
IAmA Patent Examiner on reddit - bane
http://www.reddit.com/r/Android/comments/ww982/iama_patent_examiner_i_want_to_answer_questions/
======
jedbrown
One of my biggest complaints about the current state of patents is that it
reverses the process of innovation. I have not heard of anyone reading
existing patents to get new ideas for software. Instead, we invariably _invent
first_ , usually oblivious to the existence, or not, of relevant patents. Then
we search (or are informed) that our new product falls within the scope of an
existing patent and decide whether to license it or _iteratively re-invent_ to
find a solution that does not infringe.

Consider the various compositions of linked lists that are patented
(<http://www.google.com/patents/US7028023>), any of which would be casually
"re-invented" by any competent developer. The USPTO should give the world more
credit for "obviousness". I propose that the closure of established concepts
under the algebra of established compositional operations shall be considered
"obvious", in which case we can all go about applying those compositional
operations without worrying about stumbling over patented combinations.

------
bitdiffusion
Just had a browse through and although these particular patent examiners are
obviously smart, software is not their area.

If you are looking for answers as to how some of the ridiculous patents manage
to get through the patent office (including patents for software concepts that
engineers are likely to consider "obvious" or for which there is likely "prior
art"), you are unlikely to find the answers here.

~~~
chime
I agree. While he is doing his best to answer the hard questions (instead of
avoiding them outright), his answers are not very satisfactory. See this
thread:
[http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...](http://www.reddit.com/r/Android/comments/ww982/iama_patent_examiner_i_want_to_answer_questions/c5h0r4x)

Whenever someone defends software patents, I bring up Amazon's one-click
patent. It's so obvious! I use the one-click-checkout feature on Amazon all
the time and dearly miss it on every other website out there. Imagine if Pizza
Delivery sites or Flower Delivery sites had that feature. People would order
things a lot more if they didn't have to go through extra screens to confirm
things every single time. The funnel gets smaller as the number of steps rise.
And now one company has a patent on short funnels.

~~~
ceol
I think he did a decent job answering. However, /r/Android is being needlessly
confrontational and cynical.

For instance, this question from your linked thread:
[http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...](http://www.reddit.com/r/Android/comments/ww982/iama_patent_examiner_i_want_to_answer_questions/c5h21br?context=3)
was answered satisfactory. There is a difference between

 _"a plurality of heuristic modules, wherein: each heuristic module
corresponds to a respective area of search and employs a different,
predetermined heuristic algorithm"_

and

 _"searching different sources of data wherein you search each with a method
that makes sense for its contents"_

But the replies from random commenters and vote totals would have you believe
the opposite.

~~~
doomslice
I wonder how important the actual wording is vs what appears to be the intent
on what the patent covers.

To me (and I know I'm simplifying just like the random commenters you speak
of), the patent is _intended_ to cover 1. performing heuristic searches on
multiple areas (modules) 2\. using a different search on each area

However, it uses the word "predetermined" when defining the heuristic
algorithm to use for each area. If my code randomly picks between two slightly
different heuristics (even with a very low probability), would it still be
covered under the patent?

Also it says "heuristic algorithm" meaning singular algorithm. If I ran 2
algorithms in parallel (even one that always returns no results) and then
chose the "better" of the two, would that get around the patent too?

Are patents vulnerable to this sort of work-around due to subtle
interpretations of wording, or is it really the intent of the patent that
matters?

~~~
joe_the_user
How important is the wording: _You can't normally just claim an obvious
extension without evidence. We have to provide prior art for every limitation
in a claim, and every word must be considered within a claim._

It seem every last adjective counts.

 _"In order to jump to an obvious argument, you'd have to prove this device
reads on all the limitations minus the unlock image that is slid. Then you'd
have to show something else that uses an image to unlock something. Then you'd
have to provide rationale why the combination between the two things would
have been obvious at the time of the invention, in this case 2005."_

In other words, obviousness might seem, uh obvious as a defense for most this
stuff. But actuality it's categorically dismissed with the "you can't prove
it" argument. Plus the "but was it obvious in 2005, _with phone_!" (lovely to
see those so-and-so's trying to wiggle out of that one but essentially coming
back to it).

------
robomartin
If I read them correctly the whole business of deciding if something is
obvious is seriously broken in that it seems to be limited to combining claims
from existing patents. This, of course, isn't even close to what "obvious"
means to those "skilled in the art".

I, like many others, have run across so many patents that should not have been
issued at all. This isn't limited to software. There are examples across
disciplines, like the guy who got a patent for running wires inside clothing
to connect devices or the company that got several patents on using pulse-
width-modulation to control the intensity of LEDs to mix colors or most
software patents.

In hardware I have seen lots of patents that cover the exact same thing. I
have seen patents for things that don't work. And, patents for things that I
knew had been available or done prior to the filing date.

I call these "implementation" patents rather than true inventions. The term
refers to the fact that a modern skilled engineer or team of engineers would
be more than capable of coming up with that or a myriad of other
implementations when given a problem to be solved. That's what engineering is
all about. Many engineers across time and distance are able to solve similar
problems and end-up with similar solutions. This is what we are trained to do.
This is also the part of the human and other animals: the use of our brains to
solve problems.

It seems that the patent system ought to be reformed in such a way that the
rules recognize who we are, what we are taught, what we do, what we are
capable of and, in general, the fact of knowledge acceleration.

Today it should be exceedingly hard to receive a patent on just about
anything. Patents should be reserved for true invention and not
implementation. Today's environment is such that there's so much distributed
knowledge across so many disciplines that most "inventions" that are patented
are really cases of someone choosing a solution to a problem (not inventing
one) and then hiring an attorney to try and monopolize it. Case in point: The
Apple "slide to unlock" patent. Someone chose that solution from available
knowledge. No sane person would suggest that this qualifies as an invention by
any possible imaginative stretch. This was a UI decision that the lawyers at
Apple got a patent for. They got a patent for, effectively, the analog of a
mechanical slide switch made to look nice, nothing less. Not an invention, but
they have a patent to say otherwise.

I am not against patents. I am against the granting of patents for non-
inventions. Today the granting of a patent should almost be so rare as to make
national news. Just a few per year. In fact, they should be rarer and rarer
with time, to the point that those granted the few patents that should make it
through the system per year would be invited to the White House to receive a
Presidential Innovation award or some such thing.

It only stands to reason that, as technology advances, there will be less and
less true inventions per year. Part of the problem was alluded to on the
reddit thread: the USPTO makes money and Washington takes it away. Fix that
and you might just fix the system.

Maybe the patent review process should be open to anyone. Yes, your
competitors, anywhere in the world, get to examine and weigh-in. If an
invention passes such a test it is probably deserving of a monopoly for twenty
years. This also means that someone will really think hard before spilling all
the beans in front of the entire world. Only a true invention, where other
engineers go "This guy deserves a patent for this!" should be granted patents.
And rightly so.

~~~
hristov
"If I read them correctly the whole business of deciding if something is
obvious is seriously broken in that it seems to be limited to combining claims
from existing patents."

Obviousness is not based on existing patents only. It is based on anything
that is published before the relevant date. Thus, examiners should and
sometimes do use all kinds of different publications to determine obviousness.
But the problem is that the patent office is accustomed to do prior art
searches based on existing patents. Thus, internally the PTO is set up to
favor prior art searches based on patents rather than other publications. This
generally makes sense for other slower moving fields of technology (e.g.
mechanical devices, farming equipment, etc.) or for fields where everything
gets immediately patented (biotech) but it makes no sense in software.

Another problem is that software was considered generally unpatentable until a
landmark supreme court case in 1995. At that time people started filing for
software patents and the patent office was generally set up to mostly use
patents as prior art searches. Well, there were no software patents then,
because software was not patentable until then. The unsurprising result was
that a lot of very obvious software patents got through.

Thus, my pet theory on software patents is that there is nothing inherently
wrong with them, they were just not correctly administered by the PTO. If the
USPTO hires proper competent computer scientists as examiners and encourages
the searching of all available prior art, then we would get much fewer and
much higher quality software patents.

And I do agree with your idea of opening the review process. The pto is trying
to make tepid steps in that direction but they are obviously scared of a flood
of comments that may happen if they open up the gates and them having to pay
examiners to evaluate every single comment from every crazy person on the net.

~~~
jedbrown
Journal editors don't have time to personally review every submitted
manuscript, yet that peer review process is relatively successful. Journals
generally do not compensate reviewers (though I have been compensated for
reviewing book proposals---in the form of my choice of free book from the
publisher). In any case, what if the patent examiner selected a small number
of experts in the _specific_ field and sent the proposal out for review, along
with some compensation for quality reviews (positive or negative). A senior
USPTO examiner makes on the order of $100k/year
(<http://usptocareers.gov/Pages/Misc/SalaryRates.aspx>) and spends 1-3 days
reviewing each application. After overhead, that's more than $500-$1500 in
personnel expenses per patent. What if, after an initial filter, the
application was sent to three experts at $200 each. It seems like this could
keep the costs similar to what they are now, but dramatically reduced the
number of false negatives for prior art.

