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Am I evil, or is killing patents just plain fun?

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Re: Am I evil, or is killing patents just plain fun?

#111

Post by gamblor956 »

WildUtah wrote: post #75
dfc wrote: post #13

I do not know what jurisdiction the author is referring to when listing the requirements for a "good patent." But in the US novelty and non-obviousness are just two of the five requirements for a "good patent." The other three are just as important:[1] (1) patentable subject matter (2) utility (5) enablement After slogging through the language of a lot of patents you start to wonder how so many of them were deemed to…

Those are the official requirements. In real life, only #3 prior art is of any use in disqualifying any software patent. 1. Patentable subject matter. The Supreme Court declared that algorithms are not patentable in Benson (1972) and Flook (1978). The Court of Appeals for the Federal Circuit (the patent court) reversed the Supreme Court rulings completely by 1994's Alappat decision. Since then, very, very few especia…

The Supreme Court attempted to revive it in 2007's KSR v. teleflex, but the CAFC has overruled the Supreme Court on 35 USC §103 (the obviousness law).

The CAFC is subordinate to SCOTUS, and cannot "overrule" a SCOTUS decision. Consequently obviousness is very much alive.

The CAFC can try to ignore or "distinguish" a SCOTUS decision on flimsy grounds, but SCOTUS has repeatedly overruled the CAFC when it has tried to overstep its bounds.

Re: Am I evil, or is killing patents just plain fun?

#113

Post by njharman »

chrisBob wrote: post #98
bovermyer wrote: post #97

Could someone explain to me why patents are ever a good thing? I'm genuinely curious.

Pharmaceuticals are both one of the best and worst patent examples. It costs a company millions of dollars to develop, test and get approval for a new drug. A patent makes this expensive gamble worth while for the company by guaranteeing that they are the only ones who can sell the drug that they spent the money to develop.

That is only an argument for patents if you buy into idea that private sector / capitalism is the best answer for every problem. The fact that you need patents to shore up that idea strongly indicates to me, health is not one of the well suited problem. The other non-patent solution is funding the likes of CDC and NIH to research disease prevention and related drugs. In general the things that aren't (or shouldn't be) inherently profitable but are none the less needed should be socialized.

Re: Am I evil, or is killing patents just plain fun?

#114

Post by astrodust »

scromar wrote: post #105

I posted a similar comment in the author's post, but I figure I'll post it here too in case anyone finds it useful. ---- I sympathize with the author's belief that many software patents are obvious, but as a practicing patent attorney I just want to point out a couple of things: 1. The patent claim copied in the post is from a published application, not a patent. It is common to file an application with broader claim…

I'd submit that "obviousness" relates not to the general concept of the solution, but to the implementation of it, something that's absent from virtually every software patent out there. The hindsight bias is an important factor, but only at a very abstract level.

For example, RSA encryption is conceptually simple and fairly obvious (prime factors of large numbers, of course!), but the implementation is exceedingly tricky. Patenting RSA does not preclude people from patenting other encryption methods, but it would if the patent covered "prime factor-based encryption".

It would be a lot better if a patent application was rejected until a workable implementation was described, one that included enough detail to verify that it was a viable solution to the problem. No code, no patent.

For example, if the patent being reviewed here included a specific way of encoding the date and time with the photograph to facilitate some kind of easy sorting, then patenting that specific, non-obvious (e.g. proprietary) method wouldn't be so disruptive.

Re: Am I evil, or is killing patents just plain fun?

#115

Post by WildUtah »

gamblor956 wrote: post #111
WildUtah wrote: post #75

Earlier quoted context omitted.

Those are the official requirements. In real life, only #3 prior art is of any use in disqualifying any software patent. 1. Patentable subject matter. The Supreme Court declared that algorithms are not patentable in Benson (1972) and Flook (1978). The Court of Appeals for the Federal Circuit (the patent court) reversed the Supreme Court rulings completely by 1994's Alappat decision. Since then, very, very few especia…

The Supreme Court attempted to revive it in 2007's KSR v. teleflex, but the CAFC has overruled the Supreme Court on 35 USC §103 (the obviousness law). The CAFC is subordinate to SCOTUS, and cannot "overrule" a SCOTUS decision. Consequently obviousness is very much alive. The CAFC can try to ignore or "distinguish" a SCOTUS decision on flimsy grounds, but SCOTUS has repeatedly overruled the CAFC when it has tried to o…

I refer you to the awful and smart patent troll promoter Gene Quinn:

"How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning."[0]

No court is subordinate to any other in the American system. Higher courts can overrule lower courts, but cannot subordinate them or force them to follow dictates or discipline judges. So-called precedent is an artificial social convention among judges that the CAFC judges reject. [1]

The Supreme Court doesn't have the time or interest to assert itself against the CAFC. When it does take a case, the Supreme Court often overturns decisions unanimously and expresses frustration in its opinions, but that doesn't mean the Supremes are about to start taking 50 or 100 patent cases a year and making any real difference.

[0] http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

[1] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...

Re: Am I evil, or is killing patents just plain fun?

#116

Post by dec0dedab0de »

xroche wrote: post #51
PythonicAlpha wrote: post #39

Earlier quoted context omitted.

The problem is deeper. The USPTO just does not want to ask further questions. The reason: It is funded from granted patents. If patents are not granted, the funds are down. And no director will like it to say at the end of the year, that US companies are less innovative than in the last year -- or worse, less innovative than ... (name a country).

Exactly. They have incentive in accepting any possible ridiculous patent (money) and they do not take any legal risks accepting these bogus patents (can you sue them if you can prove the patent was bogus ? short answer: NO). Why on earth would they become "ethical" and "good" (and other kind of nonsensical adjectives) and refuse the money people want to give them ? It's like asking a prostitute not to accept money ba…

A simple solution would be to charge the same amount to apply regardless if it was granted or not.

Re: Am I evil, or is killing patents just plain fun?

#117

Post by hackinthebochs »

g8oz wrote: post #110
chrisBob wrote: post #98

Earlier quoted context omitted.

Pharmaceuticals are both one of the best and worst patent examples. It costs a company millions of dollars to develop, test and get approval for a new drug. A patent makes this expensive gamble worth while for the company by guaranteeing that they are the only ones who can sell the drug that they spent the money to develop.

I used to buy that argument till I read that they typically spend far more on marketing and sales than R&D.

The difference is that marketing gives you a pretty steady ROI. Once the drug is developed, there is little to no risk involved in spending billions marketing a drug.

However, spending billions developing a drug without patent protection is a massive risk since drugs are easy to make but extremely hard to find. It would be trivial for a competitor to make the same drug at zero cost once its found to be effective. In this scenario researching drugs almost certainly has a negative ROI. Patents alter that calculation to make the endeavor worthwhile.

Re: Am I evil, or is killing patents just plain fun?

#118

Post by chrisBob »

g8oz wrote: post #110
chrisBob wrote: post #98

Earlier quoted context omitted.

Pharmaceuticals are both one of the best and worst patent examples. It costs a company millions of dollars to develop, test and get approval for a new drug. A patent makes this expensive gamble worth while for the company by guaranteeing that they are the only ones who can sell the drug that they spent the money to develop.

I used to buy that argument till I read that they typically spend far more on marketing and sales than R&D.

The system isn't bad just because you don't like their business decisions. I think the advertising budget is completely unrelated to the issue of patents.

If you want to argue against the fact that patent protection is needed for drugs just show some examples of recently approved drugs that are not patented, or that were brought to market by non-profits.

The safety and efficacy studies are both expensive and likely to fail, and I think there should either be public funding or patent protection for the company that bears this cost and risk.

Re: Am I evil, or is killing patents just plain fun?

#119

Post by scromar »

astrodust wrote: post #114
scromar wrote: post #105

I posted a similar comment in the author's post, but I figure I'll post it here too in case anyone finds it useful. ---- I sympathize with the author's belief that many software patents are obvious, but as a practicing patent attorney I just want to point out a couple of things: 1. The patent claim copied in the post is from a published application, not a patent. It is common to file an application with broader claim…

I'd submit that "obviousness" relates not to the general concept of the solution, but to the implementation of it, something that's absent from virtually every software patent out there. The hindsight bias is an important factor, but only at a very abstract level. For example, RSA encryption is conceptually simple and fairly obvious (prime factors of large numbers, of course!), but the implementation is exceedingly t…

I see general concept and specific implementation as being on a spectrum. If an invention is sufficiently novel/nonobvious, I believe the inventor is entitled to a patent on the general concept. However, if the invention is an incremental advance, or in a crowded field, the inventor should only be entitled to a patent on the narrower invention that is actually new, and usually this is going to be a specific implementation.

This is not to say that a patent application should not describe the invention in detail. The law requires that the patent application describe the invention in sufficient detail that one of skill in the art would be able to practice/implement the invention without "undue experimentation." This feels like the right standard to me. I believe that a software patent application that provides a functional description of the invention, even without code showing a specific implementation, that would allow a skilled programmer to implement the invention, should suffice. Whether that invention is novel/nonobvious is a separate question. The broad idea may or may not be. A narrow aspect of the idea may or may not be. You don't need actual code to figure this out.

Re: Am I evil, or is killing patents just plain fun?

#120

Post by rowyourboat »

pbhjpbhj wrote: post #93
rowyourboat wrote: post #61

"Am I evil, or is killing patents just plain fun?" Neither. You just like false dichotomies.

Whilst we're being pedantic (are we ever not?) that construction doesn't present a dichotomy it's just a more lyrical way of saying "I like killing patents". Am I evil, or is pedantry just plain fun?

Of course pedantry is fun. Somehow, the way the title is worded grates me.

It manages to imply that anybody who does not find killing patents "fun" is evil. That's the false dichotomy: Either you find killing patents fun, or you are evil.

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