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BT Sues Google for Patent Infringements (Wired)BT Sues Google for Patent Infringements (Wired)Posted Dec 20, 2011 14:02 UTC (Tue) by SecretEuroPatentAgentMan (guest, #66656)In reply to: BT Sues Google for Patent Infringements (Wired) by drag Parent article: BT Sues Google for Patent Infringements (Wired)
> To bad IP law is fundamentally immoral and does little more then trample all over progress and stomp the rights of individuals and businesses.
That is quite a statement, yet both sides seem to be able to cite ample evidence for eiterh view. So far it does not seem that obvious. And without protection how do you get investors to fund your startup or get returns on a 10+ year development project?
> It's now a shield that is used by large companies to pay off the Government to prevent competition from smaller companies.
It is interesting how different the world looks from the inside and the outside of the IPR world. In patent attorney fora you will find patents are seens as means for the little man to avoid being trampled down by the large established companies. In fact many countries have special provisions for small entities. In big versus little, the big company has a lot of tricks available that a small company simply cannot afford.
> It's something that needs to end. Otherwise we are just going to slip into another technological dark age.
Without patenting many companies are likely to try secrecy for protection and such secrets enjoy a much larger protection in the US and UK than many other countries. I doubt that is much of an improvement.
And it is interesting that you use the expression "dark age", after all keeping people in the dark was, from what I was told an expression used about a method of protecting knowledge by keeping it secret.
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BT Sues Google for Patent Infringements (Wired) Posted Dec 20, 2011 18:23 UTC (Tue) by raven667 (subscriber, #5198) [Link]
Patent protection for software is double-dipping as the software is already protected by copyright and is secret. Since the publishing of the patent doesn't provide any useful service to the advancement of technology it is giving government protection in exchange for nothing for society, it's a taxpayer cost with no benefit.
BT Sues Google for Patent Infringements (Wired) Posted Dec 20, 2011 23:48 UTC (Tue) by pboddie (subscriber, #50784) [Link] The fundamental question is this: should we be granting monopolies on the application of solutions to particular problems and to entire problem domains? Moreover, in fields where those solutions borrow heavily from existing, freely available and freely usable work, and where many people are likely to arrive at such a solution on their own through the natural, routine practice of their profession (which involves the application of skills like observation and deduction, not the perusal of a patent catalogue), should we deny those people the right to apply their independently discovered solution to a problem domain just because someone else has claimed to have already "invented" the only solution?
BT Sues Google for Patent Infringements (Wired) Posted Dec 23, 2011 11:27 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> The fundamental question is this: should we be granting monopolies on the application of solutions to particular problems and to entire problem domains?
Perhaps I misunderstand what you ask here but it seems to me you believe you can get a patent to all solutions to a problem and entire problem domains. I do not know where you can get such patents. Rather you can get patents for new and specific solutions to a problem and the description has to be clear and sufficient for a person skilled in the art to actually work the invention.
> many people are likely to arrive at such a solution on their own through the natural, routine practice of their profession
You have to make sure you are not looking at this in hindsight. If everything were obvious way back then, one would expect all inventions to have been made already. Nevertheless we see progress takes place gradually. Also the requirement of non-obviousness or inventive step is put in place to deny patents to routine practice. If the patent regards something that truly was within the field of an uninventive routine worker in the field the patent can be revoked.
> just because someone else has claimed to have already "invented" the only solution?
That is an assumption which not always is true. The idea of patents promoting progress is also to encourage others to find independent alternative solutions. This argument is frequently brought up and illustrated with James Watt's steam engine as an example. Rather than inventing many wanted free use of his inventions. In reality alternatives were plenty such as turbines, stirling-, diesel- and otto-engines, 2- and 4-stroke engines and more. It just takes work. When people talk about the *only* solution I always wonder how they can be so sure there is just one single sulution.
BT Sues Google for Patent Infringements (Wired) Posted Dec 23, 2011 18:43 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]
in theory you are right about the checking that goes in to granting a patent
however, in practice, the patents that have been granted (not just in the US) do not get checked according to the stated rules.
go read through the many patent lawsuits going on right now and see if you still think that any of them are really as narrow and specific as you claim all patents are.
BT Sues Google for Patent Infringements (Wired) Posted Dec 21, 2011 8:32 UTC (Wed) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Patent protection for software is double-dipping as the software is already protected by copyright and is secret.
There is an either-or at work here: either you keep it secret, or you file a patent application describing the technology suffcient for a person skilled in the art to work the invention. Failure to provide sufficiency is grounds for revocation in many countries/regions.
If you can get a patent while simultaneously keeping it secret I certainly wonder how you did that.
> Since the publishing of the patent doesn't provide any useful service to the advancement of technology
How do you know that is the case?
BT Sues Google for Patent Infringements (Wired) Posted Dec 21, 2011 10:05 UTC (Wed) by mpr22 (subscriber, #60784) [Link] I gather that the patents being granted on software tend to fall into two partially intersecting categories: the unintelligible (hence, no real gain to society) and the "what kind of drooling idiot thinks that's innovative?" (hence, shouldn't have been granted...)
BT Sues Google for Patent Infringements (Wired) Posted Dec 21, 2011 16:06 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
go read a few software patents, they are not written in terms that a programmer can understand. Even if a programmer wrote the initial information, after the lawyers get done re-writing it, the initial programmer has to read very carefully to see their initial invention in the patent.
BT Sues Google for Patent Infringements (Wired) Posted Dec 22, 2011 10:17 UTC (Thu) by SecretEuroPatentAgentMan (guest, #66656) [Link]
If an application is unintelligible (I take it this corresponds to insufficiency) or a case of "what kind of drooling idiot thinks that's innovative?" (also called obvious or lacking inventive step) a patent should not have been granted, moreover the patent can be revoked on either of these grounds. No professional would want to draft an application that falls foul of any of these grounds.
It might be worth keeping in mind that the question of obviousness should be framed in the times that the application was filed, not in view of state of the art today. It is not clear that people should lose their patents just because something 20 years later is regarded as obvious in view of perfect hindsight.
BT Sues Google for Patent Infringements (Wired) Posted Dec 22, 2011 14:07 UTC (Thu) by mpr22 (subscriber, #60784) [Link] From the point of view of rentier capitalists (and anyone they're paying to work for them), a patent doesn't need to be iron-clad. It merely has to be sufficiently robust that the targets of patent suits will think it's easier and cheaper to sign an out-of-court licence settlement than to try and get the patent invalidated. As long as the targets are picked carefully (not too large, not too violently principled, not too well-connected) it works a treat.
BT Sues Google for Patent Infringements (Wired) Posted Jan 3, 2012 16:32 UTC (Tue) by wookey (subscriber, #5501) [Link]
Is that 'not too violently principled' why no-one ever sues Debian? (and it doesn't have much money)
BT Sues Google for Patent Infringements (Wired) Posted Dec 22, 2011 16:43 UTC (Thu) by raven667 (subscriber, #5198) [Link]
You seem to be describing some idealized system that doesn't really have much relation to what actually exists in the real world.
BT Sues Google for Patent Infringements (Wired) Posted Dec 23, 2011 9:44 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
When drafting oppositions these are always avenues to explore. I have done this myself. Statistics are freely available from EPO where typically 1/3 of the cases the opposition fails and the patent is maintained, 1/3 where the patent is revoked, and 1/3 where the patent is maintained in amended form.
Invoices from these processes are very much in the real world and clients paying for this would not continue such proceedings if it all were a fairy tale.
Are you making your statement from your own experiences?
BT Sues Google for Patent Infringements (Wired) Posted Dec 21, 2011 16:56 UTC (Wed) by raven667 (subscriber, #5198) [Link] There is an either-or at work here: either you keep it secret, or you file a patent application describing the technology suffcient for a person skilled in the art to work the invention. Failure to provide sufficiency is grounds for revocation in many countries/regions. There are a lot of reasons including that one that should prevent most software patents from being granted but unfortunately they are granted and in great numbers which retards the software industry. Only large players can afford to get patents and most of the patents are on techniques which are re-implemented over and over as they are the obvious solution to any competent developer with the appropriate domain knowledge. The large companies blanket cross license their patents, form covenants not to sue or take the position of Mutually Assured Destruction because everyone infringes on everyone else's patents liberally, there is no way to not do so. Small players or new players are the prey of the incumbents because they have no portfolio with which to defend themselves. This is starkly illustrated in the phone industry where everyone is suing everyone else, trying to waste as much money as possible of their opponents to encourage them into per-unit licensing deals. MS has been very successful with this strategy and is extracting licensing revenue solely because they took the time and money to file patents and Google didn't bother. > Since the publishing of the patent doesn't provide any useful service to the advancement of technology How do you know that is the case? No one in the software industry has ever read a patent to learn a technique, that never happens. Patents in software are solely a means to extract rent from competitors in addition to making product, they provide no public service.
BT Sues Google for Patent Infringements (Wired) Posted Dec 23, 2011 10:06 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Only large players can afford to get patents
How strange. Some of my clients are small, some even are students on a tiny budget, and they found it affordable. In most places you are allowed to file a patent application without having to use a patent attorney or patent agent. And if you use a professional representative you might keep in mind that this is a service industry and you are allowed to shop around for a price you can accept.
> obvious solution to any competent developer with the appropriate domain knowledge
The question really is: was it really obvious at the time the patent application was filed? Hindsight can make everything obvious, thus the tests for non-obviousness or inventive step can be rather complicated.
> Small players or new players are the prey of the incumbents because they have no portfolio with which to defend themselves
Amongst professional representatives (see for instance Patentlt-O or IPKat for such fora) the view is that IPR is a tool for small companies to avoid being overrun by large companies. Also many countries have special provisions for small entities. Finally large companies prefer not to take on small companies because it rarely is worth the expenses and few like to be seen as a modern day Genghis Khan. Also it is not uncommon that new players file patent applications both to secure freedom to operate and also get an overview of what rights already exist in the field. Around here investors prefer to see applications are filed before investing.
> No one in the software industry has ever read a patent to learn a technique, that never happens.
Licensing is very much used in the mobile phone sector and if the patent is useless you will have little success in licensing negotiations. At least one of my clients used patents to learn of new technology. Many, perhaps most, in this business use expensive and huge systems to monitor IPR activity from competitors. Reading an application requires training but so does programming too.
BT Sues Google for Patent Infringements (Wired) Posted Jan 3, 2012 16:45 UTC (Tue) by wookey (subscriber, #5501) [Link]
> The question really is: was it really obvious at the time the patent application was filed?
If it is independently reinvented then it shouldn't matter whether it was obvious or not at the time of filing. The whole principle that you can claim a code concept for 20 years is wrong. The principle that you shouldn't be allowed to re-implement interesting code ideas you come across is also wrong.
> > No one in the software industry has ever read a patent to learn a technique, that never happens.
> Licensing is very much used in the mobile phone sector and if the patent is useless you will have little success in licensing negotiations.
Licencing is not the same as learning-from. Entities licence patents to avoid being sued over them. They often have little choice. That doesn't mean they learned anything useful from the patent, or couldn't have thought up a perfectly good solution of their own.
I suppose that somewhere there is a software engineer that leanred saomething from a patent - they can't _all_ be totally devoid of useful info. But I've never come across such a person, and it's quite obvious that this largely theoretical good is negligible in comparison to the large, expensive and inconvenient harm of the system.
BT Sues Google for Patent Infringements (Wired) Posted Jan 9, 2012 17:43 UTC (Mon) by dgm (subscriber, #49227) [Link]
>> Only large players can afford to get patents
> >How strange. Some of my clients are small, some even are students on a tiny budget, and they found it affordable.
Let's put some numbers in so everybody can make their own decisions. How much does it costs (as in total cost) to have a patent approved? That should include the paperwork, but also an average number of rejections and resubmissions, and also investigation of possible related patents.
It's true that mostly only large players (or trolls) do make any USE of patents.
> [...] tests for non-obviousness or inventive step can be rather complicated.
In that case the system should default to not granting. That would put the burden where it belongs: into the interested party.
> Amongst professional representatives (see for instance Patentlt-O or IPKat for such fora) the view is that IPR is a tool for small companies to avoid being overrun by large companies.
You will excuse me, but amongst professional developers (look all over the net for references) IPR is a tool for bureaucrats to extort money from innovators. Also, it's seen as a tool for big corporations to keep competition away from it's customers. Thus, looks like small applicants only option is to sell their patents to bigger fish, often for peanuts. Or get into big trouble.
> Many, perhaps most, in this business use expensive and huge systems to monitor IPR activity from competitors.
I would call this marketing. Certainly not development.
BT Sues Google for Patent Infringements (Wired) Posted Jan 9, 2012 20:58 UTC (Mon) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Let's put some numbers in so everybody can make their own decisions.
There are large variations here but if we assume a national application most people are allowed to draft, file and prosecute their own applications ("pro se" is the term used). Cost for filing plus cost for printing on grant would be about USD 400 for a short patent with few claims. If you use a patent attorney or patent agent and prepare a lot yourself I have been able to get it to grant and printed for just under USD 3000.
For small clients on a shoestring budget we have information on how they can reduce cost as much as possible. Larger companies prefer to leave as much as possible to us in which case the application drafting is the largest part, at USD 5000 for a 20 page application (rough figures, complexities vary a lot). Then you get reporting of office actions and claims amendments, very roughly USD 1000 per round, so you get a total of USD 8000 - 10000.
(Now since I wanted to answer your question but do not want to make this into an advertisement for myself or my company (and certainly do not want to make the Editor grumpy...) I hope for understanding that I now cannot tell where this example is taken from.)
As for EPO the official cost is public: http://www.epo.org/applying/forms-fees/fees.html
>> [...] tests for non-obviousness or inventive step can be rather complicated.
The burden is already on the applicant once the official action is out. Examiners make their own analysis and it is up to the applicant to respond, no mater how strange the analysis in the official action may be. In by far most cases the first official action is a rejection.
> You will excuse me, but amongst professional developers (look all over the net for references) IPR is a tool for bureaucrats to extort money from innovators.
There are two thought behind the cost levels set. First of all there is a preference for the patent office in many countries/regions to be self funded. It is also intended so that if you do not make any money from the patent you should have an incentive to abandon the patent, leaving it open for everyone to use. Where that threshold should be can be discussed, nevertheless the figures shown above can hardly be called extortion.
> [...] Also, it's seen as a tool for big corporations to keep competition away from it's customers. Thus, looks like small applicants only option is to sell their patents to bigger fish, often for peanuts. Or get into big trouble.
As mentioned earlier in this discussion I will disagree here and my own experiences differ.
>> Many, perhaps most, in this business use expensive and huge systems to monitor IPR activity from competitors.
Marketing, who to?
BT Sues Google for Patent Infringements (Wired) Posted Jan 16, 2012 4:39 UTC (Mon) by dgm (subscriber, #49227) [Link]
> The burden is already on the applicant once the official action is out. Examiners make their own analysis and it is up to the applicant to respond, no mater how strange the analysis in the official action may be. In by far most cases the first official action is a rejection.
If the examiner has to do their own analysis, then the burden is on him, not the applicant. The applicant should be required to show _proof_ that their invention is not obvious. And face consequences if they lie about that.
> Where that threshold should be can be discussed, nevertheless the figures shown above can hardly be called extortion.
Sorry about the excessive hyperbole. Anyway, your argument do not make sense. A self funding patent office has a very good incentive for keeping approving patents, no matter if they bear any merit of society gets benefited from them in any meaningful way. All the other people living from that process (like yourself?) are incentivated to keep things that way, even it's clear that, at least in certain circumstances, patents are detrimental to innovation.
> Marketing, who to?
I meant Marketing in strategic sense, not in the propaganda sense.
BT Sues Google for Patent Infringements (Wired) Posted Jan 16, 2012 21:30 UTC (Mon) by SecretEuroPatentAgentMan (guest, #66656) [Link]
>> The burden is already on the applicant once the official action is out. Examiners make their own analysis and it is up to the applicant to respond, no mater how strange the analysis in the official action may be. In by far most cases the first official action is a rejection.
> If the examiner has to do their own analysis, then the burden is on him, not the applicant. The applicant should be required to show _proof_ that their invention is not obvious. And face consequences if they lie about that.
I am not sure how familiar you are with scientific theory and falsifiability but what you are asking for here is similar to proof that something is unique. You cannot. You can only say that of the samples seen so far this something is unique. The next sample or the one after that could be the same and the theory is shown false. There exists no total overview of human knowledge.
Secondly I have never come across a case where someone knowingly has filed a patent for something they knew was not new. Usually the inventor or the applicant knows the field fairly well and frequently a search for prior art is done, both to see if the application is viable and also to make sure that the applicant is not about to infringe rights held by others. In the US you have to declare your knowledge of relevant prior art through Information Disclosure Statements (IDS), not doing so can be catastrophic.
Nevertheless the Examiner has (usually, there are lots of special cases here but I try to keep this brief) to make an independent search and is a guarantee to third parties that the process has been followed through properly and independently. Examiners are specialists on searches and frequently bring up prior art that was not known when the application was filed. It is in view of this that the Examiner issues an Official Action and it to this that the applicant has to respond. Failing to respond can result in the death of the application.
Also if filing the application abroad a foreign Examiner could bring up fatal prior art in a language and character set you are not familiar with.
Lying in an IDS or when responding or committing fraud on the patent office is Inequitable Conduct and is grounds for loss of rights and can be a career killer for the patent attorney/agent. The consequences you ask for are already in place.
Then comes the law of unintended consequences. The idea behind patents is simple, the present implementation is far from simple. Fear of Inequitable Conduct has (through complex reasoning) resulted in that in the US one writes about prior art in the application only in very general terms.
> A self funding patent office has a very good incentive for keeping approving patents, no matter if they bear any merit of society gets benefited from them in any meaningful way.
Perhaps I am terribly old fashioned here but I like to think there is something called self respect and integrity. While the USPTO may have a skewed incentive here, the Examiners making the actual decisions in the first instance have a points based incentive system where out of control granting is not a problem. To the contrary, the old system was skewed towards excessive rejections. Other patent offices are partially funded by annuity fees that also cover applications which in theory could lead to doomed applications remaining half way processed in the archives. Finally there are international cooperation projects between USPTO, EPO and other patent offices that would not work if the system was out of control.
Some requirements for USPTO Examiners can be found here:
> I meant Marketing in strategic sense, not in the propaganda sense.
OK, but to what ends?
BT Sues Google for Patent Infringements (Wired) Posted Dec 20, 2011 23:46 UTC (Tue) by farnz (guest, #17727) [Link] So herein lies the problem. I'm a practising software engineer, whose academic background is computer science - I should be the sort of person who reads software patents (expired and current) to see what sort of interesting inventions are being disclosed, and if there's anything I should get my exmployer to license. I do sometimes read patents out of curiosity, as I'm not in a jurisdiction where that automatically opens up the idea of wilful infringement and triple damages. I can't read software patents the way I read electronic patents. You show me a patent on an electronic circuit, even a microchip level integrated circuit, and I can understand what they've done, and what's non-obvious about the patented invention. I can usually see how you'd generalise from the specific circuit described in the patent to similar circuits - or why it won't generalise nicely (e.g. because it clearly depends on some behaviour that's scale-specific, and only occurs on ICs with small enough feature size). That's with amateur knowledge, BTW - an A-Level in Physics, and reading resources found by Google to fill in the bits I don't know. Further, I can take a patented invention, discuss the problem space with colleagues who are professional electronic engineers, and generally find that they don't come up with the patented solution, or that they only manage it because they're aware of the patent. In the former case, when I explain the patented invention to them, they're impressed that anyone thought of that. In contrast, with software patents, either I cannot understand them at all, or I explain the problem to a colleague, and they promptly come up with the patented solution "because it's the obvious way to do things". When I discuss patents in general with other software engineers, they've had the same experience. There are a few exceptions to this (the RSA patent, for one), but they're rare. My conclusion from this is that software patents are failing to act as a useful disclosure mechanism; where they disclose something novel, they are obfuscated in language that means that I as a practising engineer can't use them to educate me. Where they don't disclose anything novel, they should be rejected, and yet I'm finding them out there. I don't know why this failure is happening in software patents specifically, only that it is, and that it's not happening to the same extent in hardware design patents.
BT Sues Google for Patent Infringements (Wired) Posted Jan 1, 2012 11:16 UTC (Sun) by ekj (guest, #1524) [Link]
This is true, and an excellent point. I do not know -anyone- who reads software-patents in an attempt at finding new good ideas for software-development. There simply aren't any. Either the solution is as you say, obvious ("how would you make it possible for a customer to order something with a single click?"), or else the description is so blurry that it's impossible to understand what's being described at all. Even for very smart people with world-class understanding of the problem-field.
The "disclosure" pary of software-patents that theorethically benefit society and thus balance the harm done by the monopoly granted, is thus zero or close to it. Society hands out monopoly-power in exchange for nothing.
Adding insult to injury is the fact that some jurisdictions make you liable for triple damages if you're dumb enough to read the patents ("willfull infringement") thus the advice for software-developers tends to be *NOT* to read them.
If you think software patents are bad enough... Posted Jan 1, 2012 11:46 UTC (Sun) by khim (subscriber, #9252) [Link] Actually software patents are not the worst thing imaginable. You've mentioned "one-click patent" - but it's not software patent, it's UI patent. UI patents are worse then software patents: where software patents are "useful in theory but not in practice" these (as well as business patents) are unconditionally evil. They give no disclosure gain at all (because by necessity they are disclosed when they are actually used... and if they are useless even to the inventor then do we even need such inventions at all?) yet they still include all the negative sides from other kinds of patents. Modern patents were introduced by well-known act yet it's quite obvious that Industrial Revolution was enabled not by the part which gave limited monopoly for "new inventions" but by it's repeal of way-to-broad patents which existed before. Today slow creep of patent's scope brought us to almost the same position again: we don't yet have patents for salt sale, but we already have patents for rectangular piece of plastic...
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