You have to have a working prototype not just a bunch of bullshit on paper.
Despite the description ("bullshit on paper"), this statement is simply 100% false. I urge you to research the concept of "constructive reduction to practice." I'll personally pay you $1,000,000 if you can find any proof whatsoever that "you have to have a working prototype" to win a patent in the US in 2006. This statement is pure fantasy.
NTP has nothing. They are just a bunch of lawyers who got an invalid patent on an idea and then waited to sue anybody who later inverted it.
This is completely false. The patents in question were secured by an inventor who went so far as making and attempting to market his invention. As I understand, he has since died and at some point assigned his patent rights to NTP, or they bought the patents outright. Regardless, the parent is simply pure fantasy.
Or (*gasp*) he could grant that third party a license to use his patent.
Yes, like his wife and children. I'm beginning to think that you honestly do not understand what a patent is. I'm not trying to be insulting, but it's the only way to make sense of your various statements. A patent is nothing more than the right to exclude others from practicing your invention.
Continuing to enforce it serves the financial interest of a few people who had nothing to do with the creation of this so-called invention, but only at everyone else's expense. Time to let it go. The "right" to stop other people from using an idea, just because your husband came up with it first, is not something we should feel bad about revoking for the good of everyone else.
See above - you're wildly off the topic of patents. Also, this is merely rote Utilitarianism. Aside from asking a freshmen philosophy class to demolish your opinion, how can I possibly respond? Any response to this moronity would be condescending - I'll leave it at that.
No, I'm afraid it isn't. Maybe you'd prefer to discuss that, but I'm using the word "obvious" as it's used in everyday English.
Great - then we agree that your use of the word "obvious" has literally no bearing whatsoever on the issue of patentability. If you disagree with that, we are forced to dismiss your argument as simple equivocation.
Wireless email is obvious in a world where wireless communications and email are already in use. If the law's definition of "obvious" fails to recognize that, then the law needs to be updated, because there's no sense in granting such an obvious patent.
Belligerence is no excuse for ignorance. You stand at a fork - either attempt to comprehend what is meant by the term "obviousness" under 35 USC 103, or accept that I have clearly called you out on your equivocation and refuse to fall for such a moronic tactic of debate.
I've already given you links to MPEP 2143 and 2144.
Belligerence is no excuse for ignorance. Best of luck.
They don't deserve to shut it down whether or not it's useful, because they didn't invent anything themselves - if anyone deserves to (which is questionable in itself), it's the actual inventor.
Your argument implies that an inventor cannot transfer the rights to his intellectual property. It's an absurd argument that falls to pieces under any scrutiny at all. It would mean that your employer cannot use the invention that you developed for them, while employed by them, while spending their R&D dollars, simply because you died or terminated employment. The very same implication utterly eradicates the notion of the small inventor getting his just reward through the patent system if he does not own the capital and manufacturing facilities to see his invention to market - without those, he'd have to transfer his patent rights to (*gasp*) some totally unrelated third party that had nothing to do with conceiving of the invention!
Obviousness is a matter of fact, not just a matter of law. The fact is that combining wireless technology + email to get wireless email is obvious to anyone who has ever used either technology. Whether the law's definition of "obvious" reflects that is a different issue. If the law fails to recognize that wireless email is obvious, then the law is broken.
I'd love to see any evidence that obviousness is a matter of fact, aside from a handful of minority opinions from the CAFC. The ones I'm familiar with don't even come forth and call it an issue of fact - they merely point out the flaws in considering obviousness a matter of law. Further, your argument hinges on equivocation - "obviousness" in conversational English is an entirely different concept from "obviousness" under 35 USC 103, which is what we are discussing. Your explanation of what is "obvious" is completely irrelevant in the context of patents. If you'd like a crash course on what obviousness means in terms of patents and prior art, please see MPEP 2143 and MPEP 2144.01.
Second, the point of patents is to provide an incentive to inventors.
Yes, and that incentive is the right to exclude others from importing to this country or practicing your invention for commercial gain.
A dead man can't do any more inventing. Do you think his wife and kids are going to be inspired to invent something new [...] now that they inherited this patent? Or could it be that they're just going to sit back, collect royalties, and shut down existing services? In other words, does giving them this ability provide any benefit to anyone but them?
Everything in the above paragraph is irrelevant to the issue. Would you legislate that this wife and kids are required to "be nice"? They are no more under that obligation than you are to be truthful to your mother or than I am to buy my wife a Valentine's Day card. (First you would sacrifice the rights of the few for the good of the many, and now you seem to suggest mandating morality - in a philosophy class, this would be trolling.) The patent granted its assignee the right to exclude others from practicing the invention. In this hypothetical situation, that right was transferred to a wife and kids - it could have been to his employer, or he could have dedicated that right to the public.
And when I say "profits of that patent," I am referring to the rights granted by the patent. You are correct to point out that this was a careless use of the term "profit". Sorry for the confusion.
Gosh, you're right; I see it now. No one should ever complain about a law on any grounds except its own constitutionality, or complain about the enforcement of a law on any grounds except its own legality, because laws exist independent of human society and decency.
Sarcasm aside, let's take a look at your suggestion.
Your wife and kids don't deserve the ability to shut down a useful tool used by thousands of businesses just because you filed a patent several years earlier
This is merely recitation of the principles of utilitarianism. Oh my, howcanI possiblyrespond to a knockout argument like that?
Is it even worth my trouble to critique utilitarianism? It's so pedestrian to espouse the chapter summaries from a freshman philosophy text.
- especially a patent on something as obvious as wireless email.
The CAFC has repeatedly ruled that obviousness under 35 USC 103 is a matter of law, yet you're so quick to point out that you're not giving legal advice. Yet you're clearly commenting on the obviousness of a patent, which is a matter of law. This is simply a contradiction that you seem unwilling to acknowledge for whatever reason.
So you've taken the supposed moral high ground while disclaiming any statement of legal advice, then you defend your moral high ground with pure sarcasm.
I confess that I am entirely unconvinced. I see no evidence whatsoever that if a man contributes to the public domain by publishing his invention, though given incentive to do so through a patent, that when he dies his survivors do not deserve to inherit the profits of that patent. I'll cede that you are the victor in slinging insults, but it's quite clear that you're out of your element regarding the issue.
Is it any wonder why people so frequently rant on Slashdot about the patent system and nobody takes any notice? Could there be a better analogue to the stereotypical teenage angst against parents and teachers?
While I agree that NTP's case is bogus, unhappy Congressmen are the wrong reason for invalidating the patents in question: it hoists them above the rules everyone else has to live under.
Further, any action taken by the USPTO may be appealed to the USPTO's Board of Patent Appeals; (then optionally appealed to Federal District Court); then appealed to the Court of Appeals for the Federal Circuit; then the US Supreme Court.
The point is that there are a LOT of federal judges appointed for life between what the USPTO does and the end of the appeal options. And the article suggests that puny Congressmen have enough pressure to force the outcome? Dur, why do we appoint federal judges for life in the first place? So Congressmen can't influence them. It's ludicrous - that would amount to Congressmen influencing the USPTO under the Department of Commerce to make a false judgement as matter of law (always reviewed upon appeal) or matter of fact (always reviewed for clear error - such as outright mucking it up because Congressmen pulled strings) and getting this pushed past anywhere from 3-15 federal judges.
Perhaps the journalist should research a third grade civics textbook and lay off the dope. It's simply ridiculous to think that such a thing would actually play out as described. This conspiracy theory amounts to nothing more than low grade paranoia and an ample supply of ignorance about the court system.
Of course, these are all "facts," and when it comes to facts, patents, and Slashdot, virtually nobody is interested.
I think most would agree that far more people are disillusioned about the entire patent process. Apparently, though, nothing will come of that until some government-types are inconvenienced by the system.
Or the people who are disillusioned decide to become educated about the system and, in general, form criticism more constructive than "patents suck." This is what I've consistently urged over the last several years, as my post history will show, but this suggestion asks far more of the individual than posting rants on Slashdot a few times a week. There are problems in these times, but none of them are mine. And seriously, I doubt that inconveniencing government-types is going to do anything.
You seem to have gotten the impression that I was talking about what is or isn't legal. In fact, I was talking about what is or isn't deserved - a moral judgment. Unfortunately, your entire response is based on that misunderstanding, and is therefore irrelevant.
That's exactly what I would say if I had nothing to back up my point but the supposed moral high ground.
Aside from making moral judgements about the patent system, do you complement attractive women on their functional efficiency or comparison shop computer processors based on prettiness?
You're welcome to try replying again, but if you do, I hope you'll do so with the understanding that I'm not offering legal advice.
But if you're talking about what they deserve, then no. Your wife and kids don't deserve the ability to shut down a useful tool used by thousands of businesses just because you filed a patent several years earlier - especially a patent on something as obvious as wireless email.
Sir, the law disagrees. If you take issue with the letter of the law, write your Congressperson. Also, I mean no disrespect, but I have no faith whatsoever in your ability to judge what is or is not legally obvious under 35 USC 103. My reasoning? RIM has spent millions upon millions of dollars defending themselves against this patent, and I'm fairly confident that their lawyers have thought of attacking the validity of the patent by now. Mr2001, I'm merely skeptical that your expertise supercedes the legal expertise that can be bought for millions of dollars.
Also, I know quite a lot about what is and is not legally obvious under 35 USC 103. Try me.
I am certain this is the patent referred to in the article. It was granted yesterday. It took the Patent Office 5 years to grant it!
That is false. That patent you linked is for application 10/003350. The application that is the subject of this story is 11/092511. These are completely different applications. They have completely different inventors.
The application that is the subject of this story has not been patented. It has merely been published as required by the Patent Cooperation Treaty for all normal patent applications.
A process is an abstract concept, and patenting abstract concepts used to be disallowed.
I think your argument reduces the issue to absurdity.
It could be surmised that the original patent statutes intended that "process" should be read as "process of making something" or "process of changing something," and this is reflected in many years of patented processes for things such as making steel. I think it would be futile to argue against the patentable nature of a process for making steel - one needs to only look at the history of the Japanese steel industry versus the US steel industry in the 1970s to recognize the very real intellectual and capital advantage held by the Japanese during that period. I strongly doubt a persuasive argument could be made that the Japanese advantage, embodied in their process for making steel, was much different from the advantage of, for example, an improved computer chip.
Or more succinctly, the patentable nature of a "process" is extremely appreciated and deserved in technologies such as manufacturing, chemicals, and pharmaceuticals, where a company's competitive edge may lie in their investment in discovering a new way of making the product.
Where the US patent system has become so beleaguered is what is meant by a "process for making or changing something." Some have argued that changing the configuration of a computer system meets that definition, and judges have agreed. Some judges have pointed out that this is merely what computers do and is of no consequence in whether the invention, as a whole, should be patented. Those judges were a minority. The USPTO Board of Appeals and Interferences recently decided that a "process" is not required by any statute or precedent to be limited to a technological process. This gives rise to all sorts of questions - Can a person patent a method for winning an argument by beating a person into unconciousness with a large balloon? (This seems to meet every statutory requirement - the process has utility in winning the argument (35 USC 101), produces a similarly useful result (35 USC 101 precedent for processes), concrete result in that it will always work (35 USC 101 precedent for processes), and tangible result by creating a physical change in your opponent (35 USC 101 precedent for processes); I also allege it is new and non-obvious for no reason other than I strongly doubt there is any prior art for beating people into unconciousness with a balloon, nor is there any suggestion in the prior art that it would work (you should beat people with weapons, not harmless balloons.)
Hopefully, such an absurd patent or application will rise through the court system in the near future and we'll all get some clear guidance from the CAFC about why such a process should or shouldn't be patentable. Unfortunatel for your cause, I doubt that opinion will affect the patentability of software systems in the US.
However, these are the nuances of the current issues faced by the US patent system. There is not and never has been any legal basis for defining patentability separately for different technologies - not to mention it would be entirely futile. Ban software process patents and you'd suddenly have just as many applications for "computational machine configuration processes" or "methods of controlling an electrical signal (that suspiciously corresponds to the electrical outputs of a processor)". Software's biggest enemy is the pharmaceutical industry - they want precisely the opposite patent protections. It's up to you if you don't think any process should be patentable, but it's apparent that you're fighting against 1) written law, 2) legal precedent, 3) the entire Federal court system including the Supreme Court, and 4) all the financial interests of the US pharmaceutical industry. I'm hardly going to debate the philosophical merits of your argument, but good luck. You'll need it.
Anybody who has flagged me as a "foe" has probably done so because I am consistently critical of Slashdot's reporting and the Slashdot community's self-proclaimed expertise about the patent system where clearly no such expertise exists. And this story - perhaps the FIRST newsworthy patent article I've seen in at least a year - and it virtually nobody posts. When Slashdot posts wildly inaccurate, simply false stories, everybody and their grandmother comes out to criticise a system they clearly know nothing about.
And this time I had mod points. I gave the story time and waited to see if there was anybody to mod up or anybody to mod as overrated. Instead, this story is actual news, and virtually nobody posts.
Shut up retard. Your opinion is worthless and presents no valid counter arguement.
He said that patents aren't worth the paper they're printed on. I cited four patent settlements that totaled something like $1.8 billion dollars. Not only did you misspell "argument," you don't appear to understand what the word means.
Keep fantasing all the way to hell about striking it rich and being able to kick your feet up and never work again asswipe.
There is absolutely no oversight on what gets patented and what not
USPTO, CAFC, US District Court, and the US Supreme Court. Maybe you're heard of one or two of them.
it's *WAY* too easy to get a patent on something frivolous
Please cite any statute, federal code, or case law suggesting that frivolous ideas aren't protected by patents. (PLEASE refer to the term "useful arts", because I'm dying to explain what that term actually means in the patent system.)
it should not be possible to get something patented without actual development
A fair point. Call your senator and congressmen. This is a complaint about the United States Code.
and the presentation of a working device.
I agree! Inventors who cannot afford to develop their own prototype DESERVE NO PATENT! Like you, sir, I also spit upon the poor. Incredibly wise of you!
Business methods and software should NOT be patentable at all, or only for an extremely short period.
See my first answer. Everybody agreed with you about this (USPTO, CAFC, US District Court) except one (Supreme Court). Why the hell ONE group gets to decide law for the REST of us is beyond me. What is this, the freaking Kingdom of the Supreme Court! GOSH!
I've said it before (check my post history) and I'll say it again. Slashdot is the Fox News of Patents. It's just a bunch of people standing around a burning barrel bitching about something they don't (or refuse) to understand.
And no shit nobody pays any attention to that.
But if you ask anybody around Slashdot, it's because Slashdot has the geniuses while they system is filled with idiots. I'm no psychologist, but I'm pretty sure that begins to meet the symptoms of schizophrenia.
But don't let me slow anybody down. By the way, I'm in no way associated with but recommend Patently-O. Try understanding the system that you hate so that you don't end up making statement like:
For example, it's not unusual to word a patent in such a way that a genuinely innovative company that would not even compete with the patent 'taker' will have to go and license (overbroad patenting by design).
I mean seriously, WTF. Please show one legitimate example of this. Don't be like this guy. Know what you're talking about.
I didn't read Slashdot's article (or even glance at where it's from) but in this Reuters piece they mention that the standard licensing deal is a one shot $5 million and that Microsoft, Yahoo, and Verizon have signed up. Presuming that these three behomoth corporations have the "standard deal" (who's to say?) then these three capitalist success stories decided they should pay $5 million to deal with this problem.
[Voice of Stewie]Ok, ok, bear with me. Say you've got $5 and a problem. You can either, A) pay the problem $5 to go away, or B) pay me, a sleazy, ethically vacant lawyer $4 to stab the problem in the face until its death throes signal your glorious freedom from the shackles of.. whatever it was the problem happened to be. Whaddya do? What do you do?[/Voice of Stewie]
Let's all put on our thinking caps. Microsoft presumably paid in the ballpark of $5 million to license this. Yahoo paid in the neighborhood of $5 million to license this. Verizon paid in the vicinity of $5 million to license this. All three had the option to fight it in court for less than $5 million, invalidate it, and pocket the change, yet none of them did. That doesn't prove anything in an absolute sense, but for crying out loud.
"They're gonna get toasted in court."
Maybe, but I think it's more prophetic to say, "They're gonna get toasted in court at a cost of more than $5 million to Google."
You're in denial, refusing to acknowledge that that is a trash definition of obviousness, and trying on a bogus appeal to authority rather than to actually argue the merits of your case.
I don't know why you are the way you are, but it's not my fault. Maybe you should invest in some carbon monoxide detectors for your home. You used the word "bogus" but it doesn't mean what you think it means. I cannot possibly "argue the merits of my case" because you have completely and utterly failed to identify a single plausible fault in it.
"A trash definition of obviousness"? Uh, no it's not. Point proven. Look, if you're short of cash, I'd be happy to PayPal you some money for those carbon monoxide detectors.
I'd suggest you talk to actual IP creators, not opportunists trying to take advantage of a broken patent system, and see what they have to say.
Ooh, and we'll call it "my career," and it'll require "my education," and I'll spend "my work week" doing that, and we'll call this entire situation "old news, since it's what I've been doing for years." Marvelous bit of debate you have going here. What's next, fly into a rage because your fish doesn't know anything about swimming? I'm pretty sure that if I met you on the subway, you'd invoke a "don't make eye contact, ignore the mumbling, just shuffle past" reaction.
Your view appears to be biased by only dealing with people who naively or opportunistically choose to deal with the patent system.
I'd say the same thing if I had a huge carbon monoxide leak in my home. In reality, my view is strictly based on the letter of the law and the MPEP (which cryptically stands for Manual of Patent Examining Procedure - this is why I'm also concerned about your comprehension of the word "bogus"). I've tried basing my opinion on misinformation and adolescent-style rage at a world I don't understand, but it was really, really embarrassing after I was 12 or 13 years old. Now I stick to experience, education, and facts. It's quite a good philosophy, one which I recommend to you. And carbon monoxide detectors.
I have been quoting and discussing the most recent Supreme Court ruling addressing software patents, which by definition means it cannot have been reversed.
What, you're referring to Diamond v. Diehr? I think your problem here is that I'm pretty well versed in this issue.
Diamond v. Diehr establishes the concept that "transformation of a tangible object to another state" is evidence that a process complies with 35 USC 101. That's fantastic. What Diamond v. Diehr doesn't address are the variety of ways to achieve that. Sarkar shows ways to fail that test, Alappat shows additional ways to achieve it.
The previous quote I gave directly addresses what I would characterize as the fanatical perspective that computers only perform mathematic operations, therefore anything a computer does is outside of patent protection. I say fanatical because it flies in the face of 10+ years of patent examination, litigation, case law, and a distinct lack of appeals being heard by the Supreme Court. I say fanatical because it would take nothing short of an epic Supreme Court decision that would rock the foundations of the entire technology sector economy in the US to change. But hey - maybe it'll happen. To say the VERY least, I'm extremely skeptical. To be flat honest, I think your analysis is simply wrong and the Supreme Court is not going to see the ruling your way.
And since we've had such a FUN time conversating, I am and always have been addressing a topic of conversation known as "what's actually going on in the world right now." I don't gamble on football and I'm not interested in speculating what would happen if you managed to appeal one of these patents to the Supreme Court - I'm just not interested in that conversation and never was. If that's what you do professionally, then best of luck to you. Why, maybe you should start here!
Not in the least. You seem to be unable to identify that you are failing at drawing me into conversation about a point unrelated to the original topic. YOU SEEM TO BE UNABLE TO IDENTIFY THAT YOU ARE FAILING AT DRAWING ME INTO CONVERSATION ABOUT A POINT UNRELATED TO THE ORIGINAL TOPIC.
It is you who's trolling. You admit you didn't even read the what I wrote, much reply with a valid answer.
You seem to be unable to identify that you are failing at drawing me into conversation about a point unrelated to the original topic. YOU ARE TROLLING.
I have the Supreme Court itself on my side.
Then please cite the EXISTING, NOT IMAGINARY, NOT SPECULATIVE, NOT FANTASY, NOT FICTIONAL, NOT CURRENTLY REVERSED Supreme Court Decisions which will demonstrate that you're not a trolling idiot.
I said the Supreme Court is quite busy with a huge number of urgent cases.
Oh, right, right. Whatever you say, Puff. If only the Supreme Court weren't so.. what excuse shall we use today... BUSY.. they'd immediately CREATE the imaginary, speculative, fantasy, fictional, non-reversed decision upon which your entire world of fantasy hinges. Naturally I'm a fool for not participating in conversation with you, Mr. Magic Dragon.
You can call it a "technological result" if you like, but based on Supreme Court there is no magic that can turn even a so-called "technological result" with "insignificant postsolution activity" into a valid patent.
Cripes, are you actually going to address my post instead of the straw-man argument you're trying to defeat? Well hell, alright then.
My opinion is based upon the hundreds of existing, litigation-tested patents for inventions involving compression of data. Of course, we also have other case law upholding this idea.
Arrhythmia, 958 F.2d at 1057, 22 USPQ at 1036, "It is of course true that a modern digital computer manipulates data, usually in binary form, by performing mathematical operations, such as addition, subtraction, multiplication, division, or bit shifting, on the data. But this is only how the computer does what it does. Of importance is the significance of the data and their manipulation in the real world, i.e., what the computer is doing."
So there you have it. Creating and outputting a compressed version of input data would very probably satisfy the requirements of MPEP 2106 and fully comply with the rational of Lundgren and therefore define a statutory process. You can disagree all you like, and base your opinion on whether the Detroit Lions with the Super Bowl or whether the Supreme Court would overturn State Street if they weren't so busy, but as long as Lundgren and related case law drive the policy and precedent of the US Patent system, it would appear that I win the argument regarding data compression.
What an odd thing to say. The Walkman is a personal portable stereo player. Sony invented nothing there, they merely created a personal stereo, and branded it as a "Walkman".
The playstation wasn't invented under the same argument, as it was a subset of a 'game console'.. Not sure who came up with that idea (atari was the first I remember).
Something that you can define in a single sentence (a claim) that cannot reasonably be found in the prior art (as defined primarily by 35 USC 102 paragraphs a, b, and e) may very well constitute an "invention". A little known fact is that a rejection based on "obviousness" requires every piece of the invention to be present in the prior art. Source: MPEP 2143.03.
While "the Playstation" may not have defined something you cannot find in the prior art, I believe that "a video game console that uses CDs and nothing but CDs for game program storage and has a primary input device including a D-pad and 10 buttons" would define "the Playstation" in a way that doesn't exist as a whole in the prior art. Finding the pieces and declaring it "obvious" would be a plausible, but much weaker argument. The first rebuttal would be, "If it's so obvious, why can't you find the entire thing in the prior art? Clearly the idea of combining those pieces constitutes an 'invention'."
It is not necessary to prove that an idea actually works before getting a patent on it.
This is technically not true. See MPEP 2164.07 which states:
If a claim fails to meet the utility requirement of 35 U.S.C. 101 because it is shown to be nonuseful or inoperative, then it necessarily fails to meet the how-to-use aspect of the enablement requirement of 35 U.S.C. 112, first paragraph.
However, in practice, I think that some patents have been issued to clearly inoperative inventions because there is no harm to the public in doing so. The inventor gets his patent that cannot possibly be infringed. Inventor is happy and nobody is prohibited from doing anything.
So, like I said, technically your statement is not true. In practice it would appear that the issue of "operativeness" is a little flexible, depending on the circumstances.
And naturally anybody makes mistakes once in awhile.
The article summary is correct, despite what the parent says. He rails against why Slashdot sucks, but he does so in typical Slashdot style: without reading the article or the article summary. He read the title, then wrote a knee-jerk diatribe.
Ok, you called me on it and I'm man enough to admit my mistakes. I was under the apparently mistaken impression that the person submitting an article also suggests the article title. I apologize if this isn't the case.
However, I was critical of the reporting on patents presented by Slashdot and I stand by that criticism. The Slashdot article, including the title, appears to equate a "non-final rejection from the USPTO" with "invalidating a patent" which is entirely absurd. Although this may not have been your intention, it is the appearance given on the front page of Slashdot. Given these circumstances, my criticism should have been directed at the editor and not you, the person who submitted the story. I apologize for that.
Slashdot Mirror
Despite the description ("bullshit on paper"), this statement is simply 100% false. I urge you to research the concept of "constructive reduction to practice." I'll personally pay you $1,000,000 if you can find any proof whatsoever that "you have to have a working prototype" to win a patent in the US in 2006. This statement is pure fantasy.
NTP has nothing. They are just a bunch of lawyers who got an invalid patent on an idea and then waited to sue anybody who later inverted it.
This is completely false. The patents in question were secured by an inventor who went so far as making and attempting to market his invention. As I understand, he has since died and at some point assigned his patent rights to NTP, or they bought the patents outright. Regardless, the parent is simply pure fantasy.
Yes, like his wife and children. I'm beginning to think that you honestly do not understand what a patent is. I'm not trying to be insulting, but it's the only way to make sense of your various statements. A patent is nothing more than the right to exclude others from practicing your invention.
Continuing to enforce it serves the financial interest of a few people who had nothing to do with the creation of this so-called invention, but only at everyone else's expense. Time to let it go. The "right" to stop other people from using an idea, just because your husband came up with it first, is not something we should feel bad about revoking for the good of everyone else.
See above - you're wildly off the topic of patents. Also, this is merely rote Utilitarianism. Aside from asking a freshmen philosophy class to demolish your opinion, how can I possibly respond? Any response to this moronity would be condescending - I'll leave it at that.
No, I'm afraid it isn't. Maybe you'd prefer to discuss that, but I'm using the word "obvious" as it's used in everyday English.
Great - then we agree that your use of the word "obvious" has literally no bearing whatsoever on the issue of patentability. If you disagree with that, we are forced to dismiss your argument as simple equivocation.
Wireless email is obvious in a world where wireless communications and email are already in use. If the law's definition of "obvious" fails to recognize that, then the law needs to be updated, because there's no sense in granting such an obvious patent.
Belligerence is no excuse for ignorance. You stand at a fork - either attempt to comprehend what is meant by the term "obviousness" under 35 USC 103, or accept that I have clearly called you out on your equivocation and refuse to fall for such a moronic tactic of debate.
I've already given you links to MPEP 2143 and 2144.
Belligerence is no excuse for ignorance. Best of luck.
Your argument implies that an inventor cannot transfer the rights to his intellectual property. It's an absurd argument that falls to pieces under any scrutiny at all. It would mean that your employer cannot use the invention that you developed for them, while employed by them, while spending their R&D dollars, simply because you died or terminated employment. The very same implication utterly eradicates the notion of the small inventor getting his just reward through the patent system if he does not own the capital and manufacturing facilities to see his invention to market - without those, he'd have to transfer his patent rights to (*gasp*) some totally unrelated third party that had nothing to do with conceiving of the invention!
Obviousness is a matter of fact, not just a matter of law. The fact is that combining wireless technology + email to get wireless email is obvious to anyone who has ever used either technology. Whether the law's definition of "obvious" reflects that is a different issue. If the law fails to recognize that wireless email is obvious, then the law is broken.
I'd love to see any evidence that obviousness is a matter of fact, aside from a handful of minority opinions from the CAFC. The ones I'm familiar with don't even come forth and call it an issue of fact - they merely point out the flaws in considering obviousness a matter of law. Further, your argument hinges on equivocation - "obviousness" in conversational English is an entirely different concept from "obviousness" under 35 USC 103, which is what we are discussing. Your explanation of what is "obvious" is completely irrelevant in the context of patents. If you'd like a crash course on what obviousness means in terms of patents and prior art, please see MPEP 2143 and MPEP 2144.01.
Second, the point of patents is to provide an incentive to inventors.
Yes, and that incentive is the right to exclude others from importing to this country or practicing your invention for commercial gain.
A dead man can't do any more inventing. Do you think his wife and kids are going to be inspired to invent something new [...] now that they inherited this patent? Or could it be that they're just going to sit back, collect royalties, and shut down existing services? In other words, does giving them this ability provide any benefit to anyone but them?
Everything in the above paragraph is irrelevant to the issue. Would you legislate that this wife and kids are required to "be nice"? They are no more under that obligation than you are to be truthful to your mother or than I am to buy my wife a Valentine's Day card. (First you would sacrifice the rights of the few for the good of the many, and now you seem to suggest mandating morality - in a philosophy class, this would be trolling.) The patent granted its assignee the right to exclude others from practicing the invention. In this hypothetical situation, that right was transferred to a wife and kids - it could have been to his employer, or he could have dedicated that right to the public.
And when I say "profits of that patent," I am referring to the rights granted by the patent. You are correct to point out that this was a careless use of the term "profit". Sorry for the confusion.
Sarcasm aside, let's take a look at your suggestion.
Your wife and kids don't deserve the ability to shut down a useful tool used by thousands of businesses just because you filed a patent several years earlier
This is merely recitation of the principles of utilitarianism. Oh my, how can I possibly respond to a knockout argument like that?
Is it even worth my trouble to critique utilitarianism? It's so pedestrian to espouse the chapter summaries from a freshman philosophy text.
- especially a patent on something as obvious as wireless email.
The CAFC has repeatedly ruled that obviousness under 35 USC 103 is a matter of law, yet you're so quick to point out that you're not giving legal advice. Yet you're clearly commenting on the obviousness of a patent, which is a matter of law. This is simply a contradiction that you seem unwilling to acknowledge for whatever reason.
So you've taken the supposed moral high ground while disclaiming any statement of legal advice, then you defend your moral high ground with pure sarcasm.
I confess that I am entirely unconvinced. I see no evidence whatsoever that if a man contributes to the public domain by publishing his invention, though given incentive to do so through a patent, that when he dies his survivors do not deserve to inherit the profits of that patent. I'll cede that you are the victor in slinging insults, but it's quite clear that you're out of your element regarding the issue.
Is it any wonder why people so frequently rant on Slashdot about the patent system and nobody takes any notice? Could there be a better analogue to the stereotypical teenage angst against parents and teachers?
Further, any action taken by the USPTO may be appealed to the USPTO's Board of Patent Appeals; (then optionally appealed to Federal District Court); then appealed to the Court of Appeals for the Federal Circuit; then the US Supreme Court.
The point is that there are a LOT of federal judges appointed for life between what the USPTO does and the end of the appeal options. And the article suggests that puny Congressmen have enough pressure to force the outcome? Dur, why do we appoint federal judges for life in the first place? So Congressmen can't influence them. It's ludicrous - that would amount to Congressmen influencing the USPTO under the Department of Commerce to make a false judgement as matter of law (always reviewed upon appeal) or matter of fact (always reviewed for clear error - such as outright mucking it up because Congressmen pulled strings) and getting this pushed past anywhere from 3-15 federal judges.
Perhaps the journalist should research a third grade civics textbook and lay off the dope. It's simply ridiculous to think that such a thing would actually play out as described. This conspiracy theory amounts to nothing more than low grade paranoia and an ample supply of ignorance about the court system.
Of course, these are all "facts," and when it comes to facts, patents, and Slashdot, virtually nobody is interested.
I think most would agree that far more people are disillusioned about the entire patent process. Apparently, though, nothing will come of that until some government-types are inconvenienced by the system.
Or the people who are disillusioned decide to become educated about the system and, in general, form criticism more constructive than "patents suck." This is what I've consistently urged over the last several years, as my post history will show, but this suggestion asks far more of the individual than posting rants on Slashdot a few times a week. There are problems in these times, but none of them are mine. And seriously, I doubt that inconveniencing government-types is going to do anything.
That's exactly what I would say if I had nothing to back up my point but the supposed moral high ground.
Aside from making moral judgements about the patent system, do you complement attractive women on their functional efficiency or comparison shop computer processors based on prettiness?
You're welcome to try replying again, but if you do, I hope you'll do so with the understanding that I'm not offering legal advice.
Believe me, that was clear from the start.
Sir, the law disagrees. If you take issue with the letter of the law, write your Congressperson. Also, I mean no disrespect, but I have no faith whatsoever in your ability to judge what is or is not legally obvious under 35 USC 103. My reasoning? RIM has spent millions upon millions of dollars defending themselves against this patent, and I'm fairly confident that their lawyers have thought of attacking the validity of the patent by now. Mr2001, I'm merely skeptical that your expertise supercedes the legal expertise that can be bought for millions of dollars.
Also, I know quite a lot about what is and is not legally obvious under 35 USC 103. Try me.
Hey genius - IT IS NOT A PATENT.
That is false. That patent you linked is for application 10/003350. The application that is the subject of this story is 11/092511. These are completely different applications. They have completely different inventors.
The application that is the subject of this story has not been patented. It has merely been published as required by the Patent Cooperation Treaty for all normal patent applications.
I think your argument reduces the issue to absurdity.
It could be surmised that the original patent statutes intended that "process" should be read as "process of making something" or "process of changing something," and this is reflected in many years of patented processes for things such as making steel. I think it would be futile to argue against the patentable nature of a process for making steel - one needs to only look at the history of the Japanese steel industry versus the US steel industry in the 1970s to recognize the very real intellectual and capital advantage held by the Japanese during that period. I strongly doubt a persuasive argument could be made that the Japanese advantage, embodied in their process for making steel, was much different from the advantage of, for example, an improved computer chip.
Or more succinctly, the patentable nature of a "process" is extremely appreciated and deserved in technologies such as manufacturing, chemicals, and pharmaceuticals, where a company's competitive edge may lie in their investment in discovering a new way of making the product.
Where the US patent system has become so beleaguered is what is meant by a "process for making or changing something." Some have argued that changing the configuration of a computer system meets that definition, and judges have agreed. Some judges have pointed out that this is merely what computers do and is of no consequence in whether the invention, as a whole, should be patented. Those judges were a minority. The USPTO Board of Appeals and Interferences recently decided that a "process" is not required by any statute or precedent to be limited to a technological process. This gives rise to all sorts of questions - Can a person patent a method for winning an argument by beating a person into unconciousness with a large balloon? (This seems to meet every statutory requirement - the process has utility in winning the argument (35 USC 101), produces a similarly useful result (35 USC 101 precedent for processes), concrete result in that it will always work (35 USC 101 precedent for processes), and tangible result by creating a physical change in your opponent (35 USC 101 precedent for processes); I also allege it is new and non-obvious for no reason other than I strongly doubt there is any prior art for beating people into unconciousness with a balloon, nor is there any suggestion in the prior art that it would work (you should beat people with weapons, not harmless balloons.)
Hopefully, such an absurd patent or application will rise through the court system in the near future and we'll all get some clear guidance from the CAFC about why such a process should or shouldn't be patentable. Unfortunatel for your cause, I doubt that opinion will affect the patentability of software systems in the US.
However, these are the nuances of the current issues faced by the US patent system. There is not and never has been any legal basis for defining patentability separately for different technologies - not to mention it would be entirely futile. Ban software process patents and you'd suddenly have just as many applications for "computational machine configuration processes" or "methods of controlling an electrical signal (that suspiciously corresponds to the electrical outputs of a processor)". Software's biggest enemy is the pharmaceutical industry - they want precisely the opposite patent protections. It's up to you if you don't think any process should be patentable, but it's apparent that you're fighting against 1) written law, 2) legal precedent, 3) the entire Federal court system including the Supreme Court, and 4) all the financial interests of the US pharmaceutical industry. I'm hardly going to debate the philosophical merits of your argument, but good luck. You'll need it.
Hm, maybe, but I'll insult you anytime you like ;)
That's probably the most accurate sentiment that I've ever read on Slashdot.
And this time I had mod points. I gave the story time and waited to see if there was anybody to mod up or anybody to mod as overrated. Instead, this story is actual news, and virtually nobody posts.
Slashdot is the Fox News of Patents.
He said that patents aren't worth the paper they're printed on. I cited four patent settlements that totaled something like $1.8 billion dollars. Not only did you misspell "argument," you don't appear to understand what the word means.
Keep fantasing all the way to hell about striking it rich and being able to kick your feet up and never work again asswipe.
What on earth are you replying to?
USPTO, CAFC, US District Court, and the US Supreme Court. Maybe you're heard of one or two of them.
it's *WAY* too easy to get a patent on something frivolous
Please cite any statute, federal code, or case law suggesting that frivolous ideas aren't protected by patents. (PLEASE refer to the term "useful arts", because I'm dying to explain what that term actually means in the patent system.)
it should not be possible to get something patented without actual development
A fair point. Call your senator and congressmen. This is a complaint about the United States Code.
and the presentation of a working device.
I agree! Inventors who cannot afford to develop their own prototype DESERVE NO PATENT! Like you, sir, I also spit upon the poor. Incredibly wise of you!
Business methods and software should NOT be patentable at all, or only for an extremely short period.
See my first answer. Everybody agreed with you about this (USPTO, CAFC, US District Court) except one (Supreme Court). Why the hell ONE group gets to decide law for the REST of us is beyond me. What is this, the freaking Kingdom of the Supreme Court! GOSH!
Everyone is entitled to his or her opinion. Amazon pays $40m in patent settlement. HP pays $141m in patent settlement. Digene Corp. pays Georgetown University $7.5m plus royalties in patent settlement. Medtronic pays $1.35 billion in patent settlement. I mean, I don't want to call you a liar, but it seems to me, just kinda, jumps out at me, maybe I'm just mistaken, but it seems like patents are worth more than the paper they're printed on.
I've said it before (check my post history) and I'll say it again. Slashdot is the Fox News of Patents. It's just a bunch of people standing around a burning barrel bitching about something they don't (or refuse) to understand.
And no shit nobody pays any attention to that.
But if you ask anybody around Slashdot, it's because Slashdot has the geniuses while they system is filled with idiots. I'm no psychologist, but I'm pretty sure that begins to meet the symptoms of schizophrenia.
But don't let me slow anybody down. By the way, I'm in no way associated with but recommend Patently-O. Try understanding the system that you hate so that you don't end up making statement like:
For example, it's not unusual to word a patent in such a way that a genuinely innovative company that would not even compete with the patent 'taker' will have to go and license (overbroad patenting by design).
I mean seriously, WTF. Please show one legitimate example of this . Don't be like this guy. Know what you're talking about.
I didn't read Slashdot's article (or even glance at where it's from) but in this Reuters piece they mention that the standard licensing deal is a one shot $5 million and that Microsoft, Yahoo, and Verizon have signed up. Presuming that these three behomoth corporations have the "standard deal" (who's to say?) then these three capitalist success stories decided they should pay $5 million to deal with this problem.
[Voice of Stewie]Ok, ok, bear with me. Say you've got $5 and a problem. You can either, A) pay the problem $5 to go away, or B) pay me, a sleazy, ethically vacant lawyer $4 to stab the problem in the face until its death throes signal your glorious freedom from the shackles of.. whatever it was the problem happened to be. Whaddya do? What do you do?[/Voice of Stewie]
Let's all put on our thinking caps. Microsoft presumably paid in the ballpark of $5 million to license this. Yahoo paid in the neighborhood of $5 million to license this. Verizon paid in the vicinity of $5 million to license this. All three had the option to fight it in court for less than $5 million, invalidate it, and pocket the change, yet none of them did. That doesn't prove anything in an absolute sense, but for crying out loud.
"They're gonna get toasted in court."
Maybe, but I think it's more prophetic to say, "They're gonna get toasted in court at a cost of more than $5 million to Google."
Not THAT's a news story.
I don't know why you are the way you are, but it's not my fault. Maybe you should invest in some carbon monoxide detectors for your home. You used the word "bogus" but it doesn't mean what you think it means. I cannot possibly "argue the merits of my case" because you have completely and utterly failed to identify a single plausible fault in it.
"A trash definition of obviousness"? Uh, no it's not. Point proven. Look, if you're short of cash, I'd be happy to PayPal you some money for those carbon monoxide detectors.
I'd suggest you talk to actual IP creators, not opportunists trying to take advantage of a broken patent system, and see what they have to say.
Ooh, and we'll call it "my career," and it'll require "my education," and I'll spend "my work week" doing that, and we'll call this entire situation "old news, since it's what I've been doing for years." Marvelous bit of debate you have going here. What's next, fly into a rage because your fish doesn't know anything about swimming? I'm pretty sure that if I met you on the subway, you'd invoke a "don't make eye contact, ignore the mumbling, just shuffle past" reaction.
Your view appears to be biased by only dealing with people who naively or opportunistically choose to deal with the patent system.
I'd say the same thing if I had a huge carbon monoxide leak in my home. In reality, my view is strictly based on the letter of the law and the MPEP (which cryptically stands for Manual of Patent Examining Procedure - this is why I'm also concerned about your comprehension of the word "bogus"). I've tried basing my opinion on misinformation and adolescent-style rage at a world I don't understand, but it was really, really embarrassing after I was 12 or 13 years old. Now I stick to experience, education, and facts. It's quite a good philosophy, one which I recommend to you. And carbon monoxide detectors.
What, you're referring to Diamond v. Diehr? I think your problem here is that I'm pretty well versed in this issue.
Diamond v. Diehr establishes the concept that "transformation of a tangible object to another state" is evidence that a process complies with 35 USC 101. That's fantastic. What Diamond v. Diehr doesn't address are the variety of ways to achieve that. Sarkar shows ways to fail that test, Alappat shows additional ways to achieve it.
The previous quote I gave directly addresses what I would characterize as the fanatical perspective that computers only perform mathematic operations, therefore anything a computer does is outside of patent protection. I say fanatical because it flies in the face of 10+ years of patent examination, litigation, case law, and a distinct lack of appeals being heard by the Supreme Court. I say fanatical because it would take nothing short of an epic Supreme Court decision that would rock the foundations of the entire technology sector economy in the US to change. But hey - maybe it'll happen. To say the VERY least, I'm extremely skeptical. To be flat honest, I think your analysis is simply wrong and the Supreme Court is not going to see the ruling your way.
And since we've had such a FUN time conversating, I am and always have been addressing a topic of conversation known as "what's actually going on in the world right now." I don't gamble on football and I'm not interested in speculating what would happen if you managed to appeal one of these patents to the Supreme Court - I'm just not interested in that conversation and never was. If that's what you do professionally, then best of luck to you. Why, maybe you should start here!
Patent issued in October 2005 for image compression
Not in the least. You seem to be unable to identify that you are failing at drawing me into conversation about a point unrelated to the original topic. YOU SEEM TO BE UNABLE TO IDENTIFY THAT YOU ARE FAILING AT DRAWING ME INTO CONVERSATION ABOUT A POINT UNRELATED TO THE ORIGINAL TOPIC.
It is you who's trolling. You admit you didn't even read the what I wrote, much reply with a valid answer.
You seem to be unable to identify that you are failing at drawing me into conversation about a point unrelated to the original topic. YOU ARE TROLLING.
I have the Supreme Court itself on my side.
Then please cite the EXISTING, NOT IMAGINARY, NOT SPECULATIVE, NOT FANTASY, NOT FICTIONAL, NOT CURRENTLY REVERSED Supreme Court Decisions which will demonstrate that you're not a trolling idiot.
I said the Supreme Court is quite busy with a huge number of urgent cases.
Oh, right, right. Whatever you say, Puff. If only the Supreme Court weren't so.. what excuse shall we use today... BUSY.. they'd immediately CREATE the imaginary, speculative, fantasy, fictional, non-reversed decision upon which your entire world of fantasy hinges. Naturally I'm a fool for not participating in conversation with you, Mr. Magic Dragon.
You can call it a "technological result" if you like, but based on Supreme Court there is no magic that can turn even a so-called "technological result" with "insignificant postsolution activity" into a valid patent.
Cripes, are you actually going to address my post instead of the straw-man argument you're trying to defeat? Well hell, alright then.
My opinion is based upon the hundreds of existing, litigation-tested patents for inventions involving compression of data. Of course, we also have other case law upholding this idea.
So there you have it. Creating and outputting a compressed version of input data would very probably satisfy the requirements of MPEP 2106 and fully comply with the rational of Lundgren and therefore define a statutory process. You can disagree all you like, and base your opinion on whether the Detroit Lions with the Super Bowl or whether the Supreme Court would overturn State Street if they weren't so busy, but as long as Lundgren and related case law drive the policy and precedent of the US Patent system, it would appear that I win the argument regarding data compression.
You're either expressing paranoid schizophrenia or are unfamiliar with the US Patent system.
Trusting that you're merely uninformed, see MPEP 2143.
Something that you can define in a single sentence (a claim) that cannot reasonably be found in the prior art (as defined primarily by 35 USC 102 paragraphs a, b, and e) may very well constitute an "invention". A little known fact is that a rejection based on "obviousness" requires every piece of the invention to be present in the prior art. Source: MPEP 2143.03.
While "the Playstation" may not have defined something you cannot find in the prior art, I believe that "a video game console that uses CDs and nothing but CDs for game program storage and has a primary input device including a D-pad and 10 buttons" would define "the Playstation" in a way that doesn't exist as a whole in the prior art. Finding the pieces and declaring it "obvious" would be a plausible, but much weaker argument. The first rebuttal would be, "If it's so obvious, why can't you find the entire thing in the prior art? Clearly the idea of combining those pieces constitutes an 'invention'."
This is technically not true. See MPEP 2164.07 which states:
However, in practice, I think that some patents have been issued to clearly inoperative inventions because there is no harm to the public in doing so. The inventor gets his patent that cannot possibly be infringed. Inventor is happy and nobody is prohibited from doing anything.
So, like I said, technically your statement is not true. In practice it would appear that the issue of "operativeness" is a little flexible, depending on the circumstances.
And naturally anybody makes mistakes once in awhile.
Ok, you called me on it and I'm man enough to admit my mistakes. I was under the apparently mistaken impression that the person submitting an article also suggests the article title. I apologize if this isn't the case.
However, I was critical of the reporting on patents presented by Slashdot and I stand by that criticism. The Slashdot article, including the title, appears to equate a "non-final rejection from the USPTO" with "invalidating a patent" which is entirely absurd. Although this may not have been your intention, it is the appearance given on the front page of Slashdot. Given these circumstances, my criticism should have been directed at the editor and not you, the person who submitted the story. I apologize for that.