12 ms·

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

294 points by beepp 12y ago

vishaldpatel 12y ago
Does it cost a large company more to file a shitty patent than it does the community to crush it?
- beepp 12y ago
  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)
- elliotanderson 12y ago
  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 http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm [2] http://www.quora.com/Whats-the-average-cost-of-a-software-patent-in-the-US/answer/Jordan-L-Walbesser http://www.quora.com/Whats-the-average-cost-of-a-software-pa...
  - alok-g 12y ago
    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.
    - analog31 12y ago
      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
  - monochromatic 12y ago
    > $180-280 That's just for the basic filing fee. You also have to pay the search fee and the examination fee.
- chrisBob 12y ago
  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.
robotys 12y ago
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.
- beepp 12y ago
  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.
  - pbhjpbhj 12y ago
    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.
- dropit_sphere 12y ago
  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.
  - wyager 12y ago
    >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.
wudf 12y ago
Can you write off the time spent as a charitable donation?
- hundt 12y ago
  no edit: source: http://www.irs.gov/publications/p526/ar02.html#en_US_2013_publink1000229698 http://www.irs.gov/publications/p526/ar02.html#en_US_2013_pu...
  - shkkmo 12y ago
    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.
    - AnthonyMouse 12y ago
      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.
    - beepp 12y ago
      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.
zalzane 12y ago
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
- sirdogealot 12y ago
  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?
  - namenotrequired 12y ago
    Isn't translation software trained with machine learning?
    - sirdogealot 12y ago
      If lots of people are helping to translate, it could be. It depends.
- PythonicAlpha 12y ago
  Maybe some clever patent attorneys already have the opposite. Some encryption tool: <Obvious-little-Idea> => <Converter> => <Awesome-sounding-invention>
  - pbhjpbhj 12y ago
    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, ...
- PythonicAlpha 12y ago
dfc 12y ago
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 http://www.law.cornell.edu/wex/patent
- pak 12y ago
  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.
  - analog31 12y ago
    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.
- deleted 12y ago
  [deleted]
- WildUtah 12y ago
  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.
austincheney 12y ago
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/ 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.
- hosay123 12y ago
  My gullibility alarm is ringing loud.. Slideshow: * 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.
  - austincheney 12y ago
    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 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.
    - hosay123 12y ago
      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
DonGateley 12y ago
Does anyone know when all this started? Who got the first software patent and when?
- netcan 12y ago
  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?
bbarn 12y ago
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.
- shmerl 12y ago
  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.
- krschultz 12y ago
  "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.
- 12y ago
krishnasrinivas 12y ago
I read "patents" as "parents"
- seanmcdirmid 12y ago
  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.
  - krishnasrinivas 12y ago
    My auto correction was probably triggered by the adjective "evil" and yours probably by the verb :-)
- robotys 12y ago
  Worse, i write "patent" as "pattern". Such a "designer" i am.
gmisra 12y ago
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?
- neolefty 12y ago
  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.
rowyourboat 12y ago
"Am I evil, or is killing patents just plain fun?" Neither. You just like false dichotomies.
- pbhjpbhj 12y ago
  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?
  - rowyourboat 12y ago
    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.
lyndonh 12y ago
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.
- justincpollard 12y ago
  "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.
  - lyndonh 12y ago
    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.
- blablabla123 12y ago
  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.
chris_wot 12y ago
You are not evil, and killing patents is fun.
Fando 12y ago
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.
- pbhjpbhj 12y ago
  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.
- robotys 12y ago
  No need to think, just look at china.
esquivalience 12y ago
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.
blueskin_ 12y ago
By definition, killing patents is good.
bovermyer 12y ago
Could someone explain to me why patents are ever a good thing? I'm genuinely curious.
- chrisBob 12y ago
  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.
  - g8oz 12y ago
    I used to buy that argument till I read that they typically spend far more on marketing and sales than R&D.
    - hackinthebochs 12y ago
      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.
    - chrisBob 12y ago
      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.
deleted 12y ago
[deleted]
scromar 12y ago
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.
- astrodust 12y ago
  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.
  - scromar 12y ago
    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.
JOnAgain 12y ago
Mis-read title as "patients"

294 points by beepp 12y ago

vishaldpatel 12y ago

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

beepp 12y ago
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)
elliotanderson 12y ago
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 http://www.uspto.gov/web/offices/ac/qs/ope/fee010114.htm [2] http://www.quora.com/Whats-the-average-cost-of-a-software-patent-in-the-US/answer/Jordan-L-Walbesser http://www.quora.com/Whats-the-average-cost-of-a-software-pa...
- alok-g 12y ago
  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.
  - analog31 12y ago
    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
- monochromatic 12y ago
  > $180-280 That's just for the basic filing fee. You also have to pay the search fee and the examination fee.
chrisBob 12y ago
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.

robotys 12y ago

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.

beepp 12y ago
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.
- pbhjpbhj 12y ago
  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.
dropit_sphere 12y ago
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.
- wyager 12y ago
  >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.

wudf 12y ago

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

hundt 12y ago
no edit: source: http://www.irs.gov/publications/p526/ar02.html#en_US_2013_publink1000229698 http://www.irs.gov/publications/p526/ar02.html#en_US_2013_pu...
- shkkmo 12y ago
  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.
  - AnthonyMouse 12y ago
    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.
  - beepp 12y ago
    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.

zalzane 12y ago

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

sirdogealot 12y ago
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?
- namenotrequired 12y ago
  Isn't translation software trained with machine learning?
  - sirdogealot 12y ago
    If lots of people are helping to translate, it could be. It depends.
PythonicAlpha 12y ago
Maybe some clever patent attorneys already have the opposite. Some encryption tool: <Obvious-little-Idea> => <Converter> => <Awesome-sounding-invention>
- pbhjpbhj 12y ago
  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, ...
PythonicAlpha 12y ago

dfc 12y ago

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 http://www.law.cornell.edu/wex/patent

pak 12y ago
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.
- analog31 12y ago
  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.
deleted 12y ago
[deleted]
WildUtah 12y ago
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.

austincheney 12y ago

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/ 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.

hosay123 12y ago
My gullibility alarm is ringing loud.. Slideshow: * 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.
- austincheney 12y ago
  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 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.
  - hosay123 12y ago
    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

DonGateley 12y ago

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

netcan 12y ago
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?

bbarn 12y ago

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.

shmerl 12y ago
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.
krschultz 12y ago
"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.
12y ago

krishnasrinivas 12y ago

I read "patents" as "parents"

seanmcdirmid 12y ago
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.
- krishnasrinivas 12y ago
  My auto correction was probably triggered by the adjective "evil" and yours probably by the verb :-)
robotys 12y ago
Worse, i write "patent" as "pattern". Such a "designer" i am.

gmisra 12y ago

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?

neolefty 12y ago
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.

rowyourboat 12y ago

"Am I evil, or is killing patents just plain fun?" Neither. You just like false dichotomies.

pbhjpbhj 12y ago
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?
- rowyourboat 12y ago
  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.

lyndonh 12y ago

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.

justincpollard 12y ago
"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.
- lyndonh 12y ago
  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.
blablabla123 12y ago
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.

chris_wot 12y ago

You are not evil, and killing patents is fun.

Fando 12y ago

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.

pbhjpbhj 12y ago
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.
robotys 12y ago
No need to think, just look at china.

esquivalience 12y ago

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.

blueskin_ 12y ago

By definition, killing patents is good.

bovermyer 12y ago

Could someone explain to me why patents are ever a good thing? I'm genuinely curious.

chrisBob 12y ago
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.
- g8oz 12y ago
  I used to buy that argument till I read that they typically spend far more on marketing and sales than R&D.
  - hackinthebochs 12y ago
    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.
  - chrisBob 12y ago
    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.

deleted 12y ago

[deleted]

scromar 12y ago

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.

astrodust 12y ago
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.
- scromar 12y ago
  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.

JOnAgain 12y ago

Mis-read title as "patients"