Just Because Something's New Doesn't Mean It's Not Obvious

from the bingo dept

I've been meaning to publish a series of posts on the problems with the current attempts at patent reform that I hope to get to soon, but the punchline to it is that the real problem with the patent system is that it does a terrible job evaluating "obviousness." The various attempts at reform don't deal with this issue at all, and thus the problems will continue. While things have become a little better due to the Supreme Court's Teleflex ruling, which changed the standard for "obviousness" on certain patents, it's still a major problem. Patents are only supposed to be awarded on things that are new and non-obvious to those skilled in the art. But, for years, the "non-obvious" part has basically been ignored in favor of the "new." That's because all the Patent Office looks at is "prior art." I've had discussions with people in the comments who insist this makes perfect sense (most of these people are lawyers). The problem, though, is that just because something is new doesn't mean it's not obvious. It could just be a natural progression or maybe it's just an implementation that someone finally got around to doing.

However, Tim Lee and Julian Sanchez got into a discussion about the recent injunction against Microsoft Word over a blatantly obvious patent, and Julian did a great job explaining why obviousness and newness are different and why explaining obviousness can be so difficult. The argument is that since it's so difficult to explain obviousness, patent examiners just don't bother, and instead focus on the "newness" part:
The problem is that if an applicant wants to appeal, the examiner, who may well be a programmer, has to defend his subjective judgment of what's "obvious" with some kind of explicit argument. And the result (says Tim) is that in practice the "non-obviousness" requirement has been largely conflated with a review of the "prior art" or previous related inventions. The upshot is that unless someone else has done almost exactly the same thing before, you've got a good shot at getting the patent. Maybe this is motivated by a version of the no-five-dollar-bills-on-the-sidewalk fallacy in economics: If nobody has done it before, it can't have been all that obvious. But, of course, in a rapidly evolving area of technology, someone's always going to be the first to do something obvious.

I think the source of the problem in the patent system may be linked to a point Friedrich Hayek made long ago about our tendency to overrate the economic importance of theoretical knowledge and vastly underestimate the importance of tacit or practical knowledge. The non-obviousness requirement, tied to the standard of an observer skilled in the appropriate art, is supposed to make the patent system sensitive to this kind of knowledge. But if examiners have to defend their judgments of obviousness, they're essentially being required to translate their tacit knowledge into explicit knowledge--to turn an inarticulate knack into a formal set of rules or steps. And Hayek's point was that this is often going to be difficult, if not impossible. Just as a loose analogy, consider that in the Principia Mathematica, Bertrand Russell and A.N. Whitehead's attempt to provide a rigorous, formalized basis for ordinary arithmetic, it takes several hundred pages to strictly establish the proposition "1+1=2." It takes a fairly advanced mathematical education to understand the explicit elaboration of a practice (counting, adding) that we expect most children to master.

If you ask me how I knew the way to go about writing the translation program in question, I'm not sure I could tell you--just as we sometimes find ourselves at a loss when we're asked to give explicit directions for a route we know by heart. Things that are "obvious" are often the hardest to explain or articulate explicitly, precisely because we're so accustomed to apprehending them by an unconscious (and possibly itself quite dizzyingly complicated) process. The very term "obvious" comes from the Latin obviam for "in the way"--that is, right in front of you, where you can't help but see it. Except the visual processing system we "use" automatically is vastly more sophisticated than what we're (thus far) capable of designing. If you had to describe explicitly the unconscious process by which you see what's right in front of you, it wouldn't seem "obvious" at all. The same, I expect, goes for the knack of knowing how to go about solving a particular problem in coding or engineering--with the result that the patent system systematically undervalues the tacit knowledge embedded in those skill sets until it's embedded in a piece of "prior art." So knowledge that's widespread but implicit and inarticulate is routinely mistaken for the kind of innovation it's necessary to incentivize with a monopoly grant. In effect, the hidden value of dispersed tacit knowledge is redistributed to the first person to render it explicit.
That's about the best description of why prior art is not the best test for obviousness that I've ever seen. Brilliant. But, if that's the case, how could you test obviousness? I've always believed that the test is actually laid out directly in the law itself. If it's supposed to be whether or not the invention is non-obvious to those skilled in the art, you should ask those skilled in the art. You could still have an examiner who would be in charge of weighing what those people say, but if they all explain how or why something appears to be obvious to them, that should be a pretty big clue that there's a problem. The idea that this would lead to people lying about something being obvious (or believing it's obvious in retrospect) has mostly been debunked. It turns out that people aren't quite as dishonest as some patent attorneys believe.


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    ChurchHatesTucker (profile), Aug 14th, 2009 @ 6:54pm

    Sounds like a job for...

    Crowdsourcing.

    Or, y'know, someone 'skilled in the art' to actually examine the patent.

     

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    Anonymous, Aug 14th, 2009 @ 8:15pm

    "Crowdsourcing."

    For that matter, you can even make it scientific: Patents are solutions to a problem. The only reason you need a method for storing long file names in 8.3 format is because you want to store long file names in 8.3 format.

    So without disclosing the patent-pending method, just announce in detail the problem it purports to solve, specifying the advantages the patent-pending method has over alternatives as goals, and then solicit solutions. If any of your hired experts or members of the general public come up with the same solution as would be protected by the patent, it's obvious.

     

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    Ronald J Riley (profile), Aug 14th, 2009 @ 8:23pm

    Every aspiring Infringer Claims Obvious

    The courts have a very well developed process for determining what is obvious. It is a fact that most people are incapable of recognizing once they have been told how to do something that it was not obvious.

    It is also a fact that no one at TechDIRT is qualified to comment on the patent system. It is also obvious that TechDIRT's position on patents is closely aligned with the companies they are doing business with. What is not clear is rather TechDIRT's bias was driven by these association from the beginning or was it a gambit to get business.

    Considering the Conduct of both the Coalition for Patent Fairness and their members I am inclined to think that the relationship has been there from the beginning.

    As to poor misunderstood Microsoft, they have been caught repeatedly with their sticky fingers in others' patent cookie jars, and they paddies have been repetitively slapped by the courts. There is an OBVIOUS pattern of conduct and it is understandable why they want to Deform the patent system to facilitate their pattern of conduct.

    In any event, we are all judged in part by the company we keep and the company TechDIRT is keeping does not paint a pretty picture. Classic short term gain orientation.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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    Anonymous Coward, Aug 14th, 2009 @ 8:28pm

    is that a double negative?

     

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    farooge (profile), Aug 14th, 2009 @ 8:33pm

    Outstanding

    Finding gems like that (and pretty often) is why I've been here just about every day for years.

    And I really like the idea in the 8.3 post.

     

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    Fred McTaker (profile), Aug 14th, 2009 @ 8:43pm

    Registered Trade Secret

    The more I think about the problems with the term "obvious", the more I think the patent system actually just needs to be re-engineered. I think there's a couple of key points about the benefits of patents that are lost completely in the current system:

    1. Progressing the arts and sciences by giving an incentive to spread specialized knowledge as it is discovered, with Patents especially about creating a new and useful thing for market.

    2. Adding to the works and knowledge available to the public to build upon freely, to create new and better products.

    Lawyers tend to ignore 2 and concentrate on 1 completely. 2 is assumed to be attained after Patent expiry, but too little attention is paid to how the expiry date affects generational progress. I think goal 2 is actually a bit more important than goal 1 to the "progress of the useful arts and sciences."
    The argument for temporary monopolies over "inventions" is usually either that the invention will be kept a trade secret indefinitely, instead of shared, so that reverse engineering (which may contain flawed and inefficient analysis) will be required to get it into the public domain, and only after it is brought to market. In areas where reverse engineering is too easy, they argue that they need a monopoly to get a return on R&D past the initial release, or the R&D will never be funded.

    The study of explicit knowledge versus tacit knowledge above explains the flaws with the R&D cost argument -- if the invention is that special and useful as to deserve a temporary monopoly, the steps to actually reproduce it will actually be quite costly, even with reverse-engineering capability. If the invention is really that new, the steps to reverse engineer it might not actually be clear to anyone "skilled in the arts." The cost of reverse-engineering could possibly qualify as the only real "obviousness" test. There is also the great advantage of being first-to-market in terms of incremental improvements and branding, that the R&D cost argument ignores.

    Just going on the premise that a cost of reverse-engineering test qualifies as an obviousness test, which in turn determines the proper period a temporary monopoly should be allowed after an invention is sold to the open market, then all we need to argue about is getting the invention's original design into the public domain somehow. For that, I propose the Patent system becomes instead a Registered Trade Secret (RTS) system. The incentive for Trade Secret registration is help from the government keeping the secret from competitors, selling initial looks at the Trade Secret, and low-cost arbitration on royalty agreements after that. If anyone who bought a look at an RTS then builds a similar product, but refuses to pay royalties, that triggers an infringement case. The more complex legal wrangling only needs to take place in these infringement cases by RTS buyers. Everyone else is dependent on their own R&D and reverse-engineering capabilities. The incentive to invest in R&D then becomes the fact that you can sell Trade Secret looks and royalty agreements without expending your own resources on developing related products in-house. You also share documentation with the government, that they agree to keep secret, and that you can use in industrial espionage cases which might be difficult to prosecute otherwise. You know who to watch out for with royalty agreement violations, when they don't pay up on agreed royalty rates, yet sell a product utilizing the Trade Secret anyway.

    Other companies who are able to develop similar products independently are more free to invent under RTS, from the trolls we have now under Patents. Real innovators don't have to keep on the lookout for tacitly similar patents in the current endless stream, or ignore Patents out of fear over increased damages, as they do now. Legal expenses go down all around. The RTS gets released to the public records after expiry, so the net public benefit is the same (greater, really) as if it was a Patent.

     

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    Anonymous Coward, Aug 14th, 2009 @ 9:42pm

    Speaking on my own behalf, with a list of shilling beneath me.

     

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    vic kley, Aug 14th, 2009 @ 9:42pm

    Obvious it ain't

    In many cases of truly new inventions the invention is in the problem with the solution being obvious to those in SOME ART frequently not the art in which the solution is applied.

    That is if one is not allowed to understand the detailed purpose of the invention but is simply told the field of the invention a person familiar with that field will not necessarily find an obvious solution. But once the detailed purpose is outlined the same person can immediately begin to see a solution.

    So using people in the art is a great idea but if the purpose was not published to those in the art at the time of the invention then the obviousness comparison cannot be used.

    Today examiners use search engines to pair up obviousness arguments faster then inventors can pay their attorneys to respond ($2,500 a pop). If they were not allowed to know the inventors purpose before they searched they simply would not know where to search or what to search for and the severely unfair practice would end.

    I agree completely with the commentator above who says most people find any good and simple invention obvious once they learn the "tricks" but before the inventor no one knew or understood these tricks!

    As a concrete example I know of a major national Lab that had spent 28 years wanting a particular device. They could even model it as if it existed in the physics of their experiments but had no idea how to build it. Hundreds of Phds, engineers, chemists and technicians but no insight. It took an inventor to see the real problem and propose a solution. The problem was not obvious to these experts and therefor neither was the solution. Today now that the solution is public everyone thinks they understand and that it is obvious.

    We need to reign in the disgraceful misuse of obviousness which almost never overturns an invention but drives the costs to patent through the roof.

     

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    diabolic (profile), Aug 14th, 2009 @ 10:57pm

    How exactly would you implement asking those of skill in the art?

    Maybe there is a better test in this brief filed in the Bilski case:

    Law Professors [Lemley et al.] The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions.
    http://www.patentlyo.com/08-964ac20lawandbusinessprofessors.pdf

     

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    zcat (profile), Aug 15th, 2009 @ 1:02am

    A little-quoted part of an often quoted memo..

    "In many application categories straighforward thinking ahead allows you to come up with patentable ideas. " -- Bill Gates, Challenges and Strategy, May 16, 1991


    Wait, what?!! How do ideas that come from "straighforward thinking ahead" meet the requirement for non-obviousness?

     

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    Richard, Aug 15th, 2009 @ 2:13am

    Trade Secrets vs Patents

    In most cases if you have an invention that is genuinely non-obvious you would keep it secret rather than patent it - because the patent will expire in 20 years - but the secret can go on forever.

    The fact that you want to patent it suggests that you realise it really is obvious. So the test for patentability is simple if you apply for a patent...then its not patentable.

    (Richard's patent test for patentability)

    Of course this doesn't work in field where using the method inevitably discloses it - but in many fields that is not so.

    The formulae for Coca-Cola and Technoweld for example have been better protected as secrets than would have been the case if they were patented.

    Certainly the rule could be applied in many areas - for example most software "internals" need never be disclosed.

     

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  12.  
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    Andrew D. Todd, Aug 15th, 2009 @ 2:41am

    Fix The Courts.

    Justice Antonin Scalia has, I believe, opined that the real problem is not with patent law, but with the East Texas Court. The East Texas Court is certainly a major problem.

    The East Texas Court has no lawful right to be the Patent Infringement Court of the United States, but has unlawfully usurped that role. It makes an entrepreneurial business of soliciting potential patent plaintiffs, who have no bona fide connection to the East Texas district, to file in East Texas rather than somewhere else, and necessarily regards such plaintiffs as customers rather than litigants. The customer is always right, and all that. This means that the East Texas court, and all its judges, are interested parties in all patent litigation brought before them. By any traditional standard, they are spectacularly corrupt judges.

    The obvious remedy, in Justice Scalia's terms would be to set up a lawful Patent Infringement Court of the United States, in Washington, D.C., affiliated with the Patent Office and the Board of Patent Appeals and Interferences, and under the jurisdiction of the Court of Appeals for the Federal Circuit. This court would have a monopoly of trying patent infringement cases, and if patent-holders did not like its verdicts, they would just have to lump it, rather than shopping around for a more favorable jurisdiction. Such a court would be much more fundamentally responsive to Supreme Court decisions than the East Texas court is. The CAFC and BPAI took KSR v. Teleflex as a severe reprimand, and responded accordingly. The Patent Office did the same at its reexamination level, though the initial examination is still based on ten hours work from an unqualified examiner. The judges of this new court would have to go through congressional confirmation hearings, in which it would be considered whether they were fit persons to be patent judges, as opposed to some other kind of judge.

    Barring some foodstuffs, almost no manufactured goods are manufactured locally. Even prefabricated houses are routinely trucked for hundreds of miles, and most small articles are of course manufactured in China. There is very little likelihood of a legitimate patent case arising between a plaintiff and a defendant in the same federal court district, or even the same state, with the possible exception of California. The interested parties in such cases are typically distributed over all fifty states, and foreign countries besides.

    http://wapedia.mobi/en/United_States_District_Court_for_the_Eastern_District_of_Texas

     

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    Simple Mind, Aug 15th, 2009 @ 3:14am

    Re: Obvious it ain't

    You say, "...As a concrete example..." You then neglect to give the concrete example. ? I am curious to know what it is so I can see if I think it is obvious or not.

     

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    Anonymous Coward, Aug 15th, 2009 @ 4:17am

    The case of i4i vs Microsoft has been done to death all over the internet during the last few days but generalizing too much is always dangerous. As others mentioned above, there are certainly two things that this case made apparent need fixing: a court that's "in" the patent "business", and some kind of clause that renders invalid patents which are too generic and have been "infringed" by everyone with a good intention.

     

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    Luci, Aug 15th, 2009 @ 5:49am

    Re: Every aspiring Infringer Claims Obvious

    It is quite obvious that Mr Riley is not qualified to comment on the discussions we hold at TechDirt. There's no real reason except that I, just like he when talking about patents, said so.

    Mr Riley, one does not need to be a 'qualified' person to discuss something. Sorry to break your little ego bubble, but if things are not discussed in an open forum for all to see, then they are not to be trusted by the public. This is the problem with the country, today. People such as yourself on their high horses telling the peasants they have no say. Get down and join the real world, sir. It would be a breath of fresh air.

     

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    Mordred kaides, Aug 15th, 2009 @ 7:39am

    Obviousness is subjective

    the problem here is that 'obviousness' is a subjectiv term that gets redifned a few times even here in the comment, someone mentions the cost of reverse engineering to be the measure, but that doesn't define obviousnes as I know I can make a very complicated program for a certain program, but if someone else was givin the exact same assignment the problem would not differ from mine.

    Obvious, defined as someithing in the way is subjective in itself because to follow the analogy not everyone is walking the same road. for every patent there will always be a certain number of poeple finding it obvious because they think in the same way as the inventor.

    a third problem is that things will e considered more obvious over time, using the term hello world as the first line of code you learn your students is Obvious for everyone nowadays but it may have been a not obvious idea at the moment the first person made the code for it.

    overal I think we need a new basis for patents wich is less vague and more based on the effects giving a certain patent out will be on the market

     

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    Richard, Aug 15th, 2009 @ 8:01am

    Re: Obviousness is subjective

    No it isn't - if a large number of people come up with the same idea independently then it was obvious.

    The perception of a particular individual may depend on subjective factors - but patent law specifies that to be patentable and idea must not be obvious to a skilled practitioner in the field - pinning the subjective factors down quite a bit.

    One interesting point is that many "new" ideas actually consist in transferring an old idea from one field into another. Almost all such ideas would be obvious to the (relatively small) set of people who have significant skills in both fields.

    The problem is that patent offices have perceived their interest to lie in allowing patents rather than rejecting them (and generally the terms under which they operate has given them financial incentives that way).

    Hence the law has never really been applied properly. If it was then the numbers of patents granted would have been less than 1/10th of what has actually occurred.

     

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    Anonymous Coward, Aug 15th, 2009 @ 8:22am

    Not doctrinal, mostly lack of knowledge

    Part of the problem is that examiners use the Frankenstein's monster approach of assembling the elements from disparate sources with a motivation to combine. Instead, a more fruitful approach might be to start with a single reference and establish technical equivalence element by element. I think the reason examiners don't do this is because they don't understand the technology very well. You have to know a fair amount realize technical equivalence.

     

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    Marcus Carab (profile), Aug 15th, 2009 @ 8:36am

    Re: Every aspiring Infringer Claims Obvious

    I find it interesting that you accuse TechDirt of pandering to the "company it keeps", and then sign off your comment with a big long list of the company YOU keep, which seems to consist mostly of people with a personal financial interest in defending the current patent system.

     

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    Mike, Aug 15th, 2009 @ 9:04am

    Some people just need to stay on topic with these discussions.

     

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    step back, Aug 15th, 2009 @ 9:50am

    Just Cause

    Just cause Mooney Masnick speaks doesn't mean it's false.

    But usually,
    it does.

    That's obvious.

     

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    Ben (profile), Aug 15th, 2009 @ 10:48am

    Re: Registered Trade Secret

    Consider also how your proposal would benefit/facilitate/protect 'independent invention;' if the patent's exact methods are not freely available than its difficult to claim the invention has been copied.

     

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    Ben (profile), Aug 15th, 2009 @ 11:01am

    Skilled in the Art

    Techdirt has had this sort of patent improvement discussion multiple times but I've never seen any information on how 'skilled in the art' patent examiners actually are. If you have two companies conducting breakthrough research, I'd argue that only those who are at the forefront can say whether the newest iteration is non-obvious, despite what the larger profession or public may think.

     

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    Gene Cavanaugh, Aug 15th, 2009 @ 11:02am

    Ignoring the Obvious

    I totally agree with Mike's analysis and the experts he references, but I am appalled by how the "obvious" is ignored in this discussion, even though it focusses on ignoring the obvious!
    As Mike has pointed out again and again, the marketplace makes our business decisions - if it makes money, do it, if not, go away!
    So, the USPTO makes money from FEES, and in another case of "unintended consequences", this decision by Congress is bringing down the system.
    Even though we expect business to maximize profitability, we expect the Patent Office to rigorously enforce such things as obviousness, cutting off fees, and to thereby be unsuccessful as a business!
    So they are damned if they do, damned if they don't - they can cut off fees and shrink the business, or maximize fees and eventually shrink the business!
    We have met the enemy, and he is US!

     

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    Anonymous Coward, Aug 15th, 2009 @ 11:34am

    Re: Obvious it ain't

    In many cases of truly new inventions the invention is in the problem with the solution being obvious to those in SOME ART frequently not the art in which the solution is applied.


    True, but the patent law is quite clear in that situation -- it must be obvious to the average practitioner of the field the patent addresses. If something, such as punch cards, is quite obvious to the manufacturers of looms it is still nonobvious to makers of census devices.

    As an (at worst) average practitioner of my field, software engineering, there have been a handful of times that I've seen things done that were certainly not obvious to me. I call those things "genius." None of those things were patented. Almost all software patents I've seen were quite obvious before I had seen them, and clearly should never have been granted. Of course, I've not seen most software patents and so there may be some that are not obvious (although I oppose those, too, because it's patenting algorithms, which itself should not be permissible.)

    Our patent system is beyond broken, it hinders innovation and harms society at large. Much like our copyright system. Both of those do benefit the ones who games them, though -- large and powerful corporations who don't give two hoots about innovation or society at large.

     

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    staff1, Aug 15th, 2009 @ 11:54am

    stop the shilling!!!

    'I've been meaning to publish a series of posts on the problems with the current attempts at patent reform that I hope to get to soon, but the punchline to it is that the real problem with the patent system is that it does a terrible job evaluating "obviousness."'

    So tell me, have you ever filed or prosecuted a patent application? Are you a patent attorney, or any kind of attorney? If not, then you might as well be attempting brain surgery with a knife and fork.

     

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    Anonymous Coward, Aug 15th, 2009 @ 2:16pm

    Two things.

    A: Very often in science (I read through my chemistry book, this applies to many medical advancements, I read a physical science book, even calculus and math) you find that more than one person independently invented or discovered the same thing. The reason is because recent technology gave rise to the ability and need to discover the new thing.

    B: I've mentioned this before. A good test of how obvious something is should also include how long this thing has been a problem. A cure for Aids would be non - obvious since Aids has been a problem for some time (it's not a novel problem). (assume the Internet is new) A website that hosts movies, for instance, would be obvious (even for the first person who made it) because it's a solution to a new problem (how to get movies on the Internet). Now assuming the Internet has been around for a long long time and then no one has been able to find a solution (it becomes an old problem) then it may be considered non obvious. I've posted this link before but will post it again.

    http://ideas.4brad.com/archives/000061.html

     

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    Fred McTaker (profile), Aug 15th, 2009 @ 3:04pm

    Re: Obviousness is subjective

    Uh, did you just argue for patenting a program that just says "Hello World" and does nothing else? Wow.

    OK, so one point about "obvious" is that "prior art" is actually an obviousness test. It means the "invention" was not only completed by someone else before the patent was filed, but it was fully documented in some manner portable enough to reach the patent examiner. If the prior art wasn't from an old expired patent, that also means the previous "inventor" thought it so obvious as not worth patenting. There's a non-subjective obviousness test right there.

    My point about reverse-engineering costs as constituting an obviousness test is that truly new leaps in knowledge are actually pretty hard to convert into tacit knowledge, even when made explicit via physical form. Think about someone trying to reverse-engineer a modern microprocessor, without access to modern nanoscale microscopy equipment. In that case, you couldn't even see the thing you're meant to copy at any meaningful scale, because the important features are small beyond a scale you can sense. Without first having the nanoscale sensing equipment, and the tacit knowledge required to both use it and interpret its output, the modern processor is indistinguishable from magic. Even with the right sensing equipment, if you can't determine why one type of transistor spacing was used over another, you're doomed to repeat the same mistakes as the original implementer, driving the cost of reverse-engineering to the same as (or more than) original R&D. It would have been more cost effective to "license" a look at the original documentation by the original implementer. You could try to work around that by creating an absolute copy, but then you get into questions of plagiarism instead of just "innovation" value to society.

    All innovation is obvious to at least one person: the implementer. If more than one person is able to implement the same thing, that makes it objectively obvious, as more than one person can perceive the same thing independently. If knowledge becomes obvious in such an objective fashion, without the help of spreading that knowledge via the patent system, then what exactly is the point of granting a patent on that knowledge?

     

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    Mike Masnick (profile), Aug 15th, 2009 @ 3:18pm

    Re: stop the shilling!!!


    So tell me, have you ever filed or prosecuted a patent application? Are you a patent attorney, or any kind of attorney? If not, then you might as well be attempting brain surgery with a knife and fork.


    I've asked you this before, but you notoriously never seem to respond to any questions asked of you (wonder why...). Why is it that we should only hear from those who benefit from a system, rather than those harmed by a system? Doesn't that seem pretty ridiculous?

    And, at the same time, are you an economist? No? Then why should you be allowed to comment on how the patent system impacts the economy?

    That's a silly comment, which is obviously meaningless, but has about the same weight as you saying only those who profit off the patent system are allowed to comment on it.

    And it amuses me that you accuse me of shilling, when you think only those who profit off the system can comment on it. I have *no* monetary stake in the patent system at all. Why don't you reveal yours?

     

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  30.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 3:22pm

    Re: Trade Secrets vs Patents

    The incentive to patent over treating an invention as a trade secret is that if and when someone else produces the invention they can then exclude the trade secret user form use of the invention. So while the person using the trade secret might get more then twenty years of use they may well find themselves prohibited from using the invention well before twenty years.

    So called Prior User Rights were originally promoted by Bill Budinger, I believe his situation was a result of greed and stupidity. Other large companies realized that a claim of being a prior user was another defense for stealing others inventions, and jumped on the band wagon.

    By pushing Early Publication it lowers the uncertainty about when an invention is conceived and that facilitates manufacturing false evidence to invalidate a patent.

    Examples of companies who have been caught committing fraud on the court are Microsoft and Research in motion. It is quite difficult to catch those committing fraud and often those doing so get away with larceny on a grand scale.

    Members of the Coalition for Patent Fairness have many issues of this nature. They have been caught committing many other indiscretions such as illegal spying on media, employees, and competitors, cooking their books, insider trading, knowingly putting their customers at risk of injury or death, the list goes on.

    Today plenty of people recognize that banking and insurance entities are very nasty players. What most do not realize is that much of the tech industry, at least the largest companies are every bit as corrupt.

    All three of the mentioned groups are behind attempts to eviscerate the patent system in order to facilitate their theft of American ingenuity. They are collectively stealing billions of dollars a year and spending a few hundred million to promote Patent Deform.

    The bit of historical imformation I have given here is a perfect example of the kind of perspective that TechDIRT staff lack about IP issues. Those who do not understand history are doomed to repeat the same mistakes.

    If TechDirt had its way America would give up the only thing which stands between Americas' current standard of living and a drop which the current recession look like child's play.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  31.  
    icon
    Ronald J Riley (profile), Aug 15th, 2009 @ 3:36pm

    Re: Re: Obvious it ain't

    "Our patent system is beyond broken, it hinders innovation"

    NO, our patent system hinders those who did not invent. It does this by design.

    This kind of reasoning is what we get from every crook or would be crook. They all are incapable of understanding ethics.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  32.  
    icon
    Ronald J Riley (profile), Aug 15th, 2009 @ 3:39pm

    Lemley is just another academic feeding at corp trough

    His connections to members of the Coalition for Patent Fairness & Piracy are well known.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  33.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 3:50pm

    Re: Re: Trade Secrets vs Patents

    "All three of the mentioned groups are behind attempts to eviscerate the patent system in order to facilitate their theft of American ingenuity. They are collectively stealing billions of dollars a year and spending a few hundred million to promote Patent Deform."

    I think if so many industries are trying to remove patents they would have been removed by now. The government doesn't listen to the people, they listen to industry and it has always been industry that has lobbied for longer patent life's. I find it very hard to believe that the general public would want patents and copyrights to last NEARLY as long as they do and if industry doesn't want it to last that long then who does? Nobody? Then why does it last so long if nobody wants it to last that long? Your argument makes no sense.

     

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  34.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 3:52pm

    Re: Re: Trade Secrets vs Patents

    On the side, if Microsoft and such really are pushing to eliminate intellectual property I want them to make it public. I want to see how much money they are spending on this endeavor. If they're actually spending a lot of money on this endeavor I might actually consider buying their products.

     

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  35.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 3:58pm

    Re: Fix The Courts.

    The East Texas court has every right and it delivers justice far faster than other courts. It is the speed of the court which draws small and large entities alike.

    Big business hates this court because the court does not put up delaying tactics and other forms of legal abuse which many other courts allow.

    The remarks impugning the integrity of East Texas judges are outrageous and libel.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  36.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 4:06pm

    Re: Re: Re: Trade Secrets vs Patents

    Only banking, insurance and a several dozen tech companies are trying to destroy patents. A larger group of older companies want to turn patents into a king's sport, preserving their rights while undermining the rights of independent, academic, and small business inventors.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  37.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 4:07pm

    Re: Re: Fix The Courts.

    "The remarks impugning the integrity of East Texas judges are outrageous and libel."

    Want to tell me how often big corporations vs small business use the East Texas Court as plaintiffs for patent infringement? Or what about patent trolls who do nothing to innovate but instead hinder innovation?

    And you apparently don't know the difference between libel and disagreement. If I did business with you I can call you a crook (via the Internet or written of course) and that's not libel. I can say that you charged too much and ripped me off and based on that it's not libel to call you a crook because that's just my freedom of speech. Now if I said that you broke into my house and stole something from me and you never entered my house that's libel. See the difference?

    I can call Microsoft or any corporation, like pharmaceutical corporations, evil thugs and that's not libel. I can call them criminals and that's not libel. You can call them honest benevolent angels and that's fine too. We're calling them opposite things based on different interpretations of the same data, based on their actions or financial statements, etc... If I said they make 1 billion in profits (assuming they do) and that it's criminal for them to make so much that's fine. You can say it's not criminal. We're looking at the same facts and interpreting it differently. Now if I said that pharmaceutical corporations broke into my house and stole from me and they never did then that's libel. See the difference?

     

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  38.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 4:10pm

    Re: Re: Every aspiring Infringer Claims Obvious

    The point is that I have always fully disclosed my affiliations while it has taken a considerable amount of time to uncover TechDIRT's affiliations.

    Those affiliations are telling, with most being members of the Coalition for Patent Fairness, a group whose unfairness is legendary.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  39.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 4:10pm

    Re: Re: Re: Fix The Courts.

    also, for it to be libel I have to say (or write or type, slander is spoken and libel is written and they're both defamation) something about an entity that I positively know is false. For instance, if I falsely said that pharmaceutical corporations broke into my friends house and stole from him and I really thought that was true it's not defamation. If I knew better then that's defamation.

     

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  40.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 4:11pm

    Re:

     

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  41.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 4:14pm

    Re: Re: Re: Re: Trade Secrets vs Patents

    "Only banking, insurance and a several dozen tech companies are trying to destroy patents. A larger group of older companies want to turn patents into a king's sport, preserving their rights while undermining the rights of independent, academic, and small business inventors."

    I find this hard to believe as well. If certain industries want to destroy patents and most want to keep it then patents would have been destroyed for those specific industries that want them destroyed a long time ago. I find it hard to believe the general public wants patents to last 20 years for any industry so if there is an industry, like software or operating systems, that wants patents destroyed or at least the timespan of patents greatly reduced it would have been done a long time ago if it's the case that no one likes the way laws as they currently are for a specific industry.

     

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  42.  
    identicon
    Anonymous Coward, Aug 15th, 2009 @ 4:16pm

    Re: Re: Re: Re: Trade Secrets vs Patents

    "A larger group of older companies want to turn patents into a king's sport"

    and if you want to be company specific, no company is larger than Microsoft when it comes to operating systems (and they're big on software) so for sure if they wanted patents destroyed in their industry it would have been done a long time ago (especially given that it's highly unlikely that the general public wants patents to last so long).

     

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  43.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 4:32pm

    Chicken / Re:

    How about posting your name? It seems kind of hypocritical for you to criticize other who do disclose their affiliations while you hide your own.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  44.  
    icon
    Ronald J Riley (profile), Aug 15th, 2009 @ 4:43pm

    Re: Re: stop the shilling!!!

    "I have *no* monetary stake in the patent system at all."

    But you just happen to have founding members of the Coalition for Patent Fairness as clients and advertisers? The group is well known for hiring people to push their agenda on Internet, and for hiring academics to promote their agenda with books and papers.

    So you do have a stake.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  45.  
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    Ronald J Riley (profile), Aug 15th, 2009 @ 4:54pm

    TechDIRT Weasels / Re:

    Remember that the point of the patent system is to get an inventor to fully disclose the best mode of their invention in order to advance the art. The point is to stimulate others to build on the invention, either to get around it with an alternative in order to avoid having to pay or to completely eclipse the invention. They in turn get exclusive use by teaching their improvements via a patent.

    Those who fail to TEACH society at large something new have NO RIGHTS.

    This is a carrot and stick approach to advancing the collective body of knowledge.

    Teaching the invention is very costly and is rewarded with a patent.

    There would be no incentive to teach otherwise.

    Once the inventor does their part all the weasels come out, a group which is in abundance on TechDIRT.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  46.  
    icon
    Mike Masnick (profile), Aug 15th, 2009 @ 4:54pm

    Re: Lemley is just another academic feeding at corp trough

    His connections to members of the Coalition for Patent Fairness & Piracy are well known.

    Ronald, I have asked you in the past not to lie. I do not understand why you keep doing this.

    I really don't understand why you think it's credible to keep claiming that I am working for this organization when I disagree with their position on patent reform (http://www.techdirt.com/articles/20070418/161925.shtml) and when I completely disagree with the position of certain companies you accuse me of being paid by (http://www.techdirt.com/articles/20081020/1938442601.shtml).

    Yes, we worked with Microsoft on *one* project a few months ago. It had absolutely nothing to do with patents whatsoever, and didn't even involve any direct discussion with Microsoft. It was a project that was brought to us by our partner, Federated Media, and it did not involve anything to do with us posting on Techdirt (this is true of any deal we've done). It involved (as our business is) an OPEN conversation (yes, you were free to participate as well) via the Insight Community about the recession. We never even spoke to anyone at Microsoft at all.

    You can see the entirety of that project here: http://www.techdirt.com/articles/20090605/123845.shtml

    This is what we do. My posts on Techdirt are entirely my own thoughts.

    Unlike you -- who has been shown to have taken money from inventors for the sake of defending the patent system -- we have never done anything of the sort. Our business is the Insight Community, and that involves open conversations that anyone can take part in, and have nothing to do with my posts on Techdirt.

    I think the entire patent system is problematic and should be reconsidered from the core. That is not the position of the Coalition you discuss. I do not know any individuals involved in that Coalition and have *never* (not once) spoken to a single person involved in it.

    I do not know why you consistently insist on lying, other than to destroy your own credibility further. I have asked you in the past to retract defamatory statements. You, instead, have chosen to repeat them.

    I do not know what to make of your repeated lying. It boggles my mind. The best I can conclude is that you simply don't know how to respond to the points raised, so all you have is to libel someone. It's really sad, Ronald.

     

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  47.  
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    Mike Masnick (profile), Aug 15th, 2009 @ 4:55pm

    Re: Re: Fix The Courts.

    The remarks impugning the integrity of East Texas judges are outrageous and libel.

    Ha! Ronald, considering you tend to libel me here on every third comment or so, it's funny to see you accuse someone who actually has their facts in order of libel.

     

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  48.  
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    Mike Masnick (profile), Aug 15th, 2009 @ 4:57pm

    Re: Re: Re: Every aspiring Infringer Claims Obvious

    The point is that I have always fully disclosed my affiliations while it has taken a considerable amount of time to uncover TechDIRT's affiliations.

    Oh really? As I pointed out in an earlier comment, our single project with Microsoft was entirely public (and had nothing to do with patents). I do not understand why you keep lying.

    But it's fun to watch your credibility slip, slide away...

     

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  49.  
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    Mike Masnick (profile), Aug 15th, 2009 @ 5:01pm

    Re: Re: Re: stop the shilling!!!

    But you just happen to have founding members of the Coalition for Patent Fairness as clients and advertisers? The group is well known for hiring people to push their agenda on Internet, and for hiring academics to promote their agenda with books and papers.

    Please, Ronald. I have explained this and you keep repeating it. We're a tech site. Of course Microsoft is going to advertise on the site, even though we constantly post things that would be considered anti-Microsoft. They have no say whatsoever in the content posted here. Honestly, you think they're advertising on the site because we post stuff like this? http://www.techdirt.com/articles/20081020/1938442601.shtml

    And, again, accusing academics of being hired to promote their agenda?!? Wow. That would be a major scoop. Can you provide proof? Or, as per usual, are you full of lies?

    Ronald, I have asked you to stop lying about me and to retract your false and defamatory comments. I'll ask again, though I assume I know the answer.

     

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  50.  
    identicon
    William Scott, Esq., Aug 15th, 2009 @ 5:08pm

    Re: Every aspiring Infringer Claims Obvious

    Who is Ronald J. Riley? He is not a licensed patent lawyer, not a registered patent agent, not a legal scholar on patent rights and not an ex-employee of The US Patent Office. He is a self-proclaimed “expert” on patent law without any university training in the legalities of this field. He is not a Ph.D. on intellectual property rights and is not part of any effective lobbying group that could seriously lead to change. Ronald J. Riley has created several inventor related organizations and has appointed himself “President” and “Director” of these little known groups. If anyone is seriously looking for legal advice on patent law or the USPTO, you should consult with a qualified professional. Ronald J. Riley may have read a couple of books about patent law, but he is not an attorney or anyone to be taken seriously on these matters.

    Watch your wallet. Hold onto your credit card. Ronald J. Riley’s organization wants your money. That’s why he wants the unsuspecting public to “donate” to “PIAUSA”.

    After reading his posts over the last several years, the reader will be able to judge the motives and intentions of this individual. Mr. Ronald Riley has a very creative imagination. He’s copied information from the public domain onto his websites and makes unsubstantiated claims about how he fights for individual inventor. The only problem is, there’s no verifiable proof that any of his claims are true!

    It seems that the only area in which he excels is posting his verbiage on all the patent blogs trying to solicit “donations” from the naive inventor. He does this by constantly promoting his organization PIAUSA.

    Mr. Riley has a long history of constantly tring to collect money for his websites and organizations. Please ask Mr Riley how your money will be spent, and have him send you an email stating that none of your funds will be spent on his personal expenses.

    Also, ask how he has spent past “donations”. Please do not give any money to Riley until you check him out thoroughly. Mr. Riley should disclose exactly how much money he’s collected from the public, and the money is spent.

    Any legitamate non-profit group will give you this information. Riley is a very clever fellow and he’s very good at playing the part of “patent advocate”, but don’t be fooled - there’s no track record here of licensing patents, backing individual inventors or earning royalties.

    He may respond to this post by saying that I’ve been disbarred. But he cannot get his facts straight - I am William A. Scott not the William Scott he refers to: McNair Arnold and London Financial, Inc., and their former counsel William Scott, Esq., and the Scott Law Firm, P.A., filed two separate applications under the Equal Access to Justice Act and the Commission’s implementing regulations, seeking awards of attorney fees and other expenses associated with Scott’s debarment as counsel in this proceeding. After a careful review of the record, the applications of Curtis McNair Arnold and London Financial, Inc., and their former counsel William Scott, Esq., and the Scott Law Firm, P.A. for fees and other expenses under the Equal Access to Justice Act were denied. Administrative Law Judge, Bruce C. Levine. CFTC Docket No. 97-12.

     

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  51.  
    identicon
    David, Aug 15th, 2009 @ 5:47pm

    Re: Re: Re: Every aspiring Infringer Claims Obvious

    Why do you insist on misspelling ‘Techdirt’ as ‘TechDIRT’ [sic]? Don’t you realize that it makes you look like an idiot? Perhaps that has been your intent all along.

     

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  52.  
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    Fred McTaker (profile), Aug 16th, 2009 @ 12:42am

    Re: Re: Trade Secrets vs Patents

    I don't think Mr. Riley is being honest here with his categorization of industry players, as being for or against patents. I agree there is plenty of corruption to go around, but from what I can see the corruption goes in favor of government granted monopolies such as IP, and higher fees and more complex laws around IP to increase the barriers to competition. Corruption is supportive of easy-to-get and hard-to-invalidate patents, not against them, because they have the resources to spam the USPTO with weak patents comprehensively in their field. They also tend to fight patent reform, unless "reform" means making it even worse. Just look at the list of companies filing briefs in support of or against Bilsky to see who is on each side. If the Supreme Court overturns the current ruling, and ideas and abstract "methods" are allowed to be patented instead of physical things, we are all doomed.

     

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  53.  
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    Fred McTaker (profile), Aug 16th, 2009 @ 12:57am

    Re: Re: Fix The Courts.

    "The East Texas court has every right and it delivers justice far faster than other courts."

    And with that, Mr. Riley has lost all credibility.

    Spending just a little time on Slashdot or Google News feeds with keywords or tags like "East Texas" and "Patent" will show you how wrong this statement is. Just to show you I'm better at providing information sources than Mr. Riley, who tends to only include links to the organizations he shills for in his enormous signature, here's a couple of examples to get you started:

    http://www.nytimes.com/2006/09/24/business/24ward.html
    http://thepriorart.typepad.com/t he_prior_art/2008/03/judge-wards-son.html

     

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  54.  
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    Fred McTaker (profile), Aug 16th, 2009 @ 2:12am

    Re: TechDIRT Weasels / Re:

    "Remember that the point of the patent system is to get an inventor to fully disclose the best mode of their invention in order to advance the art."

    No, the constitutionally defined point is to "advance the progress" of the "useful arts and sciences." If an "invention" is not novel, useful, or progressive, nobody gives a darn how much anyone discloses any mode of said invention. Describe your method of growing rice all you want -- it's been done for over a millennium before your birth, so nobody cares anymore. If the best mode of an invention is better expressed as an actual product on a market, rather than an attempt at a government granted monopoly for an *idea* about a *possible* product, then to "advance the art" that item should just be brought to market. This can and has been done without disrupting competition via patents.

    Tests like prior art and obviousness are necessary, to support these constitutional claims on the validity of the monopoly grant. Monopolies are universally harmful to open market progress, so the standards to grant them should be set extremely high, if granted at all. For being so clearly against Microsoft and other Oligopoly interests, you seem rather fond of handing out monopolies via IP, without concern to market harm.

    "Teaching the invention is very costly..."

    Not in all cases. The patent process can make it more expensive than necessary. Teaching is as free as writing this comment was.

    "There would be no incentive to teach otherwise."

    What about basic humanism? What incentive is there to keep knowledge a secret when it can benefit your community? Even self-interest dictates that if you and the people you care about can benefit from an invention, you benefit from bringing it into reality by any cost-effective means. Why is a long 25-year monopoly the only incentive you can fathom? I know plenty of Teachers who work at horrible wages, because they love the kids they teach.

    Come back when you get your priorities straight. Personally, I'm pro-consumer and pro-public first on any tough market decision. If patents harm either the consumer directly (i.e. unnecessary price controls), or the public generally (i.e. methods of free operation must be licensed, even when no profit is gained), I say that makes the patents worthless. So far, your comments have been equally worthless. You're a weasel, a monopoly interest shill, and I don't understand why Mike doesn't just ban your space wasting grimace.

     

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  55.  
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    Yeebok (profile), Aug 16th, 2009 @ 6:27am

    Re: Crowdsourcing +1

    I support that idea as well but hey what do I know ? Sounds like a good solution to the stated problem - so it fits its own criteria ;)

     

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  56.  
    identicon
    Michial Thompson, Aug 16th, 2009 @ 6:58am

    Re: Every aspiring Infringer Claims Obvious

    I don't find myself defending Mikee here very often, but I do agree that the patent system is broken. It has been broken since they opened it to allow business plans and software methods.

    The idea of having a patent protecting "Press one for English" on a phone system, or a patent that prevents us from editing a Public Domain data structure is ludicrous at best.

    Let's pass the obvious test in just these two scenarios, first we live in a multi language culture, when someone calls a company with an IVR they need to be able to choose the language to communicate in. You have what 12 keys on your phone, it's obvious one of them will be used to select the language.

    As for M$ and XML, if it's a file on a harddrive it will need to be used/edited at some point.

     

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  57.  
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    DaveL (profile), Aug 16th, 2009 @ 7:07am

    Obviousness is easy to determine

    Following on Brad Templeton's idea, obviousness is easy to determine.

    Obvious solutions come quickly. Non-obvious ones take a long time.

    Just because a solution is new, doesn't mean it's not obvious.

    You have to look at how old the PROBLEM is.

    If a solution comes quickly after the emergence of a problem, the solution is probably obvious and will be quickly re-invented by others. If the problem has been around for a long time, the solution is probably not obvious.

    Example: Selling books online. Obvious. Before the Web the problem didn't exist.

    Example: Xerography. Not obvious. The unsolved problem of making single copies of documents had been around for all of history.

     

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  58.  
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    Anonymous Coward, Aug 16th, 2009 @ 8:32am

    That's because all the Patent Office looks at is "prior art."

    If I may ask a simple question, just how do you define the term "prior art"? In a real-world sense what comprises "prior art"?

    Unless people are using the phrase in a consistent manner with each ascribing the same definition to it, then discussions will continue to stray all over the place.

    Merely FYI, "new" as used in the patent laws is codified at 35 USC 102 and is wide ranging in scope. It, of course, does place reliance on printed documents because they are certainly the best evidence of what has come before, but "new" embraces much more, even including acts by an applicant that pre-date the filing of an application.

    In practice 35 USC 102 is a basis for the rejection of claimed subject matter that arises only infrequently, simply because it is a rare case where what is being claimed and what pre-exists an invention are identical. Almost invariably there is something different about what has come before and what is being claimed in an application.

    In contrast, 35 USC 103 applied to claimed subject matter is the overwhelming norm.

    To suggest that "newness", governed by 35 USC 102, is the primary focus of the USPTO and that "obviousness", governed by 35 USC 103, is lower in importance is plainly erroneous.

     

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  59.  
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    Ben Zayb, Aug 16th, 2009 @ 9:57am

    Re: Chicken / Re:

    You're only posting your information to get link backs and raise your sites' page ranks. Leave the AC alone.

     

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  60.  
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    tack, Aug 16th, 2009 @ 10:24am

    Lawl Wut??

    Spammed by some Riley guy, claiming to be involved directly with the patent system. Who only proves the point that no one currently involved with the patent system should be.

    The system is a joke. Its become just a place for one business to steal money from another business. The small guy can no longer file a patent that a big business would want because that business will bankrupt that guy in frivolous patent infringement suits till he gives in.

     

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  61.  
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    Ben Zayb, Aug 16th, 2009 @ 10:37am

    Re: Re: Re: Fix The Courts.

    "This kind of reasoning is what we get from every crook or would be crook. They all are incapable of understanding ethics." -- Ronald J. Riley, Aug 15th, 2009 @ 3:36pm

    Straight from the horse's mouth, Mike. A crook is incapable of understanding ethics.

     

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  62.  
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    Mike Masnick (profile), Aug 16th, 2009 @ 11:16am

    Re:

    I've learned that when a commenter here uses "merely FYI" he's about to post something totally ridiculous that only a lawyer could think was persuasive.

    The example above is instructive. In getting bogged down in specific clauses of a particular section of the law, he thinks he's proven a point, when all he's done is prove exactly the opposite.

    In this case, he thinks he's shown that obviousness is taken into account, because of the twisted way in which he reads the statute, ignoring the *plain reality* that clearly obvious patents are getting approved on a regular basis.

     

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  63.  
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    amaya, Aug 16th, 2009 @ 11:34am

    Re: Re: Trade Secrets vs Patents

    if you treat something as a trade secret, and then someone else, who has no inside information into that trade secret comes up with it, then the idea was obvious to at least people who understand the trade, and came up with there own 'secret'.

    stop tripping over your own words

     

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  64.  
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    Anonymous Coward, Aug 16th, 2009 @ 11:39am

    Re: Re:

    There still remains a question that has not been answered. What do you mean in your use of the term "prior art"?

    As for getting "bogged down" in specific clauses, words matter...and the words contained in those two clauses (and several more, most notably 112) lay out the statutory framework for what is deemed "new and non-obvious".

    "Merely FYI", there is not a single attorney I have ever met who does not recognize that questionable inventions do get through the system and issue as patents. After all, the system is administered by people, each of who have a unique view. Mistakes are always bound to happen, not only by the issuance of a patent for a questionable invention, but also the rejection of an application that is directed to a meritorious invention. Fortunately, our laws do contain mechanisms by which these errors may be rectified. We have in place one for publication of applications, ex parte reexamination of patents, inter parties reexamination of patents, broadening/narrowing reissue procedures, appellate procedures (both administrative and judicial), etc.

    That said, might you now answer the question so that a constructive discussion can proceed?

     

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  65.  
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    Anonymous Coward, Aug 16th, 2009 @ 1:23pm

    Re: Re: Re:

    ""Merely FYI", there is not a single attorney I have ever met who does not recognize that questionable inventions do get through the system and issue as patents."

    A: this wouldn't happen if patents didn't exist

    B: Perhaps people make "mistakes" because the legal system is structured such that it's too easy to get a patent. Perhaps they should make it more difficult to get a patent. Maybe we can have a group of, say 12, elected officials decide which patents are valid and which ones aren't and one would need at least a 2/3 majority for a patent to be considered valid. That way we can make it more difficult for bogus patents to get through the system.

    The point that you're missing is that just because the laws seem "reasonable" and claim to account for "obviousness" does not mean that the legal structure in place can't be improved to reduce the amount of obvious patents approved and to reduce mistakes.

    "Fortunately, our laws do contain mechanisms by which these errors may be rectified."

    Very EXPENSIVE mechanisms, mechanisms that are causing more and more people who could otherwise be scientists and to advance technology to become lawyers and waste time and resources in court.

     

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  66.  
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    Anonymous Coward, Aug 16th, 2009 @ 1:31pm

    Re: Re: Re: Fix The Courts.

    "And with that, Mr. Riley has lost all credibility. "

    You mean he had credibility to begin with?

     

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  67.  
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    Anonymous Coward, Aug 16th, 2009 @ 1:40pm

    Re: Re: Re: Re:

    "2/3 majority for a patent to be considered valid"

    and of course everyone's vote should be publicly available so that when stupid patents do get approved everyone knows EXACTLY who to vote out next election.

     

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  68.  
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    diabolic (profile), Aug 16th, 2009 @ 4:34pm

    Re: Lemley is just another academic feeding at corp trough

    Hey Mike - I think Ronald was referring to Lemley in this case, not you.

    Ronald, would you like to provide evidence of the connections that you mentioned? Frankly, you seem pretty crazy to me, you have no credibility. If you are not bringing something to the conversation then you are just trolling. Work on bringing something constructive to the table.

     

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  69.  
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    Anonymous Coward, Aug 16th, 2009 @ 6:35pm

    Re: Re:

    From a reply comment:

    "That said, might you now answer the question so that a constructive discussion can proceed?"

    Given that the question as yet remains unanswered, would I be correct in assuming that an answer will not be forthcoming?

    Merely to refresh your recollection, the question (actually two questions) was:

    "If I may ask a simple question, just how do you define the term "prior art"? In a real-world sense what comprises "prior art"?"

     

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  70.  
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    Anonymous Coward, Aug 16th, 2009 @ 7:30pm

    A very interesting argument about the situation. I'm a technical engineer (computers, electronics) and it amazes me what passes through the patent office sometimes... as if they really are completely idiots to think these things are non-obvious. Of course the people filing paperwork at the PTO shouldn't have to understand the patent and the industry, but there should be an expert in the field to consult about whether it was obvious or not.

     

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  71.  
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    Andrew Farris, Aug 16th, 2009 @ 7:39pm

    Re: Chicken / Re:

    My name is Andrew Farris and I personally find your constant link spamming to be both absurdly blatant click seeking and also very informative regarding your trustworthiness.

    Someone interested solely in disclosing their affiliations does not need a resume and link spam under anything AND everything they post.

     

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  72.  
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    Mike Masnick (profile), Aug 16th, 2009 @ 9:00pm

    Re: Re: Re:

    That said, might you now answer the question so that a constructive discussion can proceed?

    I have found in the past that you (if you are who I think you are) have no interest in "constructive discussions." On top of that, I do not see how the question of how "prior art" is defined has any bearing on the question at hand, and the point of the post. Instead, it is an attempt to *divert* the conversation away from what was a constructive discussion.

    Getting bogged down in definitions... yet another lawyers trick to avoid responding to the actual question.

     

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  73.  
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    Michael, Aug 16th, 2009 @ 10:10pm

    Re:

    Have students attempt to solve these problems for their term/final projects. Grade them on their -approach- to solving the problem, not the fact that they developed a solution or not; though obviously anyone who developed a solution would recieve a better/easier grade.

    This is also why there should be a -limited- number of patents granted each year, though review may take more than a year. Developing a merit list and declaring the rest to be in the public domain/obvious and now documented only under copyright with mandated maximum reproduction fee is a good approach in my mind)

     

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    scott, Aug 16th, 2009 @ 10:23pm

    Re: Every aspiring Infringer Claims Obvious

    Patents do one thing and one thing only. They grant a monopoly to the patent holder. The side-effect of this is to hurt everyone on the planet (directly or indirectly) except the patent holder and his lawyers. There is no technical or moral defense that can be made for patents in the tech industry (or any other for that matter) - yeah, we've heard all the poorly rationalized reasons - save them for your meeting with your higher power. Anyone living off the patent system is a drain on society since no value of any kind is added by their labor whilst they consume the goods and services of actual producers.

     

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  75.  
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    Anonymous Coward, Aug 16th, 2009 @ 10:27pm

    Re: Re: Re: Re:

    In your article you make the following statement:

    That's because all the Patent Office looks at is "prior art."

    In order to try and understand the statement I asked:

    "If I may ask a simple question, just how do you define the term "prior art"? In a real-world sense what comprises "prior art"?"

    At various times throughout my career I have been exposed to all manner of "prior art" that I believe comprises a class larger than the class with which you appear to associate the term. Yes, it does include written materials derived from numerous sources and geographical locations. These materials can include textbooks, professional papers, domestic and foreign patents, internal communications, websites, classified documents that some inventors have no way of knowing even exists (and even if they did they could not review such documents without a security clearance and a demonstrable need to know), personal knowledge, offers to sell an invention even in some circumstances where the invention has never been manufactured or disclosed by the inventor to others, testimony by knowlegeable persons that is typically in the form of declarations and affidavits, etc.

    In the context of "newness", it is indeed a rare circumstance where one of the above informs others of all the salient features contained in the claims of an application. Invariably one or more differences are present that overcome "newness" as contemplated by Section 102 of the patent law codified at 35 USC 102. Occassionally a single instance of "prior art" truly does arise under the ambit of 102 that does "blow the claims of an application out of the water". However, this is not a significant occurence. It is indeed quite unusual for this to be the case.

    The much more common situation is where a single instance of prior art must be combined with another instance in order for an examiner to present an argument that an invention as claimed is obvious. Sometimes it is necessary for an examiner to rely upon a series of such instances to present his/her argument. In either case the burden then shifts to an applicant to present cogent reasons traversing the examiner's srgument. Many times this can be done while retaining all the salient features of a claimed invention. However, many times this cannot be done with sacrificing such salient features, at which time a decision must be made by the applicant to determine if further prosecution of an application is warranted. After all, why persist in moving forward with an application that if it proceeds to issue provides virtually no meaningful protection? I have had this latter situation arise many times, and in each instance, having familiarity with the applicant's business interests, have been able to convince the applicant to pull the plug lest he/she throw good money after bad.

    I will readily concede that there are some attorneys who will proceed come hell or highwater to secure a patent for an applicant. It is my observation that such attoneys do not represent the majority of practitioners, and those who pursue patents that are largely irrelevant to an applicant's business goals soon develop a negative reputation that is well deserved.

    Hence, I did not ask my questions in an attempt to secure a "gotcha", but merely to try and ensure we are on the same page so that a discussion can take place with the participants talking to, and not past, each other. While you may choose to believe otherwise, my interest in such a discussion is motivated largely along the same lines as the discussion currently taking place on Bill Patry's new blog.

     

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  76.  
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    Anonymous Coward, Aug 16th, 2009 @ 10:56pm

    Re: Re:

    I think I already came up with a really good solution. No need for students to get involved. Require a committee of elected officials to approve patents and require a 2/3 majority vote for a patent to get approved (perhaps a committee of 6? Or maybe each country can do it differently). Or, if 2/3 isn't rigorous enough require a 3/4 majority vote. Otherwise the patent gets denied. I discussed the philosophical reasons behind why this makes sense in another discussion but I will summarize it here.

    Patents are supposed to be for inventions that are non obvious. The elected justices are supposed to represent the average person. If only a majority of people believe something is non - obvious, say 60 percent, that's about 40 percent that believe it's obvious. If 40 percent of the population believes something is obvious and they can come up with the idea on their own (faced with the problem) then it's highly unlikely patents are needed for someone to come up with the idea. Therefore we should require a larger than majority approval, perhaps a 2/3 majority, for a patent to be approved. This is especially true given the harm that monopolies cause to society.

    Also, have a public database that the government keeps that keeps track of all previous patents so that the elected officials can look through those patents and find prior patents so as not to approve the same thing twice. Also, once a patent application has been denied it should be added to some other list so that the elected officials can look through that list and be sure never to approve a similar patent in the future. Once a patent is denied it's never to be accepted in the future no matter who applies.

    The length of patents should be substantially reduced. This is obvious and no patent is required to come up with this idea :)

    Everyone should have public access to who approved or denied what patents and any comments the official made regarding why s/he approved or denied a specific patent. That way if bad patents do get awarded everyone knows exactly who to vote out next election.

    Courts may also overturn an approved patent just as well. Perhaps a 3/5 majority vote would be required to agree that a patent is non - obvious and acceptable otherwise it gets overturned (for the same reasons as mentioned above). A smaller majority should be required for a patent to pass here because we already had elected officials approve the patent with a very high majority. Once a patent is overturned the patent may never be granted to anyone else.

    Patents approved in the U.S. (or any country) only apply in the U.S. (or the country they were approved in) and in order to get them to apply internationally the patent holder would have to apply at an international body that requires a group of internationally elected officials to approve a patent with a 3/4 majority. The requirement here should be more stringent because the patent is being more broadly enforced and hence affects a larger group of people. At the same time, in order for a patent to be approved Internationally it must first be approved within the U.S. or some other country. This would help avoid dubious applications clogging up our international system by ensuring that nonsense applications have been dealt with on a local scale first. Let each individual country go through the trouble and cost of weeding out poor patents before having an international body having to spend resources on it, if people from a specific country tend to apply for a bunch of patents then it's the country that should bear the burden of weeding them out and not the world as a whole.

     

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  77.  
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    Anonymous Coward, Aug 16th, 2009 @ 11:12pm

    Re: Re: Re:

    Another good idea might be to put caps on how much an entity may collect in royalties if someone else wants to use an idea that an entity owns a patent to.

    Perhaps another idea to consider is to allow each person only so many patents and to allow each corporation only so many patents based on how many people it employs (though I know this can get very complicated so it's probably a bad idea at this time).

     

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  78.  
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    Anonymous Coward, Aug 16th, 2009 @ 11:31pm

    Re: Re: Re: Re: Re:

    "At various times throughout my career I have been exposed to all manner of "prior art" that I believe comprises a class larger than the class with which you appear to associate the term."

    Someone should just start a website that lists all prior art and that allows anyone to submit ideas that can't be patented because once submitted they're prior thoughts and hence obvious. Then anyone evaluating the acceptability of a patent can go to that website and look for prior art or thoughts.

     

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  79.  
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    angry dude, Aug 17th, 2009 @ 6:58am

    Mikey is an honest PR dude on payroll

    He'll write anything for $$$$$

     

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  80.  
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    mobiGeek (profile), Aug 17th, 2009 @ 8:14am

    Re: Re: Re: Obvious it ain't

    No, the patent system hinders people who want to compete. It is a side effect of the original intent.

    There is very little (any?) evidence that the current system actually promotes advancement of science.

     

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  81.  
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    mobiGeek (profile), Aug 17th, 2009 @ 8:33am

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

    Website has been tried and failed. The problem is that much of "prior art" is obvious, and thus not something one would think to register in the website.

    Think of everyday things that would need to be registered: tying a shoelace (each and every possible way), using a stack of papers as a monitor stand, holding a phone by its cord to untangle it, putting a USB port in a monitor so people don't have to reach around back of their computer, etc...

    These are so obvious that no one would take the time to register them.

    Yet, when it comes to applying patents in different fields, I could easily see someone deciding to patent "mechanism/device that manipulates long bundles of thread to secure protection for bi-, tri- and quadri-pedal organisms".

     

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  82.  
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    Anonymous Coward, Aug 17th, 2009 @ 9:30am

    It is indeed quite frustrating to respond to a criticism in what is believed to be a thoughtful and sincere response, only to note that the person leveling the criticism chooses to ignore the response and truncate further discussion.

    For a site that touts its purpose as being one to engage in conversations, its words at times seem to ring hollow.

     

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  83.  
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    Mike Masnick (profile), Aug 17th, 2009 @ 9:53am

    Re:

    For a site that touts its purpose as being one to engage in conversations, its words at times seem to ring hollow.

    Engaging in conversations means engaging in productive conversations. When one has a history of purposely diverting the conversations, I have found no good reason in playing their games.

     

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  84.  
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    Derek Kerton (profile), Aug 17th, 2009 @ 10:46am

    Re: Every aspiring Infringer Claims Obvious

    "It is also a fact that no one at TechDIRT is qualified to comment on the patent system"

    Hey Ron,

    Please tell me, if I am not qualified to comment on patents, am I qualified to vote? I mean, if I'm not qualified to discuss patents, then surely I'm not qualified to have a say in the government of the country! You and Marie Antoinette seem to think it would be great to keep citizens, those unwashed masses, out of reach of any public policy.

    Fascist. Libeler. Hypocrite. And shill. And yes, you disclose it. With clumsy braggadocio, you disclose it incessantly.

     

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  85.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 10:49am

    Re: Re: Every aspiring Infringer Claims Obvious

    The party posting as William Scott Esq. was exposed long ago as a disbarred atty-lobbyist. Of coarse that is not his real name. It is virtually certain that he was one of the invention promotion fraudsters busted in Project Mousetrap by the Federal Trade Commission.

    I have said this many times before but it bears repeating, invention promoters are not very bright. They are high pressure sales people and that is the limit of their skills. They are clueless about how to market an invention.

    I and our organizations played a role in getting the FTC to revisit and review current activities of a number of the parties in the Project Mousetrap action. Subsequently, one was on the wrong end of a $26 million dollar award, another was assessed $60 million and his business placed in Federal receivership and others are the subjects of ongoing investigations. Needless to say, these crooks are not happy campers.

    I started advocating for inventor's rights in 1990. Since 1990 I have donated my time without compensation. I was able to do this because of royalties from my patents. From 1990 to about 2006 the vast majority of overhead was funded personally.

    It has only been since 2006 that we solicited donations and we fully disclose to the IRS as required by law. We are not going to disclose names of donors and service providers publicly and especially not to anyone associated with invention promotion fraud.

    I most certainly agree that inventors should seek qualified counsel on legal matters. But it is a fact that few people in the legal profession understand the big picture of how an inventor should proceed. In fact there is no single path to success which is correct, every situation is unique and in the end inventors must make these decisions for themselves.

    The best way for inventors to learn about their possible course of action is to network with other commercially successful inventors. That is what my advocacy work has been about, helping inventors network with others who have already walked the path, and just as important is helping them avoid common pitfalls such as invention promotion fraudsters and helping them avoid common pitfalls in their dealings with large corporations.

    Those pitfalls include avoiding giving patent pirating large companies an excuse to bring a declaratory judgment lawsuit against the inventor (typical cost $100,000 and up) and helping inventors find effective and honest patent enforcement partners (some of whom are as bad as the big patent pirating companies).

    The party posting as William Scott has used many aliases, often to respond to and try to reinforce their own posts. They even created a blog in my name and have posted to Internet using my name. This is not a surprise since these are the same people who are stealing between $10,000 and $50,000 from aspiring inventors. Collectively this relatively small group of fraudsters are fleecing people for over $500 million a year. Some of the ringleaders in these fraudulent operations are making $10-$20 MILLION a year.

    The inventor community has helped put a number of these con artists in jail. Others will be joining them.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  86.  
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    Derek Kerton (profile), Aug 17th, 2009 @ 10:53am

    Re: Re: Every aspiring Infringer Claims Obvious

    I agree with you mostly, but to be fair to a douchebag (R.J.R.), your comment:

    "Mr. Riley has a long history of constantly tring to collect money for his websites and organizations"

    ..is misleading. Trying to collect money for websites and orgs is one of the important things businesses and legit orgs do. Trying to raise funds, or revenues is not an indication of RJR's legitimacy or illegitimacy.

    His writings, however, ARE an indication of his illegitimacy.

    Sorry to jump in to an otherwise interesting post, but let's not falsely impugn anyone fully capable of failing on their own merit.

     

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  87.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 11:00am

    Re: Re: Chicken / Re:

    Mr. Farris,

    Our web sites are well established and we do not need the links to improve ranking or to bring those who know what they are looking for to our web site.

    I have pointed out before that the primary reason for posting to TechDIRT is that their positions are so outragious on patent issues, their ignorance about the nature of inventing as a profession is so profound that they draw the attention and ire of inventors.

    It is those inventors who I want to engage. We are fighting an all out war with both invention promotion frauds and thieving large companies. The more inventors and other parties who are concerned about long term prosperity whom we can engage the better. They are my target audience. Most certainly I have ZERO chance of educating anti-patent TechDIRT members.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  88.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 11:02am

    Re: Re: Re: Re: Every aspiring Infringer Claims Obvious

    The issue is where your bread is being buttered.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  89.  
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    Derek Kerton (profile), Aug 17th, 2009 @ 11:06am

    Re: Chicken / Re:

    "How about posting your name? It seems kind of hypocritical for you to criticize other who do disclose their affiliations while you hide your own."

    I've chided you for this a few times before, with my full name, linkable to my business site, etc. So what if this AC didn't. What's the difference? There was no response to me, and no actual response to the AC. And you continue to link bait, brag, and leverage your affiliations even as you claim to speak on your own behalf.

    Here's a clue: Bill Gates CAN'T speak on his own behalf. Barack Obama CAN'T speak on his own behalf (like cases of Harvard professor arrests). Edward Whitacre Jr. (GM CEO) cannot speak on his own behalf.

    When you are president, founder, leader of an organization, EVERYTHING you say or do paints that organization. As such, leaders of these organizations must publicly comport themselves in such a way as to represent the group, and carry out their duties responsibly 24/7. That is the honorable, ethical way to act. Sometimes, they screw up, as Obama did with the Boston Police. There is usually a price to be paid.

    Either way, if you ARE just speaking as an individual, posting your affiliations as you do is a shady move. You invoke them not as disclosure, but as your signature line to add power to your argument, and to link-bait back to the sites.

     

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  90.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 11:44am

    Re: Re: Re: Re: stop the shilling!!!

    I am asking you again to do the same. Stop lying about inventors and the inventor community.

    We invest years, often a decade or more conceiving our inventions. We accept the contract which is the law of the land to teach our inventions via a patent(s). There is considerable cost involved in teaching beyond the act of inventing.

    Government promises inventors exclusive rights to their inventions for twenty years from the date of filing. It can easily take a decade to capitalize on that promise.

    After we get a patent the sharks come out in force and try to steal the fruits of our labor. They commit every type of fraud you can imagine to cover their tracks. They do their best to bankrupt us through abuse of the process of law. They hire PR people to smear inventors both individually and collectively. They sponsor academics to carry their water, and they even hire people to blog.

    It would be an understatement to say that TechDIRT's position on patents is extreme. Everything in my experience has taught me to follow the money.

    But then over a decade to butting heads with disreputable patent pirating companies has played a role in shaping my worldview.

    So Mike, if you want to understand what makes independent inventors tick, get a copy of the Flash of Genius movie and watch it. I knew the inventor, Bob Kearns well. Then get a copy of Nick Taylor's book about the Laser, and read a bit about Farnsworth. Then maybe we can have a productive discussion which just might lead to some common ground.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  91.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 11:50am

    Re: Re: TechDIRT Weasels / Re:

    "What about basic humanism? What incentive is there to keep knowledge a secret when it can benefit your community?"

    Look up how guilds handled discoveries their members made. They carefully guarded them as secrets of the trade and as a result progress was very slow.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  92.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 11:59am

    Re: Re: Chicken / Re:

    "Either way, if you ARE just speaking as an individual, posting your affiliations as you do is a shady move. You invoke them not as disclosure, but as your signature line to add power to your argument, and to link-bait back to the sites."

    Just because I found an organization does not mean that I speak for everyone associated with the organization.

    For example, I or a small group associated with one of our organizations may write a position letter. To speak for the organization that letter then goes to the directors for approval. Then and only then the document is official.

    I do not have time to run every post past the directors, and therefore those posts represent just my opinion. Generally many people in the organization will agree with me but not all. In fact I have yet to meet an inventor who is not very opinionated and strong willed.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  93.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:01pm

    Re: Re: Every aspiring Infringer Claims Obvious

    No, patents encourage people to fully disclose their inventions.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  94.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:08pm

    Re: Re: Re: Re: Re: Trade Secrets vs Patents

    Microsoft is fighting a losing battle. They spend a fortune on R&D, get lots of incremental improvement patents yet still miss the boat on the most important inventions.

    In fact, it was Microsoft which announced they wanted patent deform which started the current Congressional battle. A week or so later IBM joined them.

    Big companies are trying to turn the patent system into an exclusive sport which serves only their interests.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  95.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:11pm

    Re: Obviousness is easy to determine

    "Following on Brad Templeton's idea, obviousness is easy to determine.

    Obvious solutions come quickly. Non-obvious ones take a long time."

    Not so. Study Farnsworth. It is a fact that many inventions come in a flash of genius.

    Following on Brad Templeton's idea, obviousness is easy to determine.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  96.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:16pm

    Re: Re:

    Mike,

    This is the kind of snarky comment which causes people to scorn you. As society and technology become more complex so does law. They go hand in hand.

    I suggest that you invest a bit of effort into understanding the points and deal with them on merit.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  97.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:28pm

    Re: Lawl Wut??

    "The small guy can no longer file a patent that a big business would want because that business will bankrupt that guy in frivolous patent infringement suits till he gives in."

    The reason that big business is crying about "patent trolls" is that their past excesses have made it much easier for individuals and small business to extract justice. It is still difficult but now possible where from 1920 through the 1960's no inventor got justice.

    This is a complex subject, but inventors are drawing far more blood then has ever happened before.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  98.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 12:42pm

    Re: Re:

    "Engaging in conversations means engaging in productive conversations. When one has a history of purposely diverting the conversations, I have found no good reason in playing their games."

    This is exactly what you do all the time Mike. I learned long ago that you will ignore the substantive issues I raise while focusing on something unrelated to the thrust of any response I make. When you site sources they are by no means credible.

    You consistently attack in snide ways inventors and everything they represent. Your site is loaded with like minded people.

    It it any surprise that you are held in such low esteem by inventors? It is a fact that most important inventions do not come from established tech companies. We know this as do they. That is the reason that tech companies want to change the patent system. Now the only question is what motivates you to in large part promote the same agenda?

    Perhaps if you can explain your underlying reasons for thinking that inventors should roll over and assume the position whenever someone wants to take rights which they have earned? If our property rights are to be socialized why shouldn't yours also be socialized?

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  99.  
    icon
    Ronald J Riley (profile), Aug 17th, 2009 @ 12:46pm

    Re: Re: Re: Re:

    "Another good idea might be to put caps on how much an entity may collect in royalties if someone else wants to use an idea that an entity owns a patent to."

    While we are at it we should put a cap on what you can earn, say $5 an hour for life without any chance for cost of living increases?

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  100.  
    identicon
    Anonymous Coward, Aug 17th, 2009 @ 12:54pm

    Re: Re:

    Apparently the time I took to prepare #75 above is viewed by you as an attempt to purposely divert the conversation. That is a shame because a critical part of your article turns upon what is meant by the term "prior art", and all I have been trying to do is put some "flesh" on the term so that we are all speaking from the same page; talking to, and not past, each other.

    It is important for you to realize that I am in no way "itching for a fight". That would be silly and uninstructive. What would be beneficial, however, would be to talk about what really happens during the prosecution of patent applications, what limitations may be inherent in the system due to the tools supplied to patent examiners from which the draw their arguments, and what might be done to meaningfully overcome such limitations so that a more comprehensive consideration of patents applications takes place.

    Perhaps some may feel differently, but it has always been my goal to secure a patent that has gone through as rigorous an examination as possible. The more prior art cited against the claims the better since it gives more meaning to the presumption of validity once a patent issues. I have absolutely no desire to foist upon a client a piece of paper that is largely worthless in the event that a problem arises in the future.

     

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  101.  
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    Mike Masnick (profile), Aug 17th, 2009 @ 4:14pm

    Re: Re: Re:

    I learned long ago that you will ignore the substantive issues I raise while focusing on something unrelated to the thrust of any response I make. When you site sources they are by no means credible.

    Funny. I've quoted Nobel Prize winners and other peer reviewed academic research. I have asked you to respond, and your response was to insult my parents.

    I have never personally insulted you or your family.

    You have never raised "substantive issues" around here. I engage in all sorts of interesting and compelling discussions with those who disagree with me. But you have not raised any points to discuss. Instead, you come by here and LIE and insist that I must be paid for my views when that it is a flat out lie.

    I don't know why you continue to come here, insult me and lie about me. But if you actually had something substantive to say, I'd love to hear it. To date I have not seen it.

     

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  102.  
    icon
    Mike Masnick (profile), Aug 17th, 2009 @ 4:17pm

    Re: Re: Re:

    Apparently the time I took to prepare #75 above is viewed by you as an attempt to purposely divert the conversation. That is a shame because a critical part of your article turns upon what is meant by the term "prior art", and all I have been trying to do is put some "flesh" on the term so that we are all speaking from the same page; talking to, and not past, each other.

    How one defines prior art is rather meaningless to the point of actual discussion: which is that prior art is not the way to determine obviousness. You bringing it up is a clear attempt to divert the conversation.

    And again, I need to question why you (from your tone it's clear to me who you are) feel the need to go incognito every time people call you on this sort of activity? However, I notice on sites that smear me, you have no problem signing your name. Funny.

    I see no reason to discuss things with someone who has shown a history of purposely posting false statements in an attempt to make me look bad. I will not be responding to any further comments from you.

     

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  103.  
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    Ronald J Riley (profile), Aug 17th, 2009 @ 5:10pm

    Re: Re: Re: Re:

    "I have never personally insulted you or your family."

    Explain why virtually every inventor who visits this forum either leaves or finally gets testy with you.

    You are insulting and after a certain number of experiences with it inventors decide that you are not a fair broker of ideas. Your posts on the subject display a profound ignorance about the issues. You do not understand patents or the economics of patents and the invention business.

    That leaves us wondering if you are that ignorant and just too stubborn to listen or if you are one of those media agents which patent pirates hire to disrupt public discussion of their conduct.

    There are issues which I agree with your positions Mike, but my time is limited and all the anti-patent-inventor drivel you spew leaves me no choice except to put time into addressing those issues. It is a shame.

    By the way, beyond TechDIRT's Microsoft connections there appears to be similar connections to Sun, Intel, HP, Amex and no doubt other companies associated with the most egregious conduct against inventors. This is a strange coincidence.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  104.  
    icon
    another mike (profile), Aug 17th, 2009 @ 5:13pm

    Re: Crowdsourcing +2

    This seems like the best current solution.

    The USPTO puts out something like a Request for Proposal (RFP) for every patent application that comes in. (Yes, this new process will slow things down, but awarding a patent is supposed to be a rare event.) In the RFP, the examiner announces what problem is solved, but not how it is solved. They could do it on a wiki page. Then give interested parties something like 6 months to a year (rare event, remember) to gather up their notes and drop off a tarball in the wiki. Then the examiner goes over what was submitted as alternate solutions, and if anybody (or enough people) solved the problem the same way as the applicant, then it was obvious.
    Oh, and if a design standard is written up, and your patent "covers" it, unless you helped write the standard, it was obvious.

     

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  105.  
    icon
    Ben (profile), Aug 17th, 2009 @ 6:12pm

    Re: Re: Re: Re: Re: stop the shilling!!!

    "We accept the contract which is the law of the land to teach our inventions via a patent(s). There is considerable cost involved in teaching beyond the act of inventing."

    Exterior to Ronald's and Mike's debate, I question how much 'teaching' patents actually do. Contrast Instructables.com with the USPTO and it's pretty apparent that patents are much more focused on protecting ideas than 'promoting the progress...' Patents are instructive, but their teaching utility is bound by the legalese that keeps obvious patents from being seen for what they are.

     

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  106.  
    identicon
    Anonymous Coward, Aug 17th, 2009 @ 6:28pm

    Re: Re: Re: Re:

    I am disappointed you have chosen a path calculated to ensure no meaningful discussion will transpire, and that as a consequence your readership will remain largely in the dark about the points raised in your article.

     

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  107.  
    icon
    Mike Masnick (profile), Aug 18th, 2009 @ 1:37am

    Re: Re: Re: Re: Re:

    Explain why virtually every inventor who visits this forum either leaves or finally gets testy with you.

    Ha! If that were true, that would be something, but it's not true. We have lots of inventors who read this site and are quite happy with it, and we work with numerous inventors and innovators around the world. The only group who responds as you claim are the three people who all seem to be part of your "organizations" and who continue to post defamatory statements about me -- always from the same IP addresses.

    You are insulting and after a certain number of experiences with it inventors decide that you are not a fair broker of ideas. Your posts on the subject display a profound ignorance about the issues. You do not understand patents or the economics of patents and the invention business.

    I have asked you, repeatedly, to provide a point of substance to back up your claims that I am ignorant on the economics of patents. You have not.

    By the way, beyond TechDIRT's Microsoft connections there appears to be similar connections to Sun, Intel, HP, Amex and no doubt other companies associated with the most egregious conduct against inventors. This is a strange coincidence.

    It's a strange coincidence that among our many, many customers are some of the largest companies in the world? How so? To date, it's been shown that you don't have much experience in business, but I'm curious as to what customers you think we should be going after with our business.

    But of course, not a single project that we've worked on has anything to do with patents. The reason you know about our customers is because all of the work we do for them is public, and it involves the Insight Community, not Techdirt.

    I don't understand why you continue to lie about me.

     

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  108.  
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    Ronald J Riley (profile), Aug 18th, 2009 @ 6:59am

    Similarity of TechDirt & CPF Positions

    "It's a strange coincidence that among our many, many customers are some of the largest companies in the world?"

    It is interesting that your customers are among the biggest companies as opposed to small entrepreneurial companies. But even more interesting is that of the ones we know about that most are members of the Coalition for Patent Fairness (aka. Piracy Coalition), a group doing its best to destroy the patent system and that TechDIRT's and their position seems pretty similar on the patent system.

    Incidentally, I started my first business when I was nineteen. Even when I worked for others during my 40 year career I have most of the time ran some sort of side business.

    I do know a great deal about business, especially start-ups based on inventions. It was money that I made from my inventions, both through production of products and through licensing which has allowed me luxury of devoting much of my time since 1990 to inventor advocacy.

    I have asked you in a number of posts to help me understand why you are personally hostile towards inventors and the property rights they have EARNED by both inventing and TEACHING their invention. For an inventors perspective we have played by the rules while big companies steal and then lie and cheat to cover their tracks. I cannot understand why TechDIRT seems to be promoting the big company agenda.

    Perhaps we can find some common ground? But for that to happen you need to be forthright, something which you have not been so far.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  109.  
    icon
    Ronald J Riley (profile), Aug 18th, 2009 @ 7:32am

    Re: Re: Re: Re: Re: Re: stop the shilling!!!

    Ben,

    I also wish that patents were easier to understand but they are what they are because of case law and various court decisions.

    Most of the complaints I see about specific patents are a result of layman reading the description and assuming that it represents what the patent covers when it is the claims which define the coverage. Claims are always much narrower than the description.

    One of the reasons for complexity in patents is that claims need to be written to cover every possible combination of claim elements. This is done so that it a specific element is ruled invalid that all the other elements are not.

    Please not that I am not a lawyer, just an inventor who has found that one needs lots of lawyers in order to survive.

    The real problem in intellectual property is not the patent system but rather arrogant and dishonest large companies. Their shenanigans are what has made the system difficult to use.

    Still, developed countries, especially (America and Australia have the most vigorous independent inventor communities) people's innate ingenuity is their most important asset and the only thing capable of maintaining our profit margins and standard living in the face of low wage global competition.

    Inventors create new wealth, think of them as being the bottom of the food chain. Most business feed at higher levels, TechDIRT being one example of this. In the end they will all starve if new wealth creation does not occur.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  110.  
    icon
    Ronald J Riley (profile), Aug 18th, 2009 @ 7:39am

    Re: Re: Re: Re:

    "How one defines prior art is rather meaningless to the point of actual discussion: which is that prior art is not the way to determine obviousness. You bringing it up is a clear attempt to divert the conversation."

    It seems that you think that a group with a vested interest should be able to declare that something is obvious and then have their way with the person who actually invented something.

    Prior art is the only quantifiable way to determine obviousness. Courts do a pretty good job of making this determination.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  111.  
    identicon
    angry dude, Aug 18th, 2009 @ 9:31am

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

    "The only group who responds as you claim are the three people who all seem to be part of your "organizations" and who continue to post defamatory statements about me -- always from the same IP addresses."

    For the record: I do not belong to any organization and do not make any money from posting on this shitty blog (unlike you, Mikey)

     

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  112.  
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    Mike Masnick (profile), Aug 18th, 2009 @ 9:52am

    Re: Similarity of TechDirt & CPF Positions

    I have asked you in a number of posts to help me understand why you are personally hostile towards inventors

    Ronald, I am not personally hostile towards inventors at all. I do not understand why you continue to insist I am.

    I work with tons of inventors to help them come up with better business models from which to profit from their work.

    My issue is with the process of using patents to hold back innovation.

    I cannot understand why TechDIRT seems to be promoting the big company agenda.

    I don't know why you keep saying this when we have been just as harsh about big companies abusing the system. I am beginning to think that you don't even read what we write.

     

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  113.  
    identicon
    Anonymous Coward, Aug 18th, 2009 @ 10:28am

    To the readers of this article:

    I have attempted to engage Mr. Masnick is some form, any form, of a discussion trying to set the stage for a meaningful conversation where we are actually talking to each other and not past each other. In order to do so it seems to me that explaining what is meant by the term "prior art" is quite important in the sense that what the term means to one person means something else entirely to another person. For example, some use it to mean "prior issued patents". Others use it to mean "prior publications, including prior issued patents". Still others use it to mean "prior acts, and prior publications, including prior issued patents". Still others, like me, use it to signify any and all veryfiable information that informs persons on the state of the art in various fields of endeavor, and this includes not only the broadest of the forgoing, but also any reliable evidence that serves to give meaning to the legal standard set forth in the "obviousness provision" stated in Section 103 of our patent law.

    Mr. Masnick would have his readership believe, based upon his personal views and those expressed in the article to which he links, that the system employed within the Patent Office has defaulted to "new" and is largely ignoring the central role played by the requirement known as "non-obvious". For those unfamiliar with the primary standards against which a patent application is measured, there are basically four of them. The first is that an invention must be "useful", i.e., it must actually be capable of being applied for a useful purpose. The second is "new". This standard means little more than the invention being claimed by an inventor in his/her application has never before existed (this is rarely the case since even remarkably similar devices invariably have different features, some of which may be quite trivial and some of which may be quite important). The third standard is that the invention as claimed must not be obvious in light of what the prior art collectively teaches to persons of ordinary skill in the art to which the subject matter of an invention relates at the time the invention was made. And, finally, even if an invention is new, useful and not obvious, the applicant must still describe the invention in his/her application in sufficient detail such that persons of ordinary skill in the art presented with enough information that they can replicate the invention without having to resort to undue experimentation.

    Importantly, unless each of the four standards are met a patent application will be rejected. Of course, the process does provide for an applicant and a patent examiner to exchange correspondence in order to address each of the arguments presented by one to the other.

    In this article and the linked article the assertion is made that the "new" standard basically trumps the "obviousness" standard, with the latter being given short shrift and the former reflecting what is really going on during the process of examining patent applications.

    This view is plainly wrong, as is readily demonstrate by a perusal of even a small sample spplications that have been filed and considered by the USPTO. Rejections for not being "new" are easily addressed and only in rare circumstances do they rise to the level of forming a sound and compelling basis for declaring that an invention is not patentable. "Obviousness", on the other hand, is the standard that applies and is asserted in virtually all cases. In over 30 years of practice I have as yet to see an application being rejected and sutained in the event of an appeal solely on the basis of not being "new". "Obviousness", on the other hand, is quite a different matter, as is the requirement that an inventor adequately describe the invention such that it meets what in formally known as an "enabling disclosure".

    If anything, this article and the linked article, make points that are exactly backward from the natural and almost universal progression of applications through the Patent Office's examination process. To suggest the opposite is to demonstrate an understanding of our laws and the examination process that is, quite simply, wrong.

    Of course, there is always the possiblity that I am mistaken in understanding the import of what the articles are saying because perhaps their use of the term "prior art" is not the same as how I use the term "prior art". Hence, I asked if perhaps we may be using the term to mean different things, and it ill-serves informed discussion to proceed with such a discussion without each party ensuring that when they use the term they mean the same thing to each party. Absent this a discussion devolves into little more than the parties talking past, and not with, each other.

    It is disappointing that Mr. Masnick has chosen to withdraw on the basis of reasons having nothing to do with reasoned discussion. Such a discussion would have been helpful to those who read articles such as these in order for them to understand waht this issue is all about.

     

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

  114.  
    icon
    Derek Kerton (profile), Aug 18th, 2009 @ 12:19pm

    Re: Re: Re: Chicken / Re:

    "Just because I found an organization does not mean that I speak for everyone associated with the organization."

    Well, duh. But running an org does convey that the things you say are generally representative of the position of that org.

    "To speak for the organization that letter then goes to the directors for approval. Then and only then the document is official."

    And thus, the ethical thing to do would be either of:

    Best - be anonymous, using a pseudonym

    Best - don't submit things unless approved by your directors, because your position confers with it an automatic, implicit statement about the position of the orgs you run

    Second Best - submit using your real name, but don't invoke your affiliations

    Third Best - submit using real name, but only invoke your affiliations as disclosure, not as seemingly promotional work or credibility boosters.

    My opinion, to be sure, but most people here seem to think your current method is shady.

     

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

  115.  
    identicon
    Ben Zayb, Aug 19th, 2009 @ 2:42pm

    Re: Re: Re: Chicken / Re:

    "Our web sites are well established..."

    Not they're not.

     

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

  116.  
    icon
    Ronald J Riley (profile), Aug 19th, 2009 @ 5:24pm

    Re: Re: Re: Re: Chicken / Re:

    "My opinion, to be sure, but most people here seem to think your current method is shady."

    And most people here are flat out opposed to inventor's property rights. IE, TechDIRT is more than a bit biased.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  117.  
    icon
    Ronald J Riley (profile), Aug 19th, 2009 @ 6:34pm

    "My issue is with the process of using patents to hold back innovation."

    You cannot have so called innovation without someone producing the inventions.

    Innovation describes the process of a line of inventions advancing the collective knowledge.

    The problem is that those who copy others inventions want to call themselves innovators when they are really thieving copiers who combine others inventions into their products.

    So called innovators would have nothing to work with if not for the work of real inventors.

    Most companies claiming that they are innovators are really marketing hucksters who rationalize that their contribution has value and that the inventors who enable what they do contribution has little or no value.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  118.  
    icon
    Mike Masnick (profile), Aug 19th, 2009 @ 7:24pm

    Re:

    You cannot have so called innovation without someone producing the inventions.

    Indeed. But what does that have to do with patents? I can name you over a dozen studies that have shown the answer is that patents actually limit and hold back innovation, rather than encourage it.

    So... why are you such a fan of patents again?

     

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


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