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White House responds to Patent Petition (whitehouse.gov)
206 points by tyw on Nov 1, 2011 | hide | past | web | favorite | 107 comments

What an incredible cop out. Basically this is an entire page of saying nothing. Nothing at all. He's not saying they are going to do something about the patent problem. He's not saying they aren't. He is just trying to inspire you without committing to anything...at all.

Saying nothing would be slightly better than the false promise that's actually there:

We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.

That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.

This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.

If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.

Have you actually read this document (http://edocket.access.gpo.gov/2011/pdf/2011-2841.pdf)? Because it gives clear guidelines applicable to new and existing patents. It DOES cover most issues raised against software patents. It CLEARLY provides means to defend against crap and broad patents. Meaning: unscrupulous lawyers and trolls WON'T be able to play on ambiguities anymore. Presumption of validity is worth zero against most cases covered by this document. Just read it, because it could put a smile of your face !!!

I had not read that. Thank you. Those guidelines, if followed, will address some issues with software patents, but not the problems I mentioned. This is understandable, because the problems I mentioned are intractable.

The key problem you mention, of not having enough specialist knowledge, applies to /all/ patents. Actually, like every other field, 99% of engineers will understand 99% of patents. The specialist areas are the small minority. I'm sure I can find 100 UI or web patents for every sound or graphics one... for instance. So I agree this is an intractable problem, but I disagree that its a serious one...

It's not a problem of understanding the patents. The problem is determining novelty and non-obviousness. There are so many open-source jQuery plugins coming out all the time that a web/UI patent's novelty is going to be very hard to determine. Similarly, this ongoing flood of progress will help give new ideas to ordinary skilled programmers, rendering lots of potential "inventions" obvious.

I still contend that this is a serious problem in a legal system that includes presumption of validity.

I only had time to briefly skim this, but I didn't catch anything about reforming the compensation system for patent examiners, which incentivizes the granting of patents without giving them sufficient review. Anyone else find any info of this nature in the PDF?

This is not the purpose of this document.

What are these incentives?

(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)

From what I've heard, it's combination of time restrictions for reviewing a patent and penalizing rejections that later get overturned when the applicant appeals the decision.

> We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.

So "new" and "non-obvious" weren't already requirements?? That explains a lot.

> So "new" and "non-obvious" weren't already requirements?? That explains a lot.

On the off chance that you weren't being ironic, novelty and non-obviousness (to one "skilled in the art") have been requirements for decades.

The author of "we've issued new guidance" is either playing you for a sap or doesn't know patent law.

> If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.

Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.

And yes, it was relatively easy to get the equipment and start making things.

From what I've seen this is how the response has been to every petition thus far. They basically give an overview about the topic and some historical information but really say nothing and promise nothing. It's the equivalent of setting a trashcan in your office and putting a sign on it that says "Complaint Department".

Yep. "If enough people care, we'll copy/paste a press release." But what else could we have expected? That they'll drop everything, gather the experts, and rethink the past N decades of policy just because enough people on the internet clicked a button? Just another reason that the type of mass democracy that people keep saying that the internet will bring won't work without some Big New Thing for how people interact. There are still too many people and too many ideas.

Would be humorous if this petition got the necessary signatures to get a response: https://wwws.whitehouse.gov/petitions/!/petition/actually-ta...

Thanks. It won't make any difference but I still love it.

Everyone please sign this petition. The sign up process sucks but it will be worth it to make the Obama spin machine have to respond to this.

It's not that hard for the Obama spin machine to respond to this. "Blah blah blah, of course we take all suggestions very seriously. In fact we have already done [something unrelated]. We thank you for your interest. Give us money."

Exactly. The UK government did this a few years ago, and every response amounted to "we're going to do it anyway".

The Obama administration is pretty much the Bush administration with better PR.

"He is just trying to inspire you without committing to anything...at all."

How out of character for the Obama administration.

"How out of character for any administration."

Fixed that for you.

Well, they clearly state in the response that the executive branch does not have the power to regulate what is patentable. I don't see that as really being a cop out. They legally cannot do anything about software patents.

This can only be handled by Congress. They say that. It's a perfectly reasonable response.

Hardly, nothing can become law without the president's signature, and Obama just signed a new patent bill into law.

Just as important, the president can use the power of his office as a "bully pulpit" to lead his party and the country on this critical issue.

And laws can't be written without Congress. That's the first step. Without Congress, there are no laws for Obama to sign. That's simply how the American government works. Sure, Obama just signed a patent bill into law - that does not give him the authority to change that law before he signs it.

Yes, I suppose Obama could start a push to change software patents, but frankly, there are more important things for him to deal with at the moment.

Congress makes legislation. That's only part of law. The judicial branch of government attempts to resolve ambiguities in the legislation. That's what the Supreme Court did in 1972 when they ruled in Gottschalk v. Benson that software for a general-purpose digital computer was not eligible material for patent protection. They were careful to say that Congress should really clarify this question, and that they weren't categorically saying no software could ever be patentable.

Congress has still not clarified this question. What should be followed is Supreme Court precedent, i.e. Benson, Flook, Diehr. Theoretically, that's the law until Congress says something different.

The word of the Supreme Court should be actual law, not just theoretical law. It's up to the executive branch to direct the USPTO to follow that law. Patents should be examined consistent with Supreme Court precedent.

Astonishingly, people have been known to disagree about what the Supreme Court's holdings mean. You keep bringing up the same set of cases, but I don't agree with your analysis. Why? Because it seems to me that some of the time you're relying on the SC's dicta rather than its holding, and only the holding really counts; and furthermore, you seem oblivious to questions about standards of review and so forth.

If the circuit courts were flouting the judgment of the Supreme Court as blatantly as you allege, how come the Supreme Court hasn't granted certiorari on a suitably iconic case and reiterated its judgment in even clearer terms? It's not like there is any rule that prevents that, a grant of certiorari only requires 4 justices to sign on.

I don't think the Supreme Court wants to reiterate its judgement in even clearer terms. They said even in Benson that they felt Congress should clarify the whole business.

I laid out clearly why I think what I think about Benson, Flook and Diehr in http://ourdoings.com/ourdoings-startup/2011-07-28 and I have yet to see a similar outlay of the arguments for an opposing view.

If I've neglected a question about standards of review, I apologize. Please repeat it.

We discussed this in September, but I just now see you left me another reply(though I don't think it alters the argument that much): http://news.ycombinator.com/item?id=3031449

I'm on my phone at the moment and don't really have the time to write a long article in any case; but in a nutshell I think you are making too many assumptions about the meaning of the SCs words without considering their meaning as legal terms of art.

> Congress has still not clarified this question.

I wasn't aware of that. However, I suspect that legally, Congress must clarify that before it comes into force as law. But I don't know, the Supreme Court is a funny thing. Good question for a lawyer...

A bill can actually become law without the president's signature. If the president does not sign it or veto it after Congress passes it, it becomes law eventually (IIRC). Also, congress can override a presidential veto. (I don't know if an executive decision could override that.)

Congress can override a presidential veto with a 2/3 vote of both houses. That cannot be overridden by executive power.

After 10 unsigned days, excluding Sundays, bills become law, unless Congress adjourns before the 10 days expire, at which point it is automatically vetoed—the so-called “pocket veto”: http://en.wikipedia.org/wiki/Pocket_veto

That's true. But, again, though - that requires Congressional action, and Congress is most decidedly not part of the executive branch of the US government. My point is that this is a Congressional (legislative branch) issue, not a Presidential (executive branch) issue.

This site cost him my vote. It was the last straw. It's clear that these are nonsense answers and it was just a waste of my time to participate in the process. I won't be voting for either major party in the coming election, but that still costs the Democrats a vote.

That is exactly what a good politician does, talk a lot while saying nothing. Of course, when its written down rather than being delivered in person by a smooth talker, its pretty obvious whats going on.

I like Obama (for the most part), but he is the king of this.

At town halls, even when he gets a coherent question, he'll go into "let me explain the situation to you rubes" for so long that when he's done talking he's only explained the problem and offered no solutions.

Many of the responses to other petitions are the same. A whole lot of words, nothing actually said.

It's common for politicians to sit on the fence, otherwise they risk alienating some of their voters.

They say things like (not a quote) 'we need to balance both sides' etc even when the idea is truly stupid.

Only a few politicians have some balls to make a decision upfront.

Politicians that "have some balls" stop getting elected to public office. Your comment is simply a less precise restatement of the Median Voter Theorem, which is very well known to political-economists.

It's almost like they think the country has bigger problems. Don't they know Sillicon Valley is the center of the universe?

Yep, Washington is dealing with lots of bigger problems http://www.cbsnews.com/8301-503544_162-20128587-503544/house...

The administration itself set the bar for how "big" a problem needs to be to warrant a response. It's reasonable to want a response with some actual content.

TL;DR - We heard you, we just didn't listen. We aren't changing anything. In case you didn't know, though, President Obama is awesome.

Yep. It makes me wonder if they would pay more attention if maybe a patent troll came after them (I know, I know... it won't happen). They are using Drupal for whitehouse.gov and I'm sure other open source tech as well. There's got to be something in there a patent troll could claim. Maybe the petition software itself. Someone's got to have a patent on allowing people to submit a post and allowing people to vote on it. Hmm...

I absolutely love this idea. Its easy to shrug something off when it doesn't affect you. Eating your own dogfood is an entirely different matter.

Maybe the petition software itself. Someone's got to have a patent on allowing people to submit a post and allowing people to vote on it.

Prior art?


1. patent troll sues them because drupal inflicts on the awesome-html© patent. 2. white house pays 3. white house sues we-use-open-source-corp for selling them a website project with patent problems

This is the third or fourth petition with a massive, lengthy non-answer I've seen pop up on the site. I'm generally an Obama fan, but this is just unacceptable.

Looks like it's time for a "Answer petitions with something meaningful" petition.

Is there a petition for "make login work so I can sign petitions?"

Maybe you should make one! Oh...

I spent 10 minutes trying to log in using Chromium. It half-way showed that I was logged in, but I couldn't actually sign a petition. Logging in with Iceweasel (Firefox), it worked immediately.

I couldn't sign the petition (two petitions actually) with Firefox.

The maddening thing is that I was already logged in (the telltale at the bottom said so), but the Sign button was disabled.

Sent a complaint.

And they'll answer that petition by pointing out that they've made petitions available.

And that was the story of how the second Declaration of Independence came to be...

I'd prefer a "stop pretending like you care about these petitions" petition.

I mean, it's neither practical nor desirable to have the White House do whatever someone can persuade 0.01% of the population to sign a petition for 'em to do. You can rustle up a hundred thousand people to agree with pretty much any stupid idea, nowadays. We'd be legalizing gay marriage one day, banning homosexuality the next, officially declaring that aliens exist on the third day, and adding a narwhal to the US flag on the fourth.

From the UK e-petitions website:

I love this one!


Check out the twitter account of the guy that wrote the statement:


You can tell it's really his by who he's following (The US Gov CTO, The Massachusetts AGO).


EDIT: Well, he appears to have woken up and deleted them, but his tweet stream was filled with weight loss and "make money from home" spam.

so, this is basically a "no" that funnels into talking points without actually saying "no". just like every other response to every other petition on that site that i've participated in.

My first thought was "well Asia and India will certainly be pleased". But that's not true. They don't care about our "intellectual property" at all. They'll just make. We just won't.

From what I've read in the petition responses, it seems to me the whole system is designed to spread information about what Obama has already done or positions he's already taken to a targeted group of people.

These "petitions" are only there to find out what a small portion of the electorate want to hear during the election season.

As mentioned elsewhere in these White House petition threads, clicking a button on a web form does not (yet) do anything to the political process.

It's more cynical than that. Like the vast majority of online petitions, they exist primarily to harvest email addresses.

Reasonable response, especially given the current legislative and judicial situation. USPTO doesn't have the authority to unilaterally cease issuing entire classes of patents when Congress and the courts have, so far, directed otherwise; what they can do, however, is seek to improve patent quality & decrease vague patents. I'm not sure how successful they will be, especially given funding issues, but this stance seems to be about as far as they can go at present. We need change to come from elsewhere, including the law schools (so lawyers get disabused of this notion that software + computer results in a new machine).

The response is entirely focused on self-promotion. If the administration was serious about fixing the current problem, they could do a number of things, from taking on a more serious legislative stance (as opposed to touting how great the current law is), to focusing on getting additional judiciary review and funneling support for getting rid of ridiculous patents.

When you say "Congress and the courts" the truth is "only the Federal Circuit Court". The Supreme Court of the United States' best interpretation of patent statute is that software for a general-purpose digital computer is not statutory material for a patent. See http://ourdoings.com/ourdoings-startup/2011-07-28

And now that the Fed Circuit in the Bilski case has backed off a bit from their flagrantly wrong In re. Alappat decision and its affirmation in State Street, one could argue that there isn't any court left claiming that software for general-purpose digital computers is patentable.

Until the SCOTUS decisively overturns Federal Circuit precedent, it counts as "the courts". Yes, it seems that the SCOTUS isn't pleased, and things are looking up, but current national precedent is that software is patentable. I believe this is based on some interpretation of congressional intent, and Congress has not stated that it does not consider software to be patentable but, rather, that in some cases at least it should be. I have seen this line of reasoning used in court decisions I have looked over.

I'm very interested in any citation related to apparent congressional intent that in some cases software should be patentable. Please share.

I'm also interested in arguments for or against the notion that the Federal Circuit overturned themselves in the Bilski case, affirmed by SCOTUS.

> I'm very interested in any citation related to apparent congressional intent that in some cases software should be patentable. Please share.

If memory serves, Kennedy's arguments in the SCOTUS decision in the Bilski case are based in part on apparent congressional intent. I don't have concrete citations to actual congressional activity; this impression is seeing it alluded to or asserted in decisions such as In re. Bilski. I'm making the assumption that the justices are not totally fabricating, although they may be misinterpreting.

I looked through http://www.supremecourt.gov/opinions/09pdf/08-964.pdf and couldn't find what you're referring to. If you find a more specific citation, please let me know.

There was a HNer who was looking into translating code into formulas. It's theoretically possible, and has a great outcome: Because mathematical formula aren't patentable. Does anyone know where that guy went?

I'm pretty sure there's another argument going around, that looks something like this:

    All software can be ported to Haskell.

    Haskell is isomorphic to a subset of math.

    Therefore, software is math, and is unpatentable.
Whether that argument holds, I don't really know. It's just something I've seen floating around out there.

'Patent 5,893,120 reduced to mathematical formulae':


Yep. That is exactly where I remember this from. Thanks for pointing it out.

Someone else has already given you the argument you wanted, I see, but here's more in the same vein.

Further explanation of the Haskell isomorphism you were talking about:

  *  http://www.haskell.org/haskellwiki/Curry-Howard-Lambek_correspondence
People who have written the axioms for math (technically, ZFC, if you know what that is) as a computer program, allowing automatic verification and the like.

  * http://us.metamath.org/
Finally, here two slightly more accessible explanations which do not employ the same isomorphism, but which try to explain the same idea.

Take special note of the second one, because it has a good explanation of what math is and many people seem to have math confused with whatever they happened to learn in math class.

  * http://www.groklaw.net/articlebasic.php?story=20091111151305785

  * http://www.groklaw.net/article.php?story=20110908075658894

It is a solid argument in some cases. Consider that software is written to solve problems - this directs the choice of math needed, and choosing math is essentially what invention is. The same applies with mechanical inventions, you apply physical theories (maths) to describe or make something - the problem with software is it is unfamiliar.

The example I like is the "Carmack's" reverse shadow algorithm which famously was patented. Its easy enough to invent - I remember thinking in passing and never following up that it could be done when first reading about the "classical" broken stencil shadow implementation. It is a consequence of trivial geometric observations, and the precise operations needed are so simple that there is pretty much one best way to implement it in-terms of an algorithm. "count how many times a ray cast /to/ the camera /from/ infinity enters or exits a shadow volume before hitting the front face of the object we are shading, odd means it is in shadow, even means it is not". sure we can use stencil buffers and xor to implement it efficiently, but its still very simple. Now if we compare it with, say, some cascading shadow map solution then we do have a simple algorithm in shadow mapping "cache the distance from the light to each point in buffer by rendering a z-buffer from the light's perspective, then use the light direction to reconstruct the distance from the light in the main render - if this distance is greater than the value in the buffer then we are in shadow", but the details of the implementation are much more variable - you have a whole choice of buffer types and layouts, rendering techniques etc. and the nature of the algorithm doesn't map well to hardware making for odd things like bias and slope on depth reads/writes. In short they are much more complicated - I think they are probably patentable because the chance of me coming up with that if asked to find some shadowing algorithm with no prior knowledge is extremely low - mostly because it is a very hardware specific approach which makes no sense unless you have z-buffers etc. The Carmack approach is conversely doable on pen and paper by hand very easily... having a patent on it is madness imo because it equates with trivial, intuitive geometry that I'd bet most programmers who never heard of the problem can reinvent on the spot...

You don't need Haskell in particular btw all code is maths owing to lower level things (CPU instructions) - you don't need to convert it to anything for this argument to hold. i.e. All software is isomorhpic with a subset of math.

Its trivial to do this. This is how computing works to begin with o_0, the translator is called a compiler and the subset of math with which the relations are described is machine code...

I don't think it's a cop-out. It just explains (probably correctly) that a petition is not a good medium for expressing the problem and talking about possible solutions. There is a link http://www.uspto.gov/aia_implementation to the place where this conversation is already underway, and which you are welcome to join in.

That's most definitely a cop-out, or more accurately "the run-around". It tells a pile of people who have already expressed their views to wander elsewhere and express them again, deflecting the original effort. That blunts the force of the original response. Oh, and the linked site wants public comments within the next week or two.

The site's been up for months. It seems like anyone who actually cares about the issue would have been able to find it by now, since it's on the USPTO home page, first link under the IP Law & Policy section. http://www.uspto.gov/

Not exactly on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'.

These petitions are like filing bugs against a software team that just doesn't have any interest in fixing the system.

Can anyone copy-paste it here? It doesn't load for some reason.

EDIT: It seems there's a non-JS version which works: https://wwws.whitehouse.gov/petition-tool/response/promoting...

It won't load for me till I turn off noscript completely. There isn't even a site I can give temporary permissions to, I have to turn it completely off.

How did they do this?

Wish I knew. Maybe a hidden flash object?

I should contact the noscript author and ask him to check.

lobbyists win again...

If only a group of wealthy individuals who were interested in improving our political process and decision making could form their own lobbying group...against lobbying!

I knew what the first two paragraphs of this response before I even clicked on the link. Whoever wrote it is an uncreative shill, at best. The institution of governing is old, crusty, and broken - and in serious need of disruption.

As we see around here, the best way to change the world is to build something that changes the world, not use government to use its citizens to change society at the point of a gun.

If you want to fix the patent system, build something that fixes the patent system.

am i the only one that thinks its funny the white house office of science & technology doesn't have html entities under control yet?

Quentin Palfrey is Senior Advisor to CTO for Jobs and Competitiveness at the White House Office of Science amp; Technology Policy

That's sad... also, when I was signing a petition this morning for something else, logging in would not work in Chrome.

Nor Firefox... (at least on Ubuntu)

Clearing your cookies will fix this. But you'll need to do it every time. Can you say "Broken site" ?

I know it is easier to click a button on a web page than to make a phone call, but perhaps you should call your representative if this issue matters to you.

Representatives are in the legislative branch. These petitions are to the executive branch.

The legislative branch is who needs to act here, they decide what is patentable.

And it's the Legislative branch that can change things here, not the Executive!

These petitions are nothing more than a distraction to keep people busy. The president will not do anything about them regardless of how many signatures it gets. This is just the latest one to have shown the white house an issue Americans clearly care about, only to receive a big fat meh in response.

Start another one.

Is there anything in We the People or Data.gov that could be infringing? Maybe they'd take it more seriously if they had first hand experience with a patent suit...


No, it takes about changes that have already been made, solicits further comments on both procedural and substantive issues, and shows an organizational commitment to FOSS. What were you expecting? This is way more outreach (and feedback) than has been available previously, and you're unhappy because the administration isn't falling at your feet, it seems like.

If we required patents to be commercially exploited for a period of at least 5 years and required people/companies to renew them every year for a fee with an included statement that they were or were not using them commercially, I think it would go a long way towards eliminating a lot of ridiculous patents.

Plus it would give the USPTO plenty of money to actually approve patents in a timely manner.

To summarise: fuck you very much

"Fuck you, pay me." -- Henry Hill, or... the US Senate

As an entrepreneur, I'd like to see patents abolished. Totally.

The cost of the patent system is obvious. The benefits are not.

This sounds like a wordy way of saying "Piss Off".

By the way, they didn't technically had to even respond to the petition since the threshold needed of 25,000 signatures within one month was not crossed [1].

[1] https://wwws.whitehouse.gov/petitions

At the time the petition was submitted, the threshold was only 5,000.

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