Do you really want the time to code to be the factor in determining whether something is patentable?
Its a ridiculous standard. The standard we have is a good one. The problem is the lack of prior art. Every person in this thread is going on and on about how obvious this is, but not one person has offered two pieces of prior art which when combined produce the claimed invention. Not one. Noone has ever done so in any of these threads.
How could there not have been an article or scholarly paper back in 1992 or whenever people think this existed that said, "hey you can buy stuff on the Internetz!!! and people can have a website save their infoZZZzz! so that someone can just take one action".
I'm not saying the EXACT prior art exists, but SOMETHING. I just wish people would back up their claims. My gut, like everyone elses seems to say, this must have exists before they applied for a patent, but someones gut reaction should not determine legal rights.
This appeal decision did not even address obviousness.
Obvious type double patenting essentially means another application has the same claims as this patent.
The appeal board recommended a rejection under 112. That means they think the claim is indefinite.
They explicitly said they didn't treat the obviousness rejection on the merits.
Stop bashing software patents. Stop bashing the patent system, when you have no clue what you are talking about.
Read up about patent law. Please.
A dependent claim is patentable typically solely because the independent claim is patentable.
Anotherwards, if independent claim 1 has elements A, B, and C which is novel, new and nonobvious, then by definition if you take a known element D and add it to the mix, it is still novel, new and nonobvious.
Your rant is comlpetely off base. Dependent claims exist for a couple of different reasons, but typically its not to present novely. Read up about them. Most dependent claims DO stand or fall with their independent claim.
Your opinion is severely uninformed.
Patent system has already been fixed by the Supreme Court. They made it much easier for an examienr to merely state that they believe something is obvious.
Presumably the big companies would be happy with less patents out there. They are scared of patent trolls, people who patent things and just sue big companies. They want money, not for them to stop. If two giants sue each other, it will eventually settle because they just cross-license. They can't do that with a patent troll, because the patent troll doesn't make anything. They just have patents.
Thats why big companies are on this band wagon. At this point big companies actually patent things just to stop others from patenting them, as opposed to actually trying to use their patents.
Submarine patent issue was solved a while ago when it switched from 17 years from issue date to 20 years from filing date. You can't submarine a patent any longer.
Maybe I'm missing something, but why would the person who "solved" the algorithm come forward if he was not afforded any protection? Wouldn't he just keep it secret and propreitary? At least with the system now, its in the public domain in a few years.
The subject matter of the one-click patent at the very least was innovative at one point in time. At some point the subject matter of that patent was new, useful, and non-obvious. Anything that is useful is patentable at some point in time because it had to be new and non-obvious at some point, right?
Are you against all method patents? Why should a business method be treated any different than that method for some innovative method of molding plastic?
There are a lot of business methods that exist that I would have considered patentable at the time. Frequent flyer miles? Drive up banking? These ideas when they first came on the scene were completely foreign and I don't see how you can say they are any different intuitively than a method for using a widget.
You should be modded up. While I disagree with your conclusion, your exposition is right on the money. Obviousness is a legal term with a deformed meaning. People here throw around the term carelessly.
The patent office has it right, the obviousness standards cannot be lowered. How could the system work if the examiner can merely assert "thats obvious becuase I said so" with no documentary evidence. While the current incarnation of the patent system allows the examiner to take official notice of a fact (for example, a bicycle has two wheels), the examiner cannot take official notice of a motivation to combine (for example, if examiner took official notice of a bicycle and of a flower pot he could not take official notice of a motivation to combine the bicycle and the flower pot) This flies in the face of everything slashdot says about obviousness. If an article summary mentioned some kid getting a patent on a bicycle configured with a flower pot there would be outrage about how thats obvious because bicycles are known and flower pots are known. That just isn't how obviousness works though.
The current incarnation of the patent system forces the examiner to point out where there is motivation to combine the references. This can be incredibly difficult, and even if there is some motivation to combine them, there are many other arguments that can be employed by a patent attorney to overcome an obviousness rejection.
The simple fact is, if Microsoft truly beat the invention date of the patent then they should have won. We just don't have enough information about why the case went the other way.
Perhaps the legal system should use a different word than obvious.
There is a big difference between something being obvious and the implementation being obvious. Replacing a tape recorder with a disk drive may seem obvious on it's face, but the implementation of how to do so are not. The legal test of obviousness is an objective one not subjective. To be obvious under the patent system, either official notice would have to be taken (which seems extreme here) or references with motivation to combine the references would have to presented. Obviousness is NOT a subjective gut check as most people presume on slashdot.
if you apply for a patent and the pto grants it you deserve the rights that come with that patent. You paid for it not only in filing and attorney fees, but also in disclosing your invention. You get 20 years from the filing date of your application to exploit that invention how you see fit.
I feel patents are necessary to promote the arts and sciences. Are there other ways to do so? Absolutely. Our government and most governments around the world thought and still do think patents help meet those goals. As much as everyone on slashdot touts the advantages of free disclosure and GNU, there are disadvantages.
I just don't see how it is relevent whether the patent is something which a drunk coder could stumble upon vs. something a person like you or I would never use.
I am in a vast minority, but I think software patents are good. I also think the Amazon one-click patent is good.
At the time the Amazon patent was prosecuted, do you have any idea what prior art was before the examiner? At what point exactly do you think it was obvious to have one-click shopping? The second the Internet was invented? When it was implemented? Before the telephone? Tell me. I want to know.
People use hindsight to say things are obvious way too often. In order for something to be obvious you have to have a reference which combines with the known art in the field in a way that is motivated by the ordinary way in which that reference would be applied, or in a nonordinary way which is suggested by that piece of art. Or alternative you might have two pieces of art, one of them has to have some motivation to combine them.
There was absolutely nothing like this in the Amazon prosecution history. On the Internet at the time of invention, all the sites I bought things from used the "shopping cart" method. Noone had a one-click buy feature. It was new and it was not obvious. Someone please explain why it was so obvious.
The "bar tab" art is the best prior art I have heard, but it does not render one-click obvious in my mind. Before the one-click patent no-one used the "bar tab" situation online. Everyone used the shopping cart method. They did this for many reasons, one of which was security. The "bar tab" art requires the person accepting your order know you. IN the online world at the time that wasn't the case. While cookies existed, noone had thought to implement them in this way. Anotherwards, while the individual pieces may have existed for the one-click invention, the motivation to combine those pieces did not.
Working as intended. What's the problem? If their patent is valid then they deserve the monopoly under the current system. After a certain duration passes, the license will be unnecessary and the cost will come down.
Are people forgetting that patenting an idea or formula is NOT ALLOWED under current U.S. law. Isn't the key that there be a tangible, concrete, result provided by the software? Isn't that what that State Street case was all about? Anotherwards, just patenting a formula for the sake of patenting a formula would not be patentable. But patenting the formula as it is applied in an automobile car system in order to run the engine cooler would be.
I do see your point. It's interesting that patents have a single term when depending on the art that term might be really short or really long. In computer related arts 20 years is an eternity, but in the bridge building art its nothing. I don't know how how else you could set it up though. It would be incredibly confusing to have different terms depending on the art.
FYI Patents generally expire 20 years from the filing date or 17 years from their issue date (if filed before 1995), whichever is longer. And honestly some patents aren't even being examined for 2-3 years. Though through patent term adjustment you can get some of that term back for patent office delay.
Thanks for the reply, I think you've made a strong argument.
The only thing that bothers me is that it feels arbitrary. I'm sure there are some business method patents where publication tends not to happen and some widget type patents where disclosure does tend to happen.
All in all though, great post, thanks.
Patents always were supposed to be a government sactioned monopoloy! Thats the whole point. Stifling competition for the term of the patent is supposed to be the reward to the patentee for his invention.
Perhaps the term of the patent is too long. Would people be more comfortable if patents only lasted 10 years instead of 20?
Why doesn't it work that way? Patents still have a limited term.
If you think patents are a shitty way to compete I'm not going to argue the merits with you because reasonable minds can differ on that subject. Netflix obviously doesn't agree with you for some reason, we aren't privy to. They jumped through the hoops to get a patent, they should be able to stop someone else from infringing it.
How can you offer the best service/product if there is such a huge barrier to entry? The entire point of the patent system is to give the patentee a monopoly ie special protection against market competition. Even the courts acknowledge these market forces in antitrust law.
As for your "tough shit" argument. Netflix did find a way to compete: patent protection.
Slashdot Mirror
Heh 90% work, 10% play? Wow. Shoot me now.
Do you really want the time to code to be the factor in determining whether something is patentable? Its a ridiculous standard. The standard we have is a good one. The problem is the lack of prior art. Every person in this thread is going on and on about how obvious this is, but not one person has offered two pieces of prior art which when combined produce the claimed invention. Not one. Noone has ever done so in any of these threads. How could there not have been an article or scholarly paper back in 1992 or whenever people think this existed that said, "hey you can buy stuff on the Internetz!!! and people can have a website save their infoZZZzz! so that someone can just take one action". I'm not saying the EXACT prior art exists, but SOMETHING. I just wish people would back up their claims. My gut, like everyone elses seems to say, this must have exists before they applied for a patent, but someones gut reaction should not determine legal rights.
This appeal decision did not even address obviousness. Obvious type double patenting essentially means another application has the same claims as this patent. The appeal board recommended a rejection under 112. That means they think the claim is indefinite. They explicitly said they didn't treat the obviousness rejection on the merits. Stop bashing software patents. Stop bashing the patent system, when you have no clue what you are talking about.
Read up about patent law. Please. A dependent claim is patentable typically solely because the independent claim is patentable. Anotherwards, if independent claim 1 has elements A, B, and C which is novel, new and nonobvious, then by definition if you take a known element D and add it to the mix, it is still novel, new and nonobvious. Your rant is comlpetely off base. Dependent claims exist for a couple of different reasons, but typically its not to present novely. Read up about them. Most dependent claims DO stand or fall with their independent claim. Your opinion is severely uninformed.
Patent system has already been fixed by the Supreme Court. They made it much easier for an examienr to merely state that they believe something is obvious.
Presumably the big companies would be happy with less patents out there. They are scared of patent trolls, people who patent things and just sue big companies. They want money, not for them to stop. If two giants sue each other, it will eventually settle because they just cross-license. They can't do that with a patent troll, because the patent troll doesn't make anything. They just have patents. Thats why big companies are on this band wagon. At this point big companies actually patent things just to stop others from patenting them, as opposed to actually trying to use their patents.
Submarine patent issue was solved a while ago when it switched from 17 years from issue date to 20 years from filing date. You can't submarine a patent any longer.
Maybe I'm missing something, but why would the person who "solved" the algorithm come forward if he was not afforded any protection? Wouldn't he just keep it secret and propreitary? At least with the system now, its in the public domain in a few years.
The subject matter of the one-click patent at the very least was innovative at one point in time. At some point the subject matter of that patent was new, useful, and non-obvious. Anything that is useful is patentable at some point in time because it had to be new and non-obvious at some point, right?
You are taking a pot shot at business methods because they combine what is already known? ALL inventions do that.
Are you against all method patents? Why should a business method be treated any different than that method for some innovative method of molding plastic? There are a lot of business methods that exist that I would have considered patentable at the time. Frequent flyer miles? Drive up banking? These ideas when they first came on the scene were completely foreign and I don't see how you can say they are any different intuitively than a method for using a widget.
You should be modded up. While I disagree with your conclusion, your exposition is right on the money. Obviousness is a legal term with a deformed meaning. People here throw around the term carelessly.
The patent office has it right, the obviousness standards cannot be lowered. How could the system work if the examiner can merely assert "thats obvious becuase I said so" with no documentary evidence. While the current incarnation of the patent system allows the examiner to take official notice of a fact (for example, a bicycle has two wheels), the examiner cannot take official notice of a motivation to combine (for example, if examiner took official notice of a bicycle and of a flower pot he could not take official notice of a motivation to combine the bicycle and the flower pot) This flies in the face of everything slashdot says about obviousness. If an article summary mentioned some kid getting a patent on a bicycle configured with a flower pot there would be outrage about how thats obvious because bicycles are known and flower pots are known. That just isn't how obviousness works though.
The current incarnation of the patent system forces the examiner to point out where there is motivation to combine the references. This can be incredibly difficult, and even if there is some motivation to combine them, there are many other arguments that can be employed by a patent attorney to overcome an obviousness rejection.
The simple fact is, if Microsoft truly beat the invention date of the patent then they should have won. We just don't have enough information about why the case went the other way.
United States Patent system is a first to invent not first to file. The filing date is basically immaterial.
Perhaps the legal system should use a different word than obvious.
There is a big difference between something being obvious and the implementation being obvious. Replacing a tape recorder with a disk drive may seem obvious on it's face, but the implementation of how to do so are not. The legal test of obviousness is an objective one not subjective. To be obvious under the patent system, either official notice would have to be taken (which seems extreme here) or references with motivation to combine the references would have to presented. Obviousness is NOT a subjective gut check as most people presume on slashdot.
if you apply for a patent and the pto grants it you deserve the rights that come with that patent. You paid for it not only in filing and attorney fees, but also in disclosing your invention. You get 20 years from the filing date of your application to exploit that invention how you see fit.
I feel patents are necessary to promote the arts and sciences. Are there other ways to do so? Absolutely. Our government and most governments around the world thought and still do think patents help meet those goals. As much as everyone on slashdot touts the advantages of free disclosure and GNU, there are disadvantages.
I just don't see how it is relevent whether the patent is something which a drunk coder could stumble upon vs. something a person like you or I would never use.
I am in a vast minority, but I think software patents are good. I also think the Amazon one-click patent is good.
At the time the Amazon patent was prosecuted, do you have any idea what prior art was before the examiner? At what point exactly do you think it was obvious to have one-click shopping? The second the Internet was invented? When it was implemented? Before the telephone? Tell me. I want to know.
People use hindsight to say things are obvious way too often. In order for something to be obvious you have to have a reference which combines with the known art in the field in a way that is motivated by the ordinary way in which that reference would be applied, or in a nonordinary way which is suggested by that piece of art. Or alternative you might have two pieces of art, one of them has to have some motivation to combine them.
There was absolutely nothing like this in the Amazon prosecution history. On the Internet at the time of invention, all the sites I bought things from used the "shopping cart" method. Noone had a one-click buy feature. It was new and it was not obvious. Someone please explain why it was so obvious.
The "bar tab" art is the best prior art I have heard, but it does not render one-click obvious in my mind. Before the one-click patent no-one used the "bar tab" situation online. Everyone used the shopping cart method. They did this for many reasons, one of which was security. The "bar tab" art requires the person accepting your order know you. IN the online world at the time that wasn't the case. While cookies existed, noone had thought to implement them in this way. Anotherwards, while the individual pieces may have existed for the one-click invention, the motivation to combine those pieces did not.
Working as intended. What's the problem? If their patent is valid then they deserve the monopoly under the current system. After a certain duration passes, the license will be unnecessary and the cost will come down.
The office isn't really bad at recognizing obvious patents. The office is bad at presenting the documents to support those obviousness rejections.
Are people forgetting that patenting an idea or formula is NOT ALLOWED under current U.S. law. Isn't the key that there be a tangible, concrete, result provided by the software? Isn't that what that State Street case was all about? Anotherwards, just patenting a formula for the sake of patenting a formula would not be patentable. But patenting the formula as it is applied in an automobile car system in order to run the engine cooler would be.
I do see your point. It's interesting that patents have a single term when depending on the art that term might be really short or really long. In computer related arts 20 years is an eternity, but in the bridge building art its nothing. I don't know how how else you could set it up though. It would be incredibly confusing to have different terms depending on the art. FYI Patents generally expire 20 years from the filing date or 17 years from their issue date (if filed before 1995), whichever is longer. And honestly some patents aren't even being examined for 2-3 years. Though through patent term adjustment you can get some of that term back for patent office delay.
Thanks for the reply, I think you've made a strong argument. The only thing that bothers me is that it feels arbitrary. I'm sure there are some business method patents where publication tends not to happen and some widget type patents where disclosure does tend to happen. All in all though, great post, thanks.
Patents always were supposed to be a government sactioned monopoloy! Thats the whole point. Stifling competition for the term of the patent is supposed to be the reward to the patentee for his invention.
Perhaps the term of the patent is too long. Would people be more comfortable if patents only lasted 10 years instead of 20?
Eli Whitney - Cotton Gin.
Why doesn't it work that way? Patents still have a limited term. If you think patents are a shitty way to compete I'm not going to argue the merits with you because reasonable minds can differ on that subject. Netflix obviously doesn't agree with you for some reason, we aren't privy to. They jumped through the hoops to get a patent, they should be able to stop someone else from infringing it.
How can you offer the best service/product if there is such a huge barrier to entry? The entire point of the patent system is to give the patentee a monopoly ie special protection against market competition. Even the courts acknowledge these market forces in antitrust law. As for your "tough shit" argument. Netflix did find a way to compete: patent protection.