

A Math Geek's Ride to the High Court in Landmark Patent Fight - grellas
http://www.law.com/jsp/article.jsp?id=1202435264768&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20091109&kw=A%20Math%20Geeks%20Ride%20to%20the%20High%20Court%20in%20Landmark%20Patent%20Fight

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modeless
_"Our revenues are down millions of dollars because we don't have the patent"
and the royalty stream that would have resulted, he said. "We have no market
power. That's the essence of it. You can't protect your interests." He said
competitors have entered the market, and utilities themselves have "reverse-
engineered" WeatherWise processes_

You mean you can't get a government-backed monopoly on your product, so you
actually have to _compete_?! With _competitors_ who charge _lower prices_?!
Cry me a river.

~~~
ovi256
With competitors that do not have their liability of having funded years of
research to advance the field, but have simply copied the idea after, often by
reverse-engineering, as the TFA states.

~~~
jacquesm
Which is proof positive that it does not warrant a patent, since apparently
having access to the input and the output data is enough to re-create the box
in the middle.

Besides that, such a big fuss over being able to 'bill a constant amount'
month-to-month, it really is nothing but a business method, no matter how
intricate the computations behind the scenes.

It's a convenience at best, and one that I would assume would be re-creatable
by any number of mathematicians given the assignment.

~~~
timwiseman
_It's a convenience at best, and one that I would assume would be re-creatable
by any number of mathematicians given the assignment._

But just about any patentable idea is recreatable by experts in that field if
they are given that assignment. I do not claim to know whether or not this
particular patent should have been granted, but I do not see why the fact that
it can reverse engineered should be relevant.

~~~
jacquesm
Reverse-engineering and writing a spec is one of the ways you can legally get
around trade secrets and copyright infringement claims, so if the patent does
not stand it is very relevant indeed.

Clean room development is usually (but not always) not enough to get around a
patent though.

~~~
timwiseman
I must be misunderstanding something.

I know that clean room implementation has been used to avoid trade secret and
copyright claims, but that seems to have little relevance in this case. If
anything, it seems to somewhat show the need to have a patent protect
developments like this.

~~~
jacquesm
I think it argues the exact opposite, if your device can simply be reverse
engineered by observing the inputs and outputs then it shouldn't be
patentable.

That means you can treat it as a black box without any knowledge of what is
going on inside and produce an identical black box with a possibly completely
different implementation on the inside.

These guys are essentially trying to patent something that can be expressed as
a mathematical formula, and in my opinion that should not be possible.

Reduce it to an absurdity, imagine the patent on 'Pi' or a patent on calculus.
Does it seem 'right' to you that such a thing should be patentable ?

If any group of mathematicians skilled in the art could come up with it that
alone should have been grounds for dismissal, just being the first should not
give you an automatic entitlement.

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timwiseman
This very much makes me think about the line: "One thing I do feel pretty
certain of is that if you're against software patents, you're against patents
in general. " from <http://www.paulgraham.com/softwarepatents.html> . While it
sounds like this dispute is more about the mathematical algorithm, that is
very little different from software, and while the article never explicitly
stated it I very much suspect they put their algorithm into machine code.

Things like this make me almost think I should be going into law. This will
truly matter to a large number of companies, and probably more so to start ups
than to larger more established companies that already have market share.

~~~
tomjen2
PG is wrong on the subject of patents though: the problem with software
patents is that if you are building a car the price of having a lawyer work
out if you are violating a couple patents is a lot less than 1%, but it would
properly make it many thousand times more expensive for a startup to develop a
piece of software (assuming that we don't count the founders time).

And unlike physical patents it costs nothing to produce the software once the
innovation has been made, so there is no need for a small guy to have
something to sell to a big company to ensure the innovator is getting
something for his efforts.

~~~
timwiseman
_PG is wrong on the subject of patents though: the problem with software
patents is that if you are building a car the price of having a lawyer work
out if you are violating a couple patents is a lot less than 1%, but it would
properly make it many thousand times more expensive for a startup to develop a
piece of software (assuming that we don't count the founders time)._

PG has said in other essays that it often makes sense for a startup to not
worry about whether what they are trying to do until they are sued. If they
are still tiny it is unlikely they will be sued even if they are infinging,
and if they are large then they will have the resources to either defend
against the suit or make a reasonable settlement.

But that is a practical matter. None of that changes the fact that it borders
on logically inconsistent to argue for patents of machines while against the
patenting of algorithms (and a program is nothing but an algorithm that has
been properly formatted).

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anonjon
This whole debate kind of seems like a livelock with no obvious solution.

If you make patents too powerful, you get people 'patent trolling' and
producing a lot of vague patents with no intentions of implementing/putting to
use/selling the IP involved; instead hoping to be able to sue someone for
violating it.

If you make patents too weak, people invest heavily in reverse engineering
instead of innovation/invention and take other people's ideas and make money
off of them.

I find this to be a very frustrating and disheartening position to be in.

I almost think that there is something wrong with the idea of patents (not the
idea of intellectual property) because it seems that they fail at both ends of
the spectrum with regards to protecting people who actually produce useful
things for our society and continue to push us forward.

~~~
sp332
Isn't reverse engineering also protected against by patents?

~~~
grellas
Yes, it is.

The patent system is predicated on the idea of disclosure (indeed, the very
word "patent" derives from a Latin word meaning "open"). The idea is that
inventors will add their innovative knowledge to the public domain, for which
they will receive a temporary monopoly on its commercial exploitation.

Most proprietary software is protected by trade secret laws, which are
vulnerable to reverse engineering. Patented software is not, since it has
already been disclosed in the public record and is nonetheless protected
during the term of the patent by virtue of its monopoly status.

