Pure Awesome. Shame there's not a way to do the same thing to existing software patents. There are plenty (~40k/year according to the article) of bad, obvious nonsense patents already out there. It'd be nice if there were a simple process to appeal and invalidate them with similar demonstrations of prior art and obviousness.
I'm definitely looking forward to seeing some Wikipedia-level-OCD focused on this site to stop the roughly 100% of bad applications for new software patents dead in their tracks. Imagine a 2014 where zero new software patents were issued.
EDIT: Incidentally, patentlyobvious.com is just a parked domain at the moment. It seems like the obvious choice for a place to host a site like this.
> Shame there's not a way to do the same thing to existing software patents.
What's stopping anyone from crowd sourcing a database of prior art for existing patents that would invalidate them if it came to it?
A valid defense against patent infringement is to show that the patent shouldn't have been issued in the first place, right? So a database of Ready Made Legal Defense sounds good.
There was an extremely depressing AMA on reddit a while ago where a patent examiner explained that what all of us consider "prior art" will be completely ignored by a patent examiner:
The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and a self stated date on a web site is not "verifiable"), it can't be considered because it is not possible say for sure it came earlier than the patent filing. So - some random thing on the internet - not published. Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art. In one comment he says:
"You may be right, that is how everyone does it. But if there is no documented prior art for us to search, we are out of luck rejecting it."
This explains why so many things that software developers routinely do end up in patents. Some of them are just so obvious that publishing it in a formal way is redundant. Yet that is the same bar that the USPTO is applying for rejecting patents. So the patent system itself is enriching the pool of obvious patents that get through.
Anyone using this Ask Patents site really needs to sit through a mini-tutorial explaining these things before they start, or they will waste more time than they save.
What about the Internet Archive's Wayback Machine?[0]
And how can making a physical product not count -- surely any physical product sold in the United States has some kind of qualifying documentation associated with it which counts as publishing, even a manual?
> The bar for prior art is very high ... Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art
If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]
E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.
[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).
> “Sometimes you have a picture that you want to scale to different resolutions. When this happens, you might want to have multiple versions of the image available at different resolutions, so you can pick the one that’s closest and scale that.”
I read that Lance Williams invented this technique in 1983, but I remember seeing a documentary on Tron where they had to come up with a technique during the lightcycle race to reduce the Moire effect on the grid and I could have swore that they invented mipmapping to do that, even though it was a year earlier.
The patent trolls are already on it, patenting crowd-sourcing as a method of patent defense. This will inevitably result in the shut down of Ask Patents in a stunning fit of irony.
> Since patent examiners rely so much on keyword searches, when you submit your application, if you can change some of the keywords in your patent to be different than the words used everywhere else, you might get your patent through even when there’s blatant prior art, because by using weird, made-up words for things, you've made that prior art harder to find.
Wouldn't it also make sense to build up, maybe at the same time, a sort of "counter-thesaurus"?
As in: If you find prior art where the thesaurus method has been used to obscure terms in the patent, enter those as an example into a database. When another patent is looked up, individual terms that show up in the database have a "there are alternative terms for this" marker applied to them.
This might also make it a lot easier to make automatic search for prior art feasible again.
Does anyone know whether participating in a public forum like this could used in future proceedings against the user or their employer as evidence of 'willful infringement'?
I vaguely recall something about large corporations discouraging engineers from reading potentially relevant patents due to the possibility of greater damages if they were later proved infringing, since demonstrating that they didn't take any inspiration or details from the patent is quite difficult.
Not wanting to spread FUD or anything, but it strikes me as a potential exploit for patent trolls to discourage participation if it's a significant risk.
I have been asked by my employer (a large software company) to avoid looking at patents in any form. It is precisely because, as you cite, it exposes the entire company to willful infringement claims around any patents that I were to view.
I had a bad attitude dealing with patents in my last job, refusing to take part on the basis that I hadn't come up with anything novel. I noticed a member of staff with views on patents in line with mine taking a more active role. He took part in the patent meetings, but instead of merely offering nothing up, took active part in finding prior art, thus preventing time wasting patents going to the office. He took special pleasure in finding prior art by current employees at the same company, preferably in the same arm.
I am impressed by Spolsky's positive attitude to do something about the problem, I bid ask patents continued good fortune!
So, this sounds great and all, but I don't see any proof that it was ask patents that caused the examiner to find this, rather than the examiner's standard search?
In fact, the search history, on PAIR (look for 4-11-2013 SRFW Search information including classification, databases and other search related notes) does not say ask patents was used, nor does the search strategy (document code SRNT).
It could be the USPTO has not gotten around to noting this yet, but the only entry I see that could be related is the NPL entry, which of course, has no image available (god i love PAIR), and does not say it came from outside the search.
Don't get me wrong, I think askpatents is great, but i'm skeptical considering how examiners actually work.
The USPTO explicitly asked us to set up this site to help get the public involved in getting prior art to the examiners. (Press release:http://www.uspto.gov/news/pr/2012/12-60.jsp.) So, while it's entirely possible that the examiner might have eventually found this without us, which is far from certain, it seems reasonable to assume that they saw it on the site. Which means that even if you assume they would have found it without help - again, questionable, given the number of weak patents out there - at a minimum, we probably saved them a lot of time, which frees up more resources to look for prior art on the next crappy patent. And that reduces the odds that the clock runs out without them finding any, which leads to a lousy issuance.
I like the concept of Ask Patents but at the same time I wonder if it is possible that participation on Ask Patents could be leveraged by malicious litigants to seek treble damages.
For example, if the company I work for is being sued by a troll for infringement, could the troll see that employees have been participating on Ask Patents and therefore a reasonable assumption could be made that they're reading/reviewing/participating in discussions on patents, and therefore they knowingly are infringing? Would this something that either I or my employer should be worried about?
From my brief experience, you're probably better off assuming that the default price will be triple damages, and any reduction from this is a lucky discount.
This is an excellent result. I worried when the idea of helping the PTO uncover prior art would be controlled by the attorneys filing the patent (which is to say they would be a filter between the examiner and the external sources) but if the examiners are going directly to the source then this will really put a crimp in bad patents being issued.
This is an awesome project. I've signed up and will see what I can do to help shoot down patents!
There is one true and important point in the article that isn't supported by the example given:
> This patent was, typically, obfuscated, and it used terms like “pixel density” for something that every other programmer in the world would call “resolution,” either accidentally (because Microsoft’s lawyers were not programmers), or, more likely, because the obfuscation makes it that much harder to search.
The patent uses "pixel density" to refer to the physical size of the pixels on a display. This is a fairly common term, with over five million results in a Google search. I've used the same phrase myself for over 10 years with the same meaning.
"Pixels per centimeter (ppcm), Pixels per inch (PPI) or pixel density is a measurement of the resolution of devices in various contexts: typically computer displays, image scanners, and digital camera image sensors."
Of course here we can see where the terms get a bit confusing: "...pixel density is a measurement of the resolution..."
But display resolution these days usually refers to the number of pixels, not their physical size:
"The display resolution of a digital television, computer monitor or display device is the number of distinct pixels in each dimension that can be displayed."
Advertisements and spec sheets almost always use "resolution" this way, for example the MacBook Pro specs on Apple's site:
"Supported resolutions: 1440 by 900 (native), 1280 by 800, 1152 by 720, ..."
Forgive me if this seems like nitpicking, and I completely agree with Joel's point here: patents often do use unusual terminology to obfuscate what they're talking about.
This just isn't a case of that. The patent is using the correct term, and it even does a very good job of explaining what it means:
> A particular characteristic of display components that may affect presentations rendered thereupon is the pixel density of the display component, such as a pixels-per-centimeter measurement. It may be appreciated that such characteristics may be independent of the size of the display component (e.g., two display components of the same size may present different pixel densities; conversely, two display components of different sizes may present the same pixel density) and/or the pixel dimensions of the display component (e.g., two display components displaying a presentation with a particular pixel dimensions may do so with different physical sizes).
> There is one true and important point in the article that isn't supported by the example given
I can't actually vouch for the "true and important" part. I must confess I put that in there to try to be nicer about what I was saying. :-) And it certainly seemed plausible enough that patents would be deliberately written in obfuscated language, I just can't say it's true or untrue from my own knowledge. I know pixels better than patents.
There's a great comment here that sheds some light on this:
One thing I don't understand. Suppose a patent examiner does not ask on Ask Patents about a patent application, but I would nevertheless like to submit prior art.
The Ask Patents site was created in partnership with the USPTO; there is an expectation that examiners will search the site while researching a pending application.
Trouble is, what killed the patent was prior disclosure from the researchers.
The same thing has happened to friends of mine; an undergraduate's summer research presentation may have betrayed patentable inventions. An effect of the 1-year prior art rule is to force researchers to keep mum about what they're doing and to generate greater numbers of incremental patents.
If you're interested in the free flow of information, using a researcher's own publications to kill patents may not help the cause.
Prior art from other work in the past? Bring it on!
I didn't think from reading it that the two groups at MS were the same - I assumed they were independent parts of the org, in which case it was fairly clear that this was an idea that various people have had without direct communication, and thus throws serious doubt on "non-obvious". I'm pretty sure that you could find plenty of other people who've had the idea.
Companies like Akamai used to (probably still do) have image resizing proxies which took something like a multi-resolution TIFF file as part of their extended CDN features. I can't remember when I first saw that in action, but I'm sure it was pre-2011.
I'm also not sure why using a researchers own publications to kill a patent would be bad in your eyes. If you think something is really, truly patentable you'd keep it under wraps until you did so, as far as possible. If you only decided later, once you'd published research and people were productizing that research - and you then patented and sued them - well, that's exactly the kind of thing that should be stomped on!
I'm not sure I understand what you mean by "prior disclosure" here. They filed a patent application: those are supposed to be public. The prior art Joel used was the documentation of the Win32 API from 5 years previously (and I'm pretty sure we've been using variable-resolution apps since earlier than 2008, and not just in Windows -- this was just an example). Could you clarify what the problem is?
The 1-year grace period is there specifically so researchers can publish and patent. What counts are the publication and filing dates. File within the year and you will be in a position to earn protection.
However, the 1-year grace period isn't available everywhere. The USA has it, for instance, but the EU doesn't.
An idea that might help in killing patents: Have one daily sticky post on HN (ala job post) with a short description of a pending patent and a link on where to post prior art. It is very likely some reader will be able to provide this prior art.
At 40,000 software patents per year, it would require 110 posted patents per day to actually stop them, or a significant fraction of that to make a serious dent.
One a day would be less than a 1% reduction in software patents. We need to shut them ALL down.
> How cool would it be if Apple, Samsung, Oracle and Google got into a Mexican Standoff on Ask Patents? If each of those companies had three or four engineers dedicating a few hours every day to picking off their competitors’ applications, the number of granted patents to those companies would grind to a halt.
I'm kind of surprised this isn't happening already.
In another patent thread some time ago I identified what I think is the core problem with software patents, which is abstractability. I used the example of a tractor being generalised into transportation, so I was nodding along with Joel's example.
This is because that's how software development often proceeds. We start with the concrete problem, then notice a pattern that encompasses a class of concrete problems, then a pattern that describes a group of classes of problems and so on. Building abstractions is literally what we do as a profession.
Now, as Joel points out, the rational strategy is to take the highest-level, most abstract version of your invention to the patent office to see what will get passed in. So patent applications are written like matrioshka dolls, with a super general case on the outside, and progressively more concrete descriptions as you go deeper. Somewhere near the bottom is the original thing that started the ball rolling.
It would be cool if there was a way to penalize high number and high ratio of rejected patents from a single company. OTOH I don't see a way that allows genuine mistakes from small shops while being immune from big bad corps acting via shell companies.
That is an excellent idea. (To clarify, you're saying a company would need to have both a high number and a high ratio rejected to be penalized.)
More generally, it seems logical to have the size of the penalty increase at a quadratic or even exponential rate, based on the number of rejected patents within a certain trailing time period[1], and scaled by the rejected/submissions ratio. So every rejection would carry a penalty, but the more that were rejected (both in total and as a percentage), the larger the penalty would be, at an increasing rate.
It might also be an idea to do this with individual claims as well as, or even instead of, entire patents, to also deal with the overly broad claims problem.
[1] Or even for all time, but with a weighting factor based on recency. Wouldn't want to get overly complex though.
[+] [-] jasonkester|12 years ago|reply
I'm definitely looking forward to seeing some Wikipedia-level-OCD focused on this site to stop the roughly 100% of bad applications for new software patents dead in their tracks. Imagine a 2014 where zero new software patents were issued.
EDIT: Incidentally, patentlyobvious.com is just a parked domain at the moment. It seems like the obvious choice for a place to host a site like this.
[+] [-] silvestrov|12 years ago|reply
That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
[+] [-] ianterrell|12 years ago|reply
What's stopping anyone from crowd sourcing a database of prior art for existing patents that would invalidate them if it came to it?
A valid defense against patent infringement is to show that the patent shouldn't have been issued in the first place, right? So a database of Ready Made Legal Defense sounds good.
Am I missing something?
[+] [-] zmmmmm|12 years ago|reply
http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...
The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and a self stated date on a web site is not "verifiable"), it can't be considered because it is not possible say for sure it came earlier than the patent filing. So - some random thing on the internet - not published. Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art. In one comment he says:
"You may be right, that is how everyone does it. But if there is no documented prior art for us to search, we are out of luck rejecting it."
This explains why so many things that software developers routinely do end up in patents. Some of them are just so obvious that publishing it in a formal way is redundant. Yet that is the same bar that the USPTO is applying for rejecting patents. So the patent system itself is enriching the pool of obvious patents that get through.
Anyone using this Ask Patents site really needs to sit through a mini-tutorial explaining these things before they start, or they will waste more time than they save.
[+] [-] mr_luc|12 years ago|reply
What about the Internet Archive's Wayback Machine?[0]
And how can making a physical product not count -- surely any physical product sold in the United States has some kind of qualifying documentation associated with it which counts as publishing, even a manual?
[0] http://archive.org/web/web.php
[+] [-] SEMW|12 years ago|reply
If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]
E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.
[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).
[1] Article 54(2) EPC
[2] http://en.wikipedia.org/wiki/Peter_Chilvers
[+] [-] rayiner|12 years ago|reply
This is basically mip-mapping, and was described in a 1983 paper: http://dl.acm.org/citation.cfm?id=801126.
[+] [-] rocky1138|12 years ago|reply
[+] [-] mixmax|12 years ago|reply
[+] [-] ajiang|12 years ago|reply
[+] [-] creamyhorror|12 years ago|reply
If only we'd done this a decade or two ago. How about some reevaluation of granted patents?
edit: The original title, "Joel Spolsky, patent killer", was better :/
[+] [-] skore|12 years ago|reply
Wouldn't it also make sense to build up, maybe at the same time, a sort of "counter-thesaurus"?
As in: If you find prior art where the thesaurus method has been used to obscure terms in the patent, enter those as an example into a database. When another patent is looked up, individual terms that show up in the database have a "there are alternative terms for this" marker applied to them.
This might also make it a lot easier to make automatic search for prior art feasible again.
[+] [-] bqe|12 years ago|reply
[+] [-] shabble|12 years ago|reply
I vaguely recall something about large corporations discouraging engineers from reading potentially relevant patents due to the possibility of greater damages if they were later proved infringing, since demonstrating that they didn't take any inspiration or details from the patent is quite difficult.
Not wanting to spread FUD or anything, but it strikes me as a potential exploit for patent trolls to discourage participation if it's a significant risk.
[+] [-] ncallaway|12 years ago|reply
[+] [-] eliasmacpherson|12 years ago|reply
I am impressed by Spolsky's positive attitude to do something about the problem, I bid ask patents continued good fortune!
[+] [-] DannyBee|12 years ago|reply
In fact, the search history, on PAIR (look for 4-11-2013 SRFW Search information including classification, databases and other search related notes) does not say ask patents was used, nor does the search strategy (document code SRNT).
It could be the USPTO has not gotten around to noting this yet, but the only entry I see that could be related is the NPL entry, which of course, has no image available (god i love PAIR), and does not say it came from outside the search.
Don't get me wrong, I think askpatents is great, but i'm skeptical considering how examiners actually work.
[+] [-] jaydles|12 years ago|reply
[+] [-] maximilianburke|12 years ago|reply
For example, if the company I work for is being sued by a troll for infringement, could the troll see that employees have been participating on Ask Patents and therefore a reasonable assumption could be made that they're reading/reviewing/participating in discussions on patents, and therefore they knowingly are infringing? Would this something that either I or my employer should be worried about?
[+] [-] Schwolop|12 years ago|reply
[+] [-] ChuckMcM|12 years ago|reply
[+] [-] Stratoscope|12 years ago|reply
There is one true and important point in the article that isn't supported by the example given:
> This patent was, typically, obfuscated, and it used terms like “pixel density” for something that every other programmer in the world would call “resolution,” either accidentally (because Microsoft’s lawyers were not programmers), or, more likely, because the obfuscation makes it that much harder to search.
The patent uses "pixel density" to refer to the physical size of the pixels on a display. This is a fairly common term, with over five million results in a Google search. I've used the same phrase myself for over 10 years with the same meaning.
http://en.wikipedia.org/wiki/Pixel_density
"Pixels per centimeter (ppcm), Pixels per inch (PPI) or pixel density is a measurement of the resolution of devices in various contexts: typically computer displays, image scanners, and digital camera image sensors."
Of course here we can see where the terms get a bit confusing: "...pixel density is a measurement of the resolution..."
But display resolution these days usually refers to the number of pixels, not their physical size:
http://en.wikipedia.org/wiki/Display_resolution
"The display resolution of a digital television, computer monitor or display device is the number of distinct pixels in each dimension that can be displayed."
Advertisements and spec sheets almost always use "resolution" this way, for example the MacBook Pro specs on Apple's site:
"Supported resolutions: 1440 by 900 (native), 1280 by 800, 1152 by 720, ..."
Forgive me if this seems like nitpicking, and I completely agree with Joel's point here: patents often do use unusual terminology to obfuscate what they're talking about.
This just isn't a case of that. The patent is using the correct term, and it even does a very good job of explaining what it means:
> A particular characteristic of display components that may affect presentations rendered thereupon is the pixel density of the display component, such as a pixels-per-centimeter measurement. It may be appreciated that such characteristics may be independent of the size of the display component (e.g., two display components of the same size may present different pixel densities; conversely, two display components of different sizes may present the same pixel density) and/or the pixel dimensions of the display component (e.g., two display components displaying a presentation with a particular pixel dimensions may do so with different physical sizes).
[+] [-] Stratoscope|12 years ago|reply
> There is one true and important point in the article that isn't supported by the example given
I can't actually vouch for the "true and important" part. I must confess I put that in there to try to be nicer about what I was saying. :-) And it certainly seemed plausible enough that patents would be deliberately written in obfuscated language, I just can't say it's true or untrue from my own knowledge. I know pixels better than patents.
There's a great comment here that sheds some light on this:
https://news.ycombinator.com/item?id=6085888
In particular, there are reasons for some of the language that seems obfuscated. Read the comment for details and a lot of insight into patents.
Another interesting comment, with a link to a patent examiner's AMA:
https://news.ycombinator.com/item?id=6087057
(Of course there are interesting comments all up and down this thread!)
[+] [-] yummyfajitas|12 years ago|reply
How do I do so?
[+] [-] spolsky|12 years ago|reply
[+] [-] BHSPitMonkey|12 years ago|reply
[+] [-] ISL|12 years ago|reply
The same thing has happened to friends of mine; an undergraduate's summer research presentation may have betrayed patentable inventions. An effect of the 1-year prior art rule is to force researchers to keep mum about what they're doing and to generate greater numbers of incremental patents.
If you're interested in the free flow of information, using a researcher's own publications to kill patents may not help the cause.
Prior art from other work in the past? Bring it on!
[+] [-] kolektiv|12 years ago|reply
Companies like Akamai used to (probably still do) have image resizing proxies which took something like a multi-resolution TIFF file as part of their extended CDN features. I can't remember when I first saw that in action, but I'm sure it was pre-2011.
I'm also not sure why using a researchers own publications to kill a patent would be bad in your eyes. If you think something is really, truly patentable you'd keep it under wraps until you did so, as far as possible. If you only decided later, once you'd published research and people were productizing that research - and you then patented and sued them - well, that's exactly the kind of thing that should be stomped on!
[+] [-] seldo|12 years ago|reply
[+] [-] jacques_chester|12 years ago|reply
However, the 1-year grace period isn't available everywhere. The USA has it, for instance, but the EU doesn't.
IANAL, TINLA.
[+] [-] gbog|12 years ago|reply
[+] [-] SomeCallMeTim|12 years ago|reply
One a day would be less than a 1% reduction in software patents. We need to shut them ALL down.
[+] [-] option_greek|12 years ago|reply
[+] [-] mathattack|12 years ago|reply
[+] [-] chrisb808|12 years ago|reply
I'm kind of surprised this isn't happening already.
[+] [-] jacques_chester|12 years ago|reply
This is because that's how software development often proceeds. We start with the concrete problem, then notice a pattern that encompasses a class of concrete problems, then a pattern that describes a group of classes of problems and so on. Building abstractions is literally what we do as a profession.
Now, as Joel points out, the rational strategy is to take the highest-level, most abstract version of your invention to the patent office to see what will get passed in. So patent applications are written like matrioshka dolls, with a super general case on the outside, and progressively more concrete descriptions as you go deeper. Somewhere near the bottom is the original thing that started the ball rolling.
[+] [-] vishaldpatel|12 years ago|reply
[+] [-] praptak|12 years ago|reply
[+] [-] tempestn|12 years ago|reply
More generally, it seems logical to have the size of the penalty increase at a quadratic or even exponential rate, based on the number of rejected patents within a certain trailing time period[1], and scaled by the rejected/submissions ratio. So every rejection would carry a penalty, but the more that were rejected (both in total and as a percentage), the larger the penalty would be, at an increasing rate.
It might also be an idea to do this with individual claims as well as, or even instead of, entire patents, to also deal with the overly broad claims problem.
[1] Or even for all time, but with a weighting factor based on recency. Wouldn't want to get overly complex though.