The sort of implied-between-the-lines story here is that "I didn't talk to my sister, so I got into game programming a zillion years later". Ah, the irony of this kind of one-thing-leads-to-another stuff from the game industry.
That quote requires a lot of insight.
GemStone III got started circa 1990 and required access through a system such as GEnie or Prodigy. It was a pay-per-hour game and Simutronics didn't have the infrastructure to bill players directly, so they partnered with providers like GEnie.
If GemStone III is famous by any definition, it should be mentioned that the game has always pulled from its players for talent, developers, direction, and decisions. I'm pulling stastics out of the air, but I'd bet 20% of their players are directly or indirectly responsible, on a personal level, for influencing development of the game.
(My claim to fame in that area would have been modifying the magical spell penalties to chain and plate based armor that was implemented as part of the GP2 program. This wasn't some nerfing rant - I presented the charts, statistics, numbers, examples, and argued that a certain 3% adjustment be scaled back to 1% and 2% over a given range. GM Warden thought I was a genius (slight autobiographical liberty taken here) and my suggestion was implemented within about a week. And NOBODY IN THE WORLD CARES which is why I'm telling the ENTIRE Slashdot readership about how geeky I am. RM would have approved, BM would have attempted to murder me, Fighter likes swords, and *yoink* Thief stole my wallet.)
Anyway, my point is that it's hard to "just play" GemStone III (now GemStone IV). Many serious players become developers (all of my friends from GemStone are now developers of some sort) and that led this guy to Everquest II. Of course, none of this was clear from the quote, so I guess I'm informative (and self-promoting. MAN I was smart and right about those armor numbers!)
First, while I sympathize with your frustration, your reply has really very little to do with what was previously being discussed. There's nothing wrong with that in principle, but it's indicative of why very few people in the IP industry take Slashdot seriously. No matter how reasonable the suggestion, the only solution that satisfies Slashdot is Revolution. That's an easy opinion to dismiss.
The problem with your strategy is that "we", the non-rich, corporations or otherwise, developers are always going to be on the losing side in this battle. The patent system as it is doesn't offer any real benefit to the little guy. If Microsoft contested a patent of mine I'd be hooped, even if in the right - the patent might get bought by someone who could afford to defend it, but it wouldn't matter for me.
I'm puzzled. The alternative is what? The little guy publishes his idea and Microsoft steals it, and he has no legal recourse whatsoever? Maybe he pursues the eternally fruitless line of copyright infringement?
In the situation you describe, the little guy is holding the golden ticket. He could license it, sell it, or use it to protect his own products. You describe a situation where the reality of the market urges him to sell the patent. Maybe the little guy isn't happy about it, but that's how the market works. At least he got to cash out the golden ticket.
What's more is that I find the situation you describe slightly unrealistic. A case of patent infringement is typically pretty cut and dry (to the people who work in that industry). If Microsoft is honestly infringing, then the little guy will have no trouble finding legal representation that will collect their paycheck out of Microsoft's settlement, and the little guy gets to keep his patent.
It may be hard to fight to dismantle the patent system, or overhaul it extensively, but that's the only way it'll ever actually be a benefit to society. Luckily, I think it'll collapse soon enough.
Pardon me for asking but what exactly is your expertise in the patent system? I'm not trying to be rude, but I work 50 hour weeks in the IP industry and it gets really irksome to enter conversations like this with people who read about patents on Slashdot. I hope you understand my position and don't take offense.
If the patent system changed to a forced-licensing, industry-determined royalties system, you couldn't abuse it by squatting.
I'm not speaking in hyperbole when I say that this idea very quickly reduces to a corrupt economy where only the oligopoly survives. Imagine the Big Three automakers A, B, and C are the only competitors in automobiles. The patent system forces all of A's inventions to be licensed to B and C at industry-determined prices. Well well, B and C can eliminate A's competitive advantage gained by that invention by 1) getting it at the same price as mandated by the government's patent system, or 2) set the price so low that nobody cares. Now A, B, and C have essentially equal access to what was previously A's competitive advantage. How can any company continue to please Wall Street? Price fixing. A, B, and C form on oligopoly to preclude outside competition and agree to not impede each other's profits. Failure to participate is foolish - you'd quickly be squeezed out of the market because the government has decreed that you shall have no unique competitive advantage. How are you going to compete in that market? You form a price fixing oligopoly or you'll hemmorage cash until bankruptcy.
For the "forced-licensing, industry-determined royalties system" to work, you must first remove the market economy. To do that, I believe history shows you must first remove greed from human nature.
It's not like the only option to the current patent system is anarchy with armed lawyers wandering the streets.
Yeah, it's spending a little dough up front to assess your patent liability. You don't develop a product that has no market - you do ma
See, the big problem with that is that we really don't want to turn the IT industry into the medical industry, where some huge fraction of your wages has to go to malpractice or patent infringement insurance, and where innovation is difficult because of the legal risks involved.
And if this were 1995 before Diamond v. Diehr, I'd say you are very insightful.
But since this is 2005, my response is that you're roughly 10 years behind the hard facts of the industry. If you refuse to compete in the reality of 2005 then you're just going to be extremely bitter after being sued into bankruptcy.
Perhaps the easiest patent reform would be to disallow corporate ownership of patents.
Yeah, maybe. That suggestion is just a shade less radical than dismantling the entire system. You go ahead and promote that idea, I'll continue to suggest identifying your patent liability before you're sued, and we'll see who comes out ahead.
Slashdot IS the Fox News of the patent system. All the ranting and raving about how stupid the system is will get nothing done. Nobody who gets sued out of business will be in a position to lobby for reform. Why not solve tomorrow's problem? The popular alternative amounts to holding your breath until you turn blue and get what you want.
I'm not familiar with Linus' proposal (or existing tool?) but thank you for the explanation of Perens' position. I am extremely familiar with both programming and the patent system.
Your summary seems extremely plausible. Having an arsenal of patent leverage could easily be useless leverage in the scenarios you describe.
I think that first and foremost is fulfilling the need in the software world for a patent liability analysis/consulting industry. The patent system is widely misunderstood by the average Joe working in software.
Slashdot, the Fox News of the Patent System, is proof positive of this observation.
While reform, via legislation or case law, is an ideal solution (using both definitions of "ideal") a more immediate and likely solution, in my opinion, is including patent liability in your software project. Market analysis, marketing, tax experts, and human resources are existing overhead in software development companies. I'm just making the observation that assessing your patent liability in a professional manner, by experts, with some form of insurance, seems to be the next logical step.
Of course, when the patent system is "adequately" reformed, that will be unnecessary. But which seems like the best solution for tomorrow or 2006? Continue blindly, hope you don't get sued, and wait for reform; or pay an expert to determine whether you're on thin ice regarding patent infringement?
A first step toward making this an industry-wide practice could be a service like Groklaw that helps to inform and educate those average Joes. I'm not sure that devoting resources to develop a Mutually Assured Destruction patent arsenal will possess any real expectation of success.
I read it quickly (not exhaustively) and I don't see material there that would reject the patent's claims. I'm playing devil's advocate here (aka the attorney, you get to be a patent examiner (yay!)). This is a small sampling of what you'd be up against.
I don't see the paper mention the creation of a "dynamic Web page". It appears to discuss dynamic generation or caching of GIF images, but everybody knows that a Web page is more than a simple GIF image. The paper doesn't teach anything about "routing said request from said Web server to a page server", which is a critical piece of the invention. In fact, the paper to be more directed toward a graphics retrieval optimization, not a dynamic Web page load balancing invention like claim 1.
In fact, the paper even teaches away from the claimed invention in stating "The final compression operation which produces a GIF image unavoidably consumes processor time." The entire purpose of the invention is to save processor time. The paper goes on to suggest that uncompressed image formats are undesirable because most browsers don't support them. This just goes to show how the paper does not address dynamic creation of a "Web page". The paper neither discloses (35 USC 102 - novelty) nor suggests (35 USC 103 - non-obviousness) the invention of claim 1. It would be overkill to address the other claims.
(Now, speaking as a non-lawyer, I see your original point perfectly. Your actual presentation and your implementation might be exactly the same concept as this patent, but that doesn't mean a thing. If you don't have the evidence, it won't hold up in court. Have a great evening.)
And I know I'm not the only one with prior art on this stupidity.
Of course! It's perfectly reasonable to expect a patent examiner to unearth your INCREDIBLY MONUMENTAL presentation about cached GIF images of rectangular subregions of biology data that are dynamically cached with a web-based interface! You'd have to be a FRIGGIN IDIOT to miss THAT contribution to human knowledge.
If you honestly take yourself as seriously as your post implies, you might be interested in learning a little about how patent examining is actually performed. It'll make you look less hilarious to people who do when you're sharing your resume at every opportunity.
If you have published and dated material from your presentation, why not send a little email to eHarmony? Just ask them to pass it along to their legal staff to take a look. If it makes a legitimate attack on the legitimacy of the patent, they'll be sure to make use of it. If you don't pass it along, I'm afraid that they might not find your widely-publicized, so freaking-freaking-famous-they-make-shows-on-VH1-ab out-it presentation at the Second International Web Conference in 1994 (there must have been like dozens of people there! I bet the musical guest was an awkward white guy rapping about "cyber space" and the "information super highway"), and that would be a real shame.
Additionally, it might shake the reputation that Slashdot is the Fox News of the Patent System if a 4-digit UID Slashdotter actually contributed to a validity attack on a rabidly hated patent.
If these cowards were out for something more than extortion they should be suing Microsoft for selling the tools (ASP,.NET, IIS) for doing exactly this.
Many patent infringement trials can cost several million dollars before the first day in court. Microsoft wouldn't think twice about spending that and more to challenge the validity of the patent. A smaller company might be able to spend a small fraction of that on a validity challenge.
Once the patent fails a validity challenge, the game is over for the patent-holder. Unless Microsoft was the ONLY potential target, there is literally no reason in the world why they would go after Microsoft first. The risk is bigger, the battle is tougher, the payout is more likely to go through lengthy appeals, they're far more likely to get screwed out of the payout by Microsoft's weasling, and they're far more likely to be simply bought out by Microsoft (which has a better pay day than an invalid patent, but not nearly enough for a company with virtually no capital.)
Come to think of it, what tools have they used to build their own web-site that implements these patents?
This is a rhetorical question, I presume. There is absolutely no requirement whatsoever that the patent-holder or the inventor actually possess or use the invention.
I have personally seen this explained on Slashdot at least 10 times. It is not a complicated concept.
A so-called "submarine patent" is used to describe a patent prosecution technique where you intentionally delay the issue of a patent application by refusing to fix little problems in the application, and filing continuation applications. Under the pre-1998 AIPA rules, this would keep the entire application secret and unpublished. When you learn that someone else is making money by selling/using a potentially infringing product, you finally fix the flaws and get an issued patent. This explains the "emerging" analogy to a "submarine patent". It would have been impossible for that competitor to know about your patent application because it was secret and unpublished, thus you have submarined their business with your secret patent application.
The 1998 AIPA reform brings the US national patent application process in harmony with the international PCT procedure, which requires publication of patent applications within 18 months of their filing date (except in unusual situations that typically penalize the applicant). This forced publication makes it impossible to follow the practice of "submarine patents" because you cannot keep a patent application secret (except in unusual circumstances).
The term "submarine patent" does not and logically cannot refer to a situation where a patent is potentially infringed for a long period of time (say, 9 years) before a suit is filed. It would be a completely foreign idea to the concept of patents to enforce that. Is a patent-holder somehow omniscient and immediately knows when his patent is infringed? Is he required to employ an army of lawyers to watch the industry like a hawk so he can sue potential infringers within 9 months instead of 9 years? Patent liability is exactly that - a liability. If a potential infringer went to market with spending a penny to assess his patent liability, it was a fantastically stupid business decision. I imagine he would also file his corporate taxes by rough estimate.
Assuming Google's key employees signed one of those (which is blindingly likely) [a non-compete agreement]
Google is located in California, which does not allow non-compete agreements.
That's nice. Microsoft and Mr. Lee are domiciled in Washington, which does allow non-compete agreements.* The contract is between Microsoft and Mr. Lee. The judgment will be against Mr. Lee. The judgment will be enforceable against any of Mr. Lee's assets in the United States.
The landscape of early earth was perfectly suited to this craft [underwater basket weaving], therefore ensuring an abundant supply of crude hampers for all inhabitants. On Pangaea, the early land-mass from which modern-day continents separated like long-lost cousins at a Redneck family reunion, significant topographical features had yet to develop, creating a flat surface where liquids could have easily been collected. Subsequent ice ages would have submerged most land-bound workshops, forcing early non-humanoid basketweavers to reinvent their craft. See http://sporkqueen.diaryland.com/010517_9.html
In other words, you have nothing relevant to say about what was being discussed. I'll spell it out. OP said that Google employees signed non-compete agreements. I said that Google is located in California, and apparently that precludes Google from using non-compete agreements. You "informatively" responded with some nonsense about a) an ex-Microsoft employee, b) the fact that Microsoft is located in Washington, and c) what Lee must do to establish residency.
My reply surpasses your cunning ability to conversate by offering a passage about the history of underwater basket weaving. Go away or log in.
Assuming Google's key employees signed one of those (which is blindingly likely)
Google is located in California, which does not allow non-compete agreements. I'm no lawyer, but I've read this in about half a dozen different places that discussed the current case.
Prince changed his name to an unpronounceable symbol in order to sabotage the commercial viability of his contractually-obligated albums. After doing so, his label had at least a symbolic hurdle (no pun intended) to cross in order to capitalize on his pre-existing fame and name-recognition. Prince fulfilled his contractual obligations to the label.
As soon as his contract was fulfilled, he changed his name back to Prince and continued with his career. I don't see how any of this could be applicable in the news story under discussion.
All the clever comments on slashdot don't help much. Why not give the USPTO the feedback it needs when it does something dumb? Send the link to this article to: usptoinfo@uspto.gov They might then get the idea that there are consequences for stupid decisions.
What good is that going to do if the "bitching" is based in fantasy land and misunderstanding? On numerous occasions I have posted informative material on the US patent system. I can count on one hand the times someone has said, "Wow, you're right, I really had no idea how the patent system works." I couldn't begin to count how many times some moron replied with, "Well, you know what? I don't NEED to know how the system works, I just know it's DUMB because everyone at the USPTO is an IDIOT."
WTF good is taking that to the USPTO going to do? What someone NEEDS to do is write a concise guide, directed at the knowledge- and skill-set of the Slashdot crowd, that will explain how and why these seemingly stupid patents get issued. THEN take your complaints to the USPTO, because they won't be baseless drivel at that point.
I happen to have a BS in CS and a BS in mathematics with a focus on computability and abstract algebra, but my career is in intellectual property. I straddle the line between the Slashdot crowd and the patent system. I'm not THE expert, but I do have considerable expertise on how the US patent system works. I do what I can by posting as much informative material as my (inherently limited) patience allows, but I don't have the time, energy, or resources to educate the entire Slashdot community. If somebody's interested (or if someone already has something in the works), I'd be happy to help out.
(Disclaimer: I'm trying to be productive and addressing the larger Slashdot community - no offense intended to meburke.)
Of course they are not all terrorists. However, the incidence is surely much greater than among Irishmen or Montanans, intolerably high in my opinion. Sorry the rest of the Religion of Peace has to suffer for the actions of a few, but that is not my concern.
You, sir, are an alarmist, and you are hurting the Western world.
If the facetiousness I detect in your post is genuine, you are a troll. The concept that 26% of the world's population will be made to suffer for the acts of a few thousand is the most absurd and laughable opinion a person could have. You are a joke. Don't attempt to refute people who mock you with some cliche nonsense about Hitler. When the shoe fits, the shoe fits.
Your hilarious opinion is that one out of four people on this planet will be made to suffer for what was done by what would amount to a small village. Truly, even history's despots were more reasonable. Not even Pol Pot could write such a troll with a straight face; the Khmer Rouge had at least a plan for their own preservation - you are merely a moron who is bad at math.
It's a difference of degree and not of kind. Suppose you knew that 50% of Muslim immigrants were planning to set off bombs in the Tube, but you couldn't really tell which 50%. Would your precious liberal multi-cultural pieties make you meekly accept this? I don't think so.
YOU ARE A STUPID PERSON. If 50% of Muslim immigrants were planning to set off bombs in the Tube, MORE THAN 1 IN 10 PEOPLE ON EARTH would be planning to set off bombs in the tube. That isn't terrorism, that is a POPULIST REVOLT, you unbelievably dense idiot.
As I said, "I fail to see the relevance of your anecdote," and I still don't.
Did you read the sections of the MPEP I cited? I'd hate to think that you're merely critical of a system you don't properly understand.
To answer your question, No, you cannot take any process that people use in the analog world (whatever that means) and patent the process. However, I don't believe a deeper explanation would be fruitful if you are unfamiliar with some of the basic concepts and procedures of the patent system.
But maybe she will reconsider going into such a low and deceitful and filthy "profession".
THANK THE LORD! Maybe she'll grow up to be like you, going around making female college students cry. Good thing you saved her from being low, deceitful, and filthy!
By the way, is it possible to actually feel irony smacking you in the head sometimes?
Claims 1 and 8 are for a "method in a computer system" and claim 14 is for a "computer-based gift delivery system". The other claims depend from those. I fail to see the relevance of your anecdote. Congratulations on the baby.
Regarding the requirement of being "non-obvious", and for your own edification, I recommend perusing MPEP 2143 regarding what is required to prove "obviousness", including MPEP 2143.01-2143.03 (follow the "browse after" links). Those four sections are a tiny slice of what the MPEP has to offer about the issue of obviousness. One of the biggest misunderstandings about 35 USC 103 is that there is no provision for rejecting a "trivial" or "simple" invention. Both "novelty" and "non-obviousness" are determinations that are entirely based on the prior art, which you will see firsthand from MPEP 2143.
You are talking about THE WAY THINGS ARE. I am talking about THE WAY THINGS ARE SUPPOSED TO BE. The gaping disparity between the two demonstrates that the system is defective.
And this is where you are from a conversation that started with:
The first hurdle "we" face is that as a group defined by our membership or fandom of Slashdot, "we" don't know the first thing about how the patent system works.
I believe I'm showing great restraint and respect when I ask, "What the fuck are you babbling about?"
The fact that it's the currently the law of the land doesn't change the fact that it's a BAD ruling which is largely reponsible for the current fucked up state of affairs. Dred Scott was the law of the land for many years as well, that doesn't mean that it was ever RIGHT.
You don't have the SLIGHTEST CLUE what Graham v. Deere says.
I'm not presenting a legal case -- I'm presenting an argument that the system is BROKEN and needs to be changed.
An argument is persuasive and based on facts. You are neither persuasive nor even remotely based on facts.
The point I'm trying to make is that we need to CHANGE THE RULES OF THE GAME.
AND THE COST OF LIMA BEANS IS OUTRAGEOUS! WTF are you slobbering about? My point (extremely well proven by now) is that you don't know the first thing about the patent system. Now you're talking about radical reformation of the entire legal system that forms the basis of western society. Quick! QUICK! Roll your D20 and see if you evade my rebuttal!
Injustice and corruption are becoming the norm, rather than the exception.
So you're bad a history as well as law? Christ alive, slow down. You're going to win this flame war by overwhelming me with angles of attack.
The trend to subvert and ignore the Constitution will continue to accelerate.
As long as we have cunning conspiracy theorists like yourself to ramble incoherently in a perfectly factless vacuum of fantasy and rage, I'm sure we'll come out alright in the long run.
I prefer to read the OED to get my definitions of words in the English language.
Try that in traffic court, Mr. MENSA. They'll even laugh at you there.
I could give a flying fuck what the patent examiner's manual has to say, and my only interest in Graham v. Deere is to hold it up as an example of how a single bad ruling can poison the legal system for years afterwards. Holding up the patent manual as if it were Holy Gospel does nothing to change the fact it is an piece of crap which needs to be flushed.
DELIBERATE IGNORANCE
You are confusing the LETTER of the law with the INTENT of the law.
This is hilarious. I specifically pointed you at the applicable case law and you refuse to even glance at it. If you were a bloodhound, I have rubbed the game on your face, but now you're licking your own balls.
I don't need to read the case law or the government regulations to know
DELIBERATE IGNORANCE
Read Dred Scott if you don't understand why relying on precedent to the exclusion of common sense is a Very Bad Thing
Prior art is a test for originality, not obviousness. We need to test for both.
There IS a test for obviousness and it is based on the prior art.
See my response to the other poster, as well. Graham v. Deere (in 1966) established a test for obviousness specifically because the language is so vague. You can read about Graham v. Deere in MPEP 2141 (just Google for "MPEP 2141").
The concept IS based on the prior art in the sense that the test for obviousness allows you to "disassemble" the invention and look for its parts in the prior art. If there is some part which you cannot find, that is "invention" and is potentially patentable. If you find all the parts in the prior art but cannot produce any documented reason for combining those parts (a TV you can use as a whiteboard, for example (the whiteboard function would interfere with the TV function, etc.)) then that combination is "invention" and is potentially patentable.
It takes BOTH the existence of the parts in the prior art AND the documented reason for combining the parts in the prior art to prove something is obvious (basically - exceptions and other considerations are necessary but are not typically critical). This is the test for obviousness and it was written this way specifically to avoid some arbitrary definition of what is "basic" or "simple".
This plays into all the "on the internet" inventions. Selling dog food on the internet? Back in the late 90's, there was absolutely no prior art for that, and even less documented evidence that it would be a good idea (and let's not forget all the jokes that were made, specifically because it was a horrible idea). In one respect, it doesn't matter where the parts of your invention come from - if the overall idea is stupid enough, it's probably patentable because there is no evidence in the prior art that suggests doing it.
In any event, MPEP 2143-2144 provide more details about how to prove something is "obvious" over the prior art, and thus reject the patent application. There IS a test, it's been around since 1966, but most people outside the patent industry have no idea what it is or how it works. I hope that was helpful.
Yes, we do. It's arbitrary, capricious, corrupt, deeply flawed, and runs contrary to common sense. Anyone who's read the patent clause of the Constitution can tell you that the US patent system, as currently implemented, runs completely contrary to the framer's expressed intent for granting patents.
This is called "trolling". You can look it up in the internet jargon file. Also, before you start sounding like an expert what with the reference to "the patent clause of the Constitution", you might want to contemplate the genuine expertise that others might have. Just a thought.
The accepted definition of "obvious" is, well, obvious, and it it's the definition the patent office uses. Only a sleazy lawyer would take the non-obvious position that "obvious" == "already been done".
You are clearly unfamiliar with the Manual of Patent Examining Procedure, especially chapters 2143-2144. If you were to read those chapters, you would discover that your understanding of the term "obvious" is completely incorrect. It isn't "a sleazy lawyer" who decided that "obvious" means "already been done", it was judges on the Federal circuit. Please read Graham v. Deere if you're interested in where the current definition of "obvious" in the patent system finds its basis.
IIRC, the actual standard for patantability is is being "non-obvious TO A SKILLED PRACTICIONER OF THE ART".
You are correct but you do not know or do not understand how that standard is applied. That statement isn't some license to arbitrarily decide who does or does not get a patent. (That would immediately descend into nepotism, avarice, and corruption - the very traits you apparently want to avoid in the system.) Clearly there is a mountain of case law, statutes, and federal regulations that govern how to apply that phrase in practice.
There are many, many software patents that are PAINFULLY obvious to any average programmer. When you can be granted a patent on a trivial and blindingly obvious variation of a basic textbook technique, or for tacking the words "on the internet" on to an existing process, there's something VERY wrong with the system.
You are confusing the definition of "obvious" in general use with the definition of "obvious" in the patent system. Read MPEP 2143-2144, and read Graham v. Deere.
This is precisely my point, and you have unfortunately made yourself an excellent example. You have only an extremely vague notion that "obvious" patents shouldn't be issued; you have shown absolutely no familiarity with what that actually means as defined by case law, statute, and 37 CFR.
As in my previous post, this is like Grandma and her friends praising AOL for making the internet safe. They have plenty to say but they don't have the slightest clue what they're talking about. I'm not trying to flame (and have attempted to be informative, please read MPEP 2143-2144 and Graham v. Deere, they can be easily found with Google) but if the shoe fits, hey, what can I do?
And don't forget to flame me for my use of the phrase "deliberate ignorance". I've suggested four times that you read MPEP 2143-2144 and Graham v. Deere. What message will you be sending if you come up with some reason why you don't have to read those yet persist in arguing?
Slashdot Mirror
That quote requires a lot of insight.
GemStone III got started circa 1990 and required access through a system such as GEnie or Prodigy. It was a pay-per-hour game and Simutronics didn't have the infrastructure to bill players directly, so they partnered with providers like GEnie.
If GemStone III is famous by any definition, it should be mentioned that the game has always pulled from its players for talent, developers, direction, and decisions. I'm pulling stastics out of the air, but I'd bet 20% of their players are directly or indirectly responsible, on a personal level, for influencing development of the game.
(My claim to fame in that area would have been modifying the magical spell penalties to chain and plate based armor that was implemented as part of the GP2 program. This wasn't some nerfing rant - I presented the charts, statistics, numbers, examples, and argued that a certain 3% adjustment be scaled back to 1% and 2% over a given range. GM Warden thought I was a genius (slight autobiographical liberty taken here) and my suggestion was implemented within about a week. And NOBODY IN THE WORLD CARES which is why I'm telling the ENTIRE Slashdot readership about how geeky I am. RM would have approved, BM would have attempted to murder me, Fighter likes swords, and *yoink* Thief stole my wallet.)
Anyway, my point is that it's hard to "just play" GemStone III (now GemStone IV). Many serious players become developers (all of my friends from GemStone are now developers of some sort) and that led this guy to Everquest II. Of course, none of this was clear from the quote, so I guess I'm informative (and self-promoting. MAN I was smart and right about those armor numbers!)
"That'd make for one huge pregnancy test!" gasped both members of Slashdot's readership who are actually concerned with the size of pregnancy tests.
The problem with your strategy is that "we", the non-rich, corporations or otherwise, developers are always going to be on the losing side in this battle. The patent system as it is doesn't offer any real benefit to the little guy. If Microsoft contested a patent of mine I'd be hooped, even if in the right - the patent might get bought by someone who could afford to defend it, but it wouldn't matter for me.
I'm puzzled. The alternative is what? The little guy publishes his idea and Microsoft steals it, and he has no legal recourse whatsoever? Maybe he pursues the eternally fruitless line of copyright infringement?
In the situation you describe, the little guy is holding the golden ticket. He could license it, sell it, or use it to protect his own products. You describe a situation where the reality of the market urges him to sell the patent. Maybe the little guy isn't happy about it, but that's how the market works. At least he got to cash out the golden ticket.
What's more is that I find the situation you describe slightly unrealistic. A case of patent infringement is typically pretty cut and dry (to the people who work in that industry). If Microsoft is honestly infringing, then the little guy will have no trouble finding legal representation that will collect their paycheck out of Microsoft's settlement, and the little guy gets to keep his patent.
It may be hard to fight to dismantle the patent system, or overhaul it extensively, but that's the only way it'll ever actually be a benefit to society. Luckily, I think it'll collapse soon enough.
Pardon me for asking but what exactly is your expertise in the patent system? I'm not trying to be rude, but I work 50 hour weeks in the IP industry and it gets really irksome to enter conversations like this with people who read about patents on Slashdot. I hope you understand my position and don't take offense.
If the patent system changed to a forced-licensing, industry-determined royalties system, you couldn't abuse it by squatting.
I'm not speaking in hyperbole when I say that this idea very quickly reduces to a corrupt economy where only the oligopoly survives. Imagine the Big Three automakers A, B, and C are the only competitors in automobiles. The patent system forces all of A's inventions to be licensed to B and C at industry-determined prices. Well well, B and C can eliminate A's competitive advantage gained by that invention by 1) getting it at the same price as mandated by the government's patent system, or 2) set the price so low that nobody cares. Now A, B, and C have essentially equal access to what was previously A's competitive advantage. How can any company continue to please Wall Street? Price fixing. A, B, and C form on oligopoly to preclude outside competition and agree to not impede each other's profits. Failure to participate is foolish - you'd quickly be squeezed out of the market because the government has decreed that you shall have no unique competitive advantage. How are you going to compete in that market? You form a price fixing oligopoly or you'll hemmorage cash until bankruptcy.
For the "forced-licensing, industry-determined royalties system" to work, you must first remove the market economy. To do that, I believe history shows you must first remove greed from human nature.
It's not like the only option to the current patent system is anarchy with armed lawyers wandering the streets.
Yeah, it's spending a little dough up front to assess your patent liability. You don't develop a product that has no market - you do ma
And if this were 1995 before Diamond v. Diehr, I'd say you are very insightful.
But since this is 2005, my response is that you're roughly 10 years behind the hard facts of the industry. If you refuse to compete in the reality of 2005 then you're just going to be extremely bitter after being sued into bankruptcy.
But... at least you'll still have your ideals?
Yeah, maybe. That suggestion is just a shade less radical than dismantling the entire system. You go ahead and promote that idea, I'll continue to suggest identifying your patent liability before you're sued, and we'll see who comes out ahead.
Slashdot IS the Fox News of the patent system. All the ranting and raving about how stupid the system is will get nothing done. Nobody who gets sued out of business will be in a position to lobby for reform. Why not solve tomorrow's problem? The popular alternative amounts to holding your breath until you turn blue and get what you want.
Best of luck with that.
Your summary seems extremely plausible. Having an arsenal of patent leverage could easily be useless leverage in the scenarios you describe.
I think that first and foremost is fulfilling the need in the software world for a patent liability analysis/consulting industry. The patent system is widely misunderstood by the average Joe working in software.
Slashdot, the Fox News of the Patent System, is proof positive of this observation.
While reform, via legislation or case law, is an ideal solution (using both definitions of "ideal") a more immediate and likely solution, in my opinion, is including patent liability in your software project. Market analysis, marketing, tax experts, and human resources are existing overhead in software development companies. I'm just making the observation that assessing your patent liability in a professional manner, by experts, with some form of insurance, seems to be the next logical step.
Of course, when the patent system is "adequately" reformed, that will be unnecessary. But which seems like the best solution for tomorrow or 2006? Continue blindly, hope you don't get sued, and wait for reform; or pay an expert to determine whether you're on thin ice regarding patent infringement?
A first step toward making this an industry-wide practice could be a service like Groklaw that helps to inform and educate those average Joes. I'm not sure that devoting resources to develop a Mutually Assured Destruction patent arsenal will possess any real expectation of success.
Linky
I presume that's the paper you're talking about.
I read it quickly (not exhaustively) and I don't see material there that would reject the patent's claims. I'm playing devil's advocate here (aka the attorney, you get to be a patent examiner (yay!)). This is a small sampling of what you'd be up against.
I don't see the paper mention the creation of a "dynamic Web page". It appears to discuss dynamic generation or caching of GIF images, but everybody knows that a Web page is more than a simple GIF image. The paper doesn't teach anything about "routing said request from said Web server to a page server", which is a critical piece of the invention. In fact, the paper to be more directed toward a graphics retrieval optimization, not a dynamic Web page load balancing invention like claim 1.
In fact, the paper even teaches away from the claimed invention in stating "The final compression operation which produces a GIF image unavoidably consumes processor time." The entire purpose of the invention is to save processor time. The paper goes on to suggest that uncompressed image formats are undesirable because most browsers don't support them. This just goes to show how the paper does not address dynamic creation of a "Web page". The paper neither discloses (35 USC 102 - novelty) nor suggests (35 USC 103 - non-obviousness) the invention of claim 1. It would be overkill to address the other claims.
(Now, speaking as a non-lawyer, I see your original point perfectly. Your actual presentation and your implementation might be exactly the same concept as this patent, but that doesn't mean a thing. If you don't have the evidence, it won't hold up in court. Have a great evening.)
Of course! It's perfectly reasonable to expect a patent examiner to unearth your INCREDIBLY MONUMENTAL presentation about cached GIF images of rectangular subregions of biology data that are dynamically cached with a web-based interface! You'd have to be a FRIGGIN IDIOT to miss THAT contribution to human knowledge.
If you honestly take yourself as seriously as your post implies, you might be interested in learning a little about how patent examining is actually performed. It'll make you look less hilarious to people who do when you're sharing your resume at every opportunity.
If you have published and dated material from your presentation, why not send a little email to eHarmony? Just ask them to pass it along to their legal staff to take a look. If it makes a legitimate attack on the legitimacy of the patent, they'll be sure to make use of it. If you don't pass it along, I'm afraid that they might not find your widely-publicized, so freaking-freaking-famous-they-make-shows-on-VH1-ab out-it presentation at the Second International Web Conference in 1994 (there must have been like dozens of people there! I bet the musical guest was an awkward white guy rapping about "cyber space" and the "information super highway"), and that would be a real shame.
Additionally, it might shake the reputation that
Slashdot is the Fox News of the Patent System
if a 4-digit UID Slashdotter actually contributed to a validity attack on a rabidly hated patent.
I hope that helps.
Many patent infringement trials can cost several million dollars before the first day in court. Microsoft wouldn't think twice about spending that and more to challenge the validity of the patent. A smaller company might be able to spend a small fraction of that on a validity challenge.
Once the patent fails a validity challenge, the game is over for the patent-holder. Unless Microsoft was the ONLY potential target, there is literally no reason in the world why they would go after Microsoft first. The risk is bigger, the battle is tougher, the payout is more likely to go through lengthy appeals, they're far more likely to get screwed out of the payout by Microsoft's weasling, and they're far more likely to be simply bought out by Microsoft (which has a better pay day than an invalid patent, but not nearly enough for a company with virtually no capital.)
Come to think of it, what tools have they used to build their own web-site that implements these patents?
This is a rhetorical question, I presume. There is absolutely no requirement whatsoever that the patent-holder or the inventor actually possess or use the invention.
Slashdot: Fox News of the Patent System.
No.
I have personally seen this explained on Slashdot at least 10 times. It is not a complicated concept.
A so-called "submarine patent" is used to describe a patent prosecution technique where you intentionally delay the issue of a patent application by refusing to fix little problems in the application, and filing continuation applications. Under the pre-1998 AIPA rules, this would keep the entire application secret and unpublished. When you learn that someone else is making money by selling/using a potentially infringing product, you finally fix the flaws and get an issued patent. This explains the "emerging" analogy to a "submarine patent". It would have been impossible for that competitor to know about your patent application because it was secret and unpublished, thus you have submarined their business with your secret patent application.
The 1998 AIPA reform brings the US national patent application process in harmony with the international PCT procedure, which requires publication of patent applications within 18 months of their filing date (except in unusual situations that typically penalize the applicant). This forced publication makes it impossible to follow the practice of "submarine patents" because you cannot keep a patent application secret (except in unusual circumstances).
The term "submarine patent" does not and logically cannot refer to a situation where a patent is potentially infringed for a long period of time (say, 9 years) before a suit is filed. It would be a completely foreign idea to the concept of patents to enforce that. Is a patent-holder somehow omniscient and immediately knows when his patent is infringed? Is he required to employ an army of lawyers to watch the industry like a hawk so he can sue potential infringers within 9 months instead of 9 years? Patent liability is exactly that - a liability. If a potential infringer went to market with spending a penny to assess his patent liability, it was a fantastically stupid business decision. I imagine he would also file his corporate taxes by rough estimate.
Slashdot: Fox News of the Patent System
Couldn't answer that, but lemme spread the word:
Slashdot: Fox News of the Patent System
If Slashdot were late but accurate, it would be an unmitigated miracle.
You'd have to actually LOOK at the patent to realize it was filed in 1996.
Slashdot: Fox News of the Patent System.
Google is located in California, which does not allow non-compete agreements.
That's nice. Microsoft and Mr. Lee are domiciled in Washington, which does allow non-compete agreements.* The contract is between Microsoft and Mr. Lee. The judgment will be against Mr. Lee. The judgment will be enforceable against any of Mr. Lee's assets in the United States.
The landscape of early earth was perfectly suited to this craft [underwater basket weaving], therefore ensuring an abundant supply of crude hampers for all inhabitants. On Pangaea, the early land-mass from which modern-day continents separated like long-lost cousins at a Redneck family reunion, significant topographical features had yet to develop, creating a flat surface where liquids could have easily been collected. Subsequent ice ages would have submerged most land-bound workshops, forcing early non-humanoid basketweavers to reinvent their craft. See http://sporkqueen.diaryland.com/010517_9.html
In other words, you have nothing relevant to say about what was being discussed. I'll spell it out. OP said that Google employees signed non-compete agreements. I said that Google is located in California, and apparently that precludes Google from using non-compete agreements. You "informatively" responded with some nonsense about a) an ex-Microsoft employee, b) the fact that Microsoft is located in Washington, and c) what Lee must do to establish residency.
My reply surpasses your cunning ability to conversate by offering a passage about the history of underwater basket weaving. Go away or log in.
Google is located in California, which does not allow non-compete agreements. I'm no lawyer, but I've read this in about half a dozen different places that discussed the current case.
No, it certainly did not.
Prince changed his name to an unpronounceable symbol in order to sabotage the commercial viability of his contractually-obligated albums. After doing so, his label had at least a symbolic hurdle (no pun intended) to cross in order to capitalize on his pre-existing fame and name-recognition. Prince fulfilled his contractual obligations to the label.
As soon as his contract was fulfilled, he changed his name back to Prince and continued with his career. I don't see how any of this could be applicable in the news story under discussion.
What good is that going to do if the "bitching" is based in fantasy land and misunderstanding? On numerous occasions I have posted informative material on the US patent system. I can count on one hand the times someone has said, "Wow, you're right, I really had no idea how the patent system works." I couldn't begin to count how many times some moron replied with, "Well, you know what? I don't NEED to know how the system works, I just know it's DUMB because everyone at the USPTO is an IDIOT."
WTF good is taking that to the USPTO going to do? What someone NEEDS to do is write a concise guide, directed at the knowledge- and skill-set of the Slashdot crowd, that will explain how and why these seemingly stupid patents get issued. THEN take your complaints to the USPTO, because they won't be baseless drivel at that point.
I happen to have a BS in CS and a BS in mathematics with a focus on computability and abstract algebra, but my career is in intellectual property. I straddle the line between the Slashdot crowd and the patent system. I'm not THE expert, but I do have considerable expertise on how the US patent system works. I do what I can by posting as much informative material as my (inherently limited) patience allows, but I don't have the time, energy, or resources to educate the entire Slashdot community. If somebody's interested (or if someone already has something in the works), I'd be happy to help out.
(Disclaimer: I'm trying to be productive and addressing the larger Slashdot community - no offense intended to meburke.)
You, sir, are an alarmist, and you are hurting the Western world.
If the facetiousness I detect in your post is genuine, you are a troll. The concept that 26% of the world's population will be made to suffer for the acts of a few thousand is the most absurd and laughable opinion a person could have. You are a joke. Don't attempt to refute people who mock you with some cliche nonsense about Hitler. When the shoe fits, the shoe fits.
Your hilarious opinion is that one out of four people on this planet will be made to suffer for what was done by what would amount to a small village. Truly, even history's despots were more reasonable. Not even Pol Pot could write such a troll with a straight face; the Khmer Rouge had at least a plan for their own preservation - you are merely a moron who is bad at math.
YOU ARE A STUPID PERSON. If 50% of Muslim immigrants were planning to set off bombs in the Tube, MORE THAN 1 IN 10 PEOPLE ON EARTH would be planning to set off bombs in the tube. That isn't terrorism, that is a POPULIST REVOLT, you unbelievably dense idiot.
As I said, "I fail to see the relevance of your anecdote," and I still don't.
Did you read the sections of the MPEP I cited? I'd hate to think that you're merely critical of a system you don't properly understand.
To answer your question, No, you cannot take any process that people use in the analog world (whatever that means) and patent the process. However, I don't believe a deeper explanation would be fruitful if you are unfamiliar with some of the basic concepts and procedures of the patent system.
THANK THE LORD! Maybe she'll grow up to be like you, going around making female college students cry. Good thing you saved her from being low, deceitful, and filthy!
By the way, is it possible to actually feel irony smacking you in the head sometimes?
Regarding the requirement of being "non-obvious", and for your own edification, I recommend perusing MPEP 2143 regarding what is required to prove "obviousness", including MPEP 2143.01-2143.03 (follow the "browse after" links). Those four sections are a tiny slice of what the MPEP has to offer about the issue of obviousness. One of the biggest misunderstandings about 35 USC 103 is that there is no provision for rejecting a "trivial" or "simple" invention. Both "novelty" and "non-obviousness" are determinations that are entirely based on the prior art, which you will see firsthand from MPEP 2143.
And this is where you are from a conversation that started with:
The first hurdle "we" face is that as a group defined by our membership or fandom of Slashdot, "we" don't know the first thing about how the patent system works.
I believe I'm showing great restraint and respect when I ask, "What the fuck are you babbling about?"
The fact that it's the currently the law of the land doesn't change the fact that it's a BAD ruling which is largely reponsible for the current fucked up state of affairs. Dred Scott was the law of the land for many years as well, that doesn't mean that it was ever RIGHT.
You don't have the SLIGHTEST CLUE what Graham v. Deere says.
I'm not presenting a legal case -- I'm presenting an argument that the system is BROKEN and needs to be changed.
An argument is persuasive and based on facts. You are neither persuasive nor even remotely based on facts.
The point I'm trying to make is that we need to CHANGE THE RULES OF THE GAME.
AND THE COST OF LIMA BEANS IS OUTRAGEOUS! WTF are you slobbering about? My point (extremely well proven by now) is that you don't know the first thing about the patent system. Now you're talking about radical reformation of the entire legal system that forms the basis of western society. Quick! QUICK! Roll your D20 and see if you evade my rebuttal!
Injustice and corruption are becoming the norm, rather than the exception.
So you're bad a history as well as law? Christ alive, slow down. You're going to win this flame war by overwhelming me with angles of attack.
The trend to subvert and ignore the Constitution will continue to accelerate.
As long as we have cunning conspiracy theorists like yourself to ramble incoherently in a perfectly factless vacuum of fantasy and rage, I'm sure we'll come out alright in the long run.
Try that in traffic court, Mr. MENSA. They'll even laugh at you there.
I could give a flying fuck what the patent examiner's manual has to say, and my only interest in Graham v. Deere is to hold it up as an example of how a single bad ruling can poison the legal system for years afterwards. Holding up the patent manual as if it were Holy Gospel does nothing to change the fact it is an piece of crap which needs to be flushed.
DELIBERATE IGNORANCE
You are confusing the LETTER of the law with the INTENT of the law.
This is hilarious. I specifically pointed you at the applicable case law and you refuse to even glance at it. If you were a bloodhound, I have rubbed the game on your face, but now you're licking your own balls.
I don't need to read the case law or the government regulations to know
DELIBERATE IGNORANCE
Read Dred Scott if you don't understand why relying on precedent to the exclusion of common sense is a Very Bad Thing
DELIBERATE IGNORANCE
There IS a test for obviousness and it is based on the prior art.
See my response to the other poster, as well. Graham v. Deere (in 1966) established a test for obviousness specifically because the language is so vague. You can read about Graham v. Deere in MPEP 2141 (just Google for "MPEP 2141").
The concept IS based on the prior art in the sense that the test for obviousness allows you to "disassemble" the invention and look for its parts in the prior art. If there is some part which you cannot find, that is "invention" and is potentially patentable. If you find all the parts in the prior art but cannot produce any documented reason for combining those parts (a TV you can use as a whiteboard, for example (the whiteboard function would interfere with the TV function, etc.)) then that combination is "invention" and is potentially patentable.
It takes BOTH the existence of the parts in the prior art AND the documented reason for combining the parts in the prior art to prove something is obvious (basically - exceptions and other considerations are necessary but are not typically critical). This is the test for obviousness and it was written this way specifically to avoid some arbitrary definition of what is "basic" or "simple".
This plays into all the "on the internet" inventions. Selling dog food on the internet? Back in the late 90's, there was absolutely no prior art for that, and even less documented evidence that it would be a good idea (and let's not forget all the jokes that were made, specifically because it was a horrible idea). In one respect, it doesn't matter where the parts of your invention come from - if the overall idea is stupid enough, it's probably patentable because there is no evidence in the prior art that suggests doing it.
In any event, MPEP 2143-2144 provide more details about how to prove something is "obvious" over the prior art, and thus reject the patent application. There IS a test, it's been around since 1966, but most people outside the patent industry have no idea what it is or how it works. I hope that was helpful.
Yes, we do. It's arbitrary, capricious, corrupt, deeply flawed, and runs contrary to common sense. Anyone who's read the patent clause of the Constitution can tell you that the US patent system, as currently implemented, runs completely contrary to the framer's expressed intent for granting patents.
This is called "trolling". You can look it up in the internet jargon file. Also, before you start sounding like an expert what with the reference to "the patent clause of the Constitution", you might want to contemplate the genuine expertise that others might have. Just a thought.
The accepted definition of "obvious" is, well, obvious, and it it's the definition the patent office uses. Only a sleazy lawyer would take the non-obvious position that "obvious" == "already been done".
You are clearly unfamiliar with the Manual of Patent Examining Procedure, especially chapters 2143-2144. If you were to read those chapters, you would discover that your understanding of the term "obvious" is completely incorrect. It isn't "a sleazy lawyer" who decided that "obvious" means "already been done", it was judges on the Federal circuit. Please read Graham v. Deere if you're interested in where the current definition of "obvious" in the patent system finds its basis.
IIRC, the actual standard for patantability is is being "non-obvious TO A SKILLED PRACTICIONER OF THE ART".
You are correct but you do not know or do not understand how that standard is applied. That statement isn't some license to arbitrarily decide who does or does not get a patent. (That would immediately descend into nepotism, avarice, and corruption - the very traits you apparently want to avoid in the system.) Clearly there is a mountain of case law, statutes, and federal regulations that govern how to apply that phrase in practice.
There are many, many software patents that are PAINFULLY obvious to any average programmer. When you can be granted a patent on a trivial and blindingly obvious variation of a basic textbook technique, or for tacking the words "on the internet" on to an existing process, there's something VERY wrong with the system.
You are confusing the definition of "obvious" in general use with the definition of "obvious" in the patent system. Read MPEP 2143-2144, and read Graham v. Deere.
This is precisely my point, and you have unfortunately made yourself an excellent example. You have only an extremely vague notion that "obvious" patents shouldn't be issued; you have shown absolutely no familiarity with what that actually means as defined by case law, statute, and 37 CFR.
As in my previous post, this is like Grandma and her friends praising AOL for making the internet safe. They have plenty to say but they don't have the slightest clue what they're talking about. I'm not trying to flame (and have attempted to be informative, please read MPEP 2143-2144 and Graham v. Deere, they can be easily found with Google) but if the shoe fits, hey, what can I do?
And don't forget to flame me for my use of the phrase "deliberate ignorance". I've suggested four times that you read MPEP 2143-2144 and Graham v. Deere. What message will you be sending if you come up with some reason why you don't have to read those yet persist in arguing?