

USPTO open to public comment on what can be patented - TallGuyShort
http://www.uspto.gov/news/pr/2010/10_35.jsp

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corruption
I have no problem with _any_ patents assuming they are truly innovative. The
biggest problem with patents is that the non-obviousness step is almost
ignored from my experience.

What they need is a way to determine whether an invention is an obvious
extension or not. I suggest they do this probabilistically. Let's say it's a
non-obvious idea if only 1/100 skilled practitioners would come up with it
given the generic problem statement. Then it's easy to test. This would
increase the cost of patents (a good thing imho) and dramatically decrease the
number of spurious patents.

The interesting thing would be what proportion of inventions would qualify
under this scheme. I have a feeling very few.

~~~
NinetyNine
The biggest problem with software patents is a limited solution space. For a
poor example, implementing text rendering on a graphics card is something
which you can very easily formulate three attempts and measure which one works
best against common criteria (sharpness, speed, etc). Once the best solution
is patented, it's very unlikely anyone else will be able to use this
technology (particularly in situations where the patent is a small part of a
larger package, say, an operating system) and they will be forced to settle
into the second best-fitting solution.

~~~
corruption
You know, an even better method might be for the problem statement to be open
to the public. People could then submit their solutions, and if no one came up
with the same idea then it's patentable.

This way if it truly is something with a massive inventive step, then people
can get the patent. If it's something as simple as what you describe, then
there's no way it would be patented in the first place.

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Hoff
Software patents don't parallel hardware patents sufficiently closely.

When you are granted a hardware patent, most everything a competent competitor
needs to reproduce the invention is directly in the patent.

With software (algorithm) patents, that's rather less the case.

If you were to more closely parallel the hardware model and if you wanted to
encourage the public good, then the grant of a software patent would escrow
full source code, and (when the patent lapses) that same full source code is
then available for use by others.

And yes, I'm looking straight at the One Click patent here.

~~~
mseebach
So why would source code for the "One Click" patent make any difference? It
would take be all of ten minutes to make a perfectly functional implementation
of "one click shopping" in an open source PHP cart which I could submit with
the patent (or a day to build a simple cart from scratch if the open source-
part is a problem). How would that make the patent less viable?

Or are you arguing that only specific implementations could be patented? That,
if we allow the premise of software patents in the first place, doesn't make
any sense. Then we'd need measures to determine how much to change before it's
not the same. I mean, to keep with the example of hardware patents, I'm sure a
patent for a new crankshaft would also cover if it's 5% larger and made of a
slightly different alloy.

Re-implementing in an other language? What if it compiles to the same VM code?
Then I'm getting the the business of generating and selling unique JVM
languages. A new language for implementing the core of a competing algorithm?
$1500, thank you.

~~~
Hoff
Why?

Because it (also) places indirect costs and additional onus onto the submitter
of the patent; costs beyond the existing filing fees and legal fees.

Because it also provides (some) tangible results for the community. (Now
whether the covered source code is judged "good" or "bad" is another matter;
there's certainly going to be some cases and some judgement required here
around what's covered code, and whether or not the code is obfuscated, etc.)

Because it means all of the patent-covered source code eventually gets exposed
and licensed, which then gives an advantage to the community.

Because even if your organization doesn't produce a product (and for whatever
reason), you still have to produce functional source code.

And because it means that most closed-source organizations probably won't
choose to patent their software.

~~~
mseebach
In your post you referred prominently to the one-click patent. I fail to see
how your proposal would have even slightly curtailed that patent.

> Because it (also) places indirect costs and additional onus onto the
> submitter of the patent;

A developer for a day, as I demonstrated.

> Because it also provides (some) tangible results for the community.

> Because it means all of the patent-covered source code eventually gets
> exposed and licensed

An implementation of an obvious process isn't a tangible, or even particularly
valuable, result, as any member of the community could produce it in very
little time.

> Because even if your organization doesn't produce a product (and for
> whatever reason), you still have to produce functional source code.

No, you just have to throw a $500 project on e-lance. Or about what you pay
the lawyer who's writing the patent for you every hour.

> And because it means that most closed-source organizations probably won't
> choose to patent their software.

No, at best it would keep the stuff that's actually patent-worthy from being
patented (and thus "out there", inspiring others, which is the whole idea
behind patents), while the obvious crap gets patented (what does Amazon have
to lose from spending a day writing a simple PHP cart?)..

~~~
Hoff
This scheme makes patents part of adding to open-source, and also uses the
comparative "allergy" that many commercial entities have to open source.

The folks seeking patents will have to decide if they want the patent enough
to open-source their covered source code (later). Various firms certainly
won't want that. Those that do go for the patents will then serve to produce
open-source code.

But if you don't think it'll work or if you have a better idea, cool. Post
away...

~~~
mseebach
Code that's provided as part of a patent is tainted beyond reproach, and can
never be part of free software.

> But if you don't think it'll work or if you have a better idea, cool. Post
> away...

Can we please not go to this level? I did not understand how your proposal
would work. Pointing this out does not obligate me to have a better idea.

~~~
Hoff
Source code is not tainted beyond reproach after the patent expires in the
existing patent system, though the source code does reverts to whatever
copyright the producer might have.

Source code that's been patented under the proposed system becomes open source
at the expiration of the patent; the covered source code or the escrow source
code becomes open source code under the proposed system.

Pointing these details out can be quite useful; it definitely helps refine
ideas or elevator pitches.

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aniket_ray
Patents are an incentive given to inventors to reveal their inventions and not
keep them as trade secrets ( reason for patents from the perspective of the
state).

Using this as a guiding principle, a patent should be granted only to those
products that use an idea which has not been successfully replicated after
some period of time.

Say if a product/service uses an idea and has been in the market for 2-3
years. If the idea adds to the greater good of the society and has not been
replicated by anyone else yet; such ideas should qualify for the incentive of
patents.

~~~
nickpinkston
Make no mistake: patents are monopoly rights given to justify R&D.

The "revealing" doctrine is largely obsolete. Modern patents say virtually
nothing of how a invention works that can't be found by easily in a product
description - or at most cursory reverse engineering. The true secret-sause is
kept behind closed doors.

However, more and more it appears the societal value of patents isn't
realized, and in fact the majority actually decrease competition and research
in a field.

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protomyth
I guess I would prefer simple rules instead of a value judgement. I would
probably go with no patents on math, business processes, or software. Allow
design patents on icons, UI elements, etc. this whole "patent a concept, not
the specific implementation" is BS.

~~~
nickpinkston
Amen on no math/process/software patents, but I'd have to say that the design
patents alluded to in your comment are just as subjective as any used today.
The legal criteria of the "casual observer" sounds just like the "I know it
when I see it" use with porn.

~~~
protomyth
I don't think so. Either something is one of those categories or its not. The
design patent part is pretty straight forward in its application (ornamental
aspects of object) and can't be used as a back door to replace a utility
patent. It doesn't generate the drama of any of the above categories.

~~~
nickpinkston
I wasn't implying that it's used like utility patents - just that it's very
subjective whether someone is infringing - just like OP was describing.

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SkyMarshal
How about this: All fucking patent tro, er non-practicing entities, must die.

Or more politely, patents should require that at least some of the 90%
perspiration required for discovery/innovation be done by the entity
requesting the patent.

Patenting pure knowledge with no attempt at implementation, or buying such
patents and suing those who try to implement them, incentivizes the lazy, and
hinders the kids in the garage/lab/hackerspace building the next HP, Apple, or
Google.

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CamperBob
Here's an idea: only let people patent stuff that other people aren't likely
to arrive at independently as soon as they're faced with the same problem.

Of course, since I can't put "Esq." after my name or "Congressman" in front of
it, I don't expect this advice to be taken very seriously when I submit it to
the USPTO.

~~~
cromulent
I think it's funny that US lawyers use this antique English term.

Anyway, if you trust Wikipedia for legal advice, maybe you can use "Esq.".

<http://en.wikipedia.org/wiki/Esquire>

"In short, the situation is that those who are in situation where questions
might arise about their possession of an active law license ... should be
careful about using "Esquire" or any other designation that might lead to
confusion. For others, the problem simply does not exist. Someone who never
went to law school, never practiced law, and has a career unrelated to the
legal profession (such as selling ice cream), will not be mistaken for a
lawyer and can call himself "esquire" to his hearts content."

