

24 Claims of Lodsys '565 Patent Rejected - vizsladriver
http://www.groklaw.net/article.php?story=2011101614244373

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dpcan
How interesting.

Google was bashed for taking so long to respond, and for not backing their
developers on the cases, etc. It turns out, they were taking their time
preparing to fight the patents and invalidate them, and in the end, it may be
their attack on the patents themselves that saves the day for developers on
all platforms.

~~~
RexRollman
I still believe that Google could have done a better job of communicating with
developers and the community. But this is good news indeed.

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greatreorx
Note that this is a Non-Final action - which I believe means that Lodsys has
not had a chance to respond. In general reexaminations take a long time...

"Based on our calculations, it takes more than 3 ½ years (43.5 months) for the
average case to proceed through the basic reexam process to a final
conclusion... A 95% confidence interval suggests an average pendency for
appealed cases (again, assuming no rework) is between 5 and 8 years"
[http://271patent.blogspot.com/2008/05/another-critical-
study...](http://271patent.blogspot.com/2008/05/another-critical-study-on-
inter-partes.html)

This is to the point where I'm not sure the courts take reexaminations
seriously as a defense. In the handful of patent cases I've paid attention to,
the fact that a patent was initially rejected in a reexamination had little
impact on how the court proceeded with a case. While it's possible the USPTO
will fast track this particular case, if I was a developer currently being
sued I would not have any confidence that the USPTO will bring any relief
before I was due in court.

~~~
dctoedt
> _I'm not sure the courts take reexaminations seriously as a defense._

That generally depends in part on how far along the court case is when the
reexamination request is filed.

On one hand, federal judges want to keep their cases moving; they themselves
are judged by the peers (reputationally only; they have life tenure) in part
by their average time to final disposition. If an accused infringer files a
reexamination request in the USPTO just as its infringement case is about to
go to trial, the chances are the judge might order the trial to proceed
anyway.

On the other hand, a reexamination proceeding could make a case go away, or
even just narrow the triable issues significantly. That would free up the
judge and his or her law clerks to work on other cases.

And random factors can make a difference. I once had a judge fast-track a
patent case about programmable thermostats. He did so because one of his law
clerks that year had his undergraduate degree in electrical engineering. The
judge wanted to finish the case while that law clerk was still around to help
him. The law clerk informed me and the other side of this at the first case
management conference; he also noted for the record that my law firm had
turned him down the previous year when he applied for a job with us; ouch ....
(The case settled soon afterwards for unrelated reasons.)

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binarymax
There is an interesting question in the comments...one of the patent claims
specifies incrementing a counter - so is decrementing the counter instead a
valid workaround?

EDIT: thinking more about this, what if you pushed/popped them with a stack,
or FIFO'd them with a queue. Seems there are various ways around the increment
semantics.

~~~
pyre
Semantics. Are you decrementing the counter by a positive number, or
incrementing it by a negative number?

~~~
xenophanes
Yeah that's the point. Sometimes semantics distinctions matter to the law. So
can you just decrement by a negative number to get around it, legally?

~~~
nobody314159
Semantics especially matter in patents. There is a famous historical case
where a patent specified a horizontal beam - since you can never have a
perfect horizontal beam in a real machine everyone was free to break it.

It's why every second word in a patent is "substantially"

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andrewljohnson
So, does Lodsys (actually they are just a shell for Intellectual Ventures)
still have firepower left, or is this the end of the game?

~~~
ajross
The actual court case will drag on forever I'm sure. But their ability to
force a settlement seems pretty badly hurt. It's much easier for a corporate
legal department to take a wait-and-see approach, waiting for a resolution
here. The perceived risk is lower.

~~~
andrewljohnson
One college student running an app ("69 Positions") already caved.

Unfortunately, it sounds like Lodsys still has most of what it needs to lean
on the indie developers - the fact that the devs simply can't afford to pay
for defense.

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6ren
Which claims have not been rejected?

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TruthElixirX
Can someone explain dependent and independent claims to me?

~~~
tzs
An independent claim stands alone. For example, if you had invented the
bicycle, an independent claim might look something like this:

    
    
       1. A device for transportation consisting of two
       wheels joined by a frame on which one or more
       passengers sit.
    

A dependent claim depends on an another claim. Here's an example that depends
on the above independent claim:

    
    
       2. The device of claim 1 where one of the wheels is in
       the front of the vehicle and one of the wheels is in the
       back of the vehicle.
    

Note how it starts with claim 1, and then further refines it.

Here's an example of a dependent claim depending on another dependent claim:

    
    
       3. The device of claim 2 where the front wheel is mounted
       in a turnable fork for steering the vehicle.

~~~
nobody314159
The important part being I could still have a patent on the steering even if
the first 2 claims are denied.

It's very common in patents to only really have invented the last claim - all
the previous claims are thrown out but the last one stands. It's partly an
easy way of getting all your points across logically and partly a tactic of
having some ground to give up in a legal battle

