Patent System Gone Mad: Google Doodles Is Now Patented

from the please-make-it-stop dept

As far as I know, Google has never sued nor even threatened anyone else with a patent infringement claim (if anyone knows of any, let me know). The company does file for a fair number of patents, but so far it seems to be focused on using them for defensive purposes. However, as a bunch of folks are submitting, the company has now received a patent on the "invention" of changing your logo for special events. Yes, the concept of Google Doodles is now patented. The patent itself, 7,912,915, took nearly 11 years to get approved, but it still got approved. The claims are pretty short, but here's the key one:
A non-transitory computer-readable medium that stores instructions executable by one or more processors to perform a method for attracting users to a web page, comprising: instructions for creating a special event logo by modifying a standard company logo for a special event, where the instructions for creating the special event logo includes instructions for modifying the standard company logo with one or more animated images; instructions for associating a link or search results with the special event logo, the link identifying a document relating to the special event, the search results relating to the special event; instructions for uploading the special event logo to the web page; instructions for receiving a user selection of the special event logo; and instructions for providing the document relating to the special event or the search results relating to the special event based on the user selection.
I'm hoping that Google and Sergey Brin (who's the named inventor) are planning to use this patent to demonstrate just how ridiculous the patent system is these days. And people were just insiting that the USPTO's new faster approval patent process had safeguards to stop bad patents from getting through. Yeah. Right.


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  1.  
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    Chronno S. Trigger (profile), Mar 22nd, 2011 @ 12:45pm

    VLC

    How long has VLC been changing their logo during Christmas?
    How long has 4Chan been adding the birthday hats to all the posts on it's anniversary?

    Given time, I could probably think of a bunch of things that do that. I don't know if I know any prior art, but it does seem kinda obvious.

     

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    fogbugzd (profile), Mar 22nd, 2011 @ 12:53pm

    Re: VLC

    >>I don't know if I know any prior art, but it does seem kinda obvious.

    Prior art is so narrowly defined by the patent system that it is practically meaningless. Examiners don't have time to look for prior art, and most of them are not familiar enough with the field that they are reviewing to recognize prior art if it existed.

    Obviousness doesn't really have a working definition. And again, the examiners are not generally familiar enough with the fields they are reviewing to recognize when something is obvious.

     

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    :Lobo Santo (profile), Mar 22nd, 2011 @ 12:54pm

    Emphasis mine...

    And people were just insiting that the USPTO's new faster approval patent process had safeguards to stop bad patents from getting through.

     

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  4.  
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    Hiiragi Kagami (profile), Mar 22nd, 2011 @ 12:54pm

    The banner ad is now patented?

    Excellent! Sue away, Google! Rid the internet of them all!

    On topic: I'd offer one, but I'm sure someone's patented "Submit idea via button to interact with virtual community consisting of at least one member having a large helmet and 40 'AC's (asinine commentary) remarking how the patent system is needed."

     

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  5.  
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    fogbugzd (profile), Mar 22nd, 2011 @ 12:55pm

    Registration system

    The patent system has become largely a registration system. Approval mainly means that you have filled out the forms correctly.

     

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  6.  
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    :Lobo Santo (profile), Mar 22nd, 2011 @ 12:56pm

    Re: Registration system

    And paid! It costs a stupidly enormous amount to file for a patent. Of course, the Patent Office has to make enough to cover costs and pay salaries...

     

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  7.  
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    Anonymous Coward, Mar 22nd, 2011 @ 12:59pm

    he patent itself, 7,912,915, took nearly 11 years to get approved,

    And people were just insiting that the USPTO's new faster approval patent process had safeguards to stop bad patents from getting through. Yeah. Right.

    Not sure which horse you want to ride?

     

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  8.  
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    ChurchHatesTucker (profile), Mar 22nd, 2011 @ 12:59pm

    Re: Re: VLC

    ... and most of them are not familiar enough with the field...

    Which is the larger problem. It belies the whole 'skilled in the art' judgement that is supposed to be the determining factor.

    Also, Primary Examiner: Bates; Kevin is a douche.

    Seriously, dude. WTF were you thinking?

     

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  9.  
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    ChurchHatesTucker (profile), Mar 22nd, 2011 @ 1:04pm

    Re:

    The whole 'faster' thing was in response to the backlog.

    Which exists because it has become increasingly obvious that just about anything has a decent chance of getting approved.

     

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  10.  
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    Anonymous Coward, Mar 22nd, 2011 @ 1:07pm

    Re: Re:

    Perhaps. But will it be done quickly or slowly?

     

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    girlzluvme, Mar 22nd, 2011 @ 1:07pm

    with the amount of press google gets anytime a new doodle is posted it is easy to see how someone else would either try to copyright the concept or rip it off for profit. i personally see nothing wrong with protecting a means of attracting people to your site

     

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  12.  
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    ChurchHatesTucker (profile), Mar 22nd, 2011 @ 1:14pm

    Re: Re: Re:

    So, "Do you want to be beheaded, or drawn and quartered?"

    I'm going with cake.

     

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  13.  
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    :Lobo Santo (profile), Mar 22nd, 2011 @ 1:14pm

    Re:

    Yes, it's brilliant to patent something others have been doing for some time already, or you could trademarking a common term--let's say 'app store' for a random one--and then start suing people over using your trademarked generic term.

    I'm glad Google isn't a bunch of lawyer-mongering jerks like Apple.

     

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  14.  
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    Anonymous Coward, Mar 22nd, 2011 @ 1:16pm

    Re: Re: Re:

    Or maybe 11 years is quick! Could have taken 20 years if it were slowly done.

     

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    Chris Rhodes (profile), Mar 22nd, 2011 @ 1:16pm

    Re:

    copyright the concept

    The concept can't be copyrighted, only the expression. If you mean "patent the concept", then yes, Google probably got it to defend themselves against someone else filing for it then suing them. This doesn't make our patent system looks any better, however.

    rip it off for profit

    Rip what off? The logo itself is already copyrighted (and trademarked!), unless you meant "ripping off" the concept of displaying a logo with your company name in it, in which case you're crazy.

     

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  16.  
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    paperbag (profile), Mar 22nd, 2011 @ 1:16pm

    CyanogenMod vs Google

    http://en.wikipedia.org/wiki/Cyanogenmod#Licensing_controversy

    Does this count as Google using legal threats/pressure? They sent C&D first, asked questions later...

     

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  17.  
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    paperbag (profile), Mar 22nd, 2011 @ 1:17pm

    Re: CyanogenMod vs Google

    tho I guess this isn't patent related as it is copyright...

     

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  18.  
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    Chris Rhodes (profile), Mar 22nd, 2011 @ 1:22pm

    Re: CyanogenMod vs Google

    That didn't have to do with patents, I don't think. I think it was more along the lines of a trademark problem. Google didn't like that he was distributing files with Google's name all over it.

    Similar to how Mozilla is all about open source, but they still objected to (the browser now known as) Iceweasel using potentially-confusing trademarked items.

     

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  19.  
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    Anonymous Coward, Mar 22nd, 2011 @ 1:25pm

    Re: Re: Re: Re:

    Quick! Send in the lions. Slowly.

     

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  20.  
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    :Lobo Santo (profile), Mar 22nd, 2011 @ 1:42pm

    Re: Re: CyanogenMod vs Google

    Yes but, Google left open an easy work-around so the end users can have those closed-source programs--just not pre-installed from the ROM.

     

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    iamtheky (profile), Mar 22nd, 2011 @ 1:51pm

    "modifying the standard company logo with one or more animated images"

    This both narrows and muddies the waterway as:

    - those entities playing with their logo to add "static" images or simply redesign it to celebrate events are not infringing.

    - Moreover, it is only when you modify the "company logo" with one or more "animated images" - so those entities altering avatars on posts would also not be infringing.

     

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  22.  
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    Jason, Mar 22nd, 2011 @ 2:16pm

    Number Munchers

    Though it's not a website, the Muncher on Number/Word/Super Munchers for the AppleII donned a Santa hat during the Christmas season...

     

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  23.  
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    Winner., Mar 22nd, 2011 @ 2:51pm

    Winning or Whining... you can't do both.

    Look, since most of you haven't the slightest idea what you're talking about, and you take your legal advice from clueless non-lawyers like Mike, there are three major substantive legal barriers in obtaining a patent. If you can meet these standards, and do the paperwork properly, you almost always get a patent.

    35 USC 102 means you can't patent something unless it's new. There are a few different legal standards in there, but the most important is that no one else did it first. 35 USC 103 means you can't patent something that's obvious. Every single one of you guys are falling to hindsight bias. Sure, it's obvious now, but the patent was filed in 2000. Google could easily have invented it in 1999 or earlier. Most of you weren't even out of grade school yet. Maybe you can find some prior art that shows someone did it, or that it was obvious, and your prior art is from 2000 or earlier. But put up or shut up.

    The last major requirement is a matter of eligibility (35 USC 101). Certain things are simply ineligible for patent protection. Abstract concepts, mathematical formulas, laws of nature, and humans (and their naturally occurring subparts) are ineligible. Doodles are clearly not a law of nature or human. Instead, the patent covers a system which uses different images increase brand attraction -- a measurable improvement on the prior art. Nothing in the patent suggests it covers a mathematical formula, and it's clearly specific enough that it's not an abstract concept.

    So if you can't find prior art, why shouldn't a patent be granted on this?

    If you argue against patents altogether, you'll be written off entirely by nearly every businessman and legislator outside the anti-IP whine-osphere.

    If you argue against software patents specifically, you're either a dirty rotten infringer, or you're just one of the idiots who is so stupid you can't recognize your own stupidity. Sure, Google could engage in traditional marketing. But why should an inventor be penalized because he uses code to efficiently achieve the same result as someone who wastefully doesn't? And before you complain that software is just math, remember that law uses specific qualitative definitions. Pythagorean theorem isn't eligible, but a distance calculation device that uses the theorem would be. Practical implementations of patent ineligible subject matter have invariably been patentable. Mike's not a lawyer. He doesn't know the law and he doesn't know what he's talking about.

     

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  24.  
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    Ady (profile), Mar 22nd, 2011 @ 3:01pm

    deja'vu, 1975

    so, google patented a feature from 1975.
    quote from slashdot:

    deja-vu-all-over-again for the 394 lovers who used the UIUC PLATO system on Feb. 14th, 1975.

    http://www.platohistory.org/blog/2010/02/valentines-day-1975.html

     

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  25.  
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    Anonymous Coward, Mar 22nd, 2011 @ 3:10pm

    Re: Winning or Whining... you can't do both.

    TL;DR

     

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  26.  
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    drkkgt (profile), Mar 22nd, 2011 @ 3:18pm

    Re: Re: Re: Re:

    we're all out of cake. we didn't expect such a run.

     

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  27.  
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    Mike Masnick (profile), Mar 22nd, 2011 @ 3:20pm

    Re: Winning or Whining... you can't do both.

    35 USC 102 means you can't patent something unless it's new. There are a few different legal standards in there, but the most important is that no one else did it first. 35 USC 103 means you can't patent something that's obvious. Every single one of you guys are falling to hindsight bias. Sure, it's obvious now, but the patent was filed in 2000. Google could easily have invented it in 1999 or earlier. Most of you weren't even out of grade school yet. Maybe you can find some prior art that shows someone did it, or that it was obvious, and your prior art is from 2000 or earlier. But put up or shut up.

    Of course, our anonymous friend is being misleading here. Prior art settles issues for 102, but not for 103. It can be useful for determining obviousness, but whether or not something is obvious is NOT necessarily dependent on prior art.

    But, even if you do want prior art, as others have pointed out, there's plenty of that as well:

    http://www.platohistory.org/blog/2011/03/yet-another-plato-innovation-ignored-this-time-pat ented-by-google.html

    But the real issue here is that, no, under no circumstances can anyone think that changing logos based on events to attract attention should be "patentable." It's a marketing strategy. Patenting marketing strategies makes no sense if you're even remotely intellectually honest.

    So if you can't find prior art, why shouldn't a patent be granted on this?


    Because marketing strategies should not be patentable.

    If you argue against software patents specifically, you're either a dirty rotten infringer, or you're just one of the idiots who is so stupid you can't recognize your own stupidity.

    Wow. Love to see you're an open mind who actually has looked at the evidence. But to read the statement above, it proves you're clueless, have never innovated for shit in the software space, and don't a damn thing about what you're talking about. You must be a patent lawyer.

    Sure, Google could engage in traditional marketing. But why should an inventor be penalized because he uses code to efficiently achieve the same result as someone who wastefully doesn't?

    Ok. Help me out here: wtf was "invented" here? Using a different logo is an "invention"? No. It's not.

    Mike's not a lawyer. He doesn't know the law and he doesn't know what he's talking about.

    Heh. Because patent law is designed so that only one person profits: patent lawyers. If someone actually understands innovation or economics, you shouldn't pay attention to them? Convincing.

     

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  28.  
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    Anonymous Coward, Mar 22nd, 2011 @ 3:24pm

    Re: Winning or Whining... you can't do both.

    "Every single one of you guys are falling to hindsight bias"

    You are so right. Techdirt even had a post that demonstrates this clearly and yet they still do not seem to get it:
    http://www.techdirt.com/articles/20100714/03225710210.shtml

     

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  29.  
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    freak (profile), Mar 22nd, 2011 @ 3:49pm

    Re: Re: Re: Re: Re:

    We fed them yesterday. They'll devour you sometime next thursday, or when you annoy them.

     

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    6 (profile), Mar 22nd, 2011 @ 3:52pm

    Guys don't worry about it.

    Computer readable mediums never comprise instructions guys so don't even worry about the claim.

    A device claim must be distinguished from the prior art in terms of structure. Not in terms of instructions.

     

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  31.  
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    Winner, Mar 22nd, 2011 @ 4:26pm

    Re: Re: Winning or Whining... you can't do both.

    Prior art settles issues for 102, but not for 103. It can be useful for determining obviousness, but whether or not something is obvious is NOT necessarily dependent on prior art.
    This is just false, and it shows your ineptitude in patent law. Prior art always frames a 103 rejection. Every student who takes a basic IP law course knows that step 1 of a Graham inquiry is to determine the scope and contents of the prior art. After Graham, secondary considerations are still based on the prior art. Commercial success requires that you beat the prior art in the market. Unsolved needs require that the prior art is missing that last key solution. Failure of others requires that the prior art wasn't working. And unexpected results requires the prior art created some results-space, and your results were outside of them. Finally, a rejection using MPEP 2144.I has 3 arguments which use a direct citation to prior art (reference, knowledge in the art, and art-recognized equivalents). For the other 2, scientific principles are cited from the art, and using legal precedent is still founded on a base of prior art. Shit, look at 35 USC 103 itself (or any case law, or the MPEP)... show me where it says you can get a 103 rejection which doesn't require consideration of the prior art. If you don't understand all of this, congratulations, you don't know basic patent law.

    If Google asserts the patent, the legal applicability of the Plato reference can be tested then. No one expects 100% patent quality at the PTO... that's why validity can be challenged in court and on re-exam. That's why SCOTUS granted cert in Microsoft v. i4i. Again, I wouldn't expect you to know this because you're not a patent lawyer, but when you run your mouth about patent law, you come off as a fool.
    under no circumstances can anyone think that changing logos based on events to attract attention should be "patentable." It's a marketing strategy. Patenting marketing strategies makes no sense if you're even remotely intellectually honest.
    No, it makes no sense to you because you don't know anything about patent law (or doing business on the order of 7+ figures for that matter). Look at the Bilski v. Kappos amicus briefs... roughly 70 briefs, and only a handful argued in favor of the Federal Circuit's ruling. Everyone else was against it. Instead of providing any analysis whatsoever, you just spout these conclusions that the opposition is bad, and you, the clearly unqualified guy, are correct.
    Help me out here: wtf was "invented" here? Using a different logo is an "invention"? No. It's not.
    The invention is not a different logo. It's a system that alters the logo by event, with one of the stated purposes being that it increases brand relations. I'm sure Google ran A/B studies proving that it's effective. You can't tell the difference, because again, you're unqualified.
    whine whine whine, patent lawyers do it just to benefit themselves!
    Tell that to IBM, which has over a third of its revenues in patent licensing alone. Tell that to the brand drug companies which make billions off of blockbusters. Tell that to the investors who put the money in to make it all happen and have a higher chance of recoupment because they invested in innovation.

     

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  32.  
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    Adrian Lopez, Mar 22nd, 2011 @ 4:40pm

    Re: Winning or Whining... you can't do both.

    "If you argue against software patents specifically, you're either a dirty rotten infringer, or you're just one of the idiots who is so stupid you can't recognize your own stupidity."

    The guy who can only see those two alternatives is calling other people "stupid"? Either my irony meter is broken or you aren't the brightest bulb in the bunch yourself.

    "... haven't the slightest idea what you're talking about ... clueless non-lawyers like Mike ... Every single one of you ... Most of you weren't even out of grade school yet ... put up or shut up ... anti-IP whine-osphere ... a dirty rotten infringer ... one of the idiots who is so stupid you can't recognize your own stupidity ... doesn't know what he's talking about."

    I hope you don't think any of this lends strength to your arguments.

     

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  33.  
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    Adrian Lopez, Mar 22nd, 2011 @ 5:15pm

    Re: Re: Re: Winning or Whining... you can't do both.

    "This is just false, and it shows your ineptitude in patent law. Prior art always frames a 103 rejection. Every student who takes a basic IP law course knows that step 1 of a Graham inquiry is to determine the scope and contents of the prior art. After Graham, secondary considerations are still based on the prior art. Commercial success requires that you beat the prior art in the market. Unsolved needs require that the prior art is missing that last key solution. Failure of others requires that the prior art wasn't working. And unexpected results requires the prior art created some results-space, and your results were outside of them. Finally, a rejection using MPEP 2144.I has 3 arguments which use a direct citation to prior art (reference, knowledge in the art, and art-recognized equivalents). For the other 2, scientific principles are cited from the art, and using legal precedent is still founded on a base of prior art. Shit, look at 35 USC 103 itself (or any case law, or the MPEP)... show me where it says you can get a 103 rejection which doesn't require consideration of the prior art."

    Just who do you think you're kidding here? When Mike speaks of prior art he's clearly referring to prior embodiments of the claimed invention rather than to the history of previous inventions that would lead a person skilled in the art to properly conclude the new invention is obvious and therefore undeserving of patent protection.

    PS - Honesty would hurt your argument, so perhaps I shouldn't blame you for being dishonest. I also shouldn't blame you for all the insults in your posts, for those can help fill the holes in your arguments and fool some readers into thinking the more forcefully argued argument is also the more correct.

     

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    btr1701 (profile), Mar 22nd, 2011 @ 5:19pm

    Re: Re: Re: Winning or Whining... you can't do both.

    > No, it makes no sense to you because you don't
    > know anything about patent law

    One doesn't need to know anything about patent law to know that prohibiting me from changing my own company's logo at Christmas time unless I pay a fee for the privilege to Google (or anyone else) is idiotic.

    If the law allows such nonsense, then the law is absurd and needs to be changed. One not need to be a subject-expert in patent law to recognize that.

     

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    HipLegal (profile), Mar 22nd, 2011 @ 6:01pm

    I've seen complaints about the addition of Santa Hats, and splash screens, but it takes three elements to potentially infringe this patent:

    1. Change the company logo itself. Not an icon, not a photo, the company logo.
    2. The change has to be animated.
    3. The logo has to be a link to a website or search results regarding the holiday, so if it is selected the results are shown.

    Find me a prior art piece like that, and you can go back to complaining.

     

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  36.  
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    Paul Hobbs (profile), Mar 22nd, 2011 @ 7:03pm

    Re: Re: Re: Winning or Whining... you can't do both.

    I think you're just a mean old nasty silly-billy. And stop picking on Mike.

     

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  37.  
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    Anonymous Coward, Mar 22nd, 2011 @ 10:54pm

    Re: Re: Re: Re: Winning or Whining... you can't do both.

    exactly, It's a patent on a human beings right to create a form of art. From his own imagination... It's immoral to prevent artistic expression.

     

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  38.  
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    Winner., Mar 22nd, 2011 @ 11:32pm

    Re: Re: Re: Re: Winning or Whining... you can't do both.

    When Mike speaks of prior art he's clearly referring to prior embodiments of the claimed invention rather than to the history of previous inventions that would lead a person skilled in the art to properly conclude the new invention is obvious and therefore undeserving of patent protection.

    This response is so ridiculous and far from what the law regards as prior art that I can't tell whether you're an idiot or sarcastic.

     

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  39.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 1:03am

    Re: Re: Re: Winning or Whining... you can't do both.

    This is just false, and it shows your ineptitude in patent law. Prior art always frames a 103 rejection. Every student who takes a basic IP law course knows that step 1 of a Graham inquiry is to determine the scope and contents of the prior art. After Graham, secondary considerations are still based on the prior art. Commercial success requires that you beat the prior art in the market. Unsolved needs require that the prior art is missing that last key solution. Failure of others requires that the prior art wasn't working. And unexpected results requires the prior art created some results-space, and your results were outside of them.

    You seem to have missed my point. I'm explaining why these rules don't make sense, and when people get so focused on them, as you do, it leads to bad decisions where all sorts of obvious ideas -- such as *changing a logo* -- get patented.

    The *problem* is that folks like you get so focused on prior art you miss the plain language of the law, which is that things that are obvious to those skilled in the art are not patentable. That goes beyond prior art.

    But then we get people like you who are so down in the weeds that you don't even realize you're proving the point that we're trying to make.

    If Google asserts the patent, the legal applicability of the Plato reference can be tested then. No one expects 100% patent quality at the PTO... that's why validity can be challenged in court and on re-exam. That's why SCOTUS granted cert in Microsoft v. i4i. Again, I wouldn't expect you to know this because you're not a patent lawyer, but when you run your mouth about patent law, you come off as a fool.

    I come off as a fool if you think that I'm explaining the way patent lawyers view things. I come off as being entirely accurate if you recognize I'm explaining why the system is broken.

    No, it makes no sense to you because you don't know anything about patent law (or doing business on the order of 7+ figures for that matter). Look at the Bilski v. Kappos amicus briefs... roughly 70 briefs, and only a handful argued in favor of the Federal Circuit's ruling. Everyone else was against it. Instead of providing any analysis whatsoever, you just spout these conclusions that the opposition is bad, and you, the clearly unqualified guy, are correct.


    What does the amicus briefs on bilski have to do with anything? I'm talking about the reality, down here, where people actually innovate.

    The invention is not a different logo. It's a system that alters the logo by event, with one of the stated purposes being that it increases brand relations. I'm sure Google ran A/B studies proving that it's effective. You can't tell the difference, because again, you're unqualified.

    Again, that's NOT an invention. That's a marketing tactic. It should not be patentable. That anyone would defend this as patentable suggests someone who's so tied up in the patent system as to not recognize the simple ridiculousness of what he's defending.

    This is the reason why our patent system is a joke.

    Tell that to IBM, which has over a third of its revenues in patent licensing alone. Tell that to the brand drug companies which make billions off of blockbusters. Tell that to the investors who put the money in to make it all happen and have a higher chance of recoupment because they invested in innovation

    All of which we've discussed, and pointed to economic studies about how much *harm* those all do to actual innovation. In your parlance, you don't know this because you're totally unqualified. It appears you're someone who profits from the system, so no wonder you can't understand innovation or economics.

    Those of use who do not profit off the system, but do see it's astoundingly damaging effects, and who understand economics, and have read the research, find it hard to take people like you seriously.

     

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  40.  
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    Anonymous Coward, Mar 23rd, 2011 @ 7:02am

    Re:

    My complaint is that a feature like this shouldn't be awarded a patent, regardless of prior art. So I'll keep on complaining, thanks.

     

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  41.  
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    Winner., Mar 23rd, 2011 @ 7:26am

    Re: Re: Re: Re: Winning or Whining... you can't do both.

    Just as I pointed out in the first post, you haven't even suggested a reason why this should be patentable. You just conclusively say it's obvious and that's it... and then one of your own commenters called you out on your own post that says you suck with hindsight bias. That's classic.

    And when you said obviousness doesn't always require a prior art analysis, you meant that obviousness shouldn't require one? Praytell, with the infinite wisdom held by a non-lawyer with absolutely no experience in patent law, what standard do you suggest we use then?

    And as for your allegations that I don't know what I'm talking about... I'm not in the weeds... I'm at the forefront of innovation, doing 8-10 figure rounds of funding, putting multimillion dollar products on the market, and patenting it all left and right. I interview more PhDs and MDs in a single day than you shake hands with in a decade.

    What do you do? You copy and paste 10-20 articles a day about people like me... add a little whiny rhetoric here... add some more rhetoric there... crosslink crosslink crosslink... publish. Yeah, you're doing a lot for innovation there. Keep up the good work. You're special. You can do it.

     

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  42.  
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    staff, Mar 23rd, 2011 @ 7:53am

    bad patents

    "bad patents"

    All this talk about bad patens is dissembling. To large multinationals who forever infringe those of others and who are forever whining about having to pay, the only vaild patents are their own.

    It is not innovation that patents hinder, but the theft of.

    “Patent reform”

    Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America.

    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
    http://docs.piausa.org/

     

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  43.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 9:27am

    Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Just as I pointed out in the first post, you haven't even suggested a reason why this should be patentable. You just conclusively say it's obvious and that's it...

    Heh. Finally got you to agree. That's right, no one has pointed out why this should be patentable, because no one who is intellectually honest thinks that *changing a logo* should be patentable.

    and then one of your own commenters called you out on your own post that says you suck with hindsight bias. That's classic.

    Heh. Wow. That's not what that post says at all. But, I see you feel the need to project your own insecurities on others.

    And when you said obviousness doesn't always require a prior art analysis, you meant that obviousness shouldn't require one? Praytell, with the infinite wisdom held by a non-lawyer with absolutely no experience in patent law, what standard do you suggest we use then?

    Such condescension amuses me, because it shows that you know I know more about what I'm talking about than you would like to believe. As I've discussed multiple times, there are all sorts of ways to determine obviousness sans prior art. For example, since the *actual standard* is non-obvious to those skilled in the art, there's simply no reason that you folks at the USPTO can't actually *talk* to those skilled in the art. And before you start, we're not saying that you should just ask people and accept their word, but since the patent examiners tend NOT to really be skilled in the art (otherwise they'd be working in the field, not sitting in the patent office), they should go out and talk to people in the field, and get a sense of whether or not some idea is an obvious solution to a problem. For example, they can point out the problem, and ask about ways it can be solved, and see if anyone comes up with the same or a similar solution. And then use that as part of the determination.

    And as for your allegations that I don't know what I'm talking about... I'm not in the weeds... I'm at the forefront of innovation, doing 8-10 figure rounds of funding, putting multimillion dollar products on the market, and patenting it all left and right. I interview more PhDs and MDs in a single day than you shake hands with in a decade.

    Ha! Now I know you're lying. If you're doing the things you say you're doing (which you're not), then you're not at the forefront of innovation. You're at the forefront of protectionism. One of these days, maybe you'll learn what innovation means.

    What do you do? You copy and paste 10-20 articles a day about people like me... add a little whiny rhetoric here... add some more rhetoric there... crosslink crosslink crosslink... publish. Yeah, you're doing a lot for innovation there. Keep up the good work. You're special. You can do it

    Back to the condescension. And it's good that you're scared of me. You have no idea what I actually do. And that amuses me to no end.

    But, that's fine. Because it means you have no idea what's coming. But I do.

    Anyway, getting back to the subject at hand, which you (probably in error) admitted at the top of the post: there is simply no reason why changing a logo should be patentable. And no one, no matter who they are, if they're intellectually honest, would argue that this should have been patented. This is a marketing strategy. It is not, in any way, shape or form, an invention.

     

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  44.  
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    Anonymous Coward, Mar 23rd, 2011 @ 10:24am

    Re: Re: VLC

    Since KSR the definition of prior art has been expanded to such a degree that it almost certainly runs afoul of the provisions contained in 35 USC 103. To say it is "narrowly defined" is incorrect.

    What you say about patent examiners is interesting and all, but it is a generalization with little support for application across the entire spectrum of all art units within the USPTO. You may wish to reconsider your generalization and pare it down to specific areas where you believe it may have merit.

     

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  45.  
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    Anonymous Coward, Mar 23rd, 2011 @ 10:27am

    Re: Registration system

    Clearly, you are not familiar with how prosecution of applications before the USPTO actually works.

    The Patent Act of 1790, as later amended in 1793, was registration based. That system was supplanted in the early 1800's with an examination based system, and it is the latter that has prevailed to date.

     

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  46.  
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    Anonymous Coward, Mar 23rd, 2011 @ 10:32am

    Re: Winning or Whining... you can't do both.

    Actually, the last major requirement is compliance with the provisions of Section 112.

    101 decides who gets through the door, and 102/103/112 generally determine if what got through the door meets the requirement for a patent to issue.

     

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  47.  
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    Anonymous Coward, Mar 23rd, 2011 @ 10:38am

    Re: Re: Winning or Whining... you can't do both.

    "Of course, our anonymous friend is being misleading here. Prior art settles issues for 102, but not for 103. It can be useful for determining obviousness, but whether or not something is obvious is NOT necessarily dependent on prior art."

    Prior art applies to the very same extent with respect to Sections 102 and 103. Prior art does not comprise simply printed matter. It is significantly broader. For example, it can be an act such as the public use or sale (including being offered for sale) of something that meets all the limitations of claims presented for examination by the USPTO.

    .

     

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  48.  
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    Anonymous Coward, Mar 23rd, 2011 @ 10:43am

    Re: Re: Re: Re: Winning or Whining... you can't do both.

    While I would have stated the quoted portion differently, the only one who is kidding anyone is the principal on this site. To accept was he says at face value is a mistake.

     

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    Anonymous Coward, Mar 23rd, 2011 @ 10:56am

    Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    The more I read what you say in matters like this, the more disillusioned I become that you might actually have something to contribute to discussions such as these.

    You are wrong as to how you use the term "prior art".

    You generalize the qualifications of all patent examiners and dismiss their technical expertise.

    You declare something is obvious without actually having read the claims in detail in light of the prior art. In fact, it appears that in most instances what you do read is little more than the Abstract and glance at the Drawings.

    As difficult as it may be to admit, there are circumstances where opinions you express here are divorced from the reality of a situation.

     

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  50.  
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    Anonymous Coward, Mar 23rd, 2011 @ 11:08am

    Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Sorry, that wasn't an admission... it was a typo. Read the context of the rest of the paragraph. You still haven't suggested why it should be unpatentable. You just conclude and move on without any arguments.

    there's simply no reason that you folks at the USPTO can't actually *talk* to those skilled in the art.
    You're not saying what the law is... you're saying what you want it to be. Your suggestion doesn't work. It's not citable, you get into confrontation issues, and you get bullshit like this exact thread where you guys go nuts with hindsight bias. Of course it's obvious to you now... Google has been doing it consistently for over 10 years. It's why to cite a reference, it requires either a publication date or an access date (by an examiner) that pre-dates the priority date. You'd know this... if you were a patent attorney.
    For example, they can point out the problem, and ask about ways it can be solved, and see if anyone comes up with the same or a similar solution. And then use that as part of the determination.
    anti-IP whiners in the software realm, particularly who read the whine-o-sphere, typically bring this argument up in early patent law course discussions (seriously, you don't know what you're talking about... stop acting like you know the best policy). It gets shot down so fast, because much of the time, the problem itself is what's non-obvious. Once you know the problem, the solution is obvious. But obviousness will apply only to the solution if you draft the patent in a manner that only covers the solution. Instead, you draft the patent to cover the problem with the solution. Perfect examples pop up in biotech all the time. Even today, we're constantly finding that certain drug treatments benefit greatly from enteric coating. Of course, with this problem, the solution is clearly obvious. But the problem isn't obvious. In fact, finding out which drugs benefit from coating is very time consuming and expensive (enteric coating changes bioequivalency, requiring a new drug application). I filed quite a few applications on these just last year. The tests for these cost anywhere between a couple hundred thousand to a couple hundred million. We know problems exist, the solution is obvious for the problem, but getting a better product requires substantial investment. Again, because you're unqualified, you didn't know that the industry has hashed this issue out over and over and over again... otherwise you wouldn't have made such a short-sighted suggestion.

    And it's good that you're scared of me. You have no idea what I actually do.
    HAHAHAHAHAHAHAHA. Have you ever checked your metrics? The average blog post will run you 20-40 min from start to finish (reading your feed down to copy/paste/blurb/crosslink). Looking through your posts, you regularly break 15 posts a day. You're looking at 5-10 hours a day on blogging alone. On the side, you're doing that little insight community bullshit to skim what amounts to more ad revenues. Congratulations! You can dupe idiots into doing work to get advertised to, with only a possibility of payment. And you wash it all down with consulting.

     

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    Winner., Mar 23rd, 2011 @ 11:25am

    Re: Re: Winning or Whining... you can't do both.

    Lots of people leave off 112 because it's almost completely procedural. Any non-idiot with proper training and enough drafting time can meet 112. The only substantive part is the utility overlap with 101 (which is why MPEP 2107.01 is silly).

     

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    Patrick, Mar 23rd, 2011 @ 11:29am

    really?

    "I’m hoping that Google and Sergey Brin (who’s the named inventor) are planning to use this patent to demonstrate just how ridiculous the patent system is these days."

    Really Mike? You’re “hoping” that Google spent double the mailroom clerk’s salary just to prove some ambiguous point? And what if you’re right? All that means is that Google wasted thousands of its shareholder’s dollars, wasted the USPTO’s time and effort, and delayed everyone else’s patent applications slightly longer, just to demonstrate …well, what, exactly? That if you’re persistent, have money to spend, and can narrow your claims enough, you can adequately describe an invention with sufficient novelty to obtain a patent? We’re approaching 8 MILLION patents in the modern era, so we already knew that!

    Not only would this be incredibly naive, it’s extremely disrespectful to everyone else who actually relies on the patent system to help maintain some modicum of control over use of their innovation!

     

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  53.  
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    Anonymous Coward, Mar 23rd, 2011 @ 11:39am

    Re: Re: Re: Winning or Whining... you can't do both.

    112 is anything but procedural. If fact, it has been receiving quite of bit of "look-see" lately by the CAFC, with non-enablement being at the forefront.

     

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    Mike Masnick (profile), Mar 23rd, 2011 @ 11:42am

    Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    The more I read what you say in matters like this, the more disillusioned I become that you might actually have something to contribute to discussions such as these.


    The more the patent attorneys like yourself say things like that, the more I know that I'm on the right track and hitting closer and closer to reality -- *and* having an impact.

    You generalize the qualifications of all patent examiners and dismiss their technical expertise.


    I did no such thing. But I can assure you that a patent examiner is *NOT* working in the field every day where the actual innovation happens. To deny that is to deny reality.

    You declare something is obvious without actually having read the claims in detail in light of the prior art. In fact, it appears that in most instances what you do read is little more than the Abstract and glance at the Drawings.


    You say this, incorrectly, because you can't come to terms with the idea that I might be right. It amuses me. I read the claims, quite carefully, and often talk to people who work in these fields.

    As difficult as it may be to admit, there are circumstances where opinions you express here are divorced from the reality of a situation

    As difficult as it may be for patent attorneys to admit, there are circumstances where what you believe to be true, and what you've profited off of (at the expense of society), is totally divorced from what the patent system is supposed to do.

     

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  55.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 11:56am

    Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Sorry, that wasn't an admission... it was a typo. Read the context of the rest of the paragraph. You still haven't suggested why it should be unpatentable. You just conclude and move on without any arguments.

    It shouldn't be patentable because it's a *marketing strategy* not an invention. But I find it immensely troubling that you seem to start from the assumption of patentability rather than the other way around. As Thomas Jefferson said quite early on, patents should be the exception, not the rule. They should only be used in extraordinary circumstances.

    Changing your logo for marketing purposes does not qualify.

    You're not saying what the law is... you're saying what you want it to be. Your suggestion doesn't work. It's not citable, you get into confrontation issues, and you get bullshit like this exact thread where you guys go nuts with hindsight bias. Of course it's obvious to you now... Google has been doing it consistently for over 10 years. It's why to cite a reference, it requires either a publication date or an access date (by an examiner) that pre-dates the priority date. You'd know this... if you were a patent attorney.

    You're correct. I am discussing what the law should be. I'm sorry if you were too confused to realize that earlier. But you're simply incorrect if you think it wouldn't work. That you keep going back to the need to be a patent attorney pretty much highlights the very problem. You're a gatekeeper. And you love the system as it's set up today because it requires societal leeches like yourself.

    anti-IP whiners in the software realm, particularly who read the whine-o-sphere

    And this is why it's obvious you don't know fuck all about innovation. You mock people who actually do shit for a living and who actually improve the world and innovate.

    (seriously, you don't know what you're talking about... stop acting like you know the best policy)

    I see. So where did you get your economics degree? I love it when the idiots who benefit from artificial gov't monopolites insist that only they can tell you what's best for innovation and suggest that those who actually have looked at the evidence and understand basic, fundamental economics or who work in fields of actual innovation are crackpots.

    I'm sorry, but anyone who defends a patent on an animated changing logo is not someone who knows anything about innovation.

    It gets shot down so fast, because much of the time, the problem itself is what's non-obvious.

    Ha! You don't patent a problem. You patent a solution. And if the problem is "non-obvious" it's not a problem.

    Instead, you draft the patent to cover the problem with the solution

    i.e., you draft a patent so broadly and vaguely that you'll get to sue the companies who actually do come up with the real solution that works in the real world.

    Perfect examples pop up in biotech all the time. Even today, we're constantly finding that certain drug treatments benefit greatly from enteric coating. Of course, with this problem, the solution is clearly obvious. But the problem isn't obvious. In fact, finding out which drugs benefit from coating is very time consuming and expensive (enteric coating changes bioequivalency, requiring a new drug application). I filed quite a few applications on these just last year. The tests for these cost anywhere between a couple hundred thousand to a couple hundred million. We know problems exist, the solution is obvious for the problem, but getting a better product requires substantial investment

    That's a lovely story. I'm not sure what it has to do with anything. In fact, it seems to support everything that I've said, in that patents are being granted on obvious things, and that's a problem. It's creating serious blocks on the market.

    HAHAHAHAHAHAHAHA. Have you ever checked your metrics? The average blog post will run you 20-40 min from start to finish (reading your feed down to copy/paste/blurb/crosslink). Looking through your posts, you regularly break 15 posts a day. You're looking at 5-10 hours a day on blogging alone. On the side, you're doing that little insight community bullshit to skim what amounts to more ad revenues. Congratulations! You can dupe idiots into doing work to get advertised to, with only a possibility of payment. And you wash it all down with consulting

    It's funny to see someone so sure of himself be so wrong. Keep trying.

     

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  56.  
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    Anonymous Coward, Mar 23rd, 2011 @ 12:17pm

    Re: bad patents

    I do enjoy the irony of someone who claims to defend innovation spends his time spamming links to a laughably bad website.

     

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  57.  
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    Anonymous Coward, Mar 23rd, 2011 @ 12:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Your stated views about patent prosecution have been so thoroughly "debunked" to the point that continuing to assert them is "amusing" and "laughable". In fact, they are almost "pathetic", "lies", and palpably "false".

    With a few exceptions, I daresay that the expertise of patent examiners in their associated art units in many instances exceeds that of many working in the "field". Of course, you then throw in your meme "innovation", which on this site you assign to it a specific meaning that leads to endless confusion.

    As for your statement that you "might be right", who can argue with that? Then again, you "might be wrong". To ascertain which is likely the correct interpretation it takes far more than an unsubstantiated declaratory statement.

    As difficult as it may be to admit, there are circumstances where one who is not schooled in the vagaries of federal law may very well be speaking "FUD", proof that his understanding of the law, our legal system, and the role served by our administrative agencies is, at best, "diddly squat".

    Please excuse all the words in quotes, but I feel that perhaps discussions may be facilitated by adopting TD's lexicon.

     

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    Winner., Mar 23rd, 2011 @ 12:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    That's a lovely story. I'm not sure what it has to do with anything. In fact, it seems to support everything that I've said, in that patents are being granted on obvious things, and that's a problem. It's creating serious blocks on the market.

    No. It goes exactly AGAINST what you're saying.

    The invention isn't obvious because you don't understand legal abstraction (particularly in patent law). The invention isn't enteric coating on a drug. It's a method of treating a disease. Patent lawyers can tell the difference. Can you?

    It all requires experimentation to figure it out, and that experimentation is going to cost anywhere between 6 and 9 figures to run the clinical. I dare you to pitch that to an investor without a patent. Near 100% certainty that a factory in china will find out what you're doing and undercut you within a few days... 0% chance of recoupment. Pitch that. See how fast you get laughed out of the room.

     

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  59.  
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    RobShaver (profile), Mar 23rd, 2011 @ 12:55pm

    Re: Re: Re: Re: Re:

    The cake is a lie!

     

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  60.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 1:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Your stated views about patent prosecution have been so thoroughly "debunked" to the point that continuing to assert them is "amusing" and "laughable". In fact, they are almost "pathetic", "lies", and palpably "false".

    Um. Ok.

    With a few exceptions, I daresay that the expertise of patent examiners in their associated art units in many instances exceeds that of many working in the "field". Of course, you then throw in your meme "innovation", which on this site you assign to it a specific meaning that leads to endless confusion.

    If you think innovation is a meme, you're far more lost than I had previously imagined. And, no, you're simply wrong. Patent examiners cannot have more expertise than those working in the field for the simple reason that you really only understand this stuff by working with it.

    As difficult as it may be to admit, there are circumstances where one who is not schooled in the vagaries of federal law may very well be speaking "FUD", proof that his understanding of the law, our legal system, and the role served by our administrative agencies is, at best, "diddly squat".

    Ad difficult as it may be to admit, there are circumstances in which those who profit from government granted monopolies will so truly believe in the wonders of such monopolies, that they may very well be practicing cognitive dissonance in rejecting anyone who actually understands innovation and economics.

    Just saying.

    Please excuse all the words in quotes, but I feel that perhaps discussions may be facilitated by adopting TD's lexicon.


    I love it when the patent lawyers get uppity and condescending. It reminds me of how scared you all are that people are finally recognizing what you're up to.

     

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  61.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 1:13pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    The invention isn't obvious because you don't understand legal abstraction (particularly in patent law). The invention isn't enteric coating on a drug. It's a method of treating a disease. Patent lawyers can tell the difference. Can you?

    If it takes a patent lawyer to understand, that's a problem, don't you think?

    And I do understand it. I'm just demonstrating why it's wrong.

    It all requires experimentation to figure it out, and that experimentation is going to cost anywhere between 6 and 9 figures to run the clinical. I dare you to pitch that to an investor without a patent. Near 100% certainty that a factory in china will find out what you're doing and undercut you within a few days... 0% chance of recoupment. Pitch that. See how fast you get laughed out of the room

    There are multiple issues that you bring up here, many of which you conflate and assume are all the same. That's a problem, but it demonstrates why you're a lawyer, not a business person.

    First, the clinical trial expenses: yes, that's a big expense, but that's the government's doing. There are better ways to handle this. Pay attention, we'll be talking about some soon.

    As for the 0% chance of recoupment, that's simply false. We've demonstrated this over and over again. In countries that had no patent law for pharma, there was tons of innovation and new drugs... and profitable pharma companies. You just have to realize how to be a better business person (not your job, I realize).

    And yes, I'm sure some investors won't fund without a patent. And that's because they're uncreative like you. I like to side with investors who recognize how to actually run a business by innovating, not by relying on a gov't handout.

     

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  62.  
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    Anonymous Coward, Mar 23rd, 2011 @ 5:05pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    "Uppity and condescending"? I must be losing it. I should have used each of those words are well. (Note to self: add to list of TS'isms).

    If anything is starting to come into focus, it is that you appear to have a deep seated antipathy towards at least a large class of lawyers, and view them with obvious contempt. I haven't a clue why this is the case, but clearly it is something upon which you should reflect to come to grips with the visceral, negative reaction you so regularly exhibit.

     

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  63.  
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    Willton, Mar 23rd, 2011 @ 5:22pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    If you think innovation is a meme, you're far more lost than I had previously imagined.

    You need to read more carefully. He said "your meme", which indicates that the meme belongs to you and TechDirt. Which, in a sense, is right, as you tend to use the word "innovation" indiscriminately in every one of your posts regarding intellectual property. I'm not sure that you've even adequately defined the word "innovation", especially in light of how often you use it to denigrate IP.

    Innovation. You keep using that word. I do not think it means what you think it means.

    And, no, you're simply wrong. Patent examiners cannot have more expertise than those working in the field for the simple reason that you really only understand this stuff by working with it.

    I can only assume that you have not met many patent examiners in your lifetime. Otherwise you would not make such an ignorant statement.

    However, let's assume that those who examine patents should have the greatest experience in their respective fields, which, according to you, must be people who concurrently work in such fields. In such circumstances, what makes you so qualified to render an opinion about the obviousness of Google's patented technology? Last I checked, you didn't work in the field either.

     

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    Mike Masnick (profile), Mar 23rd, 2011 @ 5:37pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    If anything is starting to come into focus, it is that you appear to have a deep seated antipathy towards at least a large class of lawyers, and view them with obvious contempt.

    No, not a class. I know and like many patent attorneys and many attorneys of all kinds. I spend an awful lot of time with lawyers, and I tend to like most of them.

    It's not a "class," it's a *type*. Specifically lawyers who abuse the system for profit, not for the stated purpose of promoting the progress. Lawyers who are intellectually dishonest and refuse to understand or look at evidence. Those lawyers I dislike, and I think for very good reason. You are the enemies of innovation and you are harming the rest of our economy.

     

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  65.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 5:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    You need to read more carefully. He said "your meme", which indicates that the meme belongs to you and TechDirt. hich, in a sense, is right, as you tend to use the word "innovation" indiscriminately in every one of your posts regarding intellectual property. I'm not sure that you've even adequately defined the word "innovation", especially in light of how often you use it to denigrate IP.

    It's not my meme at all. We use the word innovation in the same way as economists and business men have defined it for decades. Michael Schrage's definition is a key one, but Schumpeter has described it in a similar manner as well. A shorthand version, which I heard directly from SAP's former CEO (though I don't think he came up with it) is that invention is turning money into ideas, and innovation is turning ideas into money. A bit glib, but it makes the point.

    The idea that I've come up with some unique and nonsensical definition of innovation only demonstrates an individual who is not actually aware of what innovation means or how it's used in the field. Get out of your bubble.

    I can only assume that you have not met many patent examiners in your lifetime. Otherwise you would not make such an ignorant statement.

    I can only assume you have not met many actual innovators in your life time. Otherwise you would not have made such an ignorant statement.

    I have, in fact, met many patent examiners. And I stand by what I say. I never said they're not smart or nice or well-meaning. In my experience they tend to be all three of those thins. I think they're exceptionally smart, actually.

    But the idea that they're on top of the innovation in the field and what the latest is is laughable. It's just wrong. You should read some of Annalee Saxenian's research on what it takes to be aware of the state of the art in the field. Trust me, patent examiners do not qualify.

    However, let's assume that those who examine patents should have the greatest experience in their respective fields, which, according to you, must be people who concurrently work in such fields. In such circumstances, what makes you so qualified to render an opinion about the obviousness of Google's patented technology? Last I checked, you didn't work in the field either.

    Heh. But I do actually talk to those people who do and unlike patent examiners, I have them go through the details of what's obvious and what's not. And, yes, I take into account hindsight bias and look at the facts of the situation.

    And, let's be honest here, anyone defending patenting changing a logo based on an event, is not talking about an invention that's patentable at all. You're talking about a marketing strategy. It's an *insult* to the patent system. It's an *insult* to actual inventors. It's an *insult* to our economy.

    Defending it goes against everything you should believe in as a patent attorney. You're defending a bad patent. That devalues your work in a tremendous way. I can't believe you would stand up for such a clearly bad patent.

     

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

  66.  
    identicon
    Willton, Mar 23rd, 2011 @ 5:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    It's not a "class," it's a *type*. Specifically lawyers who abuse the system for profit, not for the stated purpose of promoting the progress. Lawyers who are intellectually dishonest and refuse to understand or look at evidence. Those lawyers I dislike, and I think for very good reason. You are the enemies of innovation and you are harming the rest of our economy.

    Well, it strikes me as rather irresponsible to describe this "type" of lawyer and then claim that the person with whom you are arguing is such a lawyer. Is he such a lawyer just because he disagrees with you? What the heck do you know about any of the lawyers who visit your site and post?

     

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

  67.  
    identicon
    Willton, Mar 23rd, 2011 @ 6:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    It's not my meme at all. We use the word innovation in the same way as economists and business men have defined it for decades. Michael Schrage's definition is a key one, but Schumpeter has described it in a similar manner as well. A shorthand version, which I heard directly from SAP's former CEO (though I don't think he came up with it) is that invention is turning money into ideas, and innovation is turning ideas into money. A bit glib, but it makes the point.

    The idea that I've come up with some unique and nonsensical definition of innovation only demonstrates an individual who is not actually aware of what innovation means or how it's used in the field. Get out of your bubble.


    I see. So when you say "innovation", you're using business jargon instead of the dictionary definition.

    I can only assume you have not met many actual innovators in your life time. Otherwise you would not have made such an ignorant statement.

    Actually, I have. I call them "clients."

    I have, in fact, met many patent examiners. And I stand by what I say. I never said they're not smart or nice or well-meaning. In my experience they tend to be all three of those thins. I think they're exceptionally smart, actually.

    But the idea that they're on top of the innovation in the field and what the latest is is laughable. It's just wrong. You should read some of Annalee Saxenian's research on what it takes to be aware of the state of the art in the field. Trust me, patent examiners do not qualify.


    Okay, so patent examiners do not have as much expertise as the leading practitioners in their respective scientific fields. That's not surprising. But that's not what you said. You said the following:

    "Patent examiners cannot have more expertise than those working in the field for the simple reason that you really only understand this stuff by working with it."

    You paint with a very broad brush with that statement. "Those working in the field" is a very broad category, and likely includes R&D techs two years out of undergrad. Tell me, does a patent examiner with a PhD in biochemistry have more or less expertise in pharmaceuticals than your average biochemist with a bachelor's degree at, say, Merck?

    Heh. But I do actually talk to those people who do and unlike patent examiners, I have them go through the details of what's obvious and what's not. And, yes, I take into account hindsight bias and look at the facts of the situation.

    Really? That's odd, because I do not see any of that exhibited here.

    And, let's be honest here, anyone defending patenting changing a logo based on an event, is not talking about an invention that's patentable at all. You're talking about a marketing strategy. It's an *insult* to the patent system. It's an *insult* to actual inventors. It's an *insult* to our economy.

    Really? Why not? You make some conclusory allegations and use a lot of bombast and moral outrage, but I do not see any analysis as to why this particular invention is not patentable. How does this particular claim not fit within the framework of patentability, as defined by the law? What's your analysis?

    Defending it goes against everything you should believe in as a patent attorney. You're defending a bad patent. That devalues your work in a tremendous way. I can't believe you would stand up for such a clearly bad patent.

    Did I? Please show me where I defended the validity of the patent in question. I'm willing to wait.

    Actually, I'll save you the time: I never once rendered an opinion as to whether this particular patent was rightly or wrongly issued. I suggest you stop pretending I've done anything of the sort before you make a fool of yourself.

    The only thing I have done is question the propriety of you attacking its validity based on some vacant rationale of obviousness and an apparently deep-seeded belief that a "marketing strategy" should not be patentable (which presumes that the patent claims in question are in fact directed to a marketing strategy, which I don't think is clear at all). I suggest you actually do your homework before you make outrageous and spurious claims about my work.

     

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

  68.  
    identicon
    Anonymous Coward, Mar 23rd, 2011 @ 7:07pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Winning or Whining... you can't do both.

    Perhaps there are some exceptions, but I do not recall anyone who has ever asserted that a specific patent being lambasted here is in fact valid. What they have uniformly asserted is that saying something is "obvious" is pure conjecture in the absence of at least a modicum of relevant analysis.

    Have I ever seen a patent that is clearly invalid? Yes, of course. Was I able to make that determination merely by giving it a quick once over? No, of course not.

     

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

  69.  
    identicon
    Winner., Mar 25th, 2011 @ 11:46am

    Re: Re: Re: Re: Winning or Whining... you can't do both.

    Enablement comes from disclosures in the spec. So if you can fill paperwork out correctly, you'll meet the requirements. That sounds pretty procedural to me.

    Comparatively, 101, 102, and 103 are completely substantive -- no matter what you write, there will be many situations where the paperwork cannot be filled out in any manner such that you can claim what you regard as the invention.

    But as I said, I do believe the overlap adds some substance to 112. There's obviously the 101 utility overlap, but there's a much less obvious back-dooring of 112 requirements by subsequent prior art analyses -- if a prior patent fails to meet 112, it often fails to serve as 102 or 103 art against subsequent applications/patents (see Impax v. Aventis and Rasmussen v. SKB).

     

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


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