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Comments

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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Re:Technological Software as Patent Eligible (92 comments)

You mean that the Federal Circuit actually followed Congressional intent and the statutory law (35 USC 101) -- apparently against the wishes of the Supreme Court.

Foolishness. Section 101 is broader than you give it credit for. Patent attorneys love to overlook the language.

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

One may very well look at the Alice patent (or any of a whole series of the business method/software cases) are realize that those claims are drawn to things that the patentees neither invented nor discovered, were not new at the time, etc. What's more Section 101 is entirely permissive "may obtain" which is hardly a requirement: shall or is entitled to, etc.

And, in any case, Congress is bounded by the Constitution's copyright clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Art. I, Sec. 8, Cl. 8). Extending patent rights to abstract ideas, general principles, etc., would arguably be unconstitutional. So, to avoid the constitutional question, it's best to resolve the broad language against that patentability.

about two weeks ago
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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Re:Patent Attorney chiming in (92 comments)

... at trial, yes. Not at the USPTO or before the PTAB.

I rarely care about non-issued patents, other than my own. Patent examiners can do their thing. Alice gives them a tool now too.

IPRs are a possible strategy. But people don't willy-nilly file those either. They're more part and parcel of modern patent litigation now to get a stay and hopefully wreck claims. A good IPR is still 5 figures.

And in KSR, SCOTUS pushed that way back. Now it's actually quite easy, unless the claims recite an element that you just can't find a reference for, anywhere.

And that's still an issue for mid- to late-90s patents. Words are different. Language is different. Experts and lawyer arguments are expensive.

Plus, a wealth of everyday computer stuff from the 90s is still pretty hard to come by or expensive or time consuming to retrieve.

That'd be an easy 103 rejection: you can prove it's been "done previously," right? You can prove that the platform existed previously, right? Where's the problem?

If that's all that was required, woo-boy.

How do you define "actually inventive"?

Here are the questions I ask when contemplating patent filings, post-Alice, for a software method (or computer implemented method):
* Can I reasonably determine the bits and pieces you put together a specific solution to a specific problem based on your claims?
* Do the claims give me all of the pieces of the puzzle or does it give me a flowchart?
* And, to entirely avoid an Alice question, are you using generic bits of technology for their ordinary purpose to solve an old problem the old way?

"Good" answers to these questions should avoid a 101 issue.

about two weeks ago
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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Re:Patent Attorney chiming in (92 comments)

One of the important things to realize is that that actually doesn't matter. The fact that the practice had been done in the real world before did, though. Merely gussing-up the language with technological tools didn't make it patent eligible. The court never gets to the issues under Sections 102 (anticipation) or 103 (obviousness) of the patent laws.

about two weeks ago
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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Re:Patent Attorney chiming in (92 comments)

Those patents - of which I've to actually see an example - would already be invalid under 103:

I so hate this argument. Sure, they could be. The road to a 103 invalidity is an expensive and often arduous task that is often left to a jury. What's more, its met with a high burden and a presumption of validity. The Federal Circuit and patent lawyers have done a marvelous job making invalidity under 102/103 all but impossible except in the most extraordinary cases.

The point is: they shouldn't have been patent eligible in the first place. You can't take something done previously, stick it on a platform that's used for it's conventional purpose and suddenly you're in patent-eligibility land.

Now the burden, under 101, is for the inventor to show that which they did was actually inventive.

Good patents shouldn't have this issue. 101 should be a very, very low hurdle.

about two weeks ago
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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Re:Technological Software as Patent Eligible (92 comments)

I read Patently-O. Thank you for all that you do. I'm also a patent attorney. I work in-house at a software company where I'm Chief IP counsel. I cannot help but think when reading patently-o (and PatentDocs and IPWatchdog and others) is that the readership is so skewed to patent attorneys who view the world as fundamentally formed around patents. When a patent attorney like myself makes any argument about the ludicrous nature by which the scope of patents has grown, either in comments or otherwise, it is mostly met with cries of being part of the anti-patent brigade.

What Alice has shown to me is that the generalist legal world (e.g., the one in which the SCOTUS lives) view patents with much, much more skepticism. In my opinion, rightfully so. Patent attorneys get their undies in a bunch about Alice-like precedent "violating" the territories of 102 and 103. But that misses the forest for the trees.

As you suggest, Alice is in but a long line of cases where the Supreme Court looks at the forest, not the trees. Recognizes the absurdity and attempts to restore some sanity.

about two weeks ago
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Alice Is Killing Trolls But Patent Lawyers Will Strike Back

reebmmm Patent Attorney chiming in (92 comments)

Alice is a big deal. It's already dealt tough blows to some patents in currently pending cases. This is mostly a good thing. And the patents that Alice affects most are sort of the worst of the worst.

I want to address the last point:

Alice to turn software patents into 'draftsmen's art because as you and I have seen over the years, every time there's a court ruling it just means that you have to word the patent claims differently.'

This may well be the case. But I don't see that as a particularly bad issue. Among other things, the worst offenders were patents that issued between 1996 and 2006 where there is a huge number of "do such and such old thing on a [computer | web | network| mobile device]" as if the "such and such old thing" was suddenly now a patentable thing by virtue of a new platform. Alice will largely undo those patents.

I also think that the "draftsman's exercise" is likely to bring added meat to claims. It might not sound like much, but every single word that gets added to a claim is one more point of possible differentiation.

about two weeks ago
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How Nest and FitBit Might Spy On You For Cash

reebmmm Re:Not the same, but tangentially related... (93 comments)

Insurance is a weird thing: it works because you pool a bunch of risk and spread the associated costs across all your insured. At the moment, Snapshot only gives discounts to those drivers that establish that they are in fact in the lowest risk pool: few miles driven, during "safe" times, in a "safe" manner (e.g., few hard stops). There's no incentive, currently, for otherwise safe drivers to participate -- such as those that drive too many miles.

However, I consider myself a safe driver but just have too many miles. Heck, I even have a dashcam (I don't live in Russia, either). But other than my clean driving record, I don't have any other driving behavior-based way to lower my risk profile or premium. I would LOVE if Progressive mandated Snapshot, increased rates of those that had poor overall driving techniques (fast acceleration, hard braking, etc.) and lowered the rates for the rest. People whose rates increased would likely flee Progressive, but the risk for the pool would go down (and with it my premiums). Mandated Snapshot won't happen of course for lots of non-obvious reasons, though.

about 5 months ago
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Open Source — the Last Patent Defense?

reebmmm Re:no troll defence here (52 comments)

Not true. Not true at all. The Apache 2.0 license doesn't prevent a user of Apache-licensed software from suing. It's a defensive patent clause: it deprives the contributor of patent enforcement rights as it relates to a contribution, but allows them to sue a user for patent infringement if they're sued first. If a troll sues a "Contributor" for patent infringement, then the Contributor can sue the troll. So, a troll could use Apache all day long and sue Contributors all day long without a license violation.

3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

Similarly, GPLv3 has a patent license. It affects contributors and distributors, not "users."

11. Patents.
A “contributor” is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based. The work thus licensed is called the contributor's “contributor version”.

A contributor's “essential patent claims” are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, “control” includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

In the following three paragraphs, a “patent license” is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement). To “grant” such a patent license to a party means to make such an agreement or commitment not to enforce a patent against the party.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

about 8 months ago
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Open Source — the Last Patent Defense?

reebmmm Re:no troll defence here (52 comments)

Spot on. The linked article is ridiculous. The facts of the cases (both Jacobsen v. Katzer and Twin Peaks v. Red Hat) referenced as a use of a OSS license in defense of a patent infringement claim did not involve trolls and did not involve a defense to patent infringement. They had an independent copyright claim.

That's not a "tactic" and it's not reproducible defense. You might as well say, "if you want to defend against patent trolls, you should get a contract with the trolls that they'll breach." Or, "you can defend a patent case, if you catch the patent owner breaking into your house." Your lawyer is going to look for whatever leverage you might have against a troll. Thinking that an OSS license is much of a shield is foolish.

about 8 months ago
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US Cord Cutters Getting Snubbed From NBC's Olympic Coverage Online

reebmmm Re:Why? (578 comments)

As far as I'm aware, you can still get it by antenna. So, there you have your ad supported NBC version for free.

I don't know what that has to do with making the same content available online.

about 8 months ago
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Google Announces Smart Contact Lens Project For Diabetics

reebmmm Re:Cool, and probably realistic, but... (90 comments)

Diabetic here. I would wear the contact lens in a heartbeat. The idea is that this device would replace the finger pricks, otherwise known as holes in skin. And when you repeatedly test on your fingers (6-10/day), that's a lot of holes and a lot of blood. There is risk for infections, scabs and blisters. And long time diabetics develop callouses on their fingers from testing which means that they need to poke deeper to get blood.

Plus the checking isn't really "constant." You have to periodically check during the day. That means that you can go high or go low between checks and perhaps not realize it until you have symptoms.

There are constant glucose monitors. Essentially a large pager you carry around that is connected to the body via an injection site. They're great. They measure changes in BS very well, but they're very limited in duration, insertions are painful, and the disposable bits are really expensive. You also need the finger sticks because (as far as I'm aware) few are accurate enough to give you the same level of accuracy.

about 8 months ago
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Musk Lashes Back Over Tesla Fire Controversy

reebmmm Re:One big difference (487 comments)

The per capita statistic is right in the summary:

Tesla suffers an average of one fire per 6,333 cars, versus a rate of one fire per 1,350 gasoline-powered cars.

about 10 months ago
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NSA Broke Into Links Between Google, Yahoo Datacenters

reebmmm Re:NSA denies everything (394 comments)

Here are my questions: why do they always talk about "authorization" when making denials? And why don't reporters call them out on it? This story is a classic example:

“NSA does collect information on terrorists and our national intelligence priorities but we are not authorized to go into a U.S. company’s servers and take data,” Alexander said.

That's great and all. But it's like a shoplifter saying, "sure I went into the store and looked around, but I wasn't authorized to take anything."

about a year ago
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FDA Will Regulate Some Apps As Medical Devices

reebmmm Re:Woohoo! (130 comments)

Why the fuck would you use a mobile app to control an IV pump?

The point is really two-fold. First, we already regulate medical devices like infusion pumps and radiology information systems. Under the proposed regime, one does not simply avoid regulatory scrutiny and obligations by offloading them to an app.

Second, if a app makes claims to do things things that would ordinarily be regulated, you don't escape the regulatory regime simply by saying, I'm just an iPhone app.

Both prongs make some sense if you accept the basic assumption that FDA regulation of devices makes sense at all.

1 year,6 days
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N. Carolina May Ban Tesla Sales To Prevent "Unfair Competition"

reebmmm Re:Cherry-picking (555 comments)

Good thing that Tesla warrants it on unlimited mileage out to 8 years. (http://www.digitaltrends.com/cars/tesla-to-offer-eight-year-warranty-on-battery-pack/). Also, you can acquire the Tesla replacement battery packs for circa $12,000 (http://www.teslamotors.com/it_CH/forum/forums/battery-replacement-cost) today. Factor in that by the end of the 8 year warranty period, the cost will likely be lower, your argument holds no water.

about a year ago
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Injectable Nanoparticles Maintain Normal Blood-sugar Levels For Up To 10 Days

reebmmm Re:Preemptively Posting (121 comments)

As a T1D, I'll note that the GP didn't really comment on what it means to be a T2D. The characterization, however, is mostly true for an overwhelming majority of t2d, but completely false for t1d. T2D is controllable with diet and exercise alone in something like 80-90% of the T2D population. Weight and lifestyle factors make up an overwhelming percentage of the risk factors. And while there is clearly a genetic (usually associated with the likelihood that weight/lifestyle will give way to t2d, not that the genetics alone cause t2d) and medical condition component too, this is the clear minority.

about a year ago
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Pushing Back Against Licensing and the Permission Culture

reebmmm Re:Better read up on what GitHub does impose... (320 comments)

I was about to say, saying "no license" doesn't make it freely available to anyone. It's quite exactly the opposite -- it's not usable by anyone. And it puts a taker in jeopardy since the materials contributed will (or may depending on the contribution) be copyright of the contributor automatically. Github's position for license-less contributions is the default rule.

Of course, someone making code available online may have zero desire to enforce that copyright. However, a subsequent user of that code cannot say that they own or have all rights necessary to distribute the code.

about a year and a half ago
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Microsoft Patents 1826 Choropleth Map Technique

reebmmm Re:First-to-file isn't a problem (183 comments)

Agreed. First-to-file is a bit of a misnomer. It's more like a first-inventor-to-file regime. If anything, the first-inventor-regime is actually more protective because it has an absolute novelty requirement. If someone else publishes before you file, you get nothing. You get no grace period over someone else publishing, using or marketing an invention -- you do get a grace period with respect to your own publication.

There is not going to be a rush to the patent office to file a patent on sex.

about 2 years ago

Submissions

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Appeals court: You can infringe a patent even if you didn't do all the steps

reebmmm reebmmm writes  |  more than 2 years ago

reebmmm (939463) writes "In a much anticipated patent law case, an en banc panel of the Federal Circuit overturned existing law and came out in favor a new rule for indirect infringement: you can still be liable for infringing even if no single person does all the infringement.

This case consolidated two different cases involving internet patents. In McKesson v. Epic, a lower court found that Epic did not infringe a patent about a patient portal because one of the steps was performed by the patient accessing the portal. In Akamai v. Limelight, the lower court found that Limelight did not infringe because its customers, not the company itself, tagged content.

This is likely headed for the Supreme Court."

Link to Original Source
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Supreme Court: Affordable Care Act Constitutional

reebmmm reebmmm writes  |  more than 2 years ago

reebmmm (939463) writes "The Supreme Court upheld the Affordable Care act and it's most contentious provision: the individual mandate. In a split decision, Chief Justice Roberts writing for the majority said the individual mandate survives as a tax."
Link to Original Source
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Judge Posner to Apple & Motorola, Go Home

reebmmm reebmmm writes  |  more than 2 years ago

reebmmm (939463) writes "Seventh Circuit Court of Appeals Judge Richard Posner, voluntarily sitting as a district court judge, in the patent infringement dispute between Apple and Motorola has, tentatively, dismissed the case on the eve of trial. In this hilariously short order, Judge Posner states, "I have tentatively decided that the case should be dismissed with prejudice because neither party can establish a right to relief."

Because it is "with prejudice" the parties cannot refile their case. The parties are likely to appeal the order (when it's finalized)."

Link to Original Source
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Supreme Court to Bilski: Your claims are invalid

reebmmm reebmmm writes  |  more than 4 years ago

reebmmm (939463) writes "The Supreme Court just decided the long-awaited case against Bernard Bilski: Federal Circuit Affirmed Unsurprisingly, the Court found Bilski's claims invalid because they were ineligible subject matter under Section 101 of the patent law. In a decision (with a concurrences by Breyer and Stevens), Justice Kennedy wrote of Bilski's claims: "petitioners' claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all members of the Court agree that the patent application at issue here falls out-side of 101 because it claims an abstract idea." The Court rejected the Federal Circuit's "machine or transformation test" as the sole test for patent eligibility. The Court made clear the while the machine or transformation test may be a useful tool, it is not the only test. The Court noted that the patent law does not exclude business methods. The Court declined to render all software patents invalid.

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection. This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

Slashdot take home: software patents may still be valid."
Link to Original Source

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WARF and Intel settle patent suit over Core 2 Duo

reebmmm reebmmm writes  |  more than 4 years ago

reebmmm (939463) writes "The Wisconsin Alumni Research Foundation and Intel have settled their patent suit over technology developed by Gurindar Sohi, a computer science professor at the University of Wisconsin — Madison.

Professor Sohi developed technology that was ultimately patented by WARF using money he received from Intel. Last month, Judge Barbara Crabb found that the funding agreement was ambiguous, but that e-mails revealed that the money was an unrestricted gift and carried with it no obligation to license or assign any inventions to Intel.

Trial was scheduled to begin today. The terms of the settlement were not disclosed.

At issue is the 5,781,752. A copy of WARF's original complaint is here."

Link to Original Source
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NETGEAR does not infringe wireless patents

reebmmm reebmmm writes  |  about 5 years ago

reebmmm writes "Judge Barbara Crabb issued an opinion stating that NETGEAR's products that comply with the 802.11 Standard do not infringe three patents controlled by an 802.11 patent pool. The three patents: 6,018,642, 6,469,993, and 4,975,952. This case was a standards based case:

"From the beginning, plaintiffs have taken the position that they may prove infringement by defendant's products by showing that those products practice relevant standards that read on plaintiffs' patents."

In this case, however, the judge concluded that the "plaintiffs have failed to adduce sufficient evidence to allow a reasonable jury to find that defendant's accused products infringe any of the asserted claims in plaintiffs' patents and that defendant is entitled to summary judgment on plaintiffsâ(TM) infringement claims." As such, NETGEAR's 802.11-compliant products do not infringe. And in quite the benchslap, the judge was quite unimpressed with the three plaintiffs (LG, Fujitsu and Philips):

"Plaintiffs' preparation of the record evokes two images, neither one of which is flattering to plaintiffs. The first is that they conceive of the court as a hunting dog with no higher duty than to run down every fox, sniffing out evidence in the record, wherever it may exist. The second is Poe's Purloined Letter, in which a valuable letter is hidden in plain sight among many other letters."

"

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