
Am I evil, or is killing patents just plain fun? - beepp
https://inventropy.us/blog/is-killing-patents-just-plain-fun/
======
robotys
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.

~~~
dropit_sphere
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_.

~~~
wyager
>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.

What makes you say that this was the "original intent" of patents? I've never
seen anything to suggest this. See the U.S. Constitution:

"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;"

Sounds like, even back then, it was more about incentivizing innovation by
granting monopolies.

~~~
chc
It explicitly requires that there must be time limits. That isn't required if
all you want to do is reward innovation. The time limits are required because
the ultimate purpose is to enrich everyone, which means that everyone gets
access once the inventor has gotten a fair shake. For patents in particular,
it is well-established in the law (though poorly followed in practice) that a
patent ought to serve as a guide to replicating the invention, with the
inventor being assured that no one can do so without his permission until the
patent expired.

~~~
bad_user
Unfortunately the time limits are useless if they are allowed to grow them
indefinitely. In the US, the copyright length has extended from 14 years (with
another renewal for 14 years) to life + 70 years. There's nothing fair in Life
+ 70 years.

On patents - they were meant to replace the need for trade secrets,
unfortunately most patents that pass these days is for things that can be
replicated without looking at the patent's application. And while I understand
somewhat the need for patents in the health-care industry (only to a certain
extent, since on the other hand access to quality health-care should be a
basic right), the situation we are in is completely ridiculous.

In the end, the inventor already benefits by being first to market and a
patent is only morally justified if the research costs were too big, allowing
the inventor to recover those costs in the face of potential competition that
may replicate the results and for which those costs weren't an issue. On the
other hand, if patents would disappear tomorrow, I'm pretty sure that people
would still go on, building and inventing things. So the benefit to society at
large is questionable.

------
dfc
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]

    
    
      (1) patentable subject matter
      (2) utility
      (5) enablement
    

After slogging through the language of a lot of patents you start to wonder
how so many of them were deemed to meet the enablement requirement.

[1]:
[http://www.law.cornell.edu/wex/patent](http://www.law.cornell.edu/wex/patent)

~~~
WildUtah
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.

~~~
gamblor956
_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). _

The CAFC is subordinate to SCOTUS, and cannot "overrule" a SCOTUS decision.
Consequently obviousness is very much alive.

The CAFC can try to ignore or "distinguish" a SCOTUS decision on flimsy
grounds, but SCOTUS has repeatedly overruled the CAFC when it has tried to
overstep its bounds.

~~~
WildUtah
I refer you to the awful and smart patent troll promoter Gene Quinn:

"How long will it take the Federal Circuit to overrule this inexplicable
nonsense? The novice reader may find that question to be ignorant, since the
Supreme Court is the highest court of the United States. Those well acquainted
with the industry know that the Supreme Court is not the final word on
patentability, and while the claims at issue in this particular case are
unfortunately lost, the Federal Circuit will work to moderate (and eventually
overturn) this embarrassing display by the Supreme Court. This will eventually
be accomplished the same as it was after the Supreme Court definitively ruled
software is not patentable in Gottschalk v. Benson, and the same as the ruling
in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge
Rader’s statements that nothing has changed in Federal Circuit jurisprudence
as a result of KSR, which is not technically true. What is true, however, is
that the Federal Circuit continues to refine the KSR “common sense test,”
narrowing the applicability in case after case and tightening the ability for
“common sense” to be used against an application. We are almost 5 years post
KSR and there is still a lot of work left to be done by the Federal Circuit to
finally overrule the Supreme Court’s KSR decision. It took almost 10 years to
overrule Gottschalk v. Benson, so we are likely in for a decade of work to
moderate the nonsense thrust upon the industry this morning."[0]

No court is subordinate to any other in the American system. Higher courts can
overrule lower courts, but cannot subordinate them or force them to follow
dictates or discipline judges. So-called precedent is an artificial social
convention among judges that the CAFC judges reject. [1]

The Supreme Court doesn't have the time or interest to assert itself against
the CAFC. When it does take a case, the Supreme Court often overturns
decisions unanimously and expresses frustration in its opinions, but that
doesn't mean the Supremes are about to start taking 50 or 100 patent cases a
year and making any real difference.

[0] [http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
pr...](http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
prometheus/id=22920/)

[1] [http://arstechnica.com/tech-policy/2012/09/how-a-rogue-
appea...](http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-
court-wrecked-the-patent-system/)

------
scromar
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.

~~~
astrodust
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.

~~~
scromar
I see general concept and specific implementation as being on a spectrum. If
an invention is sufficiently novel/nonobvious, I believe the inventor is
entitled to a patent on the general concept. However, if the invention is an
incremental advance, or in a crowded field, the inventor should only be
entitled to a patent on the narrower invention that is actually new, and
usually this is going to be a specific implementation.

This is not to say that a patent application should not describe the invention
in detail. The law requires that the patent application describe the invention
in sufficient detail that one of skill in the art would be able to
practice/implement the invention without "undue experimentation." This feels
like the right standard to me. I believe that a software patent application
that provides a functional description of the invention, even without code
showing a specific implementation, that would allow a skilled programmer to
implement the invention, should suffice. Whether that invention is
novel/nonobvious is a separate question. The broad idea may or may not be. A
narrow aspect of the idea may or may not be. You don't need actual code to
figure this out.

------
rowyourboat
"Am I evil, or is killing patents just plain fun?"

Neither. You just like false dichotomies.

~~~
pbhjpbhj
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".

Am I evil, or is pedantry just plain fun?

~~~
rowyourboat
Of course pedantry is fun. Somehow, the way the title is worded grates me.

It manages to imply that anybody who does not find killing patents "fun" is
evil. That's the false dichotomy: Either you find killing patents fun, or you
are evil.

------
zalzane
project idea: machine learning program that decrypts legalese to find similar
patents

i wonder if uspo would be interested in licensing it if it was effective
enough

~~~
PythonicAlpha
Maybe some clever patent attorneys already have the opposite. Some encryption
tool:

    
    
      <Obvious-little-Idea> => <Converter> => <Awesome-sounding-invention>

~~~
pbhjpbhj
In a way yes, it's called claims drafting.

One of the jobs of the patent attorney is to claim the widest possible area
that's supported by the invention disclosed in the application for a patent.
You don't have a calculator, but "calculating means" which could encompass
many different facilities - chemical, mechanical, electronic, quantum, ...

------
vishaldpatel
Does it cost a large company more to file a shitty patent than it does the
community to crush it?

~~~
elliotanderson
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.

[1]
[http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm](http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm)
[2] [http://www.quora.com/Whats-the-average-cost-of-a-software-
pa...](http://www.quora.com/Whats-the-average-cost-of-a-software-patent-in-
the-US/answer/Jordan-L-Walbesser)

~~~
alok-g
Keep in mind that this is the costs for filing in _one_ country. Each country
where the invention needs to be protected needs its own filing, though this
would generally be cheaper since much of the work (patent attorney fees) is
already done when filing the first one. I have heard that big companies end up
something half-a-million dollars for pursuing, what they consider worthy
inventions, in all significant economies.

~~~
analog31
A patent holder only needs to make your life miserable in one country. At one
place where I worked, we used to patent in:

1\. USA 2\. The main competitor's home country

------
Fando
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.

~~~
pbhjpbhj
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.

------
lyndonh
The author doesn't understand the patent system.

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_.

~~~
blablabla123
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.

~~~
lyndonh
> Almost every organization in the world, no matter if it is profit or non-
> profit, gets more rigorous the more applications come in.

They get more money from processing more patents. They don't get more money by
making sure the patents are better quality.

------
esquivalience
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.

------
wudf
Can you write off the time spent as a charitable donation?

~~~
hundt
no

edit: source:
[http://www.irs.gov/publications/p526/ar02.html#en_US_2013_pu...](http://www.irs.gov/publications/p526/ar02.html#en_US_2013_publink1000229698)

~~~
shkkmo
Wait, can lawyers write off pro-bono work? If so, why can't we?

Edit: They can't. However, if an employer were to pay you to work for a
qualified organization, they could write off that expense.

~~~
AnthonyMouse
Yeah, it kind of sucks, but think about it as: You work for the charity, they
pay you, then you donate the money you were paid back to the charity. The pay
and the donation cancel each other, and it works the same way when the pay and
the donation are both zero dollars.

------
DonGateley
Does anyone know when all this started? Who got the first software patent and
when?

~~~
netcan
Here's an interesting thought: What are the most fundamental inventions in the
history of computers that could have been patented? Turing machines?
Programing languages? User interfaces?

------
gmisra
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?

~~~
neolefty
Sure, but the site in question is about current law, which does allow software
patents. No doubt, many of the people working on invalidating them would agree
that they are unnecessary.

------
bovermyer
Could someone explain to me why patents are ever a good thing?

I'm genuinely curious.

~~~
chrisBob
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.

~~~
g8oz
I used to buy that argument till I read that they typically spend far more on
marketing and sales than R&D.

~~~
hackinthebochs
The difference is that marketing gives you a pretty steady ROI. Once the drug
is developed, there is little to no risk involved in spending billions
marketing a drug.

However, spending billions developing a drug without patent protection is a
massive risk since drugs are easy to make but extremely hard to find. It would
be trivial for a competitor to make the same drug at zero cost once its found
to be effective. In this scenario researching drugs almost certainly has a
negative ROI. Patents alter that calculation to make the endeavor worthwhile.

------
krishnasrinivas
I read "patents" as "parents"

~~~
seanmcdirmid
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.

~~~
krishnasrinivas
My auto correction was probably triggered by the adjective "evil" and yours
probably by the verb :-)

------
chris_wot
You are not evil, and killing patents is fun.

------
blueskin_
By definition, killing patents is good.

------
JOnAgain
Mis-read title as "patients"

------
austincheney
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/](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.

~~~
beepp
I have a few thoughts:

\- Your patent application is much more readable than most. That's a good
start.

\- hosay123 has already said basically what I would've - you may have found
something that no one else has done 100% before, but it is clearly very
similar to HTML in email with a few minor differences. Here are a few examples
that I think would bring both the idea's novelty and non-obviousness into
question:
[http://www.boutell.com/wusage/8.0/eml.html](http://www.boutell.com/wusage/8.0/eml.html)

[http://petewarden.com/2008/10/15/an-xml-format-for-
email/](http://petewarden.com/2008/10/15/an-xml-format-for-email/)

[https://www.google.com/patents/US7970842?dq=electronic+mail+...](https://www.google.com/patents/US7970842?dq=electronic+mail+markup+extensible+markup+language&hl=en&sa=X&ei=Y5JYU5CNJafe8AGa5ICwDA&ved=0CDUQ6AEwAA)

My question to you is: what will happen if you are granted this patent? You've
been working on this for 4 years at least, judging by the 2009 date on the
application, so my main argument would simply be that you could've probably
found a more interesting use for your time. It pains me to say this, since I
can tell you've spent a lot of time on your application, but honestly I would
feel worse if I didn't say anything.

~~~
austincheney
Regardless of whether or not the patent is granted I would like to create a
start-up to build a new transport medium. It would be nice to have an online
software platform built for automation and data integration above all else
that allows any data repository to become a possible publication point using
just URI addressing. I can see many possibilities that could arise from such a
thing, especially if the primary markup language is always immediately
accessible.

------
bbarn
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.

~~~
Expez
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.

~~~
PeterisP
European software companies do [ab]use patents widely - a historically
sensitive example is Fraunhofer institute (Germany) and patents on their
invention of the mp3 encoding methods; it brought significant revenue for
them, making them competitive; and the patent restrictions also had
significant effect on the music software&device market.

~~~
Expez
This is a good example. There is indeed nothing that prevents an EU based
company from filing for a software patent in the US (or other markets). This
particular patent has likely been so lucrative (~$100m in revenues) because
it's so easy to spot infringements.

