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Victory Lap for Ask Patents

joelonsoftware.com

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Re: Victory Lap for Ask Patents

#111

Post by throwawaykf »

dctoedt wrote: post #100
throwawaykf wrote: post #80

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…

Re (2): In 1924, legendary federal judge Learned Hand [0] remarked that "the antlike persistency [sic] of [patent] solicitors has overcome, and I suppose will continue to overcome, the patience of examiners, and there is apparently always but one outcome." [0] http://en.wikipedia.org/wiki/Learned_Hand [1] Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924), copy available at http://scholar.google.com/scholar_case?case=96965975…

Agreed. It is an unfair match. It is, statistically, almost a tautology: The set of examiners is necessarily limited by government funding constraints, but the number of patent attorneys and agents they contend with on a daily basis is only limited by the market, which is huge. The examiners will eventually be overwhelmed.

I think this is one reason that most examiners (at least IME) have their default mindset to "Reject! Reject! Reject!" Also, this is why something like Ask Patents is invaluable to even the odds.

I don't agree with the quantitative approach, but I can't help think that technology can help. Google has already (in my opinion) helped the PTO greatly narrow claims the past decade; similar technology can help even more.

I have some background in NLP. And I know it's surprisingly effective when it comes to domains with specific jargon (cf. Watson and medical language). I've lurked long enough to know some here (such as VanL) have already experimented in this area. Personally, I have toyed with the idea of constructing parse trees out of multiple technical texts and claims, "normalizing" them using ontologies, and trying to find matches (i.e. prior art) using various tree-matching algorithms. I have a feeling it would be very effective. (Maybe Google already does this!)

But that does not address the problem of identifying patents that are quantitatively invalid but qualitatively valuable. To me, that is the more important long-term problem.

Re: Victory Lap for Ask Patents

#112

Post by jacques_chester »

In another patent thread some time ago I identified what I think is the core problem with software patents, which is abstractability. I used the example of a tractor being generalised into transportation, so I was nodding along with Joel's example.

This is because that's how software development often proceeds. We start with the concrete problem, then notice a pattern that encompasses a class of concrete problems, then a pattern that describes a group of classes of problems and so on. Building abstractions is literally what we do as a profession.

Now, as Joel points out, the rational strategy is to take the highest-level, most abstract version of your invention to the patent office to see what will get passed in. So patent applications are written like matrioshka dolls, with a super general case on the outside, and progressively more concrete descriptions as you go deeper. Somewhere near the bottom is the original thing that started the ball rolling.

Re: Victory Lap for Ask Patents

#113

Post by ESRogs »

busyant wrote: post #106
DevX101 wrote: post #105

Earlier quoted context omitted.

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 patent…

While I'm sure a case could be made that IP protection is necessary in biotech, isn't the example you gave actually evidence of the the opposite -- that patents stifle innovation and research?

Re: Victory Lap for Ask Patents

#114

Post by jacques_chester »

throwawaykf wrote: post #80

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…

> The "crappy software patents" view is common mostly because tech media routinely publishes uninformed (or disinformed? [4]) rhetoric, mostly because they garner some easy rageviews, and audiences accept it without critical thought.

"Inventive patent filed covering obscure corner of programming" is not going to garner pageviews, for the same reason that "Grandmother walks home safe from 1000th time without being assaulted by ne'er-do-wells" doesn't appear on any newspaper outside The Onion.

Re: Victory Lap for Ask Patents

#115

Post by zanny »

DevX101 wrote: post #105
zanny wrote: 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.

I don't necessarily call that a good thing. It isn't a black and white pro that a business gets monopoly rights to distribute new drugs for 2 decades, even if most new drug research is funded for that profit.

Re: Victory Lap for Ask Patents

#116

Post by throwawaykf »

sutro wrote: post #53
roc wrote: post #26

Earlier quoted context omitted.

As the Patent office generates net revenue for the US Government, you don't have to worry about that.

Actually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

Another frequently repeated myth. Actually:

1) Pretty much each and every action has a fee attached [1].

2) Each rejection has a 3 - 6 month time limit to be responded to.

3) Most applicants will fight every rejection to preserve their rights.

4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].

So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.

[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...

[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...

[4] http://btlj.org/data/articles/20_04_02.pdf

[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...

Re: Victory Lap for Ask Patents

#117

Post by jacques_chester »

ISL wrote: post #5

Trouble is, what killed the patent was prior disclosure from the researchers. The same thing has happened to friends of mine; an undergraduate's summer research presentation may have betrayed patentable inventions. An effect of the 1-year prior art rule is to force researchers to keep mum about what they're doing and to generate greater numbers of incremental patents. If you're interested in the free flow of informat…

The 1-year grace period is there specifically so researchers can publish and patent. What counts are the publication and filing dates. File within the year and you will be in a position to earn protection.

However, the 1-year grace period isn't available everywhere. The USA has it, for instance, but the EU doesn't.

IANAL, TINLA.

Re: Victory Lap for Ask Patents

#118

Post by bandushrew »

busyant wrote: post #106
DevX101 wrote: post #105

Earlier quoted context omitted.

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 patent…

doesn't that mean that if nobody owned the drug, drug companies would be free to work on a wider range of research?

Re: Victory Lap for Ask Patents

#119

Post by mr_luc »

zmmmmm wrote: post #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…

Wait.

What about the Internet Archive's Wayback Machine?[0]

And how can making a physical product not count -- surely any physical product sold in the United States has some kind of qualifying documentation associated with it which counts as publishing, even a manual?

[0] http://archive.org/web/web.php

Re: Victory Lap for Ask Patents

#120

Post by thecodeore »

DannyBee wrote: post #94
cleverjake wrote: post #89

Earlier quoted context omitted.

do go on.

bountyquest (paid) - existed in early 2000's patentbusters - ditto Peer to patent - more recent Patexia - still exists article one partners - which still exists and pays I don't feel like trying to hunt down the rest, but there are/have been at least 10 or so crowdsourcing attempts, some serious, some not so serious.

THe key part is recent changes in the law have given much more weight to community/public commenting on patents, so where these may have failed in the past it is possible for them to have more success today.

Further the patent climate has become more hostile towards bad patents in recent years, more so than at in point in modern history, this will also enable more possibility for success

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