Why on earth i did not have read anywhere about USPTO officials return a letter to this so called patent troll with simple reply: "Explain this pattern in layman language."
USPTO officials should have the power to inquire pattern applicants about their pattern until complete understanding, not to work alone and try to understand it by them self. It is hard to understand something technical, and it is utmost difficult to try understanding technical stuff with only 'lawyer' language as interface.
The fact is, many of this pattern applicant try to hide their 'Obviousness' of their pattern behind lawyered up and jargon filled language that proven to be hard to understand and open to misinterpretation.
Worse, patent obfuscation is baldly contrary to the purpose of patents, which is to make the knowledge contained in them available to the public.
Were someone to start a startup where users got paid-by-the-view for making educational videos, that would not be too far off from the original intent of patents.
The problem is deeper. The USPTO just does not want to ask further questions.
The reason: It is funded from granted patents. If patents are not granted, the funds are down. And no director will like it to say at the end of the year, that US companies are less innovative than in the last year -- or worse, less innovative than ... (name a country).
They sort of do. Each patent has both a description, written in more or less understandable terms (and often including diagrams) and the claims, which is what the post references (e.g. "a system or method ..."). The point of the legalese in the claims is to explicitly define the boundaries of the patent. By way of analogy, imagine if you had to describe the boundaries of a piece of land you owned, but the land wasn't a regular shape and you couldn't rely on a map.
Agreed! A huge part of what you can do to help is just parse the legalese into human language, so that any knowledgable person can see right through it.
I do not know what jurisdiction the author is referring to when listing the requirements for a "good patent." But in the US novelty and non-obviousness are just two of the five requirements for a "good patent." The other three are just as important:[1]
Those are the official requirements. In real life, only #3 prior art is of any use in disqualifying any software patent.
1. Patentable subject matter. The Supreme Court declared that algorithms are not patentable in Benson (1972) and Flook (1978). The Court of Appeals for the Federal Circuit (the patent court) reversed the Supreme Court rulings completely by 1994's Alappat decision. Since then, very, very few especially egregious patents are rejected on subject matter grounds.
2. Utility is usually trivial to prove. If you're using it, it has utility.
4. (unmentioned) Invalidity on the basis of obviousness is a dead letter under CAFC precedent. The Supreme Court attempted to revive it in 2007's KSR v. teleflex, but the CAFC has overruled the Supreme Court on 35 USC §103 (the obviousness law). You pretty much need a single published public prior reference reciting or clearly suggesting every element in the claim to argue obviousness, which is exactly what you need to argue anticipation under 35 USC §102 (prior art).
5. Enablement is assumed to be automatically satisfied in software patent cases by 1997's Fonar precedent by the CAFC:
“As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed.... Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software."
Also consider University of Pittsburgh v. Varian (CAFC 2014) where the CAFC decided that 3D computer vision imaging of people and articulated human movement is trivial and obvious post-solution activity that need not even be described or considered part of the claims on a medical imaging patent. The function of human motion detection is entirely covered by mentioning the two steps that particular spots will be tracked and then motion inferred. It's literally that bad.
If it sounds to you like the CAFC is waging an undeclared war on software, you may be right.
I think, for the sake of his challenge (to find one good software patent granted in the last year), he is allowing the challenger to assume that those three other conditions are fulfilled simply because they would be much harder to argue about.
I posted a similar comment in the author's post, but I figure I'll post it here too in case anyone finds it useful.
----
I sympathize with the author's belief that many software patents are obvious, but as a practicing patent attorney I just want to point out a couple of things:
1. The patent claim copied in the post is from a published application, not a patent. It is common to file an application with broader claims, and then to narrow those claims during the process of getting the patent. Thus, art that you find based on that claim may not actually disclose or render obvious a claim that eventually issues in a patent. It is important to look at the history of the application to see how the published claim has been amended at this point.
2. Obviousness is judged as of the time of invention or application filing. Because hindsight bias is very difficult to avoid, the patent office relies on actual art that was disclosed before the invention date. The art generally must teach each and every limitation of the claim. I submit that a “photo album that groups your photos by the time they were taken” would not teach all of the limitations of the claim in the post.
I'd submit that "obviousness" relates not to the general concept of the solution, but to the implementation of it, something that's absent from virtually every software patent out there. The hindsight bias is an important factor, but only at a very abstract level.
For example, RSA encryption is conceptually simple and fairly obvious (prime factors of large numbers, of course!), but the implementation is exceedingly tricky. Patenting RSA does not preclude people from patenting other encryption methods, but it would if the patent covered "prime factor-based encryption".
It would be a lot better if a patent application was rejected until a workable implementation was described, one that included enough detail to verify that it was a viable solution to the problem. No code, no patent.
For example, if the patent being reviewed here included a specific way of encoding the date and time with the photograph to facilitate some kind of easy sorting, then patenting that specific, non-obvious (e.g. proprietary) method wouldn't be so disruptive.
Whilst we're being pedantic (are we ever not?) that construction doesn't present a dichotomy it's just a more lyrical way of saying "I like killing patents".
Filing a patent application costs around $180-$280 [1], not including the other Patent Office fees for Examination/Maintenance. Add onto that the legal fees for marking up the claims, charged out in the $XXX/hr range and you are looking at a few thousand easily.
A quick search turned up a 2011 American Intellectual Property Law Association survey suggesting a median cost of $10k [2].
Having in house legal team to take care of it may reduce the costs but Patent Office fees still make it at least a grand to get one. If the community can chip in a few hours to crush the patent then I would think it is time well spent.
It costs the companies quite a bit, and a reasonably knowledgable person about 10-15 minutes to find prior art that, once discovered by someone at the USPTO, can help to fast-track a denial. In any case, you're at least helping to make sure that none of the ridiculous claims get through (these are common in patents, just to see if they can get away with it since they're already spending the money)
The cost is much higher than the filing fee. You should usually plan to spend about $20k to hire a patent attorney to help get a patent filed. If you are doing this yourself you can keep the cost much lower, and try to do all of the work yourself, but a company usually spends tens of thousands of dollars getting a patent filed.
At Boston University they have an office of about 5 people that evaluates university generated IP to see if it is worth patenting and if their market research doesn't show that it is worth $50k over the next few years they won't bother.
I like to think about how the world would change if patenting was not generally done. Rather, anyone could copy and implement everyone's ideas. How would this look in the grand scale? I think it's possible to discover a way of coexisting in such a world. Anyways, I agree with the author, patent killing is fun.
The problem I see with that is a return to keeping a lot of inventions secret.
As the rate of industry has increased the patent term hasn't altered and this seems wrong to me, it should be shortened IMO (though I might make exceptions for some fields). The basic premise of exchanging complete disclosure of an invention for a limited time monopoly is still valid and useful.
Yes a world without patents could work but small time inventors would find it nearly impossible to get a financial benefit from their inventions. Lots of R&D would be wasted repeating things the kind of which previously had been disclosed in patent documents.
The government, via the patent office, is selling a monopoly on technology. If someone writes a frivolous application the patent office usually takes the money and grants it.
Does the author think the patent office gives refunds ? There is no incentive for them to stop granting bad patents. While this situation persists, it makes financial sense to apply for a patent if you think you can get it.
It's a self perpetuating cycle; it's easy to get a patent -> many people apply -> there are too many applications to examine thoroughly -> more people apply -> etc.
Killing patents, as the author suggests, is a waste of time. The USPTO is not going to be more rigorous when checking patent applications. The proper solution is to make it very easy to strike down bad patents and stop accepting them in the first place.
>There is no incentive for them to stop granting bad patents. //
The problem actually doesn't lie with the USPTO specifically, it lies with the entire legal system.
The patent is the applicant's. They should need a patent that's guaranteed as much as possible to be valid. It should be that them getting a patent that's not valid means they can't use that patent for anything. They should therefore be closely allied with the patent examiner who is trying to "grant patents with a high degree of validity" (that's the UKIPO patent groups motto, or it was several years ago). They also want to get the broadest monopoly possible, that's the counterweight, but if it's granted so broadly as to be easily anticipated by a document that a skilled proponent in the field can find in 15 minutes of searching then the patent should be worthless.
All those shoulds depend on the legal system. Can a malevolent patent holder badger people and profit without a valid patent. If they couldn't then you'd be fine as they'd always want the best out of the examiner - make sure they' know all relevant prior art, make sure there's enough support in the description, etc. - to be as sure as possible they had a valid and hence useful patent to litigate with.
You have to make it highly costly to attempt to litigate with an invalid patent. Make the game-theoretic outcome favour working for good patents rather than just getting any rubbish patent and profiting from it.
You are implying that the US patent office is a profit oriented organization. Even if this is practice, it should be possible to fix that, no?
Also I disagree with that it's a self perpetuating cycle. It is only self perpetuating if your reaction to more applications is being less rigorous. Almost every organization in the world, no matter if it is profit or non-profit, gets more rigorous the more * applications come in.
Somehow you are right but I think the root cause is something else.
"The proper solution is to make it very easy to strike down bad patents ..." isn't this exactly what the author is trying to do? The author states that he uses StackExchange to "respond to requests for prior art that invalidate an overly-broad patent." Sounds like you two agree.
> There is no incentive for them to stop granting bad patents.
I disagree.
a: If they are currently overrun with more work than they can handle, they can remedy this by refusing patents, thereby discouraging frivolous applications. Having done so, they can become a more efficient organisation.
b: Fees for continuations, amendments and extending response deadlines can be larger than the fee for simply issuing the patent.
c: As a Government entity, they have an interest in making as much money as possible change hands (and therefore attract tax). One way to do this is to occupy the applicants' lawyers with remedial work.
Although the example cited in this article seems pretty obvious on what we have, for all we know (a) it is the very first example of time-sorted photos and (b) there could be further context in the article saying that the analysis is done by reference to specific features, such as assessing movement across a field of view (rather than by reference to a timestamp, which is what seems to be implied).
Who is to say this isn't novel? Seems to me it could be a very helpful technology to sort unsorted old photographs or analyse scraps of cctv footage .
That is just an example, but the major problem is that with AskPatents you will always be looking at these applications in a different context to the context in which they were written. The mere fact that something is being read can tend to make it more obvious, when actually at the time it was dreamt up it could have been quite a leap.
Also, the fact that you are reading the patent some time - up to a year - after the original grant means that it will be read in context of the state of the art today. By the time a patent is published its invention probably in common usage already.
All this tends to bias towards a finding of 'obviousness'. Even finding something close that was previously in use doesn't preclude obviousness - it just means that the inventive step is smaller than otherwise thought. If the reader already has an inherent bias against software patents in principle, this will only compound the problem.
There are several significant legal concepts specifically geared to avoiding that mental bias. They are there for a reason, and could be eroded by poor application. That would have a negative effect for any inventor.
Maybe we should consider whether software patents are necessary at all? There are disciplines where the core content is not itself patentable (or "intellectually protectable"), primarily because obviousness is hard to prove. The most accessible examples are food recipes and fashion designs - how do you demonstrate that a specific recipe has never been conceived of in the past? For disciplines that rely on the assembly of existing ideas, this actually seems like the rational thing to do.
Alternatively: can you think of any software patents that make sense to you?
Pharmaceuticals are both one of the best and worst patent examples. It costs a company millions of dollars to develop, test and get approval for a new drug. A patent makes this expensive gamble worth while for the company by guaranteeing that they are the only ones who can sell the drug that they spent the money to develop.
I read patents as patients. It's weird how verb selection biases our reading of the object, falsely triggering our intrinsic capabilities for auto correction.
I included a full language specification with my patent application. Reading boring specifications can also be a drag, so I even wrote a version that sorts information by color. Its all available on http://mailmarkup.org/
If you are aware of any prior art please do the right thing. I have not been able to find any, but that does not mean it doesn't exist.
Why is it with patents everything has to be nothing ever, never a good reason? I'm sure my perspective here might get this downvoted to oblivion, but really, think for a second what would happen if tomorrow, no software was patentable? Why would a large company focus any effort on R&D, new idea development, vs investing that money in just ripping off the competition and scaling it better? (not that that ever happens as is..) There are lots of us that make our living designing or developing things that some business or shareholder wants developed simply because they want to be the ones that did it, or did it in a way no one else could steal.
I don't think zero patents for software is a great idea, but I also don't think the lawyerization of patents has helped anyone long term. Perhaps a better approach is to get actual developers and software professionals in patent approval/dispute resolution positions? A parallel to that might be the advent of the Test Engineer or the Dev Ops positions. Test Engineering showed the world the value someone with development skills could have over classic point and try to break testing, just as Dev Ops showed what having some dev chops does for deployment/network infrastructure.
There are no software patents in Europe. I've seen nothing to suggest that European software companies are less competitive. In my daily work as a developer I've not once heard anyone talk about the competition 'stealing our ideas'.
The reason I think software patents are a net negative is that it's the sum of the parts that make a software product valuable. Patenting some of the algorithms used to develop this software product is not going to protect you from the competition in any meaningful way.
Contrast this with pharma where the end-product is simple, often a single easily reproduced compound.
When the software business was young, software was not patent-able at all. And that was good so, because if it where in the same degree as today, I guess we all would still have DOS on our desktops or worse.
Just think, quicksort would have been patented. Or binary trees, or arrays.
The horror scenario that you give is just a bad example that could have been constructed by patent attorneys.
Of course you can not just rip-off the software of a competitor, because the software itself is copyrighted.
We all are profiting from the fact, that many things in the software world are just not patented. Because in the knowledge world and more so in the software world, nobody just sits on his island and makes something totally new ... everybody depends on the work of others.
The patent system taken to extreme: Only a handful companies dominate the market and nobody else can do anything anymore. As much I understood, in the hard disk business we have this situation already -- three to five big corporations dominating the market, because they own the key patents.
But what kind of patent infringement cases and/or notable patent avoidance in computing do we actually see in practice? Off the top of my head:
- patent trolls, lots and lots of patent trolls, throwing around patents for things like in-app purchases and SSL
- Samsung and Apple throwing random patents at each other and mostly not accomplishing anything
- file systems - FAT LFN, exFAT
- machine instruction sets
- video codecs
- ClearType
Out of those examples, the first two are clearly awful, and the second two are pretty bad because they prevent compatibility/competition. The last two are relatively OK - with video codecs patent uncertainty is very damaging, but as long as we're hypothetically revamping the system we can fix that.
But the last two are also pretty unimportant compared to the software industry as a whole; keeping or abolishing them wouldn't make a huge difference to anyone other than MPEG LA. I'll make a bit of an extrapolation and claim that after factoring out undesirable use of software patents, the same would apply to abolishing them entirely: there would be little effect, because patents never effectively prevented ripoffs in the first place. Yet in the present, plenty of companies focus plenty of effort on R&D. Why they'd do so without patents is the same as why they do so today: most significant functionality takes a lot of time and work to implement, so being first is a large competitive advantage.
I guess we're not restricted to looking at what's currently patentable; if you really wanted to discourage ripoffs, you could expand the patent system along those lines at the same time as weakening the current system. But personally, today's patents are dangerous enough that any thought of expansion really scares me.
I think zero patents for software is a good idea. At least it's better than leaving the situation as is. May be there are better ways of fixing the current mess (something more generic, than simply carving software out of patentability, since such singled exceptions make the law more complicated), but I didn't see practical proposals.
"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."
Note that according the US Constitution the most important reason for the existence of patents & copyright is the promotion of science & art. If the net result of the patent system is not promoting science & art, it is not operating as intended. Certainly there will be winners and losers under any scheme, but in my experience the current setup is a net drag on innovation. Making buckets of money by being first and being innovative is reward enough to incentive progress. These days most companies filing for patents are doing it defensively anyway.
Patents don't really work in software because a patent is supposed to be a temporary monopoly on a method of implementing something, and in software there's always more than one way to implement something. A patent on, for example, "enabling the user to buy something with one click" is far too broad - it covers any implementation on a relatively trivial idea. That's the fundamental problem with patents today - at some point they switched from being protection of a process for making something to "idea copyright". Now, the broader you can make your patent the more money you'll reap from it.
Patenting an algorithm, if it's truly non-obvious and hasn't been done before is fine in my opinion. The R&D dollars should still be spent, but spent on things that move humanity forward and not nonsense like buying a monopoly on "a process people have done for decades, but on a computer!"
With almost anything else, what you really need isn't the idea, but the factory to make the idea. You could tell me everything there is to know about making a Ferrari, but the likelihood that I could build a factory that could replicate Ferrari's is relatively small.
Now look at software. The "factory" can be obtained for free by going to a public library. As such, I'd argue that 1) the broadness of many of the patents that already exist is ridiculous, and was earned by nothing more than a rudimentary understanding of programming and 2) the relative likelihood that you're going to have a TRULY novel idea is lower due to the size of the population and amount of collaboration inherent in programming.
On top of all that, you don't see "first, invent a programming language that allows me to do all this neat stuff." They're already building on so much groundwork that they don't understand, it's sort of belittling the achievements of the people who truly created NEW things in computer science, to say that rounded corners on a texting app or whatever deserve a monopoly that could crush other applications.
What would happen with the demise of software patents is an explosion of creativity, no longer bridled by the threat of shady actors (ab)using their patents to extract money from those who create.
The only net loss would be for the legal profession. Less money to the lawyers, less money to the patent office. More money to the rest of the economy. Like the parable of the broken window, money going to these actors is actually money lost to the economy. These actors do not create value, they only consume. In other words, the software industry would be rid of a parasite.
[+] [-] robotys|12 years ago|reply
USPTO officials should have the power to inquire pattern applicants about their pattern until complete understanding, not to work alone and try to understand it by them self. It is hard to understand something technical, and it is utmost difficult to try understanding technical stuff with only 'lawyer' language as interface.
The fact is, many of this pattern applicant try to hide their 'Obviousness' of their pattern behind lawyered up and jargon filled language that proven to be hard to understand and open to misinterpretation.
[+] [-] dropit_sphere|12 years ago|reply
Were someone to start a startup where users got paid-by-the-view for making educational videos, that would not be too far off from the original intent of patents.
[+] [-] PythonicAlpha|12 years ago|reply
The reason: It is funded from granted patents. If patents are not granted, the funds are down. And no director will like it to say at the end of the year, that US companies are less innovative than in the last year -- or worse, less innovative than ... (name a country).
[+] [-] andrewfong|12 years ago|reply
[+] [-] beepp|12 years ago|reply
[+] [-] dfc|12 years ago|reply
[1]: http://www.law.cornell.edu/wex/patent
[+] [-] WildUtah|12 years ago|reply
1. Patentable subject matter. The Supreme Court declared that algorithms are not patentable in Benson (1972) and Flook (1978). The Court of Appeals for the Federal Circuit (the patent court) reversed the Supreme Court rulings completely by 1994's Alappat decision. Since then, very, very few especially egregious patents are rejected on subject matter grounds.
2. Utility is usually trivial to prove. If you're using it, it has utility.
4. (unmentioned) Invalidity on the basis of obviousness is a dead letter under CAFC precedent. The Supreme Court attempted to revive it in 2007's KSR v. teleflex, but the CAFC has overruled the Supreme Court on 35 USC §103 (the obviousness law). You pretty much need a single published public prior reference reciting or clearly suggesting every element in the claim to argue obviousness, which is exactly what you need to argue anticipation under 35 USC §102 (prior art).
5. Enablement is assumed to be automatically satisfied in software patent cases by 1997's Fonar precedent by the CAFC: “As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed.... Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software."
Also consider University of Pittsburgh v. Varian (CAFC 2014) where the CAFC decided that 3D computer vision imaging of people and articulated human movement is trivial and obvious post-solution activity that need not even be described or considered part of the claims on a medical imaging patent. The function of human motion detection is entirely covered by mentioning the two steps that particular spots will be tracked and then motion inferred. It's literally that bad.
If it sounds to you like the CAFC is waging an undeclared war on software, you may be right.
[+] [-] pak|12 years ago|reply
[+] [-] unknown|12 years ago|reply
[deleted]
[+] [-] scromar|12 years ago|reply
----
I sympathize with the author's belief that many software patents are obvious, but as a practicing patent attorney I just want to point out a couple of things:
1. The patent claim copied in the post is from a published application, not a patent. It is common to file an application with broader claims, and then to narrow those claims during the process of getting the patent. Thus, art that you find based on that claim may not actually disclose or render obvious a claim that eventually issues in a patent. It is important to look at the history of the application to see how the published claim has been amended at this point.
2. Obviousness is judged as of the time of invention or application filing. Because hindsight bias is very difficult to avoid, the patent office relies on actual art that was disclosed before the invention date. The art generally must teach each and every limitation of the claim. I submit that a “photo album that groups your photos by the time they were taken” would not teach all of the limitations of the claim in the post.
[+] [-] astrodust|12 years ago|reply
For example, RSA encryption is conceptually simple and fairly obvious (prime factors of large numbers, of course!), but the implementation is exceedingly tricky. Patenting RSA does not preclude people from patenting other encryption methods, but it would if the patent covered "prime factor-based encryption".
It would be a lot better if a patent application was rejected until a workable implementation was described, one that included enough detail to verify that it was a viable solution to the problem. No code, no patent.
For example, if the patent being reviewed here included a specific way of encoding the date and time with the photograph to facilitate some kind of easy sorting, then patenting that specific, non-obvious (e.g. proprietary) method wouldn't be so disruptive.
[+] [-] rowyourboat|12 years ago|reply
Neither. You just like false dichotomies.
[+] [-] pbhjpbhj|12 years ago|reply
Am I evil, or is pedantry just plain fun?
[+] [-] zalzane|12 years ago|reply
i wonder if uspo would be interested in licensing it if it was effective enough
[+] [-] vishaldpatel|12 years ago|reply
[+] [-] elliotanderson|12 years ago|reply
A quick search turned up a 2011 American Intellectual Property Law Association survey suggesting a median cost of $10k [2].
Having in house legal team to take care of it may reduce the costs but Patent Office fees still make it at least a grand to get one. If the community can chip in a few hours to crush the patent then I would think it is time well spent.
[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm [2] http://www.quora.com/Whats-the-average-cost-of-a-software-pa...
[+] [-] beepp|12 years ago|reply
[+] [-] chrisBob|12 years ago|reply
At Boston University they have an office of about 5 people that evaluates university generated IP to see if it is worth patenting and if their market research doesn't show that it is worth $50k over the next few years they won't bother.
[+] [-] Fando|12 years ago|reply
[+] [-] pbhjpbhj|12 years ago|reply
As the rate of industry has increased the patent term hasn't altered and this seems wrong to me, it should be shortened IMO (though I might make exceptions for some fields). The basic premise of exchanging complete disclosure of an invention for a limited time monopoly is still valid and useful.
Yes a world without patents could work but small time inventors would find it nearly impossible to get a financial benefit from their inventions. Lots of R&D would be wasted repeating things the kind of which previously had been disclosed in patent documents.
[+] [-] robotys|12 years ago|reply
[+] [-] lyndonh|12 years ago|reply
The government, via the patent office, is selling a monopoly on technology. If someone writes a frivolous application the patent office usually takes the money and grants it.
Does the author think the patent office gives refunds ? There is no incentive for them to stop granting bad patents. While this situation persists, it makes financial sense to apply for a patent if you think you can get it.
It's a self perpetuating cycle; it's easy to get a patent -> many people apply -> there are too many applications to examine thoroughly -> more people apply -> etc.
Killing patents, as the author suggests, is a waste of time. The USPTO is not going to be more rigorous when checking patent applications. The proper solution is to make it very easy to strike down bad patents and stop accepting them in the first place.
[+] [-] pbhjpbhj|12 years ago|reply
The problem actually doesn't lie with the USPTO specifically, it lies with the entire legal system.
The patent is the applicant's. They should need a patent that's guaranteed as much as possible to be valid. It should be that them getting a patent that's not valid means they can't use that patent for anything. They should therefore be closely allied with the patent examiner who is trying to "grant patents with a high degree of validity" (that's the UKIPO patent groups motto, or it was several years ago). They also want to get the broadest monopoly possible, that's the counterweight, but if it's granted so broadly as to be easily anticipated by a document that a skilled proponent in the field can find in 15 minutes of searching then the patent should be worthless.
All those shoulds depend on the legal system. Can a malevolent patent holder badger people and profit without a valid patent. If they couldn't then you'd be fine as they'd always want the best out of the examiner - make sure they' know all relevant prior art, make sure there's enough support in the description, etc. - to be as sure as possible they had a valid and hence useful patent to litigate with.
You have to make it highly costly to attempt to litigate with an invalid patent. Make the game-theoretic outcome favour working for good patents rather than just getting any rubbish patent and profiting from it.
[+] [-] blablabla123|12 years ago|reply
Also I disagree with that it's a self perpetuating cycle. It is only self perpetuating if your reaction to more applications is being less rigorous. Almost every organization in the world, no matter if it is profit or non-profit, gets more rigorous the more * applications come in.
Somehow you are right but I think the root cause is something else.
[+] [-] justincpollard|12 years ago|reply
[+] [-] frobozz|12 years ago|reply
I disagree.
a: If they are currently overrun with more work than they can handle, they can remedy this by refusing patents, thereby discouraging frivolous applications. Having done so, they can become a more efficient organisation.
b: Fees for continuations, amendments and extending response deadlines can be larger than the fee for simply issuing the patent.
c: As a Government entity, they have an interest in making as much money as possible change hands (and therefore attract tax). One way to do this is to occupy the applicants' lawyers with remedial work.
[+] [-] noisy_boy|12 years ago|reply
[+] [-] esquivalience|12 years ago|reply
Who is to say this isn't novel? Seems to me it could be a very helpful technology to sort unsorted old photographs or analyse scraps of cctv footage .
That is just an example, but the major problem is that with AskPatents you will always be looking at these applications in a different context to the context in which they were written. The mere fact that something is being read can tend to make it more obvious, when actually at the time it was dreamt up it could have been quite a leap.
Also, the fact that you are reading the patent some time - up to a year - after the original grant means that it will be read in context of the state of the art today. By the time a patent is published its invention probably in common usage already.
All this tends to bias towards a finding of 'obviousness'. Even finding something close that was previously in use doesn't preclude obviousness - it just means that the inventive step is smaller than otherwise thought. If the reader already has an inherent bias against software patents in principle, this will only compound the problem.
There are several significant legal concepts specifically geared to avoiding that mental bias. They are there for a reason, and could be eroded by poor application. That would have a negative effect for any inventor.
[+] [-] wudf|12 years ago|reply
[+] [-] DonGateley|12 years ago|reply
[+] [-] gmisra|12 years ago|reply
Alternatively: can you think of any software patents that make sense to you?
[+] [-] bovermyer|12 years ago|reply
I'm genuinely curious.
[+] [-] chrisBob|12 years ago|reply
[+] [-] unknown|12 years ago|reply
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[+] [-] krishnasrinivas|12 years ago|reply
[+] [-] seanmcdirmid|12 years ago|reply
[+] [-] robotys|12 years ago|reply
[+] [-] chris_wot|12 years ago|reply
[+] [-] blueskin_|12 years ago|reply
[+] [-] JOnAgain|12 years ago|reply
[+] [-] austincheney|12 years ago|reply
If you are aware of any prior art please do the right thing. I have not been able to find any, but that does not mean it doesn't exist.
[+] [-] bbarn|12 years ago|reply
I don't think zero patents for software is a great idea, but I also don't think the lawyerization of patents has helped anyone long term. Perhaps a better approach is to get actual developers and software professionals in patent approval/dispute resolution positions? A parallel to that might be the advent of the Test Engineer or the Dev Ops positions. Test Engineering showed the world the value someone with development skills could have over classic point and try to break testing, just as Dev Ops showed what having some dev chops does for deployment/network infrastructure.
[+] [-] Expez|12 years ago|reply
The reason I think software patents are a net negative is that it's the sum of the parts that make a software product valuable. Patenting some of the algorithms used to develop this software product is not going to protect you from the competition in any meaningful way.
Contrast this with pharma where the end-product is simple, often a single easily reproduced compound.
[+] [-] PythonicAlpha|12 years ago|reply
Just think, quicksort would have been patented. Or binary trees, or arrays.
The horror scenario that you give is just a bad example that could have been constructed by patent attorneys.
Of course you can not just rip-off the software of a competitor, because the software itself is copyrighted.
We all are profiting from the fact, that many things in the software world are just not patented. Because in the knowledge world and more so in the software world, nobody just sits on his island and makes something totally new ... everybody depends on the work of others.
The patent system taken to extreme: Only a handful companies dominate the market and nobody else can do anything anymore. As much I understood, in the hard disk business we have this situation already -- three to five big corporations dominating the market, because they own the key patents.
[+] [-] comex|12 years ago|reply
- patent trolls, lots and lots of patent trolls, throwing around patents for things like in-app purchases and SSL
- Samsung and Apple throwing random patents at each other and mostly not accomplishing anything
- file systems - FAT LFN, exFAT
- machine instruction sets
- video codecs
- ClearType
Out of those examples, the first two are clearly awful, and the second two are pretty bad because they prevent compatibility/competition. The last two are relatively OK - with video codecs patent uncertainty is very damaging, but as long as we're hypothetically revamping the system we can fix that.
But the last two are also pretty unimportant compared to the software industry as a whole; keeping or abolishing them wouldn't make a huge difference to anyone other than MPEG LA. I'll make a bit of an extrapolation and claim that after factoring out undesirable use of software patents, the same would apply to abolishing them entirely: there would be little effect, because patents never effectively prevented ripoffs in the first place. Yet in the present, plenty of companies focus plenty of effort on R&D. Why they'd do so without patents is the same as why they do so today: most significant functionality takes a lot of time and work to implement, so being first is a large competitive advantage.
I guess we're not restricted to looking at what's currently patentable; if you really wanted to discourage ripoffs, you could expand the patent system along those lines at the same time as weakening the current system. But personally, today's patents are dangerous enough that any thought of expansion really scares me.
[+] [-] shmerl|12 years ago|reply
[+] [-] krschultz|12 years ago|reply
Note that according the US Constitution the most important reason for the existence of patents & copyright is the promotion of science & art. If the net result of the patent system is not promoting science & art, it is not operating as intended. Certainly there will be winners and losers under any scheme, but in my experience the current setup is a net drag on innovation. Making buckets of money by being first and being innovative is reward enough to incentive progress. These days most companies filing for patents are doing it defensively anyway.
[+] [-] onion2k|12 years ago|reply
Patenting an algorithm, if it's truly non-obvious and hasn't been done before is fine in my opinion. The R&D dollars should still be spent, but spent on things that move humanity forward and not nonsense like buying a monopoly on "a process people have done for decades, but on a computer!"
[+] [-] beepp|12 years ago|reply
Now look at software. The "factory" can be obtained for free by going to a public library. As such, I'd argue that 1) the broadness of many of the patents that already exist is ridiculous, and was earned by nothing more than a rudimentary understanding of programming and 2) the relative likelihood that you're going to have a TRULY novel idea is lower due to the size of the population and amount of collaboration inherent in programming.
On top of all that, you don't see "first, invent a programming language that allows me to do all this neat stuff." They're already building on so much groundwork that they don't understand, it's sort of belittling the achievements of the people who truly created NEW things in computer science, to say that rounded corners on a texting app or whatever deserve a monopoly that could crush other applications.
[+] [-] Yetanfou|12 years ago|reply
The only net loss would be for the legal profession. Less money to the lawyers, less money to the patent office. More money to the rest of the economy. Like the parable of the broken window, money going to these actors is actually money lost to the economy. These actors do not create value, they only consume. In other words, the software industry would be rid of a parasite.