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From: Hector Santos on 7 Mar 2010 18:02 Hector Santos wrote: >> Personally, I think some pretty minor changes could make big >> differences. The single biggest problem I see is that right now, the >> level of proof required to attain a patent is only "preponderance of >> the evidence", but invalidating that patent later requires "clear and >> convincing" evidence. Simply changing that to use the same standard >> for both would fix (in my estimation) about 80-90% of the biggest >> problems. > > I agree, not sure if 80-90%, but a good percentage. But practically > speaking, it boils down to people, and simply getting patent examiners > with broad industry experience would resolve another large percentage as > well. This was a recognized problem and I see today the USPTO is hiring!! > > Also, there should be a statue of limitation. Once granted a patent, if > YOU knew a company, individuals or group were using the ideas in some > form or fashion and if you don't approach them because they didn't > threaten you within X years, you can not approach them LATER when they > do capture a larger market share. Many patent holders wait until its > viable to sue you, i.e. its been known IBM don't care about you until > you hit 2% of their market. I also wanted to add, the other change to the USPTO that I believe was/is the biggest contributer to the software patent problem was the introduction of the Provisional Patents. It was a blessing and a Curse. Designed to give small inventors a chance to get started with a low fee patent application, giving the applicant 1 year to complete the full patent, this has been abused by larger organizations and patent trolls. It allows organizations to file everything under the kitchen sink, throwing at the wall to see what sticks (research market potential while having a first to claim holding before investing on full patent filing). -- HLS
From: Hector Santos on 8 Mar 2010 08:17 BTW, today is the deadline for public comments on "Enhancements in theQuality Of Patents". Comments via Email may be sent to patent_quality_comments(a)uspto.gov http://www.uspto.gov/ DEPARTMENT OF COMMERCE Patent and Trademark Office [Docket No.: PTO-P-2010-0004] Extension of Period for Comments on Enhancement in the Quality of Patents AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Request for comments. SUMMARY: The United States Patent and Trademark Office (USPTO) published a notice in the Federal Register seeking public comment directed to this focus with respect to methods that may be employed by applicants and the USPTO to enhance the quality of issued patents, to identify appropriate indicia of quality, and to establish metrics for the measurement of the indicia. The USPTO is extending the period for public comment until March 8, 2010. Comment Deadline Date: March 8, 2010. No public hearing will be held. ADDRESSES: Written comments should be sent by electronic mail message over the Internet addressed to patent_quality_comments(a)uspto.gov. Comments may also be submitted by mail addressed to: Mail Stop Comments-Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450, marked to the attention of Kenneth M. Schor and Pinchus M. Laufer. Although comments may be submitted by mail, the USPTO prefers to receive comments via the Internet. The written comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the USPTO Internet Web site (address: http:// www.uspto.gov). Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or phone number, should not be included in the comments. FOR FURTHER INFORMATION CONTACT: By telephone: Pinchus M. Laufer, Legal Advisor, at (571) 272-7726, or Kenneth M. Schor, Senior Legal Advisor, at (571) 272-7710; by mail addressed to U.S. Jerry Coffin wrote: > In article <6ocdo51sb5ol3uvat85s57nihoolru6na9(a)4ax.com>, > newcomer(a)flounder.com says... > > [ ... ] > >> understand the purpose of the patent law: it is to reward >> innovation by giving the innovator exclusive rights to the patented >> object, design, or methodology for a fixed number of years (17 >> years for general patents; different times for patents on >> automotive technology, designs, and a few other exceptions, all of >> which are shorter). Nothing more than that. > > Well, actually, the purpose is quite a bit more than that. It's not > just a one-sided reward for innovation -- it's an exchange. > Specifically, the patent is required to contain teaching of how to > use the patented invention, so when the patent expires the public has > a right to use it, AND an instruction manual (so to speak) telling > what to use it for ("best mode") and how to implement it. > > [ ... ] > >> But the law clearly states the prerequisites for a patent, and to >> knowingly submit a patent when there is a failure to meet the prerequisites is immoral. > > The ramifications are not only moral, but legal -- though it's > difficult to do so, there's at least theoretically the possibility of > invalidating a patent based on "unclean hands". > >> There is no "morality" to a patent. It is either valid, or invalid. > > That's open to argument -- there are enough different ideas of > "morality" in the world that I don't think anybody can definitively > state that "there is no morality to X" for *any* value of X. > > [ ... ] > >> Consider also whether the RSA patent on Public Key encryption is >> valid. Whitfield Diffie laid out the principles of PKI years ago >> (I went to one of his talks at CMU when I was there) but RSA is a >> *particular realization* of the principles of PKI). > > More tellingly, the British intelligence service had invented exactly > the realization of PKI used in RSA years before -- but failed to > grasp its implications. They saw it only as a mathematical curiosity, > and abandoned it. Whitfield Diffie came at it from the opposite > direction: knowing what he wanted and what it could accomplish long > before anything had been published about how to do it. Years later, > when Diffie-Hellman (and later still RSA) were invented, he'd already > plowed the field, so to speak, and it grew quickly. > >> On the whole, I am not a fan of software patents because I think too many of them are >> granted erroneously for ideas that are not only screamingly obvious to a practitioner in >> the field, but many of which had prior art implementations unknown to the patent examiner. > > The biggest problem, at least IMO, is that for quite a while the PTO > routinely rejected _all_ patent applications that involved software > at all. Though you and I know other publications are legitimate prior > art, when the PTO searches for prior art, nearly all the usually look > for is prior patents/applications. Since there are essentially none > up until the '80s when they were forced to start accepting software > patents, they lack a record of a great deal of prior art, without > which they have no basis to reject applications for patents on > methods that have been fairly well known for decades. > > Worse, most of those older records only exist in paper form, so > searching them electronically can be quite difficult. > > Just for example, a few years I was involved in a patent case where > we invalidated a patent based on a PhD dissertation -- which was only > available in paper form at the college where it was written (in > Australia, no less). Fortunately, it was cited in a newer paper that > was available electronically, and we chased it down from there... > >> Ask someone how to do OCR. Ask if the simplistic pattern-matching algorithm is viable. >> The answer will be "no". So the profession "teaches away from" the methodology Peter is >> using. He came up with some new ideas of organizing the computations in a way that makes >> them computationally feasible. So it was *not* obvious that this should work (and what >> *was* obvious was that it was the wrong approach). > > In fact, that's one of the tests the courts have formulated for > rebutting a rejection based on obviousness -- that the prior art has > "taught away from" what is being patented. (e.g. in re Geisler and in > re Woodruff). > > [ ... ] > >> I'm also reacting to the attitude that software patents are >> inherently immoral, and that anyone who applies for one is >> therefore tainted with the troll-brush. I do not think the >> examples of poorly-researched prior art (one of the serious >> weaknesses of the patent system) necessarily make all software >> patents invalid. > > I think there's a bit more to the attitude than that. When I read > diatribes against software patents, what comes most strongly to mind > is the stories of the old west, with settlers trying to build fences, > and cowboys tearing them down. Patents fulfill the same basic purpose > as fences (setting boundaries on what particular people possess), and > many of the current software practitioners have pretty much the > "cowboy" attitude -- that no law should apply to them, and placing > any limits on what they can do or where they can go is inherently > wrong. > >> And as to the appropriateness of software patents, go read Pam Samuelson's articles on the >> subject. As with AOL compliance issues, "you may not like the result, but it the law. And >> the only recourse you have if you don't like the law is to change it". Sadly, the firms >> that would benefit most from a sui generis law on software are afraid to rock the boat and >> lobby for a new law, thinking they will be worse off than they are now (Pam thinks >> otherwise). > > There has been a movement toward patent reform lately, but little of > it is of the sort that your typical programmer would appreciate. > > Personally, I think some pretty minor changes could make big > differences. The single biggest problem I see is that right now, the > level of proof required to attain a patent is only "preponderance of > the evidence", but invalidating that patent later requires "clear and > convincing" evidence. Simply changing that to use the same standard > for both would fix (in my estimation) about 80-90% of the biggest > problems. > -- HLS
From: Geoff on 8 Mar 2010 10:08 On Mon, 08 Mar 2010 08:17:26 -0500, Hector Santos <sant9442(a)nospam.gmail.com> wrote: >...enhance the quality of >issued patents, to identify appropriate indicia of quality, and >to establish metrics for the measurement of the indicia. One sign of quality of work from the USPTO would be the correct use of words. The pretense of Latin and then using the wrong word indicates a serious case of pretense to knowledge. The correct word would be indicators or indexes, not indicia. indicator - meter or gauge; measures derived from a series of observations. index - a numerical scale used to compare variables with one another or with some reference number. indicia - Indicia is the plural of the Latin word indicium, meaning distinguishing marks. Marks, signs.
From: Hector Santos on 8 Mar 2010 12:29 Geoff wrote: > On Mon, 08 Mar 2010 08:17:26 -0500, Hector Santos > <sant9442(a)nospam.gmail.com> wrote: > >> ...enhance the quality of >> issued patents, to identify appropriate indicia of quality, and >> to establish metrics for the measurement of the indicia. > > One sign of quality of work from the USPTO would be the correct use of > words. The pretense of Latin and then using the wrong word indicates a > serious case of pretense to knowledge. The correct word would be > indicators or indexes, not indicia. > > indicator - meter or gauge; measures derived from a series of > observations. > > index - a numerical scale used to compare variables with one another > or with some reference number. > > indicia - Indicia is the plural of the Latin word indicium, meaning > distinguishing marks. Marks, signs. Funny, you noticed this too. :) -- HLS
From: Jerry Coffin on 8 Mar 2010 20:36
In article <u8NtZgkvKHA.812(a)TK2MSFTNGP06.phx.gbl>, sant9442 @nospam.gmail.com says... [ ... ] > Another a-hole tried to patent the idea of Callback Verifications > via the WEB. When I found out (by reading a "Patent Pending" > claim at his web site), I wrote to him and provided a link to our > Support File Library with a report of at least 150+ 3rd party > written, Operator written CBV for dialup, telnet and the web from > the 80s, 90s and 2000s. > > His response? > > "Thanks, I will update our patent application to add it to the > prior art reference" > > In the past (prior to 1996), he was subject to a fines and criminal > charges for intentional neglect of prior art. Say what? I've been doing consulting about patents since well before 1996, and I'm quite certain no such thing was ever true. The requirement has always been (going all the way back to the original US patent law of 1790) that he reveal any related art of which he's aware. There's never been a requirement that he make any particular effort to find prior art before he files. [ ... ] > Exactly. I guess this is the reason the USPTO began to provide > leeway in prior art references. Actually, the PTO is trying to _limit_ related art references. They wrote some rules a couple years ago where you were required to pay extra fees if you cited too much related art. The last I heard, the court had stayed that, so the rule can't be enforced (but remains in place). IMO, limiting prior art citations runs directly contrary to the intent of the law. > But once found, its not to reject a patent, > but to update it - document it. What it basically means is that the > patentee can only go after those who did not have prior art > implementations. Not really. If the patent was still being examined, the examiner should look at those references, and if he finds them relevant, reject the patent (or at least some claims) on that basis. If you preferred, you could have submitted the references directly to the patent office yourself. Though you won't be given direct credit, if the patent issues anyway, such citations to get an asterisk leading to a "cited by other" footnote, for what little that's worth. [ .. ] > You really do need patent examiners that have 20 to 30 years > experience. They should be aggressively recruited retired engineers. Oh, don't tell them that: one of the first places I look when I want to invalidate a patent is for recently retired engineers. If you get than all hired, I'll be in trouble! :-) [ ... ] > But practically > speaking, it boils down to people, and simply getting patent examiners > with broad industry experience would resolve another large percentage > as well. This was a recognized problem and I see today the USPTO is > hiring!! Yes, they have been for a while. During the '90s, the government treated the PTO as a profit center, siphoning off quite a bit of what came as filing fees and putting it into the general fund. They're now starting to see the error of their ways, but repairing the damage is going to take a lot of time and effort. > Also, there should be a statue of limitation. Once granted a patent, > if YOU knew a company, individuals or group were using the ideas in > some form or fashion and if you don't approach them because they > didn't threaten you within X years, you can not approach them LATER > when they do capture a larger market share. Many patent holders wait > until its viable to sue you, i.e. its been known IBM don't care about > you until you hit 2% of their market. This is a spectacularly bad idea. Who is supposed to benefit from forcing a patent holder to sue a guy who's making a nice living out of selling something out of his basement? IBM obviously doesn't want to sue him, and I think it's fair to say he doesn't want IBM to sue him either. This would benefit precisely nobody. Worse, to do it, you'd have to overhaul the constitution to give the government nearly complete control over the circumstances under which a civil lawsuit can be filed. IMO, calling that "spectacularly bad" is, if anything, an understatement. -- Later, Jerry. |