If the Patent office relies on case law to deny patents, then that's another big problem.
For the most part, this means in a general sense. Case law isn't usually relied upon for the specifics of a rejection, but rather for the underlying framework to support the logic behind a rejection. The most basic example is the Supreme Court's decision in KSR v. Teleflex, which reinforces earlier case law set forth in Graham v. John Deere, which established the factual inquiries required for determining obviousness:
1. Determine the scope and content of the prior art (i.e., conduct a search of the prior art). 2. Determine the differences between the claimed invention and the prior art (i.e., what differences are there between the claimed invention and what's disclosed in any single reference). 3. Determine the level of ordinary skill in the prior art. 4. Determine whether there are any secondary considerations that might point away from obviousness (for example, if there has been a long-felt need for the solution to some problem, but it hasn't been solved directly by the prior art, then the solution offered by the inventor might not be obvious; usually these sorts of things are provided as arguments by the applicant after a rejection is made).
Following those determinations, most obviousness rejections consist of finding ways to combine multiple references in obvious ways to arrive at something that falls within the scope of the claim, usually by taking one reference as a starting point and using the teachings of other references to modify that first reference.
Finally, there has to be a rationale for bridging the gap between what the prior art teaches directly and the modifications suggested by the examiner. For a long time, this rationale was limited to finding some "teaching, suggestion, or motivation" (TSM) for the change, i.e., a reason why the change would be beneficial, but the key in KSR was to say that there are valid rationales other than TSM. The Supreme Court gave six other example rationales in addition to upholding TSM as another valid rationale, and most of these additional rationales provide for finding something obvious when the change isn't necessarily beneficial, but is an arbitrary change where both the original version and the modified version function in a similar fashion.
A trivial example might be if the claim read, "A car having two headlights, wherein the headlights are high-intensity LED lamps."
In such a case, one could find a car having two headlights in one reference, a high-intensity LED lamp in another, indicate the modification of the car reference by replacing the headlights with the high-intensity LED lamp, and provide the rationale that the substitution doesn't change how either the car or the lamp function and that the result of the substitution would be predictable to one having ordinary skill in the art. Result: obvious.
Of course, if it turns out that there are specific challenges to installing a high-intensity LED lamp as a car headlight, then there may be some non-obvious territory available to the inventor, but they would have to further limit their claim to include their solution for those challenges.
The protections for the freedom of speech in the US Constitution are, as you say, applicable only against governmental acts.
But free speech in general is not limited to issues of government censorship, and NYT's actions, if successful, would indeed hinder the free speech of Twitter's users.
Caveat and mea culpa: I just checked the website at http://www.usptocareers.gov/ , and it turns out that the job vacancies are currently closed. Probably something to do with Congress still not passing a real budget, and the USPTO doesn't want to have people relocate to NOVA if the government is just going to shut down immediately afterwards. Hiring will undoubtedly start again once the budget situation is resolved, especially if Congress also passes the patent reform bill that would give the USPTO fee-setting authority and access to all the collected fees.
The part time program is extremely limited in scope. Also, you have to relocate so you can attend the training academy and interact with primary and supervisory examiners while you're still a junior examiner.
Starting pay for examiners depends on your incoming education or experience. People fresh out of college with a Bachelor's will generally get paid at GS-5 at a high in-grade step, and if you have a Master's or other qualifying job experience, you could come in at a high GS-7 or GS-9. Top end for primary examiners is GS-14, achievable in 4 to 6 years. After you've been there for a long time, this puts you close to the statutory salary cap. In any case, sticking around long enough will put you into six figures.
Benefits are extremely good. In addition to the standard benefits that all federal employees get (great health care, life insurance, pension, 401(k) equivalent with 5% matching, and 4/6/8 hours of paid annual and sick leave per biweek at 0/3/15 years of service), the USPTO has the federal government's flagship telework program which allows qualifying examiners (GS-12, fully successful rating, and having passed the certification exam (which is similar to the patent bar exam but shorter)) to work from home. Before that, there is a very flexible flextime schedule that comes close to letting you arrive and leave as you please, as long as you get in your 80 hours per biweek.
There are downsides, of course. One, it removes you from true engineering such that if you stay long enough, you'd better be interested enough in patent law to make a career out of it. Two, your work is metered based on a production quota, and if you have trouble meeting your quota, it can be stressful. Three, the work itself can be mind-numbing, as in many tech areas you'll be examining applications drafted with a tenuous grasp on the English language, and claim language is often intentionally vague.
And one thing to keep in mind is that you can't really make as big a difference as I let on earlier. You can do a superb job searching for prior art and making solid rejections, but ultimately, if you can't come up with a legally sound rationale for rejecting the claims, you have to allow the application. The USPTO is bound by the law, and if you try to make up your own reasoning for rejecting a claim without case law to back it up, you really just end up making more work for yourself. And if you spend too much time searching and searching for things that are extremely obscure in the prior art, you won't make production.
The idiocracy mainly comes about from Slashdotters who don't know (a) how patents work or (b) how to examine patent applications.
The USPTO is hiring. If you think you can make a difference, and you're a US citizen with at least a Bachelor's in an engineering field, and you can relocate to the Alexandria, Virginia, area, you might consider applying.
Is this true? The less oil that goes into plastics, the cheaper it becomes, and the longer it will take for economic pressures to force the world into a renewable electric-based regime. What's more, more of that oil will be refined and burned, rather than processed into plastics and buried.
You'd think that of all places, Slashdot would post a downloadable FLV link instead of (or in addition to) an embedded SWF, so that their readers wouldn't have to install Flash just to watch a video.
As far as I know, they could make that argument to the PTO during prosecution as well. Nobody knows yet how the PTO will adjudicate these sorts of things, but I can only assume that examiners will handle them like they handle 131 and 132 affidavits today.
Under first-inventor-to-file, though, they can instead choose to perjure themselves by arguing that the prior art reference's authors obtained their published material from the applicant (directly or indirectly). For a reference under a year prior to the filing date, that eliminates the availability of the reference as prior art. Inter partes review post-issuance might save some of those situations from going to court, but arguably, that would work just as well under first-to-invent.
I don't think provisional apps are changed at all. You can still file a provisional app, which is good for 1 year. When you file a nonprovisional (normal) app, if the provisional is still pending (i.e., within the 1 year) and you ask for benefit of its filing date, any claims that have written description support in the provisional are eligible for the earlier filing date.
The big thing that people run into when they do this is that they weren't actually done inventing yet when they filed the provisional, so some extra stuff works its way into the nonprovisional. If the extra stuff also finds its way into the claims, then you don't get the provisional's filing date.
Aside from the 35 USC 101 issues mentioned elsewhere, let me answer the meat of your question:
1) Yes, if an examiner is aware of the existence of your source code, and it was published before the filing date of the patent application, they could conceivably cite it as a prior art reference against the application's claims. The more available you can make your source code, the more likely it will be that the examiner can find it. Some sort of overview (akin to a research paper) of what your software does would be much more helpful than the source code, since few examiners really have time to wade through tons of source to figure out whether it does what they need. Under current law, the remaining question would be, if the date of your published code is less than a year before the applicant's filing date, whether they can prove that their invention occurred before your publication.
2) Publications aren't really publications if they're not yet public. So, your private repository can't be used as prior art. However, if the compiled program were available publicly in the US more than a year before the application's filing date, it could also count as prior art under the "public use" portion of 35 USC 102(b). However, because most patent claims to computer-based inventions depend on the nuts and bolts of the method in ways not always apparent to the user, it's extremely unlikely that an examiner would be able to cite that as prior art, as they wouldn't know what's inside the "black box" of your software. It would still be available to you for use as prior art in litigation, though.
Note also that you don't have to file a patent in order to "protect the invention from trolls" - publication is sufficient. However, as I've mentioned before, if your publication is difficult for examiners to access, it may not be found in time to be used in a rejection (though you could still use it in litigation if it comes to that). Filing a patent application, even if you don't intend to see it through, is one way to put prior art at the disposal of the examiners, since the database of issued patents and published applications is the first and most important tool examiners use when doing a prior art search.
Well, they can't just swear behind a 102(a)/(e) reference with no evidence to back it up. There are two ways to prove up their claim:
One, they can show reduction to practice before the date of the reference. That is, they show you that they had an actual working prototype of their invention before that date, and it has to have all of the features in the claim.
Or two, they can show conception of the invention before the date of the reference, combined with a showing that they undertook due diligence to develop the invention toward reduction to practice from the day before the reference date up until the reduction to practice. (A frequently used example is that the applicant can't take a month-long tropical vacation when they should be working on getting their invention ready to file.) This second method is more common, and in this case, reduction to practice usually involves what's called "constructive reduction to practice", which means they filed their patent application. (See MPEP 715.)
Also, if the applicant actually derived their invention from someone else, there is a statutory bar under 35 USC 102(f). This is exceedingly rare in USPTO proceedings, because examiners usually don't have evidence available to show derivation, but a rejection could still conceivably be made under that subsection. (See MPEP 2137.)
This has nothing to do with patents. It has to do with the concept that the key, under the DMCA, "effectively controls access to a protected work".
So you don't even have to spend money on a patent. You just have to use a public domain cryptosystem (or roll your own, if you can avoid the patent minefield) and hand it a frequently-used-on-the-internet number as a symmetric key. Then go around demanding that people remove that number from various websites, because publishing it violates the DMCA.
This was not an accusation. This was not public. This was a private conversation between friends outside of school. The teacher had to force a student to log on to his facebook to even see them.
Do you actually know what kind of messages these were? Were they really private messages from one student directly to one other student? Or were they posted on the student's wall, and the student's privacy settings were such that only their friends (however many hundreds of people that is) could see them, and they hadn't friended their principal?
Your argument might hold up if the former were true. But if hundreds of people can see it - even if nobody outside their friends list can - you'd be hard pressed to convince anyone that it's not public.
And as it turns out, one of the articles linked from TFA suggests that these were indeed wall posts and subsequent comments:
"[The students] said there were approximately two dozen posts by as many as 15 children."
Can't be absolutely sure, because Facebook does have settings for sharing comments only with certain portions of your friends list, but there's a good chance that far more than 15 people (and possibly not all of them students at that school) had access to the comments.
Slashdot Mirror
If the Patent office relies on case law to deny patents, then that's another big problem.
For the most part, this means in a general sense. Case law isn't usually relied upon for the specifics of a rejection, but rather for the underlying framework to support the logic behind a rejection. The most basic example is the Supreme Court's decision in KSR v. Teleflex, which reinforces earlier case law set forth in Graham v. John Deere, which established the factual inquiries required for determining obviousness:
1. Determine the scope and content of the prior art (i.e., conduct a search of the prior art).
2. Determine the differences between the claimed invention and the prior art (i.e., what differences are there between the claimed invention and what's disclosed in any single reference).
3. Determine the level of ordinary skill in the prior art.
4. Determine whether there are any secondary considerations that might point away from obviousness (for example, if there has been a long-felt need for the solution to some problem, but it hasn't been solved directly by the prior art, then the solution offered by the inventor might not be obvious; usually these sorts of things are provided as arguments by the applicant after a rejection is made).
Following those determinations, most obviousness rejections consist of finding ways to combine multiple references in obvious ways to arrive at something that falls within the scope of the claim, usually by taking one reference as a starting point and using the teachings of other references to modify that first reference.
Finally, there has to be a rationale for bridging the gap between what the prior art teaches directly and the modifications suggested by the examiner. For a long time, this rationale was limited to finding some "teaching, suggestion, or motivation" (TSM) for the change, i.e., a reason why the change would be beneficial, but the key in KSR was to say that there are valid rationales other than TSM. The Supreme Court gave six other example rationales in addition to upholding TSM as another valid rationale, and most of these additional rationales provide for finding something obvious when the change isn't necessarily beneficial, but is an arbitrary change where both the original version and the modified version function in a similar fashion.
A trivial example might be if the claim read, "A car having two headlights, wherein the headlights are high-intensity LED lamps."
In such a case, one could find a car having two headlights in one reference, a high-intensity LED lamp in another, indicate the modification of the car reference by replacing the headlights with the high-intensity LED lamp, and provide the rationale that the substitution doesn't change how either the car or the lamp function and that the result of the substitution would be predictable to one having ordinary skill in the art. Result: obvious.
Of course, if it turns out that there are specific challenges to installing a high-intensity LED lamp as a car headlight, then there may be some non-obvious territory available to the inventor, but they would have to further limit their claim to include their solution for those challenges.
The protections for the freedom of speech in the US Constitution are, as you say, applicable only against governmental acts.
But free speech in general is not limited to issues of government censorship, and NYT's actions, if successful, would indeed hinder the free speech of Twitter's users.
not like we ever got any cool technology from space tech >_>
I love Tang!
Actually, I just caught Raw Nerve for the first time a few days ago, and really enjoyed it. That goofy chair has got to go, though.
Caveat and mea culpa: I just checked the website at http://www.usptocareers.gov/ , and it turns out that the job vacancies are currently closed. Probably something to do with Congress still not passing a real budget, and the USPTO doesn't want to have people relocate to NOVA if the government is just going to shut down immediately afterwards. Hiring will undoubtedly start again once the budget situation is resolved, especially if Congress also passes the patent reform bill that would give the USPTO fee-setting authority and access to all the collected fees.
The part time program is extremely limited in scope. Also, you have to relocate so you can attend the training academy and interact with primary and supervisory examiners while you're still a junior examiner.
Starting pay for examiners depends on your incoming education or experience. People fresh out of college with a Bachelor's will generally get paid at GS-5 at a high in-grade step, and if you have a Master's or other qualifying job experience, you could come in at a high GS-7 or GS-9. Top end for primary examiners is GS-14, achievable in 4 to 6 years. After you've been there for a long time, this puts you close to the statutory salary cap. In any case, sticking around long enough will put you into six figures.
Translation into actual numbers:
http://www.usptocareers.gov/Pages/Misc/SalaryRates.aspx
Benefits are extremely good. In addition to the standard benefits that all federal employees get (great health care, life insurance, pension, 401(k) equivalent with 5% matching, and 4/6/8 hours of paid annual and sick leave per biweek at 0/3/15 years of service), the USPTO has the federal government's flagship telework program which allows qualifying examiners (GS-12, fully successful rating, and having passed the certification exam (which is similar to the patent bar exam but shorter)) to work from home. Before that, there is a very flexible flextime schedule that comes close to letting you arrive and leave as you please, as long as you get in your 80 hours per biweek.
There are downsides, of course. One, it removes you from true engineering such that if you stay long enough, you'd better be interested enough in patent law to make a career out of it. Two, your work is metered based on a production quota, and if you have trouble meeting your quota, it can be stressful. Three, the work itself can be mind-numbing, as in many tech areas you'll be examining applications drafted with a tenuous grasp on the English language, and claim language is often intentionally vague.
And one thing to keep in mind is that you can't really make as big a difference as I let on earlier. You can do a superb job searching for prior art and making solid rejections, but ultimately, if you can't come up with a legally sound rationale for rejecting the claims, you have to allow the application. The USPTO is bound by the law, and if you try to make up your own reasoning for rejecting a claim without case law to back it up, you really just end up making more work for yourself. And if you spend too much time searching and searching for things that are extremely obscure in the prior art, you won't make production.
Edison contracted out all his perspiration. That's genius.
Guenter: "And that's why I've decided to transfer to business school."
Prof. Farnsworth: "NOOOOOOOOOOOO!"
The idiocracy mainly comes about from Slashdotters who don't know (a) how patents work or (b) how to examine patent applications.
The USPTO is hiring. If you think you can make a difference, and you're a US citizen with at least a Bachelor's in an engineering field, and you can relocate to the Alexandria, Virginia, area, you might consider applying.
So, did you read the patent claims, or just the typically misleading /. summary?
Just because a guy uses military force to control an area doesn't give him any sort of right to that area.
At the end of the day, that's the only thing that gives someone the right to an area.
Less oil usage is good.
Is this true? The less oil that goes into plastics, the cheaper it becomes, and the longer it will take for economic pressures to force the world into a renewable electric-based regime. What's more, more of that oil will be refined and burned, rather than processed into plastics and buried.
That's coming out of your paycheck.
You'd think that of all places, Slashdot would post a downloadable FLV link instead of (or in addition to) an embedded SWF, so that their readers wouldn't have to install Flash just to watch a video.
The entire premise of capitalism is trading labor for capital but what happens when that labor is no longer valuable?
The technological singularity?
GoldenEye, anyone?
As far as I know, they could make that argument to the PTO during prosecution as well. Nobody knows yet how the PTO will adjudicate these sorts of things, but I can only assume that examiners will handle them like they handle 131 and 132 affidavits today.
Under first-inventor-to-file, though, they can instead choose to perjure themselves by arguing that the prior art reference's authors obtained their published material from the applicant (directly or indirectly). For a reference under a year prior to the filing date, that eliminates the availability of the reference as prior art. Inter partes review post-issuance might save some of those situations from going to court, but arguably, that would work just as well under first-to-invent.
I don't think provisional apps are changed at all. You can still file a provisional app, which is good for 1 year. When you file a nonprovisional (normal) app, if the provisional is still pending (i.e., within the 1 year) and you ask for benefit of its filing date, any claims that have written description support in the provisional are eligible for the earlier filing date.
The big thing that people run into when they do this is that they weren't actually done inventing yet when they filed the provisional, so some extra stuff works its way into the nonprovisional. If the extra stuff also finds its way into the claims, then you don't get the provisional's filing date.
Aside from the 35 USC 101 issues mentioned elsewhere, let me answer the meat of your question:
1) Yes, if an examiner is aware of the existence of your source code, and it was published before the filing date of the patent application, they could conceivably cite it as a prior art reference against the application's claims. The more available you can make your source code, the more likely it will be that the examiner can find it. Some sort of overview (akin to a research paper) of what your software does would be much more helpful than the source code, since few examiners really have time to wade through tons of source to figure out whether it does what they need. Under current law, the remaining question would be, if the date of your published code is less than a year before the applicant's filing date, whether they can prove that their invention occurred before your publication.
2) Publications aren't really publications if they're not yet public. So, your private repository can't be used as prior art. However, if the compiled program were available publicly in the US more than a year before the application's filing date, it could also count as prior art under the "public use" portion of 35 USC 102(b). However, because most patent claims to computer-based inventions depend on the nuts and bolts of the method in ways not always apparent to the user, it's extremely unlikely that an examiner would be able to cite that as prior art, as they wouldn't know what's inside the "black box" of your software. It would still be available to you for use as prior art in litigation, though.
Note also that you don't have to file a patent in order to "protect the invention from trolls" - publication is sufficient. However, as I've mentioned before, if your publication is difficult for examiners to access, it may not be found in time to be used in a rejection (though you could still use it in litigation if it comes to that). Filing a patent application, even if you don't intend to see it through, is one way to put prior art at the disposal of the examiners, since the database of issued patents and published applications is the first and most important tool examiners use when doing a prior art search.
Well, they can't just swear behind a 102(a)/(e) reference with no evidence to back it up. There are two ways to prove up their claim:
One, they can show reduction to practice before the date of the reference. That is, they show you that they had an actual working prototype of their invention before that date, and it has to have all of the features in the claim.
Or two, they can show conception of the invention before the date of the reference, combined with a showing that they undertook due diligence to develop the invention toward reduction to practice from the day before the reference date up until the reduction to practice. (A frequently used example is that the applicant can't take a month-long tropical vacation when they should be working on getting their invention ready to file.) This second method is more common, and in this case, reduction to practice usually involves what's called "constructive reduction to practice", which means they filed their patent application. (See MPEP 715.)
Also, if the applicant actually derived their invention from someone else, there is a statutory bar under 35 USC 102(f). This is exceedingly rare in USPTO proceedings, because examiners usually don't have evidence available to show derivation, but a rejection could still conceivably be made under that subsection. (See MPEP 2137.)
How much can I pay to automatically win at RPS a hundred times?
Awesome. Wish you had posted that to start with, instead of being an asshole about it.
Would I be feeding the "Legal.Troll" by asking for an explanation of how I'm wrong?
Oh, Wikipedia? Okay. For a second there, I thought you were talking about Anonymous.
This has nothing to do with patents. It has to do with the concept that the key, under the DMCA, "effectively controls access to a protected work".
So you don't even have to spend money on a patent. You just have to use a public domain cryptosystem (or roll your own, if you can avoid the patent minefield) and hand it a frequently-used-on-the-internet number as a symmetric key. Then go around demanding that people remove that number from various websites, because publishing it violates the DMCA.
This was not an accusation. This was not public. This was a private conversation between friends outside of school. The teacher had to force a student to log on to his facebook to even see them.
Do you actually know what kind of messages these were? Were they really private messages from one student directly to one other student? Or were they posted on the student's wall, and the student's privacy settings were such that only their friends (however many hundreds of people that is) could see them, and they hadn't friended their principal?
Your argument might hold up if the former were true. But if hundreds of people can see it - even if nobody outside their friends list can - you'd be hard pressed to convince anyone that it's not public.
And as it turns out, one of the articles linked from TFA suggests that these were indeed wall posts and subsequent comments:
"[The students] said there were approximately two dozen posts by as many as 15 children."
Can't be absolutely sure, because Facebook does have settings for sharing comments only with certain portions of your friends list, but there's a good chance that far more than 15 people (and possibly not all of them students at that school) had access to the comments.