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Am I evil, or is killing patents just plain fun? (inventropy.us)
294 points by beepp on Apr 24, 2014 | hide | past | web | favorite | 119 comments

Why on earth i did not have read anywhere about USPTO officials return a letter to this so called patent troll with simple reply: "Explain this pattern in layman language."

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.

Worse, patent obfuscation is baldly contrary to the purpose of patents, which is to make the knowledge contained in them available to the public.

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.

Most of today's patents don't contain any valuable knowledge that could be useful for the public. Also the invention does not. <irony>So it is not that bad.</irony>

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.

That is actually part of the purpose of a patent attorney - to mention enough information about how the idea works that shows it's novel, but not enough that you can build a competitor. (According to a patent attorney I discussed this with a long time ago.)

Bass-ackwards, I know.

If the information as to how the invention is performed isn't disclosed then the application lacks sufficiency - ie it doesn't support the claims - and so should be rejected according to most patent laws.

Remember that the document is directed to a skilled proponent in the relevant art and not to the public per se.

You can completely describe a crucial innovation without which your product would not be original or compelling, without completely describing your product and giving an instruction manual to start from nothing and build a better competitor to your business.

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.)

I really doubt that in 20 years something would not be reversed engineered or trivial by then. Moreover, patents are usually functional specifications, not algorithmic. In the rare cases where the description is vital, like perhaps crypto or coding patents, the published software already allows reverse engineering.

Isn't the actual intention of patents to publicize the invention after the 20 years has gone by?

No, that is the actual reason for a general (non-inventing) public to allow patents to exist, but that is not the point of patents.

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.

>In the rare cases where the description is vital, like perhaps crypto or coding patents,

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.

But patenting it requires that you disclose the method; it is an opposite position to keeping it secret.

I also have my information from real patent attorneys.

This little example just shows, how distorted the whole patent system has already become. (and it is not the only example)

Wasn't trying to indict your point - just elaborating.

Agreed - the system appears pretty broken.

Why doesn't this run afoul of the enablement requirement?

>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.

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.

It explicitly requires that there must be time limits. That isn't required if all you want to do is reward innovation. The time limits are required because the ultimate purpose is to enrich everyone, which means that everyone gets access once the inventor has gotten a fair shake. For patents in particular, it is well-established in the law (though poorly followed in practice) that a patent ought to serve as a guide to replicating the invention, with the inventor being assured that no one can do so without his permission until the patent expired.

Unfortunately the time limits are useless if they are allowed to grow them indefinitely. In the US, the copyright length has extended from 14 years (with another renewal for 14 years) to life + 70 years. There's nothing fair in Life + 70 years.

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.

The intent was to incentivise /publishing/ of inventions/mechanisms rather than keeping them a secret. Thus allowing others to build on top of that knowledge.

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.

> What makes you say that this was the "original intent" of patents?

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.

Sounds like a good site. You could call it Patently Obvious. A squatter (or at least absentee landlord) already has patent.ly, sadly.

Re your last sentence - how do you know, they could be using it for email or for a private internet app, VPN, or something. You don't have to use domains for public web services.

Simple, they're not using it for what i want it used for, so i am badmouthing them.

Instead of badmouthing them, contact them and see if they like the idea.

Here's a clue:


(I wonder if the HN traffic spike drives up the "value"?)

Almost certainly. Supply, demand, and so on.

The problem is deeper. The USPTO just does not want to ask further questions.

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).

Exactly. They have incentive in accepting any possible ridiculous patent (money) and they do not take any legal risks accepting these bogus patents (can you sue them if you can prove the patent was bogus ? short answer: NO). Why on earth would they become "ethical" and "good" (and other kind of nonsensical adjectives) and refuse the money people want to give them ? It's like asking a prostitute not to accept money based on a client reputation.

A simple solution would be to charge the same amount to apply regardless if it was granted or not.

They sort of do. Each patent has both a description, written in more or less understandable terms (and often including diagrams) and the claims, which is what the post references (e.g. "a system or method ..."). The point of the legalese in the claims is to explicitly define the boundaries of the patent. By way of analogy, imagine if you had to describe the boundaries of a piece of land you owned, but the land wasn't a regular shape and you couldn't rely on a map.

Agreed! A huge part of what you can do to help is just parse the legalese into human language, so that any knowledgable person can see right through it.

The problem with that is that if you remove the legalese, like say "fixing means" from a claim to make it clearer then you limit the range of prior art that will render the claim obvious/anticipated. Better probably for knowledgable people to get used to reading claims if they wish to take part in patent killing.

I do not know what jurisdiction the author is referring to when listing the requirements for a "good patent." But in the US novelty and non-obviousness are just two of the five requirements for a "good patent." The other three are just as important:[1]

  (1) patentable subject matter
  (2) utility
  (5) enablement
After slogging through the language of a lot of patents you start to wonder how so many of them were deemed to meet the enablement requirement.

[1]: http://www.law.cornell.edu/wex/patent

Those are the official requirements. In real life, only #3 prior art is of any use in disqualifying any software patent.

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 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).

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.

I refer you to the awful and smart patent troll promoter Gene Quinn:

"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."[0]

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. [1]

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.

[0] http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

[1] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...

I think, for the sake of his challenge (to find one good software patent granted in the last year), he is allowing the challenger to assume that those three other conditions are fulfilled simply because they would be much harder to argue about.

This is a good point. I've been involved in IP, as an inventor, and also dealing with freedom-to-operate issues, though I'm not a lawyer. The advice that I've gotten from lawyers is that the holy grail is a single piece of prior art reading on every element of the primary claim (or of the claim that is getting in your way). Obviousness and the other criteria are much harder to argue.

I posted a similar comment in the author's post, but I figure I'll post it here too in case anyone finds it useful.


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.

I'd submit that "obviousness" relates not to the general concept of the solution, but to the implementation of it, something that's absent from virtually every software patent out there. The hindsight bias is an important factor, but only at a very abstract level.

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.

I see general concept and specific implementation as being on a spectrum. If an invention is sufficiently novel/nonobvious, I believe the inventor is entitled to a patent on the general concept. However, if the invention is an incremental advance, or in a crowded field, the inventor should only be entitled to a patent on the narrower invention that is actually new, and usually this is going to be a specific implementation.

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.

"Am I evil, or is killing patents just plain fun?"

Neither. You just like false dichotomies.

Whilst we're being pedantic (are we ever not?) that construction doesn't present a dichotomy it's just a more lyrical way of saying "I like killing patents".

Am I evil, or is pedantry just plain fun?

Of course pedantry is fun. Somehow, the way the title is worded grates me.

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.

project idea: machine learning program that decrypts legalese to find similar patents

i wonder if uspo would be interested in licensing it if it was effective enough

Maybe some clever patent attorneys already have the opposite. Some encryption tool:

  <Obvious-little-Idea> => <Converter> => <Awesome-sounding-invention>

In a way yes, it's called claims drafting.

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, ...

It wouldn't even require machine learnign imho.

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?

Isn't translation software trained with machine learning?

If lots of people are helping to translate, it could be. It depends.

I would say, that the USPTO is naturally not interested in such stuff. They will have all possible explanations, but never tell you the one true thing: The USPTO is earning more money on successful patents than on neglected ones.

You should totally patent that idea!

Does it cost a large company more to file a shitty patent than it does the community to crush it?

Filing a patent application costs around $180-$280 [1], not including the other Patent Office fees for Examination/Maintenance. Add onto that the legal fees for marking up the claims, charged out in the $XXX/hr range and you are looking at a few thousand easily.

A quick search turned up a 2011 American Intellectual Property Law Association survey suggesting a median cost of $10k [2].

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.

[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm [2] http://www.quora.com/Whats-the-average-cost-of-a-software-pa...

Keep in mind that this is the costs for filing in one country. Each country where the invention needs to be protected needs its own filing, though this would generally be cheaper since much of the work (patent attorney fees) is already done when filing the first one. I have heard that big companies end up something half-a-million dollars for pursuing, what they consider worthy inventions, in all significant economies.

A patent holder only needs to make your life miserable in one country. At one place where I worked, we used to patent in:

1. USA 2. The main competitor's home country

> $180-280

That's just for the basic filing fee. You also have to pay the search fee and the examination fee.

It costs the companies quite a bit, and a reasonably knowledgable person about 10-15 minutes to find prior art that, once discovered by someone at the USPTO, can help to fast-track a denial. In any case, you're at least helping to make sure that none of the ridiculous claims get through (these are common in patents, just to see if they can get away with it since they're already spending the money)

The cost is much higher than the filing fee. You should usually plan to spend about $20k to hire a patent attorney to help get a patent filed. If you are doing this yourself you can keep the cost much lower, and try to do all of the work yourself, but a company usually spends tens of thousands of dollars getting a patent filed.

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.

I like to think about how the world would change if patenting was not generally done. Rather, anyone could copy and implement everyone's ideas. How would this look in the grand scale? I think it's possible to discover a way of coexisting in such a world. Anyways, I agree with the author, patent killing is fun.

The problem I see with that is a return to keeping a lot of inventions secret.

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.

No need to think, just look at china.

The author doesn't understand the patent system.

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.

>There is no incentive for them to stop granting bad patents. //

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.

You are implying that the US patent office is a profit oriented organization. Even if this is practice, it should be possible to fix that, no?

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.

> Almost every organization in the world, no matter if it is profit or non-profit, gets more rigorous the more applications come in.

They get more money from processing more patents. They don't get more money by making sure the patents are better quality.

It is - as someone else in the thread mentioned it makes a profit from each patent granted.

"The proper solution is to make it very easy to strike down bad patents ..." isn't this exactly what the author is trying to do? The author states that he uses StackExchange to "respond to requests for prior art that invalidate an overly-broad patent." Sounds like you two agree.

The author thinks he is "helping" the USPTO - to stop bad patents. But he is doing nothing of the sort. The USPTO are part of the problem.

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.

> There is no incentive for them to stop granting bad patents.

I disagree.

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.

a. They get money for each patent examined. If they spend more time scrutinizing it, their profit is reduced.

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.

Also, this: http://yro.slashdot.org/story/14/03/02/214237/inventor-has-w...

c. The money goes to the lawyers. It's not an incentive for the examiners.

a. They get money for: 1) Each patent claim (a patent is made up of a number of claims); 2) Each patent issued; 3) maintenance fees on granted patents; 4) Any extensions or continuations requested by the applicant; 5) Any post-rejection amendments.

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.

Or maybe make the patent processing fee non-refundable (if it already isn't).

Although the example cited in this article seems pretty obvious on what we have, for all we know (a) it is the very first example of time-sorted photos and (b) there could be further context in the article saying that the analysis is done by reference to specific features, such as assessing movement across a field of view (rather than by reference to a timestamp, which is what seems to be implied).

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.

Can you write off the time spent as a charitable donation?

Wait, can lawyers write off pro-bono work? If so, why can't we?

Edit: They can't. However, if an employer were to pay you to work for a qualified organization, they could write off that expense.

Yeah, it kind of sucks, but think about it as: You work for the charity, they pay you, then you donate the money you were paid back to the charity. The pay and the donation cancel each other, and it works the same way when the pay and the donation are both zero dollars.

Actually, that's not a bad idea. Start-ups that value patent reform could band together and give a few hours a month to doing this, and I'll bet it would make a pretty significant dent.

Does anyone know when all this started? Who got the first software patent and when?

Here's an interesting thought: What are the most fundamental inventions in the history of computers that could have been patented? Turing machines? Programing languages? User interfaces?

Maybe we should consider whether software patents are necessary at all? There are disciplines where the core content is not itself patentable (or "intellectually protectable"), primarily because obviousness is hard to prove. The most accessible examples are food recipes and fashion designs - how do you demonstrate that a specific recipe has never been conceived of in the past? For disciplines that rely on the assembly of existing ideas, this actually seems like the rational thing to do.

Alternatively: can you think of any software patents that make sense to you?

Sure, but the site in question is about current law, which does allow software patents. No doubt, many of the people working on invalidating them would agree that they are unnecessary.

Could someone explain to me why patents are ever a good thing?

I'm genuinely curious.

Pharmaceuticals are both one of the best and worst patent examples. It costs a company millions of dollars to develop, test and get approval for a new drug. A patent makes this expensive gamble worth while for the company by guaranteeing that they are the only ones who can sell the drug that they spent the money to develop.

That is only an argument for patents if you buy into idea that private sector / capitalism is the best answer for every problem. The fact that you need patents to shore up that idea strongly indicates to me, health is not one of the well suited problem. The other non-patent solution is funding the likes of CDC and NIH to research disease prevention and related drugs. In general the things that aren't (or shouldn't be) inherently profitable but are none the less needed should be socialized.

I used to buy that argument till I read that they typically spend far more on marketing and sales than R&D.

The difference is that marketing gives you a pretty steady ROI. Once the drug is developed, there is little to no risk involved in spending billions marketing a drug.

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.

The system isn't bad just because you don't like their business decisions. I think the advertising budget is completely unrelated to the issue of patents.

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.

I read "patents" as "parents"

I read patents as patients. It's weird how verb selection biases our reading of the object, falsely triggering our intrinsic capabilities for auto correction.

My auto correction was probably triggered by the adjective "evil" and yours probably by the verb :-)

Worse, i write "patent" as "pattern". Such a "designer" i am.

You are not evil, and killing patents is fun.

By definition, killing patents is good.

Mis-read title as "patients"

I included a full language specification with my patent application. Reading boring specifications can also be a drag, so I even wrote a version that sorts information by color. Its all available on http://mailmarkup.org/

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.

I have a few thoughts:

- 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: http://www.boutell.com/wusage/8.0/eml.html



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.

Regardless of whether or not the patent is granted I would like to create a start-up to build a new transport medium. It would be nice to have an online software platform built for automation and data integration above all else that allows any data repository to become a possible publication point using just URI addressing. I can see many possibilities that could arise from such a thing, especially if the primary markup language is always immediately accessible.

My gullibility alarm is ringing loud..


* 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.

Did you bother to even open the spec or were you too busy making assumptions? Here is a link in case the you missed the one on the site: http://mailmarkup.org/mail-documentation.xsd

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.

Yes I saw it, it's some crazy XML schema for an e-mail message that nobody has ever used. That's like me patenting some bus ticket design I got carried away making on a rainy afternoon.

So that's why I'm asking, what makes your approach worth protecting? It looks like just another XML schema from this angle

Anybody can protect an invention. The average 8K-18K in average lawyers fees is trivial. Building a team and acquiring the necessary funding to launch a business investment based upon an invention is a far greater challenge. Not everybody is at a stage where quitting their job to work on such things full time to build a product complete enough to present to angle investors is a viable option. If it were so simple then every software developer would be a successful start up founder.

That's what I find so perplexing about this patent in particular – email is only useful due to interoperability, so patenting the underlying representation of an email is a non-starter for general purpose use.

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?

Can you tell us in 2-3 sentences the application of this patent and then it would easier to come up with prior art examples. Like hosay said is it like a "novel" bus ticket design but for emails.

The intended goal of this thing is to fully describe email threads in a manner that is durable. To my knowledge, even today, there are no structures or grammars that are capable of describing email content and fully retaining their original definitions after full exposure the various software of the email platform. Rich text format comes close, though.


("but XSLT" does not meet the standard of non-obviousness to a person of normal skill in the art)

Why is it with patents everything has to be nothing ever, never a good reason? I'm sure my perspective here might get this downvoted to oblivion, but really, think for a second what would happen if tomorrow, no software was patentable? Why would a large company focus any effort on R&D, new idea development, vs investing that money in just ripping off the competition and scaling it better? (not that that ever happens as is..) There are lots of us that make our living designing or developing things that some business or shareholder wants developed simply because they want to be the ones that did it, or did it in a way no one else could steal.

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.

There are no software patents in Europe. I've seen nothing to suggest that European software companies are less competitive. In my daily work as a developer I've not once heard anyone talk about the competition 'stealing our ideas'.

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.

European software companies do [ab]use patents widely - a historically sensitive example is Fraunhofer institute (Germany) and patents on their invention of the mp3 encoding methods; it brought significant revenue for them, making them competitive; and the patent restrictions also had significant effect on the music software&device market.

This is a good example. There is indeed nothing that prevents an EU based company from filing for a software patent in the US (or other markets). This particular patent has likely been so lucrative (~$100m in revenues) because it's so easy to spot infringements.

Depends on the patent office, both the German & European patent offices are fairly liberal in allowing software patents.

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.

When the software business was young, software was not patent-able at all. And that was good so, because if it where in the same degree as today, I guess we all would still have DOS on our desktops or worse.

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.

But what kind of patent infringement cases and/or notable patent avoidance in computing do we actually see in practice? Off the top of my head:

- 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

- ClearType

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.

Video codecs patents aren't OK. They are one the worst things used to keep the Web locked into proprietary technology. And not only the Web. It's clearly an anticompetiive tool of control, and not a way to return investments spent on innovation.

I think zero patents for software is a good idea. At least it's better than leaving the situation as is. May be there are better ways of fixing the current mess (something more generic, than simply carving software out of patentability, since such singled exceptions make the law more complicated), but I didn't see practical proposals.

"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."

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.

Patents don't really work in software because a patent is supposed to be a temporary monopoly on a method of implementing something, and in software there's always more than one way to implement something. A patent on, for example, "enabling the user to buy something with one click" is far too broad - it covers any implementation on a relatively trivial idea. That's the fundamental problem with patents today - at some point they switched from being protection of a process for making something to "idea copyright". Now, the broader you can make your patent the more money you'll reap from it.

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!"

The problem with "patenting an algorithm" is that it's "not allowed" by the rules of patents. You cannot patent laws of nature, like math (not that that stopped everyone [0]). Algorithms are purely mathematical constructs. The idea that someone "owns" something just because they discovered it, not invented it, is scary.

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.

[0]: http://www.amazon.com/Math-You-Cant-Use-Copyright/dp/0815749...

With almost anything else, what you really need isn't the idea, but the factory to make the idea. You could tell me everything there is to know about making a Ferrari, but the likelihood that I could build a factory that could replicate Ferrari's is relatively small.

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.

What would happen with the demise of software patents is an explosion of creativity, no longer bridled by the threat of shady actors (ab)using their patents to extract money from those who create.

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.

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