6 ms·

How is it patentable if the "prior art" exists?

by ordx 5y ago

depereo 5y ago
It's 'first to file' since 2013.
- ratsmack 5y ago
  The US is hobbling itself with software patents. China pretty much ignores all patents and will win in the global market because of this. US companies need to quit the stupid patent wars, lest the become irrelevant on the world markets.
  - WalterBright 5y ago
    I agree that patents are unrealistic in the modern world. Frankly, it seems that most (nearly all) patents have only a trivial amount of money invested to create the idea, other than what the patent lawyer costs. For example, "playing checkers --- with a computer" patents. Ending all patents would not slow down innovation at all. There is one exception, drug patenting, where billions are spent developing a drug and getting it approved.
    - pxeger1 5y ago
      Did I read this wrong, or do you think drug patenting is a good thing? Why?
      - CheezeIt 5y ago
        Do you understand why we have a patent system?
      - jeremyjh 5y ago
        > Why? Did you read this ? > where billions are spent developing a drug and getting it approved
      - gknoy 5y ago
        I'm not the parent, but I think patents for drugs are a good thing. I'm willing to be convinced otherwise, but the ease of copying them (once a chemical is known) combined with the cost of finding the drugs seem to fit very well with the spirit of patents, where new knowledge development is rewarded with a temporary monopoly. I do grant that the practice of patenting small incremental changes to existing patented things ("this drug, with slower release!") does seem a bit questionable, but overall it still seems like a good thing. I'd be interested in hearing your argument for why it's not a good fit.
    - WalterBright 5y ago
      Maybe a reasonable solution would be a patent filer would have to pay a registration fee of $1 million if the patent is approved. So, you might say, only big business could afford to file patents. Not exactly, $1m is well within the reach of a startup. But even for big business, they're not going to file 1000 patents at a cost of a billion dollars. Patent trolling would become an untenable business plan. https://www.seattletimes.com/business/amazon/microsoft-still-no-4-on-list-of-top-u-s-patent-recipients-amazon-bumped-to-no-11/ https://www.seattletimes.com/business/amazon/microsoft-still...
  - dylan604 5y ago
    How many things have you developed after spending unkown amount of time? You don't feel you're entitled to ensure you are credited with that work and allowed to earn from that work? As I've stated elsewhere in this thread, you don't have to be a dick about owning the patent. It's your patent, and you can do with it what you want. There are patent pools that are managed to ensure they can't be used for evil that you can donate your patent to if you can't afford the time to manage it.
    - TrueDuality 5y ago
      There is an inherent disconnect in your argument. Concrete implementations of software deserve protection sure, and do under copyright law. Software patents are attempting to reserve concepts and generally only hurt innovation by restricting other unrelated ideas from using a technique even if they came up with the algorithm entirely in a white box. History has shown time after time of simultaneous development of ideas once all the pieces are available (just look at Calculus). This algorithm is a great example as its a general use encoding mechanism. If I develop software to encode and decode radio transmissions to a satellite using it, patenting it will prevent it from being using for say image encoding and decoding across the web. That use has zero impact on my concrete implementation or my commercial sector. Even for overlapping industries, if there are zero patents, and two competing companies independently come to the same technological solution what is the justification for being able to patent that? If they didn't come to it independently because its available publicly on the web, then its prior art and shouldn't be patent-able anyway. If one reversed engineered the other solution and reproduced it, that's perfectly legal for other industries under certain circumstances and is explicitly allowed under the DMCA. I'm not arguing its right, but if that is supposed to be illegal patents as designed are the wrong tool for enforcement. This isn't a patent covering a specific use of a specific algorithm for a specific industry (which even then I don't think should be patent-able) but the general algorithm itself restricting ALL uses of it. This is an existing concept that was intended to be open, already exists in the real world, and is on route to becoming part of international standards being gobbled up by Microsoft. There does not appear to be a significant or meaningful contribution to the work in this patent and should really have been rejected due to prior art. Saying the original author should have patented this is also facile as that takes an enormous amount of resources that isn't available to most lone developers, or researchers, especially when the intent is to give it away freely to world.
- btrettel 5y ago
  If you're implying that only filed patent applications are available as prior art, that's not right. Anything available to the public can be prior art in the US. (Even some private things can be prior art in the US, for example, an offer to sell the invention creates prior art even if completely confidential.) If MS filed a patent application before anyone else, they could still receive a prior art rejection for anything available to the public like code available online, academic papers, etc. (Source: I'm a former patent examiner.)
  - depereo 5y ago
    Appreciate the clarification.
btrettel 5y ago
I haven't looked at the patent in detail, but in my experience as a former patent examiner, likely the claims cover some new detail missing from the prior art. You need to look at what was claimed to know what is covered. Take a look at claims 1, 19 and 20 to see what is covered: https://patents.google.com/patent/US11234023B2/en https://patents.google.com/patent/US11234023B2/en The application received 3 rejections before allowance, so it's not like the USPTO rubber-stamped it: https://patentcenter.uspto.gov/#!/applications/16456602/ifw/docs https://patentcenter.uspto.gov/#!/applications/16456602/ifw/... I'm not familiar with this technology and don't have time to take a closer look. But if I were to take a closer look, I'd check out what the examiner wrote in their allowance (Notice of Allowance and Fees Due) to see if they identified a specific feature that makes it patentable.
- adrianmonk 5y ago
  > But if I were to take a closer look, I'd check out what the examiner wrote in their allowance (Notice of Allowance and Fees Due) to see if they identified a specific feature that makes it patentable. Thanks. That seems helpful. To save people some digging and so it's easier to discuss, I've copied (actually retyped) something I found which seems relevant. At your second link, there's a document called "Notice of Allowance and Fees Due (PTOL-85)", and starting on p. 10, there's a section called "Reasons for Allowance", which reads: ---------- Reasons for Allowance Claims 1 - 28 are allowed in light of the Examiner's Amendment and the Applicant's response filed on August 23, 2021. The following is an Examiner's statement of reasons for allowance: Applicant has amended independent claim to incorporate detailed subject matter of the decoding process and apparatus. The closest prior art Greenfield et al., (US 2016/0248440 A1), Li et al., (US 2015/0103902 A1) and Converse (US 2017/0164007 A1) do not disclose the claimed element, "during a first phase of the two-phase structure, selectively updating, depending on a determination of whether or not an output symbol from a previous iteration was generated, state of the RANS decoder using probability information for the output symbol from the previous iteration, the state of the RANS decoder being tracked using a value;" and "during the second phase of the two-phase structure, selectively generating, depending on a determination of whether or not the state of the RANS decoder includes sufficient information to generate an output symbol for a current iteration, the output symbol for the current iteration using the state of the RANS decoder, the state of the RANS decoder including sufficient information to generate the output symbol for the current iteration if the state of the RANS decoder is greater than a threshold". Therefore, the prior art references taken either alone or in combination fails to anticipate or fairly suggest the limitations of the independent claims. While using a range asymmetric number system (RANS) decoder was known at the time of the invention, Applicant's very specific claimed structure is considered patentable over the prior art of record. ---------- As a total layman, not knowing the tech here (or patents or law), it sounds promising to me, in the sense that it probably doesn't stop everyone from using RANS. It mentions prior art and says "RANS" ... "was known" in conjunction with that. And it also says "very specific claimed structure", which also sounds like this doesn't cover all of RANS.
SloopJon 5y ago
It's really hard to tell based on an article like this. The ANS creator is quoted as saying, "I don't know what to do with it - [Microsoft's patent] looks like just the description of the standard algorithm." However, who knows how much experience he has with patents? It may be that Duda invented the shoelace, and Microsoft invented the plastic sleeve at the tip of the shoelace. As Timothy Lee says in the article, the problem with this type of patent is that it boxes in how you can use the original technology: you can freely tie your shoes with this shoelace, but if you use a double knot, now you infringe a patent. In some ways, this mirrors the difference between copyleft and permissive copright licenses. By failing to patent the original invention, Duda made ANS useful and widely available, but he now has no leverage against Microsoft.
- inetknght 5y ago
  > By failing to patent the original invention, Duda made ANS useful and widely available, but he now has no leverage against Microsoft. Except, he can challenge Microsoft's patent on prior art terms
  - midjji 5y ago
    With the money he made by making it free?
  - yyyk 5y ago
    How could any normal person possibly afford challenging Microsoft in court?
    - tomrod 5y ago
      By taking it to court. If support is necessary, support can be raised. Big is not invincible.
      - ffhhj 5y ago
        Money is the actual limitation.
bell-cot 5y ago
How large is your legal budget, compared to those of the parties who you wish to coerce, restrict, delay, ...? (No, the Patent Office does not have a good reputation for rejecting prior-art-plus-a-few-minor-tweaks patent applications up front.)

How is it patentable if the "prior art" exists?

by ordx 5y ago

How is it patentable if the "prior art" exists?

depereo 5y ago

It's 'first to file' since 2013.

ratsmack 5y ago
The US is hobbling itself with software patents. China pretty much ignores all patents and will win in the global market because of this. US companies need to quit the stupid patent wars, lest the become irrelevant on the world markets.
- WalterBright 5y ago
  I agree that patents are unrealistic in the modern world. Frankly, it seems that most (nearly all) patents have only a trivial amount of money invested to create the idea, other than what the patent lawyer costs. For example, "playing checkers --- with a computer" patents. Ending all patents would not slow down innovation at all. There is one exception, drug patenting, where billions are spent developing a drug and getting it approved.
  - pxeger1 5y ago
    Did I read this wrong, or do you think drug patenting is a good thing? Why?
    - CheezeIt 5y ago
      Do you understand why we have a patent system?
    - jeremyjh 5y ago
      > Why? Did you read this ? > where billions are spent developing a drug and getting it approved
    - gknoy 5y ago
      I'm not the parent, but I think patents for drugs are a good thing. I'm willing to be convinced otherwise, but the ease of copying them (once a chemical is known) combined with the cost of finding the drugs seem to fit very well with the spirit of patents, where new knowledge development is rewarded with a temporary monopoly. I do grant that the practice of patenting small incremental changes to existing patented things ("this drug, with slower release!") does seem a bit questionable, but overall it still seems like a good thing. I'd be interested in hearing your argument for why it's not a good fit.
  - WalterBright 5y ago
    Maybe a reasonable solution would be a patent filer would have to pay a registration fee of $1 million if the patent is approved. So, you might say, only big business could afford to file patents. Not exactly, $1m is well within the reach of a startup. But even for big business, they're not going to file 1000 patents at a cost of a billion dollars. Patent trolling would become an untenable business plan. https://www.seattletimes.com/business/amazon/microsoft-still-no-4-on-list-of-top-u-s-patent-recipients-amazon-bumped-to-no-11/ https://www.seattletimes.com/business/amazon/microsoft-still...
- dylan604 5y ago
  How many things have you developed after spending unkown amount of time? You don't feel you're entitled to ensure you are credited with that work and allowed to earn from that work? As I've stated elsewhere in this thread, you don't have to be a dick about owning the patent. It's your patent, and you can do with it what you want. There are patent pools that are managed to ensure they can't be used for evil that you can donate your patent to if you can't afford the time to manage it.
  - TrueDuality 5y ago
    There is an inherent disconnect in your argument. Concrete implementations of software deserve protection sure, and do under copyright law. Software patents are attempting to reserve concepts and generally only hurt innovation by restricting other unrelated ideas from using a technique even if they came up with the algorithm entirely in a white box. History has shown time after time of simultaneous development of ideas once all the pieces are available (just look at Calculus). This algorithm is a great example as its a general use encoding mechanism. If I develop software to encode and decode radio transmissions to a satellite using it, patenting it will prevent it from being using for say image encoding and decoding across the web. That use has zero impact on my concrete implementation or my commercial sector. Even for overlapping industries, if there are zero patents, and two competing companies independently come to the same technological solution what is the justification for being able to patent that? If they didn't come to it independently because its available publicly on the web, then its prior art and shouldn't be patent-able anyway. If one reversed engineered the other solution and reproduced it, that's perfectly legal for other industries under certain circumstances and is explicitly allowed under the DMCA. I'm not arguing its right, but if that is supposed to be illegal patents as designed are the wrong tool for enforcement. This isn't a patent covering a specific use of a specific algorithm for a specific industry (which even then I don't think should be patent-able) but the general algorithm itself restricting ALL uses of it. This is an existing concept that was intended to be open, already exists in the real world, and is on route to becoming part of international standards being gobbled up by Microsoft. There does not appear to be a significant or meaningful contribution to the work in this patent and should really have been rejected due to prior art. Saying the original author should have patented this is also facile as that takes an enormous amount of resources that isn't available to most lone developers, or researchers, especially when the intent is to give it away freely to world.
btrettel 5y ago
If you're implying that only filed patent applications are available as prior art, that's not right. Anything available to the public can be prior art in the US. (Even some private things can be prior art in the US, for example, an offer to sell the invention creates prior art even if completely confidential.) If MS filed a patent application before anyone else, they could still receive a prior art rejection for anything available to the public like code available online, academic papers, etc. (Source: I'm a former patent examiner.)
- depereo 5y ago
  Appreciate the clarification.

btrettel 5y ago

I haven't looked at the patent in detail, but in my experience as a former patent examiner, likely the claims cover some new detail missing from the prior art. You need to look at what was claimed to know what is covered. Take a look at claims 1, 19 and 20 to see what is covered: https://patents.google.com/patent/US11234023B2/en https://patents.google.com/patent/US11234023B2/en The application received 3 rejections before allowance, so it's not like the USPTO rubber-stamped it: https://patentcenter.uspto.gov/#!/applications/16456602/ifw/docs https://patentcenter.uspto.gov/#!/applications/16456602/ifw/... I'm not familiar with this technology and don't have time to take a closer look. But if I were to take a closer look, I'd check out what the examiner wrote in their allowance (Notice of Allowance and Fees Due) to see if they identified a specific feature that makes it patentable.

adrianmonk 5y ago
> But if I were to take a closer look, I'd check out what the examiner wrote in their allowance (Notice of Allowance and Fees Due) to see if they identified a specific feature that makes it patentable. Thanks. That seems helpful. To save people some digging and so it's easier to discuss, I've copied (actually retyped) something I found which seems relevant. At your second link, there's a document called "Notice of Allowance and Fees Due (PTOL-85)", and starting on p. 10, there's a section called "Reasons for Allowance", which reads: ---------- Reasons for Allowance Claims 1 - 28 are allowed in light of the Examiner's Amendment and the Applicant's response filed on August 23, 2021. The following is an Examiner's statement of reasons for allowance: Applicant has amended independent claim to incorporate detailed subject matter of the decoding process and apparatus. The closest prior art Greenfield et al., (US 2016/0248440 A1), Li et al., (US 2015/0103902 A1) and Converse (US 2017/0164007 A1) do not disclose the claimed element, "during a first phase of the two-phase structure, selectively updating, depending on a determination of whether or not an output symbol from a previous iteration was generated, state of the RANS decoder using probability information for the output symbol from the previous iteration, the state of the RANS decoder being tracked using a value;" and "during the second phase of the two-phase structure, selectively generating, depending on a determination of whether or not the state of the RANS decoder includes sufficient information to generate an output symbol for a current iteration, the output symbol for the current iteration using the state of the RANS decoder, the state of the RANS decoder including sufficient information to generate the output symbol for the current iteration if the state of the RANS decoder is greater than a threshold". Therefore, the prior art references taken either alone or in combination fails to anticipate or fairly suggest the limitations of the independent claims. While using a range asymmetric number system (RANS) decoder was known at the time of the invention, Applicant's very specific claimed structure is considered patentable over the prior art of record. ---------- As a total layman, not knowing the tech here (or patents or law), it sounds promising to me, in the sense that it probably doesn't stop everyone from using RANS. It mentions prior art and says "RANS" ... "was known" in conjunction with that. And it also says "very specific claimed structure", which also sounds like this doesn't cover all of RANS.

SloopJon 5y ago

It's really hard to tell based on an article like this. The ANS creator is quoted as saying, "I don't know what to do with it - [Microsoft's patent] looks like just the description of the standard algorithm." However, who knows how much experience he has with patents? It may be that Duda invented the shoelace, and Microsoft invented the plastic sleeve at the tip of the shoelace. As Timothy Lee says in the article, the problem with this type of patent is that it boxes in how you can use the original technology: you can freely tie your shoes with this shoelace, but if you use a double knot, now you infringe a patent. In some ways, this mirrors the difference between copyleft and permissive copright licenses. By failing to patent the original invention, Duda made ANS useful and widely available, but he now has no leverage against Microsoft.

inetknght 5y ago
> By failing to patent the original invention, Duda made ANS useful and widely available, but he now has no leverage against Microsoft. Except, he can challenge Microsoft's patent on prior art terms
- midjji 5y ago
  With the money he made by making it free?
- yyyk 5y ago
  How could any normal person possibly afford challenging Microsoft in court?
  - tomrod 5y ago
    By taking it to court. If support is necessary, support can be raised. Big is not invincible.
    - ffhhj 5y ago
      Money is the actual limitation.

bell-cot 5y ago

How large is your legal budget, compared to those of the parties who you wish to coerce, restrict, delay, ...? (No, the Patent Office does not have a good reputation for rejecting prior-art-plus-a-few-minor-tweaks patent applications up front.)