Did Jim Henson Infringe on a Recently Approved Patent?
from the or-is-it-prior-art dept
Recently on Techdirt, we highlighted a number of ways the US patent system could be fixed. One of the proposals on the list was allowing for input from those who are skilled in the art behind a patent application. Under this system, a person or company working within the industry surrounding a patent application could review it and submit their reasoning behind whether the proposal is obvious and not patentable or original and patentable. This public input would help patent examiners decide on the final patent-ability of an application.As an example of why such a public input segment would be beneficial, we have a recent patent, found by io9.com, for "A costume suit modeled after a large size animal"(PDF) This patent, which was submitted by Japanese company ON-ART, which specializes in airbrush painting of large balloons, was approved on August 16, 2011. This patent has a total of twelve claims all having to do with the mechanics of the suit, which allows for the operator to create the realistic movements of the animal he portrays.
Here is a video of the suit in action.
So how does this support the need of public input into the patent system? For this, I submit the 1986 Jim Henson movie, Labyrinth. This movie stars a character by the name of Ludo, a large, hairy monster who is gentle at heart and friends with rocks of all sizes. Ludo was created by the Jim Henson team and allows for a person to sit inside the suit, and to move his head, neck and mouth as well as his arms and legs.
Below is a portion of the Labyrinth production video featuring the creation of Ludo.
Had public input been allowed, Disney, which owns Jim Henson Productions, would have been able to submit their prior art and this patent would have been either resubmitted with a more narrow focus or rejected outright. Unfortunately, the final patent-ability of this costume will not be determined until a costly legal battle takes place.
I may be a lay person when it comes to costumes modeled after large animals, but I find nothing unique or original about the patented dinosaur costume when compared to the 25 year-old prior art of Ludo. The only explanation I can think of is the that patent examiner really was not familiar with costumes and relied too heavily on the patent applicant to do the search for prior art. To wit, the applicant informed the US Patent Office, "a full-scale costume of a large size animal that is able to make a realistic movement has not been disclosed."
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Great...
It sickens me that true innovators like Henson don't bother patenting their designs, while late adopters go for the patent.
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Re: Great...
Maybe if prior art held more weight patents could actually protect innovators, but right now patents are just convenient excuses for trolls' lawsuits.
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Just file it now
For the actual law see 35 USC 301 and 37 CFR 1.501 and 1.502. Fees are 37 CFR 1.20(c)(1).
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Re: Just file it now
Geez, that's a responsible attitude. I wonder how you would feel if a doctor was allowed the same level of freedom.
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Re: Re: Just file it now
Well, dont worry, just get in the line for a new kidney and you'll be right as rain. Waiting times are down to less than 3 years!
And dont worry about the costs, we will give you a discount price of only $250.
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Re: Re: Re: Just file it now
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Re: Re: Re: Re: Just file it now
Yes. If doctors were screwing up the medical system as badly as patent examiners (and courts) screw up the patent system, then hell yes.
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Re: Re: Just file it now
Unlike a lot on this site, I think there is a place where patents are necessary, but I also don't think bad patents are good for anyone. As for the Dr example, I'm not sure how you preemptively fix malpractice(I think that's what you're going for), unless you're for having a bureaucrat stand over a Dr during every procedure just to make sure they don't "screw up."
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Re: Re: Re: Just file it now
I don't care about those patents.
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Re: Re: Re: Re: Re: Just file it now
Pretty much every recent patent that has been pointed out highlighting how screwed up the patent system seems to leave that part out.
Can you please point out the "how to make it" part of the patent in this story? I looked and can't find anything that is even remotely close to describing that so someone knowledgeable would be able to accomplish it.
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Thanks for proving the point. The patent describes in very general terms making puppets - which has been done for for decades, centuries, and maybe millennia. What is the invention deserving of patent protection, and where are the specific instructions on making it?
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Re: Re: Re: Re: Re: Re: Re: Re: Just file it now
Someone noted levers, springs, etc. are ubiquitous. So what?
Backpacks (frame packs) have also been around a long time. So what?
What the patent applicants claimed was not each of them individually, but a combination of them and other elements that he believed met all requirements for the issuance of a patent.
Based upon the file wrapper history, it appears the examiner agreed and passed the case to issue.
I find it somewhat interesting that many people rail against patents on the basis that the technology is beyond the grasp of examiners, and thus what issues are almost invariably "bad" patents.
Here we have a situation where the technology is hardly difficult to grasp, and yet once again the refrain "bad" patent emerges. Why? "Well, its obvious!" Why? "Well, look what Jim Henson did years ago!" What did Jim Henson do? "Well, he did something that looks to be almost the same, so it stands to reason that the invention described in the patent and what Henson did are almost certainly one in the same!" Can you point to the structural features comprising the design of what Henson did? "No, but common sense tells me what the guys in Japan did is nothing new!".
Just saying something is so does not make it so. You need to proffer evidence, and at this time such evidence is sorely lacking.
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Re: Re: Re: Just file it now
OK, that didn't happen to me, but it has happened to a lot of people. This is what I mean that the patents -- by definition -- block and hinder progress. The whole system needs to be scrapped.
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Re: Re: Re: Re: Just file it now
Honestly, it's a judgement call. You lose some of the open source problem solving by going to a patent system, but you allow someone to have that monopoly incentive if they put the capital in to mass produce something. For certain industries, it's a horrible idea(see programming), for some I think it's necessary (seriously, what company would front the money for efficacy trials for drugs without promise of the monopoly return, especially when competitors could free ride).
When someone finds a system that allows open sharing of knowledge without the leaching of profits by free riders, I'll buy in. As of now, I haven't heard of much of anything that would solve that, so Patents are the best we have and I'll live with some of the pitfalls. Unlike you, I don't think it's that horrible or detrimental to research and innovation.
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Re: Just file it now
If a patent application is truly innovative, then the lack of strong objections would be enough to allow it through. However, if a bad patent gets a lot of prior art submitted during the application patent, it can be revised or rejected before causing any damage to the overall economic landscape.
The goal of the patent process should be to reward truly innovative inventors.
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Re: Re: Just file it now
Your post here shows good enough reason why we wouldn't waste our time listening to the lamentations of people who don't even understand what is going on in the case. People would just submit prior art, without even bothering to understand the claim they're fighting so hard against.
We had a program called peer to patent or something where we tried out your "prevent patents from issuing before they issue by submitting art and having the PTO review it" and hardly anyone used it to submit art. There are 400k apps filed every year Zach. Do you really think the public is going to submit art on more than a few thousand of those in a year?
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Re: Re: Just file it now
I guess the other issue, which is probably way to technical, nuanced and theoretical for the comment section of Techdirt, is valuing the secrecy of a patent(for at least 18 months) so if you decide against a patent you still retain trade secret privileges. With a comment system that is immediately open, the second you file for a patent you'd lose all TS protection, which might have its own unforeseen consequences by hindering patent apps, and therefore reducing the literature to reject a patent.
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Re: Re: Just file it now
Actually you are ignoring the patent, and it's claims. Your prior art example may in fact not be relevant or related to what is actually patent here. You are falling for the surface gloss (animated monsters!) and forgetting that the patent is made up of a series of specific claims, which must all be satisfied to make the patent.
So the better question perhaps is why should patent holders have to give in to a whiner like you who can't even be bothered to truly understand what is in the patent?
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Re: Just file it now
Furthermore it's $2520 for an ex parte review where there is no adversarial review process. All communication (after the initial application for a re-exam) is between the examiner and the patent owner.
It's $8800 if you want to be able to participate in the proceedings. Justice may be blind, but she's expensive.
And even then, if you do get parts of the patent invalidated, the patent owner can still revise or submit new claims. Which if approved, you have to fork down more money if you want those re-examined.
Even when the examiner says the rejection is 'final', it's not really final and often is granted on appeal. The chips are stacked against those asking for re-exams.
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Re: Re: Just file it now
My bigger point is why do people assume that this change in the system would actually make the system better. There's already apathy in filing prior art after a patent is issued, so changing the date of when you can file is a non-issue. Yes you have to pay 2500/8800 to make something right, but what would the other system cost? Would they charge $50 to file prior art, since an examiner needs to look at every piece?
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Re: Re: Re: Just file it now
I prefer Techdirt's other suggestion of dropping the high assumption of validity. In a malpractice suit (apologies for revisiting that analogy), all it generally takes is a couple of other doctors to testify that a mistake was made to convince a jury. I'd like to see patent cases where all it takes is a couple professionals testifying that they did the same thing back when the patent owner was in diapers to invalidate a patent.
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Re: Re: Re: Re: Just file it now
Also, I wish the USPTO had put a soft cap on pieces of prior art, with a fee for every piece over the limit you went. This might have swung the SCOTUS to rule that prior art not looked at would bring the presumption of validity down, but alas, we're where we are.
And don't take any of this as literal truth, it's just kinda mental vomiting of issues that could result from changing presumptions of validity.
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Re: Re: Re: Re: Re: Just file it now
I don't follow you there. Can you explain what you see as wiping all prior knowledge off the table?
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You want phone carriers to stop patenting every little feature, but yet that is exactly what the mechanical engineer would have to do if he cant just patent his 'costume'.
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Consider the thousands of patents issued for mouse traps. The end result is the same (trapped mouse) but the methods vary widely.
Do you have some insight into the functioning of the Henson device, and are you able to compare it to the newly patent device? Are there similarities (outside of the surface), or are they mechanically very different?
Remember, they didn't patent painted models.
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Re:
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Re:
The video posted of Jim Henson's Ludo character show similar levers and hinges being used to move his body parts.
On top of that, the claims in the patent application are rather broad and the patent itself says it applies to all large animals, fiction or real, living or extinct. The broadness of this patent would have prevented Jim Henson from creating Ludo had he not created that character and costume 25 years prior to the granting of this patent.
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Re: Re:
"
Hardly.
If you knew how to read claims you would know why this isn't true.
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Exactly. It's sad that Mike and his anti-IP monkeys don't even understand what they're bashing half the time. It's hilarious that this is an IP law blog that doesn't understand IP law.
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"Exactly. It's sad that Mike and his anti-IP monkeys don't even understand what they're bashing half the time. It's hilarious that this is an IP law blog that doesn't understand IP law."
Translation for those at home: "We can't translate it either. We'd rather start ad hom attacks on the author than actually reveal that the patent is overly broad."
Good to know guys and girls. Thanks.
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Don't you think that understanding the basics, like prior art, would be good before trying to redesign the entire system? I mean, it seems like Zach was so overwhelmed by the similarity between the outsides of two monsters that he was unable to actually read the patent or understand it's implications.
Don't you think understanding the basics would be good before moving on to re-writing the laws of the land?
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Here's just part 1:
A costume suit of a large size animal for making a realistic movement thereof comprising: a head and mouth section; a neck section; a torso section; a foot section; a tail section; a skeletal part as a whole; and an outer skin part covering the whole, wherein the torso section is communicated with the foot section forming an internal hollow, just enough for an adult to fit at standing position; and the hollow includes a frame pack fixed and installed to the skeletal part of the costume suit, in a position of an approximate equilibrium point of the costume suit, wherein the approximate equilibrium point of the costume suit is a fulcrum point where the entire weight of the costume suit is evenly loaded on the frame pack.
You can tell a patent lawyer made that. And the that's not the only part that's vague and obvious to someone reading it:
DISCLOSURE OF INVENTION
Problems to be Solved by the Invention
Thus, an object of the present invention is to provide a full-scale costume suit of a large size animal that makes or is able to make a realistic movement.
So by my thinking, you need a patent to solve how to give a huge costume suit, realistic movement... Yeah...
But please, do continue. It seems you know something from that language that explains your view to people that can't read a patent.
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If "part 1", which is actually Claim 1, is so vague and obvious, then it should be a relatively simple matter for you to find and present evidence supporting your point. Otherwise, you are proffering an unsubstantiated opinion.
BTW, it is helpful to understand the differences and purposes between "specifications" and "claims".
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As has been shown, patent lawyers make the patent as vague as possible. But by no means does all of the "legalese" of this patent point out the obviousness of it.
Look at Claim 1. All you have to do is say "to make a costume able to fit a human adult up to 6 feet tall"
All of this extra stuff about a skeletal structure, hip bones connected to the thigh bones, the thigh bones connected to the hip bones, etc, aren't really necessary.
Finally, how much money goes to claim a patent while the person doesn't just go to make the costume? That's where the money would be better spent, anyway.
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"
Which is why most companies that make this sort of suit will not infringe and the patent existing is a non-issue.
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What are you trying to say?
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http://www.uspto.gov/patents/resources/types/utility.jsp
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Um no, the claim is actually quite easy to translate. And that is what makes it all the more funny that you cannot do it correctly and why I'm laughing at you doing it correctly. Even at the same time as I am concerned that claims to something so simple are even so far beyond the understanding of common people.
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That's exactly what I was thinking. These two chuck out mocking "you guys are so ignorant" claims, and yet offer nothing that makes me think they know any better.
To this non-expert monkey the patent seems to quite closely describe what Henson did so long ago. Since I'm apparently completely wrong, please feel free to educate me.
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Perhaps you have such evidence, in which case it would a real shame if you did not share it to substantiate your assumptions.
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That's a whole different problem. I know many inventors, whose name is on patents. They can't understand the claims of their own patents, after the lawyers get through with it. Their patent claims are turned into broad, general minefields covering way beyond what was supposedly invented.
And patents are supposedly a method of choice to disseminate an invention to the world.
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That is a different problem, and one which I recognize. The IP lawlyers have made somewhat of a mockery of patents by making them so complex that even the people that supposedly made the invention don't understand wtf is going on.
Keep in mind though that those same inventors, if they're the ones doing prosecution instead of their corporate master, should be able to claim whatever the f they subjectively want to claim. They just allow lawlyers to do it so they have something of value.
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Re:
Titan the robot probably is patented.
It says it is a robot but really is a guy in a robot suit with a lot of controls that interact with the public.
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This proves...
They should sue Disney for everything that they got.
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Zach you should be able to note, at the end of claim 1, the phrase:
wherein the approximate equilibrium point of the costume suit is a fulcrum point where the entire weight of the costume suit is evenly loaded on the frame pack.
Notice that this was amended into the claim at the end of prosecution. That's your tip off that it is most likely the most important part of the claim in terms of distinguishing over the prior art.
Then, go to the prosecution history and look at what the examiner says was the reasons he allowed the claim. Oh look, he says specifically that it was the portion I recited above IN COMBINATION with the rest of the claim. The examiner then notes several pieces of art that disclose suits of animals that allow for an adult to fit inside (like your submitted reference does).
Now, Zach, two things.
No. 1 why on earth do you think this patent will ever be litigated/asserted or invalidated? It is a fairly narrow claim, and unlikely to be one of the very few patents that get used. In fact, I would wager you don't even understand how narrow the claim is.
No. 2 why on earth do you think that your prior art, the Jim Henson suit shall we call it, has an approximate equilibrium point being a fulcrum point where the entire weight of the costume is evenly loaded on the frame pack? Please, take one second out of your day to point out where in your video or otherwise you find this limitation.
Thanks,
6
Next time before you go shooting off about a patent Zach, remember you have to read, and find in your prior art document(s)/video(s) or whatever, ALL the limitations of the claim, not just some of them.
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Re:
No. 2 Even with your explanation of the "narrowness" of the claim based on the fulcrum aspect of the suit, it still fails to be unique over the Jim Henson suit.
The Ludo suit was created to allow a human operator to sit inside and be able to move naturally in every way possible. To do so, the suit would need to have an equilibrium point to function. If the suit were lopsided, the operator would not be able to move from a sitting to a standing position (as shown in the video) or even walk around.
Any creator of large costume suits would know this, making it obvious to those skilled in the art.
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No kidding? The claim, if you'll notice, amateur, states specifically a spot for that equilibrium to be. It must be in a fulcrum point WHERE THE ENTIRE WEIGHT OF THE COSTUME SUIT IS EVENLY LOADED ON THE FRAME PACK.
Stop ignoring the plain language of the claim ffs.
Reading ad dinterpreting a patent claim is the sport of highly educated people, no doubt, but that doesn't excuse you amateurs messing up so badly when someone comes and puts your face right in the part you're messing up.
Now, if you can show, with specificity, where in a piece of prior art such a suit of an animal can be found with such an equilibruim point found on just such a fulcrum point then you will have made a meaningful contribution to discussion about this patent. Until then you're just pissing into the wind and showing off a pee covered face while doing it.
And remember, if the claim is unlikely to go to litigation or be asserted then it is unlikely to be fought about, and thus the document becomes nothing more than a nice teaching for those of ordinary skill 20 years down the line. Just like millions of other patents have and millions more will continue to do.
How about just sitting down, amateur, and let the big boys play?
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Should also note that a "costume" without the linchpin feature you mention that is a limitation in Claim 1 is, by definition, non-infringing.
Maybe there are substantial similarities between the two. Maybe not. Who knows? I do know that the inventor stated that insofar as he was aware, a costume (i.e., device) of the type he invented had not been disclosed before he did so in his application.
I am curious if there is any written description of the Henson device. If yes, would be interested in reading it. If not, then I have to wonder "why not?".
Love them or hate them, patents do serve the useful purpose of disclosing in writing something that might not otherwise be published.
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The mere IDEA is obvious?
One thing that might be unique about this costume design is the balanced nature of it so that you can make the costume MUCH bigger than the perosn inside it. Clearly the dinosaur costumes were way bigger than the Ludo costume.
HM
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If You Want the Patent System Fixed...
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Reading this thread....
Actual people who do actual innovation? Nope. Patents don't teach them anything.
Thanks for proving the point guys...
The fact that 6 continues to blithely insult everyone who is not in his rarefied air really drives home this point directly. To him only special people can understand patents and that's a good thing. Damn, son, thanks for pointing out that the whole "disclosure" idea of patents is a joke.
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Re: Reading this thread....
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Re: Reading this thread....
I did not say that Miketard, in fact I say just the opposite. And the reason I'm making fun of them is because they're obviously not trying and apparently don't want to own up to their own mistake. I point out to your "friend" who authored this post how he messed up, and he just goes off on some tangent instead of saying "oh, my bad, I totally forgot the last part of the claim, which happened to be the important part lol, sorry guys ignore my whole piece lol" like he should have said.
All the non-special people can, currently understand patents if they take enough time to do so and/or have help. In this case, the author did not take enough time to properly read and understand the entire claim. And not only that, when I provided help he just goes off on some nonsensical tangent thinking he still has a point, when he really has no basis for his point in the first place since the claim doesn't even cover what he thinks it does.
But you are right, and I admit, that it is very difficult for the non-special people to understand patents. And this is a problem which I myself bring up quite a bit, and would like to find a solution to myself. Although, to be truthful, the inability of the common man to understand patents wouldn't be such an issue if we didn't have patents on everything now, including things outside the useful arts like software etc. And that is the real problem, the spreading of patents to things outside the useful arts. So long as they're restricted to the useful arts, it isn't that big of a deal. If we make patents only be for things in the useful arts then pretty much just big companies fight over them, and meh, so what, let them. Or let them lobby congress to scrap the whole thing.
I personally think that we should require, in each patent, upon issue, a brief recitation, by the patentee, in everyday english, not legalese, which tells what he has claimed. And make it so that legally speaking that statement cannot be used against the patentee in court, instead, use the carefully crafted legalese to resolve the actual legal issue.
In short, have the current system (with some other changes I'd propose actually) but require the applicant to put into english what he has invented for the common man. Technically we already have a place for this called the "title" but nobody enforces them being descriptive there currently, even though some few examiners make suggestions for better titles in individual cases.
Now you can stop being a tard about this whole thing anytime you like Mike, but you and the other people that decry the patent system because of its problems (like me) whilst ignoring the gigantic baby you want to throw out (unlike me) are dam near re tarded. I speak of course of technical disclosures of information pertaining to the useful arts, many of which I promise you would not otherwise be published, either for lack of effort, or for wanting to keep it a secret. Trust me, you want these published.
We all know there are massive issues with the patent system currently (software patents, willfull infringement on those that look to patents for info, business method patents, the obviousness standard, subject matter eligibility, slow time to examine/issue, slow time to fix an issue in reexam etc. etc. etc.), but there is no political will to straighten things out, if there was, then patent reform as just passed would have addressed some of it. Most politicians don't know enough to even begin to straighten things out, so that complicates matters.
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Re: Re: Reading this thread....
If anything most people figure things out by reverse engineering or individual research. I recall that James Watt's steam engine was reverse engineered and made more powerful after his death.
I recall that there has been a LARGE study about the patent trolls who build patent portfolios while making nothing.
And given that Microsoft makes more money suing Google's partners than making Win 7 better, there's a problem with the system.
I've also heard it said that taking down the patent system leads to more innovation in countries such as Sweden.
The problems of the patent system have been discussed at length. They disclose nothing. If someone wants to learn, there are other methods than the patent.
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Re: Re: Re: Reading this thread....
Some large corps do. More would if not for the willfull infringement nonsense we have currently.
As to the rest of what you said, meh, maybe, maybe not. Sure trolls are bad in my mind, and I would probably get rid of them, but they aren't the worst thing on the planet. They would be less of a problem if we restricted patents to their proper place, the useful arts.
"The problems of the patent system have been discussed at length. They disclose nothing."
You're reading the wrong patents. Patents that I work on most certainly do "disclose something".
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another biased article
Please see http://truereform.piausa.org/default.html for a different/opposing view on patent reform.
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henson / disney
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