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Interview With 'Idiot' Behind Key Software Patent

CmdrTaco posted more than 3 years ago | from the hate-when-that-happens dept.

Patents 223

An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"

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kind of like messy uncommented code (0)

Anonymous Coward | more than 3 years ago | (#37190110)

My God, what idiot wrote this mess, without even commenting it. A few beats later. Oh, I did this. Oh this is bad, very bad. I can see why I didn't comment this. :::moves on:::

Double standards and people (3, Insightful)

ge7 (2194648) | more than 3 years ago | (#37190142)

It just shows that most people have double standards. When they or someone they know do it, it's all good. When it's someone else, it's the root of evil.

Re:Double standards and people (4, Insightful)

bkr1_2k (237627) | more than 3 years ago | (#37190232)

Or they change their opinion based on more information. Not all people are underhanded or double-dealing. Some people just learn from their (and others') mistakes.

Re:Double standards and people (2)

Shark (78448) | more than 3 years ago | (#37190312)

I say 80% of evil on earth is ignorance-driven.

Re:Double standards and people (5, Funny)

Anne_Nonymous (313852) | more than 3 years ago | (#37190428)

And the other 25% is just a rounding error.

Re:Double standards and people (4, Funny)

Yvan256 (722131) | more than 3 years ago | (#37190630)

Still using that Pentium CPU?

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37190958)

Brilliant!

Re:Double standards and people (-1, Flamebait)

jhoegl (638955) | more than 3 years ago | (#37190446)

What percentage is religious?

Re:Double standards and people (2, Insightful)

Neil Boekend (1854906) | more than 3 years ago | (#37190460)

That's in the 80%.

Re:Double standards and people (0, Troll)

Anonymous Coward | more than 3 years ago | (#37190542)

I would stop looking at religion and start looking at big business and, yes, rich people. The ignorant people you speak of are the 95% of those voting Republican who make less than $100K. Death tax, my God!

Re:Double standards and people (1)

trum4n (982031) | more than 3 years ago | (#37190482)

The 80% just mentioned.

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37190540)

What percentage is religious?

30% (deity)

Re:Double standards and people (2)

GooberToo (74388) | more than 3 years ago | (#37190574)

80% of the evil on earth stems from, "Fuck you buddy! Where's mine?" The fact its ignorantly executed speaks to the quality of humanity as a whole, not to the motivation for doing so.

Re:Double standards and people (1)

Schemat1c (464768) | more than 3 years ago | (#37191088)

I say 80% of evil on earth is ignorance-driven.

I would say most types of behavior we would call 'evil' stems from lack of empathy rather than just plain ignorance.

Re:Double standards and people (1)

Talderas (1212466) | more than 3 years ago | (#37191378)

I would say it stems from envy rather than a lack of empathy.

Re:Double standards and people (2)

Toonol (1057698) | more than 3 years ago | (#37191910)

A whole lot of evil is done by trying to force others to be good. A whole lot of good is accomplished by not caring what other people do.

Not that empathy and charity is bad, by any means; but it needs to be tempered with discretion. It can lead to a net loss of freedom if pursued too zealously.

Re:Double standards and people (1, Flamebait)

harrytuttle777 (1720146) | more than 3 years ago | (#37190444)

Yea, but those people are faggots. Real ./ users are always double-dealing and use their time to make illegitimate unsubstantiated ad-hominen attacks on others.

It is the ./ way. If you don't agree you are a fag.

-

Re:Double standards and people (-1, Troll)

trum4n (982031) | more than 3 years ago | (#37190494)

You're confusing /. with /b/. Go back to 4chan, summer. Old guys know the rules.

Re:Double standards and people (-1)

Anonymous Coward | more than 3 years ago | (#37190648)

And for the retardos out there who are confused (or , perhaps, curious) a "fag" is a man who engages in sexual activity with other men including, but not limited to: ass-to-mouth, rimming, rusty tromboning, fisting, docking, dick sucking and butt fucking.

Re:Double standards and people (0)

overlordofmu (1422163) | more than 3 years ago | (#37190762)

WHOA, WHOA, WHOA!!! I thought it was an English slang word for cigarette!

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37191756)

Let us not forget felching.

Re:Double standards and people (2)

FreeBSDbigot (162899) | more than 3 years ago | (#37190264)

“The awful thing about life is this: Everyone has his reasons.”
Jean Renoir

Re:Double standards and people (0)

Joce640k (829181) | more than 3 years ago | (#37190380)

FTA: "Unfortunately the patent industry relies far too much on patent prior art and ignores the vast corpus of open material. The result is that many patents look stupid on their face to anybody 'skilled in the art.' "

...which begs the question: Why can't the patent office employ a few people who are skilled in the art of software?

Re:Double standards and people (2)

bsDaemon (87307) | more than 3 years ago | (#37190546)

Probably because everyone who is skilled in the art of software spends all day on the internet bitching about the patent office?

Re:Double standards and people (3, Interesting)

LordNimon (85072) | more than 3 years ago | (#37191700)

How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?

Re:Double standards and people (5, Insightful)

vlm (69642) | more than 3 years ago | (#37190566)

...which begs the question: Why can't the patent office employ a few people who are skilled in the art of software?

No, it doesn't beg the question. A more proper way to do that, would be to state that it would be a good idea to hire computer scientists because it would be a good idea to hire computer scientists. It's a very thin line between that and circular reasoning, which I might have crossed.

Whatever, anyway, the reason why they don't employ CS grads or even IT grads, is they don't employ many grads at all. Its about like the ratio of title examiners to real estate purchasers, or the ratio of grocery shoppers to grocery checker employees. There just are not many of them, compared to the scope of human knowledge.

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37190652)

Why can't they outsource the software patent examinations to India?

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37190788)

Why can't they outsource the software patent examinations to India?

Patents are very precisely written and arcane documents. People who have read English all their life and are technically minded have difficulty wading through the text. Outsourcing to India, even if the government wanted to, would just introduce a huge number of errors into the process. The patent system needs updates, but that's not one of them.

Re:Double standards and people (1)

Hognoxious (631665) | more than 3 years ago | (#37190936)

But it would be producing most very large number of lulz old chap, isn't it?

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37191478)

Patent examiners *are* actually fairly knowledgeable, and yes, they do hire folks with advanced degrees. It's not like they're just phone bank clerks.
I think the real problem was in the article:
1) Historically, prior art is "that which is in some other patent or published paper", and for software, that's a pretty poor place to go hunting. For that matter, it's true in other technology areas (like antenna design), as the learned journals tend to move towards a more academic bent, publishing some grad student's narrow work on a thesis project, rather than practical applications in industry. (that's driven by how modern business works: a) you don't want to disclose your proprietary invention, and besides I'm paying you to make and sell antennas or software, not publish papers and b) reviewers come from the halls of academe: I'm paying you to manage antenna or software designers and builders, not review papers for some journal... very few commercial companies give you kudos/raises/good reviews for publication, these days, unless you're in the tippy top of "individual contributor" ladder... we want to see how much money you're making for us)

2) very poor and generally lacking guidance for the examiners (and the courts, as well) on what is "obvious".

Re:Double standards and people (1)

UnknowingFool (672806) | more than 3 years ago | (#37191530)

I would surmise also that as a government job, it probably does not pay as well as something comparable in the private sector.

Re:Double standards and people (1)

Bob the Super Hamste (1152367) | more than 3 years ago | (#37191664)

But I have been hearing about the lavish pay and benefits that the public sector that those of us shlubs in the private sector can only dream about. /sarcasm

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37191732)

Ahem, let me disagree, here in Portugal i have seen (both in newspaper adds and from workshops here at the university) ads from the European Patent Office *specifically* asking for newly-graduates to go work *as patent examiners*.
Now, how is a newly-graduate "skilled int the art" enough for such a job beats me, but hey they also get jobs as consultants, go figure...

Best Regards

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37191830)

The USPTO only hires examiners with degrees in a hard science or engineering. Many have CS or CompE degrees.

Re:Double standards and people (3, Informative)

ProfBooty (172603) | more than 3 years ago | (#37191966)

The PTO does hire CS people, but not IT grads. IT grads tend not to have enough science and math credits and don't meet the PTO's requirements of hiring people with science and engineering backgrounds.

The below discloses the requirements for a computer science position.

http://jobview.usajobs.gov/GetJob.aspx?JobID=101034973&JobTitle=Patent+Examiner+(Computer+Science)&q=CP-2011-0013&rad_units=miles&brd=3876&pp=25&sort=rv%2C-dtex&jbf574=CM56&jbf785=&vw=b&re=134&FedEmp=N&FedPub=Y&caller=basic.aspx&ss=0&AVSDM=2011-07-19+19%3A09%3A00 [usajobs.gov]

BASIC QUALIFICATION REQUIREMENTS:

Successful completion of a full 4-year course of study in Computer Science at an accredited college or university leading to a bachelor's or higher degree that included a major field of study or specific course requirements.
Education can be substituted for experience.

Basic Qualification Requirements for Patent Examiner (Computer Science), GS-1224:

A. Degree: professional computer science. Bachelor's degree in computer science or bachelor's degree with 30 semester hours in a combination of mathematics, statistics, and computer science. At least 15 of the 30 semester hours must have included any combination of statistics and mathematics that included differential and integral calculus. All academic degrees and course work must be from accredited or pre-accredited institutions.

Quite a few of the people working at the USPTO are from Virginia Tech as it is one of the closer big schools. Examiner's are hamstrung, not by their own knowledge, but by legal requirements. KSR rationales have made it easier than the old TSM guidelines.

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37192014)

The process whereby specific, technically precise phrases are appropriated by non-specialists for a more general and completely unrelated use is impossible to stop.

You can correct them all you want. And you will be as right as right can be. But they won't care, and they will continue to abuse these phrases, and their incorrect use will always be more popular than the correct use.

Like it or not, that is how people work.

Re:Double standards and people (0)

Anonymous Coward | more than 3 years ago | (#37191132)

It isn't a problem of skill.
It's a problem of motivation.
If you as a patent office get money on granted patents but none on rejected patents, it makes sense to grant as many patents as possible.
No amout of "skill" you throw at a problem will make that go away.

Re:Double standards and people (1)

the eric conspiracy (20178) | more than 3 years ago | (#37191768)

They do hire people skilled in the art of software. To be an examiner you have to be qualified in the field you are examining for.

The problem is that the job of patent examiner is mind numbingly boring. Any engineer in that kind of job with any energy and creativity would be unravelling his brain trough his ear hole in short order.

Re:Double standards and people (4, Insightful)

Baloroth (2370816) | more than 3 years ago | (#37190390)

Or, they don't have double standards, but in order to succeed at business they have to do things that they know actually harm business and innovation, because that is how the system is set up and they can't change it. Which seems to be what happened in this case.

It's a bit like the two-party system in the US. Neither party may be very (any?) good, but since one of them is going to be elected, might as well vote for whomever you think is better than his opponent.

Re:Double standards and people (4, Insightful)

Carewolf (581105) | more than 3 years ago | (#37190434)

I see no double standards. Handicapping yourself does not improve the world. If you want it to change you need to play by the rules and work to change it, just ignoring bad rules will not make them go away.

Re:Double standards and people (2)

geminidomino (614729) | more than 3 years ago | (#37191200)

...just ignoring bad rules will not make them go away.

Sometimes it will. It worked for (the original) prohibition, before it Zombie-Jesused sixty years later...

Re:Double standards and people (3, Insightful)

AJH16 (940784) | more than 3 years ago | (#37190842)

No, it shows that software patents are the equivalent of digital extortion. You have to patent whether you want to or not simply to protect yourself from being sued. It's a business necessity.

Re:Double standards and people (2)

Another, completely (812244) | more than 3 years ago | (#37191430)

Or they file the software patent because that's the game, and not filing it means the competition will shut them down when they have no stack of IP to bring to the table.

Just because you're stuck in that game doesn't mean you like it. Deciding not to play just means you're going to get sued into bankruptcy (or charged extortionate royalties that lead to the same thing).

Re:Double standards and people (1)

JazzHarper (745403) | more than 3 years ago | (#37191844)

Sometimes, you file patent applications because your employer wants you to, perhaps against your better judgement. Yes, it's an ethical issue, but you have to choose your battles. Idealists rarely survive long enough to accomplish anything. I have some patents that I'm proud of, some that I'm not, and I successfully got my name removed from one inane application that someone else wrote up, without getting my ass fired.

Yeah, the summary is not confusing at all. (0)

Anonymous Coward | more than 3 years ago | (#37190150)

Thank Slashdot, it was really helpful.

Anonymous? (2)

allister (68923) | more than 3 years ago | (#37190158)

How is he an anonymous reader if his name is in the second sentence of the article?

Re:Anonymous? (0)

Anonymous Coward | more than 3 years ago | (#37190242)

'Anonymous' refers to the AC that submitted the story.

Re:Anonymous? (1)

Lord Lode (1290856) | more than 3 years ago | (#37190300)

I doubt the person described as 'Idiot' in the summary, is the one who submitted it.

Re:Anonymous? (1)

nitroscen (811508) | more than 3 years ago | (#37190678)

How is he an anonymous reader if his name is in the second sentence of the article?

Even if AC was the original 'Idiot' in the summary, he could still wish to keep his Slashdot account and real life names separate.

Re:Anonymous? (1)

cyn1c77 (928549) | more than 3 years ago | (#37190700)

How is he an anonymous reader if his name is in the second sentence of the article?

Remember that in addition to being "anonymous," he is also a self-proclaimed "Idiot."

Re:Anonymous? (1)

Anonymous Coward | more than 3 years ago | (#37190786)

Apparently you misparsed the three levels of nested quotes.

An anonymous submitter says:

"Hi, this is article author speaking. I talked with an idiot yesterday and he said: 'I am an idiot.'"

Let me outline that for you:
+blockquote: submitter
++double quotes: TFA author
+++single quotes: idiot

Maybe to avoid ambiguity, /. posts should be in comic strip form, with stick figures and nested speech bubbles. Actually, someone should write a /.2xkcd converter.

Re:Anonymous? (0)

Anonymous Coward | more than 3 years ago | (#37191708)

How is he an anonymous reader if his name is in the second sentence of the article?

Excuse me, exactly WHAT are you doing actually reading the article?

Patenting Patents (0)

Anonymous Coward | more than 3 years ago | (#37190162)

I wonder, could you get a patent on patents?

After all, its a business model. Isn't that patentable in the US?

If so, you can charge the patent office, and presumable make it uneconomic to enforce any patent

Re:Patenting Patents (1)

Anrego (830717) | more than 3 years ago | (#37190206)

Semi related.. but someone tried (or maybe succeeded, I can't remember) to patent patent trolling as a business model...

Re:Patenting Patents (1)

Forestwalker (2428752) | more than 3 years ago | (#37190298)

You mean , Micarr Sovtd didn't 'innovate' that already ?

Re:Patenting Patents (1)

Z00L00K (682162) | more than 3 years ago | (#37190412)

Then patent all known court procedures too, then license them on a case by case basis.

Re:Patenting Patents (0)

Anonymous Coward | more than 3 years ago | (#37190452)

OMG!!! This joke never gets old! Getting a patent on patents?! Hahahahahahaha. OMG so witty and funny!

CmdrTaco? (1)

RivenAleem (1590553) | more than 3 years ago | (#37190166)

It's CmdrTaco's fault we have idiotic software patents?

Re:CmdrTaco? (0)

Anonymous Coward | more than 3 years ago | (#37190346)

The quotation marks make all the difference.

response to summary (1)

drinkypoo (153816) | more than 3 years ago | (#37190172)

But I hate individual website comment systems...

[...] I also like the idea that weak disclosures should invalidate a patent, since that would kill a bunch of patents, but I do wonder how you put that into practice. If anything, it seems like the kind of thing that should be solved at the beginning -- in that a patent examiner shouldn't approve a patent that doesn't really teach anything. As for shorter terms for "software patents," we're back to how do you define a software vs. hardware patent.

...back to court!

patently obvious (1)

ks9208661 (1862000) | more than 3 years ago | (#37190218)

From TFA: "... because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

I couldn't agree more.

Misunderstanding of 'prior art' and 'obvious' (3, Interesting)

Theaetetus (590071) | more than 3 years ago | (#37190418)

From TFA: "... because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

I couldn't agree more.

Except that both the article author and you don't understand what prior art and legal obviousness are. That prior art exists does not mean that something is not new: prior art is any relevant art in the field that was published or publicly available prior to the filing date. RFC 793 (TCP) is prior art for RFC 2460 (IPv6) because it's in the relevant field (networking protocols, albeit a different layer) and was published earlier.

What you and the article author think prior art means - "is this new" - is actually whether an invention is novel under 35 USC 102. An invention is not new if a single piece of prior art discloses each and every element in the claimed invention.

Obviousness, on the other hand, means that while a single piece of prior art doesn't disclose the whole invention, multiple pieces of prior art can be combined to teach or suggest each and every element of the invention. In other words, if the patent application claims "A+B+C+D" and no one has ever done that before, it's new... but if a prior art "A+B" exists, and prior art "C+D" exists, then it may be obvious to combine those two pieces of prior art to get "A+B+C+D" and the invention is obvious.

Why this is important is because, by misunderstanding that art has to be prior, even for the purposes of obviousness analysis, you're asking the wrong question... Essentially, you're asking whether, in hindsight, the innovation was too trivial or minor to be awarded with a patent. But that's improper - almost everything is obvious in hindsight. That's why the patent office has to rely on prior art to show obviousness - they can't just say, "eh, I think this invention is obvious." Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention. If they can't find one - if, "A+B" exists, and "C" exists, but there's no art for D, then A+B+C+D can't be obvious except in hindsight.

Re:Misunderstanding of 'prior art' and 'obvious' (2)

vlm (69642) | more than 3 years ago | (#37190598)

RFC 793 (TCP) is prior art for RFC 2460 (IPv6)

RFC 791 for IP addrs ... you're crossing ISO layer boundaries there.

Re:Misunderstanding of 'prior art' and 'obvious' (1)

raddan (519638) | more than 3 years ago | (#37191506)

Fortunately, TCP/IP itself crosses ISO layer boundaries [wikipedia.org] , so it's all good ;)

Re:Misunderstanding of 'prior art' and 'obvious' (0)

Anonymous Coward | more than 3 years ago | (#37190702)

almost everything is obvious in hindsight.

That is self serving and highly exaggerated nonsense. Typical of the handwaving that patent apologists push to to justify their misbehaviour.

Re:Misunderstanding of 'prior art' and 'obvious' (1)

DanTheStone (1212500) | more than 3 years ago | (#37190994)

I disagree. I think things that should be patentable are not obvious, even in hindsight. Pick your favorite patent that's "obvious in hindsight" that you think should be patentable, so people can try to falsify your viewpoint. Talking in abstractions as you are makes it impossible to argue against you directly, which means both sides just talk past each other.

Re:Misunderstanding of 'prior art' and 'obvious' (1)

Theaetetus (590071) | more than 3 years ago | (#37191272)

I disagree. I think things that should be patentable are not obvious, even in hindsight. Pick your favorite patent that's "obvious in hindsight" that you think should be patentable, so people can try to falsify your viewpoint. Talking in abstractions as you are makes it impossible to argue against you directly, which means both sides just talk past each other.

Sure. How about this one [google.com] . In hindsight, I'd call it pretty obvious. But at the time, no one had thought of it.
Your turn - things that are obvious in hindsight include every pharmaceutical, by definition, as well as nearly all mechanical inventions, from the steam engine to the airplane. You claim that these shouldn't be patentable. Why not?

Typical programmer response (0)

Anonymous Coward | more than 3 years ago | (#37190250)

Ever look at some crappy code, wonder what moron wrote it, then go to the change log and see your own name?

Been there, done that.

Re:Typical programmer response (1)

Virtucon (127420) | more than 3 years ago | (#37190324)

Well that's because a lot of it comes from the hindsight perspective. Would we do "that" again? We then tell ourselves "no, we won't ever do that, now we'd do it on Rails and that STL stuff was just a fad!"

But then again, it was 3AM and the code had to be done by 7, so you only had 4 hours to unit test.

In all honesty we always look back on our past work with a lot of disgust but it's not as disgusting as some of the morons we worked for who told
us to ship buggy code to make revenue for the quarter. Yeah, we can always hold our heads high because we did things to a higher standard.

LOL

Even worse. . . (1)

dtmos (447842) | more than 3 years ago | (#37191400)

I was once reading the "letters to the editor" column in a major trade journal, and ran across a letter that said everything I always wanted to say about a particular subject. The letter was concise, insightful, and incredibly lucid, so I looked down to the end of it to see what genius wrote it -- and it was me!

A few weeks earlier I had had a case of shingles, and was given some pretty stiff prescriptions for Vicodin and Percocet to dull the pain. As it turns out, they also caused memory problems; I had the nervous pleasure over the ensuing weeks of finding several letters-to-the-editor over my name in journals to which I subscribe, none of which I remember writing.

Fortunately, none were defamatory or otherwise embarrassing -- or maybe the editors just deleted those.

Errors in the Article (4, Informative)

Grond (15515) | more than 3 years ago | (#37190290)

There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.

"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."

This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112 [cornell.edu] . I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.

"End the venue shopping for lawsuits"

The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).

"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"

Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.

Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.

Re:Errors in the Article (5, Insightful)

_0xd0ad (1974778) | more than 3 years ago | (#37190356)

There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection.

So? Those are not mutually exclusive scenarios. A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.

Moreover, the obviousness analysis is based on prior art.

Great, so you just proved the original point, the point you were trying to argue with. The USPTO focuses too much on prior art. Even when they deny a patent for "obviousness", all they're focused on is prior art.

Re:Errors in the Article (1)

Grond (15515) | more than 3 years ago | (#37190592)

A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.

My point was that the article claimed that "obvious things are patented because the PTO focuses on prior art rather than obviousness." In fact, the PTO focuses a great deal on obviousness (at least one obviousness rejection is raised in a majority of applications, I believe).

Even when they deny a patent for "obviousness", all they're focused on is prior art.

How could you possibly decide whether something was obvious without using prior art? Simply asking a person of skill "in your opinion, without any other evidence, would this have been obvious?" is a subjective mess.

Re:Errors in the Article (0)

Anonymous Coward | more than 3 years ago | (#37191032)

How could you possibly decide whether something was obvious without using prior art?

Prior publication perhaps? Not everything is patented, so when you limit your search scope to prior patents you're going to miss a lot of what's happening in the real world.

Re:Errors in the Article (1)

_0xd0ad (1974778) | more than 3 years ago | (#37191056)

How could you possibly decide whether something was obvious without using prior art?

You don't ignore prior art, but you also don't ignore prior art just because it isn't exactly the same as the patented idea. Yeah, you show someone who's skilled in that area a piece of prior art and ask them, "in your opinion, is this an obvious modification of this prior art?"

Hell, you want something less subjective? Maybe you give them a specific enough description of the problem they need to solve, and see if they come up with the same solution on their own. If so, it's obvious.

Re:Errors in the Article (1)

Herkum01 (592704) | more than 3 years ago | (#37191216)

Because not everything that is obvious is patented? Like this one,

A computerized list is provided with auxiliary pointers for traversing the list in different sequences. One or more auxiliary pointers enable a fast, sequential traversal of the list with a minimum of computational time. Such lists may be used in any application where lists may be reordered for various purposes. [google.com]

This is not a new idea, but it was issued in 2006! But I guess it is easier to just treat the patent office database as the complete repository of all knowledge in the world rather than actually THINK about whether it is a valid patent or not.

Re:Errors in the Article (1)

the eric conspiracy (20178) | more than 3 years ago | (#37191620)

The real problem I think is the standard for obviousness; that is "obvious to one with ordinary skill in the art".

Well pooh. Someone with ordinary skill in the art isn't going to be all that creative, and 'obvious' means that he can come up with the same idea without any substantial time or effort.

That's a damn low hurdle.

Patents should be granted for something that clears a significantly higher hurdle, not something that could be thought up by any shlub who spent an evening on the problem.

Re:Errors in the Article (1)

Lord Grey (463613) | more than 3 years ago | (#37190430)

Moreover, the obviousness analysis is based on prior art.

Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked. This leads to patents being issued for obvious art, as defined by other practitioners of that art.

Stupid example:

  • Me: I'm letting people patent innovative integers. Any takers?
  • You: Sure, I'll do that. How about '3'?
  • Me: (Checks database that is, at the moment, completely empty.) Looks good. No one else has that one. You got it!

Re:Errors in the Article (1)

Grond (15515) | more than 3 years ago | (#37190676)

Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked.

No, the PTO has access to lots of non-patent databases (e.g. scientific journals). Rejections based on non-patent literature are very common, including in software. They should probably be more common, and the examiners need both better search tools and more time to perform their searches, but it is not the case that examiners only consider patents and patent applications.

Re:Errors in the Article (5, Insightful)

Theaetetus (590071) | more than 3 years ago | (#37190588)

Yep, all of those. Plus, he's got a few conceptual errors:

"Patents are meant to protect innovation so they should be held to a high standard."

Patents aren't meant to protect innovation at all. Patents are made to grudgingly protect an inventor's rights, for a limited time, in exchange for public disclosure. The alternative is that the inventor still innovates, but keeps his or her innovations secret and exploits them behind closed doors. Others then have to duplicate that effort, wasting time and money.
Trade secrets do a much better job of protecting innovation, since they last forever. But that's bad for society, so we want to encourage public disclosure of innovations, so that the overall pace of innovation is accelerated. But we, as a society, couldn't really care less about any individual inventor's rights.

There's another, more important one, that I think the author got completely backwards:

We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:
This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome.

This is something the CAFC and Supreme Court have been wrestling with, but they haven't fully enunciated their reasoning yet. I think it's pretty clear if you look, not at the patent, but at the remedy for infringement. If you have a patent where the claim can be done fully in your head (1. A method for determining a summation, comprising adding two and two, and realizing the result is four) or on paper, then it's possible to infringe by thinking. One of the remedies for infringing a patent is an injunction, preventing the defendant from performing the patented method until the patent expires... so, stop thinking. I patented imagining a pink elephant. Don't think of a pink elephant. Wait, you just did! You owe me more money now.

This applies to software patents, business method patents, diagnostic method patents, etc. In the latter, a method that claims "determining a patient has an elevated blood count of chemical X; realizing the patient has disease Y," can be infringed simply by reading an example in the patent specification itself!

The courts have realized that's a problem, and that's why they started requiring a physical machine or transformation in Bilski. If the claim says "determining, via a testing kit, that the patient has an elevated blood count" or "adding, by an FPU of a computing device," then it's impossible to infringe the patent in your head, and injunctive relief is possible: think all you want, do whatever you want with pen and paper, but don't use a testing kit to measure this chemical or use a computer to determine this value.

Re:Errors in the Article (1)

plover (150551) | more than 3 years ago | (#37191472)

The courts have realized that's a problem, and that's why they started requiring a physical machine or transformation in Bilski. If the claim says "determining, via a testing kit, that the patient has an elevated blood count" or "adding, by an FPU of a computing device," then it's impossible to infringe the patent in your head, and injunctive relief is possible: think all you want, do whatever you want with pen and paper, but don't use a testing kit to measure this chemical or use a computer to determine this value.

The difference would be between "use A computer to determine this value" and "use THIS SPECIFIC computer to determine this value." I think if I embedded my grandiose idea in an FPGA's gateway, I have a tangible thing that produces concrete results, and the machine it is a part of should be patentable.

So there's my grandiose idea, that I should obviously patent: "A method for patenting software. Express the software you want to patent by burning it in an FPGA. You have now produced a concrete, tangible machine that meets the physical machine test of Bilski." Now if only I could burn that into a chip...

Re:Errors in the Article (2)

pfleming (683342) | more than 3 years ago | (#37190796)

Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.

Which is one of the problems with patents per TA, patents are not reviewed prior to rubber stamping them which leads to patent trolling and settling for those who cannot afford to defend themselves against bogus violations claims. Proper review coming in the door would reduce the problems.

Re:Errors in the Article (0)

Anonymous Coward | more than 3 years ago | (#37191174)

"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law

And this is the real heart of the issue at least in regards to software patents. Without either actual source code, or very specific pseudocode, you cannot "build" the invention. Most of what gets submitted is not even pseudocode, but more or less vague high-level design.

I've looked at a lot of software patents, and for most of them there are a vast number of ways you could actually implement the idea, and the different specific implementations would have drastically different end results in terms of actual function.

What we really need to do is just make it plain and simple. Submit source code (blueprint) or a binary (working prototype) or you get rejected.
Because from what I see, there's no way for me to prove my actual code is significantly different from the idea in the patent... because there is simply no way to measure against something that does not exist.

Re:Errors in the Article (1)

gnasher719 (869701) | more than 3 years ago | (#37191502)

The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention?

More exact: Would it have been obvious for someone with total and complete knowledge of all the prior art in existence, and with infinite amount of time and patience, but with no inventiveness of his own, to put these pieces of prior art together to create the claimed invention?

So if there are two commonly known pieces of prior art, but it is not obvious that combining them would give the wanted result, that is non-obvious. If there are two extremely obscure pieces of prior art, that nobody on Slashdot ever heard of, but it is clear when they are shown to you that combining them should give the wanted result, that is obvious.

Re:Errors in the Article (0)

Anonymous Coward | more than 3 years ago | (#37191850)

Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias

The easy way to avoid hindsight bias is to ask a handful of people in the field "Given this goal, how would you achieve it?" They can't be operating from hindsight unless the applied-for approach has been published, which invalidates the application; therefore if they come straight back with something similar to the applied-for approach, it must be obvious.

We have met the enemy (1)

CPTreese (2114124) | more than 3 years ago | (#37190326)

and he is us.

This part is easy to understand (0)

Anonymous Coward | more than 3 years ago | (#37190342)

"As we've pointed out in the past, it's incredibly difficult to get a totally bogus patent lawsuit dismissed without it first costing you a ridiculous amount of money. Other types of lawsuits are much easier to get dismissed. Why not patents?"

It's simple. In the judicial realm it is assumed that the Patent Office has already thoroughly examined the patent in question through a rigorous process and that the chances it could be invalid in some way are considered to be slim.

Of course, that's half the problem, because the assumption of thoroughness is wrong, which is why the Patent Office really does need something like the "panel of experts" mentioned in the article.

fix patents (2)

currently_awake (1248758) | more than 3 years ago | (#37190370)

Either give the USPTO sufficient time/resources to determine if applications are valid, or assume they are invalid until proven in court.

Re:fix patents (2)

Bill Dimm (463823) | more than 3 years ago | (#37190492)

Relevant article [wordpress.com] - Congress siphons off patent fees instead of allowing the money to be spent by the USPTO to do it's job properly.

Use it as a weapon (1)

gmuslera (3436) | more than 3 years ago | (#37190474)

If he thinks that patents are stupid, and have one key patents on which depends the almighty credit system, could be used as a tool to really invalidate all those trivial and not so trivial patents hanging around that are screwing innovation worldwide. Or just make a metric ton of cash of it, anyway that alone won't solve the deeper problem.

Idiot's Call for Epic Fail? (1)

retroworks (652802) | more than 3 years ago | (#37190480)

Hey, as long as he's an "idiot", how about getting him to lose the case defending his patent, so badly that it sets court precedent? Most of the ruling precedents (on adapting and reusing and refurbishing something patented) go back to an 1800s cotton baler case. http://www.wcl.american.edu/journal/lawrev/48/gajarsa.pdf?rd=1 [american.edu] Please, defend your patent! Just try to do it hideously and incompetently.

Re:Idiot's Call for Epic Fail? (2)

pfleming (683342) | more than 3 years ago | (#37190852)

He doesn't actually "own" the patent anymore, he sold it and so it was litigated by the new owner.

RTFA...he's not involved in the court case (1)

Chirs (87576) | more than 3 years ago | (#37190870)

So he can't defend it badly.

Re:Idiot's Call for Epic Fail? (1)

the eric conspiracy (20178) | more than 3 years ago | (#37191536)

He doesn't own the patent. It's not his to defend.

Two reasons software patents should not be (1)

erroneus (253617) | more than 3 years ago | (#37190618)

1. It is a mental process or it could be. I like that argument if it weakens software patents. But as the article points out, generally speaking, software patents are obvious or have prior art which has not been patented previously. Moreover, we see a lot of implementation shifting where "... on the internet" or "... on a computer" is added to things which are already done elsewhere.
2. Software development and innovation is a massive community effort. Even in the closed source world, ideas, methods and techniques are borrowed from all over. And development moves extremely fast as new and revolutionary things appear quite frequently. The problem is there are people who have decided that the realm of software development is ripe with patent violations because, as mentioned, the culture exists where everyone borrows from everyone in one way or another. So how we have a patent system where innovation is being hampered by the very same system which was supposed to enable it.

The way I see it, as early as the rotating table in a microwave oven, we have outgrown the patent system. [The threat/fear of] Patent litigation has been putting a pall on all sorts of creation and innovation. It has been a way to prevent, block and kill competition. It is no longer a thing which serves the people and now it harms the people.

Let's not debate whether or not some software is worthy of being patented. Let's look at the institution of patents to see if it is still a good idea. I'm just not sure it is any longer.

Re:Two reasons software patents should not be (4, Insightful)

plover (150551) | more than 3 years ago | (#37191798)

OK, so let's trot out the old chestnut of pharmaceutical patents. Let's say I invest $100 million to do the research needed to create a new drug, I create it, and the doses cost only $1 to make. Extrapolating from current demand, I will sell a million doses in the next 20 years while my patent is in force. I set my price at $200 per dose; with the costs being $1 in manufacturing and $100 in repaying my investment, so I'm making $99 in profit per dose. After 20 years, I have $99 million dollars in profit.

If I don't have patent protection, as soon as my drug hits the market someone will do an analysis and make a generic clone of it, selling it for $100 a dose, also settling for a $99 profit margin. They would take over 99% of the business from me, leaving me stuck with the tab for about $99.99 million dollars in research investment.

Would any pharmaceutical company ever do research again? Would anyone be trying to cure anything if they thought it would bankrupt them to do so? My guess is that a few celebrities will be affected by some diseases and create "foundations for the cure" efforts on a one-off basis, but in general, innovation in drugs would die without the patent system.

Of course, this is a simplistic picture, and the real world of shady marketing, fraudulent studies, suppressed side effect reporting, drugs to treat imaginary ailments, and all the other unethical stuff the pharmaceutical companies do certainly complicates things. And there are ongoing costs to the inventors and manufacturers of the drug: lawsuits over side effects, wrongful deaths, etc. But at its core, without the patent system these drugs would never be created.

So if we've established that pharmaceutical patents are necessary to drive research that may benefit us as a whole, then at least part of the patent system should at least be salvaged and not dismantled.

Still sounds like he's missing the point (1)

RingDev (879105) | more than 3 years ago | (#37191012)

it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules.

But should it be?

I think that a new novel invention that takes metabolic readings should be patentable. I mean, it has to have some form of input from the patient, be it a new invention to measure blood pressure or a new invention to measure blood-sugar levels, etc...

But why should adding an 'alarm' to it be patentable? That sounds like a really OBVIOUS addition. Why should making it 'automatic' be patentable? Not only does it sound like an obvious idea, it's not an invention, it's a process.

-Rick

Mental process (1)

Anonymous Coward | more than 3 years ago | (#37191418)

The "idiot" says that his "invention" is a mental process (so that it can not be patented) because anyone could do it without a machine. But then he stated that in reality the process would be very slow, so in reality a machine is needed and thus his "invention" can be patented.

This line of reasoning is flawed because that would make the Fast Fourier Transform patentable too. It is mental process but it is too slow to do it without a computer. And FFT affects everything and anything more complex that summing the expenses of the groceries. Imagine the revolutions that would not have happened if FFT was patented.

The same could be said about the pythagorean theorem; it is a mental process but too slow to compute without a calculator. And don't forget that D. Knuth has famously said that algorithms ARE math.

Wake Up Congress?!? (2)

Bob9113 (14996) | more than 3 years ago | (#37192004)

From the article:

This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.

HAHAAHAHAHHHHAHAHHHHHAHHHAAAAHAHAA. That was awesome. My eyes are watering. Man, I've been working long hours for the past week or two, and I needed a good laugh this morning.

That is absolutely precious. OK, Mr. Masnick: I hate to be the one to bear this bad news, so I'll try to do it gently. Congress is not interested in protecting entrepreneurs, the middle class, small business, or any of the other drums they beat so frequently. When a Congress person says "We have a responsibility to protect XYZ", it is like when the President says, "I have complete confidence in Michael Brown". It means "The referenced person/class is a freaking albatross that I would sooner toss down the oubliette than spend one more minute thinking about, but professional politicianing requires that I pretend I don't want to gut it and sell the tender innards to my friends."

Congress cares about lobbyists with a lot of money. Period. End of story. Entrepreneurs have jack shit. Entrenched incumbents have the money. Entrenched incumbents are who is served by patent policy. Congress is entirely awake and aware of who their puppet masters are.

Want proof? Read this. [wikipedia.org] We are the only country in the world that still rewards the inventor with the patent, instead of the company with the fastest lawyers. It is blindingly obviously the right way to reward innovation instead of litigation. It is so obvious that for Congress to accept First-to-File would be indefensible as supporting innovation or entrepreneurs to anyone who has even a remote knowledge of the patent process. And for inventors who have lots of patents, like my Father, the idea of First-to-File is enough to send him into a half hour apoplectic tirade that makes me fear for his heart. Yet the movement to make the switch is alive and kicking, and probably going to happen within the next few years. Why? Mostly because with every check Microsoft writes to damned near every person in Congress, they say, "Oh, and pass first-to-file -- we're tired of only getting patents when one of our employees invents something."

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