The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

from the functional-forgeries dept

M-CAM's analysis of the Yahoo/Facebook patent nuclear war has some interesting points. It's worth checking out the full thing, but I wanted to call attention to two them. First, in showing just how ridiculous the patent situation is in the social networking space, M-CAM looks just at the 10 patents that Facebook is asserting in its counterclaims against Yahoo, and discovered that there are over 30,000 related patents that cover similar aspects -- many of which have been around for a while. Notably, IBM (who just sold Facebook a bunch of patents) holds the largest batch of such patents, but that's only 270 patents, meaning these patents are really widely spread out.

In other words, there's a massive patent thicket in the social networking space. I don't how see anyone can legitimately suggest that the patent system is working when someone developing a social network has to be concerned about the fact that they might get sued over upwards of 30,000 patents. If anything, this is just another example of the point that Tim Lee and Christina Mulligan recently made in showing how it's mathematically impossible to avoid infringing on patents if you're developing software these days. No sane person thinks that 30,000 patents make sense for social networking.

As the report notes, a very large number of these patents are "functional forgeries" in that they cover stuff that's in other patents. Really what this goes back to is the fact that the patent system relies on patent examiners to magically know what's new and non-obvious. But, if it's impossible for those who actually work in the space to know about the 30,000 related patents, how do you think a patent examiner does it? The answer is they don't. Patent examiners simply don't scale, and that's a huge problem with the way the system is designed today.

And that brings us to the second point in the M-CAM report, which highlights just how ridiculous the process is to get patent examiners to approve a patent can be. M-CAM looks specifically at the process that got Patent 8,150,913 approved (which happened the same day that Facebook used it in the lawsuit). The report notes that the 913 patent was originally rejected by patent examiner Bharat N. Barot, but the filer amended the claims, and the second time around Barot found them suddenly worthy of a patent. You might think that the changes to go from non-patentable and obvious to patentable and non-obvious would be pretty big. Not so much. M-CAM puts the original claim 1 and the approved claim next to each other and highlights the only difference in blue, which was a ridiculously minor word change towards the end.
Original Submitted Claim 1 of US 8,150,913 Dated: August 22, 2011Issued Claim 1 of US 8,150,913 Dated: April 3, 2012
1. A computer system that provides a service for controlled access over a network to user profiles having associated image content provided by registered users of the service, the computer system comprising:

a networked server system accessible by remote user devices via the network, the networked server system comprising at least one processor and at least one memory; and

at least one database accessible by the networked server system and configured to store the user profiles of the registered users, image content items associated with the user profiles, and relationship data that specifies access relationships established between the registered users;

the networked server system being programmed, via executable program instructions, to:

allow users to register with the service and the registered users to each create a user profile comprising profile information about the respective registered user and a plurality of image content items of data types corresponding to one or more of photo data or video data; allow a first registered user to identify other registered users via a user interface and to indicate a desire to establish an access relationship with the other registered users, wherein each access relationship allows the first registered user to access a user profile of an identified other registered user via the user interface and image content items of the identified other registered user via the user interface;

establish access relationships between the first registered user and the other registered users without requiring the other registered users to individually approve the access relationships; allow the first registered user to select from the user interface the user profile of another registered user with respect to which an access relationship has been established with the first registered user, in response to which the networked server system provides the selected user profile for display to the first registered in the user interface, wherein the selected user profile includes representations of at least some of the image content items associated with the selected user profile;

allow the first registered user to select and view one of the image content items in the user interface; and

allow the first registered user to interact with the selected image content item via interactive controls of the user interface.
1. A computer system that provides a service for controlled access over a network to user profiles having associated image content provided by registered users of the service, the computer system comprising:

a networked server system accessible by remote user devices via the network, the networked server system comprising at least one processor and at least one memory; and

at least one database accessible by the networked server system and configured to store the user profiles of the registered users, image content items associated with the user profiles, and relationship data that specifies access relationships established between the registered users;

the networked server system being programmed, via executable program instructions, to:

allow users to register with the service and the registered users to each create a user profile comprising profile information about the respective registered user and a plurality of image content items of data types corresponding to one or more of photo data or video data; allow a first registered user to identify other registered users via a user interface and to indicate a desire to establish an access relationship with the other registered users, wherein each access relationship allows the first registered user to access a user profile of an identified other registered user via the user interface and image content items of the identified other registered user via the user interface;

establish access relationships between the first registered user and the other registered users without requiring the other registered users to individually approve the access relationships; allow the first registered user to select from the user interface the user profile of another registered user with respect to which an access relationship has been established with the first registered user, in response to which the networked server system provides the selected user profile for display to the first registered user in the user interface, wherein the selected user profile includes representations of at least some of the image content items associated with the selected user profile;

allow the first registered user to select and view at least one of the image content items associated with the selected user profile in the user interface; and

allow the first registered user to interact with the selected image content item via interactive controls of the user interface.

Yes, the words in blue are apparently the sum total of the difference between something that's unpatentable and something that gives you a monopoly you can sue over.

Any patent lawyers want to defend this kind of ridiculousness?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Pjerky (profile), Apr 10th, 2012 @ 1:50pm

    Searching

    So do the patent examiners not have a digital text search? Seriously how the hell was this not caught when these patents were issued so recently? This seems like it should be illegal.

     

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    A Guy (profile), Apr 10th, 2012 @ 2:44pm

    There's an extra blue word "user" that's in both sides.

     

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  3.  
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    Anonymous Coward, Apr 10th, 2012 @ 2:52pm

    "No sane person thinks that 30,000 patents make sense for social networking. "

    The Techdirt shills do.

     

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  4.  
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    Jay (profile), Apr 10th, 2012 @ 2:55pm

    The cold war has turned into a nuclear war. Man your battle stations!

     

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  5.  
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    :Lobo Santo (profile), Apr 10th, 2012 @ 2:56pm

    Re: *SNORT*

    So, you're asserting the techdirt shills are sane?

     

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  6.  
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    Chosen Reject (profile), Apr 10th, 2012 @ 3:07pm

    I recently read an article on cnet about patents. Here's the most important part of that article:
    Patent law simply wasn't designed for the always changing, rapidly developing world of software.
    It's true that patent law isn't designed for any area where there is rapid progress, I contend that patent laws designs prohibit rapid progress. Patent law was sold as a method to "promote the progress" of "useful arts". Patent law, however, is designed to slow down innovation. Ben Parr got the equation backwards. It's not that software advances too fast for patent law, it's that patent law hasn't yet had a chance to rein in software.

    Every field that is new and exciting has lots of fresh ideas that are the low hanging fruit. These should not be patentable. The only reason they are new is simply because there has not been very many minds looking into the problem space (if any at all). During this initial period many advances are made. Patents during this initial period are nothing but a road block that slows down the innovation a new field needs to succeed. Patents do nothing but hinder new fields.

    More mature fields, however, are also harmed by patents. The more patents held in a field means 1) fewer people are willing to play in the patent thicket, 2) the likelihood of success by just copying is much smaller (Apple's patents are not what's keeping Samsung from being a half-trillion dollar company, no matter how much Apple might want the courts to believe that). This means in more mature markets, patents do more harm to the start-up than to the incumbent, harming the market, which reduces benefits to the people.

    Patents are, by definition, a limit on progress.

     

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  7.  
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    Patent Attorney, Apr 10th, 2012 @ 3:12pm

    Patent Attorney here.

    Hey, I' a patent attorney, so I thought I would take Mike up on his invitation to comment on this particular case.

    I reviewed the prosecution history (very quickly). In this instance (for USPN 8,150,913), the Examiner's rejection in the fist place was not in view of the prior art. Rather, the rejection was related to what really amounts to administrative stuff - mostly form, not substance related to prior art. So, the Examiner's first rejection essentially indicated that he believed the claims were patentable over the prior art from the start. It appears as though the Examiner had already reviewed similar claims in a different application from the same Applicant and determined their patentability. Therefore, the Examiner already had done his homework on these claims in a different application.

    The amendments by the Applicant do not appear to have had to do with securing the patent *over the prior art*.

    However, the Examiner determined that the claims were too similar to claims in that different patent by the same Applicant (in a related case, for example). Thus, the Examiner required a "Terminal Disclaimer," requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. (Otherwise you could have two entities claiming to own essentially the same thing.)

    Now, you could say lots of bad things about letting Applicants file "continuation" applications to go after similar claims. But Mike's article is not about that.

    I have no connection to any parties in this case or the Examiner, and have only briefly looked at the prosecution history.

    Best regards,
    Patent Attorney

     

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  8.  
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    Kenneth Michaels, Apr 10th, 2012 @ 3:18pm

    The Examiner's Examination

    I reviewed this case. The Examiner essentially indicated that he believed the claims were patentable over the prior art in the first place. (Apparently the Examiner had already been reviewing similar claims by the Applicant in a related case.) And, the amendments to the claims by the Applicant were not to secure the patent in view of the prior art.

    Not that I'm saying that the Applicant deserves a patent.

    Best regards.

     

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  9.  
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    rubberpants, Apr 10th, 2012 @ 3:20pm

    It's obvious to anyone familiar with the system that software patents are bad for everyone except:

    1. patent trolls
    2. patent lawyers
    3. recipients of campaign contributions from patent trolls and patent lawyers
    4. paid lobbyists of patent trolls and patent lawyers

    http://www.opensecrets.org/industries/indus.php?Ind=K

    That's why the "comprehensive patent reform bill" that the president has claimed as an achievement does nothing but help patent trolls and patent lawyers. Don't expect any improvements here until #3 stops being true.

     

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    Doug B (profile), Apr 10th, 2012 @ 3:24pm

    The whole thing is a joke


    The advantages of the invention are numerous. Several advantages that embodiments of the invention may include are as follows. One advantage of the invention is that the distribution of information takes place in an automated fashion, which is particularly advantageous when large numbers of users are involved. Another advantage of the invention is that the parties involved in the distribution can control the distribution process so that only approved distributions occur. Still another advantage of the invention is that updates to previously distributed information can also be automated. Yet another advantage of the invention is that the information being exchanged is useful for enabling registered persons to efficiently contact the persons associated with the information using a mechanism which they have prescribed. Another advantage of the invention is that contact and additional information can be distributed to users in a common format. Still yet another advantage of the invention is that an administrator can control the distribution and use of corporate (i.e., business entity) information.

    The many features and advantages of the present invention are apparent from the written description, and thus, it is intended by the appended claims to cover all such features and advantages of the invention. Further, since numerous modifications and changes will readily occur to those skilled in the art, it is not desired to limit the invention to the exact construction and operation as illustrated and described. Hence, all suitable modifications and equivalents may be resorted to as falling within the scope of the invention.


    What a freaking joke. Do the people writing this garbage really believe it?

     

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  11.  
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    :Lobo Santo (profile), Apr 10th, 2012 @ 3:31pm

    Re: The whole thing is a joke

    "The many features and advantages of the present invention are apparent from the written description, and thus, it is intended by the appended claims to cover all such features and advantages of the invention. Further, since numerous modifications and changes will readily occur to those skilled in the art, it is not desired to limit the invention to the exact construction and operation as illustrated and described. Hence, all suitable modifications and equivalents may be resorted to as falling within the scope of the invention."
    I take it "write it vague enough to sue everybody" was too concise?

     

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  12.  
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    Kenneth Michaels, Apr 10th, 2012 @ 3:36pm

    Re: The Examiner's Examination

    Mike, to follow up, you said that "the words in blue are apparently the sum total of the difference between something that's unpatentable and something that gives you a monopoly you can sue over." Not really. The real difference between patentability and not, in this case, was the filing of a Terminal Disclaimer by the Applicant. The Examiner from the start believed the claim to be allowable over the prior art. The first Office Action by the Examiner did not reject the claim over the prior art, meaning that the Examiner believed the claim to be patentable over the prior art to begin with. Like I said, the Examiner had already been dealing with related applications, and the Applicant had been dealing with this Examiner, so the Applicant submitted claims that the Applicant knew the Examiner would find allowable *over the prior art*.

     

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    Kenneth Michaels, Apr 10th, 2012 @ 3:41pm

    Re: The whole thing is a joke

    You really have to look at the claims to determine whether a patent is junk or not. There is a lot of junk out there, and maybe this patent is junk, I don't know, but these two paragraphs are written by an attorney who wants to make sure there are "advantages" listed to make some foreign patent offices happy. So, these two paragraphs do not tell me whether this patent is junk or not.

     

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  14.  
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    Anonymous Coward, Apr 10th, 2012 @ 3:58pm

    Most of these technological advancements are more evolutionary than revolutionary. Patents should only be on revolutionary ideas, not inevitable evolutionary ones.

     

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  15.  
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    Anonymous Coward, Apr 10th, 2012 @ 4:02pm

    Re:

    You forgot to mention the revolving door issue.

     

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    rorybaust (profile), Apr 10th, 2012 @ 4:03pm

    Its Obvious

    I now know the reason patents exist and the selling of AOL patents sealed it , obviously when you have stopped innovating in the good old days all you had was history to reminisce about but these days thanks to software patents that history is a weapon and the new innovators are all too willing to shell out big bucks for it. If Facebook is worth 100 Billion why not share it around and buy the arsenal to defend your out of proportion valuation from those whom having once had it (read Yahoo) realise they are no longer the next big thing , but of course like you did before they must have copied and no doubt been influenced by you so they must pay.

    Who says history is boring , when it comes to software its like winning the lottery a 2nd time around.

     

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  17.  
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    Anonymous Coward, Apr 10th, 2012 @ 4:22pm

    OMG - 30,000. Of course, there is zero context associated with this number, even assuming it was true. Sounds almost as if the writers of the "report" have taken poetic liberty by trying to count anything and everything that might even remotely relate to social media.

    There are probably several hundred thousand patents, some expired and some not, associated with a run-of-the-mill laptop computer. Patents on manufacturing processes for various components, sputter-coatings for disk drives, lcd and led componentry, formation of plastics, chipsets, speakers, etc., etc., etc. Wow, now this is certainly something you would call a thicket, but the simple fact of the matter is your thicket is illusory. Last time I looked computers, accessories, and software were coming out almost as fast as YouTube uploads.

    BTW, and as noted above, if you are inclined to rail against the prosecution of patents it would help to understand the process at a level far beyond mere passing familiarity.

     

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  18.  
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    Anonymous Coward, Apr 10th, 2012 @ 5:11pm

    Re: The whole thing is a joke

    IP extremists like to confuse the advantages of an invention with the advantages of a patent. They aren't the same thing.

    "Further, since numerous modifications and changes will readily occur to those skilled in the art"

    IOW, these modifications (and the original patent) are obvious to those skilled in the art and hence shouldn't be patented. That's the exact reason not to patent something, it's obvious to those skilled in the art.

     

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  19.  
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    Anonymous Coward, Apr 10th, 2012 @ 5:11pm

    Re: Re: The whole thing is a joke

    (or that's a good reason not to grant such a patent *)

     

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  20.  
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    Anonymous Coward, Apr 10th, 2012 @ 5:14pm

    Re: Re: The whole thing is a joke

    It's amazing, the patent itself describes reasons these patents shouldn't be granted.

     

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  21.  
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    Lawrence D'Oliveiro, Apr 10th, 2012 @ 5:43pm

    Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    That doesn’t make any sense. You mean that you can have two separate patents covering the same thing, so long as they always remain separate, but not really separate, more sort of ... together?

     

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  22.  
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    Patent Attorney, Apr 10th, 2012 @ 5:51pm

    Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    Yea. You got it. There are two different patents. But the patent office says that the two different patents are really for the same thing. So the Patent Office makes you promise that both will always be owned by the same entity, as though the claims in each had been issued in the one single patent. And the Applicant agrees that the two patents will also expire on the same day. The Applicant can only get away with this in certain circumstances.

     

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  23.  
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    Mark Nowotarski (patent agent), Apr 10th, 2012 @ 6:47pm

    A more realistic count

    If you want a more realistic count of social networking patents, see "Don’t Steal My Avatar! Challenges of Social Networking Patents" via IP Watchdog
    http://www.ipwatchdog.com/2011/01/23/dont-steal-my-avatar-challenges-of-social-networking- patents/id=14531/

     

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  24.  
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    Anonymous Coward, Apr 10th, 2012 @ 7:18pm

    Re:

    "There are probably several hundred thousand patents, some expired and some not, associated with a run-of-the-mill laptop computer."

    The majority of patents never even make it to product. Chances are the majority of the patents that do make it to product are not enforced, which is why they make it to product, but instead the patents are often held for defensive reasons (ie: to counter sue those who initiate patent lawsuits or to make sure that you hold the patent on something to avoid someone else holding such a patent and suing you) or to give a company cross licensing bargaining power. Neither of which promotes the progress, instead, they divert money away from R&D and innovation and toward obtaining and managing patents, paying lawyers to maintain and manage patents, paying lawyers to avoid infringement, and fighting lawsuits. This is a waste of money that can go into better things.

    "Last time I looked computers, accessories, and software were coming out almost as fast as YouTube uploads."

    and most of that stuff is now being developed in other countries, not the U.S., who's too preoccupied suing each other. and don't think that patents don't contribute to higher prices.

     

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  25.  
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    Anonymous Coward, Apr 10th, 2012 @ 7:19pm

    Re: Re:

    (and each patent that doesn't make it to product, preferably by the inventor/patent holder, is a bad patent).

     

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  26.  
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    Anonymous Coward, Apr 10th, 2012 @ 7:23pm

    Re:

    Another example is the fact that for every android bought, money goes elsewhere (ie: Microsoft), who contributed absolutely nothing to the android. Our system punishes the successful and rewards the failures. This is money that can be used to improve the quality of the android while lowering the price, but instead, it's wasted on an entity that contributed absolutely nothing useful.

    http://mobile.slashdot.org/story/12/04/08/0546247/google-earns-2-per-handset-apple-575

    Every time you buy an android, money goes to these irrelevant third parties who contributed absolutely nothing useful. This raises the price of the android, requires that some features be removed (to lower licensing costs), and reduces the quality of each device. It's an unacceptable cost to consumers, all because of some retarded patents that really shouldn't exist.

     

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  27.  
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    Renee Marie Jones, Apr 10th, 2012 @ 7:36pm

    Re: Patent Attorney here.

    Wow. Ok. You have just proven beyond any doubt that the entire patent system is a worthless sham.

    Thank you.

     

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  28.  
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    Capt ICE Enforcer, Apr 10th, 2012 @ 8:02pm

    Capt ICE Enforcer here. And I have great news about the wonderful patent system. As Mike has noted in other blog post, creativity is on the rise. And independent companies have confirmed it. The amount of patents is also on the rise. What this means is that Patents enhance creativity. OR Maybe creativity enhances patents.

     

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  29.  
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    wvhillbilly (profile), Apr 10th, 2012 @ 9:20pm

    Patent abuse

    Why doesn't the USPTO have a rule that multiple patents from different patentees covering the same technology is obviously evidence of obviousness, and that thus the technology or feature is obvious and unpatentable? And that thus all such patents are invalid? 30,000 patents just on social networking? They should put every one of them in the shredder.

     

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  30.  
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    Josh in CharlotteNC (profile), Apr 10th, 2012 @ 9:32pm

    Re: Patent Attorney here.

    Thus, the Examiner required a "Terminal Disclaimer," requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity.

    This. Is. Insane.

    If there are two patents for the same thing, or a substantially similar thing, than at least one of them is obvious and fails the definition of something that is patentable. If they are filed by different parties, both are obvious. If they are filed by the same party, then that party is wasting the government's time, money, and resources.

     

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  31.  
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    Anonymous Coward, Apr 10th, 2012 @ 9:58pm

    If the 30,000 patents are made up mostly of duplicate and triplicate patents like you have listed, then there is no real problem, and really no thicket.

    Please show me an example of companies that have been forced out of the social media / interactive business because of patents.

    I'll wait for a while, because the numbers is zero. Thicket my ass.

     

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  32.  
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    Dixon Steele (profile), Apr 11th, 2012 @ 12:22am

    Re:

    Dixon Steele here. And I have great news about the wonderful patent system. As can be seen on Wikipedia and IMDB, the number of movies about boy wizard Harry Potter has steadily risen over the last decade. The amount of patents is also on the rise. What this means is that patents enhance movies in which a boy wizard battles an unnameable villain. OR Maybe movies about a wizard with a lightning-shaped scar enhance patents.

     

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  33.  
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    Lawrence D'Oliveiro, Apr 11th, 2012 @ 2:10am

    Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    So you can’t infringe one patent without infringing the other?

    How about this: you license one patent to unsuspecting buyers, then when they bring out their products, you sue them for infringing the other patent!

    Am I a genius, or what?

     

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  34.  
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    Niall (profile), Apr 11th, 2012 @ 3:12am

    Re:

    Even if they are these 'phony' triplicates, that would still leave 10,000 patents, probably most of which are of the level of "Speak to a person... on the internet" or "indicate an emotion... using software" or "Trolling... for Dummies".

     

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  35.  
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    Anonymous Coward, Apr 11th, 2012 @ 3:34am

    "I don't how see anyone can legitimately suggest that the patent system is working when someone developing a social network has to be concerned about the fact that they might get sued over upwards of 30,000 patents"

    On point, this is an early sign of disaster.
    Just wait until top notch huge datacenters emerge in Europe and Asia, and then see US companies in a fantastic titanic epic court war masturbation, while the rest of the world inovate.

     

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  36.  
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    Anonymous Coward, Apr 11th, 2012 @ 5:07am

    Re: Re: Patent Attorney here.

    Not to mention allowing this sort of thing just encourages trolling. Even if the same company holds both patents, when a troll files a lawsuit they are able to artificially inflate their claims by stating that the alleged infringed violates more patents than they actually do. It also allows for a "if this wording doesn't work, then how about this one?" situation. Soon we will have trolls applying for as many different wordings as they can come up with on an already overburdened system. Still a VERY BAD IDEA indeed.

     

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  37.  
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    E. Zachary Knight (profile), Apr 11th, 2012 @ 6:45am

    Re: Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    Why allow the second patent then? What is the point? The only benefit I see is allowing the patent holder to be able to sue over two patents rather than one.

     

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  38.  
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    E. Zachary Knight (profile), Apr 11th, 2012 @ 6:46am

    Re: Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    Why allow the second patent then? What is the point? The only benefit I see is allowing the patent holder to be able to sue over two patents rather than one.

     

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  39.  
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    Kenneth Michaels, Apr 11th, 2012 @ 7:10am

    Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    You could infringe one patent without infringing the other patent. Infringement actually goes claim by claim. An infringer could infringe one claim of 20 in a patent, for example.

    Yes, the patent owner could license the two patents separately. But, the licensee would be able to tell that there were other claims/patents out there to contend with. And then at least the licensee would only have to deal with one patent owner in that situation, and could argue that a license was needed for both patents, not just one.

     

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  40.  
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    Kenneth Michaels, Apr 11th, 2012 @ 7:21am

    Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    You are right when it comes to an aspect of the system that is ripe for abuse. The system is supposed to allow the same applicant that invents A and then invents B to get a patent on both A and B, for example. The patent office allows the patent for A (because it is not obvious in view of the prior art) and allows the patent for B (because it also is not obvious in view of the prior art). Invention A may not be considered prior art to invention B because neither invention has become public yet (in one example) because they are sitting secretly in the patent office. But if the patent office thinks invention B is obvious in view of invention A (even though they are different inventions), the patent office says you can have your patent on A and B so long as you kinda make believe the resulting claims are in the same patent (same ownership, same patent term).

    But this is one aspect that can be abused, and courts recently have been taking a negative view of this abuse.

     

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  41.  
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    Kenneth Michaels, Apr 11th, 2012 @ 7:26am

    Re: Re: Re: Patent Attorney here.

    Yes, this is how the system is abused. Instead of an Applicant really inventing two different things and obtaining two different patents, they tweek the words and keep getting patents. They try different wordings to see what sticks. Some other countries (not the US) have limited the extent that you can use this "continuation" practice.

     

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  42.  
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    Anonymous Coward, Apr 11th, 2012 @ 7:33am

    It's worse than that (he's dead, JIm)

    (Now you'll have that song running through your head for the rest of the day. No need to thank me.)

    No software patent is valid: the entire concept is ludicrous on its face and should be summarily rejected.

    How much longer will the US deliberately cripple innovation, kill jobs, force higher prices for consumers, put itself at a competitive disadvantage, and make software less reliable and secure to maintain this charade?

     

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  43.  
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    Kenneth Michaels, Apr 11th, 2012 @ 7:39am

    Re: Re: Patent Attorney here.

    The distinction here is that the two applications/patents may not be *prior art* to *each other*. For example, a company may have two patent applications pending: scientist A invents drug A, who was working with scientist B who invents drug B. In many situations, these two applications may *not* be prior art to each other because, for example, the inventions are still secret and the inventors were working together at the same company. It may not be surprising that the drugs are obvious in view of each other because the scientists were working together. But given invention A, invention B may be obvious. But neither invention A nor invention B are public in any way and are not prior art. Given invention B, however, invention A may be obvious and vice versa. Solution: allow a patent for both A and B, but require the same ownership and the same patent term.

    But, everyone is correct in that the system can be abused easily.

     

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  44.  
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    wvhillbilly (profile), Apr 11th, 2012 @ 8:57am

    Re:

    Who do you shill for, the BSA?

     

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  45.  
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    wvhillbilly (profile), Apr 11th, 2012 @ 8:58am

    Takes one to know one

    .

     

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  46.  
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    wvhillbilly (profile), Apr 11th, 2012 @ 9:12am

    Re: The Examiner's Examination

    This sounds like an oxymoron to me. It's about prior art, and you can add a half a dozen words that change nothing, and it's not about prior art? That makes about as much sense as saying painting a golf ball brown makes it not a golf ball.

     

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  47.  
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    Anonymous Coward, Apr 11th, 2012 @ 9:18am

    Re: Re:

    I would say without some in depth research, we cannot make those claims.

    Mike is cherry picking again, failing to look any deeper than his need to try to discredit the patent process.

    Think of it as "cherry picking... using techdirt".

    It's crap, a no indication of all as to a thicket of any sort, except in Mike's mind.

     

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  48.  
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    wvhillbilly (profile), Apr 11th, 2012 @ 10:00am

    Re: The whole thing is a joke

    Where did you quote this from? I don't see the above text anywhere else in this article or comments.

     

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  49.  
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    Almost Anonymous (profile), Apr 11th, 2012 @ 10:00am

    Re: It's worse than that (he's dead, JIm)

    100% agreed. I would call software patents a joke, except that we never seem to get to the punchline.

     

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  50.  
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    wvhillbilly (profile), Apr 11th, 2012 @ 10:10am

    Re: Its Obvious

    Hey, this works for corporations and patent trolls who have nothing to lose. But for the small guy trying to get started the patent thicket can be an impenetrable barrier. Write something that even vaguely resembles someone else's patent and trolls can sue you into bankruptcy real quick. Getting even one quality patent on an invention can cost you $100s of thousands to $millions and defending against a bad patent even more, typically $4 million up. Corporations can handle this, but it only takes one lawsuit on a small innovator and he's burnt toast.

     

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  51.  
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    Kenneth Michaels, Apr 11th, 2012 @ 10:46am

    Re: Re: The Examiner's Examination

    That's right. It's about prior art. The Examiner's first rejection indicated that he believed the claim to be patentable over the prior art. The amendments to the claims were not to overcome any prior art. There are reasons for rejections and amendments other than prior art.

     

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  52.  
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    Kenneth Michaels, Apr 11th, 2012 @ 11:39am

    Re: Re: Patent Attorney here.

    Just to confuse things further, a patent may have numerous claims. EACH claim is considered its own invention. So, if you wanted, you could have one patent with 10 claims or 10 patents with one claim each. Same thing. But it will cost more to maintain 10 patents versus one patent.

    The number of patents is not as telling as one would think. When a company says, "we have x number of patents," it only scratches the surface. You have to look deeper.

     

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  53.  
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    Josh in CharlotteNC (profile), Apr 11th, 2012 @ 2:25pm

    Re: Re: Re: Patent Attorney here.

    If the only test you are using is prior art, then by definition, anything new-yet-still-obvious is patentable. That fundamentally misunderstands how innovation happens.

    It is no secret I think nothing at all should be given government granted monopoly protection, and thus no patents at all should be granted to anyone, but I am prepared to compromise to a reasonable middle ground. I can accept patents being granted for truly revolutionary ideas for a very short limited time (20 years is crazy given our current rate of change). But under no circumstances should small evolutionary changes be given patents. Adding pre-existing X to pre-existing Y should not be given patent protection.

    If A is obvious in light of B, or vice versa, then either there is a fundamental similarity directly between them, or both are based on some other fundamental idea. If a patent must be granted, then it must be granted on that fundamental idea, not either A or B, and that idea must be explicitly explained.

     

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  54.  
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    Anonymous Coward, Apr 13th, 2012 @ 9:06am

    Re: Re: Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    also allows the USPTO to collect fees on two patents rather than only one.

     

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  55.  
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    Doug B (profile), Apr 23rd, 2012 @ 11:29am

    Re: Re: The whole thing is a joke

    It's from the patent itself which was linked in the article

     

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  56.  
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    Anonymous Coward, May 23rd, 2012 @ 12:07pm

    Re: Re: Re: “requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ”

    Also, there's the whole patent estoppel thing that I imagine also applies. I know when, for example, you hold a patent on both X, and on Y process to make X, and you license Y to another company, you can't get away with then suing them for making and selling X because Y is only useful for making X, and the licensor damn well knows it. On the patent examiner level, it's hard to keep things in line with the law when it comes to novelty and non-obviousness, but by the time things get to litigation, the courts are pretty good at keeping anyone from trying to pull a fast one.

     

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  57.  
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    Anonymous Coward, May 23rd, 2012 @ 12:30pm

    Re:

    Patents are a tradeoff that limits progress in some respects while encouraging it in others.

    The first thing you have to consider is the alternative, a world without patent protection. In your ideal world, when the Wright Brothers invent the plane, anyone else who can manufacture it better or more efficiently will immediately have the chance to compete with them on completely even footing. Other than a footnote in the history books (and perhaps the marketing advantage that gives them) and the selfless joy of inventing, they get nothing out of putting in all that time and effort.

    In practice, most people will want something out of their efforts, meaning that they will keep things as a trade secret (minus the limited respects in which the law currently respects trade secrets, of course, since you seem to want to abolish IP protection in general). This means, first, that efficiency greatly suffers. With a protectable patent, if the Bros know they're not great at manufacturing/business logistics, they can license to someone else who is so that they still get some profit, the efficient company thrives, and customers may even benefit from lower costs. If the only way to protect your IP is secrecy, this becomes much harder. You can force the licensee to sign NDAs and enforce strict measures maintaining secrecy, but you can't protect yourself entirely. Once the secret gets out, the government won't do anything to enforce rights it doesn't recognize, meaning you are screwed. You can sue your former partner, and pray they have enough assets to compensate for your losses, and the guys who made the leak, but without IP protection, you pretty much won't be able to sue anyone you weren't in contractual privity with. (A third party can't be misappropriating IP if the government doesn't recognize IP.) The costs of enforcing the secrets will damage both consumers and innovation. If, for example, there is a secret manufacturing trick that gives you all of your advantages, you'll have to make sure only very trusted individuals have access to that information, making repair and installation difficult. You'll have to compartmentalize the information, keeping it in a black box if possible, which increases costs and may reduce manufacturing efficiency. You'll have to maintain security to guard against industrial espionage even more so than today, and those costs get passed along to the consumers obviously. Finally, you'll be paranoid about keeping your secret, when everyone knows that the progress of science thrives on the free flow of information.

    The patent system stops people from using a new discovery for twenty years, but it forces them to disclose them immediately. So maybe I can't build an airplane on the Wright Brothers plans for a while. I can still study what they did and perhaps use that knowledge to make my own, non-infringing flying machine (remember, concrete technology and specific, step by step methods are patentable, abstract scientific principles and business models are not). I can invent my own plane accessories that the Wright bros may not have thought of themselves, and licensed it to them. Scholars can study the scientific implications of the functional plane and perhaps advance other fields of study.

     

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  58.  
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    Anonymous Coward, May 23rd, 2012 @ 12:37pm

    Re: Patent abuse

    Because it's not obviously evidence of obviousness.

    Calculus isn't patentable because its abstract, but if it were, would it be "obvious?" For thousands of years, mathematicians and scholars nibbled around the edges, but nobody ever brought it all together into a coherent, useful field of mathematics. Then, multiple parties (Newton and Liebniz) concurrently and largely independently thought of calculus.

    For another thing, once a patent is filed, it is on file for review by the public. In the electronic age, that means it is pretty rare to have a situation where two or more parties genuinely file concurrently. In most situations, it will be an open question how much claimaint #2, #3, etc. drew from patent application #1 because they had access to it before filing their own. If you allow invalidation in those situations, well, only an idiot could fail to see the likelihood of abuse.

     

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  59.  
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    atomike-patent-attorney, Jun 8th, 2012 @ 5:29pm

    Re:

    I can see how a developer of new ideas would feel held back by patents, but I can also see the benefit to the patent holder.

    The key is balance, and clearly 30,000 is not.

     

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  60.  
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    Mike K, Mar 4th, 2013 @ 3:56pm

    Re: Patent Attorney here.

    Let me ask you this... If I were considering starting a social network, do I really have to go through all 30k patents to make sure I am not stepping on someones toes? If that's the case, then I would be SOL.

    Thanks in advance!

     

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  61.  
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    Bleakwise, Aug 25th, 2013 @ 12:07am

    Can I patent a "mousetrap"

    Was Ford able to patent things like "rubber tires"?

    Gone are the days of building a better mousetrap, someone already owns both ideas (the mouse trap itself and the idea to build a better one).

     

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  62.  
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    Bleakwise, Aug 25th, 2013 @ 12:18am

    Patenting the wheel

    Just imagine if we had the same problem when the automobile was the new thing.

    Someone would have pulled a patent on "tires" 20 years earlier and stopped the automobile from ever even coming to the market.

    That is the reality of today's patent system.

     

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


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