Patent Office Proposes Speed Lane (And Slow Lane) For Patents; Treating The Symptom, Not The Disease

from the that-won't-solve-anything dept

One of the big complaints with the US Patent and Trademark Office is the insane length that it takes these days to get a patent approved. It can be many years at this point. The USPTO has set a goal to help deal with that problem, but so far all we've seen are things like getting examiners to approve more patents. That doesn't help at all. The real problem isn't the patent approval process, it's the patent system itself. The whole setup of the patent system is wrong. If it worked as intended, and was used as a tool to promote innovation, you would see just a small number of patents approved. Right now, it lets through tons of patents that have no impact on progress whatsoever, except perhaps to hinder it. But because of massive abuse of the system, the response has been to flood the system with even more patent applications. The system of having random patent examiners determine what is and what is not both new and non-obvious doesn't scale.

The latest plan from the PTO isn't going to help matters either. The idea is to set up a speed lane and a slow lane for patents. The speed lane means that you pay more and your patent gets reviewed faster (within a year). The middle lane is the same as it is today... except (oops) you now get pushed down a bit because of all the big spenders in the fast lane above you. Then there's the slow lane, which is cheap, but don't expect to see your patent for ages. Apparently they might add some setup with the slow lane that also separates payments out, so you can submit the patent, but later decide to not follow through on it, without having to pay as much. It sounds sort of like a parallel to today's provisional patent system.

Of course, none of this will help. It just means that companies with more money to spend will jump to the fast lane, clogging that fast lane, and lengthening the wait times for those who don't want to spend that much money. It's difficult to see how that helps. The real issue is vastly cutting back on what is considered patentable. Move way from having companies feeling the need to patent anything and everything and get them back to focusing on competing in the marketplace. If there must be a patent system, let it be limited to the rare cases where there is actual proof that the gov't granted monopoly makes sense (if those exist) and where there's no likelihood of independent invention coming up with the same thing at about the same time (a key point that should determine obviousness).


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  1.  
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    Richard (profile), Jun 4th, 2010 @ 2:40am

    Triage

    On the basis that far too many patents are being approved (probably be a factor of about 100) we really need a triage system to kick out all the obvious patents quickly.

    We could also introduce and "interest" test to kick out stuff that is novel and non-obvious - but plainly pointless.

    The best way to achieve this would be to make patents free and fund the patent office directly from general taxes with a limited budget.

    Patents could then be sent out to academics for review. (like papers at the SIGGRAPH conferences). Given that SIGGRAPH manages to kick out most of what is submitted within a couple of months, and accept the good stuff within four, we could look forward to a greatly speeded up and slimmed down system.

     

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    ernestinis, Jun 4th, 2010 @ 5:14am

    Patent Office can also add more options:

    200% of base price: Patent without review.
    400% of base price: Bulk patent generator - all combinations of supplied keywords
    600% of base price: Patent blank form with current date, so that text will be included later.

     

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    fogbugzd (profile), Jun 4th, 2010 @ 5:18am

    Fast lane, Medium Lane, and Troll Lane

    I think the slow lane should be named the "troll lane." It would be very popular among patent trolls.

    Trolls would love it, and probably file more patents than they do now. For one thing, it is simple economics. It's cheaper, and with patent trolling volume matters. But the real plus is that patent trolls file obvious patents. Because the ideas tend to be overly broad and obvious, the slow lane only gives productive companies more time to develop products that can be claimed infringing and get them well established in the marketplace.

    The only thing that might make the slow lane more attractive for patent trolling is if it came with a discount on plane tickets to East Texas.

     

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    hmm, Jun 4th, 2010 @ 6:16am

    overtaking

    what if a big company (perhaps named after some sort of popular fruit?) ran a patent through the fast lane, but some poor inventor at home (who'd already shown the product to the fruit-based company) could only afford the slow lane?

    big company wins the race..nabs HIS patent first......resulting in massive legal costs to undo the damage.................

     

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    Hulser (profile), Jun 4th, 2010 @ 6:35am

    Supply and Demand

    In a perverse way, this is just an application of simple economics. If you have high demand and low supply, it means you can raise your price. It may sound like they've just added pricing tiers that include cheaper options, but unless they're planning on hiring more reviewers, in practice all they've done is jacked up the overall price.

     

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    WammerJammer (profile), Jun 4th, 2010 @ 7:33am

    Stop software patents

    Software in the past has always been copyrighted, not patented. It's killing innovation in software development because too many basic functions have now become patented. Case in point is the patent held on pull-down menus. (European Patent: 1560182 and US Patent: 6621532 also covers toolbars) Huh!! That's one of the original functions of software development. All software and millions of web pages use some form of pull-down navigation system. So now I have to pay some nameless organization in Europe and IBM in the US just because I follow basic software/web page design. That just killed thousands and maybe even millions of independent software consulting jobs and makes you work for a large concern that can afford the licensing. There goes another garage game. The idiot politicians refuse to remember that it is the little guy that comes up with the invention in his garage. Remember Apple in the 80's??

     

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    Anonymous Coward, Jun 4th, 2010 @ 8:37am

    "where there's no likelihood of independent invention coming up with the same thing at about the same time"

    How exactly does one gauge the likelihood of independent invention? If we are to have patents then approvals need to be based on things we can actually measure, not on someone's opinion.

     

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    Mike Masnick (profile), Jun 4th, 2010 @ 10:52am

    Re:

    How exactly does one gauge the likelihood of independent invention? If we are to have patents then approvals need to be based on things we can actually measure, not on someone's opinion.

    I see. And how, pray tell, does the current patent system "measure" non-obviousness?

     

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    Anonymous Coward, Jun 4th, 2010 @ 1:10pm

    Re: Re:

    It doesn't, it measures uniqueness. Uniqueness is measurable.

     

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    Anonymous Coward, Jun 4th, 2010 @ 1:29pm

    Re: Re:

    In answer to your question, non-obviousness is measured by demonstrative evidence (e.g., written materials, affidavits, declarations under oath). It is not based upon unsubstantiated hearsay and opinions.

     

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    Anonymous Coward, Jun 4th, 2010 @ 3:42pm

    Re: Re: Re:

    Why can't these same measures be used to measure non - obviousness?

     

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    Anonymous Coward, Jun 4th, 2010 @ 3:43pm

    Re: Re: Re:

    and why can't these same measures be used to measure the likelihood of independent invention?

     

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    Anonymous Coward, Jun 4th, 2010 @ 3:44pm

    Re: Re: Re:

    Every obvious idea was unique at one time or another. But plenty of innovation would occur without patents. So the goal shouldn't be to grant patents on all new solutions to new problems, it should be to grant patents only on solutions to problems that won't otherwise be solved. If you can't adequately do that then that's a criticism of the patent system.

     

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    Mike Masnick (profile), Jun 4th, 2010 @ 4:05pm

    Re: Re: Re:

    In answer to your question, non-obviousness is measured by demonstrative evidence (e.g., written materials, affidavits, declarations under oath). It is not based upon unsubstantiated hearsay and opinions.

    I love it. When it supports my position, insight from experts is considered "unsubstantiated hearsay." When the exact same thing supports your position, suddenly it becomes "written materials, affidavits, declarations under oath."

    Hilarious.

    If it works for non-obviousness, it works for independent inventions as well.

     

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    Anonymous Coward, Jun 4th, 2010 @ 4:26pm

    Re: Re: Re: Re:

    Never said the system was perfect or even good, it is what it is. We need patent reform, not elimination of patents.

    "it should be to grant patents only on solutions to problems that won't otherwise be solved"

    How does one determine whether a problem will be solved or not? In what time frame? Again, the criteria under which we grant patents needs to be objective.

     

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    Anonymous Coward, Jun 4th, 2010 @ 4:48pm

    Re: Re: Re: Re:

    Perhaps you should read my comment again. Decisions on issues such as novelty, non-obviousness, in fact any question of fact before a tribunal...whether the judiciary or a federal agency...is determined against the backdrop of an evidentiary record.

     

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    Jose_X, Jun 4th, 2010 @ 8:08pm

    Re: Triage

    Any patents that stay, I think, to have a hope of promoting the progress, likely need to be much more limited in duration period and almost certainly should not be allowed to be nearly as broad as are many current patents.

    Also, you should not be able to patent anything, no matter how nonobvious, whose results rests entirely within the idealized domain (unaffected by limits of mother nature or our lack of understanding of it) or within the domain of behavior. These things are accessible to everyone wholly within themselves and many minds can conceive of these things without having to undergo expensive experimentation. It is also a fruitless game, when looking exclusively at the actual patented invention, to try and assign fractions of a percentage of contributory effect to third parties -- the result being that many will necessarily have their contributions ignored in order to give a single person a SuperPrize. There is a high cost to society to allow patents that impact many and where there are no necessary very high costs that are keeping many from taking risks. Existing software patent are major offenders here.

    If patents are intended as a subsidy against innovators facing very large obstacles in the market because they lack funds, then they should only be enforceable against players who meet certain criteria (including being of a particularly large size). But better in this case would be to tax these large players a modest amount overall rather than block them off. It's inefficient to block major players off. And the smaller firm (or individual) should never be a legit target of a patent (these already face enough obstacles).

    Taxing income is one way to make sure only the size of profits is hurt rather than the ability to create or profit.

    And without an "independent" invention test, you really can't avoid violating the First Amendment. This is particularly true as concerns individuals (and one more reason why software patents are so unfair to the individual creator).

    "Remember" when patent law was initially written? We really did move at a very slow pace then, including the propagation of information, so it is to be expected there were fewer ways to help inventors back then and more ways to abuse them. The patent duration period (and why have only one flat duration?) has not kept up with the times and been lowered to reflect our more interconnected society and opportunities out there. Thus, the opportunity costs of monopolies have gone up significantly over the years.

     

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    Richard Corsale, Jun 4th, 2010 @ 8:19pm

    Re: Triage

    I think having an academic review of validity is a brilliant idea. You had better hurry up and patent it :)

     

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  19.  
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    Jose_X, Jun 4th, 2010 @ 8:37pm

    Re:

    800% of base price: Waived requirement that the claims need to precede the "first" product: be the first to formally register a description of an existing feature.

    1000% of base price: Gain injunction capabilities against existing products not properly registered at the USPTO.

    [Sadly, in practice, I think we are largely just describing a change in how the patent office markets their existing products.]

     

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  20.  
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    Jose_X, Jun 4th, 2010 @ 8:44pm

    Re: Re: Triage

    WITH a quota of very few patents allowed per year (kind of like a Nobel Prize).

    Of course, why allow monopolies in the first place, we have to ask ourselves? Like with the Nobel Prize, the true value of an achievement is best recognizable if that product is allowed to propagate as freely as possible.

     

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    Jose_X, Jun 4th, 2010 @ 9:20pm

    Re: Fast lane, Medium Lane, and Troll Lane

    Unfortunately, the system is already greatly stacked against the poor: patents are not free and automatic (as is the case for copyright) so as to maximize the chances of giving credit where credit is due rather than to the first sophisticated party with money to formally register something overly broad and likely seen elsewhere or co-developed along with many others (perhaps even rather independently).

    Fact is we didn't invent General Relativity in the 3rd century, but only when social context had evolved enough (eg, gains in key experimental observations and in mathematics). This is why independent invention tends to be common, and why many people not listed in any patent have indeed contributed much to the particular invention, very possibly even more than the inventor of record.

    A monopoly on ideas, aka, on broad descriptions, means we are denying society the incentives and legal means for the best (or even for pretty good) implementations to arise. [Of course, all monopolies tend to be suboptimal, more so if they introduce significant artificial scarcity and greatly affect personal liberties.]

    It's actually more beneficial to society to have trolling against significant industry profits rather than an alternative of long monopolies. [Of course, I doubt companies inventing and creating feel there is justice from trolls. The patent gives too much leverage in negotiations and ignores many important facets of progress, innovation, and freedom of thought.]

    A major problem with the system of cross-licensing that is popular today, where having the most patents gives you significant leverage, is that this serves as a protectionist measure by those that have been in the industry a long time. This also raises the bar to competition and new players (something that large existing players likely feel they have earned by having been around working for a long time -- never mind that they made money during all of those years).

    Patents, if awarded, should be awarded very sparingly. Instituting a small yearly quota would go a long way towards meeting this end.

    Patents, if awarded, should not last that long. A small inventor can sell these rights to a more efficient player.

    Patents, if awarded, should not interfere with small entities or with a very large number of individuals.

    I suspect the current head of the patent office (I think a former IBMer) will be horse trading ideas in order to make the system bearable and keep it from crumbling, and this will include creating more differentiation among patent products.

     

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    Jose_X, Jun 4th, 2010 @ 9:27pm

    Re: Supply and Demand

    The reason the perversion is so significant, and this is not simply a case of increasing profits at the USPTO, is because of what they are giving away: many broad monopolies on what citizens can do and share (or trade) amongst each other.

    Why is it taking so long for the US courts to rule most of this patent granting as unconstitutional? Where is the proof that progress is being promoted? Surely there is much proof that liberties are being curtailed.

     

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    Jose_X, Jun 4th, 2010 @ 9:41pm

    Re: Re: Triage

    >> Also, you should not be able to patent anything, no matter how nonobvious, whose results rests entirely within the idealized domain (unaffected by limits of mother nature or our lack of understanding of it) or within the domain of behavior.

    I did somewhat downplay another important related point (because I was trying to focus on the worst problems): software is information. The product is easily sharable and can be distributed at very low costs. Adding sludge to these gears and wheels will hurt consumers, other inventors, and society at large. [This isn't just theory, as we can see by looking at the vast world of open source software being leveraged by a very large number of individuals, for-profit and not-for profit businesses, governments, and inventors.]

    One way to see that being information is a broader concept than what I originally described and attributed to software is that some software deals with interfacing with the imperfect physical world (eg, as is the case with some software "drivers" when they do work in a way to account for physical limitations of the idealized hardware model). This software sometimes doesn't deal much with elements of human psychology or with the perfectly ideal, yet it is still information and should not be patentable (and Bilski will likely rule along these lines.. I think, as I view the world through a bit of rose).

     

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    Jose_X, Jun 4th, 2010 @ 9:51pm

    Re: Re: Re: Re: Re:

    Well, it doesn't seem you are understanding Mike's point.

    Nonobviousness is quite subjective. Given we can only write and share so much information, it makes sense that the more obvious things will not be said or at least not recorded in any formal manner, more so when the idea was patented very shortly after reaching that obvious state.

    Of course, if we simply measure by what is obvious or not to an average participant in the field, then we are doing quite an injustice to the above average participants and hence as well to society at large. The whole nonobvious criteria is very misguided.

    Meanwhile, recognizing "independent creation" is a matter of fairness and free speech (more so when we are talking about information, eg, software). We aren't provably promoting the progress, yet we are denying free speech and liberties. Wonderful!

     

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    Jose_X, Jun 4th, 2010 @ 10:21pm

    Re: Re: Re: Re: Re:

    >> Never said the system was perfect or even good, it is what it is. We need patent reform, not elimination of patents.

    Who is this "we" who thinks a broken concept and implementation (at least by "our" standards) should not be abolished or at least very greatly cut down in size?

    >> Again, the criteria under which we grant patents needs to be objective.

    And the criteria under which we *deny* free speech and liberties and *thwart* progress should seldom be abused.

    I worry that people talking about patent "reform" are talking about removing hazards to a protectionist system and/or to what allows huge profits to be raked in by major producers.

    >> How does one determine whether a problem will be solved or not?

    I think the point of the higher comment was that since this is not ordinarily achievable, we should perhaps not be considering doling out long patent monopolies. Today's patent monopolies sort of imply that for good from them to exist, it should have been true that "fire" was being brought to mankind much more than 20 years extra early.

    An imperfect system might be preferable over none, but it can't be that imperfect and should be striving to improve itself.

    And the current system has not be adjusted to account for the increased damages monopolies do in the modern world vs. in the late 1700s (even assuming millions of 20 year monopolies would have been acceptable back then).

     

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    staff, Jun 5th, 2010 @ 7:11am

    stop shilling!

    "If it worked as intended, and was used as a tool to promote innovation, you would see just a small number of patents approved."

    Great idea! Let's also start a new policy of granting diplomas to only a few college graduates each year. In fact, we'll do it on a lottery basis retroactively. No need to bother with studying.

    I'm sorry to inform you, you were not selected and your diploma has therefor been rescinded.

     

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    Anonymous Coward, Jun 5th, 2010 @ 11:43am

    Re: Re: Re: Re: Re: Re:

    "I worry that people talking about patent "reform" are talking about removing hazards to a protectionist system and/or to what allows huge profits to be raked in by major producers."

    Right, you are making stuff up, that is all in your head. Like I said, the system is not perfect and it needs reform. Patents should be harder to get and should not last as long. Take your meds and relax.

     

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    Jose_X, Jun 5th, 2010 @ 5:06pm

    Re: stop shilling!

    Perhaps you haven't realized that a diploma is nothing like a patent.

    I, you, and one billion other people can get a diploma on the same subject matter, and we can all go create whatever we want afterward.

    Patents grant monopoly power. The first to get the "patent diploma" has it made while everyone else finds themselves with lots of ideas in their head and a willing body to go with it but disallowed by law from pushing forward as we desire.

    Long broad monopolies are very stifling. The fewer the patents granted, the less the damage.

    [I think I am in the mood to write the White House a letter on various issues of the day, and I'll make sure to let them know how I feel about various monopolies and various groups with significant influence around the White House who don't seem to have the best interests of the nation in mind.]

     

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    Jose_X, Jun 5th, 2010 @ 5:14pm

    Re: Re: Re: Re: Re: Re: Re:

    It's hard to know exactly what you are for when you don't state it explicitly.

    Many large companies stand to gain by removing certain types of trolls who provide a check on their use of patent monopolies for protectionist reasons. These companies also want the patent to go to the first to file even if others came up with the invention first. These changes would make an imperfect system even worse, but these companies would benefit more.

    So, rather than to talk about my "meds", why don't you specify what changes you support and which you don't. This way I don't have to guess about your intentions and can put away my meds.

    Really, I really want to critique your position if necessary. Please stop making me guess.

    [And it might help to leave a quasi unique handle by your comments so that we can tell which "Anonymous Coward" is which.]

     

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    Jose_X, Jun 5th, 2010 @ 5:24pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    >> Many large companies stand to gain by

    Another change some companies want is to make the cost of getting patents even higher since this will overall create less competition for them to get patent monopolies and they will be able to buy much greater leverage relative to everyone else.

    I want fewer patents granted but not if it's achieved by tilting the advantages further in the direction of large wealthy players.

    [BTW, I haven't taken a position on this change by the USPTO since I don't know the details (eg, of how priority will work across speed lanes) so the change could potentially end up being mostly inconsequential.]

     

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    Anonymous Coward, Jun 5th, 2010 @ 11:26pm

    Re: Re: Re: Re: Re: Re:

    I very well understand his point. He has stated and restated numerous times that he has never seen a patent that in his opinion merited its being granted. When asked for specifics as to the basis for his opinion, no such specifics are forthcoming.

    It is one thing to have an opinion, and quite another to back it up with specific and reliable information that is in fact relevant to the opinion.

    Fortunately, in the world of law, be it before a court or agency, relevant and reliable information must be presented. Expert witnesses routinely provide opinions, but in each instance much explain in detail the factual predicates underlying the opinion. Unsubstantiated generalized statements "Well, in my opinion..." do not cut it, and for good reason.

     

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    Mike Masnick (profile), Jun 6th, 2010 @ 1:59am

    Re: Re: Re: Re: Re:

    Perhaps you should read my comment again. Decisions on issues such as novelty, non-obviousness, in fact any question of fact before a tribunal...whether the judiciary or a federal agency...is determined against the backdrop of an evidentiary record.

    As could the question of independent invention. Why you keep insisting otherwise, is beyond me.

     

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    Mike Masnick (profile), Jun 6th, 2010 @ 2:01am

    Re: Re: Re: Re: Re: Re: Re:

    I very well understand his point. He has stated and restated numerous times that he has never seen a patent that in his opinion merited its being granted. When asked for specifics as to the basis for his opinion, no such specifics are forthcoming.

    You make me laugh. I have substantiated my viewpoints in great detail. You simply disagree so you pretend I haven't. Then you bust out some ridiculousness about how when I say experts should be involved it's "hearsay" but when you say they should be involved it's part of the "evidentiary record."

    You're losing this argument badly.

    It is one thing to have an opinion, and quite another to back it up with specific and reliable information that is in fact relevant to the opinion.


    I have done so. Repeatedly.

     

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    Anonymous Coward, Jun 6th, 2010 @ 9:01am

    Re: Re: Re: Re: Re: Re:

    If by independent invention you mean an invention that was a no-brainer to those of ordinary skill in the art to which an invention most closely relates, this could quite easily be one reason for the rejection of a claim on the basis of non-obviousness. However, and like I keep saying, this is something that requires demonstrative evidence in support thereof. Without such evidence being presented there is no basis for a claim in an application to be rejected since it would be merely unsubstantiated conjecture.

    I am not disagreeing that independent invention could be relevant to the issue of non-obviousness. I am only pointing out the need for it to be presented in the form of evidence so that it becomes a part of the evidentiary record from which conclusions of law can be drawn.

     

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    Anonymous Coward, Jun 6th, 2010 @ 9:39am

    Re: Re: Re: Re: Re: Re: Re: Re:

    You have not done so repeatedly, and this is why so many who are well familiar with prosecution practice and the need for an evidentiary record before the USPTO have taken you to task.

    Patentability is determined as of the date an invention is made, and it is the state of the prior art on such date against which the claims of an application are and must be measured.

    Let me use but one example of many I experienced many, many years ago when I was actively involved, inter alia, with prosecution practice. An inventor came up with a means for implementing massive paralled processing. Based upon the evidence at hand it was determined that the invention satisfied the statutorily prescribed requirements and the application was determined to be in full condition for allowance and the grant of a patent. Just prior to the patent being granted I learned of a paralled processing device that on cursory inspection seemed quite relevant, and thusly brought it to the attention of the USPTO. With this other device now being before the agency it was examined in detail to determine how it actually worked, and armed with this factual understanding it was then compared in detail with the instant invention for which a patent was about to issue. It took a few weeks of analysis by various experts in the field of parallel processing before it became apparent that the two devices were "apples and oranges". They both generically pertained to massive paralled processing, but the implementations were significantly different...each going in diametrically opposed directions. This analysis was provided to the agency in the form of affidavits by experts who had examined each of the devices, from which analysis they collectively agreed that the two were markedly different and why this was so. The second device having been shown by "demonstrative evidence" (the affidavits) to be unrelated other than generic relevance to massive parallel processing, the pending application was then passed to issue and shortly thereafter a patent was granted.

    BTW, this particular invention was later hailed within the community of experts working in the field of massive parallel processing as a "breakthrough". In addition, it was almost immediately recognized as such by numerous companies and was rapidly incorporated into their products.

     

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    Anonymous Coward, Jun 6th, 2010 @ 9:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Pardon my typing skills. "Paralled" should, of course, read as "parallel".

     

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    Mike Masnick (profile), Jun 6th, 2010 @ 9:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You have not done so repeatedly, and this is why so many who are well familiar with prosecution practice and the need for an evidentiary record before the USPTO have taken you to task.

    Heh. Actually, I have done so repeatedly, and the only people who take me "to task" appear to be a few anonymous abusers of the system.

    I'm not worried about them. People way above your pay grade seem to take my views seriously, and given the option of listening to an anonymous system abuser vs. someone who actually has the power to do something, guess who's opinion I'm going to care about?

    This analysis was provided to the agency in the form of affidavits by experts who had examined each of the devices, from which analysis they collectively agreed that the two were markedly different and why this was so. The second device having been shown by "demonstrative evidence" (the affidavits) to be unrelated other than generic relevance to massive parallel processing, the pending application was then passed to issue and shortly thereafter a patent was granted.

    And, again, there is nothing stopping a similar analysis for true obviousness. Yet, when I suggest it, you mock it as "hearsay."

    You are not convincing anyone.

     

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

  38.  
    identicon
    Jose_X, Jun 6th, 2010 @ 11:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    >> BTW, this particular invention was later hailed within the community of experts working in the field of massive parallel processing as a "breakthrough".

    There have been many many "breakthroughs" in many areas where patents were not sought, weren't a significant motivational driver, were not possible, or were not desired.

    [And I am assuming from your comment about companies adding the "breakthrough" to their products immediately that the patent holder was willing to license the patent fairly readily.]

    The first point I want to bring up again is that just because something is a breakthrough doesn't mean giving a specific individual a 20 year monopoly is beneficial to society and the advancement within that or related fields (or fair to peers).

    The second point is that there is a *wide gulf* between what most people would consider to be characteristics of a *breakthrough* and the patent requirement of mere *nonobviousness to average* participants. Were you arguing that the patent requirement should be changed from nonobviousness to breakthrough?

    And as a follow-up question: do you think that something like a 5 - 100 patents/year cap would help limit most such granted patents to "breakthrough" patents?

    The above is what I largely thought about saying in reply; however, a few other things come to mind:

    Doesn't 20 years seem like an awful long time to allow exclusion of competition, no matter how much of a breakthrough something is?

    As the number of participants in some field increases, the number of breakthroughs goes up. This means patents do more damage in fields with many participants, especially when one considers that progress is largely evolutionary and very dependent on prior work.

    "Breakthroughs" may represent a revolutionary change, but coming to such understanding is an evolutionary process that is always leveraging social context. Even hard puzzles that take a long time to solve are usually solved largely methodically or based upon inspiration from some other nearby context (and of course, a certain amount of "luck").

    Someone has to be the first. [And note that being the first to find a solution is quite a motivator without considering patents.] In many races, there are many that would finish shortly after the first place finisher, and whose ongoing participation is important for continuing the trend of progress.

    A breakthrough is a team effort. It's like many people chipping away at a large brick wall. Someone is always the first to "break through" and their success (strategy, technique, probability of being in that area, etc) is connected to work done by others, so why should they be the only one allowed to go through the hole for 20 years or to have absolute taxing authority?

    It makes more sense than a monopoly-based system for contributions to progress to earn you virtual tokens which can be cashed in through something like a stake in distribution of an Inventors' Tax on industry profits. The prize would be equitable; it would be modest in most cases (and self-regulating, based on competition from peers) and would be charged on those most able to take advantage of the contributions. Importantly, the prize would not be stifling.

     

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

  39.  
    identicon
    Jose_X, Jun 6th, 2010 @ 11:45pm

    Re: Re: Re: Re: Re: Re: Re:

    Well, Anonymous C., the independent invention certainly may not be developed by someone with ordinary skills nor in a fashion suggesting the invention was obvious.

    In fact, the person coming in second place (or at least not having filed the patent) can very easily have greater insight into the invention and have a superior implementation of the details. For example (as an analogy), there were very smart folks that added to the dialog that helped produce the theory of relativity.

    Should we have given any of them the option to prevent Einstein and others from making their contributions?

    Now, what is mockingly absurd in our current patent system is that the bar has been set so low that we aren't allowing only a genius to hold an Einstein back, we are affording an "above average" or a "hard working or lucky but still average" contributor that opportunity!

    Sad and embarrassing, but not sure which more?

     

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

  40.  
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    Anonymous Coward, Jun 7th, 2010 @ 8:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The only person it seems I am not "convicing" is you, which of course is irrelevant since nothing I or anyone else who has ever commented here as far as I can tell has ever been able to "convince" you to the contrary. You are cocksure of your opinions and simply immoveable, which makes even informed comments many times largely a waste of time. Hence, oftentimes my comments are directed to those who read some of the articles posted here who might otherwise be inclined to take such articles at face value.

    My comments here have been nothing more than pointing out the necessity of backing up opinions with detailed facts, since it is facts that help establish the evidentiary record necessary in any proceeding before judicial and agency tribunals. No expert has been "mocked", a word you seem inclined to toss around with great regularity. It is not "mocking" anyone to make note of the critical need for an evidentiary record before conclusions of law can be drawn by such tribunals.

    Your reference to "pay grade" is surprising since once again facts count, and to my knowledge you have no basis by which to compare my qualifications and experience with those of others you state "have the power to do something" (whatever that means is ambiguous at best). The practice of law embraces far more than merely prosecuting matters such as patents, trademarks, etc. before domestic and foreign offices. The same can be said with respect to litigation. While I have engaged extensively in these activities, I have always been of the mindset that the preferred approach to the practice of law is to prevent problems from arising in the first place. As a consequence, much of my work on behalf of clients has been in the context of affecting substantive changes to federal statutes and regulations so as to eliminate provisions thereof inimicable to the business interests of specific clients and industries. Unlike some within my profession who appear to have no qualms about identifying client names and specific work on their behalf, I hew to the view that client identities and work done on their behalf are sacrosanct and hold them in the strictest of confidence. Moreover, I refuse to engage in the publication of papers touting "look what I have done", as is often the case when decisions are reversed or new precedent established. In the context of regulatory and statutory changes, it would be foolhardy in many situations to shine the light of day on them since they represent matters of strategic importance should future business issues arise.

    Once again restating my basic point, the evidentiary record is the source of information from which decisions are rendered. Unsubstantiated opinions carry no probative value and, thusly, are properly excluded from the record.

     

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

  41.  
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    Anonymous Coward, Jun 7th, 2010 @ 9:41am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I understand in a basic sense the point you are trying to make, but for such assurances as it may provide basic research of the type you describe have never been patentable in the US because they comprise "laws of nature".

    For "work" to be eligible for the possible grant of a patent, such "work" must meet one or more of the various subject matter requirements specified in 35 USC 101. As I type I am awaiting the Supreme Court's decision in Bilski et al., which pertains to the eligibility of "business methods" under 101.

     

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

  42.  
    identicon
    Jose_X, Jun 7th, 2010 @ 2:49pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Yes, 35 USC has a bunch of problems. It stifles, so it is a good thing not everything (like "laws of nature") is allowed to be patented.

     

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

  43.  
    identicon
    Jose_X, Jun 7th, 2010 @ 4:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    >> I hew to the view that client identities and work done on their behalf are sacrosanct and hold them in the strictest of confidence.

    >> In the context of regulatory and statutory changes, it would be foolhardy in many situations to shine the light of day on them since they represent matters of strategic importance should future business issues arise.

    OK, you have reasons to remain anonymous.

    >> My comments here have been nothing more than pointing out the necessity of backing up opinions with detailed facts,

    >> the evidentiary record is the source of information from which decisions are rendered

    It does seem (to an approximation) that the majority of your comments have focused in pointing out that this is not a courtroom (and that Mike's opinions are not going to in and of themselves set law).

    But, since besides pointing out this is not a courtroom, you also appear to disagree with some of Mike's recurring comments with respect to the patent system, it would have been nice if you had added more commentary to elaborate and help support such "opposition" views.

    [For example, the FSF and FFII Bilski briefs were very well written critiques arguing against business and software patents. It would be nice to see someone that supports software, business, or general patents critique these two formal submissions.]

    I think the main point of this and related blog postings is not to offer legal advice to those who might have invested (or wagered) significant funds in support of patents and who might thus be concerned over how courtroom battles being decided might affect them, but rather to communicate to a much wider audience that the current patent system is detrimental to most members of society and to progress. Much of the evidence and analysis referenced and/or presented here could see its way into a courtroom in the future.

     

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


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