You decry all of us here as being ignorant fools, but you provide nothing by which to educate or persuade us.
Read my posting history.
Though, you must understand, I (and others, I am sure) will actively debate any statements you may make.
Read my posting history. The correctness of my opinion is not dependent upon my sunny disposition. To be perfectly blunt, I don't feel obliged to provide a cheerful, helpful crash course in a complicated topic when confronting people making statement analogous to "Linux sux becuz Windows invented the desktop!!1"
It would also relieve the patent reviewers of the burden of having to be experts in all types of varied fields.
To what are you referring? If it is the opinion I suspect, it is plainly wrong.
The patent listings are not the sole source of prior art, and should also not be used to determine uniqueness and other reasons for granting a patent.
This is on the cutting edge of future-thinking, 1807 style. Look on the front of almost any US patent and you'll find a long list of non-patent literature that has been cited by either the patent application or the patent examiner. All of these have been considered by the patent examiner.
As it is, if they don't know of prior art they seem to just grant the patent.
Right, right. We SHOULD have a system where, when no evidence exists to support the denial of a patent application, we simply reject, reject, reject anyway. UTOPIA! Next let's you and I reform murder statutes! All of this tiresome investigation, questioning, and evidence gathering is pointless! What we need is people in jail! When you're done fixing the patent system, and patent applications are FINALLY rejected despite an absence of prior art, and murder is fixed, FINALLY putting people in jail when there is no evidence that they're guilty, I'll shoot myself in the face because you've turned two reasonable systems into jokes.
Peer review would help to bring sense to this situation, even if at first it brings confusion IMO.
Please stick to topics with which you are familiar. 1) "Peer review" has been in place for YEARS and it's called the PTO's Board of Appeals, where predominantly former patent examiners "peer review" the rejections of the current patent examiners (SECRET INFORMATION: The board of appeals often ISSUES patents that patent examiners were trying to reject, based on PEER REVIEW). 2) Your implication that patents should be rejected when there is no prior art is asinine, in case my sarcasm was too subtle. 3) Your opinions are wildly ignorant of the existing patent system ("Now if company B wants to innovate on [company A's patented] products, they will have to fight company A's patent or take their chances in court" is flagrantly ignorant of patent infringement and patent statutes).
Naturally Slashdot pats you on the back, hoists you on their shoulders, and moderates your post +5 Insightful. This is exactly why I consistently urge Slashdot to stop running stories about patents. This is precisely why nobody working in the patent system gives a rat's ass about the Slashdot groupthink. As a community, Slashdot is drastically uneducated about the CURRENT patent system, but won't shut up about how they're going to "fix" it. For anyone interested in actually improving the patent system, Slashdot forces itself to be a waste of time and space.
Quick, somebody moderate this as flamebait. Never, under any circumstances, consider this a challenge to reform the Slashdot community to be anything but laughably ignorant of the patent system it despises so deeply. This is the place for blind hatred, knee-jerk reactionism, and protecting the delicate groupthink; this is Slashdot.
To quote the patent: "The applicator may be in the form of a human tongue and the closure may be in the form of a human lip."
Like I said in the first place, READ THE PATENT.
5. An apparatus as recited in claim 4 wherein said moistening member has a configuration resembling that of a human tongue.
That's describing a MACHINE where the parts have the APPEARANCE of a human tongue. Look at your quote. That's what the words "in the form of a human tongue" means. I fully and completely stand by my correct analysis that this has nothing to do with a method of licking an envelope, like regular people do to pay bills.
What does that have to do with anything? Yes, it's expired. That still means someone at the patent office got this application, reviewed it, and approved it.
Well, I guess this was my mistake. I presumed you meant that recently the patent system has demonstrated it is broken. I didn't think you were referring to the entire technology revolution of the latter half of the 20th century as evidence that the patent system has ruined all technological innovation. I think I clearly overestimated the strength of your argument.
There's nothing novel about. It's not a new invention, it's a tacky oversized version of an existing product. The issue is the prior art is incredibly obvious. The patent examiner is supposed to be denying patents on stuff like this.
Just tossing this out there, but I'm guessing that if you read MPEP 2143 and subsections, you would be completely surprised by the contents. Ya see, an "obviousness rejection" was codified in the 1952 Patent Act as 35 USC 103. In Graham v. Deere, a whole lot of judicial precedent, legal history, and arguments from lots of very intelligent people were formulated into a guidelines to establish an objective system by which an invention could fairly be rejected as "obvious". This was to avoid any arbitrary finding of "obviousness" where it was not warranted, to avoid the use of hindsight to declare something is obvious, and places a burden of fact upon a proper finding of "obviousness".
I'd love to see your incredibly obvious prior art for the tacky, oversized drink umbrella with a clip to hold it on the beverage. I've never seen one, but the burden is on you - who allege that this is incredibly obvious - to show support. So far, you've made a seemingly arbitrary finding, are very likely using hindsight ("That's simple, I could have come up with that!" but of course, you did not), and have shown no facts whatsoever.
To have any chance of convincing me that this invention is "incredibly" obvious within the meaning of the patent system, you'll have to find at least 1) all the parts of the claimed invention in the prior art, and 2) statements or reasoning in the prior art that motivates a person to combine the prior art references. (The topic is actually more complicated than that but I'll excuse the finer points.) Naturally this will be very easy for you to do because it is "incredibly" obvious.
And if you can't, the patent examiner had no legal justification whatsoever to delay issuing the patent.
PS - In the industry, a patent is very often certification that your idea is so dumb, nobody else would admit to having tried it. In other words, your invention is such a joke that no prior art exists, because you were the first person willing to put your name on it. I can't speak for this situation, but I think there is probably not a lot of competition to advance the science of drink umbrellas. That fact alone will very likely limit your available prior art. But good luck.
The wheel story is about the Australian patent system. Nice try.
The second is not a patent on "moistening stamps and envelopes". Take ONE LOOK at the very few claims. It's for an apparatus that moistens adhesives (stamps, envelopes, whatever). To act like this is a patent for a method of licking a stamp is moronic. By the way, this was patented in 1981 and is expired.
I can't possibly fathom what the problem is with the cocktail umbrella. Please clarify. Specifically I'm curious whether you have a problem with alleged prior art (although I must admit I've never seen a spring-clip drink umbrella myself) or because it's a silly invention (which has no bearing whatsoever on any issues of validity)?
And if you'd like a more polite conversation, first refrain from this obnoxious habit of tossing the word "yet" into everything. It's logically fallacious and does nothing but annoy your readers.
So where are we at? You have a freaking DESIGN patent (still chuckling about that), a story about the Australian patent system, a 26 year-old patent for a machine that seals envelopes, and clip-on drink umbrellas. WOW, you've REALLY failed to convince me that the US Patent system has demonstrated that it is broken. (A DESIGN patent? I said right up front that you probably don't know much about the patent system and you come back with a DESIGN patent. QED.) Please clarify about those drink umbrellas, though. That'll really knock it out of the park.
That's a design patent. If you don't understand the difference between a design patent and a utility patent, I'm not going to waste my time explaining it to you. Ha ha, and I was actually sweating it a little that you might have something that would make me stretch my knowledge. A f'ing DESIGN patent?
See my other response. The silence is deafening. Read my posting history. You're -yet- another Slashdot patent-hater who can't back up anything with a fact.
Once again, you forgot to the word "yet" at the end of that first sentence. With the way the patent system has already demonstrated it is broken, what with granting individuals patents on such modern breakthroughs as the wheel and forks, do have any doubt this will become a patent in the end?
You, as an individual, might have some knowledge of how the patent system operates. However, the Slashdot community as a whole couldn't be more deliberately ignorant of this system which it purports to loathe. Of course, hatred of something you know nothing about is not exactly an admirable quality, and there exists a great deal of historical precedent for that type of thing.
That disclaimer out of the way, can you cite a single credible fact that shows the patent system is broken? Of course, besides the American pharmaceutical and technological industries which dominate their competitors around the world. And of course, even the Japanese technology corporations seek patent protection in the US for all that they do. I mean, clearly, this is a system that has a strangle hold on American industry.
And naturally, making an ignorant criticism is pretty close to the definition of "trolling" or "flamebait," depending on the circumstances. I made the factually accurate and objective statement that there is no patent to discuss, and some genius moderated my post "flamebait". You made a completely baseless attack on a system you very likely know nothing about (maybe I forgot the word "yet," as in, "yet you very likely know nothing about it") and probably that same genius moderated you "insightful".
Let's step back and look at that objectively. Whenever a patent story is posted on Slashdot, the entire situation is nothing but a giant "troll" post. The moderation here supports my point perfectly - I wish Slashdot would stop running these stories because the collective knowledge of the patent system at Slashdot adds up to a warm turd.
Please, please find that credible source saying that the patent system is granting patents on wheels and forks. And please don't dumb it down for me. I have a degree in CS and in mathematics and will cite patent law and the manual of patent examination procedure to demonstrate your lack of knowledge.
The Slashdot summary is complete alarmist hyperbole. To quote, "When the allowable number of incorrect answers has been exceeded, several response are possible, from noting a user's record but taking no action, to a follow up communication with the user, to disabling or even repossessing the computer 110. The policy may be directed to a single computer and thereby a single user or subscriber. Alternately, the policy may extend to a group of computers and correspondingly to a common owner, for example, a business or school." (paragraph 0034)
This is part of the disclosure of the application. The claimed invention includes nothing as ridiculous as repossessing the children's computers. I don't have the patience to explain the difference between the disclosure and the claims any more. I really wish Slashdot would stop running stories about patents because the editors have demonstrated a complete inability to discern the crap from the valid news, and this contributes to the Slashdot community's rather profound ignorance on the topic.
The closest thing to "repossessing a computer" in the claimed patent protection appears to be the language of claim 15, which is clearly far broader than stealing computers from children.
It would have taken anyone with any reasonable level of knowledge of the patent system 5 minutes to dismiss the Slashdot summary as alarmist tripe. It took me longer to type this post than to come to that conclusion. I really wish Slashdot would stop running patent related stories.
He can't pay his phone bill. He can't pay his 13 or 14 credit card bills. He's months behind on mortgage payments on his 4 or 5 houses (5-8 mortgages?). I think he has $600k+ in unsecured debt. (These numbers are all from recollection - I'm not looking this up at 2am.)
He gets some junk mail for $52/year roadside assistance. It's crap that arrived in the mail. As many of his readers pointed out, he could get the same service for $12/year from his existing car insurance. He impulsively signs up for the $52/year junk mail service. -He can't even pay his phone bill-.
If I were standing before my maker, I wouldn't say he's simply a greedy SOB. I think he has a mental or psychological problem. I think he's very similar to a gambling addict, except his addiction is debt or risky investment or something like that. You could honestly sell him the Eiffel Tower for $100. He's addicted to being a sucker, not necessarily greed. He's still in debt for millons and he's unfortunately worth literally nothing. Society can never extract from him the damage that he's done.
Or he's a very, very clever con artist. I give it less than a 1 in 1000 chance, but it's hard to believe that such a miserable and dumb human could really secure $2M+ in loans.
This is admittedly a long shot, but if Casey Serin at http://iamfacingforeclosure.com/ turns out to be fake, it will be one of the best con jobs ever performed.
My only reason for thinking that it's fake is because it's really, really hard to believe that someone with a lack of sense, intelligence, and decision making ability as catastrophic as Casey's could actually surive to age 24.
With every update, I find myself asking, "This can't be for real. Nobody is dumb enough to be $2.2M in debt, unemployed, penniless, and sign up for $52/year roadside assistance just because the offer showed up in the mail." Yet that's exactly what this genius claims to have done. It may be a long shot, but I cannot convince myself that Casey Serin is 100% nonfiction.
But this notion of people getting the majority of their news from places like this has got to stop. I know it sounds pretty cool and progressive to dismiss traditional media and show a preference for alternative sources, but it's gotten out of hand.
How about this. I get my leads on the news from The Daily Show. They bring me the punch line, then I go out and find the story myself. I can't speak for everybody, but that's a fact.
Somebody, somewhere, in the mass media industry should pay attention to that. The Daily Show suggests books about politics and I read some of them. Nobody else on television wins that honor. Not only do I find my news leads from The Daily Show, but I also find detailed, novel-length analysis through The Daily Show.
You're talking about patents where there are hundreds of millions of dollars at stake. Those are exceptional, and may well be worth contesting. The vast majority of patents aren't in that league. It's these patents - the ones where only moderate amounts of dollars are involved - that people don't bother to contest, but can still create considerable amount of frustration when they are vague, ambiguous, or overbroad.
It may be very true that they cause frustration, but it does not change the simple fact that nearly every infringement lawsuit includes one, if not multiple, invalidity attacks - regardless of the damages sought. Those suits that go through to a settlement represent patents that - by hook, by crook, via incompetent defense, or by honest validity - survive the attacks.
That improved seismic data is not something you can "see or touch" would come as a massive surprize to people in the industry. And your definition of "software patent" has now been expandeded to include all of data processing.
It was the cryptic State Street decision in the 1990s that opened the door for software patents. The invention in that case was a method of calculating a price (using a computer). Same villian, different costume. And yeah, a "software patent" does include pretty much all data processing that does not expressly recite specialized hardware. It's not MY definition - that is what this debate has always been about.
This gets to the very root of the problem - given that computer chips are found everywhere, defining "software patents" in a way that clearly delineates what is meant, and is not easily got around, is remarkably difficult.
Quite true. In Tanenbam's Structured Computer Organization, he baldly states that hardware and software are equivalent (it's somewhere in the first 20 pages of my edition (fourth?)). As a holder of a degree in the science of computation, I couldn't agree more. You could, theoretically, implement the Pentium IV processor in software on a PDP-11, ENIAC, or Turing machine. You could, theoretically, implement Linux and a plethora of applications in an ASIC. You could conceive of a computer system where "One Click Shopping" is merely a dedicated ASIC that you plug into a socket. Why are some of these "good enough" contributions to the technological knowledge of mankind to earn a patent, but some of these are not?
Attempting to distinguish between the two becomes pedantic. Realizing it is futile, the US patent system no longer tries. Current practice is aimed at a completely different set of criteria to determine what can and cannot be patented as a method. If you're curious, that criteria is summarized in MPEP 2106 (google search goes right there).
Ah, the usual patent booster's response; try to baffle people with voluminous bullshit and then act all surprised when people tell them the fundamentals that bullshit is based on is flawed.
You are literally arguing from a perspective of self-acknowledged ignorance. In smaller words, you start by insulting all knowledge of the topic, and finish with your enlightened opinion.
There can be no greater demonstration of verbal diarrhea.
Nonsense. That's just the rare, best case. That is, best case for the patent mafia. Everybody else loses.
That's just hyperbole, and it's completely ignorant of basically every patent infringement suit ever. Also, see this thread for some more reasoned explanation.
Although in principle they can be overturned, in practise (as my last post discussed) it's seldom worth the effort.
I think you would find that this is simply incorrect, almost as a rule. I don't work in the biotech area, but 2 years ago a colleague told me that a pharmaceutical company needs to see patent protection after $500M investment in a new product. If they don't have a patent, they'll write off the project as a loss. On the flip side, if someone tries to sue me for one of these multi-billion dollar products as allegedly infringing, I'd happily throw millions upon millions of dollars at a lawyer who could make that go away via invalidation.
Blackberry's suit was settled for something in the neighborhood of half a billion dollars. If NTP's patents could have been invalidated, it was assuredly worth Blackberry's time and money to try. Sony paid something near $100M in a recent infringement suit involving their Playstation controllers. There are numerous examples of huge settlements like this.
And the average Slashdot reader concludes, with diamond-like clarity, that this proves that patents are overly broad. The elephant in the room is that when faced with a $100M bill (the smallest of the three scenarios I mentioned), any reasonable corporation staffed by dozens or hundreds of brilliant business managers, backed by a board of directors, and in many cases traded publicly by thousands of shareholders, would have made every attempt possible to avoid that loss. How much would you pay to avoid a $100M bill? $10M? $25M? Would you just roll over and say, "Well, the patent examiner probably did a crappy job anyway, we'll just pay up"? That would be simply moronic, but that is response implied by thousands of Slashdot readers on a regular basis.
The second rather glaring issue that is rarely, if ever addressed, is whether or not the average Slashdot reader is prepared to determine what is or is not an overly broad or ambiguous patent under 35 USC. Long story short - the average Slashdot reader is not even slightly qualified to make a humorous comment about this. Many Slashdot readers think that "obvious" under 35 USC 103 has something to do with "simple" or "trivial", which is pure fantasy. Of course, this is never an issue when so many Slashdot readers convict the patent system of issuing broad and ambiguous patents. The manual printed by the patent office for examiners and attorneys to use is something like 10,000 pages - but Slashdot readers transcend this knowledge without error.
(I refer to Slashdot readers because I wouldn't want to presume what your thoughts and opinions are. I'm trying to explain the problems I encounter when reading Slashdot that prompt my attitudes and posts.)
6,798,714 is cross referenced to class 702, which is a data processing class. The first claim certainly falls under the umbrella of "software patents". 6,895,336 is issued in class 702 and the first claim is for data processing - clearly a software patent.
In contrast, these are not methods for producing something you can see or touch (i.e. vulcanizing rubber) and they're definitely not for a machine made of tangible parts. Software patents are data processing without any specialized or requisite hardware. It's not all email and online shopping. Anyhow, congrats - you are a named inventor of two so-called software patents. When this topic comes up, people are indeed talking about invalidating your patents and patents like them. That argument insists that your contribution to the technological arts should be protected by copyright or trade secrets because all you have created are ideas, not inventions.
I don't know how you feel about that. I happen to know a little bit more about the workings of the patent system than the average Slashdot reader, and as a result I have a slightly different opinion on the issue.
Congratulations on the patents. I presume you mean geophysics equipment, methods of extraction, or something like along those lines. I'd be interested to see them.
The only thing I'm paid to do is talk with IP lawyers. But it's good advice, and should be spread around on Slashdot more often.
And you are right - all patents ARE presumed to be valid until proven otherwise. A patent that is never enforced (or is unenforceable) is nothing but wallpaper. If you have a weak patent that could be invalidated, that's the FIRST thing you'll be told when you try to license it or enforce it in court. And yeah, it costs money. So do stationary supplies, accountants, parking spaces, and toilet paper. It's a cost of doing business in the US. You could always relocate. China beckons.
And to be perfectly honest, I think there is at best only a tenuous connection between patents "suffocating" and the financial cost of defending against them. I think your original post was directed more toward the idea that patents were stifling innovation, thereby "suffocating" the progress of technology. Of course, this has very little to do with the hourly fees charged by lawyers for their skills and expertise. But maybe I'm mistaken. Clarification would be welcome. Or, if you'd really like to change topics, be my guest. I'll consider the first point won.
I have been in much the same situation - vague, overbroad, ambiguous patents that seem to cover the earth. In theory they should be easily contestable - in practise they are suffocating.
This has less to do with software patents, per se, than just bad patents in general.
I read this on Slashdot over and over. It's a classic joke by now to those who have half a clue how the patent system works.
If the patents were vague and ambigous, they would be challenged in a courtroom by the alleged infringer's attorneys under 35 USC 112 and would be found invalid. If they were overbroad, they would be challenged in a courtroom by the alleged infringer's attorneys under 35 USC 102 and 103 and found invalid. We're not talking about PhD thesis caliber concepts here. If the patent is invalid, it will be invalidated by a clever, highly paid infringement defense attorney.
This hilarious "critique" of the patent system is the logical equivalent arguing that cats are fish because they have whiskers, fur, and four legs.
But don't let that slow you down. This is the making of a classic one-liner. In Soviet Russia, the patents are so invalid that they're never invalidated. I think these like-minded Slashdot "patent experts" should organize a political group to reform the patent system based on their demonstrated knowledge. It would be adorable.
Eh it's poor taste to reply to yourself, but I did a teensy bit more research. It's actually 3.5 years till the first maintenance fees, and I can't find the statistic of what portion expires at the first fee date. Managing the fees of issued patents isn't my bread and butter.
Patents last the term and do not fade in that way. They are full effect for 20 years.
Only if you pay the maintenance fees. I don't have the number at hand but something like 60% of all patents expire after 6 years, when the first maintenance fees are due. If it's not close to 60%, it's still a surprisingly large portion.
First of all, you have misinterpreted the meaning of MPEP 2142. That section merely sets forth that the patent examiners have the initial burden of proof to reject a claim under 35 USC 103, and if that burden is not met, the applicant has no obligation to rebut a presumption of obviousness. This section has nothing at all to do with the rest of your post. But let's overlook that and return to your point.
At which they have failed miserably to date.
This statement only makes sense if we both agree to drastically misconstrue 60 years of legal precedent and completely rewrite 35 USC 103 for the purposes of discussion. People complain about judges rewriting the law from the bench, this is rewriting the law on the internet. To be perfectly clear, there is no legal basis to support your opinion. I really think you should be interested in the principles behind existing patent law. At the very least, it will help you form a more poignant critique of the patent system.
Because the majority of the current applications are for gaming the system and primarily to impede a competitor and/or build a defensive patent portfoliio to be bartered when accused of infringement by other weasals gaming the system. There is foul layer of "intent to deceive" underlying most of these players.
Oh really? The US patent office receives about 370,000 applications per year. Almost all applications are pending for more than 1 year. I've read that pendency ranges from about 1.5 to 3.5 years depending on technology. Saying there are 1 million pending patent applications is probably a safe ball park estimate. I'm not going to descend into hyperbole or colorful illustration, but I'm going to say that you have not got the slightest chance in hell of convincing me that "the majority of the current applications are for gaming the system".
The rest of this seems to be a tautology. A patent is a "right to exclude" others from practicing the invention. Therefore, arguing that a "right to exclude" is "primarily to impede a competitor" is not exactly mind blowing. Further, the fact that a patent is intellectual property (emphasis on property) makes it not too surprising that, like other assets, it would be used as leverage when accused of infringement. So I'm left wondering what this "intent to deceive" comment is based upon.
There MUST be an assumption of obviousness and that an APPLICANT must present documentation showing a reasonable effort to research the absence of prior art for those aspects which they claim are novel.
I disagree with this for so many reasons that I can't possibly describe them all in detail. Your statement still confounds the definition of "obviousness" in the patent system, and thereby implies an entirely new and unprecedented reason for rejecting an application. Getting past that, this suggestion clearly penalizes the independent inventor who struggles to afford legal counsel under the current system without paying for documentation and research of the prior art. Of course, this suggestion would simply create useless paper for the patent office to sift through because, surprise, NOBODY can find prior art for the OWN invention. Gosh, big shock.
And you might be surprised to know that if an inventor wants his application examined quicker, he can petition to make the application "special". One of the ways to do this is to pay for technology experts to research the prior art and turn over all their results (with summaries) to the patent office. In my entire career, I've heard of someone paying for this once, the examiner did not use any of the prior art that was provided, and the application was repeatedly rejected on the basis of different prior art. I think that a proposed rules change from the patent office is going to remove this route to "special" application because it's little more than a waste of time and money for everybody.
Sorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.
This may be true but this has nothing whatsoever to do with the term "obvious" in the US patent system.
"Novel" means that a single piece of prior art describes the invention. We're all on the same page here. There is incredible confusion about the term "obvious" in the US Patent system. It means that, at the very least, the invention is fully described in two or more pieces of prior art (plus some requirements that I'll skip for brevity). There is no "simplicity" aspect of "obvious" in this US Patent system.
"Obvious" in the US patent system only means that if you could combine two or more pieces of prior art, then the invention would not be "novel". It does not mean that "simple" inventions are unpatentable.
And you can read this for yourself straight from the USPTO's manual for patent examiners: MPEP 2143. I'm referring specifically to the third requirement at that link. The other two are important, but if you cannot find every piece of the invention in the prior art, then it is legally non-obvious. There is no such thing as a "simplicity" or "complexity" requirement.
In other words, according to law, if the plumber or the coder solved a routine problem with a solution (or a piece of a solution) that cannot be found in the prior art, that is an invention. Maybe he was the first programmer to horrifically abuse a loop iterator in that particular fashion. Hey, maybe it's a dumb invention, but if it's not in the prior art, it is an invention.
Now, as a separate topic, you might be completely right that this causes problems. However, the fault is not with the USPTO - they enforce law and policy as it is delivered to them, no matter how poorly understood that system is here on Slashdot. Whether this situation is good or bad I'm not going to entertain at length. I just want to point out that your conclusion, that plumbers and coders solving problems is "obvious", is not relevant to the definition of "obvious" in the patent system.
That really doesn't add up. First to file means I can invent something a week before you, you file it first and get the patent, and then mine can still be used as prior art, thereby making a simple timing issue cause there to be no patent at all? I thought prior art under such a system had some requirements on some things, e.g. the invention had to be previously publically known or disclosed.
As the other response noted, which I'll distill to a single phrase, "First to file awards the earliest possible disclosure of your invention." Waiting to file is at your own peril - you risk forever losing the patent rights to your invention.
But still, none of this prevents you from invalidating an issued patent by disclosing your prior art.
To answer the original poster's question, I'd suggest either buying liability insurance, hiring a patent attorney to investigate his liability or patent suit, or both.
When starting up a new business, it's common practice to hire an accountant. Managing your finances, withholding from your employees' wages, and filing your taxes is complicated. If you screw up, it could destroy your company. It should be done by a professional.
Funny, all of those arguments apply to intellectual property as well.
Of course, if he wants to completely avoid being sued with a US patent, he could relocate to another country and refuse to do business with the US. You can't be sued where there is no jurisdiction.
Patents are a cost of doing business in America. You can adjust for that, or you can pray you don't go down in flames.
I agree with the parent that no spot checking system could be implemented.
Slashdot Mirror
Read my posting history.
Though, you must understand, I (and others, I am sure) will actively debate any statements you may make.
Read my posting history. The correctness of my opinion is not dependent upon my sunny disposition. To be perfectly blunt, I don't feel obliged to provide a cheerful, helpful crash course in a complicated topic when confronting people making statement analogous to "Linux sux becuz Windows invented the desktop!!1"
To what are you referring? If it is the opinion I suspect, it is plainly wrong.
The patent listings are not the sole source of prior art, and should also not be used to determine uniqueness and other reasons for granting a patent.
This is on the cutting edge of future-thinking, 1807 style. Look on the front of almost any US patent and you'll find a long list of non-patent literature that has been cited by either the patent application or the patent examiner. All of these have been considered by the patent examiner.
As it is, if they don't know of prior art they seem to just grant the patent.
Right, right. We SHOULD have a system where, when no evidence exists to support the denial of a patent application, we simply reject, reject, reject anyway. UTOPIA! Next let's you and I reform murder statutes! All of this tiresome investigation, questioning, and evidence gathering is pointless! What we need is people in jail! When you're done fixing the patent system, and patent applications are FINALLY rejected despite an absence of prior art, and murder is fixed, FINALLY putting people in jail when there is no evidence that they're guilty, I'll shoot myself in the face because you've turned two reasonable systems into jokes.
Peer review would help to bring sense to this situation, even if at first it brings confusion IMO.
Please stick to topics with which you are familiar. 1) "Peer review" has been in place for YEARS and it's called the PTO's Board of Appeals, where predominantly former patent examiners "peer review" the rejections of the current patent examiners (SECRET INFORMATION: The board of appeals often ISSUES patents that patent examiners were trying to reject, based on PEER REVIEW). 2) Your implication that patents should be rejected when there is no prior art is asinine, in case my sarcasm was too subtle. 3) Your opinions are wildly ignorant of the existing patent system ("Now if company B wants to innovate on [company A's patented] products, they will have to fight company A's patent or take their chances in court" is flagrantly ignorant of patent infringement and patent statutes).
Naturally Slashdot pats you on the back, hoists you on their shoulders, and moderates your post +5 Insightful. This is exactly why I consistently urge Slashdot to stop running stories about patents. This is precisely why nobody working in the patent system gives a rat's ass about the Slashdot groupthink. As a community, Slashdot is drastically uneducated about the CURRENT patent system, but won't shut up about how they're going to "fix" it. For anyone interested in actually improving the patent system, Slashdot forces itself to be a waste of time and space.
Quick, somebody moderate this as flamebait. Never, under any circumstances, consider this a challenge to reform the Slashdot community to be anything but laughably ignorant of the patent system it despises so deeply. This is the place for blind hatred, knee-jerk reactionism, and protecting the delicate groupthink; this is Slashdot.
Like I said in the first place, READ THE PATENT.
That's describing a MACHINE where the parts have the APPEARANCE of a human tongue. Look at your quote. That's what the words "in the form of a human tongue" means. I fully and completely stand by my correct analysis that this has nothing to do with a method of licking an envelope, like regular people do to pay bills.
What does that have to do with anything? Yes, it's expired. That still means someone at the patent office got this application, reviewed it, and approved it.
Well, I guess this was my mistake. I presumed you meant that recently the patent system has demonstrated it is broken. I didn't think you were referring to the entire technology revolution of the latter half of the 20th century as evidence that the patent system has ruined all technological innovation. I think I clearly overestimated the strength of your argument.
There's nothing novel about. It's not a new invention, it's a tacky oversized version of an existing product. The issue is the prior art is incredibly obvious. The patent examiner is supposed to be denying patents on stuff like this.
Just tossing this out there, but I'm guessing that if you read MPEP 2143 and subsections, you would be completely surprised by the contents. Ya see, an "obviousness rejection" was codified in the 1952 Patent Act as 35 USC 103. In Graham v. Deere, a whole lot of judicial precedent, legal history, and arguments from lots of very intelligent people were formulated into a guidelines to establish an objective system by which an invention could fairly be rejected as "obvious". This was to avoid any arbitrary finding of "obviousness" where it was not warranted, to avoid the use of hindsight to declare something is obvious, and places a burden of fact upon a proper finding of "obviousness".
I'd love to see your incredibly obvious prior art for the tacky, oversized drink umbrella with a clip to hold it on the beverage. I've never seen one, but the burden is on you - who allege that this is incredibly obvious - to show support. So far, you've made a seemingly arbitrary finding, are very likely using hindsight ("That's simple, I could have come up with that!" but of course, you did not), and have shown no facts whatsoever.
To have any chance of convincing me that this invention is "incredibly" obvious within the meaning of the patent system, you'll have to find at least 1) all the parts of the claimed invention in the prior art, and 2) statements or reasoning in the prior art that motivates a person to combine the prior art references. (The topic is actually more complicated than that but I'll excuse the finer points.) Naturally this will be very easy for you to do because it is "incredibly" obvious.
And if you can't, the patent examiner had no legal justification whatsoever to delay issuing the patent.
PS - In the industry, a patent is very often certification that your idea is so dumb, nobody else would admit to having tried it. In other words, your invention is such a joke that no prior art exists, because you were the first person willing to put your name on it. I can't speak for this situation, but I think there is probably not a lot of competition to advance the science of drink umbrellas. That fact alone will very likely limit your available prior art. But good luck.
The second is not a patent on "moistening stamps and envelopes". Take ONE LOOK at the very few claims. It's for an apparatus that moistens adhesives (stamps, envelopes, whatever). To act like this is a patent for a method of licking a stamp is moronic. By the way, this was patented in 1981 and is expired.
I can't possibly fathom what the problem is with the cocktail umbrella. Please clarify. Specifically I'm curious whether you have a problem with alleged prior art (although I must admit I've never seen a spring-clip drink umbrella myself) or because it's a silly invention (which has no bearing whatsoever on any issues of validity)?
And if you'd like a more polite conversation, first refrain from this obnoxious habit of tossing the word "yet" into everything. It's logically fallacious and does nothing but annoy your readers.
So where are we at? You have a freaking DESIGN patent (still chuckling about that), a story about the Australian patent system, a 26 year-old patent for a machine that seals envelopes, and clip-on drink umbrellas. WOW, you've REALLY failed to convince me that the US Patent system has demonstrated that it is broken. (A DESIGN patent? I said right up front that you probably don't know much about the patent system and you come back with a DESIGN patent. QED.) Please clarify about those drink umbrellas, though. That'll really knock it out of the park.
That's a design patent. If you don't understand the difference between a design patent and a utility patent, I'm not going to waste my time explaining it to you. Ha ha, and I was actually sweating it a little that you might have something that would make me stretch my knowledge. A f'ing DESIGN patent?
See my other response. The silence is deafening. Read my posting history. You're -yet- another Slashdot patent-hater who can't back up anything with a fact.
You, as an individual, might have some knowledge of how the patent system operates. However, the Slashdot community as a whole couldn't be more deliberately ignorant of this system which it purports to loathe. Of course, hatred of something you know nothing about is not exactly an admirable quality, and there exists a great deal of historical precedent for that type of thing.
That disclaimer out of the way, can you cite a single credible fact that shows the patent system is broken? Of course, besides the American pharmaceutical and technological industries which dominate their competitors around the world. And of course, even the Japanese technology corporations seek patent protection in the US for all that they do. I mean, clearly, this is a system that has a strangle hold on American industry.
And naturally, making an ignorant criticism is pretty close to the definition of "trolling" or "flamebait," depending on the circumstances. I made the factually accurate and objective statement that there is no patent to discuss, and some genius moderated my post "flamebait". You made a completely baseless attack on a system you very likely know nothing about (maybe I forgot the word "yet," as in, "yet you very likely know nothing about it") and probably that same genius moderated you "insightful".
Let's step back and look at that objectively. Whenever a patent story is posted on Slashdot, the entire situation is nothing but a giant "troll" post. The moderation here supports my point perfectly - I wish Slashdot would stop running these stories because the collective knowledge of the patent system at Slashdot adds up to a warm turd.
Please, please find that credible source saying that the patent system is granting patents on wheels and forks. And please don't dumb it down for me. I have a degree in CS and in mathematics and will cite patent law and the manual of patent examination procedure to demonstrate your lack of knowledge.
This is part of the disclosure of the application. The claimed invention includes nothing as ridiculous as repossessing the children's computers. I don't have the patience to explain the difference between the disclosure and the claims any more. I really wish Slashdot would stop running stories about patents because the editors have demonstrated a complete inability to discern the crap from the valid news, and this contributes to the Slashdot community's rather profound ignorance on the topic.
The closest thing to "repossessing a computer" in the claimed patent protection appears to be the language of claim 15, which is clearly far broader than stealing computers from children.
It would have taken anyone with any reasonable level of knowledge of the patent system 5 minutes to dismiss the Slashdot summary as alarmist tripe. It took me longer to type this post than to come to that conclusion. I really wish Slashdot would stop running patent related stories.
There is no patent. There is a patent application. This is part of why I incessantly request that Slashdot stops posting stories about patents.
He gets some junk mail for $52/year roadside assistance. It's crap that arrived in the mail. As many of his readers pointed out, he could get the same service for $12/year from his existing car insurance. He impulsively signs up for the $52/year junk mail service. -He can't even pay his phone bill-.
If I were standing before my maker, I wouldn't say he's simply a greedy SOB. I think he has a mental or psychological problem. I think he's very similar to a gambling addict, except his addiction is debt or risky investment or something like that. You could honestly sell him the Eiffel Tower for $100. He's addicted to being a sucker, not necessarily greed. He's still in debt for millons and he's unfortunately worth literally nothing. Society can never extract from him the damage that he's done.
Or he's a very, very clever con artist. I give it less than a 1 in 1000 chance, but it's hard to believe that such a miserable and dumb human could really secure $2M+ in loans.
My only reason for thinking that it's fake is because it's really, really hard to believe that someone with a lack of sense, intelligence, and decision making ability as catastrophic as Casey's could actually surive to age 24.
With every update, I find myself asking, "This can't be for real. Nobody is dumb enough to be $2.2M in debt, unemployed, penniless, and sign up for $52/year roadside assistance just because the offer showed up in the mail." Yet that's exactly what this genius claims to have done. It may be a long shot, but I cannot convince myself that Casey Serin is 100% nonfiction.
How about this. I get my leads on the news from The Daily Show. They bring me the punch line, then I go out and find the story myself. I can't speak for everybody, but that's a fact.
In the last year I've read Speaking Freely - Floyd Abrams, What's the Matter with Kansas - Thomas Frank, The Assassin's Gate - George Packer, and Freakonomics - Edmund Mennis, all of which I first saw on The Daily Show. How many books have I read after seeing them on CNN, MSNBC, Fox News, ABC, NBC, CBS, combined? Zero.
Somebody, somewhere, in the mass media industry should pay attention to that. The Daily Show suggests books about politics and I read some of them. Nobody else on television wins that honor. Not only do I find my news leads from The Daily Show, but I also find detailed, novel-length analysis through The Daily Show.
You haven't come within 1000 miles of making a point.
You still insist on complete personal ignorance of the topic and expect me to give weight to your opinion. You are a fanboy.
It may be very true that they cause frustration, but it does not change the simple fact that nearly every infringement lawsuit includes one, if not multiple, invalidity attacks - regardless of the damages sought. Those suits that go through to a settlement represent patents that - by hook, by crook, via incompetent defense, or by honest validity - survive the attacks.
That improved seismic data is not something you can "see or touch" would come as a massive surprize to people in the industry. And your definition of "software patent" has now been expandeded to include all of data processing.
It was the cryptic State Street decision in the 1990s that opened the door for software patents. The invention in that case was a method of calculating a price (using a computer). Same villian, different costume. And yeah, a "software patent" does include pretty much all data processing that does not expressly recite specialized hardware. It's not MY definition - that is what this debate has always been about.
This gets to the very root of the problem - given that computer chips are found everywhere, defining "software patents" in a way that clearly delineates what is meant, and is not easily got around, is remarkably difficult.
Quite true. In Tanenbam's Structured Computer Organization, he baldly states that hardware and software are equivalent (it's somewhere in the first 20 pages of my edition (fourth?)). As a holder of a degree in the science of computation, I couldn't agree more. You could, theoretically, implement the Pentium IV processor in software on a PDP-11, ENIAC, or Turing machine. You could, theoretically, implement Linux and a plethora of applications in an ASIC. You could conceive of a computer system where "One Click Shopping" is merely a dedicated ASIC that you plug into a socket. Why are some of these "good enough" contributions to the technological knowledge of mankind to earn a patent, but some of these are not?
Attempting to distinguish between the two becomes pedantic. Realizing it is futile, the US patent system no longer tries. Current practice is aimed at a completely different set of criteria to determine what can and cannot be patented as a method. If you're curious, that criteria is summarized in MPEP 2106 (google search goes right there).
You are literally arguing from a perspective of self-acknowledged ignorance. In smaller words, you start by insulting all knowledge of the topic, and finish with your enlightened opinion.
There can be no greater demonstration of verbal diarrhea.
That's just hyperbole, and it's completely ignorant of basically every patent infringement suit ever. Also, see this thread for some more reasoned explanation.
I think you would find that this is simply incorrect, almost as a rule. I don't work in the biotech area, but 2 years ago a colleague told me that a pharmaceutical company needs to see patent protection after $500M investment in a new product. If they don't have a patent, they'll write off the project as a loss. On the flip side, if someone tries to sue me for one of these multi-billion dollar products as allegedly infringing, I'd happily throw millions upon millions of dollars at a lawyer who could make that go away via invalidation.
Blackberry's suit was settled for something in the neighborhood of half a billion dollars. If NTP's patents could have been invalidated, it was assuredly worth Blackberry's time and money to try. Sony paid something near $100M in a recent infringement suit involving their Playstation controllers. There are numerous examples of huge settlements like this.
And the average Slashdot reader concludes, with diamond-like clarity, that this proves that patents are overly broad. The elephant in the room is that when faced with a $100M bill (the smallest of the three scenarios I mentioned), any reasonable corporation staffed by dozens or hundreds of brilliant business managers, backed by a board of directors, and in many cases traded publicly by thousands of shareholders, would have made every attempt possible to avoid that loss. How much would you pay to avoid a $100M bill? $10M? $25M? Would you just roll over and say, "Well, the patent examiner probably did a crappy job anyway, we'll just pay up"? That would be simply moronic, but that is response implied by thousands of Slashdot readers on a regular basis.
The second rather glaring issue that is rarely, if ever addressed, is whether or not the average Slashdot reader is prepared to determine what is or is not an overly broad or ambiguous patent under 35 USC. Long story short - the average Slashdot reader is not even slightly qualified to make a humorous comment about this. Many Slashdot readers think that "obvious" under 35 USC 103 has something to do with "simple" or "trivial", which is pure fantasy. Of course, this is never an issue when so many Slashdot readers convict the patent system of issuing broad and ambiguous patents. The manual printed by the patent office for examiners and attorneys to use is something like 10,000 pages - but Slashdot readers transcend this knowledge without error.
(I refer to Slashdot readers because I wouldn't want to presume what your thoughts and opinions are. I'm trying to explain the problems I encounter when reading Slashdot that prompt my attitudes and posts.)
6,798,714 is cross referenced to class 702, which is a data processing class. The first claim certainly falls under the umbrella of "software patents". 6,895,336 is issued in class 702 and the first claim is for data processing - clearly a software patent.
In contrast, these are not methods for producing something you can see or touch (i.e. vulcanizing rubber) and they're definitely not for a machine made of tangible parts. Software patents are data processing without any specialized or requisite hardware. It's not all email and online shopping. Anyhow, congrats - you are a named inventor of two so-called software patents. When this topic comes up, people are indeed talking about invalidating your patents and patents like them. That argument insists that your contribution to the technological arts should be protected by copyright or trade secrets because all you have created are ideas, not inventions.
I don't know how you feel about that. I happen to know a little bit more about the workings of the patent system than the average Slashdot reader, and as a result I have a slightly different opinion on the issue.
The only thing I'm paid to do is talk with IP lawyers. But it's good advice, and should be spread around on Slashdot more often.
And you are right - all patents ARE presumed to be valid until proven otherwise. A patent that is never enforced (or is unenforceable) is nothing but wallpaper. If you have a weak patent that could be invalidated, that's the FIRST thing you'll be told when you try to license it or enforce it in court. And yeah, it costs money. So do stationary supplies, accountants, parking spaces, and toilet paper. It's a cost of doing business in the US. You could always relocate. China beckons.
And to be perfectly honest, I think there is at best only a tenuous connection between patents "suffocating" and the financial cost of defending against them. I think your original post was directed more toward the idea that patents were stifling innovation, thereby "suffocating" the progress of technology. Of course, this has very little to do with the hourly fees charged by lawyers for their skills and expertise. But maybe I'm mistaken. Clarification would be welcome. Or, if you'd really like to change topics, be my guest. I'll consider the first point won.
I read this on Slashdot over and over. It's a classic joke by now to those who have half a clue how the patent system works.
If the patents were vague and ambigous, they would be challenged in a courtroom by the alleged infringer's attorneys under 35 USC 112 and would be found invalid. If they were overbroad, they would be challenged in a courtroom by the alleged infringer's attorneys under 35 USC 102 and 103 and found invalid. We're not talking about PhD thesis caliber concepts here. If the patent is invalid, it will be invalidated by a clever, highly paid infringement defense attorney.
This hilarious "critique" of the patent system is the logical equivalent arguing that cats are fish because they have whiskers, fur, and four legs.
But don't let that slow you down. This is the making of a classic one-liner. In Soviet Russia, the patents are so invalid that they're never invalidated. I think these like-minded Slashdot "patent experts" should organize a political group to reform the patent system based on their demonstrated knowledge. It would be adorable.
Eh it's poor taste to reply to yourself, but I did a teensy bit more research. It's actually 3.5 years till the first maintenance fees, and I can't find the statistic of what portion expires at the first fee date. Managing the fees of issued patents isn't my bread and butter.
Only if you pay the maintenance fees. I don't have the number at hand but something like 60% of all patents expire after 6 years, when the first maintenance fees are due. If it's not close to 60%, it's still a surprisingly large portion.
First of all, you have misinterpreted the meaning of MPEP 2142. That section merely sets forth that the patent examiners have the initial burden of proof to reject a claim under 35 USC 103, and if that burden is not met, the applicant has no obligation to rebut a presumption of obviousness. This section has nothing at all to do with the rest of your post. But let's overlook that and return to your point.
At which they have failed miserably to date.
This statement only makes sense if we both agree to drastically misconstrue 60 years of legal precedent and completely rewrite 35 USC 103 for the purposes of discussion. People complain about judges rewriting the law from the bench, this is rewriting the law on the internet. To be perfectly clear, there is no legal basis to support your opinion. I really think you should be interested in the principles behind existing patent law. At the very least, it will help you form a more poignant critique of the patent system.
Because the majority of the current applications are for gaming the system and primarily to impede a competitor and/or build a defensive patent portfoliio to be bartered when accused of infringement by other weasals gaming the system. There is foul layer of "intent to deceive" underlying most of these players.
Oh really? The US patent office receives about 370,000 applications per year. Almost all applications are pending for more than 1 year. I've read that pendency ranges from about 1.5 to 3.5 years depending on technology. Saying there are 1 million pending patent applications is probably a safe ball park estimate. I'm not going to descend into hyperbole or colorful illustration, but I'm going to say that you have not got the slightest chance in hell of convincing me that "the majority of the current applications are for gaming the system".
The rest of this seems to be a tautology. A patent is a "right to exclude" others from practicing the invention. Therefore, arguing that a "right to exclude" is "primarily to impede a competitor" is not exactly mind blowing. Further, the fact that a patent is intellectual property (emphasis on property) makes it not too surprising that, like other assets, it would be used as leverage when accused of infringement. So I'm left wondering what this "intent to deceive" comment is based upon.
There MUST be an assumption of obviousness and that an APPLICANT must present documentation showing a reasonable effort to research the absence of prior art for those aspects which they claim are novel.
I disagree with this for so many reasons that I can't possibly describe them all in detail. Your statement still confounds the definition of "obviousness" in the patent system, and thereby implies an entirely new and unprecedented reason for rejecting an application. Getting past that, this suggestion clearly penalizes the independent inventor who struggles to afford legal counsel under the current system without paying for documentation and research of the prior art. Of course, this suggestion would simply create useless paper for the patent office to sift through because, surprise, NOBODY can find prior art for the OWN invention. Gosh, big shock.
And you might be surprised to know that if an inventor wants his application examined quicker, he can petition to make the application "special". One of the ways to do this is to pay for technology experts to research the prior art and turn over all their results (with summaries) to the patent office. In my entire career, I've heard of someone paying for this once, the examiner did not use any of the prior art that was provided, and the application was repeatedly rejected on the basis of different prior art. I think that a proposed rules change from the patent office is going to remove this route to "special" application because it's little more than a waste of time and money for everybody.
There should also be HEFTY PENALTIES (h
This may be true but this has nothing whatsoever to do with the term "obvious" in the US patent system.
"Novel" means that a single piece of prior art describes the invention. We're all on the same page here. There is incredible confusion about the term "obvious" in the US Patent system. It means that, at the very least, the invention is fully described in two or more pieces of prior art (plus some requirements that I'll skip for brevity). There is no "simplicity" aspect of "obvious" in this US Patent system.
"Obvious" in the US patent system only means that if you could combine two or more pieces of prior art, then the invention would not be "novel". It does not mean that "simple" inventions are unpatentable.
And you can read this for yourself straight from the USPTO's manual for patent examiners: MPEP 2143. I'm referring specifically to the third requirement at that link. The other two are important, but if you cannot find every piece of the invention in the prior art, then it is legally non-obvious. There is no such thing as a "simplicity" or "complexity" requirement.
In other words, according to law, if the plumber or the coder solved a routine problem with a solution (or a piece of a solution) that cannot be found in the prior art, that is an invention. Maybe he was the first programmer to horrifically abuse a loop iterator in that particular fashion. Hey, maybe it's a dumb invention, but if it's not in the prior art, it is an invention.
Now, as a separate topic, you might be completely right that this causes problems. However, the fault is not with the USPTO - they enforce law and policy as it is delivered to them, no matter how poorly understood that system is here on Slashdot. Whether this situation is good or bad I'm not going to entertain at length. I just want to point out that your conclusion, that plumbers and coders solving problems is "obvious", is not relevant to the definition of "obvious" in the patent system.
As the other response noted, which I'll distill to a single phrase, "First to file awards the earliest possible disclosure of your invention." Waiting to file is at your own peril - you risk forever losing the patent rights to your invention.
But still, none of this prevents you from invalidating an issued patent by disclosing your prior art.
When starting up a new business, it's common practice to hire an accountant. Managing your finances, withholding from your employees' wages, and filing your taxes is complicated. If you screw up, it could destroy your company. It should be done by a professional.
Funny, all of those arguments apply to intellectual property as well.
Of course, if he wants to completely avoid being sued with a US patent, he could relocate to another country and refuse to do business with the US. You can't be sued where there is no jurisdiction.
Patents are a cost of doing business in America. You can adjust for that, or you can pray you don't go down in flames.
I agree with the parent that no spot checking system could be implemented.