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I'm usually skeptical about complaints of seemingly over-broad patents. Most people don't realize that the abstract isn't the patent, the claims are. And the

by roc 17y ago

I'm usually skeptical about complaints of seemingly over-broad patents. Most people don't realize that the abstract isn't the patent, the claims are. And the claims tend not to be overly broad because the examiners aren't that bad. But in this case, it really is as bad as the title declares. Claim 1 covers the process of any attempt at optimization. The only things close to redeeming specificity are in the description and background. The first claim still covers everything. One small caveat: IBM is attempting to patent optimization. They filed an application and that application has been published. But, as of yet, it hasn't been granted. Fingers-crossed, let's hope this doesn't go through.

_delirium 17y ago
Yeah, the claims are weird here, even just in terms of format. Usually claims are these dense paragraphs you can't interpret without a background in patent law, but here, the entire first claim is a few short clauses: A method for developing a computer program product, the method comprising: evaluating one or more refactoring actions to determine a performance attribute; associating the performance attribute with a refactoring action used in computer code; and undoing the refactoring action of the computer code based on the performance attribute. The only really limiting factor is that it could be read narrowly to require a very close "associat[ion]" between the "refactoring action", the "performance attribute", and the "undoing"; e.g. some sort of "refactor-and-keep-only-if-faster" button in Eclipse.
grogers 17y ago
Claims typically start out broad, and then refine further to get at the core of what exactly it is they are patenting. Since many patents are extensions or improvements on existing things this seems to be a common theme in the patents I've skimmed over. This patent application just keeps everything vague and broad, which I suspect is common in many software patents.
- roc 17y ago
  That's incorrect. An invention is infringing an issued patent if it includes all the elements of any independent claim. Dependent claims, in this case 2 - 5 (the ones that refer to another claim), add specificity, but do not narrow the scope of the original independent claim. They exist as a legal tactic; helping to ensure that a more specific variant of the invention is covered, in the event that the parent claim is later invalidated (ruled too broad, revoked upon discovery of prior art, struck after re-examination, etc).
  - sp332 17y ago
    But in case of a legal dispute, it may be that only certain contested claims are ruled illegitimate. So it makes sense to have many claims ranging from less to more specific, instead of having a few specific claims, so that maybe a somewhat wider claim will make it through a legal dispute.
    - roc 17y ago
      There's absolutely a lot of legal strategy in developing claims. There are very good reasons that top firms hire specialized IP lawyers. All that is, however, an aside. The original point stands: If this patent issues, any competing invention that merely contains all the elements of that broad independent claim, would be infringing. Those more-specific dependent claims are only a concern if you plan on prevailing in court against the broad one. As setting foot in a courtroom is a net loss for most innovators, the very existence of those dependent claims is essentially irrelevant.

by roc 17y ago

_delirium 17y ago

Yeah, the claims are weird here, even just in terms of format. Usually claims are these dense paragraphs you can't interpret without a background in patent law, but here, the entire first claim is a few short clauses: A method for developing a computer program product, the method comprising: evaluating one or more refactoring actions to determine a performance attribute; associating the performance attribute with a refactoring action used in computer code; and undoing the refactoring action of the computer code based on the performance attribute. The only really limiting factor is that it could be read narrowly to require a very close "associat[ion]" between the "refactoring action", the "performance attribute", and the "undoing"; e.g. some sort of "refactor-and-keep-only-if-faster" button in Eclipse.

grogers 17y ago

Claims typically start out broad, and then refine further to get at the core of what exactly it is they are patenting. Since many patents are extensions or improvements on existing things this seems to be a common theme in the patents I've skimmed over. This patent application just keeps everything vague and broad, which I suspect is common in many software patents.

roc 17y ago
That's incorrect. An invention is infringing an issued patent if it includes all the elements of any independent claim. Dependent claims, in this case 2 - 5 (the ones that refer to another claim), add specificity, but do not narrow the scope of the original independent claim. They exist as a legal tactic; helping to ensure that a more specific variant of the invention is covered, in the event that the parent claim is later invalidated (ruled too broad, revoked upon discovery of prior art, struck after re-examination, etc).
- sp332 17y ago
  But in case of a legal dispute, it may be that only certain contested claims are ruled illegitimate. So it makes sense to have many claims ranging from less to more specific, instead of having a few specific claims, so that maybe a somewhat wider claim will make it through a legal dispute.
  - roc 17y ago
    There's absolutely a lot of legal strategy in developing claims. There are very good reasons that top firms hire specialized IP lawyers. All that is, however, an aside. The original point stands: If this patent issues, any competing invention that merely contains all the elements of that broad independent claim, would be infringing. Those more-specific dependent claims are only a concern if you plan on prevailing in court against the broad one. As setting foot in a courtroom is a net loss for most innovators, the very existence of those dependent claims is essentially irrelevant.