So rather than do the right thing and continue to make good subjective judgements (and occationally have a court disagree) they decided "ah fuck it, we'll just approve everything unless it can be objectively shown to have prior art."
Easy there killer. The courts have long ago tackled this issue and given the world the "Graham v. Deere Test" for 35 USC 103 obviousness. It's also addressed in MPEP 2143 and 2144, among other citations. (Google for any of this stuff. It's interesting reading if you're truly interested in the topic.) The usual features of this test are:
1. all the pieces of the invention are in the prior art
2. all the prior art is from similar areas
3. the prior art recognizes the advantages of each piece and suggests combination
4. combining the prior art would be within the skill of an ordinary person in that field
This leaves the door open for new combinations (bottle opener on your umbrella - both useful, but no suggestion to combine the two). However, the seemingly unfortunate aspect is that this opens the door open for trivial implementations of well-known techniques.
I happen to hold a degree in mathematics as well as computer science. My emphasis was in algorithms. I'm extremely familiar with techniques for coping with NP problems. In case you're not, a common technique is to translate (or "reduce") a given NP problem into a known NP-complete problem, solve that known NP-complete problem, then translate the results back into the original problem. This is a well documented, traditional method of dealing with NP algorithms.
But in text books, this concept is taught in the abstract. There are virtually no working examples of this being actually performed in the field. It's just a computer scientist's tool in his mental toolbox, just like linked lists, pointer arithmetic, and template functions.
But find evidence that any human being has ever considered taking NP algorithm A and solving it by reducing it to NP-complete problem B, and you'll be stumped. 1 in 100 chance you'll find it in a text book, but aside from that, you'll be searching for a needle amongst millions of lines of other people's poorly documented, poorly written, publicly available source code. It might be "obvious" as hell to any given computer scientist that this is precisely what you should do, but the FIRST component of proving something is "patently obvious" is finding all the pieces in the prior art. The Graham v. Deere test basically establishes that "the piece you cannot find in the prior art is invention". As applied to the chemical or mechanical arts, maybe that is very valid.
As applied to computer science, I think it's right to be skeptical of that conclusion. The science itself is directed to abstract concepts, therefore countless abstract concepts should be rendered obvious without holding your hand and explicitly explaining away every last nook and cranny. However, there is currently no legal basis to reject a patent for that line of reasoning.
So ultimately, I'm not disagreeing with your sentiment, but any effective criticism of the patent system (or anything) will require a certain level of knowledge about that system. The problem isn't simply that the USPTO is filled with people so dumb that they can't figure out what's obvious; the problem is that the current legal standards for determining what is obvious as pertains to computer science is questionable. Criticize the problem, not the symptom.
How many people with more than a passing knowledge of technology want to put it to work at the US Patent office?
How many people with more than a passing knowledge of law post on Slashdot?
I'm not an expert but this is an extremely tired point of flagrant ignorance at Slashdot.
Maybe you can find the prior art. Let's see it. Here's just one of the claims:
1. A method for securing software to reduce unauthorized use of the software, the method comprising:
associating a series of passwords with the software for each authorized user prior to distribution of the software,
requiring entry of a first password upon first use of the software; and
subsequently requiring entry of another password to continue using the software.
Just find a document or website or whatever published before 06-04-1997 that explains each of those steps. (Why 1997 not 1998? Read 35 USC 102 paragraphs a and b. There are many ways to get around prior art under 102(a). There is no way to get around 102(b). It is the bane of patent attorneys.)
How many software companies sell software where the real purchase you make is the "CD-key" or "activation key". This means all of them are violating this persons patent.
Really? The patent says, and I quote:
1. A method for securing software to reduce unauthorized use of the software, the method comprising:
associating a series of passwords with the software for each authorized user prior to distribution of the software,
requiring entry of a first password upon first use of the software; and subsequently requiring entry of another password to continue using the software.
You've mentioned a "CD-key" or "activation key" but where is the "another password to continue using the software"?
I'm not a genius here, I just don't see how a single CD-key could possibly be enough to meet that patent. You'd have to have something like a CD-key and a "Use key" that is entered every time the program is run, and it looks like this "Use key" is predefined before the software ships, i.e. it is not a user password that the user can choose.
And furthermore, I'm not even a CD-key would qualify as the "first password" depending on what the lawyers mean by "first use of the software". Maybe installation qualifies, maybe it doesn't.
Anyway, I'm not personally aware of any software that had two separate hard-coded authorization keys, and required the user to input the second one "to continue using the software". Maybe they're everywhere, I really don't know, but I don't think that "every CD-key" infringes on this.
But I'm not a lawyer, I just happened to look at the patent.
This idea doesn't seem to be clever enough to be non-obvious as required by section 103 of US Code Title 35.
Stating that is far short of proving that. What tests established by case law have you applied? There is absolutely no legal basis for "clever enough" that I'm aware of.
More seriuosly, the patents claim to provide an "apparatus and method", but fail to describe any actual appartus beyond the computer running the software under question. This is really a patent on an idea which contravenes section 102 of Title 35.
I appreciate that you're presenting a rational criticism, but your analysis is non sequitur. 35 USC 102 has nothing to do with patenting "an idea". You may have been referring to 35 USC 101 - but your own comment refutes your analysis. They disclose and claim a computer running the software under question. Sure, there was a spark of an idea to create the invention, but the invention itself is a computer running the software. That's a thing, not an idea.
For example "non-obvious" has devloved to mean "not already known", a situation which is beyond words.
It's been that way since 1952 when 35 USC 103 was written. Slashdot and the media think that "obvious" in 35 USC 103 means "clever" or "complicated," neither Congress nor the judicial system EVER had that intention.
Peruse MPEP 2143 and MPEP 2144 (and the several subsections).
BTW - yours is the most intelligent post I've read on Slashdot about the patent system in a long time.
Someone has probably already said this but you can flash the ROM on your DVD player and skip those inane advertisements. It'll also unlock the region encoding and you can play pirated movies from Bangkok or some crap like that, but I've never been interested in that.
Mine was really easy. I had to open the case and read the model of an IC inside it, but most of the time that step is unnecessary. I just hunted the web for the flash program, downloaded it, burned it's contents to a CD, inserted the CD in the DVD player, clicked a menu or two, waited 10 minutes, and that's it.
Now I can skip ANY FLIPPING JUNK they put at the beginnings of the DVD. That stuff drove me completely nuts, plus I found it ethically uncomfortable to cope with it in order to watch the movie I bought. It took me about an hour for the complete project (opening the case, reassembly, searching, burning the CD, and burning the ROM) and it has vastly improved how I enjoy my DVD player.
Slashdot reporting is persistently blatantly ignorant on the topic of patents.
1. You cannot "file a patent." You file an application, and you that application can be anything you damn well please. You could file your local telephone book if you like. Tell Slashdot you filed your phone book as a patent application. It will be all over the headlines and you'll be famous for "patenting the phone book," although anyone with 22 seconds of experience working with the patent system would know that statement is unquestionably false.
2. The article itself links to "the full patent" which is unquestionably not a patent. There is literally no story here.
It's not like this is funny - an application for sex toys or resurrection machines. It's not like it's morally offensive - an application for a suicide machine. It's simply an application for a way to make some money. Sure, people might not like it, but any idiot who can force people to watch advertisements is a marketing genius. Whether or not it's fit to be patented is another story altogether, and one that won't be answered for years. The 371(c) date of that application is June 2005 - it probably won't even be glanced at by a patent examiner until 2007 or 2008.
This informative post was brought to you free of charge. Sorry for the interruption. If you scroll down (or up), you'll read the normal Slashdot non-sequitur deliberate ignorance that brings you back to this website time after time. I just wonder if anybody but myself gets tired of reading systematically false and erroneous "news" reports on Slashdot.
That reminds me of the time my father-in-law came down from Canada to visit us a few weeks after we were married. The lights in the room where he and mother-inlaw were staying was controlled by an X10 module. [...] In the morning he was VERY annoyed, threatening to leave immediately if not sooner.
Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.
Yeah, and the technology industry is clearly so stifled that it's about to roll over and die. The stocks are plummeting, the layoffs are massive and systematic, the pensions are being slashed, profits are unheard of, and only a fool would choose to study for a career in technology.
You have a truly persuasive argument. I am convinced that you know three, heck maybe even four things about the patent system. It's truly shocking that nobody in working in patents ever looks to Slashdot for insightful opinions. Of course, Slashdot wanks itself by moderating drivel like your post +5 Insightful, but hey nobody is perfect.
When I talk about adding more information to the patent system, I am speaking of Rule 99 filing.
It is a woefully under utilized rule. I'm curious to know if you have any information about how successful these submissions are in affecting the claim scope of issued patents. Of course, this information might be difficult to acquire - it would mean a serendipitous combination of time windows around the pre-grant publication, the submission, opening the prosecution record in public PAIR, and a (non-trivial) analysis of the prosecution history.
Not only that, but we have problems with Willfulness, (and no, KNORR-BREMSE doesn't help).
I'd agree completely, although infringement strays from my expertise. I do have a related question - How much faith is put in rule 105? In the right circumstances, it strikes me as the tool to effectively end prosecution of some troublesome applications, and in others a lame response could turn the resulting patent into decorative wall paper. Yet the USPTO seems to rarely, if ever, use this rule (to the appreciation of many a practitioner.) I've only heard of it being used in a handful of cases and it has the potential to raise some very ugly issues relating to 37 CFR 1.56.
And how is this related to Willfulness? Well, Examples B and D in MPEP 704.11(a) specifically suggest that the USPTO require a statement about which of Applicants' products embody the claimed invention, and which of the competitors' products embody the claimed invention. Again, infringement is not my area, but it seems to me that a boneheaded response to that type of requirement could pose significant problems during an infringement suit, or perhaps even provoke trouble if prying eyes are watching PAIR.
I'm glad I finally met "that guy". Thanks for linking to your Q&A. I hope it's evident that I have some experience in this field and I'm taking the LSAT soon. (Care to recommend a school in the DC area?) I'd love to move more into politics, especially in the intellectual property area, but one step at a time. I'm still young.
I, along with Diane Peters from OSDL, Bruce Perens, lawyers from IBM and others got together at the USPTO last month to talk about ways to improve patent quality. No solutions yet, but some good discussion.
The quality issue MUST be solved, and NOW; so before you launch into a general "patents suck" rage, take a reality check and think about ways to get more prior art into the patent system and improve the quality.
I've yet to talk to anybody on Slashdot who had the slightest clue what patent quality means. Maybe you're that guy, maybe not. I've yet to find anybody on Slashdot who criticizes the patent system with even the most basic understanding of how the system works. Hell, it's a rare occasion to find somebody on Slashdot who recognizes that the USPTO does what Congress and federal courts tell them to do rather than simply make up laws and policy however they feel like.
My point is that Slashdot talking about patents is a joke. To make a couple of analogies, Slashdot is grandma telling you about the internet. Slashdot is the script kiddie telling you about UNIX security.
Your post seems to be far more constructive than most, but still misses the point in my opinion.
The quality issue MUST be solved, and NOW; so before you launch into a general "patents suck" rage, take a reality check and think about ways to get more prior art into the patent system and improve the quality.
Getting more prior art "into the patent system" (I'm not even sure what that means or what you're trying to suggest) is hardly the problem. In contrast, there are some significant issues regarding the Graham v. Deere test as applied to computer related inventions in order to establish a prima facie case of legal obviousness. That has nothing at all to do with access to more prior art.
Another significant problem is the ambiguity of 35 USC 101 and how that's supposed to be applied to computer related inventions. On the one hand, there is a huge economic advantage to allowing software patents in the US (if we're the only nation that will protect software with patents, there is a huge incentive for large corporations to do business (and keep jobs) in the US) but this is a clearly objectionable idea to many people for all the usual reasons. But there is no clear legal basis for going either way. As far as I can tell, nobody inside or outside the USPTO has a clear idea what is excluded by 35 USC 101. The patent office is doing what it can to follow judicial decisions on this topic, but those decisions are a mess. Even State Street (the decision from the mid-90s that opened the door for software-related patents) is barely coherent. That decision says that the MACHINE was a patentable invention, but then inexplicably begins to discuss a patentable SOFTWARE METHOD.
And out of that murky soup, patent examiners are expected to make 1-3 determinations on that topic per day, based on the hundreds of pages of summaries, rules, and guidelines. It's a mess, but it isn't something the USPTO can fix. Someone on the outside has to push the issue until it reaches a courtroom, where (hopefully) some clear judicial precedent can be set. There are problems, sure, but everybody on Slashdot is ranting about the USPTO. What the hell does the USPTO have to do with amending federal legislation or handing down CAFC decisions? This is like a 12 year old kid trying to tell me what is or isn't good music. Even a third grade social studies textbook can explain why the executive branch (like the USPTO) doesn't write its own laws.
If there's a legitimate complaint about how the USPTO actually operates, then sure, they should fix that, but I've yet to read a single coherent complaint about that.
The issue of "more prior art" simply isn't that relevant. Patent examiners perform a $2000 prior art search. If you're sued for patent infringement, it's common to spend $50,000, $100,000, or $5M performing a prior art search for a validity attack. The patent office was ne
Talk about a certifiable, excitable, ignorant fucktard... You're doing the equivalent of jumping up and down, swinging your arms and flapping those big gums whilst shouting "Hey everyudddy! My mom dropped me on my head!"
In addition to being flat wrong, you're doing precisely this, as an anonymous coward.
Insightful and honest response - I don't discuss anything but patents on Slashdot and this is a rarity.
The software industry is pretty much the only industry that has such an impossibly difficult time coming to terms with what's patentable and what's not. I think much of this has to do with the fact that "creating product" in this industry is almost strictly an intellectual enterprise. There aren't any raw materials to transform into manufactured goods. Aside from the ubiquitous personal computer, there isn't any specialized equipment required. However, like other industries, there is typically a huge investment required to get that final product, the sales of which support the company's operation.
The flip side of that issue is that it's so incredibly easy to basically rip off the other guy's product. Sure, the code is copyrighted, but once you see one successful product, it's simply "obvious" to make your own version and move in on the other guy's market. While not unique to the software industry, this behavior is, I think, more immediate because there are no new machines to buy, raw materials to source, etc.
A third factor is, as you've hinted, the incredibly rapid pace of development in this industry. This sets it apart, if not alone, from most other industries.
There are a couple of existing remedies.
Patents can be invalidated in a courtroom, for very good reasons. The patent office was never intended to be a "perfect" judge of patentability. Consider that a really good attack on the validity of a patent in an infringement suit often costs $250k, $1M, or more, just to pay the technical experts for their time. THAT is far closer to a "perfect" judge of patentability, but how could you expect the patent office to do that up front and still allow the garage inventor a chance to secure his well earned intellectual property rights? The comprimise is that the patent office hires people with great technical backgrounds and give them a time budget of about 8-12 hours to perform the act of examination every time an application comes across their desk (and they'll see the same application usually 2-4 times). You just can't find every last shred of knowledge known to human beings in 8-12 hours. (Contrary to Slashdot myth, patent examiners are well qualified in the technology they examine.) This is the system that (justifiably) costs you about $3000 for a simple patent application (plus the cost of your attorney). Nobody (but Slashdot) pretends that this is supposed to be a "perfect" judge of patentability.
The second is that while a patent can last for 20 years from the filing date, there are some very expensive fees that must be paid at 3, 7, and 11 years. Now, if your patent is "promoting innovation" and has been profitably sold or licensed, those fees will look tiny. If your patent is junk and nobody wants a piece of the action, it's quite likely that you'll not pay those fees and the patent will become unenforceable long before 20 years are up. If you're a group of lawyers that hold a bunch of patents, these fees can become a significant burden because you're essentially playing the lottery by snatching up dozens (hundreds?) of patents and hoping a few pay off - but 100 patents will cost you $90,000 to renew when their FIRST maintenance fee is due, and $380,000 at 11 years if you keep them alive that long. My point is that many, many patents from the recent software industry craze will very likely become expire for failing to pay these fees and therefore public domain and free to use in a few short years. This will hopefully play nicely into the "rapid pace of development" - patents that were cutting edge 5 years ago won't be worth renewing the next time the fees are due.
And finally, there is the slow beast of government reform and rewriting the statutes. There currently are some proposed rule changes that attempt to ease the examiners' workload, and consequently improve quality of examination, but I'm skeptical that they'll actually pan out. Ther
Hmm, the law talks about 'not obvious to someone practised in the field', and yet the 'field' is not relevant?
That is correct.
So yes, the field is important, for the simple reason that the law says so. That judges have ignored that for the reason of it being somewhat difficult to deal with in court doesn't change that at all.
That is incorrect.
The problem with 'obviousness' in court is simple, wether something is easy or not to come up with is not something you can determine easily, and it is usually easy to find 'experts' arguing either side.
"Whether or not something is easy to come up with" has nothing to do with the concept of obviousness. Washing your hands before eating was pretty easy to come up with, yet poor hygiene killed millions of people through history. For countless generations, it was not obvious that you should wash your hands before eating. It was, however, pretty easy to come up with. People had been washing things, and themselves, the entire time. "Easy to come up with" and "obvious" are separate and distinct concepts. Attempting to link them will only confound your argument and make it easier to refute.
So, give me a good explanation based on actual reason as to why we simply should ignore the fact that the law explicitly says it should not be obvious to someone practised in the field?
As soon as you defend your position that burning children to heat homes is a good idea.
Here's a suggestion - you'll get much further with me if you don't demand that I explain a position that I have never and would never suggest.
Here are the two biggest problems with your response so far. The first is that "the field" doesn't make any difference because the test for obviousness is not technology dependent, never was, and never should be. This avoids attempts by patent applicants to define their computer-related inventions as electro-magnetically operated implementations of non-deterministic pushdown automata achieving non-determinism in a predefined fashion. There are numerous other reasons, but that suffices. The second problem is that you're arguing that an extremely abstract concept of "obviousness" should be enforced in an area of legal property law, but how on Earth would your suggestion fall short of being entirely arbitrary? (I'm presuming that you're not presently making a backdoor argument that the entire patent system should be dismantled, which I consider to be implied in any suggestion that patents should be awarded arbitrarily to whomever the patent office likes (because they bribe the most).) How does it address the widescale abuse of power and authority that would result? It's like making it illegal to be stupid, or mean. There cannot be any objective measure of such a ephemeral concept, and therefore the notion that "just being obvious" should bar patentability is merely an invitation to enthrone the patent office as emperor over all technology industry.
"I invented this great thing, it'll save millions of lives (and I'll get rich!)"
"Too bad, anybody could have come up with that."
Rampant market exploitation of your idea ensues.
Next is, what, utopia?
Here's a suggestion - come up with an objective framework through which an invention could be declared as obvious, assuming that it doesn't already exist by itself in the prior art. A good start would be requiring that all the parts of the invention are known in the prior art - then the inventor can't say he totally invented any particular piece, as each has been done before. But he could still argue that the idea to put those parts together makes a new invention! Well, step 2 could be showing that the prior art teaches the benefits of those parts. History then shows that the parts were good, and putting good stuff together is usually a smart idea. Well whaddya know, we're getting really close to having an objective framework that shows why an invention is obvious, based on factual evidence and not an arbitrary determination.
I'm a little surprised that you didn't answer my questions.
You didn't ask any questions.
I'm using a different definition of question than you are, so I am by definition right.
Is it really so hard for you to express your own opinion on an issue instead of merely explaining what the law says about it?
This is a declarative statement.
I've redefined the question mark to indicate a declaration, therefore I am, once again, right.
Or does your work as (I presume) a patent attorney bind you to some code of ethics where you aren't allowed to comment on such things in public?
Tofu is made from soybean curd.
Seriously, you've firmly convinced me that you don't hold a single educated opinion on the patent system. Everytime I have addressed your numerous contradictions, you recoil to a juvenile attempt at equivocation. If you can't express your point in a way that facilitates analysis, you're doing nothing but wasting my time. You're already wasted quite a lot of my time and managed only to convince me of your inexperience with any patent related topics. I'm sure you'll think you've won this debate. Congratulations!
Seeing the things that are getting through in my field of experience is telling me that the USPTO is not qualified to judge non-obviousness at least in my field (software development).
Can you define "non-obviousness"? It doesn't really matter what field, since the definition is not technology-dependent, but if that makes you more comfortable, be my guest.
There are 2 things that take priority over the patent examining procedure: 1. The constitution; 2. Patent law.
This is just wrong. The one thing that governs patent examining procedure is the Manual of Patent Examining Procedure. It is based on 1. Case law, 2. Federal Regulations, and 3. Office Policy. Of those, Case law is based on judicial interpretation of the Constitution and the statutes; Federal regulations are based on the Constitution and statutes where there is no judicial record, and office policy takes up the slack.
2 is supposedly based on 1, and esp. 1. is very clear as to what purpose patents serve: To promote usefull inventions.
This is a reduction to the point of absurdity. I'm just going to come out and state the painfully obvious - you are just qualified to interpret Federal statute. There is a voluminous history of judicial case law since the 1952 patent system reform based on essentially 4 Federal statutes. Those statutes can easily be printed on a single piece of paper; the existing case law is at least tens of thousands of pages long. The idea that your single sentence somehow proves that the existing patent examining procedure is "completely and utterly irrlevant for that argument, and is merely a distraction" is simply insufficient.
It never ceases to astonish me how many "experts" on the patent system there are on Slashdot who literally know fewer than five true things about the patent system. I don't mean to offend - we all have our own areas of expertise and I certainly know fewer than five true things about a lot of topics - but something about the patent system encourages everybody to believe that they truly do comprehend all of its intracacies and are fully qualified to publicly debate about it. However, it just isn't so.
Normally I'd be happy to provide informative links but there really isn't anything to refute in your post. If you'd like some clarification on some aspect of the patent system or have other questions I'd be happy to try to help.
The USPTO has continually asked Congress for MORE money to add staff and to add staff with special skills needed in areas like software, biotech and genetics.
Look, I'll try not to be insulting, but you don't have a clue what you're talking about.
The number of patent applications has grown exponentially over the last decade. They USPTO has therefore been needed more money to add staff. When there is an exponential growth in the computer related applications, they don't need to add so many examiners in plants, they need to add them in software. I'm not trying to be insulting, but surely you appreciate the difference between correlation and causation. You're pointing to the result (more money for more examiners) and claiming a completely unfounded result (that it's because the existing examiners were stupid, as opposed to too few in number).
The qualifications for a Patent Examiner do not require expertise in a field only the ability to follow and understand a process, and do simple comparison checks.
What in the WORLD are you talking about? This statement is simply a complete fantasy and absolutely opposite of the USPTO's hiring practices.
Look, let's say I stack 65 pennies on top of 15 nickels, put them all inside a cardboard box, and then put a cat on top of the box. Has anyone ever done that before? Possibly, but let's say no. Do I deserve a patent on it? Of course not.
You are clearly unfamiliar with 35 USC. Your example would not be patentable under 35 USC 101. Assuming for the sake of argument that your invention meets the requirements of section 101, and presuming (as you have) that nobody has done it before, then it meets the requirements of sections 102 and 103. You could very well get a patent for that invention.
And there is a very long judicial and legislative history that sets forth why the system is the way it is. Of course, I've pointed out numerous times that you're arguing against something you don't know - "Birthday cake is better! Birthday cake is better!" Better than what? You don't have any idea what you're arguing against. Even the example you give, "Of course [it's not patentable]," is factually incorrect.
I really don't think I need to explain to you the difference between inventing light bulbs and heavier than air flight, which required significant amounts of research, and combining two common concepts such as "wireless" and "email".
By observing your response, I conclude that my point went completely over your head. You have a very basic misunderstanding of what the law (along with a long judicial and legislative history) regards as an invention. The "significant amounts of research" contrasted with "combiningi two common concepts such as 'wireless' and 'email'" have as much to do with patentability as do pretty drawings. No, you don't need to explain irrelevant tangents to me, not because you would be insightful, but because I'm not at all interested in them, or drapes that match the bedspread, or proper crop rotation, or any other nonsense you might spew forth.
I hate to break it to you, but there is documented prior art of both wireless communications and email.
YOU DO NOT KNOW WHAT OBVIOUSNESS UNDER 35 USC 103 MEANS. Christ alive you are a dense individual. I HAVE PROVIDED LINKS TO MPEP 2143 AND 2144.01. If you had ANY clue WTF you were babbling about, if you had even the SLIGHTEST idea what is required to meet the definition of "obviousness" under 35 USC 103, you would know that "documented prior art of both wireless communications and email" is insufficient. IF YOU'D LIKE PROOF OF MY CONCLUSION, READ MPEP 2143 AND 2144.01.
Please read MPEP 2143 and 2144.01. You are arguing but you have no idea what you are arguing against. "Birthday cake is better! Birthday cake is better!" Better than what? Utopia? I'm just being objective here - only a complete fool would argue without any idea whatsoever what he was arguing against. Congrats - you've deliberately chosen to be a fool.
Wow. Could you at least try to stay on topic? I was talking about how a small inventor could get his invention produced without having to transfer the patent, not laziness or investing. I'm not mandating that he do anything; he can license his patent to whomever he wants.
Now you're clearly contradicting yourself. In this case, he left the patents to his wife and children, and they chose to license the patents to nobody. Skip the part about the wife and kids - he licensed the patent to whomever he wants - nobody. This clearly ought to correspond to your argument, yet you're the one arguing that they shouldn't be allowed to license to nobody.
The fact pattern here is not at all difficult to follow. It follows directly from your argument that if I were to save my money instead of invest it, you should strip away my financial property and give it to someone with a business. You're already advocating stripping people's intellectual property rights and giving them to the public domain. You've already argued that 1) you will not allow people to license the patent to whomever they like, and 2) people are allowed to license their patent to whomever they like.
Because it wouldn't allow patents on something that anyone with moderate knowledge in the field could easily think up on their own. No one needs to be encouraged with a government-enforced monopoly just to put two common concepts together, and since granting a patent to one person imposes a restriction on everyone else, it shouldn't be done when it's plainly unnecessary.
You haven't answered my question about your familiarity with "obvious" under 35 USC 103. This argument exposes the answer, however. If the prior art does not teach the combination, then making that combination is indeed something new, no matter how slight or "easy to come up with". And according to the statutes, that spark is an invention. If it wasn't an invention, why can't you find any example of it in the prior art?
Clearly not the words of a patent attorney. Why would you think I was using the legal definition there, when we both know wireless email isn't "obvious" under the legal definition?
Because without the legal definition of "obvious," your statement is completely devoid of informational value. What does common English "obvious" have to do with anything in patents? I think you're clearly wrong - even assuming for argument's sake that they are "obvious" as you have defined, they have very pretty drawings, plus black and white documents have high data efficiency which overcomes your similarly ludicrous argument.
I admit I made the assumption that you weren't randomly banging keys on the keyboard, and in this case it happened to appear to be English. You chose to use the word "obvious" because you're vaguely aware that patents are not supposed to be granted for "obvious inventions," yet you are unfamiliar with what that actually means and belligerently refuse to learn what it means. I have called you on this and I'm not going to entertain any more tantrum about it. The argument that the inventions are "obvious" as you allege is wholly meaningless
It's like granting a patent on a ham & peanut butter sandwich - anyone who knows about ham, peanut butter, and sandwiches can figure that one out, and anyone who finds himself with nothing but ham, peanut butter, and bread in the fridge will eventually figure it out.
Eventually somebody besides the Wright brothers would have figured out heavier-than-air flight. Someone other than Edison would have eventually figured out a workable light bulb. Your argument is absurd on its face.
Why should everyone else who finds himself in that situation have to pay royalties to the first guy, who didn't do anything special except find himself in their situation a few years earlier?
Because that guy was the first to make the combination, recognize how awesome it was, told the public how to make and use his inven
I meant, of course, that he could grant a third party the right to use his patented invention. Do you think the inventor's wife and kids would have a use for such a license? Or might such a license be more useful to, say, someone who can actually manufacture and market the product that he designed?
I reiterate that you're suggesting that we mandate what he should do. How does it become a legal issue who could make more use of his invention? What about laziness in general? Make that illegal? What if I save my money instead of spend it and stimulate the economy - would you simply take my money and give it to someone starting a business?
Indeed. And there comes a point in time when others should no longer be excluded from practicing that invention - say, after the original inventor is dead, when the patent has long since served its purpose of providing him an incentive to invent things. The ultimate goal of a patent system is to encourage people to invent things and disclose how they work, not to keep ourselves from using new technologies; the latter is only acceptable as a stepping stone to the former.
I agree (excluding the bit about the dead inventor) but fail to see how this in any way supports your suggestion that we strip away the rights granted by a perfectly valid patent merely because the inventor died. There already exists a well established system for regulating the effective term of a patent, none of which are even remotely related to whether or not the inventor is alive. In light of the existing system, this suggestion is simply so out-of-left-field that it's hard to even compare it to the rules already in place, to say nothing of the extremely subjective justification you've provided.
Here's a simple statement: No one deserves a patent for "inventing" something obvious. All the words in that sentence are simple English words.
The reason it was allowed is that the legal definition of "obvious" differs from the conversational definition. That is a problem, and the legal definition should be changed so that things everyday people would consider obvious (like combining wireless technology + email to get wireless email) are also considered legally obvious and ineligible for patents.
Two points: 1) I still don't see the point of making this statement over and over like it's insightful or beneficial. As you've suggested, and I agree, you can make this statement all day long and people will get patents for thing that you believe, using a common English definition, are completely obvious. To me, this is like pointing out that "power" and "mower" are spelled almost exactly the same but spelled differently - Wow how funny is that? It's an old, played out gag that obnoxiously confuses the real debate and doesn't prove a damn thing.
2) I would inquire how familiar you are with the 35 USC 103 definition of "obvious" and why it is what it is. (We've swapped punches; I'm beyond that and just asking the question.) I've had tons of conversations with people that start with the observation that "obvious" has two definitions, and they almost always conclude with the other guy realizing that he didn't know much about the 35 USC 103 definition. That's not to say we agreed when it was over, but there are myriad reasons why the patent system defines the word "obvious" as it does and very specific reasons why the common English definition would create a complete disaster.
That said, and running with the presumption that you're (understandably) not an expert in patent law, ever consider that there's a very good reason why patentability is defined the way it is, use of the word "obvious" notwithstanding? 35 USC 103 could have been written to use a different word - especially likely since we both agree that the patent system has redefined "obvious". The real question is Why should the patent system use common English obvious? Pointing out that the patent system actually uses a different definition merely begs the
They do half-assed reviews and grant bad patents because 1) they don't have the skills needed to make the "prior art" determination and 2) they are underfunded and under political pressure to grant patents quickly both of which lead to patent battles such as this one.
Do you have any evidence whatsoever to back any of this up?
My assumption is that your opinion is nothing but a rabid ignorance of patent law and a absolutely no knowledge whatsoever of the patent examining procedure.
Do you know what the initials "MPEP" mean without going to Google?
Can you define what "prior art" means according to the law?
Can you cite a single example of "political pressure to grant patents quickly"?
Slashdot Mirror
Easy there killer. The courts have long ago tackled this issue and given the world the "Graham v. Deere Test" for 35 USC 103 obviousness. It's also addressed in MPEP 2143 and 2144, among other citations. (Google for any of this stuff. It's interesting reading if you're truly interested in the topic.) The usual features of this test are:
1. all the pieces of the invention are in the prior art
2. all the prior art is from similar areas
3. the prior art recognizes the advantages of each piece and suggests combination
4. combining the prior art would be within the skill of an ordinary person in that field
This leaves the door open for new combinations (bottle opener on your umbrella - both useful, but no suggestion to combine the two). However, the seemingly unfortunate aspect is that this opens the door open for trivial implementations of well-known techniques.
I happen to hold a degree in mathematics as well as computer science. My emphasis was in algorithms. I'm extremely familiar with techniques for coping with NP problems. In case you're not, a common technique is to translate (or "reduce") a given NP problem into a known NP-complete problem, solve that known NP-complete problem, then translate the results back into the original problem. This is a well documented, traditional method of dealing with NP algorithms.
But in text books, this concept is taught in the abstract. There are virtually no working examples of this being actually performed in the field. It's just a computer scientist's tool in his mental toolbox, just like linked lists, pointer arithmetic, and template functions.
But find evidence that any human being has ever considered taking NP algorithm A and solving it by reducing it to NP-complete problem B, and you'll be stumped. 1 in 100 chance you'll find it in a text book, but aside from that, you'll be searching for a needle amongst millions of lines of other people's poorly documented, poorly written, publicly available source code. It might be "obvious" as hell to any given computer scientist that this is precisely what you should do, but the FIRST component of proving something is "patently obvious" is finding all the pieces in the prior art. The Graham v. Deere test basically establishes that "the piece you cannot find in the prior art is invention". As applied to the chemical or mechanical arts, maybe that is very valid.
As applied to computer science, I think it's right to be skeptical of that conclusion. The science itself is directed to abstract concepts, therefore countless abstract concepts should be rendered obvious without holding your hand and explicitly explaining away every last nook and cranny. However, there is currently no legal basis to reject a patent for that line of reasoning.
So ultimately, I'm not disagreeing with your sentiment, but any effective criticism of the patent system (or anything) will require a certain level of knowledge about that system. The problem isn't simply that the USPTO is filled with people so dumb that they can't figure out what's obvious; the problem is that the current legal standards for determining what is obvious as pertains to computer science is questionable. Criticize the problem, not the symptom.
How many people with more than a passing knowledge of law post on Slashdot?
I'm not an expert but this is an extremely tired point of flagrant ignorance at Slashdot.
Maybe you can find the prior art. Let's see it. Here's just one of the claims:
1. A method for securing software to reduce unauthorized use of the software, the method comprising:
associating a series of passwords with the software for each authorized user prior to distribution of the software,
requiring entry of a first password upon first use of the software; and
subsequently requiring entry of another password to continue using the software.
Just find a document or website or whatever published before 06-04-1997 that explains each of those steps. (Why 1997 not 1998? Read 35 USC 102 paragraphs a and b. There are many ways to get around prior art under 102(a). There is no way to get around 102(b). It is the bane of patent attorneys.)
Really? The patent says, and I quote:
1. A method for securing software to reduce unauthorized use of the software, the method comprising:
associating a series of passwords with the software for each authorized user prior to distribution of the software,
requiring entry of a first password upon first use of the software; and
subsequently requiring entry of another password to continue using the software.
You've mentioned a "CD-key" or "activation key" but where is the "another password to continue using the software"?
I'm not a genius here, I just don't see how a single CD-key could possibly be enough to meet that patent. You'd have to have something like a CD-key and a "Use key" that is entered every time the program is run, and it looks like this "Use key" is predefined before the software ships, i.e. it is not a user password that the user can choose.
And furthermore, I'm not even a CD-key would qualify as the "first password" depending on what the lawyers mean by "first use of the software". Maybe installation qualifies, maybe it doesn't.
Anyway, I'm not personally aware of any software that had two separate hard-coded authorization keys, and required the user to input the second one "to continue using the software". Maybe they're everywhere, I really don't know, but I don't think that "every CD-key" infringes on this.
But I'm not a lawyer, I just happened to look at the patent.
Stating that is far short of proving that. What tests established by case law have you applied? There is absolutely no legal basis for "clever enough" that I'm aware of.
More seriuosly, the patents claim to provide an "apparatus and method", but fail to describe any actual appartus beyond the computer running the software under question. This is really a patent on an idea which contravenes section 102 of Title 35.
I appreciate that you're presenting a rational criticism, but your analysis is non sequitur. 35 USC 102 has nothing to do with patenting "an idea". You may have been referring to 35 USC 101 - but your own comment refutes your analysis. They disclose and claim a computer running the software under question. Sure, there was a spark of an idea to create the invention, but the invention itself is a computer running the software. That's a thing, not an idea.
For example "non-obvious" has devloved to mean "not already known", a situation which is beyond words.
It's been that way since 1952 when 35 USC 103 was written. Slashdot and the media think that "obvious" in 35 USC 103 means "clever" or "complicated," neither Congress nor the judicial system EVER had that intention.
Peruse MPEP 2143 and MPEP 2144 (and the several subsections).
BTW - yours is the most intelligent post I've read on Slashdot about the patent system in a long time.
Then you, sir, have an unusually high moral sensitivity to paperwork.
Mine was really easy. I had to open the case and read the model of an IC inside it, but most of the time that step is unnecessary. I just hunted the web for the flash program, downloaded it, burned it's contents to a CD, inserted the CD in the DVD player, clicked a menu or two, waited 10 minutes, and that's it.
Now I can skip ANY FLIPPING JUNK they put at the beginnings of the DVD. That stuff drove me completely nuts, plus I found it ethically uncomfortable to cope with it in order to watch the movie I bought. It took me about an hour for the complete project (opening the case, reassembly, searching, burning the CD, and burning the ROM) and it has vastly improved how I enjoy my DVD player.
Just a thought.
1. You cannot "file a patent." You file an application, and you that application can be anything you damn well please. You could file your local telephone book if you like. Tell Slashdot you filed your phone book as a patent application. It will be all over the headlines and you'll be famous for "patenting the phone book," although anyone with 22 seconds of experience working with the patent system would know that statement is unquestionably false.
2. The article itself links to "the full patent" which is unquestionably not a patent. There is literally no story here.
It's not like this is funny - an application for sex toys or resurrection machines. It's not like it's morally offensive - an application for a suicide machine. It's simply an application for a way to make some money. Sure, people might not like it, but any idiot who can force people to watch advertisements is a marketing genius. Whether or not it's fit to be patented is another story altogether, and one that won't be answered for years. The 371(c) date of that application is June 2005 - it probably won't even be glanced at by a patent examiner until 2007 or 2008.
This informative post was brought to you free of charge. Sorry for the interruption. If you scroll down (or up), you'll read the normal Slashdot non-sequitur deliberate ignorance that brings you back to this website time after time. I just wonder if anybody but myself gets tired of reading systematically false and erroneous "news" reports on Slashdot.
I don't think I understand your problem.
That is interesting about the ant, though.
Yeah, and the technology industry is clearly so stifled that it's about to roll over and die. The stocks are plummeting, the layoffs are massive and systematic, the pensions are being slashed, profits are unheard of, and only a fool would choose to study for a career in technology.
You have a truly persuasive argument. I am convinced that you know three, heck maybe even four things about the patent system. It's truly shocking that nobody in working in patents ever looks to Slashdot for insightful opinions. Of course, Slashdot wanks itself by moderating drivel like your post +5 Insightful, but hey nobody is perfect.
Still, I am earnestly interested in your opinion of 37 CFR 1.105. Should it be used more? Less? Is it flawed? What's your take on it?
Also, I'd love to communicate via email about this topic. I even changed my profile so that you could respond by email if you were so inclined.
When I talk about adding more information to the patent system, I am speaking of Rule 99 filing.
It is a woefully under utilized rule. I'm curious to know if you have any information about how successful these submissions are in affecting the claim scope of issued patents. Of course, this information might be difficult to acquire - it would mean a serendipitous combination of time windows around the pre-grant publication, the submission, opening the prosecution record in public PAIR, and a (non-trivial) analysis of the prosecution history.
Not only that, but we have problems with Willfulness, (and no, KNORR-BREMSE doesn't help).
I'd agree completely, although infringement strays from my expertise. I do have a related question - How much faith is put in rule 105? In the right circumstances, it strikes me as the tool to effectively end prosecution of some troublesome applications, and in others a lame response could turn the resulting patent into decorative wall paper. Yet the USPTO seems to rarely, if ever, use this rule (to the appreciation of many a practitioner.) I've only heard of it being used in a handful of cases and it has the potential to raise some very ugly issues relating to 37 CFR 1.56.
And how is this related to Willfulness? Well, Examples B and D in MPEP 704.11(a) specifically suggest that the USPTO require a statement about which of Applicants' products embody the claimed invention, and which of the competitors' products embody the claimed invention. Again, infringement is not my area, but it seems to me that a boneheaded response to that type of requirement could pose significant problems during an infringement suit, or perhaps even provoke trouble if prying eyes are watching PAIR.
I'm glad I finally met "that guy". Thanks for linking to your Q&A. I hope it's evident that I have some experience in this field and I'm taking the LSAT soon. (Care to recommend a school in the DC area?) I'd love to move more into politics, especially in the intellectual property area, but one step at a time. I'm still young.
The quality issue MUST be solved, and NOW; so before you launch into a general "patents suck" rage, take a reality check and think about ways to get more prior art into the patent system and improve the quality.
I've yet to talk to anybody on Slashdot who had the slightest clue what patent quality means. Maybe you're that guy, maybe not. I've yet to find anybody on Slashdot who criticizes the patent system with even the most basic understanding of how the system works. Hell, it's a rare occasion to find somebody on Slashdot who recognizes that the USPTO does what Congress and federal courts tell them to do rather than simply make up laws and policy however they feel like.
My point is that Slashdot talking about patents is a joke. To make a couple of analogies, Slashdot is grandma telling you about the internet. Slashdot is the script kiddie telling you about UNIX security.
Your post seems to be far more constructive than most, but still misses the point in my opinion.
The quality issue MUST be solved, and NOW; so before you launch into a general "patents suck" rage, take a reality check and think about ways to get more prior art into the patent system and improve the quality.
Getting more prior art "into the patent system" (I'm not even sure what that means or what you're trying to suggest) is hardly the problem. In contrast, there are some significant issues regarding the Graham v. Deere test as applied to computer related inventions in order to establish a prima facie case of legal obviousness. That has nothing at all to do with access to more prior art.
Another significant problem is the ambiguity of 35 USC 101 and how that's supposed to be applied to computer related inventions. On the one hand, there is a huge economic advantage to allowing software patents in the US (if we're the only nation that will protect software with patents, there is a huge incentive for large corporations to do business (and keep jobs) in the US) but this is a clearly objectionable idea to many people for all the usual reasons. But there is no clear legal basis for going either way. As far as I can tell, nobody inside or outside the USPTO has a clear idea what is excluded by 35 USC 101. The patent office is doing what it can to follow judicial decisions on this topic, but those decisions are a mess. Even State Street (the decision from the mid-90s that opened the door for software-related patents) is barely coherent. That decision says that the MACHINE was a patentable invention, but then inexplicably begins to discuss a patentable SOFTWARE METHOD.
And out of that murky soup, patent examiners are expected to make 1-3 determinations on that topic per day, based on the hundreds of pages of summaries, rules, and guidelines. It's a mess, but it isn't something the USPTO can fix. Someone on the outside has to push the issue until it reaches a courtroom, where (hopefully) some clear judicial precedent can be set. There are problems, sure, but everybody on Slashdot is ranting about the USPTO. What the hell does the USPTO have to do with amending federal legislation or handing down CAFC decisions? This is like a 12 year old kid trying to tell me what is or isn't good music. Even a third grade social studies textbook can explain why the executive branch (like the USPTO) doesn't write its own laws.
If there's a legitimate complaint about how the USPTO actually operates, then sure, they should fix that, but I've yet to read a single coherent complaint about that.
The issue of "more prior art" simply isn't that relevant. Patent examiners perform a $2000 prior art search. If you're sued for patent infringement, it's common to spend $50,000, $100,000, or $5M performing a prior art search for a validity attack. The patent office was ne
In addition to being flat wrong, you're doing precisely this, as an anonymous coward.
Check my post history, I consistently point out the ignorant bullshit on slashdot about patents, but you're a certifiable fucktard.
Write your congressmen and ask them to drag these patent examiners in for questioning:
And now I demonstrate that you don't know shit about what you're babbling about.
It is the policy of the United States Patent and Trademark Office (USPTO) that its employees, including patent examiners, will not appear as witnesses or give testimony in legal proceedings, except under the conditions specified in 37 CFR Part 104, Subpart C
You're not interesting, you're ignorant.
Slashdot is qualified to cover patent news like it's qualified to cover romance novels.
+5 Informative is the only appropriate moderation for the parent.
The software industry is pretty much the only industry that has such an impossibly difficult time coming to terms with what's patentable and what's not. I think much of this has to do with the fact that "creating product" in this industry is almost strictly an intellectual enterprise. There aren't any raw materials to transform into manufactured goods. Aside from the ubiquitous personal computer, there isn't any specialized equipment required. However, like other industries, there is typically a huge investment required to get that final product, the sales of which support the company's operation.
The flip side of that issue is that it's so incredibly easy to basically rip off the other guy's product. Sure, the code is copyrighted, but once you see one successful product, it's simply "obvious" to make your own version and move in on the other guy's market. While not unique to the software industry, this behavior is, I think, more immediate because there are no new machines to buy, raw materials to source, etc.
A third factor is, as you've hinted, the incredibly rapid pace of development in this industry. This sets it apart, if not alone, from most other industries.
There are a couple of existing remedies.
Patents can be invalidated in a courtroom, for very good reasons. The patent office was never intended to be a "perfect" judge of patentability. Consider that a really good attack on the validity of a patent in an infringement suit often costs $250k, $1M, or more, just to pay the technical experts for their time. THAT is far closer to a "perfect" judge of patentability, but how could you expect the patent office to do that up front and still allow the garage inventor a chance to secure his well earned intellectual property rights? The comprimise is that the patent office hires people with great technical backgrounds and give them a time budget of about 8-12 hours to perform the act of examination every time an application comes across their desk (and they'll see the same application usually 2-4 times). You just can't find every last shred of knowledge known to human beings in 8-12 hours. (Contrary to Slashdot myth, patent examiners are well qualified in the technology they examine.) This is the system that (justifiably) costs you about $3000 for a simple patent application (plus the cost of your attorney). Nobody (but Slashdot) pretends that this is supposed to be a "perfect" judge of patentability.
The second is that while a patent can last for 20 years from the filing date, there are some very expensive fees that must be paid at 3, 7, and 11 years. Now, if your patent is "promoting innovation" and has been profitably sold or licensed, those fees will look tiny. If your patent is junk and nobody wants a piece of the action, it's quite likely that you'll not pay those fees and the patent will become unenforceable long before 20 years are up. If you're a group of lawyers that hold a bunch of patents, these fees can become a significant burden because you're essentially playing the lottery by snatching up dozens (hundreds?) of patents and hoping a few pay off - but 100 patents will cost you $90,000 to renew when their FIRST maintenance fee is due, and $380,000 at 11 years if you keep them alive that long. My point is that many, many patents from the recent software industry craze will very likely become expire for failing to pay these fees and therefore public domain and free to use in a few short years. This will hopefully play nicely into the "rapid pace of development" - patents that were cutting edge 5 years ago won't be worth renewing the next time the fees are due.
And finally, there is the slow beast of government reform and rewriting the statutes. There currently are some proposed rule changes that attempt to ease the examiners' workload, and consequently improve quality of examination, but I'm skeptical that they'll actually pan out. Ther
That is correct.
So yes, the field is important, for the simple reason that the law says so. That judges have ignored that for the reason of it being somewhat difficult to deal with in court doesn't change that at all.
That is incorrect.
The problem with 'obviousness' in court is simple, wether something is easy or not to come up with is not something you can determine easily, and it is usually easy to find 'experts' arguing either side.
"Whether or not something is easy to come up with" has nothing to do with the concept of obviousness. Washing your hands before eating was pretty easy to come up with, yet poor hygiene killed millions of people through history. For countless generations, it was not obvious that you should wash your hands before eating. It was, however, pretty easy to come up with. People had been washing things, and themselves, the entire time. "Easy to come up with" and "obvious" are separate and distinct concepts. Attempting to link them will only confound your argument and make it easier to refute.
So, give me a good explanation based on actual reason as to why we simply should ignore the fact that the law explicitly says it should not be obvious to someone practised in the field?
As soon as you defend your position that burning children to heat homes is a good idea.
Here's a suggestion - you'll get much further with me if you don't demand that I explain a position that I have never and would never suggest.
Here are the two biggest problems with your response so far. The first is that "the field" doesn't make any difference because the test for obviousness is not technology dependent, never was, and never should be. This avoids attempts by patent applicants to define their computer-related inventions as electro-magnetically operated implementations of non-deterministic pushdown automata achieving non-determinism in a predefined fashion. There are numerous other reasons, but that suffices. The second problem is that you're arguing that an extremely abstract concept of "obviousness" should be enforced in an area of legal property law, but how on Earth would your suggestion fall short of being entirely arbitrary? (I'm presuming that you're not presently making a backdoor argument that the entire patent system should be dismantled, which I consider to be implied in any suggestion that patents should be awarded arbitrarily to whomever the patent office likes (because they bribe the most).) How does it address the widescale abuse of power and authority that would result? It's like making it illegal to be stupid, or mean. There cannot be any objective measure of such a ephemeral concept, and therefore the notion that "just being obvious" should bar patentability is merely an invitation to enthrone the patent office as emperor over all technology industry.
"I invented this great thing, it'll save millions of lives (and I'll get rich!)"
"Too bad, anybody could have come up with that."
Rampant market exploitation of your idea ensues.
Next is, what, utopia?
Here's a suggestion - come up with an objective framework through which an invention could be declared as obvious, assuming that it doesn't already exist by itself in the prior art. A good start would be requiring that all the parts of the invention are known in the prior art - then the inventor can't say he totally invented any particular piece, as each has been done before. But he could still argue that the idea to put those parts together makes a new invention! Well, step 2 could be showing that the prior art teaches the benefits of those parts. History then shows that the parts were good, and putting good stuff together is usually a smart idea. Well whaddya know, we're getting really close to having an objective framework that shows why an invention is obvious, based on factual evidence and not an arbitrary determination.
Huh.
You didn't ask any questions.
I'm using a different definition of question than you are, so I am by definition right.
Is it really so hard for you to express your own opinion on an issue instead of merely explaining what the law says about it? This is a declarative statement.
I've redefined the question mark to indicate a declaration, therefore I am, once again, right.
Or does your work as (I presume) a patent attorney bind you to some code of ethics where you aren't allowed to comment on such things in public?
Tofu is made from soybean curd.
Seriously, you've firmly convinced me that you don't hold a single educated opinion on the patent system. Everytime I have addressed your numerous contradictions, you recoil to a juvenile attempt at equivocation. If you can't express your point in a way that facilitates analysis, you're doing nothing but wasting my time. You're already wasted quite a lot of my time and managed only to convince me of your inexperience with any patent related topics. I'm sure you'll think you've won this debate. Congratulations!
Can you define "non-obviousness"? It doesn't really matter what field, since the definition is not technology-dependent, but if that makes you more comfortable, be my guest.
There are 2 things that take priority over the patent examining procedure: 1. The constitution; 2. Patent law.
This is just wrong. The one thing that governs patent examining procedure is the Manual of Patent Examining Procedure. It is based on 1. Case law, 2. Federal Regulations, and 3. Office Policy. Of those, Case law is based on judicial interpretation of the Constitution and the statutes; Federal regulations are based on the Constitution and statutes where there is no judicial record, and office policy takes up the slack.
2 is supposedly based on 1, and esp. 1. is very clear as to what purpose patents serve: To promote usefull inventions.
This is a reduction to the point of absurdity. I'm just going to come out and state the painfully obvious - you are just qualified to interpret Federal statute. There is a voluminous history of judicial case law since the 1952 patent system reform based on essentially 4 Federal statutes. Those statutes can easily be printed on a single piece of paper; the existing case law is at least tens of thousands of pages long. The idea that your single sentence somehow proves that the existing patent examining procedure is "completely and utterly irrlevant for that argument, and is merely a distraction" is simply insufficient.
It never ceases to astonish me how many "experts" on the patent system there are on Slashdot who literally know fewer than five true things about the patent system. I don't mean to offend - we all have our own areas of expertise and I certainly know fewer than five true things about a lot of topics - but something about the patent system encourages everybody to believe that they truly do comprehend all of its intracacies and are fully qualified to publicly debate about it. However, it just isn't so.
Normally I'd be happy to provide informative links but there really isn't anything to refute in your post. If you'd like some clarification on some aspect of the patent system or have other questions I'd be happy to try to help.
Look, I'll try not to be insulting, but you don't have a clue what you're talking about.
The number of patent applications has grown exponentially over the last decade. They USPTO has therefore been needed more money to add staff. When there is an exponential growth in the computer related applications, they don't need to add so many examiners in plants, they need to add them in software. I'm not trying to be insulting, but surely you appreciate the difference between correlation and causation. You're pointing to the result (more money for more examiners) and claiming a completely unfounded result (that it's because the existing examiners were stupid, as opposed to too few in number).
The qualifications for a Patent Examiner do not require expertise in a field only the ability to follow and understand a process, and do simple comparison checks.
What in the WORLD are you talking about? This statement is simply a complete fantasy and absolutely opposite of the USPTO's hiring practices.
And this is when I realize I've been casting pearls before swine.
So what level is your D&D magic user?
You are clearly unfamiliar with 35 USC. Your example would not be patentable under 35 USC 101. Assuming for the sake of argument that your invention meets the requirements of section 101, and presuming (as you have) that nobody has done it before, then it meets the requirements of sections 102 and 103. You could very well get a patent for that invention.
And there is a very long judicial and legislative history that sets forth why the system is the way it is. Of course, I've pointed out numerous times that you're arguing against something you don't know - "Birthday cake is better! Birthday cake is better!" Better than what? You don't have any idea what you're arguing against. Even the example you give, "Of course [it's not patentable]," is factually incorrect.
I really don't think I need to explain to you the difference between inventing light bulbs and heavier than air flight, which required significant amounts of research, and combining two common concepts such as "wireless" and "email".
By observing your response, I conclude that my point went completely over your head. You have a very basic misunderstanding of what the law (along with a long judicial and legislative history) regards as an invention. The "significant amounts of research" contrasted with "combiningi two common concepts such as 'wireless' and 'email'" have as much to do with patentability as do pretty drawings. No, you don't need to explain irrelevant tangents to me, not because you would be insightful, but because I'm not at all interested in them, or drapes that match the bedspread, or proper crop rotation, or any other nonsense you might spew forth.
I hate to break it to you, but there is documented prior art of both wireless communications and email.
YOU DO NOT KNOW WHAT OBVIOUSNESS UNDER 35 USC 103 MEANS. Christ alive you are a dense individual. I HAVE PROVIDED LINKS TO MPEP 2143 AND 2144.01. If you had ANY clue WTF you were babbling about, if you had even the SLIGHTEST idea what is required to meet the definition of "obviousness" under 35 USC 103, you would know that "documented prior art of both wireless communications and email" is insufficient. IF YOU'D LIKE PROOF OF MY CONCLUSION, READ MPEP 2143 AND 2144.01.
Please read MPEP 2143 and 2144.01. You are arguing but you have no idea what you are arguing against. "Birthday cake is better! Birthday cake is better!" Better than what? Utopia? I'm just being objective here - only a complete fool would argue without any idea whatsoever what he was arguing against. Congrats - you've deliberately chosen to be a fool.
Now you're clearly contradicting yourself. In this case, he left the patents to his wife and children, and they chose to license the patents to nobody. Skip the part about the wife and kids - he licensed the patent to whomever he wants - nobody. This clearly ought to correspond to your argument, yet you're the one arguing that they shouldn't be allowed to license to nobody.
The fact pattern here is not at all difficult to follow. It follows directly from your argument that if I were to save my money instead of invest it, you should strip away my financial property and give it to someone with a business. You're already advocating stripping people's intellectual property rights and giving them to the public domain. You've already argued that 1) you will not allow people to license the patent to whomever they like, and 2) people are allowed to license their patent to whomever they like.
Because it wouldn't allow patents on something that anyone with moderate knowledge in the field could easily think up on their own. No one needs to be encouraged with a government-enforced monopoly just to put two common concepts together, and since granting a patent to one person imposes a restriction on everyone else, it shouldn't be done when it's plainly unnecessary.
You haven't answered my question about your familiarity with "obvious" under 35 USC 103. This argument exposes the answer, however. If the prior art does not teach the combination, then making that combination is indeed something new, no matter how slight or "easy to come up with". And according to the statutes, that spark is an invention. If it wasn't an invention, why can't you find any example of it in the prior art?
Clearly not the words of a patent attorney. Why would you think I was using the legal definition there, when we both know wireless email isn't "obvious" under the legal definition?
Because without the legal definition of "obvious," your statement is completely devoid of informational value. What does common English "obvious" have to do with anything in patents? I think you're clearly wrong - even assuming for argument's sake that they are "obvious" as you have defined, they have very pretty drawings, plus black and white documents have high data efficiency which overcomes your similarly ludicrous argument.
I admit I made the assumption that you weren't randomly banging keys on the keyboard, and in this case it happened to appear to be English. You chose to use the word "obvious" because you're vaguely aware that patents are not supposed to be granted for "obvious inventions," yet you are unfamiliar with what that actually means and belligerently refuse to learn what it means. I have called you on this and I'm not going to entertain any more tantrum about it. The argument that the inventions are "obvious" as you allege is wholly meaningless
It's like granting a patent on a ham & peanut butter sandwich - anyone who knows about ham, peanut butter, and sandwiches can figure that one out, and anyone who finds himself with nothing but ham, peanut butter, and bread in the fridge will eventually figure it out.
Eventually somebody besides the Wright brothers would have figured out heavier-than-air flight. Someone other than Edison would have eventually figured out a workable light bulb. Your argument is absurd on its face.
Why should everyone else who finds himself in that situation have to pay royalties to the first guy, who didn't do anything special except find himself in their situation a few years earlier?
Because that guy was the first to make the combination, recognize how awesome it was, told the public how to make and use his inven
I reiterate that you're suggesting that we mandate what he should do. How does it become a legal issue who could make more use of his invention? What about laziness in general? Make that illegal? What if I save my money instead of spend it and stimulate the economy - would you simply take my money and give it to someone starting a business?
Indeed. And there comes a point in time when others should no longer be excluded from practicing that invention - say, after the original inventor is dead, when the patent has long since served its purpose of providing him an incentive to invent things. The ultimate goal of a patent system is to encourage people to invent things and disclose how they work, not to keep ourselves from using new technologies; the latter is only acceptable as a stepping stone to the former.
I agree (excluding the bit about the dead inventor) but fail to see how this in any way supports your suggestion that we strip away the rights granted by a perfectly valid patent merely because the inventor died. There already exists a well established system for regulating the effective term of a patent, none of which are even remotely related to whether or not the inventor is alive. In light of the existing system, this suggestion is simply so out-of-left-field that it's hard to even compare it to the rules already in place, to say nothing of the extremely subjective justification you've provided.
Here's a simple statement: No one deserves a patent for "inventing" something obvious. All the words in that sentence are simple English words.
The reason it was allowed is that the legal definition of "obvious" differs from the conversational definition. That is a problem, and the legal definition should be changed so that things everyday people would consider obvious (like combining wireless technology + email to get wireless email) are also considered legally obvious and ineligible for patents.
Two points: 1) I still don't see the point of making this statement over and over like it's insightful or beneficial. As you've suggested, and I agree, you can make this statement all day long and people will get patents for thing that you believe, using a common English definition, are completely obvious. To me, this is like pointing out that "power" and "mower" are spelled almost exactly the same but spelled differently - Wow how funny is that? It's an old, played out gag that obnoxiously confuses the real debate and doesn't prove a damn thing.
2) I would inquire how familiar you are with the 35 USC 103 definition of "obvious" and why it is what it is. (We've swapped punches; I'm beyond that and just asking the question.) I've had tons of conversations with people that start with the observation that "obvious" has two definitions, and they almost always conclude with the other guy realizing that he didn't know much about the 35 USC 103 definition. That's not to say we agreed when it was over, but there are myriad reasons why the patent system defines the word "obvious" as it does and very specific reasons why the common English definition would create a complete disaster.
That said, and running with the presumption that you're (understandably) not an expert in patent law, ever consider that there's a very good reason why patentability is defined the way it is, use of the word "obvious" notwithstanding? 35 USC 103 could have been written to use a different word - especially likely since we both agree that the patent system has redefined "obvious". The real question is Why should the patent system use common English obvious? Pointing out that the patent system actually uses a different definition merely begs the
Do you have any evidence whatsoever to back any of this up?
My assumption is that your opinion is nothing but a rabid ignorance of patent law and a absolutely no knowledge whatsoever of the patent examining procedure.
Do you know what the initials "MPEP" mean without going to Google?
Can you define what "prior art" means according to the law?
Can you cite a single example of "political pressure to grant patents quickly"?