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.
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.
Of course, there are some patents that could contain some valuable information, but today's patent attorneys are drilled to hide any valuable information from public.
Bass-ackwards, I know.
Remember that the document is directed to a skilled proponent in the relevant art and not to the public per se.
In that case your "whole" business process or product would not be protected, but it is possible that by identifying the one thing you do better than your potential competitors and by patenting it in time, you could still stifle competition altogether or force your competitors to license your technology (without actually producing a really useful document for anyone who might have wanted to read it once the patent expired.)
Isn't the actual intention of patents to publicize the invention after the 20 years has gone by?
The point of a patent is to grant a limited monopoly to a person who invests substantial resources in some innovation that was previously undiscovered; and yes, in exchange for full disclosure on what exactly the innovation is made of, they can be granted that exclusive right to collect license fees from those who needed to implement that innovation.
Reverse engineering can be a non-trivial effort. If the collective of all car manufacturers have failed to discover a novel way to make cars that (foo) and your invention is mainly a way to make cars (foo), there is no requirement to describe everything about and around the part that makes it (foo) in order to obtain the patent protection of (cars that _foo_). Those other car manufacturers then can either a) find a way to (foo) that doesn't use your (bar), b) pay you for your patented (foo/bar) tech, or c) go on selling cars that don't (foo) with a (bar). In twenty years, everyone who can make cars becomes free to use your (bar) to make their own cars that (foo).
If a (bar) that makes cars (foo) wasn't sufficiently described in the patent application then a patent should not have been granted. If the problem is that 20 years later, cars that work with a (bar) are no longer made by anyone, rendering the patent for (foo) useless, then that's a different problem and it can't be solved in the patent framework that we have now.
This is a bit of a nitpicky thing, but patenting crypto isn't really a great way of protecting your secrets - hiding away the algorithm is basically security by obscurity. Crypto has historically been one of those things that's made stronger by more scrutiny.
This little example just shows, how distorted the whole patent system has already become. (and it is not the only example)
Agreed - the system appears pretty broken.
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.
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.
One way to incentivise this is to grant a /temporary/ monopoly, and require people to publish in exchange. When the temporary monopoly expires everyone else can fully benefit from the invention.
The original meaning of the word "patent" might be a bit of a clue here.
The problem that patents tried to solve was of people keeping their innovations secret (in order to maintain an edge on their competitors), and that when they died their secrets died with them. Encouraging people to make public work they were doing anyway way, in the first instance, the way the patent system promoted progress.
(I wonder if the HN traffic spike drives up the "value"?)
The reason: It is funded from granted patents. If patents are not granted, the funds are down. And no director will like it to say at the end of the year, that US companies are less innovative than in the last year -- or worse, less innovative than ... (name a country).
(1) patentable subject matter
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.
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.
"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."
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. 
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.
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.
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.
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.
Neither. You just like false dichotomies.
Am I evil, or is pedantry just plain fun?
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.
i wonder if uspo would be interested in licensing it if it was effective enough
<Obvious-little-Idea> => <Converter> => <Awesome-sounding-invention>
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, ...
From the first example:
generating, using a processor = calculating
a plurality of images = images
clusters = groups
It's more of a translation software than machine learning.
Perhaps the translation software could suggest 3-4 variations of the legalese sentence and allow users to vote for the best translation?
A quick search turned up a 2011 American Intellectual Property Law Association survey suggesting a median cost of $10k .
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.
2. The main competitor's home country
That's just for the basic filing fee. You also have to pay the search fee and the examination fee.
At Boston University they have an office of about 5 people that evaluates university generated IP to see if it is worth patenting and if their market research doesn't show that it is worth $50k over the next few years they won't bother.
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.
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.
The problem actually doesn't lie with the USPTO specifically, it lies with the entire legal system.
The patent is the applicant's. They should need a patent that's guaranteed as much as possible to be valid. It should be that them getting a patent that's not valid means they can't use that patent for anything. They should therefore be closely allied with the patent examiner who is trying to "grant patents with a high degree of validity" (that's the UKIPO patent groups motto, or it was several years ago). They also want to get the broadest monopoly possible, that's the counterweight, but if it's granted so broadly as to be easily anticipated by a document that a skilled proponent in the field can find in 15 minutes of searching then the patent should be worthless.
All those shoulds depend on the legal system. Can a malevolent patent holder badger people and profit without a valid patent. If they couldn't then you'd be fine as they'd always want the best out of the examiner - make sure they' know all relevant prior art, make sure there's enough support in the description, etc. - to be as sure as possible they had a valid and hence useful patent to litigate with.
You have to make it highly costly to attempt to litigate with an invalid patent. Make the game-theoretic outcome favour working for good patents rather than just getting any rubbish patent and profiting from it.
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.
They get more money from processing more patents. They don't get more money by making sure the patents are better quality.
Do you really think that you can strike down a bad patent by simply sending some links for prior art to the USPTO ? Someone who applies for a patent must pay a fee to have it examined by an expert. I'm pretty sure that they're going to have to spend some time re-examining the patent and the new material to decide if it's relevant or not. I don't think that's going to be free.
a: If they are currently overrun with more work than they can handle, they can remedy this by refusing patents, thereby discouraging frivolous applications. Having done so, they can become a more efficient organisation.
b: Fees for continuations, amendments and extending response deadlines can be larger than the fee for simply issuing the patent.
c: As a Government entity, they have an interest in making as much money as possible change hands (and therefore attract tax). One way to do this is to occupy the applicants' lawyers with remedial work.
At their annual review, one measure of how hard an examiner worked is probably based on how many patents they dealt with.
b. As an examiner you can send a patent back for a clarification or ask for more details. That's why as an applicant you pack in as many obfuscated details as possible, without giving the game away.
c. The money goes to the lawyers. It's not an incentive for the examiners.
At their annual review, one measure of how hard an examiner worked is probably based on how many requests they dealt with appropriately, whether that's 5 requests for 1 patent, or 1 request each for 5 patents.
Using a measure like the one you described is like using number of Lines of Code in a programmer's annual review.
It is in no one's interest for an examiner to simply stamp "PASSED" on any application that arrives on his desk.
b. Examiners can send it back for clarification, but if the applicant needs more than the allotted time to clarify, then that attracts a fee.
c. Part of the money goes to the lawyers, some of the money goes to IRS. It is a weak incentive, but not no incentive at all.
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.
edit: source: http://www.irs.gov/publications/p526/ar02.html#en_US_2013_pu...
Edit: They can't. However, if an employer were to pay you to work for a qualified organization, they could write off that expense.
Alternatively: can you think of any software patents that make sense to you?
I'm genuinely curious.
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.
If you want to argue against the fact that patent protection is needed for drugs just show some examples of recently approved drugs that are not patented, or that were brought to market by non-profits.
The safety and efficacy studies are both expensive and likely to fail, and I think there should either be public funding or patent protection for the company that bears this cost and risk.
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.
- 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:
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.
* Nobody uses this!
* It's patented!
* It's just like HTML!
* I'm not going to tell you which bits are patented!
Can't tell if (literal) troll or comedy genius
Edit: so going by the age of the domain and you having actually filed the patent, I'm assuming it's not just some elaborate joke. And having only skimmed the patent text, I'm failing to see the innovating mechanism or idea you're claiming. The language itself sounds like HTML mail or any of the plethora proprietary markup languages from the 90s (e.g. MS Exchange).
Can you tell us why you think yours is different? This otherwise seems like a textbook case of ridiculous patent.
I am going to make the baseless assumption that your intentions were well placed, and happily await a contribution of prior art.
EDIT: My lawyers have deliberately asked that I not transcribe the claims in the patent application, but its really not hard to figure out from looking first at what the language does differently from the spec and then glossing over the claims in the patent application. I put this stuff online myself years ago, because I have nothing to hide and want nothing more than to ensure the software is valid and novel. Please feel free to prove otherwise, because either way you are contributing to a software project.
So that's why I'm asking, what makes your approach worth protecting? It looks like just another XML schema from this angle
I really hope you don't have general purpose use in mind, I'm guessing you're hoping it's more for something along the lines of EDI applications between governments, or something else. I just don't get what it's for.
At risk of going blue in the face, where is the value in this patent that I'm not seeing?
("but XSLT" does not meet the standard of non-obviousness to a person of normal skill in the art)
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.
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.
The UK patent office is currently harder to get a pure software patent in.
It's certainly possible to get patents on software particularly if it has a technical effect. The UK patent office gives an example of software that improves a car breaking system would be patentable.
Just think, quicksort would have been patented. Or binary trees, or arrays.
The horror scenario that you give is just a bad example that could have been constructed by patent attorneys.
Of course you can not just rip-off the software of a competitor, because the software itself is copyrighted.
We all are profiting from the fact, that many things in the software world are just not patented. Because in the knowledge world and more so in the software world, nobody just sits on his island and makes something totally new ... everybody depends on the work of others.
The patent system taken to extreme: Only a handful companies dominate the market and nobody else can do anything anymore. As much I understood, in the hard disk business we have this situation already -- three to five big corporations dominating the market, because they own the key patents.
- patent trolls, lots and lots of patent trolls, throwing around patents for things like in-app purchases and SSL
- Samsung and Apple throwing random patents at each other and mostly not accomplishing anything
- file systems - FAT LFN, exFAT
- machine instruction sets
- video codecs
Out of those examples, the first two are clearly awful, and the second two are pretty bad because they prevent compatibility/competition. The last two are relatively OK - with video codecs patent uncertainty is very damaging, but as long as we're hypothetically revamping the system we can fix that.
But the last two are also pretty unimportant compared to the software industry as a whole; keeping or abolishing them wouldn't make a huge difference to anyone other than MPEG LA. I'll make a bit of an extrapolation and claim that after factoring out undesirable use of software patents, the same would apply to abolishing them entirely: there would be little effect, because patents never effectively prevented ripoffs in the first place. Yet in the present, plenty of companies focus plenty of effort on R&D. Why they'd do so without patents is the same as why they do so today: most significant functionality takes a lot of time and work to implement, so being first is a large competitive advantage.
I guess we're not restricted to looking at what's currently patentable; if you really wanted to discourage ripoffs, you could expand the patent system along those lines at the same time as weakening the current system. But personally, today's patents are dangerous enough that any thought of expansion really scares me.
Note that according the US Constitution the most important reason for the existence of patents & copyright is the promotion of science & art. If the net result of the patent system is not promoting science & art, it is not operating as intended. Certainly there will be winners and losers under any scheme, but in my experience the current setup is a net drag on innovation. Making buckets of money by being first and being innovative is reward enough to incentive progress. These days most companies filing for patents are doing it defensively anyway.
Patenting an algorithm, if it's truly non-obvious and hasn't been done before is fine in my opinion. The R&D dollars should still be spent, but spent on things that move humanity forward and not nonsense like buying a monopoly on "a process people have done for decades, but on a computer!"
Of course, I'll give you that algorithms sort of feels like a gray area. Even though they're pure math, they also sometimes feel like inventions to me.
Now look at software. The "factory" can be obtained for free by going to a public library. As such, I'd argue that 1) the broadness of many of the patents that already exist is ridiculous, and was earned by nothing more than a rudimentary understanding of programming and 2) the relative likelihood that you're going to have a TRULY novel idea is lower due to the size of the population and amount of collaboration inherent in programming.
On top of all that, you don't see "first, invent a programming language that allows me to do all this neat stuff." They're already building on so much groundwork that they don't understand, it's sort of belittling the achievements of the people who truly created NEW things in computer science, to say that rounded corners on a texting app or whatever deserve a monopoly that could crush other applications.
The only net loss would be for the legal profession. Less money to the lawyers, less money to the patent office. More money to the rest of the economy. Like the parable of the broken window, money going to these actors is actually money lost to the economy. These actors do not create value, they only consume. In other words, the software industry would be rid of a parasite.