Nevertheless, its pretty much over, because to get around Prometheus, the lawyers lower courts are going to have to do some fancy dancing, and they are unlikely to do this anytime soon. In the meantime Prometheus settles, and becomes the standard by which all of these bio/genome patents are litigated.
Not necessarily, or at least, I wouldn't hold my breath... They can gloss against Prometheus by saying that isolated DNA doesn't exist in nature and therefore is not a "law of nature" itself, same as the Supreme Court found vulcanized rubber to be patentable in Diehr, even though rubber itself existed.
Doesn't mean that the Supreme Court wouldn't reverse again, but that's certainly one possible take.
"The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer.
Not quite. The Supreme Court overturned the Federal Circuit ruling that the patents were valid and infringed, and remanded back for reconsideration based on the recent Prometheus v. Mayo case. Basically saying, "take another look." They did not however "overturn patents" nor did they "throw out human gene patents" as the headline states.
We can make predictions and argue about what the Federal Circuit will likely decide on remand, and what the Supreme Court might then do if re-appealed, but it's not nearly as over as the headline or summary say.
That sounds suspiciously like question begging. There will almost always be a piece of prior art for any individual claim element.
Actually, you'd be surprised. Good claim drafting involves finding an element that captures the inventive step, and therefore probably isn't disclosed by any piece of prior art.
You've just gone from obviousness being a gut feeling to "teach or suggest" being a gut feeling; how does that help?
In practice, if a prior art discloses any claim element, it's considered to teach it. If it discloses something really, really close, it suggests it.
Where the gut feeling comes in is in whether the pieces of prior art can be combined... In software, generally, they can. It gets a little tougher in the life sciences, where you can't just tack two hypothetical chemicals together and call it a drug.
Call it mere semantics, if you want, but I call it due process - you need evidence to invalidate a patent, not just a gut feeling.
It seems to me that "gut feeling" is pretty much how obviousness works. It's not like there is a mathematical formula for it.
Actually, there is. A claimed invention is obvious if one or more pieces or prior art, alone or in combination, teach or suggest each and every element of the claim. In other words, Obvious=Sigma[for each element from i to n](prior art 1, prior art 2... prior art n).
Or, in more clear words, if a claim includes elements a+b+c+d, it's novel if there's no single piece of prior art that includes a+b+c+d, but it's obvious if one piece of prior art teaches a+b, another teaches c, and a third teaches d.
Let's be honest with ourselves, Copyrights are there to protect reputation, brand and the public good.
Yes, particularly when they're used as some sort of mark on a service or good in trade... Like a "Mark of Service" or "Mark of Trade". Or maybe there's a better name for those.
Patent and copyright are both broken in that they reward mere firstness infinitely more than quality of implementation. They get the whole concept ass-backwards. Ideas are a dime a dozen. It's implementation and marketing where the real work lies.
And if that's true, then no company should hire US programmers, because they can hire overseas for pennies on the dollar. The US programmers have innovative ideas? Pfff, you just said those weren't worth anything.
Frankly, I disagree. People saying, after the fact, "oh, I totally had that idea, but I didn't tell anyone," or "I could've come up with that," doesn't mean that ideas are a dime a dozen. It means that hindsight is worth less than a dime. Ideas are very valuable, and I think it's an insult to the Slashdot demographic to imply otherwise.
\Like, say, patenting the wheel. Sure, that patent was retracted nearly instantly, but it gives you an idea just what kind of idiocy goes on in the patent offices of this world.
Not so much. From your link:
He says that innovation patents are not examined in detail by the Australian patent office.... The Australian office controlling patents, IP Australia, said that Keogh's innovation patent would not stand if tested in court. However, some still suggest that the innovation patent may be misleading. "Calling it an innovation patent merely serves to confuse the issue," says Geoff Sargent, assistant director of the UK Patent Office. "It's not a patent as would be understood in most countries."
Unlike utility patents, such as the ones at issue in this Slashdot story, that was an "innovation patent". Innovation patents are a registration-only system (Hong Kong has a similar system). There's no examination - you pay your fee, you get your patent... but, unlike real patents that undergo examination, there's no presumption of validity. You sue someone, first you have to prove that your patent is actually novel and innovative, before they even need to respond. Basically, rather than paying $20-25k to get a patent that the defendant needs to defend against, you pay $100 and get a piece of paper saying "you filed an application this day, but no one has looked at it and no defendant needs to defend against it until you prove it's valid".
Most of the litigators I know that're good in this space happen to bill at $350/hr. The only bunch I know of that charge $500/hr are people from places like Cravath.
... that you know a couple of 5th year associates from Cravath may not be relevant. The partners are probably around $800/hr.
In this case, though, there's a dead-on, you lose piece of prior art involved- Apple patented the base concept in 1992. This isn't some almost item. It's the same concept/implementation- all that's differing is the verbiage in the patent copy for what they're doing and why. I'd put up a fight and counter-sue for damages due to this BS for bringing a frivolous lawsuit (Because it is...).
Apple patenting the "base concept" is also irrelevant. The wheel is a "base concept" for a Tesla Roadster. That doesn't mean that Neanderthal Ug, Genius Inventor, anticipated electric cars.
Prior art can be found for the great majority of patents. (I do this part-time as a consultant.)
Not to doubt your credibility, but if you are a prior art searcher, even part time as a consultant, you'd know that prior art can be found for every patent, since prior art is just any disclosure in the relevant industry (i.e. art) that was available to the public prior to the date of invention (i.e. prior). TCP is prior art for 802.11n. The wheel is prior art for the Tesla Roadster. Fire is prior art for nuclear fusion. What you meant to say was anticipatory prior art, but the fact that you don't know that makes me question your consulting cred.
Doesn't matter... If I get a base patent on a seating device with at least three legs (a stool), you can still get a patent on a seating device with at least three legs and an upright back connected to the base (a chair). My patent may block you from implementing yours, but the fact that I invented a stool doesn't give me ownership over any possible future improvement.
Ah, but the distinction is insufficient for a utility patent on the implementation. Apple's actions anticipate the other that you mention. It IS Novelty Destroying.
Not so... For a reference to be novelty destroying, it has to disclose each and every element of the claimed invention. If there's a distinction of any sort, then it's not novelty destroying. It could still be obvious, but you have to show that that distinction is obvious.
Call it mere semantics, if you want, but I call it due process - you need evidence to invalidate a patent, not just a gut feeling.
Not just I - the Supreme Court thinks so too, which is why in this decision, they cited Diehr positively.
The Supreme Court collectively and the justices individually are masters of sophistry.
Allowing unpatentable subject matter to become patentable by combining it with generic hardware amounts to eviscerating the limits on patentable subject matter.
... except for the way that I said, which I believe is the point:
And yes, it's actually an important distinction. Why? One available remedy for patent infringement is an injunction. You infringe my patent, I can get a court order telling you not to do that any more. Issues of obviousness or novelty aside, since we're talking about patent eligibility, if my patent covers "entering data into a computer, processing the data by the computer, and displaying a depiction of the processed data," a court can order you not to use a computer in that way. By if my patent covers "considering data, processing the data, and outputting the data," now we have trouble... How can a court order you to not think of something? If a patent can be infringed entirely in your mind, doesn't that make it a thoughtcrime?
And lest you think I'm being flippant, consider diagnostic method patents... "identifying heightened levels of x in a patient; diagnosing the patient as having disease y." If you read the patent application for one of those, you may find an example describing patient John Doe with elevated levels of x, therefore indicating he has disease y an- wait, you just infringed the patent. By reading the patent. And a court can order you to never, ever think of that correlation again? That makes no sense.
By explicitly requiring machine steps or tangible articles of manufacture, we eliminate the possibility for these purely-mental patents. You want to perform all the steps of my patented software with a pad of paper and a pen? Have at it. I can't stop you, and I haven't made thinking a crime. But I can stop you from taking the additional steps of programming a computer to do it and using the computer to execute the software.
So software isn't patentable, software "running on a computer" or "encoded on storage medium" is patentable. And you think that's something more than mere sophistry.
Not just I - the Supreme Court thinks so too, which is why in this decision, they cited Diehr positively.
And yes, it's actually an important distinction. Why? One available remedy for patent infringement is an injunction. You infringe my patent, I can get a court order telling you not to do that any more. Issues of obviousness or novelty aside, since we're talking about patent eligibility, if my patent covers "entering data into a computer, processing the data by the computer, and displaying a depiction of the processed data," a court can order you not to use a computer in that way. By if my patent covers "considering data, processing the data, and outputting the data," now we have trouble... How can a court order you to not think of something? If a patent can be infringed entirely in your mind, doesn't that make it a thoughtcrime?
And lest you think I'm being flippant, consider diagnostic method patents... "identifying heightened levels of x in a patient; diagnosing the patient as having disease y." If you read the patent application for one of those, you may find an example describing patient John Doe with elevated levels of x, therefore indicating he has disease y an- wait, you just infringed the patent. By reading the patent. And a court can order you to never, ever think of that correlation again? That makes no sense.
By explicitly requiring machine steps or tangible articles of manufacture, we eliminate the possibility for these purely-mental patents. You want to perform all the steps of my patented software with a pad of paper and a pen? Have at it. I can't stop you, and I haven't made thinking a crime. But I can stop you from taking the additional steps of programming a computer to do it and using the computer to execute the software.
That said, computer programs are already unpatentable... Valid software patents involve hardware
Oh, give it up. Software patents which involve hardware do so by invoking perfectly generic hardware. The inventive step (if indeed there is one) is in the software, the hardware is a mere formality.
So? If a patent claims a+b+c and elements a and b are known, but element c is novel and nonobvious, the claim as a whole is patentable. That even applies if "a" is a known computer.
That said, this is irrelevant to the question - you're talking about "inventive step", which is another term for nonobviousness: article 56 in Europe, 35 USC 103 in the US, etc. That's not the question here, which is patent eligible subject matter: i.e. whether even the most inventive, novel software in the entire world is patentable. That question is 35 USC 101 in the US, article 52 in Europe, etc. And that question has been answered: if it's just software, no... if it includes hardware - even "perfectly generic hardware" - it is patent eligible. If it includes a novel and nonobvious element - i.e. answers the other two questions in 35 USC 102 and 103 - then yes, it is patentable.
And there's even software patents which invoke the hardware the program is _stored on_, though I believe this particular dodge has been struck down.
Beauregard claims, from In re Beauregard. They claim not software, not a machine, but an article of manufacture: specifically, a manufactured computer storage device that has imprinted on it or encoded in it the novel, nonobvious software. And no, it hasn't been "struck down" and things like CD-ROMs including new software are certainly patentable.
Let's see...computer programs are proofs of mathematical statements (see: Curry-Howard correspondence)...so does this ruling finally invalidate software patents?
Nope. The opinion affirmatively cited Diehr.
That said, computer programs are already unpatentable... Valid software patents involve hardware, and hardware is outside of the Curry-Howard correspondence, so that argument doesn't even get you to invalidating software patents.
Or are we still going to have software patents, and just demand that they not cover statements that are "obvious" to some judge?
That would be a better way to go at it. We shouldn't be refusing patents on software that actually is new, useful, and not obvious to anyone, simply because they're software... and conversely, that some obvious patents are wrongly issued by the PTO doesn't mean that an entire industry should be kicked out of patent eligibility. Let's focus our energies on requesting better examination, and having the PTO hire more software engineers and CS majors, rather than trying to abolish all software patents, whether obvious or not. Plus, the former is more likely to succeed. Congress may tell the PTO to hire more computer programmers, but they aren't going to tell the PTO to cut off an entire industry.
The patents in question are for a technique (not the general idea, general ideas are not patentable) for ordering and presenting ads on a web page based on a user's past actions. The techniques specified in the patent are an assemblage of well known patterns to simple problems. This assemblage is indeed obvious to any skilled practioner.
Obviousness is a legal conclusion, however, that must be supported by evidence. Just as a judge cannot say, "even though I have no evidence, I'm going to find you guilty of murder," a judge (or patent examiner) cannot say, "even though I have no evidence, I'm going to find your claimed invention obvious." If it's obvious, then you should be able to find evidence showing that the technique was known in the art. Prior patents, publications, products, white papers, functional specs, etc. Otherwise, it's just an unsupported conclusion.
Good patents for non-obvious innovations that further the state of the art are needed, but these Yahoo patents ain't them. The patent system is supposed to be setup so that if a skilled practitioner looks at patented invention he'll say "damn, how did they implement that?" Then, in turn for revealing the implementation, the inventor is granted legal protection for a period of time.
Not exactly. The skilled practitioner may never have even thought of the implementation, but after the fact, it may be relatively trivial. For example, most engineers today could design an internal combustion engine on the back of an envelope in 5 minutes. They're not the most complicated devices in the world... Does that mean they weren't patentable in the 1800s? Of course not.
You're right about the public disclosure, but it's not in exchange for revealing a ground-breaking new idea - it's in exchange for revealing any new idea that's not obvious, at the time of invention... it can certainly be obvious in hindsight, but that's irrelevant. The point is that if there's no evidence from the time of invention showing that it was obvious, the patent should issue.
Anybody with a background in Comp Sci or Engineering could be given the problem background described in these Yahoo patents and come up with almost identical implmentations, because THERE IS NOT INVENTION OR INNOVATION TAKING PLACE, its just well known technologies being applied in obvious patterns! That is not invention as described in the charter of the patent office, yet the patent office issues thousands of similar flimsy patents every year./end_rant
Cool. Find us publications existing at the time of filing of the patent application showing that those technologies were well known. Or even known by a single person outside of Yahoo. If you can do that, you can invalidate the patent.
Post Bilski, that seems pretty improbable. Much as I may despise Facebook and don't care one way or the other about Yahoo, I'm not going to concede that anything involving pure software can ever qualify as the basis for a legitimate patent suit.
You should read the Supreme Court's decision in Bilski, not just the Federal Circuit's decision. The Supreme Court threw out their narrower test, and so yes, it is theoretically possible that pure software could serve as the basis for a legitimate patent suit.
But, that said, I haven't looked at these claims yet to see if they even are "pure software".
So the German constitution has no "equal protection" equivalent?
Because that would apply, since Google is a suspect class, having an inherent and immutable characteristic that has caused them to be the subject of a history of invidious discrimination?
That wasn't what I said. I said it was a mechanical requirement. The shape of the case was determined by the shape of the components it needed to house. The fact that this made it a pain to type on when it was at rest on a surface was a side-effect.
And yet, many other tablets have flat backs. Apparently, a curved back is not a mechanical requirement.
Look at your monitor, your laptop, your TV - any device with a screen. Where do they place their screen? In the center, with possibly an extra-large bezel wherever they put their controls.
I'm typing this on an iMac... with an off-center screen. Example-fail.
What, you think no device in the history of humanity has ever used that particular radius? They shouldn't be patentable because they're trivial, not because they're unique.
It's the total combination that's patentable. The individual features are not necessarily patentable. But fortunately, the USPTO recognizes that they can't just cherry pick elements but have to look at the entire claim.
Unless you're Samsung - whose Galaxy Tab didn't have the a single home button at the center-bottom of the device, and yet still attracted the ire of Apple's lawyer-pack.
See, now I know you're trolling... Or talking out of sheer ignorance. Here's the relevant patent. Do you see a "single home button at the center-bottom of the device"? Figure 3 should be particularly helpful.
Apple patented a bunch of trivial design features. The very fact that their patent can be reduced to nothing but the size of their bezel and the radius of the corners shows that Apple had nothing of actual distinction to include in their patent.
Yeah, you see, that's not a "fact" anywhere except in your mind.
From our discussion:
1) you've never read or even looked at the patent.
2) you don't understand that the patent is the entire set of features, and cannot, legally, "be reduced" to a few features.
3) you don't understand that infringement requires infringing each and every feature, and not just "a 3cm bezel".
4) you've apparently never seen an iMac.
I'd say that pretty much wraps up this debate. Cheers.
The curved back is a mechanical requirement, necessary to include the physical components.
No. Look at the patent. The curved back is explicitly a requirement of Apple's aesthetic design. And it's not a requirement of the functional design - in fact, don't you remember people complaining about trying to type on the iPad while it rotated on that same curved back? There were Slashdot stories about it.
The placement of the screen is in the only place any device has placed their screen - the center.
On the contrary, check out the infamous Kubrick 2001 tablets - those screens are off-center,/I>.
The home button, I'll give you. Bezel size, corner radius? These things should be patentable now?
Yes, and you're apparently admitting that they're unique.
So nobody can make a device with a 3cm bezel because Apple patented it first? That's almost as ridiculous as "rectangular. round corners".
No. Again, you apparently don't understand design patents. Allow me to explain: a design patent illustrates a number of features, such as the 3cm bezel, the radius of the corners, the rounded back, etc. - for convenience, let's call them, respectively, [a], [b], [c]. You only infringe the patent on [a]+[b]+[c] if you make something with [a]+[b]+[c]. If you make "a device with a 3cm bezel" but none of the other features, you don't infringe, by definition. Hope this helps.
Apple's whole design aesthetic is minimalist. That's cool - lots of people like that design. But getting a design patent on a minimalist design is ridiculous, because what you're actually patenting is the/absence/ of design.
Actually, as we've discussed, Apple patented a whole bunch of explicit design features. Not the absence of said features.
Samsung doesn't have their plugs and button/s in the same place as the iPad, and thus, it's not a copy.
Oh, FFS. Twenty five complaints about specific details that Samsung allegedly duplicated and somebody nitpicks the button placement that's more about feel than sight.
It should also be noted that the port placement and side buttons are one of the few things that are not included in the design patent (they appear in broken line, and are not part of the claimed design). So yeah, Samsung's tablet is identical to the drawings in the design patent... with only changes to the parts that are outside of the patent claim.
Samsung's just trying to cover their butts. It really is pathetic. But in light of just how physically similar those two devices are, I'm genuinely surprised it's Apple being roasted over it. At least I take a little comfort in knowing that it's not that easy to get ahold of both devices and see them side by side, something the lawyers and judges have been able to do.
Also bear in mind that while Judge Koh denied a preliminary injunction on the grounds that Apple hadn't shown the patent was clearly valid, she did not similarly decide that Samsung likely didn't infringe.
Patent litigation is two stage - first, showing the patent is valid or invalid; and second, showing whether the defendant infringed the patent. It's possible to "infringe" the patent, but get off because the patent is invalid... that looks like the way Samsung is trying to go.
And it's very hard to think of anything this design patent shows that isn't "rectangular. round corners": USD627777S1
Then you're not looking very closely. The curved back, with an oval profile, is part of the design. The particular radius of rounding on the corners is part of the design. The placement of the home button is part of the design. The particular placement of the screen and bezel size is part of the design. There are many more elements to the design.
Just "rectangular. round corners"? That describes a bus, too. Does that patent look it claims the design of a bus? No. This is a lot narrower than you think it is.
Apple is claiming that they own the patent and/or copyright to a rectangular tablet with a screen on the front -- all of 'em.
If you don't even know the difference between a utility patent, design patent, and copyright, then why should we take your statement as being at all credible?
In truth, Apple is not claiming that they have a design patent on "a rectangular tablet with a screen on the front - all of 'em." In fact, in the Germany case, Apple explicitly mentioned features found in competitor's tablets - HP, Microsoft, Sony, etc. - that were not covered by their design patent. So, no, your "all of them" is completely untrue.
Slashdot Mirror
Nevertheless, its pretty much over, because to get around Prometheus, the lawyers lower courts are going to have to do some fancy dancing, and they are unlikely to do this anytime soon. In the meantime Prometheus settles, and becomes the standard by which all of these bio/genome patents are litigated.
Not necessarily, or at least, I wouldn't hold my breath... They can gloss against Prometheus by saying that isolated DNA doesn't exist in nature and therefore is not a "law of nature" itself, same as the Supreme Court found vulcanized rubber to be patentable in Diehr, even though rubber itself existed.
Doesn't mean that the Supreme Court wouldn't reverse again, but that's certainly one possible take.
"The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer.
Not quite. The Supreme Court overturned the Federal Circuit ruling that the patents were valid and infringed, and remanded back for reconsideration based on the recent Prometheus v. Mayo case. Basically saying, "take another look." They did not however "overturn patents" nor did they "throw out human gene patents" as the headline states.
We can make predictions and argue about what the Federal Circuit will likely decide on remand, and what the Supreme Court might then do if re-appealed, but it's not nearly as over as the headline or summary say.
That sounds suspiciously like question begging. There will almost always be a piece of prior art for any individual claim element.
Actually, you'd be surprised. Good claim drafting involves finding an element that captures the inventive step, and therefore probably isn't disclosed by any piece of prior art.
You've just gone from obviousness being a gut feeling to "teach or suggest" being a gut feeling; how does that help?
In practice, if a prior art discloses any claim element, it's considered to teach it. If it discloses something really, really close, it suggests it.
Where the gut feeling comes in is in whether the pieces of prior art can be combined... In software, generally, they can. It gets a little tougher in the life sciences, where you can't just tack two hypothetical chemicals together and call it a drug.
Call it mere semantics, if you want, but I call it due process - you need evidence to invalidate a patent, not just a gut feeling.
It seems to me that "gut feeling" is pretty much how obviousness works. It's not like there is a mathematical formula for it.
Actually, there is. A claimed invention is obvious if one or more pieces or prior art, alone or in combination, teach or suggest each and every element of the claim. In other words, Obvious=Sigma[for each element from i to n](prior art 1, prior art 2... prior art n).
Or, in more clear words, if a claim includes elements a+b+c+d, it's novel if there's no single piece of prior art that includes a+b+c+d, but it's obvious if one piece of prior art teaches a+b, another teaches c, and a third teaches d.
Let's be honest with ourselves, Copyrights are there to protect reputation, brand and the public good.
Yes, particularly when they're used as some sort of mark on a service or good in trade... Like a "Mark of Service" or "Mark of Trade". Or maybe there's a better name for those.
Patent and copyright are both broken in that they reward mere firstness infinitely more than quality of implementation. They get the whole concept ass-backwards. Ideas are a dime a dozen. It's implementation and marketing where the real work lies.
And if that's true, then no company should hire US programmers, because they can hire overseas for pennies on the dollar. The US programmers have innovative ideas? Pfff, you just said those weren't worth anything.
Frankly, I disagree. People saying, after the fact, "oh, I totally had that idea, but I didn't tell anyone," or "I could've come up with that," doesn't mean that ideas are a dime a dozen. It means that hindsight is worth less than a dime. Ideas are very valuable, and I think it's an insult to the Slashdot demographic to imply otherwise.
\Like, say, patenting the wheel. Sure, that patent was retracted nearly instantly, but it gives you an idea just what kind of idiocy goes on in the patent offices of this world.
Not so much. From your link:
He says that innovation patents are not examined in detail by the Australian patent office. ... The Australian office controlling patents, IP Australia, said that Keogh's innovation patent would not stand if tested in court. However, some still suggest that the innovation patent may be misleading. "Calling it an innovation patent merely serves to confuse the issue," says Geoff Sargent, assistant director of the UK Patent Office. "It's not a patent as would be understood in most countries."
Unlike utility patents, such as the ones at issue in this Slashdot story, that was an "innovation patent". Innovation patents are a registration-only system (Hong Kong has a similar system). There's no examination - you pay your fee, you get your patent... but, unlike real patents that undergo examination, there's no presumption of validity. You sue someone, first you have to prove that your patent is actually novel and innovative, before they even need to respond. Basically, rather than paying $20-25k to get a patent that the defendant needs to defend against, you pay $100 and get a piece of paper saying "you filed an application this day, but no one has looked at it and no defendant needs to defend against it until you prove it's valid".
Most of the litigators I know that're good in this space happen to bill at $350/hr. The only bunch I know of that charge $500/hr are people from places like Cravath.
... that you know a couple of 5th year associates from Cravath may not be relevant. The partners are probably around $800/hr.
In this case, though, there's a dead-on, you lose piece of prior art involved- Apple patented the base concept in 1992. This isn't some almost item. It's the same concept/implementation- all that's differing is the verbiage in the patent copy for what they're doing and why. I'd put up a fight and counter-sue for damages due to this BS for bringing a frivolous lawsuit (Because it is...).
Apple patenting the "base concept" is also irrelevant. The wheel is a "base concept" for a Tesla Roadster. That doesn't mean that Neanderthal Ug, Genius Inventor, anticipated electric cars.
Prior art can be found for the great majority of patents. (I do this part-time as a consultant.)
Not to doubt your credibility, but if you are a prior art searcher, even part time as a consultant, you'd know that prior art can be found for every patent, since prior art is just any disclosure in the relevant industry (i.e. art) that was available to the public prior to the date of invention (i.e. prior). TCP is prior art for 802.11n. The wheel is prior art for the Tesla Roadster. Fire is prior art for nuclear fusion. What you meant to say was anticipatory prior art, but the fact that you don't know that makes me question your consulting cred.
And...we won't get into the fact that Apple patented the base concept in 1992
Doesn't matter... If I get a base patent on a seating device with at least three legs (a stool), you can still get a patent on a seating device with at least three legs and an upright back connected to the base (a chair). My patent may block you from implementing yours, but the fact that I invented a stool doesn't give me ownership over any possible future improvement.
Ah, but the distinction is insufficient for a utility patent on the implementation. Apple's actions anticipate the other that you mention. It IS Novelty Destroying.
Not so... For a reference to be novelty destroying, it has to disclose each and every element of the claimed invention. If there's a distinction of any sort, then it's not novelty destroying. It could still be obvious, but you have to show that that distinction is obvious.
Call it mere semantics, if you want, but I call it due process - you need evidence to invalidate a patent, not just a gut feeling.
The Supreme Court collectively and the justices individually are masters of sophistry.
Allowing unpatentable subject matter to become patentable by combining it with generic hardware amounts to eviscerating the limits on patentable subject matter.
... except for the way that I said, which I believe is the point:
And yes, it's actually an important distinction. Why? One available remedy for patent infringement is an injunction. You infringe my patent, I can get a court order telling you not to do that any more. Issues of obviousness or novelty aside, since we're talking about patent eligibility, if my patent covers "entering data into a computer, processing the data by the computer, and displaying a depiction of the processed data," a court can order you not to use a computer in that way. By if my patent covers "considering data, processing the data, and outputting the data," now we have trouble... How can a court order you to not think of something? If a patent can be infringed entirely in your mind, doesn't that make it a thoughtcrime?
And lest you think I'm being flippant, consider diagnostic method patents... "identifying heightened levels of x in a patient; diagnosing the patient as having disease y." If you read the patent application for one of those, you may find an example describing patient John Doe with elevated levels of x, therefore indicating he has disease y an- wait, you just infringed the patent. By reading the patent. And a court can order you to never, ever think of that correlation again? That makes no sense.
By explicitly requiring machine steps or tangible articles of manufacture, we eliminate the possibility for these purely-mental patents. You want to perform all the steps of my patented software with a pad of paper and a pen? Have at it. I can't stop you, and I haven't made thinking a crime. But I can stop you from taking the additional steps of programming a computer to do it and using the computer to execute the software.
So software isn't patentable, software "running on a computer" or "encoded on storage medium" is patentable. And you think that's something more than mere sophistry.
Not just I - the Supreme Court thinks so too, which is why in this decision, they cited Diehr positively.
And yes, it's actually an important distinction. Why? One available remedy for patent infringement is an injunction. You infringe my patent, I can get a court order telling you not to do that any more. Issues of obviousness or novelty aside, since we're talking about patent eligibility, if my patent covers "entering data into a computer, processing the data by the computer, and displaying a depiction of the processed data," a court can order you not to use a computer in that way. By if my patent covers "considering data, processing the data, and outputting the data," now we have trouble... How can a court order you to not think of something? If a patent can be infringed entirely in your mind, doesn't that make it a thoughtcrime?
And lest you think I'm being flippant, consider diagnostic method patents... "identifying heightened levels of x in a patient; diagnosing the patient as having disease y." If you read the patent application for one of those, you may find an example describing patient John Doe with elevated levels of x, therefore indicating he has disease y an- wait, you just infringed the patent. By reading the patent. And a court can order you to never, ever think of that correlation again? That makes no sense.
By explicitly requiring machine steps or tangible articles of manufacture, we eliminate the possibility for these purely-mental patents. You want to perform all the steps of my patented software with a pad of paper and a pen? Have at it. I can't stop you, and I haven't made thinking a crime. But I can stop you from taking the additional steps of programming a computer to do it and using the computer to execute the software.
Oh, give it up. Software patents which involve hardware do so by invoking perfectly generic hardware. The inventive step (if indeed there is one) is in the software, the hardware is a mere formality.
So? If a patent claims a+b+c and elements a and b are known, but element c is novel and nonobvious, the claim as a whole is patentable. That even applies if "a" is a known computer.
That said, this is irrelevant to the question - you're talking about "inventive step", which is another term for nonobviousness: article 56 in Europe, 35 USC 103 in the US, etc. That's not the question here, which is patent eligible subject matter: i.e. whether even the most inventive, novel software in the entire world is patentable. That question is 35 USC 101 in the US, article 52 in Europe, etc. And that question has been answered: if it's just software, no... if it includes hardware - even "perfectly generic hardware" - it is patent eligible. If it includes a novel and nonobvious element - i.e. answers the other two questions in 35 USC 102 and 103 - then yes, it is patentable.
And there's even software patents which invoke the hardware the program is _stored on_, though I believe this particular dodge has been struck down.
Beauregard claims, from In re Beauregard. They claim not software, not a machine, but an article of manufacture: specifically, a manufactured computer storage device that has imprinted on it or encoded in it the novel, nonobvious software. And no, it hasn't been "struck down" and things like CD-ROMs including new software are certainly patentable.
Let's see...computer programs are proofs of mathematical statements (see: Curry-Howard correspondence)...so does this ruling finally invalidate software patents?
Nope. The opinion affirmatively cited Diehr.
That said, computer programs are already unpatentable... Valid software patents involve hardware, and hardware is outside of the Curry-Howard correspondence, so that argument doesn't even get you to invalidating software patents.
Or are we still going to have software patents, and just demand that they not cover statements that are "obvious" to some judge?
That would be a better way to go at it. We shouldn't be refusing patents on software that actually is new, useful, and not obvious to anyone, simply because they're software... and conversely, that some obvious patents are wrongly issued by the PTO doesn't mean that an entire industry should be kicked out of patent eligibility. Let's focus our energies on requesting better examination, and having the PTO hire more software engineers and CS majors, rather than trying to abolish all software patents, whether obvious or not. Plus, the former is more likely to succeed. Congress may tell the PTO to hire more computer programmers, but they aren't going to tell the PTO to cut off an entire industry.
Does this mean we can finally get a review for the patent on swinging sideways on a swing? The patent in question...
... was abandoned years ago.
Does this also cover patenting genes too?
Because I've never understood how you can patent a gene someone already had.
Nope - that case, Myriad Genetics and the BRCA1 gene, is still going on.
The patents in question are for a technique (not the general idea, general ideas are not patentable) for ordering and presenting ads on a web page based on a user's past actions. The techniques specified in the patent are an assemblage of well known patterns to simple problems. This assemblage is indeed obvious to any skilled practioner.
Obviousness is a legal conclusion, however, that must be supported by evidence. Just as a judge cannot say, "even though I have no evidence, I'm going to find you guilty of murder," a judge (or patent examiner) cannot say, "even though I have no evidence, I'm going to find your claimed invention obvious."
If it's obvious, then you should be able to find evidence showing that the technique was known in the art. Prior patents, publications, products, white papers, functional specs, etc. Otherwise, it's just an unsupported conclusion.
Good patents for non-obvious innovations that further the state of the art are needed, but these Yahoo patents ain't them. The patent system is supposed to be setup so that if a skilled practitioner looks at patented invention he'll say "damn, how did they implement that?" Then, in turn for revealing the implementation, the inventor is granted legal protection for a period of time.
Not exactly. The skilled practitioner may never have even thought of the implementation, but after the fact, it may be relatively trivial. For example, most engineers today could design an internal combustion engine on the back of an envelope in 5 minutes. They're not the most complicated devices in the world... Does that mean they weren't patentable in the 1800s? Of course not.
You're right about the public disclosure, but it's not in exchange for revealing a ground-breaking new idea - it's in exchange for revealing any new idea that's not obvious, at the time of invention... it can certainly be obvious in hindsight, but that's irrelevant. The point is that if there's no evidence from the time of invention showing that it was obvious, the patent should issue.
Anybody with a background in Comp Sci or Engineering could be given the problem background described in these Yahoo patents and come up with almost identical implmentations, because THERE IS NOT INVENTION OR INNOVATION TAKING PLACE, its just well known technologies being applied in obvious patterns! That is not invention as described in the charter of the patent office, yet the patent office issues thousands of similar flimsy patents every year. /end_rant
Cool. Find us publications existing at the time of filing of the patent application showing that those technologies were well known. Or even known by a single person outside of Yahoo. If you can do that, you can invalidate the patent.
Post Bilski, that seems pretty improbable. Much as I may despise Facebook and don't care one way or the other about Yahoo, I'm not going to concede that anything involving pure software can ever qualify as the basis for a legitimate patent suit.
You should read the Supreme Court's decision in Bilski, not just the Federal Circuit's decision. The Supreme Court threw out their narrower test, and so yes, it is theoretically possible that pure software could serve as the basis for a legitimate patent suit.
But, that said, I haven't looked at these claims yet to see if they even are "pure software".
So the German constitution has no "equal protection" equivalent?
Because that would apply, since Google is a suspect class, having an inherent and immutable characteristic that has caused them to be the subject of a history of invidious discrimination?
That wasn't what I said. I said it was a mechanical requirement. The shape of the case was determined by the shape of the components it needed to house. The fact that this made it a pain to type on when it was at rest on a surface was a side-effect.
And yet, many other tablets have flat backs. Apparently, a curved back is not a mechanical requirement.
Look at your monitor, your laptop, your TV - any device with a screen. Where do they place their screen? In the center, with possibly an extra-large bezel wherever they put their controls.
I'm typing this on an iMac... with an off-center screen. Example-fail.
What, you think no device in the history of humanity has ever used that particular radius? They shouldn't be patentable because they're trivial, not because they're unique.
It's the total combination that's patentable. The individual features are not necessarily patentable. But fortunately, the USPTO recognizes that they can't just cherry pick elements but have to look at the entire claim.
Unless you're Samsung - whose Galaxy Tab didn't have the a single home button at the center-bottom of the device, and yet still attracted the ire of Apple's lawyer-pack.
See, now I know you're trolling... Or talking out of sheer ignorance. Here's the relevant patent. Do you see a "single home button at the center-bottom of the device"? Figure 3 should be particularly helpful.
Apple patented a bunch of trivial design features. The very fact that their patent can be reduced to nothing but the size of their bezel and the radius of the corners shows that Apple had nothing of actual distinction to include in their patent.
Yeah, you see, that's not a "fact" anywhere except in your mind.
From our discussion:
1) you've never read or even looked at the patent.
2) you don't understand that the patent is the entire set of features, and cannot, legally, "be reduced" to a few features.
3) you don't understand that infringement requires infringing each and every feature, and not just "a 3cm bezel".
4) you've apparently never seen an iMac.
I'd say that pretty much wraps up this debate. Cheers.
The curved back is a mechanical requirement, necessary to include the physical components.
No. Look at the patent. The curved back is explicitly a requirement of Apple's aesthetic design. And it's not a requirement of the functional design - in fact, don't you remember people complaining about trying to type on the iPad while it rotated on that same curved back? There were Slashdot stories about it.
The placement of the screen is in the only place any device has placed their screen - the center.
On the contrary, check out the infamous Kubrick 2001 tablets - those screens are off-center,/I>.
The home button, I'll give you. Bezel size, corner radius? These things should be patentable now?
Yes, and you're apparently admitting that they're unique.
So nobody can make a device with a 3cm bezel because Apple patented it first? That's almost as ridiculous as "rectangular. round corners".
No. Again, you apparently don't understand design patents. Allow me to explain: a design patent illustrates a number of features, such as the 3cm bezel, the radius of the corners, the rounded back, etc. - for convenience, let's call them, respectively, [a], [b], [c]. You only infringe the patent on [a]+[b]+[c] if you make something with [a]+[b]+[c]. If you make "a device with a 3cm bezel" but none of the other features, you don't infringe, by definition. Hope this helps.
Apple's whole design aesthetic is minimalist. That's cool - lots of people like that design. But getting a design patent on a minimalist design is ridiculous, because what you're actually patenting is the /absence/ of design.
Actually, as we've discussed, Apple patented a whole bunch of explicit design features. Not the absence of said features.
Samsung doesn't have their plugs and button/s in the same place as the iPad, and thus, it's not a copy.
Oh, FFS. Twenty five complaints about specific details that Samsung allegedly duplicated and somebody nitpicks the button placement that's more about feel than sight.
It should also be noted that the port placement and side buttons are one of the few things that are not included in the design patent (they appear in broken line, and are not part of the claimed design). So yeah, Samsung's tablet is identical to the drawings in the design patent... with only changes to the parts that are outside of the patent claim.
Samsung's just trying to cover their butts. It really is pathetic. But in light of just how physically similar those two devices are, I'm genuinely surprised it's Apple being roasted over it. At least I take a little comfort in knowing that it's not that easy to get ahold of both devices and see them side by side, something the lawyers and judges have been able to do.
Also bear in mind that while Judge Koh denied a preliminary injunction on the grounds that Apple hadn't shown the patent was clearly valid, she did not similarly decide that Samsung likely didn't infringe.
Patent litigation is two stage - first, showing the patent is valid or invalid; and second, showing whether the defendant infringed the patent. It's possible to "infringe" the patent, but get off because the patent is invalid... that looks like the way Samsung is trying to go.
And it's very hard to think of anything this design patent shows that isn't "rectangular. round corners": USD627777S1
Then you're not looking very closely. The curved back, with an oval profile, is part of the design. The particular radius of rounding on the corners is part of the design. The placement of the home button is part of the design. The particular placement of the screen and bezel size is part of the design. There are many more elements to the design.
Just "rectangular. round corners"? That describes a bus, too. Does that patent look it claims the design of a bus? No. This is a lot narrower than you think it is.
Apple is claiming that they own the patent and/or copyright to a rectangular tablet with a screen on the front -- all of 'em.
If you don't even know the difference between a utility patent, design patent, and copyright, then why should we take your statement as being at all credible?
In truth, Apple is not claiming that they have a design patent on "a rectangular tablet with a screen on the front - all of 'em." In fact, in the Germany case, Apple explicitly mentioned features found in competitor's tablets - HP, Microsoft, Sony, etc. - that were not covered by their design patent. So, no, your "all of them" is completely untrue.