Could You Save Software Patents With A Special Team Of 'Obviousness' Developers?
from the that's-one-idea dept
In the past when discussing different ways to potentially improve the patent system, I've pointed out that one of the key points in determining whether or not something is patent worthy is supposedly whether or not the invention would be "non-obvious" to a "person having ordinary skill in the art." And, yet, at no point in the patent review process does the average examiner -- who quite often does not have ordinary skill in the art -- ever go out and ask those who do. That always troubled me. So, I thought one (of quite a few) useful improvements to the system would be to let patent examiners call on certain folks who work in various fields. Now, this wouldn't be to have that person give a total thumbs up or thumbs down on the patent. That would still be reserved for the examiner. But, at least hear some knowledgeable people out on whether or not the idea is obvious.Stephen Burch has sent over a blog post he did with possible ways to improve the quality and utility of software patents, which has a similar, but slightly different take, that could conceivably be more effective. It would involve seeing if skilled programmers, given the general problem, could explain a similar method of solving the problem:
The patent office should create a pool of programmers and keep a database of their related skills. When a software patent is submitted, the patent office searches the database for programmers with skills in those related areas, then selects three to five programmers to perform the blind study. The study would involve giving the selected programmers the problem that the patent seeks to solve and some amount of time (24-48 hours or varying based on complexity) to outline or pseudo-code a solution. If none of the selected programmers are able to determine the solution described in the patent, then the non-obvious prong of the patent would be met. This would prevent patents that do obvious things with new technologies from being granted.This might be worth an experiment, but I wonder how well it would work in practice. It would seem like a big commitment on the part of participating software developers who (one assumes) already have jobs. In some sense, it goes back to the problem of software patents simply not scaling. Still, it seemed like an idea worth tossing out there for discussion.
Take Apple for example. Apple creates some new technology, say a touch-screen smart phone, that is rightfully protected by patents. Then it goes on to patent the software that interfaces with this technology. The problem with these second patents is that they are obvious. Apple has basically patented doing something with a finger on a touch-screen that people have been doing for years with a mouse on standard computers. I don't believe that just because the technology is patentable, various ways of interfacing with that technology are de facto patentable. A proposed blind study approach, using programmers willing to work for free just to ensure the quality of software patents, would prevent such obvious patents from being granted.
By the way, that post is actually the fourth in a series of posts that Stephen wrote on software patents. The first three seemed more like background posts, but if you want to see them, there's an introductory post followed by a post on the effect of software patents on innovation and another post on that same subject, all leading up to his suggestions for potentially saving some forms of software patents. It's also worth noting that the suggestion above is not his only suggestion. He also combines it with a shorter duration for software patents. As I said, I'm not convinced it would work, but it's a different sort of idea that seemed worth discussing.
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Filed Under: obviousness, patents, software
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How exact are we talking?
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Re: How exact are we talking?
"If they use two completely different approaches", but neither of them is the proposed patent, then grant it.
"If they use two completely different approaches", and at least one of them is the proposed patent, consider NOT granting it.
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Flawed but in the right direction.
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Re: Flawed but in the right direction.
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Re: Re: Flawed but in the right direction.
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Re:
Copyrights last no more than 7 years and in the case of software, no more than 5 years. Must be opt in and you to submit your opt in within 90 days to some entity that posts identification information on copyright materials on the Internet along with their expiration date. Even expired copyrights should be listed with their expiration date so people can know they have expired.
Make a system where patents have to be proven to be non obvious and have no prior art beyond a reasonable doubt. On top of that, the people get to elect 6 patent examiners and require that at least a 2/3 majority claim that the patent is non obvious and contains no prior art. Each decision must be given at least two weeks to make where the patent is published on a website and the public can freely comment (no censorship of ideas), though the patent politicians can examine more than one patent in a two week period (ie: there can be listed ten patents for the public to comment on at once). The public can comment on prior art and obviousness. Re - Elections of patent politicians occur every two years, each patent politician gets a four year term before being subject to re - election (so on each election half of the politicians have to run for re - election) but a patent politician can be re - elected as many times as the people choose to elect him/her.
Even then, the patent office can always revoke a patent, even the newly elected officials can revoke a patent. and a patent can still be overturned by a court with a simple majority ruling.
All patents must be listed on a government website for everyone to see along with their expiration date. Even expired patents must also be listed along with their expiration date so people can know these patents have expired.
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Re: Re:
Above that reads
"Must be opt in and you to submit your opt in within 90 days ..."
Should read
"Must be opt in and you must submit your opt in request within 90 days ..."
Also, the patent politicians get to vote on the patent length. The default length, in the case of patent length disagreement, is five years, but the longest length of a patent can not exceed seven years. A 2/3 majority is needed for a patent length to be above five years with the length favoring the shortest time above five years. For example, if 1/3 favors a six year patent length and another 1/3 favors a 7 year patent length, six years it is. A simple majority vote (in the case of six patent politicians a majority vote is also a 2/3 majority) can make a patent length under five years.
So basically my idea in making a reasonable patent system just involves increasing the consensus factor required for a patent to be approved (ie: require a more definite consensus).
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Weighted interests
Aaaand we're right back where we started. Only now they can claim that someone with 'ordinary skill' got a chance to review it.
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May Not Be Perfect
As to the time/cost problems, I think people would work for free, but if they don't the patent office should pay for a pool of people. If they are going to grant patents, they should put the burden on other inventors of proving that the patent is invalid after the fact.
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Re: May Not Be Perfect
Which they currently do (see EFF,) but after the fact. I'm in favor of anything that puts the brakes on the current "grant it, let the courts figure it out" mentality of the USPTO.
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Re: May Not Be Perfect
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Re: May Not Be Perfect
The vibrant open source community is a prime example of this.
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I dont think so
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Re: I dont think so
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Re: Re: I dont think so
How about a real, non-obvious novel? I mean, shouldn't all authors have their work protected? Giving special protection to some authors (software) but not others (plot) doesn't seem fair.
Complex software that takes teams of engineers weeks or months to design should have patent protection.
But software by individuals shouldn't? How do you justify that? And are you also saying that faster programmers should get less protection that slower ones who take "weeks or months" to do the same job? I find your reasoning to be highly questionable but common amongst patent supporters.
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Re: Re: Re: I dont think so
> all authors have their work protected? Giving special
> protection to some authors (software) but not others
> (plot) doesn't seem fair.
Yes. It is VERY unfair to give special protections to some authors just because they were willing to abuse the patent system. They shouldn't get to deprive me personally of the ability to benefit from my own intellect. This isn't just some theoretical hypothetical for some of us.
In general, people should not be allowed to use the courts and badly constructed laws to steal from the rest of us.
Software patents in their current form are a Constitutional abomination.
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Re: Re: Re: Re: I dont think so
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Re: Re: I dont think so
yyyeah, can you give me just a little summary on what you think a 20 year monopoly that took engineers weeks to come up with might look like? I mean, look I get it, your a lawyer first a developer second. However, any protections afforded by law, to abstract ideas, without tangible substance is absolutely inconceivable. The argument that no one would invest in (sigh) "software research" is ... well be honest with yourself and stop making such silly claims. These teams work on software to build a product to take to market. They do not invest in R&D for innovations sake... just eck, what a lousy argument.
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Re: Re: I dont think so
What about years?
Software is a written work.
Whether it takes me 10 years to write a complex book does not mean the state should give me a monopoly on the ides I have expressed inside.
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As a software developer, I can assure you that this is not the case. The problem with software patents is that they are both too easy and too hard to get. Too easy in the sense that Amazon can patent one click shopping, but too hard in the sense that it takes $100,000 and a patent attorney to get one if you have a real, patentable idea. You, the developer, end up spending half your time with the patent lawyer instead of developing software. The company ends up paying you for filling out paperwork instead of writing code and also has to pay the patent lawyer you're working with. It's a gigantic waste of resources.
Not only that, consider who can use patents:
Large companies can't use them against each other because it's mutually assured destruction, so they just cross-license and cancel each other out (but still have to pay a bunch of patent lawyers and waste half their software developers' time).
Large companies can't license them to small companies because small companies don't have any money, although they can use them to threaten small companies into selling out or drive them out of business. Of course, the latter can't exactly be held out as a feature.
Small companies who actually make their own software can't use them against large companies because the large company will just find several of its thousands of patents that the small company is unknowingly infringing and the small company is defeated.
Small companies who don't actually make anything, that is to say patent trolls, can sue large companies who are unknowingly infringing a patent the troll owns, but I don't think that's the sort of thing we want to be encouraging either.
So to recap: Software patents are only useful to patent trolls and to large developers for the purpose of defeating smaller competitors in the courts instead of the marketplace. Their primary advocates are patent lawyers who don't want to lose billable hours, not the software developers they allegedly protect, who generally oppose them.
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Re:
And that's a problem, how?
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Re: Re:
http://www.swapmeetdave.com/Humor/Lawyerherds.jpg
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But one approach would be to allow independent invention as prima facie proof of obviousness in an infringement case, leading to the patent being thrown out.
Despite some patent trolls' constant talk of "theft," it quite obviously isn't theft of any kind, not even the bogus copyright piracy kind, if there's no copying.
After all, in copyright, independent authorship actually is a complete defense. So you can go ahead and copyright a short phrase all you want; if I duplicate it independently you're SOL.
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You wouldn't actually invalidate any real patents for obviousness, but you could work the bugs out of the system. Some obvious questions: do the developers have to come up with each and every claim? Each and every claim element? If they don't, should you permit some form of equivalence to stand in? What standard of equivalence would you use? The Doctrine of Equivalents? How would you apply it? How do you provide enough specificity about the the problem without giving away the solution?
Of course, this would require someone to invest actual time, money, and effort (far more than just fobbing off a paragraph in a blog post), so it's unlikely it'll ever happen.
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and the winner of this thread is
only one of you that made any real true sense.
NO TO SOFTWARE PATENTS
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Did Mike Blink?
No software patents.
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This is *almost* workable.
I would happily join a general e-mail list where potential patent "ideas" are thrown against the public. If in 24-48 hours no one can answer the question (and it has to be specific, not general like most patents anymore), "maybe" it deserves a patent. But, to limit this to some select few does little good, programmers are unfortunately very often one shot stars, they know/understand things as they currently are and refuse to move forward and adapt.
We call these folks dinosaurs and hopefully they move into management where they can't get in the way anymore for those actually moving forward with the technology. So, if a "select group" is made, even unpaid, you have a massive potential issue of the "select" group being part of the crowd that is good at a point in time but doesn't move forward and much like a patent examiner, won't understand the new concepts in programming which happen every day.
If this were to be a valid system, I would say that every "fresh out of school" programmer would have to be part of it. I.e. say for instance if they go to a game industry, the patent office would require all new IGDA members to serve for a year on the "obvious or not" list. Add all the other variations to the list and you have a large pool of programmers to choose from for any given areas. Yeah, it's like a draft, but it's for everyones benefit to do it. The interresting thing is that I personally would count the work someone does on such a list as a benefit to hiring them, those that never contribute are more likely the "one shot stars" that yeah, good but for limited duration.
One shot stars have been covered here many times. One comes to mind though, anything with the word Edge in it for instance. Made a game, made some money, went management and hasn't done a damn useful thing since then except be a bane on all game developers. This is all too common unfortunately.
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Obvious "after" you've seen it done.
And it's the method of achieving something that is patented, not the physical invention.
Quite often things look 'obvious' when you are familiar with them. You see a mouse trap and you know exactly what it is, and it's function is obvious to you.
But it you saw a mounse trap for the first time, and did not know it's proposed function, it would and could not appear obvious. Once you are informed of it's function and why the various components are arrainged in such a manner it's function becomes 'obvious'. But not before.
A mouse trap, has much prior art as well, the person who invented the mousetrap probably did not invent wire, or springs, and probably did not patent the individual components of the mouse trap. (lodge a patent application of a cheese bait holding mechanism, wooden baseboard, wire loop, spring and trigger wire.
Just as software writers use components to make things practical, they dont or rarly need to invent every component of a system from first principles.
And if you say 'all software is math' and you cant patent algorithms, that implies that every software algorithm can be derived (invented) by mathematical reduction techniques. Which is not the case as ANY real software developer will attest, it's just not possible. Or it would be routinely done instead of writing code.
Finally, what's the problem with patents anyway, can anyone please give actual REAL examples, with details of how software patents have hindered innovation.
It appears that quite the opposite is true, software patents ensures continual development and improvement.
If you think patenting the steam engine somehow stoped the development of the electric engine, or the deisel/petrol/biofule engine. Or the rocket engine.
Or that patents on MPEG ment you could not develop alternative and possibly better encoding methods.
SO patents do not stop innovation, it's the law, so you have to put up with it anyway. And it appears clear software patents do not stiffle innovation.
Then you have to ask yourself why you want reform on software patents ?
Is it to allow you to use someone elses idea's for you're own profit and gain? Or is it just that you want to use what you like when you like and disregard the effort and engineering required to develop it.
Or do you just want a free ride, and take the easy way of stealing someone elses idea, as it's clearly easier than thinking for yourself.
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Re: Obvious "after" you've seen it done.
You've been commenting a bit here recently, and I get the feeling you are new to these issues.
Being "obvious" makes no difference
Makes all the difference in the world considering *by law* a patent must be no-obvious.
all the patent claiment has to do is say. Well ofcourse it's obvious once you've seen it done.
Did you even read the post? We already got past that point. In scenario (1) a patent examiner would still be in charge of ascertaining from the expert why it was obvious and then make a judgment call if it really was. In scenario (2) the people wouldn't see the patent at all, but would simply be asked to outline how one would attack the general problem. So your complaint does not apply.
And if you say 'all software is math' and you cant patent algorithms, that implies that every software algorithm can be derived (invented) by mathematical reduction techniques. Which is not the case as ANY real software developer will attest, it's just not possible. Or it would be routinely done instead of writing code.
I suggest you read: http://books.google.com/books?id=PQnCl7fKf-4C&dq=math+you+can't+use&printsec=frontcover& source=bn&hl=en&ei=2sm6S_rMIIzU7AP7vdHYBQ&sa=X&oi=book_result&ct=result&resn um=4&ved=0CBoQ6AEwAw#v=onepage&q=math%20you%20can't%20use&f=false
Finally, what's the problem with patents anyway, can anyone please give actual REAL examples, with details of how software patents have hindered innovation.
Where to start? Research from Bessen & Meurer, Boldrin & Levine, Moser, Schiff, Lerner, Qian, Aghion, Maskin, Bossaerts, Hall & Jones, Park & Ginarte and Bessen & Hunt have all analyzed the impact on innovation from patents... and found there to be lacking. Must we break out all the old studies again?
As for specifics on software patents, have you not noticed the number of ridiculous lawsuits being filed? The ones we write about every day? Those lawsuits are incredibly costly, and divert money from real innovation elsewhere.
It appears that quite the opposite is true, software patents ensures continual development and improvement.
This is blatantly false. In the early days of the software industry there were no patents on software, and the industry thrived. It did so via competition. It is competition that drives innovation, not patents. Patents hold back the pace of innovation by denying certain paths of innovation.
If you think patenting the steam engine somehow stoped the development of the electric engine, or the deisel/petrol/biofule engine. Or the rocket engine.
No one said that it *stopped* innovation, but slowed down the pace. And with the steam engine, there's a fair bit of evidence that Watt's patents did, in fact, delay the introduction of a successful steam engine.
Or that patents on MPEG ment you could not develop alternative and possibly better encoding methods.
No one said you couldn't do that. Stop putting forth strawman. It suggests you are not familiar with what actually happens. The issue is whether real innovation happens in discrete bursts or is usually a process of building and improving on the works of others. Numerous studies have shown that it is the latter. The problem is that patents assume it's the former.
SO patents do not stop innovation, it's the law, so you have to put up with it anyway. And it appears clear software patents do not stiffle innovation.
I'm sorry. This is just wrong and ignorant. Please look at Bessen and Meurer's work.
Then you have to ask yourself why you want reform on software patents ?
Because they stifle innovation. Arguing otherwise, without any proof against all the evidence, suggests massive ignorance.
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Re: Obvious "after" you've seen it done.
I'll tell you why: It's because there is no independent invention exception. That is the whole, entire problem with software patents. It's that someone can patent something, wait until somebody who has never heard of them or their patent or products comes along and produces the same thing, and then sue them.
So you want to keep software patents? Fine. Add an independent invention exception and put the burden of proof on the plaintiff to show that it wasn't an independent invention. Do that and no one will complain about software patents anymore.
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Re: Obvious "after" you've seen it done.
That's demonstrably false. I'm not even go to bother with the rest of your comment.
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Re: Obvious "after" you've seen it done.
I am a real software developer, and I can attest that it *IS* possible. Always. At best, it's just not obvious how it would be done to many people, but every computer algorithm is, at its core, nothing more than a predefined sequence of mathematical operations.
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Re: Obvious "after" you've seen it done.
Alas Alan Turing you lived in vain....
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Competency
Maybe part of the problem then is that the average examiner *isn't competent* to assess obviousness from the point of view of one skilled in the art. No wonder they ignore that factor: they couldn't assess it if they wanted to!
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Bilski
Will the SC rule on software patents? Hopefully.
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F!@#$% punks
Write it on your forehead: SOFTWARE = HARDWARE
and shut up
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Re: F!@#$% punks
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Re: F!@#$% punks
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Re: F!@#$% punks
not
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Actually...
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Software patents
Sedond, the USPTO is hamstrung by special interests (who have bought most of the members of Congress), but they are trying: they are moving toward publication of an application before allowance, and if anyone cares, they can object to the application being granted.
The problem is that publication is new in the US, and too many people just don't care (until it bites them).
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Re: Software patents
WOWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWW !!!!!!!!!!!!!
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Re:
I boggles my mind that patent examiners are allowed to pass judgment on patents in fields in which they have no expertise. No wonder there are so many bogus patents.
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And all the 'evidance' you are able to provide are selective studies. Where are all the examples, SPECIFIC examples where software patents stifle innovation.
Sure, it's nice to talk the big talk, but no one has been able to cite even one clear example, stating specifically how patents have stopped innovation.
The reason for this silence is clear, you cannot think of any. If you could you would be the first to state the specifics.
Sure, quoting bernstein and woodward or whoever makes you sound good (to some). But where are the facts and specifics.
Until you back you're claims by actual facts and case studies then all you are doing is presenting you're own strawmen.
Again, you might convince some with this, but not most who care to do their own studies and research.
As for 'turning', when was the last time someone wrote an algorithm using 'turning math' for the analysis ? like never.
And I too am a software/hardware engineer.
And yes, there is no differentiation between software and hardware.
Software is little more than a specific continuous configuration of switches. The transistor switches insidethe computer.
What is innovative is not the swith, but the combination of system configurations that acheive a particular result.
Do you honestly think the guy who invented the nuclear power plant turned up at the patent office with a peice of paper with e=mc2 on it?
Ofcourse not, he would have provided a great deal of specific plans and documentation that describes the operation of the power plant, (the plans would also be copyright).
While were at it someone providing the turning analysis equations for "helloworld" algorithm in C code?
Thats right, it does not happen. As every programmer fully well knows.
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[I may post more later, but, if not, see comment here http://www.techdirt.com/articles/20100402/0042408845.shtml for suggested improvements to patent law to make it less stifling and more fair to all innovators.]
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