Patent Boss Admits That The Patent Office Keeps Getting Flooded By More And More Bad Patents

from the gee...-I-wonder-why... dept

Mon, Apr 21st 2008 4:35am — Mike Masnick

The head of the US Patent Office, Jon Dudas, the same guy who was just hyping up a educational curriculum for children falsely claiming that any inventor "needs" to get a patent, is now complaining that the Patent Office is being overwhelmed with really crappy patent applications. You think? Lerner and Jaffe pointed this out years ago and it's not difficult to see why. With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

When you set up a system that rewards people for not actually innovating in the market (but just speculating on paper), then of course, you're going to get more of that activity. When you set up a system that rewards those people to massive levels, well out of proportion with their contribution to any product, then of course you're going to get more of that activity. When you set up a system that gives people a full monopoly right that can be used to set up a toll booth on the natural path of innovation, then of course you're going to get more of that activity. When the cost of getting a patent is so much smaller than the potential payoff of suing others with it, then of course you're going to get more of that activity. The fact that Dudas is just noticing this now, while still pushing for changes that will make the problem worse is a real problem. Patents were only supposed to be used in special cases. The fact that they've become the norm, rather than the exception is a problem, and it doesn't seem like anyone is seriously looking into fixing that.

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Filed Under: bad patents, jon dudas, patent office, patents, uspto
Companies: uspto

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Steve R. (profile), 21 Apr 2008 @ 5:35am

Patents and Design Standards
Jim Harper over at the Technology Liberation Front wrote that Monster Cable sent Blue Jeans Cable a cease and desist order. Kurt Denke, president of Blue Jeans Cable, has written a response to that order. In that response, Kurt has raised what I feel is a significant short coming with patent law today. Basically, if someone designs a product to work/comply with an industry wide specification, such as a USB cable, asserting patent infringement is ridiculous?

(PS: I am working on the assumption that an industry wide specification is in the "public domain" and not being licensed. I would like to advocate that any industry wide specification should be in the public domain even if it isn't.)
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- ehrichweiss, 21 Apr 2008 @ 7:39am
  
  Re: Patents and Design Standards
  The thing with Monster Cable is, besides that they can be replaced with a set of wire clothes hangers soldered together(http://www.boingboing.net/2008/03/03/do-coat-hangers-soun.html), they will attempt to sue anyone who uses words that they feel infringes on their trademark.
  
  What their dumbass attorneys haven't put together yet is that trademarks only cover the industry you're working in. So I can have a "Monster" anything as long as I don't go into the audio field but they've sued(or at least attempted to sue) costume shops, the TV show "Monster Garage" and a gazillion other places where their trademark is NOT at risk of being diluted. I'm honestly surprised they didn't try to sue the band Monster Magnet, though if you saw the crowd they attract, you might not want that element showing up in your courtroom to be certain.
  
  To put them in their place, I propose that people print stickers that mention that they can be replaced with almost ANY wire and give the link to the Boing, Boing article, then place the stickers on every Monster package you can find in stores.
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- angry dude, 21 Apr 2008 @ 7:40am
  
  Re: Patents and Design Standards
  "I would like to advocate that any industry wide specification should be in the public domain even if it isn't"
  
  Interesting interpretation
  
  "industry wide specification" meaning that if the entire industry has stolen some patented idea then it should be free for all ?
  
  Like automotive industry stealing intermittent windshield wiper idea from a lone inventor and making it an industry standard ?
  Or tech industry stealing the idea of a 56K modem and making it an industry standard ?
  
  Do you think "industry" has moral right to steal work of others ?
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  - ehrichweiss, 21 Apr 2008 @ 4:37pm
    
    Re: Re: Patents and Design Standards
    Did you actually just make a comment without every other word being a profanity/insult?
    
    First PETA saying they want artificial meat and now Angry Dude isn't trolling in his usual ways...I MUST be in a parallel universe.
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  - ken, 9 May 2008 @ 8:53am
    
    Re: Re: Patents and Design Standards
    An industry wide standard is much different than a process, feature or product.
    
    the 56k modem is a standard, how it's done is a product and can be patented. If I were equipped for it, I could design and build a 56k modem, but I couldn't just grab one off the shelf and start reproducing it.
    
    Most patents are for industrial standard products that have a unique feature, you (in most cases) don't patent the concept of the product, you patent the improvements you have made to the product.
    
    In the case of the monster cables, you can't patent the idea of a cable, but if you made some seious improvements to the operation of the cable, as in designing a twist grip that snugged the ends to make better contact instead of the simple slide on ends they have now you could possibly patent it.
    
    Ken.
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- Mike (profile), 21 Apr 2008 @ 9:43am
  
  Re: Patents and Design Standards
  Jim Harper over at the Technology Liberation Front wrote that Monster Cable sent Blue Jeans Cable a cease and desist order. Kurt Denke, president of Blue Jeans Cable, has written a response to that order.
  
  Heh. Actually, we wrote about it a few days before Jim did... :)
  
  http://www.techdirt.com/articles/20080415/105027855.shtml
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Anonymous Coward, 21 Apr 2008 @ 5:46am

Examiner pressure
Another big part is the pressure on examiners. What it boils down to is they have to process one patent a day or get fired. Approving a patent means the problem is off their desk. Declining a patent is likely to mean more paperwork when the applicant complains or appeals. So why is anyone surprised when junk patents are approved.
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- Anon C O'Ward, 21 Apr 2008 @ 6:45am
  
  Re: Examiner pressure
  Myabe they should take a page from the insurance companies, and just categorically deny every patent the first few times.
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- Jim Health, 21 Apr 2008 @ 11:12am
  
  Re: Examiner pressure
  As someone who has firsthand experience, I've actually witnessed the opposite happening. While patent examiners need to get through an overly large amount of patents, (about one a day is right, maybe not quite that many) they are actually significantly more likely to reject the patent. As soon as they find one error (usually an example of prior art), they will reject it, so they look for that.
  
  If they want to accept the patent, this is a trickier situation, since they need to be sure they went through all the possible cases of prior art. It's a bit surprising just how few patents ever actually stand a chance, though it helped by the fact that (as Dudas says) they're decreasing in quality.
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  - Chip Venters, 21 Apr 2008 @ 12:23pm
    
    Re: Re: Examiner pressure
    As someone who has firsthand experience, I've actually witnessed the opposite happening. While patent examiners need to get through an overly large amount of patents, (about one a day is right, maybe not quite that many) they are actually significantly more likely to reject the patent. As soon as they find one error (usually an example of prior art), they will reject it, so they look for that.
    
    If they want to accept the patent, this is a trickier situation, since they need to be sure they went through all the possible cases of prior art. It's a bit surprising just how few patents ever actually stand a chance, though it helped by the fact that (as Dudas says) they're decreasing in quality.
    
    Agree....having been involved in the process since 1997, I have witnessed how hard it is to get a patent approved. The patent office puts you through a wringer before agreeing to claims.
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- dasein, 22 Apr 2008 @ 12:14pm
  
  Re: Examiner pressure
  Well, oh well! Lucky me,(typos apart) I got mine approved only after two years! Thats what patents are all about, a yes or a nay... we should learn the few tricks and march on. Patents are not(!) approved or rejected on their face, they certainly come in different sizes and amounts of claims included or otherwise, and even close to numberless numbers of claims, and are examined based on these. Paperwork, >:-|) isn't this the digimon-age? Maybe am on the wrong planet, yet greed does survive whimsy and the flesh
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- Anonymous Coward, 23 Apr 2008 @ 3:29am
  
  Re: Examiner pressure
  You are aboslutely right, understanding teh technology, searchingfor prior art beofre that date isnt a childs play. Then with so many embodiments and 100-200 page patents it is simply foolish to ask someone approve or reject a patent in a day's time
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- George Margolin, 28 Apr 2008 @ 10:49pm
  
  Re: Examiner pressure
  Though short -- examiners are NOT required to do a patent a day. They generally have about 19.5 HOURS. Which is still much too little but 2 and a half times better.
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- stv, 29 Apr 2008 @ 5:17am
  
  Re: Examiner pressure
  approve a pantent a day???...nonsense
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Overcast, 21 Apr 2008 @ 6:22am

Just another good example of a broken government system, really shouldn't be a surprise, but yet - for many - I'm sure it is.
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- Evil Mike, 21 Apr 2008 @ 7:18am
  
  Re:
  Yeah? I dare you to name a government system that isn't broken.
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the decider, 21 Apr 2008 @ 6:28am

PTO
wow, i almost got snookered by the headline. i actually thought you had spoken directly to the PTO guy. imagine that - real first-hand source material. silly me. LOL
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- SteveD, 21 Apr 2008 @ 6:34am
  
  Re: PTO
  Why would a discussion blog contain first-hand source material?
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- Joe, 21 Apr 2008 @ 9:51am
  
  Re: PTO
  Check out the link...if you read the article it's attached to they have the "PTO guy" quoted.
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ehrichweiss, 21 Apr 2008 @ 7:41am

cue....
angry dude and his profanity-laden, clueless rants in
3
2
1
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Blue Jean Cable Fan, 21 Apr 2008 @ 8:43am

Heh...

Blue Jean Cable to Monster:

Bring it, bitches...
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Rob, 21 Apr 2008 @ 9:47am

Monster Cable, among other things
Monster Cable is suing Blue Jean Cable on the basis of a design patent, which is different from a traditional patent. Design patents are more similar to trademarks or copyrights because design patents protect only the specific design of the product rather than the functional parts of it. For example, Fender has a specific design patent for each model of its guitars, even though they all do the same thing. So, Monster Cable is saying that Blue Jean Cable copied their design, not the functional parts of the cable. I think they're gonna lose anyway. The whole thing seems like a scare tactic to me.

"Myabe they should take a page from the insurance companies, and just categorically deny every patent the first few times." This is actually pretty much the norm. Very few patents are accepted right off the bat.

I agree that Jon Dudas would make the system worse, but is the system really that horrible to begin with? It's definitely not the best and improvements could be made. Patents may have been intended originally for exceptional cases, but interpretations and the times change. I think applying that concept to the world of today, with the extremely diverse and specialized scientific fields that we currently have, would be worse than the current system we have. Nor can you stop people from filing patent applications, no matter how bad they might be. So, if we are truly issuing vast numbers of bad patents, as everyone seems to think, the question is what do we replace our current system with to fix the problem? I haven't got any better ideas.
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Geek, 21 Apr 2008 @ 10:07am

Great Name
Jon Dudas

Dudas in espanol significa "doubt".
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Max Powers, 21 Apr 2008 @ 10:16am

Patent Office
It seems to me greenlighting every patent that comes across the desk is the real problem.
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Anthony Kuhn, 21 Apr 2008 @ 2:30pm

A new image...
Maybe this piece should have been accompanied by a political-style cartoon of a Dudas-ostrich with its head buried in the sands of pendant patents? That would have been rich, indeed. I linked to you piece in my blog entry today, Mike, so I hope some of my readers com your way to read the entire piece for themselves at TechDirt.com.
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Rob, 21 Apr 2008 @ 3:02pm

It's simple: The Patent Office does not reward Examiners for quality work. An Examiner gets about 4-8 hours to complete the entire examination process; it's not enough. Instead, they do the best they can in limited time, and Dudas pretends that it is a class of applicants that are the problem. This is false.

I was a U.S. Patent Examiner in the late 1990s, and since then went into private practice as a Patent Agent.

It’s remarkable to me that someone who is supposedly intelligent, Dudas, can’t recognize the basic problem with the entire Office: Examiners are not rewarded for doing quality work. Instead, they get a few hours to do an extremely complicated job and are yelled at when it isn’t "good enough" or when they don’t work every weekend to make everything perfect.

Will and do some applicants abuse such a system? Sure. But blaming a small number of applicants for the problems of the Office is disingenuous at best, and intentionally misleading from the actual problems at worst.

Good quality examination will eliminate bad quality patents. Good quality examination will not happen by placing artificial restrictions on the front end of the process (limiting the number of claims, or RCEs or continuations). It will only punish prolific applicants.

If you want to get rid of "bad" applications, change the way examination is done, particularly the way Examiners are rewarded for their work. If you keep the system that was there when I was there in the late 1990s (which was also there decades before I arrived), nothing will change.

It's a difficult problem to fix, but no one wants to take it head on. Instead Dudas makes dumb comments that are off subject, misinterpreted by anti-patent types and changing the subject from the real problems at the Office.
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Patent Hawk, 22 Apr 2008 @ 11:53am

garbage
This little op-ed piece is ignorant tripe, none of it having any factual basis. Nothing but fantasy based on rumor and imagination. Pathetic, really.
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- Mike (profile), 22 Apr 2008 @ 12:06pm
  
  Re: garbage
  This little op-ed piece is ignorant tripe, none of it having any factual basis. Nothing but fantasy based on rumor and imagination. Pathetic, really.
  
  Hi Patent Hawk. Here in the real world, when we disagree with something, we actually make an "argument." It's called explaining why something is incorrect and presenting counter evidence.
  
  I've noticed a pattern when I talk about patents. Most (though, certainly not all) of the folks who disagree with me simply stop by and toss insults and never present a shred of evidence to support their position.
  
  It suggests to me that I'm clearly on the right track.
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  - angry dude, 22 Apr 2008 @ 1:08pm
    
    Re: Re: garbage
    Hm..
    When I see a punk pissing on my property I get very angry and do not waste any time making polite arguments..
    (Gladly I do not have any punks walking around in the area where I live)
    
    Some people get very angry when they see techdirt punks pissing on a 200-year old US Patent System
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    - Mike (profile), 22 Apr 2008 @ 2:04pm
      
      Re: Re: Re: garbage
      That would come off as a lot more credible if we were actually "pissing" on something, rather than raising detailed arguments, backed up by examples and research.
      
      So... want to try again?
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      - angry dude, 22 Apr 2008 @ 2:11pm
        
        Re: Re: Re: Re: garbage
        It's a pissing match, dude, trying to engage in "raising detailed arguments, backed up by examples and research" Mike's style
        
        Try to engage somebody else - I just don't have enough patience for this type of activity
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        DanC, 22 Apr 2008 @ 3:51pm
        
        Re: Re: Re: Re: Re: garbage
        Try to engage somebody else - I just don't have enough patience for this type of activity
        
        Angry Dude doesn't have the patience to engage in intelligent discussion. Anyone else not surprised?
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        Anonymous Coward, 11 May 2011 @ 3:16am
        
        Re: Re: Re: Re: Re: garbage
        You must be confused. If Masnick brings up an outlier to an otherwise well functioning system, it negates everything else that has ever occurred.
        
        I know trying to keep up with a gigantic asshat like Mike Masnick is difficult, but we all have to try.
        
        Oh wait, no we don't.
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Anthony Kuhn, 22 Apr 2008 @ 12:01pm

Correction to my blog post
Mike:

I'm not sure if you'll get notification that I corrected my blog post yesterday that incorrectly referenced TechCrunch.com instead of Techdirt.com. My sincerest apologies for the mistake and thank you for bringing it to my attention. The piece has been updated/edited to reflect reality more closely!

Best wishes,

Anthony Kuhn
Innovators Network

PS Patent Hawk seems to have NOT taken a liking to this piece at all...
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George Margolin, 28 Apr 2008 @ 10:54pm

Mike Masnick seems to be a Masnick Depressive
Mr. Masnick snidely attempts to pretend he does NOT know what the American Patent System is all about. He sounds like he is regurgitaing the doublespeak of the Goliath Gargantuan corporations -- like those humorously named "Patent Fairness" folks. Who neither believe in patents nor inventions nor America's world leadership in technology.

Rather than going through each of his mistaken comments -- Please check out my Blog -- www.inventorsblog.org. In it you will learn why there are NO BAD PATENTS! American patents are like grist for the mill of technological improvement. So Mr. Masnick is writing about a FICTION of what the American Patent System is all about.

It is about TEACHING and building upon. The Senate Bill S.1145 is designed to DESTROY AMERICAN TECHNOLOGY AND BECAUSE OF THIS -- AMERICA WITH IT. Why? -- Because the Microsofts and Ciscos think they own the turf and don't want any Upstart Startups to DISPLACE and SUPERSEDE them as they replaced the previous dinosaurs before them.

Ralph Waldo Emerson said it best -- "INVENTION BREEDS INVENTION" as Patents Breed Patents -- because THAT IS WHAT THEY WERE DESIGNED TO DO AND THAT'S WHY Article 1 Section 8 is IN the American Constitution. And boy -- did it WORK!!!
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- Mike (profile), 29 Apr 2008 @ 1:12am
  
  Re: Mike Masnick seems to be a Masnick Depressive
  Hi George,
  
  You might try reading a bit before you attack me. You suggest that I'm in favor of S.1145 when I have come out against it. You suggest that I'm parroting the comments of big companies, when I have actively opposed the claims of big companies such as IBM and Microsoft on patents.
  
  Has it occurred to you that, perhaps, someone can disagree with you without being in the pay of big companies?
  
  As for the claim that there are no bad patents, I'm sorry, but that's beyond ridiculous. You lose all credibility with such a statement. The very fact that the USPTO ends up correcting the vast majority of patents it's asked to re-examine is pretty strong evidence that the patent system makes a lot of mistakes.
  
  As for your claims about the patent system, it seems clear that you have never looked at the economic research on the matter.
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stv, 29 Apr 2008 @ 5:16am

Patent Boss Admits That The Patent Office Keeps Getting Flooded By More And More Bad Patents
Guess what. If someone holds the patent (“piece of paper”), they were “actually innovating in the market”. Duh! Figure it out.

As to the quality of patents; based on court rulings of the last several years, roughly half of all litigated patents are upheld in court. That's pretty balanced and suggests there is no problem with patent quality. Further, seldom do cases ever make it to trial as the parties settle out of court. The facts do not support the contention that there is a patent quality issue. Still, with almost half a million patent applications filed each year a few are bound to be issued that shouldn't. However, rarely are they ever an issue because you can't enforce them without money and you wont get the money unless you have a good patent. Keep in mind it costs the patent holder at least as much in a patent suit as it does the accused infringer. Sometimes it costs more because infringers will band together and share costs. Investors are not stupid. If they don't have confidence in your patent, they will not invest. It's that simple. Bad patents do not get funded.

Sadly, some legislators and other parties have been duped by a few slick technology stealing firms and their well greased lawyers, lobbyists (some disguised as trade or public interest groups), and stealth PR firms (some masquerading as journalists). Don't be surprised to find the Washington lobbyist scandal spreading into the patent deform proceedings. These companies are simply buying legislation.
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- Mike (profile), 29 Apr 2008 @ 11:08am
  
  Re: Patent Boss Admits That The Patent Office Keeps Getting Flooded By More And More Bad Patents
  Guess what. If someone holds the patent (“piece of paper”), they were “actually innovating in the market”. Duh! Figure it out.
  
  Um, actually, no. They're not. Innovating in the market means bringing a product to market that people actually want. Getting a patent has nothing to do with that.
  
  As to the quality of patents; based on court rulings of the last several years, roughly half of all litigated patents are upheld in court.
  
  You think that's a GOOD thing? I already pointed out that over 70% of re-exam patents are changes. And 50% in court are invalidated as well? That's a HUGE %. That suggests massive problems with the patent system if so many patents are later overturned or limited.
  
  The facts do not support the contention that there is a patent quality issue.
  
  Other than the fact that they do. But, you know...
  
  However, rarely are they ever an issue because you can't enforce them without money and you wont get the money unless you have a good patent.
  
  Um. Not at all so. The amount of money funnelling into bad patents is legendary at this point.
  
  Bad patents do not get funded.
  
  *cough* NTP *cough* *cough* GPH *cough* Sorry. Bad patents get funded all the time.
  
  Why? Because investors know that even with a bad patent you can get a bunch of companies to settle. It's cheaper to settle than to fight the patent in most cases.
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Stephan Kinsella (profile), 20 Aug 2008 @ 9:58pm

Here's how to find PDF files of patents
Several places -- e.g. www.Pat2PDF.org. But you can find the PDF of it at PatentFizz.com too. And the cool thing is PatentFizz lets you leave comments, prior art, etc. Note one of the derisive comments on Hawk's blog, which concerns this patent's parent patent:
How about the PARENT patent? #7,036,087 that issued on 04/25/2006. Why didn't you try to assert this one against micro$oft or others? Or did you? Or was it already invalidated? :) For the record, here are the issued claims from the parent patent #7,036,087. 1. Software from at least one computer-readable medium automatically rearranging at least one tool based upon relative usage frequency of tools within a toolbar group. 2. Software according to claim 1 preventing at least one tool from being rearranged. 3. Software from at least one computer-readable medium automatically rearranging at least one group of a tools on a toolbar based upon aggregate usage frequency of tools within a tool group compared to another group. 4. Software according to claim 3 preventing at least one group from being rearranged.
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OpenSource4OpenMarkets, 4 Mar 2010 @ 10:03am

Patents That Should Not Have Been Issued
Another in a long list of bad patents is Fatpipe Networks 7,269,143 patent. This patent does not appear to have any validity as it was poorly constructed, in fact we do not see how the patent office was even able to issue this patent.

Take a look for yourself and see if you can understand how one would change the physical address within a "packet". Not possible, at least not within the normal standards of networking.

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=% 2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=2&f=G&l=50&d=PTXT&S1=Fatpipe&OS=Fatpipe& amp;RS=Fatpipe

Anyone who bought a Fatpipe might want to check into this...
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JD Roberts, 28 Nov 2011 @ 2:45pm

Software Patents
OK, you've gotten me started on software patents and the like but I'll try to be brief.

Allowing software patents has been a disaster from a small-business perspective. I'm a computer engineer and entrepreneur, and I no longer even consider starting a business based on a software product. Just about any non-trivial piece will infringe on a patent someone has been issued, despite tons of prior art. For example, using the logical exclusive-or (XOR) logical function for graphics displayed. You could read about in half a dozen computer-hobbyist magazines in the late 1970s, yet a pattent was granded roughly a decade later. And forget prior-art; XOR is a mathematical function!

Grrrr,
JD
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