies in the marketplace [may not] be so abstract that they override the statutory language and framework of the Patent Act.” Research Corp., 627 F.3d at 869. However, according to the patent itself, the claims’ novelty and improvement over the standard is the rounding of the floating-point number before, rather than after, the arithmetic computation. ‘697 Patent Col. 4:32–48. So, as in Flook, Claim 1 merely constitutes an improvement on the known method for processing floating-point numbers. Id. at 595 n.18. Claim 1, then, is merely an improvement on a mathematical formula. Even when tied to computing, since floating-point numbers are a computerized numeric format, the conversion of floating-point numbers has applications across fields as diverse as science, math, communications, security, graphics, and games. Thus, a patent on Claim 1 would cover vast end uses, impeding the onward march of science. Benson, 409 U.S. at 68. Under Flook, the improvement over the standard is insufficient to validate Claim 1’s otherwise unpatentable subject matter."
So novelty and non obviousness were ruled on by the court ... that's what Flook is all about.
Nope, you're wrong. Re-read that paragraph again: the court is saying that, even according to the patent, the novel and nonobvious subject matter in the claims is "merely an improvement on a mathematical formula," and is therefore not patent eligible under Bilski. At no point does the court rule on novelty or obviousness or state that the patent claims were not novel or invalid under 35 USC 102, or were obvious or invalid under 35 USC 103.
I mean, really, "improvement" should be a hint to you that they're not ruling that the claims were not novel. By definition, an improvement is not anticipated by the device or method it's improving. And if you're saying that the court held that the claims were novel, that's based only on a statement in the patent itself, and frankly, with the deference due to the non-moving party in summary judgement, is worth all the legal weight of the period at the end of this sentence.
And furthermore, you're misreading Flook. Flook was another 35 USC 101 case about patent eligibility, not novelty or nonobviousness. From the first line of the syllabus:
Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under 101 of the Patent Act.
The groklaw article wasn't written by PJ, it was written by Mark Webbink. RTFA. MW was Redhat's lead lawyer for *years* and he may still be.
Hadn't noticed that. Good point.
According to the USPTO practitioner search, he's also not a patent attorney. Does Groklaw have any actual patent practitioners they can call on to explain some of this stuff to them?
In other words, you could have the most novel and nonobvious algorithm in the entire world, and the USPTO could literally spend the entire GDP of the United States searching for prior art and interviewing every engineer, mathematician, and programmer in the world, to be told unanimously that this was a literally once-in-a-lifetime idea with not even a hint of relevant prior art out there, and it still would be unpatentable if it were just an algorithm. You could invent the mathematics that allow time travel or teleportation, winning the Nobel prize for your utter genius, and nonetheless, if it's just the math, it's not patent eligible.
So, this has nothing to do with novelty or obviousness, and, since the Bilski decision came out long after this patent was issued, there's nothing unbelievable about the USPTO thinking it was patent eligible. That was the state of the law back then. It's a good thing it's changed, but that doesn't mean that anything done prior to that change is an unbelievable departure from common sense.
But, don't most machines do things that can already be done by hand...just much faster? I'm not trying to be combative. It just seems that this is a questionable criteria to use for patentability.
The guy that invented that little rubber cover that goes over the connector of good ethernet cables to keep the clip from catching on all the other cables (best invention EVVARR!!). Well, that was something that you could already do by keeping your finger on the clip, but I think the invention was invaluable and the guy deserved some patent protection.
Yes, and the unpatentability of software is actually based on a policy decision that most anti-software patent people miss. Specifically, one of the remedies for patent infringement is an injunction. If your patent claims can be fully performed by hand - or in someone's mind - then you can (theoretically) get an injunction to prevent people from thinking about something. Not only does that not actually work in practice, it also creates a thoughtcrime, which the courts are loathe to do.
Instead, under the Bilski decision, an idea has to be non-abstract, which typically means that it transforms matter or is tied to machine. So (novelty and obviousness aside, for the sake of clarifying the distinction), while a patent claiming "adding a first number to a second number to generate a third number" would be an unpatentable algorithm, a patent claiming "executing an adder by a processor of a computing device, the adder configured for adding a first number to a second number to generate a third number, the third number stored in a memory of the computing device" would not be an unpatentable algorithm, as it is tied to a specific machine.
Now, of course, the method still has to be novel and nonobvious, and merely adding the computing device won't make it so. However, if you have a novel and nonobvious algorithm, it can still be protected, albeit in a way that doesn't create a thoughtcrime or prevent someone from performing the algorithm mentally or on paper.
The isolated genes do not exist in nature, and never have. "Products of nature" is not read so broadly as to include any combination of hydrogen, carbon, or other elements, regardless of what isolation or manipulation you perform on them, or no machine would ever be patentable either, by definition.
Using this logic, wouldn't trans-uranic elements also be patentable, since they are all unstable and thus not found in nature? To my knowledge, nobody has ever suggested these elements could possibly be patented, but I don't see why not, given the similarity of the circumstances.
Uh, about that... Element 95.
And that's where their investigation ends. Which is why I think their Chris Crawford example is bogus. Because all it did was lead to shell companies who were pursuing litigation and IV was an "interested party" on the docket.
What makes that "bogus"? The fact that IV apparently uses shell corporations suddenly means that the patent doesn't exist, or that Crawford doesn't exist, or that he didn't make money from the sale? I think you're confusing two topics - taxes and patents.
But yeah, tell who ever is paying you to come on Slashdot and defend these guys that it's not going to work.
Troll much? I disagree with you, so therefore I must be a shill. It's unusually telling that you jump straight to ad hominems, since you have no substantive response.
First, titles are not patent claims.
I don't think that was ever said on that episode and, if you pay attention, they're just highlighting that five thousand people were trying to patent a particularly thing that was very similar in achieving the same overall goal.
Yeah, like look at all those "wheels", trying to achieve the same overall goal of moving something. It's weak journalism.
And they were right and the reason they did that was to show the listener that it's impossible for the small time inventor to read over these things and stay up to date on inventions -- take what you want from that, you obviously took it to the level of someone who's just skimming this looking for out of context errors. Congratulations!
I copied and pasted from your transcript, so I'm not sure what "out of context" complaint you have... particularly since you didn't provide any context. Congratulations, you're a hypocrite.
In fact, most of that This American Life episode was pretty poor, research-wise.
"Most of it"?! You didn't even listen to it, it's an hour long and you cite one out of context sentence!
... or, like many NPR listeners, I listened to it when it first aired. I also was in the thread here on Slashdot that we had about it, two years ago when it first aired. Did you really think that you just discovered this?
How can you possibly say that, they actually went to Marshall, Texas, they actually did legwork
Wow! A journalist got on a plane! Everything they said MUST be true!
they actually tried to ask questions and they got shut down by everyone, Myhrvold (autocomplete wants me to put Voldemort in there btw) wouldn't even talk to them and now you're jumping all over me for trying to answer these questions they uncovered?
Except that they didn't get "shut down by everyone". They interviewed a patent attorney, Rick McLeod, but curiously, didn't ask him any of their patent-related questions, like the one about the titles or the three applications with the same name. Instead, they apparently only asked him to find invalidating prior art for the Crawford patent. They get three quotes from him, nothing specific, and then they boot him from the show. That's terrible researching.
I can't believe it, you're some kind of anti-investigative journalism person?
No, troll, I'm a pro-investigative journalism person, as in, I like journalists who investigate. Not ones who travel around on junkets and claim they're doing "legwork", but never bother asking questions of experts, or even asking the same question of two different people to verify that they get the same answer. You know, stuff that used to be considered the lowest, simplest requirement for a news article, before NPR decided that the whole "read someone's press release a la Fox News" style was cheaper and easier.
"This American Life" covered Intellectual Ventures extensively about two years ago (PDF transcript here audio here) in an episode called "When Patents Attack!" And Joe Chernesky referred them to Chris Crawford as an example of where Intellectual Ventures had helped an inventor license his/her patents to customers. Since the Chris Crawford lead largely turned up to be bogus, could you refer us to a few small time inventors that Intellectual Ventures has helped license their patents to licensees without having to get into extensive litigation?
I'm not sure that's even remotely reasonable. From your linked PDF:
We found Chris Crawford in Clearwater, Florida, but as predicted, he never responded to our many e-mails and phone calls. You will never hear from him in this story.
If someone refuses to talk to you, that doesn't give you license to say that their story was turned up to be bogus. You may assume that it is, and you may assume various negative things about them or their credibility, but you haven't actually shown anything.
In fact, most of that This American Life episode was pretty poor, research-wise. Consider this quote:
Alex: And on David Martin’s computer screen, we see lots of patents with slightly different language, but covering essentially the same idea. For example patent number 6003044 for “efficiently backing up files using multiple computer systems.” Patent 5933653 for “mirroring data in a remote data storage system.” And then there were three different patents with three different patent numbers but that all had the same title, “System and Method for Backing Up Computer Files Over a Wide Area Computer Network.”
First, titles are not patent claims. There are literally tens of thousands of patents titled "wheel" and hundreds of thousands titled "engine". That doesn't mean they're all claiming the same invention. In fact, the title has no legal weight whatsoever.
Second, those "three different patent numbers that all had the same title" are really one application and two continuations. By definition, they have to have the same title, so it's really just spreading so much FUD to complain about it.
One of my favorite radio shows called "This American Life" covered Intellectual Ventures extensively about two years ago (PDF transcript here audio here) in an episode called "When Patents Attack!" They tried to visit Oasis Research offices at 104 East Houston Street, Suite 190 in Marshall, Texas but found them largely vacant. What is IV's relationship with Oasis Research and Lodsys and why are these empty offices in Marshall, Texas? What sort of partners are Lodsys and Oasis Research? Customers? Licensees?
If IV isn't related to Lodsys and Oasis Research, then I don't see how Myhrvold could possibly answer this question. Is this a witch hunt or a real question?
"The isolated genes do not exist in nature, and never have."
I would not be so sure. They got there in the first place somehow... we know that in some cases it was via mutation, in other cases genes were inserted by viruses, etc. As I pointed out above, I could use the same argument to say that if I pull a rose bush out of the ground it isn't a "product of nature" either. After all, rose bushes do not normally exist without topsoil.
That would be an apt analogy if, typically, the rose bush disintegrated as soon as you pulled it from the ground, and you had to take extreme measures to stabilize it.
Find a company which "owns" a gene that controls some specific disease, like a cancer. Now, everyone with that disease files a lawsuit against the patent holder. They own it, they should be liable for the damages it is causing by being released into the general population. By claiming a patent, this implies invention, therefore we can infer liability!
After a few multi-million dollar lawsuit awards, no one would want to "own" a gene. Problem solved.
... unless the company says "I have no idea what you, some Slashdot submitter, or a journalist with some crappy liberal arts degree and no science education since 8th grade is talking about. Of course we don't 'own' the gene that's in your body, and you'd have to be a complete idiot to think we did, or even think we thought we did. What we own is a specific isolated gene, one that couldn't possibly exist in a human. Are you human? Then GTFO. Oh, and here's a bill for your frivolous lawsuit attempting to sue us for damages for something we never owned nor claimed to own."
How did all these patents get issued, when legally in the U.S., patents cannot be issued for products of nature?
The isolated genes do not exist in nature, and never have. "Products of nature" is not read so broadly as to include any combination of hydrogen, carbon, or other elements, regardless of what isolation or manipulation you perform on them, or no machine would ever be patentable either, by definition.
"The U.S. Supreme Court will review genomic patent rights in an upcoming hearing on April 15. At issue is the right of a molecular diagnostic company to claim patents not only on two key breast and ovarian cancer genes — BRCA1 and BRCA2 — but also on any small sequence of code within BRCA1, including a striking patent for only 15 nucleotides. " ...
"This means if the Supreme Court upholds the current scope of the patents, no physician or researcher can study the DNA of these genes from their patients, and no diagnostic test or drug can be developed based on any of these genes without infringing a patent," says Dr. Mason.
* Personally I believe the supreme court will throw out these patents.
While the Supreme Court could go either way in Myriad, if upheld, it will not bar physicians or researchers from studying the DNA of these genes from their patients, nor will it bar any drugs from being developed. And while yes, many diagnostic tests will infringe the patent, (a) not all will, and (b) maybe the BRCA1 discoverers deserve some payback for the tens of millions of dollars they spent to discover that that gene was relevant, at least for the next few years until the patent expires, at which point it will be fair game for all.
While I don't know law that well, submarine patents are a well-known concept. From your description, they seem impossible. So from your perspective, what are submarine patents, and how do they differ from continuations?
Submarine patents were a huge problem. Prior to 1995, (a) patent applications were not published until they were issuing, and (b) patents lived for 17 years from issue. So what you could do, if you were an evil sneaky bastard, would be to file an application in, say, 1970, and drag your heels on prosecuting it, asking for various examination delays and extensions. Say it issued in 1980 and published then (to expire in 1997)... You file a continuation application just before it issues, and again drag your heels. Maybe now it issues in 1985 and pops up, expiring now in 2002. And again, you file a continuation, and drag your heels further. And maybe the new one issues in 1990... twenty years after you first filed, and not expiring for another 17 years.
So, basically, a submarine patent is a continuation patent on old technology that only recently has issued and published (popping up to the surface). They're tough to invalidate, since the priority date is so long ago, and you need prior art that pre-dates that original filing date, but they can last for so long that everyone believes the technology is public domain and its in widespread use.
But this got fixed in the TRIPS treaty back in 1995. All patent applications publish after 18 months, with a few minor exceptions, and last for up to 20 years from the filing date, no more.
It also got fixed in a second way - courts started applying the laches doctrine, which says that if you intentionally delay getting your patent so as to sucker people in to infringing it, then you lose the ability to enforce it.
Technically, there are still a few submarine patents out there with pre-1995 priorities, but they're disappearing.
In other words, much of the patent (ignoring the wireless power bit) is covered very well by existing software and hardware stacks. It's not even an innovative use of either.
Certainly seems that way... But, otoh, that implies that you could strike all of the data transmission bits from the claims, have a claim that's just about wireless power transmission and handoffs, and you may be patentable. And if so, then adding the data stuff back in doesn't take away from patentability. A Delorean with a Mr. Fusion and time travel capability is still novel and nonobvious, even if a Delorean itself is well known.
Of course does the list contain duplicates. Patents are usually limited to specific jurisdictions. Patents granted by the US patent office are only valid in the US. That is why companies file the same patent in many jurisdictions.
That's absolutely correct. However, there's another type of "duplicate" that Groklaw mentions, which is a continuation application:
But even in the US-only context, you see the same title more than once. Those are continuations. What's that? It's where the really elaborate machinations live, and the submarine patents. It's how you argue with the USPTO when it doesn't approve your patent application or if it does how you keep adding to what you already got approved from the USPTO, something you can do over and over to time indefinite... Sigh. In other words, that's where you try to get more than you had in the beginning, maybe as you see what others are inventing so you can sue them. Blech. I so hate patent law.
Well, of course PJ hates patent law, since her understanding of it is so flawed. In reality, continuation applications are new applications, tied to the parent, that are typically filed to claim an invention in a slightly different way, to fix errors in the claims, or to address other unclaimed aspects of the invention. For example:
1) You claim A+B+C+D+E. The patent office determines it's patentable because even though A+B+C is known, no one has ever done D+E and it's not obvious to do so. So, in a continuation, you claim just D+E, leaving out the unpatentable cruft;
2) You claim A+B+C+D+E, but without realizing it, you accidentally said that A is ~B. Whoops. Pay the filing costs all over again, and fix the error;
3) Your patent application describes A+B+C+D+E but also F+G+H+J. You did this to save drafting and filing costs by bundling it all into one giant application, but you didn't have enough money to pursue both inventions initially. Now, a few years later, you file a continuation claiming F+G+H+J so that you can pursue it.
PJ's complaints, however, are incorrect: these aren't submarine patents, since continuations are published almost immediately. You also can't add anything to what the parent application contained. Change anything beyond a misspelled word, and the application is rejected as containing new matter. And finally, you can't do it for time indefinite, since the continuations all expire on the same date as the parent. If you file an application on Jan 1, 2010, any patents issuing from it or the continuations expire on Jan 1, 2030. So, while you can keep filing continuations right up until Dec 31, 2029, they all expire on that final day, so you really aren't extending any rights temporally.
For someone who writes a lot about patents and talks to a lot of professors and patent lawyers, PJ sure misses some fundamental details.
I'm not ranting at you. I'm ranting about the patent.
Not that these claims are patentable as is, but it seems to be more about smooth handoff between the first base station and second base station.
That's the irritating thing about these patents. It doesn't actually cover how to do the smooth handoff (a difficult problem with many extant solution), it just says "it happens by magic and I invented it".
And? It's just a patent application and Bezos is entitled to write whatever he wants in it. But, if any other piece of prior art does something remotely similar (and I'm sure we can find something), then he'll have to amend his claims to claim a specific way of doing it... and if all his specification says is "it happens by magic," then he won't be able to make that amendment.
In other words, save the rant until we see something get issued. In the meantime, send in some prior art. You've got six months.
Also, wouldn't the VNC or X11 or RDP or a whole variety of other protocols running over 802.11 in infrastructure mode, or GSM/3G/whatever cell data cover the whole part of wireless remote image display with smooth handoff?
The GSM/3G stuff is probably closer - VNC/X11/RDP are all session layer protocols, and this is hand off at the data layer. But you also need to find the power handoff, which might be more complicated. Most remote power stuff is still tied to a single area and source.
It relates to automatic cable tensioning:
Now, I'm really not an expert in this area. But this whole area itself is not new, and I'll bet it's been patented to death 50 years ago by mechanical engineers. There are thousands of different spooling systems out there for thoudands of different tasks. We'll see...
Agreed. It may be one of the reasons it's not actually claimed in this application.
I think I would rather my lawyers tell ICANN to not let someone buy a gTLD with my trademark in it.
Particularly because this system seems to be that you have a right of first refusal to buy a gTLD with your mark when someone else tries to buy one... and if you refuse to pay whatever ICANN asks, not only does the other guy get the gTLD, you waive all rights against them. In other words, this seems to waive your rights to a UDRP dispute and seizure of the domain.
It's more common at large tech companies to claim that one of your engineers invented something after careful study in the lab etc etc. Then you have them file a patent, but with assignment to the company. You don't typically put the CEO's name on the patent, because it's not so plausible that random things the CEO sketches out are properly patentable inventions that have had real technical work go into them.
That's not necessarily true, as it depends on what's in the claims. The inventor is the one (or ones) who fully conceived of the invention as recited in the claims. The engineer may reduce the invention to practice and figure out the technical details, but unless they've specifically contributed to a claimed idea, then they're not an inventor on that patent.
So, for example, Steve Jobs can come up with the idea for the design of the iPad and then hand it off to an engineer to figure out how to make all of the internal components fit. Jobs is still the inventor of the design patent. The engineer may, instead, be an inventor of a novel form factor of battery.