techdirt has an important topic
but your contributions are encouraging the tea party of the IP world.
nobody thinks the system is perfect, but it would be nice if your contributions dealt with the real issues rather than encouraging popular misconceptions.
I'm outta here.
Coulda been good.
here's the problem with "arguments' like this.
I think that this forum can serve a useful purpose and IP and the associated law is a very important topic worth discussing. The law is certainly not perfect - big surprise. And neither is its practice - bigger surprise. But unfortunately I detect a lot of anger which is often based on misunderstanding. The problem with citing cases and ranting about them is that it is very easy to pick a few facts out and make the situation seem heinous, but as in most instances of law the devil is in the details. So unless we get a proper analysis of the case it is very easy for people to get hot under the collar about what is a misrepresentation. That's where I'm coming from. So if you have a specific case that you are entirely confident from your detailed study of it and your best understanding of the relevant law, I'd like to see it and I will pay it serious attention.
I think there is a perfectly valid place for discussions of policy but blanket statements about ridiculous patents that obviously had vast amounts of prior art etc etc generally just reveal misunderstanding.
given that this is your site and you apparently care about the issues you are blogging about I find it rather disturbing that you can be so mistaken about something so fundamental.
We do NOT have a first to invent system in the US. The way the US system works is that it represents a deal between the government and the inventor. The inventor gives up knowledge (trade secret) as to how to do something and in return gets an exclusive right to protect his claims. Any inventor can choose to patent or to not patent. If you do not patent then if you are being prudent you will either protect yourself from someone else patenting by publishing and hence placing the IP in the public domain or I guess you are confident that what you have is tough enough to figure out that your judgement is that you are better off with your IP as a trade secret eg the formula for coca cola.
But if two people invent the same thing in private and neither discloses anything then the first to file gets the patent protection. That is a flat out fact. The other inventor cannot make any counter claim because he CHOSE to keep it a secret.
As to whether it is a problem or not let's bear in mind that this is a choice. If they don't want to take this calculated risk all they have to do is write a paper about their invention, or even just give a public talk about it. That's all it takes. So the scenario in question is not hard to avoid.
Very disturbing you don't seem to understand this. It is pretty basic.
Re: How obvious ?? seems not enough for anyone to think of it !!
a lot of people have jumped on this post and dissed the writer. But in fact he is making an important point.
"For example, you know as well as I do, that they have not patented "Wifi for mobile phones" NO, they patented a SPECIFIC METHOD to do something."
What he is saying is that you cannot just patent an idea. Ideas are frequently obvious, particularly (as he observers) after the fact, but methods for how to implement ideas are not necessarily obvious.
He is absolutely correct on this point. And he is absolutely correct to point out that there is widespread confusion on the point. A lot of people get hot under the collar about how obvious an idea is/was. But as he correctly points out - that isn't the point.
"patent applicants are going to need a functional version of their invention."
they do need one. The description has to be sufficiently detailed that one 'skilled in the art' could build the invention in question and this implementation of the invention must be able to validate the claims.
"Once they've given a patent, it's very expensive for someone to actually fight it in court . . . especially the little guys. But even one idiot with a bad patent can cause a big headache for a big company."
In the US it isn't too bad. How it works out depends on the scenario.
a) scenario 1 - big company, small guy with good patent
big company tells small guy to get lost
small guy hires attorney on contingency
a year of filings, small guy doesn't pay
big company settles, attorney takes 30%
b) scenario 2 - big company, small guy with bad patent
big company tells small guy to get lost
small guy tries to hire attorney
contingency guys won't touch it cos he doesn't have a case
he backs off or hires shark by the hour
he loses case and wastes his money and that of big company
c) scenario 2 - big company, wealthy troll with good patent
big company knows it has a problem
may delay and hope troll will go away
but ends up settling
this scenario is the one which the original article was about - if small guy allies with troll...
d) scenario 2 - big company, wealthy troll with bad patent
big company tells troll to get lost
troll has to have big think
he is as pro
knows it will be expensive and is likely to lose
tries it on a few companies
may try to set a precedent
but even precedent not convincing to big company
risk for big company here is jurisdiction shopping
The problem with stories about patents is that frequently the people writing them don't understand patent law and haven't actually studied the relevant patents in enough detail to be confident about their sensational conclusion. let's take your example of tabbed browsers. I haven't read the patent in question. So I am very reluctant to draw any conclusions other than to observe that if you have the facts right - ie there absolutely definitely was prior art AND that prior art bears directly upon the EXACT claims of the patent in question (and this is often where people slip up because they haven't actually read the claims) then the patent should not have been granted because it clearly wasn't novel. and IF this is true then attempts to enforce it will fail. So it is not surprising to me that there have not been any such suits.
"...what's the criteria for them to determine obviousness to someone skilled in the art?"
this is a misunderstanding, or perhaps a misstatement. 'Obviousness to one skilled in the art' IS the criteria. You could then legitimately ask how do they determine what is obvious to one skilled in the art? And the answer is, that the examiners are engineers etc and have some sense of it, that they use researchers and access experts.
"...and how will the patent office magically know who is and who isn't working on it"
we have a 'first to file' system. In other words, if people work in something and CHOOSE to not put it in the public domain and thereby protect themselves then if someone else submits a patent it's tough luck for them. That is why a lot of big companies publish research - precisely so that it is in the public domain and hence is prior art and can't be patented.
but that is the case for many kinds of property.
If you buy a building and collect rents from people it is no different.
People like patent trolls BUY the IP they collect rents for. They invest, just as do other people who lay out capital. It is just a different class of asset.
"the claims in a patent (which can number in the hundreds) are the test of infringement. "
this implies that it is good to have hundreds of claims. In fact the opposite is true. One broad powerful claim is way better. Patents with lots of claims (which is more significant to file, especially worldwide) are typically trying to patent around prior art.
"The patent has nothing to do with the specific transformation (that's not even a test, though it should be). "
this isn't quite true. the description can and has been referred to as a means of resolving conflicting interpretations of claims. This is particularly helpful when the person who is supposed to be infringing does indeed implement much the same way. It is for this reason that those who are patenting their ideas are encouraged by competent council to give a description of the best implementation and to elaborate with other possible implementations.
"that's hella larious :') really, get an agent and go on tour."
I can see why you picked your name. If you feel as strongly as you do that the patent offices worldwide do indeed issue patents willy nilly despite blindingly obvious prior art and that such patents withstand subsequent challenge it seems to me that:
a) your position is based rather on an ideological hatred of the system than reality
b) it might be helpful if you give an example of such an obvious, non-novel patent that withstood such challenges
and you have a future in bulletin trolling.
it is all very well for people on this board to spend their time dissing the patent office and bemoaning the state of software patents, but whatever shortcomings the office may have they do not dish out patents willy nilly if there is blindingly obvious prior art. And let's remember that this article is making very strong statements about such prior art. The writer is not saying that there was precedent in obscure articles in the East Katmandu Journal of EE, he is saying that "Lots of companies had been working on this, and the idea that only this one small Finnish company figured it out is laughably inaccurate." So one of two things is the case.
a) they had been working on it in secret, their work was not known about and hence was not prior art
b) their work was know about - which is strongly implied - and hence there was a ton of well known prior art.
If the latter is is non-trivial to persuade an examiner your work is novel.
And bear in mind that even if you do get a patent (which is time consuming and expensive) that had such prior art, the companies you sue can dispute it on the grounds the patent was improper. And if the examiner was lazy or incompetent but there was a ton of prior art, you will win.
What goes around comes around.
it is supposed to be novel and non-obvious to one skilled in the art. And the likelihood of a patent being issued for something that "everybody's working on already" is vanishingly small. So the question really in the above article is, is it true that everyone is working on it in this way really the case? If it it, take a chill pill 'cos there isn't going to be a patent.
"Of course, this version of the story leaves out all sorts of important details. For example, the idea of turning mobile phones into hotspots was hardly an original or non-obvious idea. Lots of companies had been working on this, and the idea that only this one small Finnish company figured it out is laughably inaccurate."
if this is true then there won't be a problem because they won't get a patent, will they?