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Supreme Court rules against Microsoft in major patent case

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Re: Supreme Court rules against Microsoft in major patent case

#31

Post by esoteriq »

kenjackson wrote: post #28
esoteriq wrote: post #21

I don't think the article does the case justice. If you look at the holding, the Court just says that all invalidity defenses must be established by "clear and convincing evidence" (higher than preponderance of evidence but lower than beyond a reasonable doubt.) It has been well-established that patent validity is a basic assumption. So, a plaintiff must prove patent invalidity by clear and convincing evidence. The i…

Except for the fact that the PTO isn't an adversarial system. It would be different if prior to you getting a patent you had to go to court against companies who think you shouldn't have it. And now that you have a patent and sue somebody, this other person may be able to put together some evidence that shows the patent is invalid, but they must climb a very high bar now. In this case MS had prior art in a past i4i p…

The plaintiffs trying to invalidate the patents have always had to climb a steep hill. My point is that this case doesn't change that. If you look at the statute and precedent, the plaintiffs always had to establish invalidity by clear and convincing evidence. (The appropiateness of that is a question for Congress, not the Court because the statute is clear on this point.)

So, this case just makes things equal between the plaintiffs and defendants. Once the plaintiffs do overcome the admittedly-high obstacle of proving invalidity, the defendant can't just put up a weak defense and get away with it. That's good!

Your problem with the patent system is completely valid, but the Supreme Court can't change law (or is not supposed to). Congress is the one who is responsible for this quagmire, not the Court.

The whole patent system is broken, and this case improves things by a nanogram (is that a word?)./

Re: Supreme Court rules against Microsoft in major patent case

#32

Post by kenjackson »

esoteriq wrote: post #31
kenjackson wrote: post #28

Earlier quoted context omitted.

Except for the fact that the PTO isn't an adversarial system. It would be different if prior to you getting a patent you had to go to court against companies who think you shouldn't have it. And now that you have a patent and sue somebody, this other person may be able to put together some evidence that shows the patent is invalid, but they must climb a very high bar now. In this case MS had prior art in a past i4i p…

The plaintiffs trying to invalidate the patents have always had to climb a steep hill. My point is that this case doesn't change that. If you look at the statute and precedent, the plaintiffs always had to establish invalidity by clear and convincing evidence. (The appropiateness of that is a question for Congress, not the Court because the statute is clear on this point.) So, this case just makes things equal betwee…

I don't disagree. And after reading the SCOTUS opinions, I think their reasoning was sound. Still disappointing in some sense, but it does read like the right decision.

Time to petition congress. It does feel like we're near an inflection point.

Re: Supreme Court rules against Microsoft in major patent case

#33

Post by esoteriq »

kenjackson wrote: post #32
esoteriq wrote: post #31

Earlier quoted context omitted.

The plaintiffs trying to invalidate the patents have always had to climb a steep hill. My point is that this case doesn't change that. If you look at the statute and precedent, the plaintiffs always had to establish invalidity by clear and convincing evidence. (The appropiateness of that is a question for Congress, not the Court because the statute is clear on this point.) So, this case just makes things equal betwee…

I don't disagree. And after reading the SCOTUS opinions, I think their reasoning was sound. Still disappointing in some sense, but it does read like the right decision. Time to petition congress. It does feel like we're near an inflection point.

Sigh. I know...

I just think that Congress needs to be reeducated about the different needs of today's technology industry versus the old-days of steel mills. It won't be easy, but I'm confident it will happen someday.

The question is whether I'll be alive then (heh).

Re: Supreme Court rules against Microsoft in major patent case

#34

Post by runningdogx »

petegrif wrote: post #26
RomP wrote: post #18

This is an abomination. This patent clearly fails the obviousness test (that is, if somebody is capable of reading the patent all the way through without being disgusted and embarrassed for the "inventors"). Unfortunately, most of the software patents are like this: the Patent Office is clearly failing us. Math formulas are not patentable, and software is just that: math. Seems like our only hope is if somebody power…

@romp please see my post above about 'the obviousness test' IMHO this relationship between patents and what is obvious is the source of a huge amount of misunderstanding about and opposition to patents. I have no problem with serious discussions about patent reform, but surely such a serious discussion should be based on a substantive understanding of reality not popular misconceptions? Let's all get clear on what is…

So non-obvious (by the PTO's standards, or even by some wise person's standards) mathematics should be patentable?

Re: Supreme Court rules against Microsoft in major patent case

#35

Post by petegrif »

kmfrk wrote: post #30
petegrif wrote: post #14

Earlier quoted context omitted.

"It's so ridiculous theyre essentially patenting generic syntaxes for representing documents that anybody "skilled in the art" would come up with in 5 minutes." now - sure but then? - apparently not as extensive litigation demonstrated. And that 'non-obvious' nature back then - that's kinda the point, hindsight effect is a powerful thing

There is however the argument of prior art, so it still takes a little brain-racking to do. Patents are more about digging some holes in the forest and covering them up, after which you go home and cross your fingers that someone steps into one of them in the future.

I honestly don't understand the point you are making. Would you mind elaborating? Thanks.

Re: Supreme Court rules against Microsoft in major patent case

#36

Post by latch »

chargrilled wrote: post #9

I think i'd feel a little more sorry for Microsoft if it weren't using software patents to fight Android. http://online.wsj.com/article/SB1000142405274870346610457552... (search for "patent fee")

I sooo agree with this. Microsoft seems bipolar in its attitude towards patents. I understand why they are happy to sue into markets they aren't dominate, and then be upset at being sued in markets where they are. But they are so enthusiastic at both ends..

I am extremely satisfied with the ruling in this respect. Companies that use silly patents deserve to have silly patents used against them.

I agree it could have consequences. But that's a different (and possibly more important) discussion.

Re: Supreme Court rules against Microsoft in major patent case

#37

Post by petegrif »

kenjackson wrote: post #29
petegrif wrote: post #25

Earlier quoted context omitted.

@rwmj - the question is not whether it is obvious now but rather was their invention obvious then. Do you have any reason to believe it was obvious then? Remember that this very question has been litigated with MS doing everything in their power to demonstrate it was indeed obvious then, that there was prior art, and they failed! So it is easy to allege something like this now but I suspect that you are suffering fro…

The obviousness test is basically off the table after the patent has been granted. This is one of the things that is problematic with the system. Patent examiners tend to be too lenient, but the end result is you now hold a patent that is very difficult to overturn.

IMHO you are missing an absolutely critical point and are therefore falling prey to the hindsight effect. Let's imagine that you have a brilliant idea right now, one that NOW is not at all obvious. What does that mean? It means that NOW (a) there is no prior art (b) there may well be teaching away from the art, in other words, even though the field is a familiar one and you would think it obvious once pointed out, nonetheless there is no evidence that anyone has thought of it before (c) there is no public domain publication or record of a talk etc .... Such evidence is taken as evidence that it is not obvious. Now let's assume that you take your idea further and turn it from an idea - an insight if you will - into an invention. That may involve a great deal of time and money. In some cases it certainly does. Now let us assume that you release a product and it achieves great success. The very success of your product means that it will become a part of popular culture and there have been several studies that show that within a remarkably short period of time people take what was your innovation for granted and consider it obvious. Bear in mind however that it wasn't obvious when you thought of it and when its obviousness was considered, for example, by the patent office. Failure to recognize this and the associated hindsight effect leads to people making statements about how obvious something is when that is completely irrelevant. The question is not how obvious it is but how obvious it was. If a patent is granted it can always be challenged and invalidated if someone is able to demonstrate that there was indeed prior art. The patent is assumed to have validity but that does not mean that evidence of prior art will just be disregarded, it just means that the evidence has to be clear.

Re: Supreme Court rules against Microsoft in major patent case

#38

Post by esoteriq »

carussell wrote: post #6
kenjackson wrote: post #2

That is a scary ruling. It basically strengthens software patents (and all patents for that matter). But in particular solidifies that once you have a patent, you aren't likely to get them overturned in court. If you can invest in a patent troll -- now is a good time.

It doesn't strengthen software patents. It upholds the lower court's decision and says the standard of proof will continue to be applied as it has in the past. Ruling in Microsoft's favor would have loosened the requirements to prove a patent invalid. Don't get me wrong, it's the least favorable of the two, but it doesn't make things worse; it just doesn't make things better.

I think this case does make things marginally better. Before you jump all over me, look at the holding.

The Court said that it will maintain the CCE standard for invalidity defenses, not plaintiffs' claims of invalidity. It's a fine point, but important one neverhtless.

You see, CCE has been the standard for plaintiffs alleging patent invalidity since 1982. It's right in the statute. http://openjurist.org/title-35/us-code/section-282/presumpti... . The problem was that Microsoft was trying to reduce the burden of proof for the defense.

A weaker burden for defenses is very very bad. That means, even if a plaintiff shows, by substantial evidence, that a patent is invalid, a defendant can just give the minimal amount of defense...and the defendant will win.

So, this improves things...a tiny, weeny bit.

Re: Supreme Court rules against Microsoft in major patent case

#39

Post by petegrif »

runningdogx wrote: post #34
petegrif wrote: post #26

Earlier quoted context omitted.

@romp please see my post above about 'the obviousness test' IMHO this relationship between patents and what is obvious is the source of a huge amount of misunderstanding about and opposition to patents. I have no problem with serious discussions about patent reform, but surely such a serious discussion should be based on a substantive understanding of reality not popular misconceptions? Let's all get clear on what is…

So non-obvious (by the PTO's standards, or even by some wise person's standards) mathematics should be patentable?

No. Because the law is perfectly clear on this point. Algorithms cannot be patented.

Re: Supreme Court rules against Microsoft in major patent case

#40

Post by bandushrew »

petegrif wrote: post #39
runningdogx wrote: post #34

Earlier quoted context omitted.

So non-obvious (by the PTO's standards, or even by some wise person's standards) mathematics should be patentable?

No. Because the law is perfectly clear on this point. Algorithms cannot be patented.

computer code is 'just' an algorithm. that is simply true. if algorithms cannot be patented then neither can computer code.
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