NTP Trying To Drag Out The Patent Rejection Process? Wonder Why...

from the hmm dept

Last week the US Patent Office took the surprising step of reaching out and calling both RIM and NTP to let them know that it's very, very likely to reject all of NTP's patents at the heart of the excruciatingly long patent battle with RIM. This was extremely important because the judge in the patent lawsuit had said that he wouldn't wait for the Patent Office's ruling, mainly because he was sick of dealing with the case (who knew that impatience was a reasonable reason for ignoring important evidence and pushing a billion dollar fine?). So, now, the two parallel timelines become much more important. The companies are supposed to file documents with the court by February 1, 2006 -- and the judge is expected to rule soon afterwards. As for the patent review process, NTP was supposed to get its response in by the end of this month, but has managed to squeeze out a 30-day extension meaning it won't have to file the response until the nearly the same date as when the judge will make his decision. While NTP denies it's dragging out the process, it's clearly in the company's interest to do so. Still, we wonder how the judge can, in good conscience, still move forward with the case when the Patent Office has clearly stated that it believes it made a huge mistake in originally granting these patents. Meanwhile, it still seems like a reasonable question as to whether RIM can sue the Patent Office for its admitted negligence in issuing these patents (though, of course, they might want to wait until the patents are really rejected).


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  1.  
    identicon
    garth brooks ringtone, Dec 30th, 2005 @ 1:07am

    download ringtone for all nokia phone 1100 compose

     

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  2.  
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    patentman, Dec 30th, 2005 @ 4:33am

    ridiculous

    Couple comments about this relatively ignorant post:
    1) The type of inquiry the Patent Office is giving to the patents at issue is of critical importance here, but you did not report it. If the patents at issue are merely being subjected to re-examination, the patentee retains their patent rights and the outcome of the re-exam process bears only as evidence for or against the validity of the patents in question. If the patents at issue are being subjected to re-issue, however, the patentee sacrifices their patent rights, which, of course, means that during the reissue process their is no cause of action. Thus, judges often find it in their interest to wait for the PTO's determination in either of these processes, because they bear directly on a critical question in all patent litigation, namely whether the patents in question are valid. Generally this has nothing to do with judicial impatience. Rather, it has more to do with the fact that the Federal Circuit feels that the PTO is a better judge of patent validity in many instances because Examiners have the time, resources, and expertise in conducting validity inquiries. Indeed, this is what examiners do for a living.
    2) As for NTP delaying the process. It doesn't really matter whether this delay intentional or not. If the time period for response may be extended (which in most cases it can), the patent applicant is fully within their rights to take advantage of that extension. There is no "squeezing out" of a 30 day extension. In almost every case the patent applicant is given a shortened staturoty period of 3 months to respond to an office action, and can extend that time up to three months simply by paying a fee and filing a 1 page petition. Your article makes it sound as though this is difficult. I work in a patent law firm, and it takes me about 5 minutes to fill out one of these petitions and hand it to my secretary for filing.
    3) Re: the judge continuing to allow the case to go on when the PTO "has clearly stated that it believes it made a huge mistake in originally granting these patents." Have you read the Office Actions that the PTO is issuing during the re-exam/re-issue process in this case? If not, then you have no idea whether all of the claims of the patents in question are being rejected by the PTO or just some of them. The claims of a patent do not stand and fall together. Just because one claim may be invalid does not mean other claims in the patent are invalid as well. Thus, the simple fact the PTO is issuing rejections in this instance is not necessarily indicative that the PTO "made a huge mistake in originally grainting these patents."
    4) Regarding you comment about suing the PTO for negligence, that is rubbish. I used to work as an Examiner at the PTO, so I can say first hand that Examiners are given too little time to do their job with 100% accuracy. As an Examiner you do not have time to locate every single piece of prior art on the planet. That would a) cost a fortune, b) take an enormous amount of time and c) render the U.S. Patent system virtually worthless. Suits for negligence usually come down to an inquiry into whether the Defendant used the care that an ordinary person would have exercised (this is a tort standard). Given the enormous challenge the PTO faces resulting from the shear volume of application it is asked to Examine, I highly doubt that any judge would convict the PTO of failing to use reaosnable care in granting a patent. Indeed, agency law indicates that the courts will give substantial deference to the PTO's rules and procedures for patent issuance. Besides, suiing the PTO for negligence would accomplish nothing except to rattle one of the major foundations of the the U.S. Economy.

     

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  3.  
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    NOCcer, Dec 30th, 2005 @ 6:09am

    Re: ridiculous

    You'd think a lawyer could spell statutory.
    For all the procedure and rhetoric blasted out of this response in troll-like fashion, you supply no additional details to enhance the article.
    "The type of inquiry the Patent Office is giving to the patents at issue is of critical importance here, but you did not report it."
    I ask you, what is it then?
    NTP may be able to use the system to delay PTO ruling, but it seems to me that if they were not given the 3-month variety something is up. Per the NYTimes, the PTO is likely to back RIM and its BlackBerry project which would sink the root of this BILLION DOLLAR law suit brought on by NTP.
    "The patent owner's arguments are deemed nonpersuasive," said the patent office document, which was received last week but dated Nov. 30. "The next office action is expected to be a final rejection of all current claims." --Aforementioned article. (U.S. Patent Office Likely to Back BlackBerry Maker -- Dec 20, 2005 NYTimes)
    As for suing the PTO, this is all tongue-in-cheek, but would serve the PTO right for bungling this debacle in the first place. If it is a judge's discretion to let the PTO handle these matters then shouldn't be dismiss the case and let the PTO do its work? That'd be a monumental waste of time and effort at this point, so why not wait for the PTO to make its ruling and base his decision off of that. Instead he takes matters into his own hands and places himself above the "Industry Expert" that you claim is the PTO. He must be a Democrat. ;)

     

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  4.  
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    Anonymous Coward, Dec 30th, 2005 @ 6:22am

    Re: ridiculous

    Eh, the judge is ignoring factual evidence, expert advice, and public sentiment. He must be a Republican.

     

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    Mousky, Dec 30th, 2005 @ 6:49am

    Re: ridiculous

    "render the U.S. Patent system virtually worthless"

    The US patent system has already been shown to be worthless. The majority of patents are never used. They sit on some shelf at the USPTO collecting dust. So much for the patent system encouraging innovation and invention.

     

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    patentman, Dec 30th, 2005 @ 7:20am

    Re: ridiculous

    Eh, the judge is awaiting evidence pertaining to patent validity. He is smart.

     

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    patentman, Dec 30th, 2005 @ 7:38am

    Re: ridiculous

    1) I am not a lawyer. I am a law student who happens to work in a patent law firm. As for my spelling errors, my billing rate is 220/hour. Hence, I'm not going to spell check everything I type in response to ignorant internet posts.

    2) Read my post again, I provided details regarding the relavent patent law that is applicable to the issue at hand.

    3) The PTO can make two types of inquiries into issued patents. Specifically, patents can be re-examined at any time (upon petition by the patentee or a third party) or they can be subject to reissue (within 2 years oif their issuance) upon the petition of the patentee.

    4) The PTO does not "back" anyone. It is an independent governmental entity. It examines patent applications, issues patents, occasionally revisits issued patents (as in this case), and engages in rulemaking, thats it.

    5) Re: the rejection of "all" of the pending claims. Without reading the rejection, all you can interpret from this statement is that the independent claims are rejected. At the PTO, all of the claims are rejected if they are dependent from a rejected base claim. Thus, dependent claims could still be allowable if re-written in independent form.

    5) Re: your comments as to suing the PTO: Quite often judges do suspend litigation until the PTO has re-examined or reissued an application. Dismissing the case without prejudice would actually be more economically wasteful then maintaining the pendency of the case because it prevents the lawyers from having to do the same work twice. If the case is dismissed, the complaint would have to be re-filed, notice again served on the Defendant, briefs would have to be refiled, the litigation schedule would have be completely redone. All this takes a LOT of time, even though it may simply involve resubmiting previously generated documents.

    Also, the judge will take into consideration the PTO's determination, but that determination is only persuasive, it is not conclusory evidence that precludes the judge from exercising his own judgement. The presumption of validity given to all issued patents is simply strengthened or weakened depending on the PTO's determination during the re-exam/re-issue process.

    As for your comment questioning whether the PTO is an "industry expert," have you ever read a patent application? If you have, you know that the vast majority of patent applications are highly technical documents. The Examiners who examine these applications usually have a background in the technology with which the application is concerned. Of all the Judges on the Federal Circuit, I know of ONE that has a technical degree (A BS in chemistry I believe). All of the other judges have some other non-technical degree. Who then do you think will have a better understanding of the technology in a patent application, the Examiner or a judge?

     

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  8.  
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    patentman, Dec 30th, 2005 @ 7:42am

    Re: ridiculous

    Er, no. I agree that the vast majority of Patents are not litigated/enforced. This is in large part due to the fact that it is impossible to predict value of any particular development in technology with any degree of accuracy. If nothing else, patents provide strong incentive for the development of technology that either a) is very costly to research; or b) takes a long time to develop. No one would engage in these types of research projects if someone can come along the day after they make a major discovery and reap the benefits of their work without bearing any of the costs of its development.

     

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    patentman, Dec 30th, 2005 @ 7:44am

    Re: ridiculous

    Just a quick edit, the PTO examines trademark applications and issues trademarks as well.

     

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  10.  
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    JOe Snuffy, Dec 30th, 2005 @ 8:07am

    Re: ridiculous

    "1) I am not a lawyer. I am a law student who happens to work in a patent law firm. As for my spelling errors, my billing rate is 220/hour. Hence, I'm not going to spell check everything I type in response to ignorant internet posts."

    Sounds like someone is trying to overcompensate!!!

     

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  11.  
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    another patentman, Dec 30th, 2005 @ 8:10am

    patently ridiculous

    Hey, patentman, whom are you talking to ?
    Mike is known for his absolute ignorance as far as patent matters are concerned.
    You might as well post your comment to Slashdot and tell them that you work at a patent law firm:
    hive minds will be all over you.
    Just let it go, man...

     

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  12.  
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    Mousky, Dec 30th, 2005 @ 8:52am

    Re: ridiculous

    "As for my spelling errors, my billing rate is 220/hour. Hence, I'm not going to spell check everything I type in response to ignorant internet posts."

    What does your billing rate have to do with posting in place like Techdirt?

     

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  13.  
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    Michael Lee, Dec 30th, 2005 @ 9:20am

    Re: ridiculous

    Your first 3 comments are quite informative and do help to clarify the situation at hand. The 4th comment unfortunately is full of unsound opinions and chicken little fearful paranoia.

    The fact that the PTO issues patents after making a cursory look for prior art is what should be considered ridiculous. If the PTO would be worthless if they actually had to take the time to investigate the existence of prior art then it is the PTO that needs fixed. Suing the PTO will not shake any foundations other than the fat pigs that sit in DC and corporate offices making millions off of wasteful and useless patents that should never have been issued.

     

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  14.  
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    Mousky, Dec 30th, 2005 @ 9:21am

    Re: ridiculous

    Er, no. I said that the vast majority of patents are not used. That is different from "not litgated/enforced". And your argument that patents provide strong incentive is weak since it is based on the good old "slippery slope" argument: if patents are not allowed, then no one will innovate, because joe blow can come along and steal my idea. Do you really think that if there was no patent system, that we would still be stuck in the middle ages? I don't think so.

    That said, the government has bought into the argument and created a system where a monopoly is granted for an idea for a limited length of time. Fine. But, I don't think the system was created so that every single idea could be patented. You may agree with that, but your clients don't. It seems that USPTO spends lots of time researching patents that end up collecting dust. The system is not efficient.

    Your bias as a law student working in a patent law office is come through loud and clear. Afterall you can't bite the hand that feeds you. If your client believes that his government granted monopoly has been infringed on, you will say and do whatever is necessary to win. Nothing wrong with that, but it is a bias on your part. A good lawyer doesn't blow off opposing comments as ignorant. Rather he tries to understand what is behind those comments and how that understanding can be used to improve his own arguments. But you are still a student, so you still have lots to learn.

     

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  15.  
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    patentman, Dec 30th, 2005 @ 9:22am

    Re: ridiculous

    My billing rate has nothing to do with posting here. It has to do with me not spell checking my posts.

     

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  16.  
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    Mike (profile), Dec 30th, 2005 @ 9:22am

    Re: ridiculous

    My favorite thing when patent defenders show up is the tautological nature of their argument. Everything that's happening is just dandy, because that's how the system works. That's what they always say. They refuse to look at the bigger issues about how the patent system is causing problems.

    My complaint is that the way the system works is tragically broken, and the NTP-RIM case demonstrates that in striking fashion.

    Sure NTP is allowed to get an extension, but the point is that this allows them to extend the process in a way that very well could favor them in court, because the judge has clearly stated that he doesn't want to wait around for the PTO -- which certainly seems to have some important things to say about these patents.

     

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  17.  
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    patentman, Dec 30th, 2005 @ 9:23am

    Re: patently ridiculous

    Hey another patentman,

    You are probably right. I'm just trying to spread some factual information among people who act as though they know something about the patent system when they in fact know absolutely nothing about it.

     

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  18.  
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    John, Dec 30th, 2005 @ 9:26am

    Re: ridiculous

    My billing rate has nothing to do with posting here. It has to do with me not spell checking my posts

    No offense, but if I'm paying someone $220/hour, they sure as hell better be able to spell. What you've just said is: "I cost so much that it doesn't pay for me to be careful and accurate." Wow. No wonder you also said that patent examiners don't have time to be careful. I would never hire you as a lawyer. In fact, I'd run as far as possible in the other direction.

    Do you understand how bad that looks?

     

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  19.  
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    patentman, Dec 30th, 2005 @ 9:31am

    Re: ridiculous

    Mike,

    Ok. I see your point. My point is that all you are doing is pointing out flaws in the system. Lots of other people do this, but no one ever comes up with a suggestion that is any better then the current system. Why don't you stretch your brain cells a bit and come up with a solution rather then just criticize a system that, while imperfect, actually performs it function pretty well.

    I'm sick of people who know nothing about U.S. Patent law spout off about how the current system is crap when they have no understanding or appreciuation of exactly why the system is the way it is. The current system has developed over many many years. Does it have flaws? Certainly. But that fact, in and of itself, does not mean the current system is a bad one.

    What you want is a perfect law where no one gets hurt, no problems are encountered, every possible contingency is taken into account, and where the world does not change over time. I don't think that type of law is possible, much less in a area as complex as patents. Try to come up with a law that meets all of the above criteria. I'd bet immeasureable sums of money that you can't.

     

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  20.  
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    Mousky, Dec 30th, 2005 @ 9:32am

    Re: ridiculous

    Are you surprised Mike? The ability of the patent defenders to make money relies on a system that is broken. If the patent system was tightened in terms of patents granted, then the patent lawyers would see a drop in revenue. I'm sure some laywers (and law students) will argue that the only thing that matters is their client winning, the whole David versus Goliath thing (like the recent editorial in The Economist).

     

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  21.  
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    patentman, Dec 30th, 2005 @ 9:39am

    Re: ridiculous

    "No offense, but if I'm paying someone $220/hour, they sure as hell better be able to spell. What you've just said is: "I cost so much that it doesn't pay for me to be careful and accurate." Wow. No wonder you also said that patent examiners don't have time to be careful. I would never hire you as a lawyer. In fact, I'd run as far as possible in the other direction."

    I certainly understand how bad it looks when clerical errors such as types get into court documents, client correspondence, etc. The degree of care with which I prepare documents for a client, however, is infinitely higher then that which I give to responding to remarks on this site.

     

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  22.  
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    Mousky, Dec 30th, 2005 @ 9:41am

    Re: ridiculous

    But the current system could be better, much better. You seem to acknowledge that indirectly. I don't know how long you have been following Mike on this topic, but he is far from advocating a perfect law. He has been consistent in stance that the patent system needs to be re-examined. Why are you opposed to evaluating the current patent system?

     

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  23.  
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    patentman, Dec 30th, 2005 @ 9:42am

    Re: ridiculous

    You really have no clue do you? The clients pay patent lawyers a lot of money is because the law is difficult and the value of the asset at issue (their intellectual property) is very high. You don't hire some schmuck for $5 bucks an hour to defend, enforce, or prosecute a document that is potentially worth millions of dollars per day. If you actually knoew how much work and care went into this stuff you would realize patent lawyers are actually grossly underpaid.

     

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  24.  
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    patentman, Dec 30th, 2005 @ 9:43am

    Re: ridiculous

    I never said I was opposed to re-evaluating the current system. What I'm fed up with is people poiting out flaws in the current system without ever taking the time to propose a solution that is worth two cents.

     

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  25.  
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    Mike (profile), Dec 30th, 2005 @ 9:44am

    Re: ridiculous

    Patentman,

    Hmm. I'm not sure how often you read Techdirt, but I make suggestions on how to improve the patent system all the time. I don't do it in every single post, of course, but to say that all I do is complain about the system without offering constructive ideas is ridiculous and ignorant.

    I have studied the patent system extensively (despite what you claim), and have repeatedly made suggestions for how to make it much better.

    Among the many improvements we've advocated are first recognizing that obviousness and prior art are two different things -- and therefore understanding that ideas can be obvious without their being prior art. Based on that, it makes sense to include some sort of peer review on patents where people who are actual experts in the field can weigh in on the obviousness of the patent. This also helps solve the problem (that even you stated) that patent examiners don't scale. We've also advocated shorter patent exam periods with the ability to extend a patent over longer periods only if the patent is actually being used.

    The core idea behind what we write about here is that the patent system should be used to increase innovation (you know, progress science and useful arts blah blah blah), not just lock up someone's invention. Innovation is all about successfully bringing products to market, and many patents are used for the opposite -- to set up an extra tollbooth for bringing real innovations to market, adding lawyer fees (often at much higher than your $220/hour) rather than money that can go into research and real development.

    We'd also support making the applicant pay additional fees for obviously bogus patent applications -- as it would hopefully cut down on the more ridiculous patent applications.

    Even Thomas Jefferson was quite worried about the patent system, noting that granting exclusive monopolies could serve the reverse impact of slowing down innovation, and believed that patents should only be granted in very rare cases -- something we support.

    I never said we wanted a perfect system (where did I ever say that?), but I do believe it's possible to make a much better system.

    Again, you fall into a tautological argument: "patents are too complex to make perfect, so just leave them as is."

     

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  26.  
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    Mousky, Dec 30th, 2005 @ 9:45am

    Re: ridiculous

    Then why bother mentioning what your billing rate is in the first place? What purpose did it serve in the discussion at hand? Was it to impress us? Hey, if I worked in a consulting firm, I would be billing at about $150/hour, but I'm not sure what saying that adds to this discussion.

     

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  27.  
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    Mike (profile), Dec 30th, 2005 @ 9:48am

    Re: ridiculous

    Oh, also, almost forgot. I've advocated a second test for obviousness: if two entities file mostly overlapping patents around the same time, then you can make a very convincing case that the idea wasn't some stroke of genius by a single party, and that it is the natural progression of the art -- and therefore it does not deserve a patent. It's a good test for non-obviousness, isn't it?

     

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  28.  
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    Mike (profile), Dec 30th, 2005 @ 9:51am

    Re: ridiculous

    The clients pay patent lawyers a lot of money is because the law is difficult and the value of the asset at issue (their intellectual property) is very high. You don't hire some schmuck for $5 bucks an hour to defend, enforce, or prosecute a document that is potentially worth millions of dollars per day. If you actually knoew how much work and care went into this stuff you would realize patent lawyers are actually grossly underpaid.

    Heh. Well, ignoring the "underpaid" part, I have to agree that I don't see what spouting off about your hourly rate has to do with anything in this discussion.

    No one denies that expensive lawyers may be worth it. We just wonder why it's germane to this conversation.

     

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  29.  
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    Rikko, Dec 30th, 2005 @ 9:53am

    Re: ridiculous

    Ok. I see your point. My point is that all you are doing is pointing out flaws in the system. Lots of other people do this, but no one ever comes up with a suggestion that is any better then the current system. Why don't you stretch your brain cells a bit and come up with a solution rather then just criticize a system that, while imperfect, actually performs it function pretty well.

    I don't think that's the purpose of Techdirt, nor should it be. It's here to give a synopsis of technical current events and point out anything interesting in the article.
    Adding some opinion into the summary is a much different mandate than solving the world's problems with every post.
    It's easier to point out fault than mend it, but no one here will argue that the patent system as it stands isn't a huge, complex beast. It can't be overhauled in a 20 minute blog post - this needs the kind of attention that overhauling something like the U.N. requires.

    The current system is crap. It has to be - something that large is built iteratively. Classic example is Windows. It began as a cute, graceful little thing. After years of backward-compatibility requirements and new features it's a bogged-down monster that is stunningly effective considering the legacy support that was needed.
    Yes, the patent system sucks (now). The patent office needs to redesign it from the ground up.
    Yes, Windows sucks (now) - Microsoft needs to redesign it from the ground up.
    Hell, most social programs and political entities suck, too - it's human nature to add on to something when it fulfils a similar role rather than revisiting the nature of the beast.
    There's nothing wrong with that - we just need to realize that when you keep throwing furniture onto the pile, there are gaps inside the pile that make the whole heap unstable.

    You said "where the world does not change over time". Bang on, buddy. It does. And we need to perform more drastic changes on our infrastructure (on every level - the automobile needs to be scrapped, and soon) to compensate instead of the band-aid fixes we always end up with because we're afraid of change.

     

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  30.  
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    another patentman, Dec 30th, 2005 @ 9:56am

    Mike's wishes for

    1) Slay a "patent troll"

    Never mind that "patent trolls", broadly defined as non-manufacturing entities collecting royalties on their "paper" patents, would include all independent inventors, all US universities, all R&D labs and many many innovative start-up companies...

     

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  31.  
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    Mousky, Dec 30th, 2005 @ 10:02am

    Re: ridiculous

    Hmmm, I was under the impression that most patent lawyers work on a contingency fee basis - not being paid until the case is won. So in reality, some clients are not paying for their lawyers anything until the case is done. I am confused, in an earlier post, you said:

    "This is in large part due to the fact that it is impossible to predict value of any particular development in technology with any degree of accuracy"

    But now you argue that the "value of the asset at issue...is very high"? Well, either it is difficult or it is not difficult to predict the value an IP asset? Or do you just use whatever argument supports the point you are trying to make?

    "If you actually knoew how much work and care went into this stuff you would realize patent lawyers are actually grossly underpaid."

    ROTFL. You have got to be kidding. I thought we were having a civilized and informative discussion, then you bring this up. Patent lawyers are paid what the market thinks they are worth. I'm sure there are some teachers and social workers that would like to talk to you about being grossly underpaid.

     

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  32.  
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    patentman, Dec 30th, 2005 @ 10:11am

    Re: ridiculous

    Sheesh. Enough with my hourly rate. I merely stated that to explain why I don't spell check my posts. Give it a rest already.

     

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  33.  
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    Mike (profile), Dec 30th, 2005 @ 10:14am

    Re: Mike's wishes for

    Hmm. No, my wishes are to help improve the process of innovation to help the overall economy. That this may negatively impact companies holding back innovation -- often called patent trolls -- is a side effect.

     

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  34.  
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    patentman, Dec 30th, 2005 @ 10:22am

    Re: ridiculous

    1) None of the patent lawyers I know are paid on a contingency fee basis, except in rare instances.

    2) I misspoke when I made my point regarding the predictability of the value of an IP asset. What I meant to say is that the value of an IP asset is potentially huge (millions per day) but terribly unpredictable (its not all that unlike a lottery in some ways). Most of the patents that are litigated have value that has either been realized in some way (i.e. a patented pharmaceutical composition gets FDA approval) or it is percieved to be of substantial value. The rest of my point flows from there. You don't hire the guy working the McDonalds counter to protect your potentially valuable assets, just like you wouldn't hand your money to a habitual gambler to invest.

    3) Regarding Patent Attorneys being paid what the market thinks they are worth. From an economic standpoint this is true. However, its just a supply and demand issue realy. I would actually prefer to have more patent attorneys in the field so I could be work less. And while we are speaking in economics terms, attorneys have to balance their monetary compensation against the opportunity costs of being an attorney. I would rather be asked to do less work for less money and get to see my family more often then to be paid what I am now.

    4) I agree that teachers and social workers (arguably) are underpaid. I almost became a teacher myself before I decided to become a chemist. Likely I will be a teacher in my second career. But, to paraphrase you, teachers and social workers are paid what the market thinks they are worth.

     

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  35.  
    identicon
    observer, Dec 30th, 2005 @ 10:39am

    the Spirit of the law trumps the Letter for the la

    Well we've heard from "patentman" what the folks in the "business" of patents think, but there is a bigger picture here: how the international community OUTSIDE the legal process perceives what is happening.

    Ultimately, it's those millions of voters in both Canada and the US that follow this case and apply a "gut feeling" perception to the proceedings. The layman's perception may not match the legal minutia, but (in a democracy) the citizens are entitled to judge the legal system on its results rather than just on whether the lawyers and circuit judges involved are functioning as per their legal rights.

    These voters are the ones who need to get out and express their opinions on the corruptions they perceive, which may be simply written in the letter of the law. Certainly a voter movement to get software patents removed in the US will be fought tooth and nail by the companies and their lawyers who perceive themselves as entitled to benefit from such patents, but unless I'm mistaken, this government was created to serve the average citizen, not the lawyers, corporations, and politicians.

    I perceive that this case boils down to an American company exploiting an overworked patent system to raise dubious claims against a successful Canadian company.

    The US can say, "Hey we're the biggest market in the world, and you have to play by our broken rules to do business here." But that just becomes protectionism at some point, and the other side (e.g. Canada) would be right in my opinion to see this sort of behavior as a trade war of sorts.

    Anyways, patentman, take your $220/hour attitude and cash in that money on some karma. You'll need it.

     

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  36.  
    identicon
    another patentman, Dec 30th, 2005 @ 10:48am

    Re: Mike's wishes for

    "Enforcing a valid patent in court" = "holding back innovation" (Mike's view of the world)
    What is the difference between a patent-holding company enforcing valid patent they don't have a product for and, say, IBM collecting royalties on patents they don't use in their products ?
    And US universities ?
    Is University of California also a "patent troll" ? (Eolas vs. MicroSoft)
    My suggestion is to read more serious materials, not just some Fortune-like articles, comparing patent enforcers to Osama bin Laden... Sheesh..
    A good starting point would be reading recent congressional testimonies by some prominent people in IP field, including Peter Detkin himself (the guy who coined the term "patent troll" when he was protecting Intel's ass and who now works for the biggest "patent troll" of all times - "Intellectual Ventures")

     

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  37.  
    icon
    Mike (profile), Dec 30th, 2005 @ 11:14am

    Re: Mike's wishes for

    "Enforcing a valid patent in court" = "holding back innovation" (Mike's view of the world)

    Hmm. When have I ever said that?

    And when did I ever compare patent enforces to Osama bin Laden?

    Man. I'm trying to have a serious discussion about patent issues, and you throw out crap like that.

    I honestly don't care about whether or not anyone is considered a "patent troll". It's nice shorthand for the issue, but the concern isn't about the entity, but what they're doing. Trying to enforce bogus patents, holding back companies that actually innovate is a serious problem for the economy. That's what I'm concerned about.

     

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  38.  
    identicon
    Michael Lee, Dec 30th, 2005 @ 11:45am

    Re: Mike's wishes for

    You must understand that the people who become patent lawyers and become entrenched in the current PTO belief system are going to resort to mistatements, personal attacks, and misdirection because as a lawyer and advocate of self-serving protectionism they have no choice but to react in such a manner... thus is the root of the problem with our patent system.

     

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  39.  
    identicon
    another patentman, Dec 30th, 2005 @ 12:05pm

    Re: Mike's wishes for

    By the way, I am not a patent lawyer.
    I just happen to have a patent of my own.

    Despite all its current flaws and shortcomings US patent system is one of the main reasons why innovation still continues in US, as opposed to many other contries in Europe and Asia.

     

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  40.  
    icon
    Mike (profile), Dec 30th, 2005 @ 12:14pm

    Re: Mike's wishes for

    Despite all its current flaws and shortcomings US patent system is one of the main reasons why innovation still continues in US, as opposed to many other contries in Europe and Asia.

    Do you have any proof to back that up other than just insisting that it's so? Studies have shown in the past that countries with less patent protection have actually increased their rate of innovation -- which is why it's often recommended that developing nations avoid patent protection.

     

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  41.  
    identicon
    dude, Dec 30th, 2005 @ 12:19pm

    Re: Mike's wishes for

    Wait a minute..
    Eintein was a patent examiner in Swiss Patent Office back in 1905 and your reference says that Switzerland didn't have patents during 1850-1907 ?

     

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  42.  
    identicon
    patentman, Dec 30th, 2005 @ 12:47pm

    Re: ridiculous

    "Er, no. I said that the vast majority of patents are not used."

    Well, given that the only rights a patent grants to the patentee is to prevent others from making, using, selling, or importing the claimed invention, I don't see how a patent can be "used" in any manner aside from enforcement and/or litigation.

    "Do you really think that if there was no patent system, that we would still be stuck in the middle ages? I don't think so."

    I don;t think we would be in the middle ages, but I think that a lot of the high tech devices we see now would not exist. Inventors may invent regardless of the presence of a patent system to protect their inventions. They will, however, resort to alternate methods of protecting those inventions, i.e. trade secrets. This logically flows from the fact that it does not make economic sense to spend millions of dollars developing a technology that your competitors can ultimately steal at virtually no cost to themselves. The catch with trade secrets, however, is that they are never divulged to the public willfully.

    "That said, the government has bought into the argument and created a system where a monopoly is granted for an idea for a limited length of time."

    No. No. NO! Rule number 1 of U.S. Patent Law: "Ideas" ARE NOT patentable. To be patentable, an "invention" must fall within one of the statutory classes of invention recited in 35 U.S.C. 101. Namely, an invention must be a new and useful machine, composition of matter, process, etc. Ideas, in and of themselves, do not fall within one of these statutory classes. Thus, ideas, in and of themselves, are not patentable. Sorry to harp on this point, but this is a fundamental misunderstanding that a lot of people have about the U.S. Patent System.

    "But, I don't think the system was created so that every single idea could be patented."

    I agree that no "ideas" should be patented, mcuh less every idea. This may surprise you, but I also agree that not every "invention" should be patented either. Remember, I was an Examiner. My allowance rate was 13% while I was at the PTO. So I certainly agree that everything should not be patented. Hell, I just wrote a paper for my law review journal touting that same point with respect to nanotechnology.

    "Your bias as a law student working in a patent law office is come through loud and clear. Afterall you can't bite the hand that feeds you. If your client believes that his government granted monopoly has been infringed on, you will say and do whatever is necessary to win."

    I don;t see how anything I said before was biased. I've merely tried to explain the U.S. Patent system here. As for saying "anything" to win, I wouldn;t go that far. I'll say anything so long as I know that it is not untruthful or dishonest. If there is room for argument, however (which there is in a lot of patent law), you better believe I'm gonna fight as hard as I can for my client. Indeed, I am bound by Agency law to do so.

    "A good lawyer doesn't blow off opposing comments as ignorant."

    I didn't blow off the other comments in this thread as ignorant, I merely stated that they WERE ignorant, and explained exactly why they were so. I firmly beleive that before you can criticize anything you need to actually understand what you are criticizing. I give mionimal weight to any arguments that criticize the patent office while at the same time employing terminology and arguments that evince a clear misunderstanding of patent law. Quite simply some of the problems people assert (i.e. your statement above that all "ideas" should not be patentable) quite simply don't exist, or at least not in the terms that are expressed.

    "Rather he tries to understand what is behind those comments and how that understanding can be used to improve his own arguments. But you are still a student, so you still have lots to learn."

    I understand perfectly well what is behind the arguments that have been presented in this forum. 50% of what is behind them is ignorance of the U.S. Patent System. The other 50% is a mixture of genuine interest in improving the current patent system or in doing away with it altogether. I haven;t presented any of my own arguments regarding how the current patent system could be improved. I merely defended the current system by stating what the law ACTUALLY is, and how the arguments presented in this forum are, for the most part, fundamentally flawed.

    As for having a lot to learn, I agree, I have a lot to learn about everything. So do you and everyone else in the world.

     

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  43.  
    identicon
    patentman, Dec 30th, 2005 @ 1:02pm

    Re: ridiculous

    I've spent a little time reading your peer review suggestion: While no "formal" system is in place, there is a peer review system available. Its called "ex-parte re-examination." Anyone at any time can petition the PTO to re-examine an issued patent based on a "new issue of patentability," whether that be new prior art, arguments, or otherwise. Indeed, I believe that there was a business a while back that was based on this process (I think it was called "bountyquest").

    I also agree that Patent Trolls are a blight on the current patent system, but as yet I have not discovered a way to get rid of them. Once I have some time I'll think about it for a biut. Might make a good paper.

     

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  44.  
    identicon
    patentman, Dec 30th, 2005 @ 1:07pm

    Re: ridiculous

    Your test has some attractiveness to it, but it also suffers from some flaws. It might be helpful as a supplement to the current standard of obviousness (whether one of ordinary skill at the time the invention was made would have found it obvious to do what the applicant has done), but its a little inflexible to replace it. How close would the two patent applications have to be filed to one another in order to be considered indicative of an obvious modification? One day? One week? One year?

    Also, competitors are often researching the same or similar technologies. The fact that they may both have a "breakthrough" around the same time and file patent applications at around the same time does not necessarily give any indication as to how "obvious" the technology is. Indeed, check out www.zubbles.com (its a site about newly developed colored bubbles). The technology of colored bubbles is seemingly simple, but it took 11 years to develop the correct dye formulation. I would think time in development might be a better standard of obiviousness then closeness in filing. But even time in development is subject to arguments regarding the qualifications of your researchers.

     

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  45.  
    icon
    Mike (profile), Dec 30th, 2005 @ 1:55pm

    Re: ridiculous

    I've spent a little time reading your peer review suggestion: While no "formal" system is in place, there is a peer review system available. Its called "ex-parte re-examination." Anyone at any time can petition the PTO to re-examine an issued patent based on a "new issue of patentability," whether that be new prior art, arguments, or otherwise. Indeed, I believe that there was a business a while back that was based on this process (I think it was called "bountyquest").

    Reviewing after the fact is both way too late and way too expensive (for both parties involved and the patent office). Also, the ex-parte re-examinations almost always focus on prior art rather than obviousness.

    Bountyquest was all about prior art, not obviousness, and had some general problems with its structure. Again, they were focused on dismantling pantents after they were granted -- which is too late for everyone involved.

     

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  46.  
    identicon
    patentman, Dec 30th, 2005 @ 2:53pm

    Re: ridiculous

    Sheesh! I mentioned my billing rate in an effort to explain why I was not going to take 5 minutes to proofread my posts! Thats it! Nothing else!

     

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  47.  
    identicon
    patentman, Dec 30th, 2005 @ 2:57pm

    Re: ridiculous

    Well, considering as how obviousness (at least obviousness under 35 U.S.C. 103(a)) is predicated upon the application of prior art, I'm not sure how else you would conduct peer review.

    If you mean to tell me that you would have independent people in the field comment on patent applications during the examination process I'm not sure how that would work. How would you get around competitors simply saying "thats obvious!" to prevent their opponents from getting a patent?

     

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  48.  
    identicon
    Anonymous Coward, Dec 30th, 2005 @ 3:06pm

    Re: Mike's wishes for

    "You must understand that the people who become patent lawyers and become entrenched in the current PTO belief system are going to resort to mistatements, personal attacks, and misdirection because as a lawyer and advocate of self-serving protectionism they have no choice but to react in such a manner... thus is the root of the problem with our patent system."


    Actually, I became a patent lawyer because I was sick of being stuck in a lab (I was a chemist at the naval research lab at one point) but I wanted to keep using my brain to think about science and technology. Patent Law seemed a perfect career option for me at that time.

    As for resorting to misstatements. HAH! I have spent at least an hour and half today correcting other people's misstatements on this forum. How am I "entrenched in the current PTO belief system" by stating what the law actually is.

    And stating that some of the posts in this forum are ignorant is not a personal attack. I'm just stating a fact.

    The root of the PTO's problem in my opinion has nothing to do with lawyers. Rather, it has to do with the explosive growth of science and technology over the last 100 years which has caused a flood of hundreds of thousands of patent applications to come cascading down about 4000 Patent Examiners. The PTO needs to double or triple their Examination personnel or the law needs to be entirely re-worked. Given the reliance interest already built up in the current system, I am for taking the easier and less painful option of increasing the number of Examiners.

     

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  49.  
    identicon
    Rikko, Dec 30th, 2005 @ 3:16pm

    Re: ridiculous

    Sheesh! I mentioned my billing rate in an effort to explain why I was not going to take 5 minutes to proofread my posts! Thats it! Nothing else!

    You can bang your head against the wall insisting that for hours, but I don't think anyone here is fooled. It was nothing shy of an arrogant attempt at impressing people.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    Mike (profile), Dec 30th, 2005 @ 3:29pm

    Re: ridiculous

    Well, considering as how obviousness (at least obviousness under 35 U.S.C. 103(a)) is predicated upon the application of prior art, I'm not sure how else you would conduct peer review.

    So, because of your lack of creativity we need to stick with a broken system? Seems like an odd solution. Just because the law says obviousness is based on prior art doesn't mean it should be.

    If you mean to tell me that you would have independent people in the field comment on patent applications during the examination process I'm not sure how that would work. How would you get around competitors simply saying "thats obvious!" to prevent their opponents from getting a patent?

    Oh, wait, the better solution is to have people who have no idea about the specifics say whether or not something is obvious? I would say that's a much bigger problem.

    Anyway, it's not hard to craft a peer review system that takes what you say into account. Anyone saying that an idea is obvious would need to support it with a clear showing of how the state of the art was clearly leading in the direction of the patent app and explain why no one else had done it yet if there's no prior art. We're not talking about a blackball system where one person says "that's obvious" and the system is gone. Rather, it's about getting real experts to weigh in on the obviousness to make it much easier for the patent examiner to make a truly informed decision on the obviousness of the invention.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Anonymous Coward, Dec 30th, 2005 @ 3:30pm

    off topic Feature Request

    I don't know how much work is involved, but threaded comments would be very helpful. It's sometimes difficult following who was replying to which message.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    patentman, Dec 30th, 2005 @ 3:30pm

    Re: ridiculous

    "You can bang your head against the wall insisting that for hours, but I don't think anyone here is fooled. It was nothing shy of an arrogant attempt at impressing people."

    Oh wow. You got me. Thats exactly right. I go around telling people what my firm charges for my time because I have a small penis. Oh no, I think I'm gonna cry!!!!!

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    patentman, Dec 30th, 2005 @ 3:39pm

    Re: ridiculous

    "So, because of your lack of creativity we need to stick with a broken system? Seems like an odd solution. Just because the law says obviousness is based on prior art doesn't mean it should be."

    Ah, and now who is resorting to personal attacks? The peer review idea is yours. I was merely asking a question. Touchy are we?

    "Oh, wait, the better solution is to have people who have no idea about the specifics say whether or not something is obvious? I would say that's a much bigger problem."

    Ok, I agree that some Examiners are idiots. That said, there are a lot of very intelligent Examiners with a lot of industry experience at the PTO. Just about everyone in my art unit had a pHd and 5+ years of experience in the area of technology that they Examined. Not only that, but Examiners read about a specific area of technology for 3-6 hours a day, 5 days a week. I'd hardly say that they "don;t know the specifics." I used to Examine magnetic recording media. After doing that for 6 months I knew within 5 minutes of reading the claims of an application what I had not seen before, and then I went searching.

    "Anyway, it's not hard to craft a peer review system that takes what you say into account. Anyone saying that an idea is obvious would need to support it with a clear showing of how the state of the art was clearly leading in the direction of the patent app and explain why no one else had done it yet if there's no prior art."

    Ok, your "peer review" system is basically the current Examination system except it allows industry competitors to quibble over what is obvious without any hard proof? How exactly do you provide "a clear showing of how the state of the art was clearly leading in the direction of the patent app" without prior art? As my mo used to say, "the proof is in the puddin," and Mike, I ain't seein no puddin in your peer review system. Why don't you explain it to me a little better? I know you are just going to say I'm entrenched or attacking you or something. C'mon, for the purposes of a friendly, albeit heated, academic debate. Pretty please????

     

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  54.  
    identicon
    patentman, Dec 30th, 2005 @ 3:42pm

    Re: ridiculous

    "We're not talking about a blackball system where one person says "that's obvious" and the system is gone. Rather, it's about getting real experts to weigh in on the obviousness to make it much easier for the patent examiner to make a truly informed decision on the obviousness of the invention."

    You can find an "Expert" who will say anything you want him to say for the right amount of money. This highlites the major issue of patent law, and why I love working in this field. Namely, there are no 100% fool proof answers. Obviousness is a judgement call!

     

    reply to this | link to this | view in thread ]

  55.  
    icon
    Mike (profile), Dec 30th, 2005 @ 4:00pm

    Re: off topic Feature Request

    I don't know how much work is involved, but threaded comments would be very helpful. It's sometimes difficult following who was replying to which message.

    Already exists. There's a link at the top of the thread to see threaded comments. Or, just remove the "_F" at the end of the URL. Or just go here.

     

    reply to this | link to this | view in thread ]

  56.  
    icon
    Mike (profile), Dec 30th, 2005 @ 4:02pm

    Re: ridiculous

    You can find an "Expert" who will say anything you want him to say for the right amount of money. This highlites the major issue of patent law, and why I love working in this field. Namely, there are no 100% fool proof answers. Obviousness is a judgement call!

    Right, but right now it's not even a judgment call at all. Patent examiners are only looking for prior art rather than any sense of obviousness

     

    reply to this | link to this | view in thread ]

  57.  
    icon
    Mike (profile), Dec 30th, 2005 @ 4:12pm

    Re: ridiculous

    Ah, and now who is resorting to personal attacks?

    Hmm. No, that wasn't a personal attack. That was a clear statement. You admitted that you couldn't come up with a better way, and then concluded that none could exist. I pointed out that you weren't the final arbiter of ways things could be done, and that maybe some others could come up with a better system.

    As for the rest of your comment, I'm guessing it's sarcasm, so I'm not sure what you want me to say. First you say I'm useless because I don't present any recommendations. Then I give you plenty of recommendations and you mock me? Sorry man.

    My point was that there are ways to design a peer review system that works better than what we have now. Peers who are working in the industry obviously have a much better sense of what's obvious to the skilled practitioner, and yet you want to keep them out. As for how you show the state of the art, you can clearly show the progression in the field, and how it points towards what the patent defines. Or you could simply state the problem and see if others in the field can also come up with solutions -- again, suggesting that the invention isn't non-obvious.

    There are plenty of ways to make the system better. Why are you so resistant to them?

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Patentman, Dec 30th, 2005 @ 4:26pm

    Re: ridiculous

    "Peers who are working in the industry obviously have a much better sense of what's obvious to the skilled practitioner, and yet you want to keep them out."

    When did I ever say I wanted to keep industry experts out? I want you to explain your system beyond simply stating one sentence. I ask again, How do you prove something without prior art? Actually now that I think about it, what exactly do you think prior art is? That might help clarify things.

    As for the rest being sarcastic, some of it was, some of it was not. You can seriously find an expert to say just about anything you want. That said, I don;t know how you could get around your experts being biased in some way? Please explain that to me. (This is not sarcastic, I seriously want you to explain your reasoning to me).

    "As for how you show the state of the art, you can clearly show the progression in the field, and how it points towards what the patent defines."

    How? Please explain. Its a simple question. How do you provide proof of where the art is progressing, without prior art?

    "Or you could simply state the problem and see if others in the field can also come up with solutions -- again, suggesting that the invention isn't non-obvious"

    This only works if the people you query have no knowledge of the claimed invention or the patent application, else your panel would be intolerably tainted by hindsight. Will you at least concede that? Assuming that you have an unbiased panel that is ignorant of the problem, the question then becomes how do you pose the problem to these experts without giving away the solution? Please explain.

    No sarcasm, just questions. Explain your position. you've obviously put some thought into this, lets chat about it.

     

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  59.  
    identicon
    patentman, Dec 30th, 2005 @ 4:28pm

    Re: ridiculous

    You use the word "obviousness" a lot. 'm not certain how exactly you are defining the term. Please explain.

    For the record, patent examiners look for prior art to establish obviousness. Under the current system obviousness cannot be established without prior art unless the examiner is asserting an inherency argument or is willing to be subject to a deposition for taking judicial notice.

     

    reply to this | link to this | view in thread ]

  60.  
    icon
    Mike (profile), Dec 30th, 2005 @ 4:41pm

    Re: ridiculous

    Heh. So, before I was ignorant and obviously hadn't done any research, and now I've obviously put some thought into this. :) Okay, you've proved your point that "obviousness" can be a flakey subject -- though I don't know if that's what you intended.

    I already said that finding a single expert isn't enough. We're talking about multiple peers weighing in on the issue. Why do you keep going back to the fact that a single person could be biased? Besides, as we said, anyone weighing in would have to make their case about why something is obvious. It's not as simple as just raising a hand and saying "that's obvious."

    As for your other questions, I may try to address them in more detail soon, but I actually do have to run now. But, I guess I'm still not sure why you don't understand how people can show progression of a field. What's confusing about it to you? It seems pretty straight forward. You show how the science has updated and how it trends towards solving specific problems, and you can make the case that the next steps are fairly obvious. "Proof" is a loaded word, because as we both agree, there's no absolute "proof" of obviousness -- but if enough people make a convincing case that it is fairly obvious (or we see others have made the same "breakthroughs") then it certainly raises serious questions why one person deserves the patent.


    This only works if the people you query have no knowledge of the claimed invention or the patent application, else your panel would be intolerably tainted by hindsight.


    Hmm. That's not true. If the invention is non-obvious to those skilled in the art, then the problem that's being solved should still cause problems, shouldn't it? If it's so easy that as soon as someone states the problem, others come up with the same solution... then you've got *serious* problems with your "obviousness" standard. Unless you're saying that it's "any solution" to a problem that should be patented, rather than a specific one -- and, if that's the case then we've got even more problems to discuss, because that's very problematic.



     

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  61.  
    icon
    Mike (profile), Dec 30th, 2005 @ 4:46pm

    Re: ridiculous

    As for obviousness, as should be pretty damn clear by now there are plenty of things that can be considered "obvious" without prior art. I'll even point you to PFF's filing on this -- and they're big patent supporters. Just because there's no prior art doesn't mean it's not obvious. Bringing it all right back to what this story is about. NTP patented "wireless email," which is just the mixing of two ideas in a way that's fairly obvious once wireless technologies got good enough to handle it and never should have been patented in the first place. Should we also have been able to patent "wireless news" "wireless web browsing" "wireless contact manager" just because it added a wireless component? No, because it's obvious. You're just moving the platform. Yet, those are the types of patents we see all the time. No "prior art", but plenty obvious.

     

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  62.  
    identicon
    Mousky, Dec 30th, 2005 @ 6:05pm

    Re: Mike's wishes for

    The time periods in the title of the book refer to the periods being studied. Switzerland introduced a patent system in 1888. So obviously, the book looks at innovation before (1850 to 1888) and after (1888 to 1907) the patent system was introduced.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    patentman, Jan 3rd, 2006 @ 5:49am

    Re: off topic Feature Request

    " threaded comments would be very helpful."

    Click "threaded" right under the story

     

    reply to this | link to this | view in thread ]

  64.  
    identicon
    michelle, Apr 18th, 2007 @ 4:35pm

    hi

    i dnt get y it dosnt tel me abouut the laws

     

    reply to this | link to this | view in thread ]

  65.  
    identicon
    Anonymous Coward, Apr 18th, 2007 @ 4:36pm

    Re: Re: ridiculous

    o wel

     

    reply to this | link to this | view in thread ]


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