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Victory Lap for Ask Patents

joelonsoftware.com

101–110 of 155 posts

Re: Victory Lap for Ask Patents

#101
post #88
post #15

Earlier quoted context omitted.

And the person who found prior art should get a cut of that fee. Crowdsourcing at its best.

And then every patent would receive a deluge of obfuscated examples of prior art. And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.

Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years?

IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?

Re: Victory Lap for Ask Patents

#102

I like the concept of Ask Patents but at the same time I wonder if it is possible that participation on Ask Patents could be leveraged by malicious litigants to seek treble damages. For example, if the company I work for is being sued by a troll for infringement, could the troll see that employees have been participating on Ask Patents and therefore a reasonable assumption could be made that they're reading/reviewing…

From my brief experience, you're probably better off assuming that the default price will be triple damages, and any reduction from this is a lucky discount.

Re: Victory Lap for Ask Patents

#103
post #40

Earlier quoted context omitted.

Ask yourself, then answer your own question.

I think he means he wants to submit prior art directly to the patent examiner. Is there a way to be sure they'll see it?

Oh. Yes. You can always submit it directly to the USPTO. See http://meta.patents.stackexchange.com/questions/105/i-want-t... for details

Re: Victory Lap for Ask Patents

#104
There was an extremely depressing AMA on reddit a while ago where a patent examiner explained that what all of us consider "prior art" will be completely ignored by a patent examiner:

http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...

The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and a self stated date on a web site is not "verifiable"), it can't be considered because it is not possible say for sure it came earlier than the patent filing. So - some random thing on the internet - not published. Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art. In one comment he says:

"You may be right, that is how everyone does it. But if there is no documented prior art for us to search, we are out of luck rejecting it."

This explains why so many things that software developers routinely do end up in patents. Some of them are just so obvious that publishing it in a formal way is redundant. Yet that is the same bar that the USPTO is applying for rejecting patents. So the patent system itself is enriching the pool of obvious patents that get through.

Anyone using this Ask Patents site really needs to sit through a mini-tutorial explaining these things before they start, or they will waste more time than they save.

Re: Victory Lap for Ask Patents

#105
post #101
post #88

Earlier quoted context omitted.

And then every patent would receive a deluge of obfuscated examples of prior art. And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.

Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years? IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?

The pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.

Re: Victory Lap for Ask Patents

#106
post #101

Earlier quoted context omitted.

Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years? IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?

The pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.

Absolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?"

If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease.

Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.

The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies.

There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.

Re: Victory Lap for Ask Patents

#107

One thing I don't understand. Suppose a patent examiner does not ask on Ask Patents about a patent application, but I would nevertheless like to submit prior art. How do I do so?

The Ask Patents site was created in partnership with the USPTO; there is an expectation that examiners will search the site while researching a pending application.

Re: Victory Lap for Ask Patents

#108
Nice win but I have to say the bit that really got me excited was this

"My dream is that when big companies hear about how friggin’ easy it is to block a patent application, they’ll use Ask Patents to start messing with their competitors. How cool would it be if Apple, Samsung, Oracle and Google got into a Mexican Standoff on Ask Patents?"

How great would that be?

Re: Victory Lap for Ask Patents

#109
post #92

Earlier quoted context omitted.

Would hurt the proverbial small inventor more than it would hurt others. Almost like a regressive tax.

I think the problem is that the proverbial small inventor is extremely rare, and if they are indeed small enough for us to take pity on them, then a patent isn't enough to protect them anyway.

I don't think the proverbial small inventor is so rare, but that as you say, a patent is practically useless for them.

Re: Victory Lap for Ask Patents

#110

somewhat active on Ask Patents. In fact, I've submitted an answer that is pretty sure to kill at least one Google patent application, and possibly another from Uniloc. A few comments on this article: 1) This is a very unusual case; most answers (and almost all questions) from "lay engineers" completely misunderstand the scope of the patent, since they don't even know what claims are. And even if they do, they are ver…

>You simply need to learn the language to appreciate what you are reading. when i read my ones (basically the same crap that other 99% software patents are) in patent legalese they sound more pompous, yet still an utter crap.

The pompous aspect comes (IMO) from primarily historical reasons. However, in my experience, the judgement of them being "utter crap" is simultaneously (1) mostly uninformed and (2) yet mostly correct.

Let me clarify: people think they are crap for the wrong reasons, such as vastly overestimating the scope of the claims. But they are (IMO) still mostly crap because they are ridiculously narrow and not necessarily clever... Yet they are still valid because that's what the patent system is tuned to.

I have said this before in other comments -- the way patents are examined is mostly quantitative: find enough pieces of prior art where enough snippets of texts cover the text of the claims, and you have a rejection. No thought is given to the quality of the claims. For instance, I'd wager the RSA patent (which even the most die-hard anti-patent folks typically admit is novel) would not be granted today because each aspect of the claims is mentioned somewhere in the prior art. It is the combination of steps which is novel. Yet todays examination process would shoehorn the claims into a ridiculously narrow set of steps that (the attorneys hope) would still typically be infringed.

Examination these days is a mechanical process whereby examiners just try to find enough references with language in them to cover all steps in a claim to issue an easy rejection. (Yes, the "rubber stamp" is more likely used to reject rather than allow.)

So how do you try to qualitatively judge a patent when you have only a few hours appreciate all the prior art out there and appreciate what is being claimed and to do so?

The answer is, you can't; the only way to have a scalable process is to issue actions on a quantitative basis rather than a qualitative one.

As I said, it's a difficult, almost philosophical question.

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