Today's Date: April 23, 2014 Search | Home | Contact | Services | Patent Attorney | Patent Search | Provisional Patent Application | Patent Application | Software Patent | Confidentiality Agreements

Supreme Court “Abstract Idea Doctrine” is Unworkable


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
Blog | Twitter | Facebook | LinkedIn
Posted: February 13, 2014 @ 4:35 pm
Tell A Friend!


Paul D. Clement

What follows is the Introduction and Summary of the Argument included in the IBM amicus brief filed at the United States Supreme Court in Alice Corporation Pty. Ltd. v. CLS Bank International. While many attorneys contributed to this brief, as you will see them listed on the front cover, former Solicitor General of the United States Paul D. Clement is the Counsel of Record.

I think it is fair to say that the theme that comes through the loudest in the IBM brief is this: The abstract idea doctrine is unworkable. To that I say a resounding AMEN! If the Supreme Court cannot or will not tell us what an abstract idea is how can we any longer pretend that the jurisprudential path the Court has taken will lead to predictability? At least insofar as software is concerned there is a complete and total lack of predictability. There is also no uniform application of the law, which at least conceptually should raise concerns of disparate treatment of those similarly situated.

Below I provide additional thoughts on the IBM Summary of the Argument in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000 In order to differentiate my thoughts/comments from IBM amicus brief, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.

Before proceeding allow me to make one general observation. I wish the IBM brief had made a bigger deal about Watson, which as far as I can tell is the first generation version of the Star Trek omnipotent computer. A review of Watson claims rather clearly suggests to me that if the claims at issue in Alice v. CLS are not patent eligible than Watson is not patent eligible. Have we really reached the point where artificial intelligence is not patent eligible? I think IBM could have made a compelling argument on this point, but their brief is still very good and quite persuasive. Despite my wish that Watson had played a more central exemplary role I fully appreciate that space is very limited. Nevertheless, if my thoughts on the patentability of Watson and similar innovations is of interest please see:

Without further ado, the Summary of the Argument from IBM’s amicus brief:

_________________

Software is not a new technology. It has been around in various forms for well over half a century. During that time, it has become one of the fundamental building blocks of innovation and technological advancement, and a critical part of our Nation’s economy. Software is the medium for innovation in every field, from automobiles to manufacturing to medicine. The fact that the Court is now—in 2014—actively considering such a basic question as whether computer-implemented inventions such as software are even eligible for patent protection is deeply troubling.

This Court’s felt need to review whether computer-implemented inventions such as software are patent-eligible is an unmistakable indicator that § 101 jurisprudence in this area has proven unworkable. This Court has repeatedly grappled with § 101 and the judicially-created exceptions to that provision: “laws of nature, natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185 (1981). With respect to this last exception—abstract ideas—despite the Court’s best efforts, not to mention those of IBM and others that saw promise in § 101’s ability to weed out problematic patents, a workable test for when a computer-implemented invention is a patent-ineligible abstract idea has not emerged.

 MY TAKE: I agree 100%, as I do with virtually everything written in the IBM brief. The law of patent eligibility is a mess because Supreme Court decisions over the past several years have lacked judicial discipline. Previous Courts have cautiously counseled to use 101 as a coarse filter, not a fine filter, because only that which is unequivocally unworthy of a patent should be weeded out prior to inquiring whether the innovation is new, nonobvious and adequately described. Still, in the Mayo case the Supreme Court conflated novelty and nonobviousness with patent eligibility.

It is mind-boggling that the Supreme Court needs to even address the patent eligibility of software. Software patents have been granted by the U.S. Patent Office since 1968, the Patent Act explicitly mentions software and computer implemented methods as patent eligible and according to the GAO somewhere between 50% and 60% of all innovations described in patent applications filed at the USPTO relate in one way or another to software.

There should be no serious question that computer-implemented inventions such as software constitute patent-eligible subject matter under § 101. Courts and amici agree that the technological functions carried out via software could also be implemented through computer hardware in the form of integrated circuits (chips) or other discrete electronic components, and the patent eligibility of those tangible devices is beyond question. Accordingly, there is no principled reason to draw distinctions between hardware and software when it comes to § 101 patent eligibility. Still, arguments that computer-implemented inventions such as software are not patent eligible persist and are proffered with increasing frequency as computer-implemented inventions become more pervasive and as innovative software brings computer implementation within the ken of many ordinary computer users.

 MY TAKE: Amen! If you look at a well written patent application that appropriately describes the technology the powers a computer implemented process there will be a lot of tangible components (i.e. “hard”—ware) discussed and required in order for the computer implemented process (“soft”—ware) to actually work. Those familiar with the technical reality of software also know that any computer implemented process that can be accomplished using software can also be accomplished using logic gates. Indeed, logic gates are foundation for all digital electronic circuits and microprocessor based systems. Thus, software can be explained on its core level as a process for manipulating logic gates.

Questions concerning the patent eligibility of even the most technologically innovative software are being raised as a consequence of the unworkability of the abstract idea doctrine as applied to computer- implemented inventions. Drawing on this Court’s case law, courts and commentators have repeatedly expressed concern that a patentee can “preempt” an entire field or fundamental idea by claiming the implementation of a well-worn concept on a computer. See Diehr, 450 U.S. at 187 (“Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation.”); Parker v. Flook, 437 U.S. 584, 589 (1978) (expressing concerns with claims that would “‘wholly preempt’” a field); Gottschalk v. Benson, 409 U.S. 63, 72 (1972) (“[I]f the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.”); see also Bilski v. Kappos, 130 S. Ct. 3218, 3231 (2010) (concluding that the disputed claims “would pre-empt [risk hedging] in all fields, and would effectively grant a monopoly over an abstract idea”). In many cases, courts appear to have adopted the view that implementation on a computer has become so commonplace as to be technologically meaningless and that, as a result, a patentee claiming the implementation of an abstract idea on a computer is claiming nothing more than the abstract idea itself.

 MY TAKE: The reason the abstract idea doctrine is unworkable is because the Supreme Court has never defined what is an abstract idea. The Supreme Court has treated the term “abstract idea” much as they have the term “obscenity”; they know it when they see it. Such a level of subjectivity leads to chaos, which is exactly how the Judges on the Federal Circuit can manage to find themselves evenly split on the issue of whether software is patent eligible. The Supreme Court abhors bright line rules unless they are the ones who announce them. Such an irrational fear of certainty and predictability is curious given how those concepts are so fundamentally important to a functioning judicial system. Still, if they don’t like bright line rules that everyone can follow as announced by the Federal Circuit they at least owe us a workable test that they are willing to endorse.

While it may be true that the steps required to implement an abstract idea on a computer are well established and thus likely within the capability of one skilled in the art, the implementation of that idea on a computer, however minimal the effort, definitively separates that specific technological implementation from the idea itself. Technology has enabled an astounding diminishment of the man-machine interface, but it has not erased the need for that interface and, as a result, even the most problematic computer-implemented invention will be meaningfully different from and narrower than the associated abstract idea. Thus, computer- implemented inventions will always fall outside the abstract idea exception and are patent eligible under § 101.

To be sure, patents that do no more than implement an otherwise abstract idea on a computer through conventional programming raise concerns reminiscent of those identified in this Court’s § 101 jurisprudence, and such patents are part and parcel of a larger challenge facing our Nation’s patent system. Patentees have all too often obtained patent protection for very straightforward ideas by simply stating in their patent application that the idea will be executed in a specific technological medium. See, e.g., Bilski, 130 S. Ct. at 3230 (the “prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’” (quoting Diehr, 450 U.S. at 191-92)). And patentees have repeatedly been able to secure overbroad patents that threaten to undermine innovation. See Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1303 (2012) (discussing concerns with foreclosing future innovation).

 MY TAKE: On page 22 of the IBM brief Mayo v. Prometheus is taken on more directly. It is true that virtually everyone knowledgeable about the claimed “innovation” in that case would have found the claims invalid, but invalid either under 102 for lack of novelty or under 103 because the claimed invention was obvious. So yes, there is a justifiable concern about foreclosing future innovation, but that is NOT a topic appropriately addressed under 101. The question under 101 should be whether there IS an invention. If there is an invention with the requisite tangible description then the law should force the analysis to push forward to 102, 103 and 112. A tangible requirement to the claimed invention works to protect against the patenting of ideas. The fact that an invention is a pioneering invention, fundamentally important or widely used is of no importance under 101. I would think the Supreme Court would understand this after their decision in KSR, which presumably wanted to discourage trivial contributions from being patented. One would have thought by discouraging the trivial the Supreme Court was exalting the foundational, pioneering invention. 

But as IBM’s day-to-day real-world experience has repeatedly confirmed, a muscular application of the abstract idea doctrine is not a useful tool for addressing these problems in the computer-implemented invention context. As this Court has recognized, “all inventions at some level embody” an abstract idea. Mayo, 132 S. Ct. at 1293. And unlike laws of nature and natural phenomena, abstract ideas defy the demarcation of meaningful boundaries that make the development of clear and administrable rules possible. As a result, efforts to apply the abstract idea doctrine to computer-implemented inventions quickly devolve into an undisciplined parsing and rewriting of the relevant claims such that courts end up evaluating a claim of their own making—not what the inventor actually claimed. See 35 U.S.C. § 112(b) (the “inventor” must “particularly point[] out and distinctly claim[] the subject matter which” he “regards as the invention” (emphasis added)). Moreover, the unwieldy nature of the abstract idea doctrine makes it impossible to apply that doctrine to computer-implemented inventions as a “threshold test.” Bilski, 130 S. Ct. at 3225. Every patent implements some abstract idea and attempting to isolate and assess the extent to which a computer-implemented invention “preempts” or “monopolizes” an abstract idea will always require more than the quick look that § 101 contemplates.

While the prospect of preempting abstract concepts through their implementation on a computer understandably leads courts to ask § 101-type questions, the answer to this § 101-type concern actually lies in § 103’s bar on obvious patents. The very same innovations that have eroded the man-machine interface and made programming a much more accessible feat than it once was have also made it far more likely that the computer implementation of an idea would be readily within the grasp of skilled programmers and thus obvious.

 MY TAKE: I believe 103 is a far better focus than 101. There is no intellectually honest way to distinguish between inventions that are capable of being patented and inventions that are not capable of being patented. Prior to the confusion ushered in by ill-considered Supreme Court decisions relative to 101, the law could be summarized as this: If you have an invention it is patent eligible.

Ideas, laws of nature and natural phenomena are not inventions. If you have an invention, such as a computer implemented process it is and properly should be patent eligible. Analysis should push forward primarily to 112 to first see if the invention has been adequately described. That is why I have said that Judge Rich was largely correct in announcing the rule in State Street, which focused on whether the method was concrete and tangible. If there is a concrete and tangible description that fully describes the underlying technology then 101 and 112 should be satisfied. Then attention should move to 102, which likely won’t be an issue in most instances, and on to 103 where the trivial will be weeded out.

In addition to avoiding the pitfalls of applying the abstract idea doctrine in an area where it is has proved unworkable, focusing on obviousness when evaluating computer-implemented inventions has much to recommend it. The test for whether a patent is invalid for obviousness under § 103 is clear and easy to apply. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 402, 406 (2007). First, courts and patent examiners must determine the scope and content of the relevant prior art. Second, the level of skill of the ordinary artisan must be identified. Third, the scope and content of the claimed invention must be defined through the process of claim construction. See KSR, 550 U.S. at 406. And finally, with that information in hand, courts must determine whether § 103’s requirements have been met.

 MY TAKE: When I first read this paragraph I cringed. The test for obviousness is clear and easy to apply? In what universe?

What IBM describes as clear and easy to apply is really the test announced in Graham v. John Deere, which is of course true. The obviousness framework is clear and easy to understand, but KSR has allowed some patent examiners and some Judges to practically do whatever they want because the KSR test, if you can call it that, is subjective and can be easily manipulated to achieve a predetermined result. When KSR is coupled with the Federal Circuit’s love of de novo review there is no real certainty with respect to obviousness. I do agree, however, that 103 is the far better place to determine patentability. 101 is not supposed to weed out inventions. 

The prior art analysis required under § 103 entails construing and evaluating the actual claim and each claim element, thus ensuring a focused inquiry into the actual invention at issue (as opposed to an unjustified parsing and effective rewriting of the claims). Relatedly, while continually evaluating patents under § 101 does nothing to combat problems with broadly drafted patents, further developing § 103 doctrine can play a critical role in increasing patent quality and can also assist in keeping any inquiry into “inventiveness” where it belongs. And perhaps most importantly, the more fine-grained analysis that § 103 mandates ensures that the patent-eligibility of broad swaths of technology will not be called into question, fostering the certainty that investment in innovation demands.

 MY TAKE: There is little doubt that obviousness is the far more appropriate way to handle computer-implemented inventions. The true test for patentability should not rest on 101. The Patent Statute has different sections that should each be allowed to function. Short-circuiting the work of the analysis and ramrodding it into all into 101 ignores the law even if that is what the Supreme Court did in Mayo.

If computer implemented processes are not patentable then 50% to 60% of all disclosed innovations will wind up being patent ineligible in some respect. That will drive innovation under ground, which defeats the Constitutional purpose of the patent system. With innovation driven underground those who come later will not able to stand on the shoulders of those who came earlier. Therefore, the Supreme Court runs the real risk of making a decision that plainly and clearly frustrates the Constitutional purpose of a patent system.

- - - - - - - - - -

For information on this and related topics please see these archives:

Tags: , , , , , , , , , , , , , , , , ,
Posted in: Companies We Follow, Computers, Gene Quinn, IBM, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, US Supreme Court

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


164 comments
Leave a comment »

  1. Gene,

    Nice article. Our Judicial Mount Olympus’ “abstract idea” doctrine is not just unworkable, it’s nonsensical, exists nowhere in the express wording of 35 USC 101, and is completely subject to the whim’s of the Justices, as well as the Federal Circuit panel. Someone needs to be brave enough to tell those Ivy Leaguers in the Ivory Tower that what they’re doing with this doctrine is not only causing utter chaos, but is flat out wrong and contrary to the express patent statutes, as well as contradictory to their own precedent, i.e., Diamond v. Diehr and Diamond v. Chakrabarty.

  2. IBM is bleeding us white over a nothingburger inherited 1997 patent (from an infamous defunct company) that was absurdly obvious and anticipated by 1987, if not 1967. We don’t compete with IBM and the component at issue is a sub-component that never meant a thing to our business. By the time 103 is available to us for its (possibly) proper use, we will likely be bankrupt.

    101 is attractive specifically because its a threshold test. If the court were to establish some kind of quick obviousness analysis at the front-end of cases, prior to discovery, experts etc. than maybe your point would make some sense. About the very working mechanism of patent litigation abuse, and you say nothing.

    Sure, claim construction, expert review, etc. etc might be proper, but for most people merely asserted against by any patent holder, they are destroyed long before that point by $500,000 in fees to get there.

    But what does justice and equity have to do with these proceedings? That’s the court’s real-world problem, and your position just denies it completely. How about an analysis of the retailers brief (which we participated in)? Our brief goes right at those facts, as it should.

    I hope in the negative space of IBM’s breathtaking hypocrisy the court sees the unworkability of the current system, which is destroying the small software business in the US rather than saving it- in your heart you should know that.

    The patent that IBM is pushing against us is even worse than US 7451889 B2, and we are a tiny nobody of a company. If that fact set can’t convince you that using 103 can’t be fair as currently managed, then ideology is your game, and not any kind of proportionality or real world concern about jobs and innovation.

    If the court creates a threshold test for 103, that probably would be far better jurisprudence, but if the blunt force of 101 is all that there is for justice, justice must prevail.

  3. Mr. Snyder,

    I feel sorry for your difficulty, but you do not sound like an impartial observer.

    If as you claim the item is so obvious, then your path forward should be easy, and not as you claim likely to lead to your bankruptcy. Perhaps you can indicate this rouge patent publicly. Perhaps you cannot.

    The fact that you look to 101 as an atom bomb type of tool works against using 101 as an atom bomb type of tool.

    101 was meant to be an open gate. That you admit to wanting to use 101 for a purpose it was not designed to be used for is more telling than anything else that you post.

  4. Martin-

    I’m sorry to hear about your plight, but there is nothing at all just about saying that software is not patent eligible. I also find it amusing (and quite telling) that you say that if anyone disagrees with you then their ideology is just a game and not concerned at all about jobs or innovation. It is also quite interesting that you erroneously say that small software businesses cannot survie in the U.S. The U.S. is, of course, home to most of the software industry and many, many small businesses and individuals thrive. I have many start-up clients that operate software businesses and they are doing just fine.

    Since you went down the path I wonder if you might be willing to say how many people you employ? I wonder how many IBM employes? My guess is that IBM is doing far more job creation than you are.

    Also, how many patent applications have you filed? How much money do you invest in Research & Development every year? I know IBM invests $6 billion annually in R&D and they obtain over 6,000 patents a year just in the U.S.

    Finally, it seems to me that like many software companies that hate patents you are looking for others to come to your rescue and save you from your own mistakes. Did you ever consider getting patent insurance? Did you ever consider taking a license or perhaps simply not infringing in the first place?

    If you want to operate a business then you need to operate a business in a responsible way.

    -Gene

  5. I don’t know what you find telling about the concept that people who place ivory tower niceties above actual justice may need to reconsider their priorities.

    How many people would IBM employ if software were not patentable? My guess is not very many fewer. M

    Maybe I find it telling that one day you glorify tiny inventors and the next giant corporations depending on which supports your point of the moment, but I don’t want to argue about sophistry either. You can’t prove what level of R&D would exist or not exist with or without software patentability- nor can anyone. People can measure the amount spent on essentially useless litigation activity, and it’s staggering.

    Maybe a near analogue to pure software patents might be Hollywood movies: they can’t be patented but hundred-million dollar bets are made on them year in and year out.

    My mistake was coding and selling a simple feature before the priority date: perhaps we should have seen into the future to avoid infringement? Blaming the victim is often the first recourse of people uninterested in the difficulties of finding justice in the world.

    The patent is US 5999939 A It involves verifying the results of a text parser. They could not patent parsing itself, as others had already done so. Verifying the results of a deductive text parse is essential to using any parser, because no deductive parser can be 100% accurate. The patent is a joke; as big a joke as wax paper in a take out container; nay, a bigger joke because its dressed up in the clothing of “technology”.

    We employ around 50 people and have never filed a patent because we have never “invented” anything worth patenting. Every idea is not an invention. Because you may patent everything under the sun does not mean you should be able to patent everything under the sun. I tend to agree that 103 may likely be more in Congress’s 1952 intent than 101, but that’s not the world we live in, and they did not have a chance to consider copyright v. patent in the matter of written expression.

    If you want to argue about patentability of software, I’ll be glad to, but this is about the simple proposition that justice cannot be served in the present state of patent jurisprudence by dependence on 103. By the time a small defendant gets to an obviousness determination, they are ruined.

    What do you want to do about that?

  6. Martin-

    You say: “I don’t know what you find telling about the concept that people who place ivory tower niceties above actual justice may need to reconsider their priorities.”

    That is funny. Ivory tower niceties? No, just using facts rather than an emotional argument like yourself. You have no intellectually honest way to argue that software should be patent ineligible, so you need to wrap your arguments with grandstanding.

    I notice you choose not to answer the question about how many people IBM employs, so I will answer it for you. The number is 434,246. It is laughable that you say they would employ fewer if software were not patentable. So YOUR agenda is to make software patent ineligible so that you can better compete. Of course that kind of self serving advocacy is antithetical to the concept of justice you seem to want to wrap yourself in.

    You say: “Maybe I find it telling that one day you glorify tiny inventors and the next giant corporations…”

    I wouldn’t expect you to understand, but the common thread is about innovation. I glorify innovators. Overwhelmingly innovators are individuals, start-ups and small businesses. But sometimes they are large multi-national corporations like IBM. If you were an innovator yourself you would easily identify my positions. Instead you want to pretend that there is no unifying principle to my writings, which is absurd.

    You say: “My mistake was coding and selling a simple feature before the priority date: perhaps we should have seen into the future to avoid infringement?”

    Great for you. If that is true you can easily defeat the IBM patent. So stop complaining and start operating in a business responsible way. If you had obtained business insurance you wouldn’t need to complain about the cost to stand up for your rights.

    You also complain about U.S. Patent No. 5,999,939. Of course, your characterization of the patent is not evidence. The patent claims define the right, so let’s look at the patent claims to see what they cover. Here is claim 7, which is an independent claim drawn to a system:

    “A system for facilitating the accurate transfer of information from each of a plurality of nonuniformly formatted source data streams into a structured database, said system comprising: means for supplying digital data representing each of a plurality of source data streams from a plurality of users, each said source data stream containing data corresponding to multiple discernible source data strings; data extraction means for extracting selected ones of said source data strings and generating related target data strings; means for displaying a structured form comprised of multiple fields, each field capable of accommodating a data string and wherein one or more of said fields have said target data strings inserted within; means for enabling each user to modify said target data strings inserted within said displayed form corresponding to said source data stream originating from said user before accepting said form; and means for storing data corresponding to said data strings from said form fields into said database.”

    Since this is a means-plus-function claim the technology that is covered is described in the specification in detail. So let’s not talk in generalities. What is your evidence that this or any other claim in this patent is invalid?

    You say: “We employ around 50 people and have never filed a patent because we have never “invented” anything worth patenting.”

    So I guess that means that you just copy others.

    You say: ” I tend to agree that 103 may likely be more in Congress’s 1952 intent than 101, but that’s not the world we live in, and they did not have a chance to consider copyright v. patent in the matter of written expression.”

    And now we get to the truth. You don’t want software to be patented, you think it should be copyrighted only. That is no doubt because you admit that you have never come up with anything independently innovative yourself so you would prefer a regime where you can essentially copy the work of others but write it in different code. That way as long as you don’t cut and paste you can rip true innovators off without having to compensate them.

    You say: “justice cannot be served in the present state of patent jurisprudence…”

    Finally something on which we agree. Justice is not served by arbitrary and capricious lines drawn. You still have articulated any reason that software as an entire class should not be patent eligible, which is because there is no principled distinction.

    You say: “By the time a small defendant gets to an obviousness determination, they are ruined.”

    Not if they operated their business in a business responsible manner by taking precautions. You obviously don’t have any insurance to help you out of this situation, but such insurance does exist. The fact that you have chosen not to patent anything, do not innovate but instead copy others and have no protections for when a patent owner comes knocking is not a problem with the patent system. It is a problem because of the way you chose to run your business. Your own poor business decisions do not make the system unjust.

    -Gene

  7. Oh my, seem to have struck deeply here. A veritable feast of victim blaming!

    I said IBM was bleeding us, but we are not small defendants. We are medium defendants. We can afford to stay in the fight, but 11 other defendants were sued when we were, and some of them were destroyed, and some have had their lives ruined living in a cloud of despair. I know: they were irresponsible losers and not victims of absurd legal extortion.

    Have you priced insurance Gene? Do you know what you are even talking about on that subject? The responsible choice is to take your chances, because the insurance will end up costing more than the few cases you may catch. Is there any level of premium which would be “irresponsible” in your twisted view?

    “So YOUR agenda is to make software patent ineligible so that you can better compete”

    What an absurd straw man: I don’t compete with IBM in a single market and I likely never will. I could care a less if they have a billion patents so long as they don’t assert ultra-low quality patents against me.

    “If that is true you can easily defeat the IBM patent” That’s the whole point that you willingly, blindingly keep ignoring. 103 is a half-million dollar row to hoe. As to your cut and paste of the nonsense claim(s), my evidence is that I did it first, absolutely and exactly, and I did not deserve a patent and neither did they, because you cant parse without verifying, period.

    We will defeat the patent, but the lack of ease is the whole damn problem!

    We don’t COPY anyone- I was in business before the patent was filed. Our software is not a COPY of anything any more than “Anaconda” is a copy of “Jaws”

    You never spent a minute in the software business, so you have no clue as to the actual drivers of the business- here is a pro-tip for you; the successful execution is a helluva lot more than bits and bytes. You think SAP and Oracle do stuff that is all that different?

    You think every homebuilder that builds houses is “copying” other builders? Every lawyer that argues cases using the same authorities is copying other lawyers?

    You think IBM really would by that much smaller if people could avoid their software patents? That somehow anyone off the street could then compete with them? How many patents does WalMart own? How many people do they employ?

    I think reasonable people could disagree on software patents. If you want a patent, execute in hardware. If you want a copyright, execute in code. Maybe for really non-obvious code, a patent could be appropriate, but since code is written expression it may beyond the possibility of human reason to draw sharp enough lines to provide a just system- something about which you complain about constantly but you care not at all about, apparently.

    Back to your INSANE idea that every innovation has to be patented, or patentable; we do a lot of things that are interesting, novel, and useful; none of them are non-obvious to people skilled in the art. If and when we come up with something truly non-obvious and useful, maybe we will seek a patent. However, our particularly array of features and benefits, as a whole, as compared to other vendors of similar stuff is what’s important.

    Why, if I didn’t know better, I’d think you might be opposed to business competition generally, since you seem to think the first to do anything should control it for however long they can…..

    My poor business decisions of not paying unaffordable premiums (jacked up by the manifest injustice of a broken, abused rent-seeking system) and not patenting anything not worth patenting, and not seeing into the future is how you want to answer the question? What a display you have presented today.

    Answer the damn question: Can justice be served in the present state of patent jurisprudence by dependence on 103 if by the time a small defendant gets to an obviousness determination, they are ruined. Don’t pathetically bleat “insurance” unless you want an Obamacare type program to make it affordable.

  8. A simple truism for you to consider Martin:

    Two wrongs do not make a right.

    Clearly, what you ask from 101 is not proper.

    You need to find a different way.

  9. I would be satisfied with a threshold process for 103- a judge construes the claims, takes briefs, and makes a decision without prejudice to a later MJOL. Anon, absent something like that, please consider the truism: the lesser of two evils.

    However, I don’t think the congress had software in mind in 1952, so the level of “wrong” in applying 101 in that fashion is debatable. Like I said, reasonable people can disagree, but only ideologues can look at what is happening today with software patents and not see massive injustice. If the USPTO or any body so composed cannot make reasonable bright line determinations of obviousness, then something must give.

  10. Martin-

    Whether Congress had software in mind in 1952 is completely irrelevant. In the American Invents Act, which passed in 2011 and is far more recent, Congress in multiple places specifically references the patentability of computer implemented methods (i.e., software). So it is abundantly clear that Congress has authorized software patents.

    You say: “only ideologues can look at what is happening today with software patents and not see massive injustice.”

    Again you are correct, but the injustice is not what you apparently see. The injustice is that more software patents are not granted. Not being an innovator yourself you have no idea how difficult it is to get patents on computer implemented methods. There is injustice at the USPTO because in some technologies applicants are handed patents at a very high rate while in the software area most applicants find it extraordinarily difficult to get patents on truly unique innovations. So if you are going to talk about injustice then please try and inform yourself. You are complaining about patents issued 15+ years ago and then acting like the USPTO is handing out patents on software that is hardly unique. That is false.

  11. Martin

    You ask: “Have you priced insurance Gene?”

    Yes, and I do know what I’m talking about. If you choose not to have insurance and likewise choose not to seek your own patents then you are a target without a net operating in a business irresponsible way. That is your choice and not a patent system problem.

    You say: “You never spent a minute in the software business, so you have no clue as to the actual drivers…”

    If ignorantly believing I don’t know what I’m talking about helps you feel better about yourself then be my guest. It doesn’t change the fact that you seem to know very little about operating a business.

    You ask: “Every lawyer that argues cases using the same authorities is copying other lawyers?”

    Again, you are showing just how little you know about what you are commenting on. You might as well be comparing elephants and oranges. Cases are public domain and citing a case cited by another lawyer is not infringement of any kind. On the other hand, copying and pasting code or building something identical to what is patented is illegal.

    You say: “Back to your INSANE idea that every innovation has to be patented, or patentable…”

    It actually isn’t my idea, although I agree that innovations of all types should be patent eligible. The idea actually comes from the law — 35 U.S.C. 101, which says: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” The problem with your argument is you are ostensibly trying to make a legal argument that is directly refuted by the law. Software is a process that directs a machine and the words “any new” in 101 are pretty straight forward. The fact that you don’t like the law and choose to operate without a safety net in your business doesn’t mean the system or law is wrong. It means you choose to ignore the law and complain when your short-sighted approach gets you into trouble.

    Of course, you can choose not to seek patents, which appears to be what you have done. If you have been in business since prior to 1998 and you employ 50 people you guys are either nothing more than copycats or you have chosen not to protect the innovative things you create. That is your choice, but a short-sighted choice.

    Martin says: “Why, if I didn’t know better, I’d think you might be opposed to business competition generally, since you seem to think the first to do anything should control it for however long they can…”

    I’m not opposed to competition at all. What you fail to understand, however, is that the patent system on one hand provides exclusive rights and on the other hand rewards those that innovate around. That is how the patent system fosters innovation. Where you see a road block that is insurmountable innovators come up with ways around and that is what forwards innovation. It is the exclusive nature of the patent that forces creative people to push innovation forward. Innovators understand that and those who copy what others do simply complain that patents are anti-competitive.

    Martin says: “Answer the damn question…”

    First, you want me to answer the question you pose that presumes it is acceptable to operate in a business irresponsible way. If you want to operate in a business irresponsible way then you are screwed, but that is what business is all about. No one has the right to a profitable business, or even a business that just gets by. If you operate without a safety net and you fall bad things happen. That should be self evident and not lead you to emotionally and irrationally blaming others for your decisions.

    Now how about you answer my question about how much you invest into research and development every year? Seems like you conveniently ignore that one. You said that the patent system costs jobs and reduces innovation. You then admit that without patents IBM would employ fewer people, so that directly undercuts your jobs argument. IBM invests $6 billion in research each and every year, including highly speculative research that leads to things like Watson. So how much do you invest into research and development just for the sake of research and development that may or may not lead to an innovation?

    My guess is you spend little or more likely nothing on research and development, which completely undercuts your argument that patents harm innovation.

    So, I will answer your damn question when you answer the question you are dodging.

    -Gene

  12. Gene you really think some people not granted temporary monopolies and forced to compete without them balances hundreds of BILLIONS in useless litigation? Really

    Yea, I’m complaining about the 15 year old junk patent that IBM is asserting: throttling hiring and R&D at my company. You can’t seem to accept I’m not fighting you on patentability of software- I don’t really care, although I think it creates practical problems.

    What you WON’T do is address IBM’s hypocritical stance that 103 inter alia is just fine, when it costs $500K or more to access that law and they are out here abusing the system. What do you want to do about THAT?

  13. Martin,

    I think you miss the point because you are so focused on the “patent” aspect of your current problem.

    However, anyone can claim they slipped and fell in front of your place of business because you were negligent in the way maintained that area or that they have suffered irreparable pain and harm because the electromagnetic emanations from your place of business have entered through the tin foil cone around their head and caused them to see ghosts –all the time, ala 6th sense.

    In other words, anybody can sue anybody in our system and the defense against any law suit no matter how ridiculous can still cost you thousands of dollars.

    It is not the “patent” aspect or the “software” aspect of the lawsuit that you complain about but rather the defense costs as to any civil litigation.

  14. We have general liability insurance, of course. It’s affordable.

  15. Martin,

    What is the source of your estimate of hundreds of billions of dollars in litigation expense?

    Is it the debunked Bessen?

    Further, your analogies and references to copyright law are off. Your position sounds in emotion, theatrics and the general anti-software patent scripts of those who do not know – nor care to understand – patent law.

    Sorry, but your Hobson choice of the lesser of two evils is rejected since you bandy a label of evil on law you do not understand.

  16. Martin-

    You say: “BILLIONS in useless litigation”

    What is your source for this erroneous claim? Please know in advance that the incorrect myth that patent trolls cost $29 billion has been debunked.

    Do you really expect anyone to believe that the fact that you are infringing an IBM patent is throttling your hiring and R&D? You have continued to refuse to answer the question about how much you invest in R&D. Your silence speaks volumes. You obviously don’t invest anything in R&D.

    Your problem is your choice to forego the patent system has limited your company. You can’t or won’t see it and instead want to complain about an innovator having the audacity to want to stop infringers.

    IBM’s position on 103 is not hypocritical in the least. It is your position that is the one that is hypocritical. You made poor business choices and now you want 101 to come to your rescue when the clear, explicit and easy to understand terms offer no support for your position. In fact, the law contradicts everything you say.

    -Gene

  17. Martin-

    Why don’t you tell us what quote you received for patent insurance?

    You see, the mistake you make is you assume you are talking to people where who are not knowledgeable. You may be able to fool others into believing that you were helpless, but the reality is that patent insurance is not nearly as expensive as seem to believe.

    My guess is you never inquired about patent insurance, perhaps not even knowing it existed.

    -Gene

  18. “f you want to operate a business then you need to operate a business in a responsible way. ”
    In regards to patents, can you name any successful business that do so? All of the tech giants don’t as they get sued all the time, and a small business that goes out of its way to avoid patent thickets is not going to be able to compete. If you want businesses to act responsible, you’ll have to make being responsible plausible. Right now, that is certainly not the case.

    “Software is a process that directs a machine and the words “any new” in 101 are pretty straight forward.”
    A mental process is a process as well (hence the name), but they have been explicitly ruled as not covered. It’s not as straightforward as you claim, and you are being ‘intellectually dishonest’ to act like it is. We have software methods that have been ruled not covered by 101 by the Supreme Court, so there’s obviously something that can preclude software from patentability in the Court’s view. Also, methods of litigation or settling would be processes as well. If patents on anything under the sun are a good thing, why don’t lawyers step out of the shadows instead of having their core business be one of the most free cultures of any profession? I’m sure we could use more innovation there.

  19. Gene, your post at 16 makes you owe me a soda for my post at 15.

  20. Mr. Grayson-

    So let me see if I understand what you are saying. You are actually saying that no businesses operate in a responsible manner and you want me to give you a single example? You can’t be serious, are you? You don’t think it is possible to act responsible? That is perhaps the most absurd thing I’ve ever heard. Talk about head-in-the-sand ignorance! Why not get insurance for a potential if not likely occurrence? That would be responsible. Many companies do just that, or they self insure. It is unbecoming to complain about one’s poor choices and then pretend that you are victimized and unable to do anything to help yourself. Poor business choices do not make one a victim, them make one a poor business person.

    I will however point out that you conflate operating in a business responsible way with not getting sued. As I believe Step Back points out above in America one can get sued for many reasons. Not taking precautions is not responsible.

    You say: “If patents on anything under the sun are a good thing, why don’t lawyers step out of the shadows instead of having their core business be one of the most free cultures of any profession?”

    This question makes absolutely no sense.

    I said that software is a process that directs a machine and to that you respond that I’m not being intellectually honest because a mental process is not patent eligible but also a method. Curious. The only intellectual dishonesty is your own. Which part of “software is a process that directs a machine” was confusing to you? You try misdirection to score a point, but comparing apples and elephants is hardly going to score you any points. You see, software is not a mental process, and a process that is tethered to a machine is likewise not a mental process. So that fact that purely mental processes are not patent eligible does nothing to support your position whatsoever and absolutely nothing to refute anything I’ve said.

    You can try and twist what I say, but your misdirection and playing the part of the helpless victim when there are clear choices is really the problem. The patent system is not the problem.

    -Gene

  21. Anon-

    I know… I saw that after I clicked Reply.

    -Gene

  22. “Apple has rarely lost on the merits. But victory figures as small consolation, because in every one of these cases, Apple has been forced to bear its legal fees. This reality is the lifeblood of the patent assertion industry… Indeed, the opening line of many negotiations is some form of, “What we’re asking for is less than it will cost you to litigate this case to judgment.” It should come as no surprise, then, that despite its success in litigating the merits, for business purposes Apple has agreed to a settlement in 51 of the 57 closed cases.”

    Those people at Apple are so ignorant of the law, and irresponsible too….what a joke this whole line has been.

    $125K / year Gene, you can all my agent.

  23. Martin-

    Yes, you have really made a mockery out of this comment chain with your continued ignorance.

    You say: “Those people at Apple are so ignorant of the law…”

    If you can’t stay intellectually honest please refrain from commenting. Your “I am the only one who knows anything” approach is asinine given your complete and total lack of knowledge on the subject.

    -Gene

  24. I think my post may have been caught in the filter or something. One other thing I had to add was that you failed to address why the core business of lawyers is not subject to ‘IP.’ What’s good for the goose is good for the gander, isn’t it?

  25. Yes, I must agree. I’m satisfied that ignorance, ad hominem attacks, strawman arguments, and witless sophistry have been well and fully displayed. Let’s leave it to future visitors to this page to determine the true authors….and well keyworded it is….

  26. Mr. Snyder,

    You bore me with your sensationalism and lack of appreciation for the law. While I may feel for you as you undergo a lawsuit, you lose any sense of compassion for your self-centeredness and lack of ability to supply rational views to what, in the end, is a matter of law.

    Reason is a gift that is to be cherished and that should underlie the discussions here. You are not looking for reason.

  27. Mr Snyder

    If you have proof that the patent in issue was anticipated or clearly obvious then your remedy is straightforward. Find a good patent attorney. Obtain a proper invalidity opinion. Apply for re-examination at the USPTO or apply to the courts for a declaration. At some stage in the process you could notify IBM of the advice you have received and stop paying. But if you simply complain and do nothing you will not get out of the situation you are in.

  28. Of possible interest is that the claims 1-20 of this patent under question already survived reexamination intact.

    See: http://www.google.com/patents/US5999939 under Legal Status

  29. That’s not really evidence of much. That one party couldn’t prove the patent was invalid doesn’t mean that there isn’t evidence that the patent is invalid. If a claim survives 99 re-exams, a 100th could still invalidate it.

  30. I already said aloha, but to answer a few points quickly: we have excellent counsel and the case is well along at the district level. Doubtless IBM will appeal when they lose, so it’s a loooong road to invalidation.

    This patent was tested an actual competitor in 2010, and settled three days into the trial. They went after 12 Palookas in 2012. They misunderestimated at least one or two of the chumps, who came up with likely much stronger invalidity evidence (e.g. personally actually “inventing” it before the priority date) which is where we are today- MSJ /MDJ’s to come, and hopefully no trial needed.

    My entire point is that 101 is attractive because it happens at the front of a case. If a quick(er) test for obviousness /anticipation could happen at the front end, it would certainly recast the whole discussion.

    The mechanism of litigation abuse is the million bucks it takes to beat back a bare assertion. You CAN’T win. This is why there is so much political pressure, popular revulsion with patents, etc. ( yea, on this blog that’s all imagined and hype and irresponsibility and jealousy of “innovators”…. )

    http://www.leagle.com/decision/In%20FDCO%2020101119967

  31. Mr. Grayson says: “That one party couldn’t prove the patent was invalid doesn’t mean that there isn’t evidence that the patent is invalid.”

    It is almost amazing that anyone could say something so ridiculous. The absence of proof absolutely means that the patent claims are not invalid.

    -Gene

  32. Martin-

    Why do you continue to refuse to answer direct questions? You want to pretend that you are the one who is enlightened yet you make absolutely ridiculous assertions.

    How much do you invest in research and development each year? It is really a simple question. The fact that you refuse to answer it has to be taken as an admission that you spend nothing on research and development.

    When you started your emotional rant about the patent system you started with the premise that patents get in the way of jobs and innovation. You have provided no proof, and in fact have admitted that without patents IBM would employ fewer. You have admitted that your company has never invented anything worthy of patenting, and yet you want everyone to believe that IBM is standing in the way of innovation. You apparently have no interest in innovating and you spend nothing to research/develop.

    Why don’t you give us the case name, docket number and court where you are litigating against IBM so we can all take a look and see if your case is as strong as you say it is.

    You say: “My entire point is that 101 is attractive because it happens at the front of a case. If a quick(er) test for obviousness /anticipation could happen at the front end, it would certainly recast the whole discussion.”

    There are ways to challenge patents that are far quicker than litigation, and which will resolve obviousness and anticipation. I wouldn’t expect that you would know that because your knowledge seems very limited. This is the very problem with everything you have said. You make bold statements that are simply not true and then lament … if only there were another way. Well there are other ways, there are other strategies, and yes could have and should have had insurance. You have made choices and don’t want to accept responsibility. Hardly a patent system problem.

    -Gene

  33. Gene, can you read? Kind of amusing what happens when you run into another bully, but that’s really for the audience to decide….

    I discussed R&D in multiple comments. Is product development equal to R&D, or is R&D basic research of the kind governments, universities, and giant companies like IBM do? Product development is as much as a third of our revenue- how do you think any tech company does well in a market for 16 years, god forbid without patents? You really think I never heard of patent insurance owning a tech company for 16 years? I already told you it’s $125K / year. You want to call my agent? There are hundreds of competitors in my space, which is a smallish, fragmented niche market. Patents mean just about nothing at our level.

    Patents are absolutely essential for some kinds of innovation. I fully support a fair and robust patent system. Can you argue anything without a invoking a strawman?

    Patents may not be essential in the software business- there are sound arguments on both sides of that question, but since you obviously know next to nothing about the business, all you can do is invoke “innovation” like a religious mantra.

    If you are successful enough, you have to play the patent game- defensively. Observe the recent protection scheme IBM and Twitter just consummated. You think Twitter needs patents to keep competitors from copying anything they do? Not hardly. They need a big portfolio (now) to keep from being sued out of business by anyone with a patent that can remotely be asserted against them.

    Steve Jobs knew the score: http://news.cnet.com/8301-13579_3-57565314-37/steve-jobs-threatened-palm-with-patents-over-no-poaching-deal-says-court-filing/

    I posted the recent Apple comments for a reason. The mechanism of litigation abuse is clear.

    Why not read and critique the brief we participated in (retailers brief) on Alice v. CLS?

    Why your scholastic denial of a problem where the whole world sees a problem, except maybe the man whose paycheck depends on not seeing it?

    Our case is 1:12-cv-10943, District of Massachusetts. There has been little beyond scheduling and discovery yet. The fireworks start soon enough.

  34. My posts keep getting stuck, so I will go piecemeal to avoid it:
    “Why not get insurance for a potential if not likely occurrence?”
    It’s quite concerning that accidentally infringing a patent even when doing a moderate search is a likely occurence. If multiple parties in unrelated fields will stumble backwards into an infringement, can it really be argued that it’s something that isn’t obvious to a PHOSITA? Granted, what is obvious may change over time and let this happen once or twice, but the frequency it is happening in reality is quite concerning. Accidents happen by accident by definition. That those could happen makes sense, and thus some degree of insurance makes sense. However, there’s no need to incentivize things that are likely to happen multiple times by accident. Before you go on a rant about “Patentability shall not be negated by the manner in which the invention was made”, let’s talk about what that actually means. It means that Thomas Edison inventing a widget by trying 10,000 ways before reaching success, Nikola Tesla inventing the same widget entirely in his mind, and Emmett Brown inventing that widget after hitting his head would all put on the same playing field.

    The main thing that drew my ire about your responsibility statement was that you claimed that one could ‘simply’ not infringe patents. If it is a simple task, than surely other companies would do it while running successful businesses.

  35. “I said that software is a process that directs a machine and to that you respond that I’m not being intellectually honest because a mental process is not patent eligible but also a method.”
    I believe you missed my point. I was illustrating that the process is not straighforward as you claim. Mental process was chosen for my example because it is by definition a subset of processes. The USPTO agrees, and states it quite elegantly:
    Determining whether the claim falls within one of the four enumerated categories of patentable subject matter recited in 35 USC 101 (i.e., process, machine, manufacture, or composition of matter) does not end the analysis because claims directed to nothing more than abstract ideas (such as mathematical algorithms), natural phenomena, and laws of nature are not eligible for patent protection.

    You know better than this, which is why I called you out on the matter.

  36. As for Step Back’s claim about the ability to be sued for anything, that is true, but even fraudsters are going to have a hard time hitting their head on someone’s sidewalk 100 times. They would have no integreity to their skull at that point. That’s an important difference. Copyright and Patents are fairly unique in their ability to scale lawsuits as plaintiffs that way.

  37. Martin: Have you ever considered that the game has just changed? That you need to embrace patents. Get tooled up for patents and learn to deal with it. I see patents as helping quite a bit in software and I work with many start-ups. Maybe you are just old fashioned and haven’t figured out how patent do promote innovation.

    As to your abstract 101 argument: abstract is invoking a judicial exception and not applying the statute. I suspect that at no other time in the history of the U.S. has a judicial exception ever swallowed a statute as is being proposed by Lourie and his gang at the Fed. Cir. I suspect that it is an indication of the judiciary gone wild that it would invalidate 1/2 of all issued patents and re-write a statute based on a judicial exception. And, note that the only possible justification for this would be public policy but the fact just aren’t there to support such a revolutionary move as proposed by Laurie and his vigilante gang.

  38. @Synder, if the patent you are aggrieved about is so blatantly obvious as you assert, then why not simply file a reexam on it? problem solved

  39. Martin-

    I asked you a straight question and your supposed “answer” in comment 22 was a random incomplete thought. Obviously you are a game player and don’t want to engage in a meaningful conversation. Your comment: “$125K / year Gene, you can all my agent.” Is random and hardly directed as a response to such a straight forward question.

    Then you go on a rand about product development. Seriously? You have said that you haven’t developed anything worth patenting, so what exactly are you developing? Nothing new apparently, which is hardly surprising if you are only spending $125,000 per year on research and development. With 50 employees you spend that paltry sum? You must be a tremendous copy-cat.

    Looking forward to the fireworks starting soon enough for you with IBM. That will be fun to watch!

  40. Mr. Grayson-

    You say: “accidentally infringing”

    There is no such thing as accidental infringement. Infringement is infringement, period. The fact that many software companies do not want to engage in the business responsible step of determining whether they will infringe a patent does not create a problem for the system. It shows that those who recklessly choose to act without investigating are following a risky path. With your choices come consequences.

    You said: “The main thing that drew my ire about your responsibility statement was that you claimed that one could ‘simply’ not infringe patents. If it is a simple task, than surely other companies would do it while running successful businesses.”

    This comment shows just how little you know about the industry. Many of the major players in the industry don’t care if they infringe. They engage in activity without care about patents and then when they get sued the litigate. That is how the business world operates. You, however, choose not to investigate whether you are infringing and then when you get sued you complain that it is too difficult. Like so many in America today you seem to want to be absolved of the consequences of your actions, blame others and then be indignant about it in the process.

    You need to grow up.

    -Gene

  41. Patent leather-

    Are you actually adding facts to the discussion?

    Given that the lawsuit has just started Martin has all kinds of procedural tools at his disposal that are far cheaper than litigating in District Court. For example, Inter Partes Review comes to mind. Ex parte reexamination as you suggest is another tool.

    What Martin complains about and what he says he is doing are disconnected by fact.

    -Gene

  42. I am worried about your reading comprehension Gene: $125K is the quote for patent litigation insurance, less large deductibles and smallish limits per case. It’s equal to catching a case every four or five years, so the “responsible” choice is hardly cut and dried.

    As to R&D, I asked you if that meant product development or basic research, since the latter would have little use for us. I said we spent about 1/3 of revenue total on product- sometimes more or less, and I asked you how a tech business can stay a going concern for 16 years “zero” R&D.

    Your ideology blinds you; one of the most successful software companies in history never applied for a single patent before IBM shook them down. http://www.startupsip.com/2011/10/10/twitter-and-pull-down-to-refresh/#comments

    Now they have to play the game, but they did not need patents to succeed, and we certainly don’t. As I said, if we ever come up with something worth patenting, we will look at it. Your notion that nothing of value can exist without a patent is laughable, if it weren’t so sad…

    How many patents are invalided that have passed an Inter Partes Review? Most that end up invalidated? What is the invalidation rate at the federal circuit? A pretty huge number Gene. And still, all this discourse later, you wont address the retailers brief of the injustice of depending on 103 because if the incredible cost to access it….

    I said aloha once on this thread, perhaps this is au revoir…..

  43. “There is no such thing as accidental infringement. Infringement is infringement, period.”
    No, willful infringement is different than infringement that is not willful, and if you independently come up with the same idea, it is very much not willful. Granted, there are quite a few more shades in between, but you are the one trying to make it black and white.

    The more relevant point was that by infringing without even knowing of another party’s invention, there is evidence of a severe problem with how we treat obviousness. How can something be non-obvious to a PHOSITA if it is a mundane development for someone not even in the art (like Martin’s case seems to be).

    “Many of the major players in the industry don’t care if they infringe. They engage in activity without care about patents and then when they get sued the litigate. That is how the business world operates. ”
    I know that’s the case. It’s often easier to ask forgiveness than permission, at least if you have a big enough bank account to take an occasional hit. The big, successful players don’t have to follow your idea of responsibility, which puts them at a big advantage. That’s what I’m trying to get into your head. Nobody is ‘responsible’ by your standard. I asked you to name a successful company that is resposible, but you keep deflecting. What companies follow what you consider responsible business behavior and actually succeed? ‘Self-insuring’ doesn’t really count, because that’s just inuendo for ‘having lots of money’ and perhaps putting a lawyer or two on retainer.

    “This comment shows just how little you know about the industry”
    Can you behave like an adult and not be condescending towards anyone with an opinion that differs from yours? I just caught you in an outright lie about 101 that you failed to address, and you keep responding with strawmen, but you feel the need to throw ridiculous jabs at me and others. I contend that it is you that needs to do some growing up. I’ve read a lot of your articles and comments, so I know you are more intelligent than this.

  44. By the way #22 is a quote from Apple attorneys, those are not my words.

  45. Mr. Snyder,

    As I suspected (and commented earlier), the retailers brief is based on Bessen material which has been shown to be in grave error.

  46. I’m not sure why, because I have plenty of paying work to do, but out of morbid curiosity I looked at Snyder’s lawsuit on PACER. The patents he is being sued on are: 5,999,939, 6,996,561, and 7,958,059. I missed it earlier, but Anon (#28) mentioned that 5,999,939 survived an ex parte reexamination with all claims confirmed. I see also that 6,996,561 went through an Inter Partes reexam with some claims confirmed and some claims rejected. 7,959,059 has no administrative challenge filed.

    MS wrote, “IBM is bleeding us white over a nothingburger inherited 1997 patent (from an infamous defunct company) that was absurdly obvious and anticipated by 1987, if not 1967. ” Ummmm… if this patent (’939) is so obvious, why did the ex parte reexam lose? If the attorneys who filed it didn’t do a good job, then why not have your own attorneys try again?

    Incidentally, MS makes it sounds like IBM is just trolling him, but the suit was filed by Kenexa Brassring who was subsequently acquired by IBM.

  47. Yes, IBM bought Kenexa, 100%, and IBM attorneys have been directly involved with the case, and they are well aware of the inane disproportion of this litigation to the size of the defendants, any reasonable theory of damages, and the trivial nature of the “invention” to their business, or any of the defendant’s businesses.

    Patents survive reexamination all the time to later fall in litigation, as ’939 will. My opinion is that the litigation was started in the first place so Kenexa could look like a playa with some patents to bandy about, and they were right, as they sold the company.

    I don’t think IBM had any idea of the junk they bought, but they certainly should by now, and yet they persist.

    The whole dynamic is another manifestation of the rent-seeking racket that most definitely exists due to either the misapplication of patents to software or the misapplication of justice that the jurisprudence in force has wrought. I’m willing to accept software as pantantable, with reservations, while I have zero doubt the jurisprudence has been an abomination for all the reasons listed above, see comment #22, again not my words…..

  48. Mr. Snyder, I could not get past your line of propaganda:

    and they are well aware of

    [1)] the inane disproportion of this litigation to the size of the defendants,

    Under what legal theory do you propose that some proportion of litigation be to the size of the defendant? Are you suggesting that some defendants be allowed to infringe patents based on their size?

    {2)] any reasonable theory of damages, and

    I have not seen any discussion of the theory of damages – why do you think that such is a legal factor in the immediate case? Should damages – and end game consideration – be a legal factor as to enforcing a patent right?

    [3)] the trivial nature of the “invention” to their business, or any of the defendant’s businesses.

    You are aware that “nature to business” is completely irrelevant to patent infringement, right?

    Mr. Snyder, you continue to post from a well-worn script of “patents are bad” without any appreciation of the legal concepts involved. You continue to post merely with emotion-laden words, as if the patent must be junk and that you ‘must be right.’ But you have not presented any objective, legal and rational arguments to show that the patent must be junk and that you ‘must be right.’

    All I see is a witch-hunt style, pump the smoke, and quite frankly, rather bland and empty accusations with no indication that you have a clue whatsoever to the legal principles in play.

  49. Gene,
    re your comment number 31 – as any scientist would tell you, absence of evidence is not evidence of absence
    Of course, a patent claim is valid if no evidence of prior art has been brought to the attention of the examiner or court, but I cannot conclude from this that such prior art does not exist. Mr Grayson perhaps should have more accurately phrased his statement as “should be invalid” rather than “is invalid”.

  50. Martin-

    Here is a perfect example as to why it is impossible to take anything you say seriously. You are simply wrong on the facts.

    You say: “Patents survive reexamination all the time…”

    That is simply false. The reality is that only 22% of the time are all claims in an ex parte reexamination confined. 12% of the time all claims are canceled, but 66% of the time claims are changed in ex parte reexamination. Because of intervening rights all the challenger has to do is get the claims to change, which means ex parte reexamination is successful 78% of the time. So clearly what you are saying is wrong.

    Furthermore, everyone here knows that you are not being honest because if you were you would not be litigating in district court. There are automatic stay provisions provided by the America Invents Act and you could fight in an inter partes review for a lot less and the burdens are all heavily tilted in favor of the party challenging the patent. So either your representation is not very good or you are not being honest.

    You might be able to fool those who have no familiarity with the facts and realities of patent law and practice, but your erroneous views won’t survive unchallenged here.

    -Gene

  51. Benny-

    You say: “as any scientist would tell you, absence of evidence is not evidence of absence…”

    We are having a legal discussion and in the legal world the absence of evidence is most certainly evidence of absence. That is Evidence 101. A little evidence can be overwhelming evidence when he other side has no evidence. When there is a lack of evidence there is no ability to speculate.

    As far as the rest of what you are saying, it seems you are saying that even without any evidence that a patent claim is invalid it shouldn’t be presumed valid. So you must necessarily be taking the position that a patent is not a property right. Correct?

    On the trademark side of intellectual property the law bestows inconstestable status to a trademark after 5 years of not having been challenged. In that scenario the absence of evidence prior to status being granted is legally equivalent to evidence of absence that results in the trademark being unable to be challenged except for fraud or being generic. The patent laws should adopt that same construct. At some point the rights in a patent must settle otherwise it is not a property right.

    -Gene

  52. “We are having a legal discussion and in the legal world the absence of evidence is most certainly evidence of absence.”
    Certainly not in the case of prior art. If new evidence were to arrive, that could change the validity of a patent.

    “As far as the rest of what you are saying, it seems you are saying that even without any evidence that a patent claim is invalid it shouldn’t be presumed valid.”
    I believe we are advocating a scientific approach. Given a lack of evidence to the contrary, a granted patent is presumed valid, but if new evidence arrives that challenges that viewpoint, our presumptions change accordingly. In science, no assumption is beyond further scrutiny.

    So you would doom Red Hat to paying off IP Innovation, whose “inventors” clearly were not inventors, then? Patent 5,072,412 was invalidated about 19 years after it was granted when it was shown that Amiga had commercially released the idea a year before their priority date.

    Trademark incontestible status makes sense since it requires active usage and can last indefinitely. If someone were to challenge Coca-Cola at this point, that would be bizarre because we all know what ‘Coca-Cola’ means.

    While I’m sure you fantasize about this notion of incontestible patents, it serves little purpose to legitimate patent holders or the public. Also, since you seem to be harping on others regarding the law, I’ll point out that the law says nothing remotely close to that, and never has, as far as I’m aware. It’s merely an item on an attorney’s wishlist. I might support the notion, so long as it is limited to 26 years after the application date. If you want to stop challenges then, go ahead.

  53. Pardon teh duplication – one caught in filter:

    Gene,

    I believe that what Benny is trying to say (and giving him the benefit of the doubt, as he has shown not to be knowledgeable in law), is that for serial challenges, a piece of evidence missing in a first challenge but introduced in a succeeding challenge may be all that is needed to switch the decision from “patent is not invalid” in the first challenge to a “patent is invalid” in the second challenge.

    This, of course, is a truism. But it is a legal mistake to think that such a truism amounts to anything more than mere speculation. The plain truth is that if one were to grant the speculation that there may always be OTHER prior art in the universe not included in a first challenge, then there is ALWAYS a shot at a subsequent challenge succeeding where the first challenge did not.

    However, this does not prove the point being advanced by these non-law people.

    Possibility is not probability, let alone clear and convincing evidence.

  54. Mr. Grayson – a strict scientific approach is not the correct approach.

    You need to apply a legal approach – this is law we are discussing.

    As to Gene’s view on incontestability, I am not sure that I share it (or share it completely). I do recognize why he likes it – and it does tie directly to the fact that a patent has a limited shelf life – while trademarks (if properly maintained) can for unlimited times. That very fact makes it more urgent (not less) to be able to provide the legal notion of ‘quiet title’ so that clarity and value – and not perpetual questioning – are afforded the patent right.

    Your 26 year comment is rather facetious.

  55. Mr. Grayson-

    You say: “If new evidence were to arrive, that could change the validity of a patent.”

    So now to combat my argument you are changing the facts. Of course, if new prior art surfaces that could change everything. But then again that would be evidence, wouldn’t it?

    I think you are confusing logical with the law. The law is about proof. The fact that no proof exists is relevant, particularly when there are many millions, or in the case of biotech or pharmaceutical innovations many billions of dollars at stake. We all know the effort that goes into finding prior art, which is why challenges to patents bring up the same prior art over and over again without finding anything new.

    Whether you like it or not patents are presumed valid, which means the claims are valid unless and until there is evidence proving otherwise. So the absence of evidence means the claims are valid.

    You say: “In science, no assumption is beyond further scrutiny.”

    Not to take this into a political debate, but there are unfortunately plenty of assumptions where further scrutiny is prohibited. Take global warming for instance. If you challenge the orthodoxy, which has been proven to be built on fabricated evidence, you are vilified.

    You ask: “So you would doom Red Hat to paying off IP Innovation, whose “inventors” clearly were not inventors, then? Patent 5,072,412 was invalidated about 19 years after it was granted when it was shown that Amiga had commercially released the idea a year before their priority date.”

    I’m not as familiar with the facts of the case, but if Amiga commercially released the idea a year before that would not be enough to invalidate claims. There is a lot that goes into invalidation of patent claims, and an idea is insufficient. If the claims were invalidated it had to about more than an idea. But philosophically speaking, a patent dispute is between two parties. The legal system is set up so that parties can resolve their disputes. If the defendant is unable to prevail there is nothing immoral about a plaintiff prevailing. To suggest that this sort of thing happens only in the patent sphere is incorrect. Unprepared defendants lose in a variety of areas every day.

    You say: “While I’m sure you fantasize about this notion of incontestible patents, it serves little purpose to legitimate patent holders or the public.”

    Obviously incorrect. I’ll be happy to respond and explain why if you care to do more than nakedly make an obviously flawed and overbroad assertion without support.

    You also take issue with my common sense suggestion that at some point a property right, such as a patent, actually settle so that investment can be safely made. That would without question result in far more investment in innovation. Still, you don’t like it for reasons that are not explained. You do, however, say: “It’s merely an item on an attorney’s wishlist. I might support the notion, so long as it is limited to 26 years after the application date.” This is what makes debating you and Martin so difficult. It seems you are unfamiliar with the law. How long to you actually think patents last?

    You write: “If you want to stop challenges then, go ahead.”

    This type of comment is the hallmark of one who is defeated. Everyone who has read this chain knows I have not said that challenges should be stopped. Everyone who is familiar with my writings know that I have written about bad patents and the bad actors who engage in extortion-like behavior. So you are intentionally mischaracterizing what I have said here and elsewhere because you are wrong and can’t win in a debate. So let me try and explain this so even you can understand what I’m saying and in a way that even you couldn’t intentionally mischaracterize what I am saying moving forward…

    Patents are a property right and like every other property right should settle in ownership at some point. If patents can be serially challenged for the life of the patent then there is no property right, and there really is little justification for spending the many tens of thousands, if not hundreds of thousands, to obtain a patent over the span of 5 to 10 years or more.

    Patent challenges are fine, but they should come within a reasonable timeframe and after some point should not be allowed. Settled patent ownership would without a question lead to greater investment, which would lead to jobs, more innovation and a growing economy.

    -Gene

  56. Anon-

    You say: “Possibility is not probability, let alone clear and convincing evidence.”

    Amen!

    -Gene

  57. “You need to apply a legal approach – this is law we are discussing.”
    The law is in line with what we are claiming as well, although it involves more more specific channels than a scientific approach might. The patent can be invalidated with another challenge with proper evidence. You readily admit that, which is what we are saying. There are some discrepencies about the viewpoint of whether a patent that was eventually invalidated was ever valid, but that’s more of philosophical concern than a legal one.

    I unhderstand why Gene likes it as well, but I’m not sure if what he expect is how it would play out in practice. If we go with five years after grant as the standard (as five years after application would be a potential nightmare due to various tricks applicants could use to delay grant and publication), then what would likely occur is a barrage of people paid to explicitly write out every conceiveable combination and iteration of ideas, and others to comb through this and other sources to stop as many patents as possible before they potentially become deadly weapons. It would be an enormous waste of time and money since most patents are never used anyway, and could quite likely harm the overwhelming majority of patent holders as efforts to carpet bomb patents take place. It’s also quite likely that it would tip the scales even further in favor of big businesses who can afford to increase their number of submissions tenfold while not putting another dollar into actually R&D. Perhaps this would be a boon to patent attorneys (although their services suddenly become much less useful), but certainly not to most clients.

    “Your 26 year comment is rather facetious.”
    Jokes have a tendency to do that.

  58. “But then again that would be evidence, wouldn’t it? ”
    The generally understood meaning of that statement is that the absense of CURRENT evidence is not evidence of the absense. I’m sorry that you misunderstood what that phrase meant.

    “Not to take this into a political debate, but there are unfortunately plenty of assumptions where further scrutiny is prohibited. Take global warming for instance. If you challenge the orthodoxy, which has been proven to be built on fabricated evidence, you are vilified. ”
    If you were to present legitimate evidence that challenges global warming, and you were vilified, then those vilifying would be taking an unscientific approach.

    “I’m not as familiar with the facts of the case, but if Amiga commercially released the idea a year before that would not be enough to invalidate claims.”
    Sorry for my mild misuse of jargon. Some of us are somewhat less accustomed than you at speaking in legalese. Amiga commercially released a product implementing the patent (thus providing prior art) a year before. After a demonstration, a court ruled that the patent was invalid and Red Hat was victorious.

    “This is what makes debating you and Martin so difficult. It seems you are unfamiliar with the law. How long to you actually think patents last? ”
    Since the URAA, 20 years after the application date (there’s also the 17 years after grant for some patents caught in the transition period, but that wouldn’t be relevant to a new change to the law). The statute of limitations for patent infringement claims is 6 years. Simple addition will explain how I decided 26 years was a time where I have no issue with stopping further challenges.

    “Patent challenges are fine, but they should come within a reasonable timeframe and after some point should not be allowed.”
    Then you would doom Red Hat in that case, thus rewarding someone who was not an inventor and punishing a party that is actually innovative. They successfully challenged the patent, but at 19 years into its life. You would seem to have a problem with this, since the challenge didn’t happen early on. If that’s your opinion, just own up to it.

    Also, you don’t seem to grasp the threat of your idea. Patents can sit on a metaphorical shelf doing nothing for a long time, and most do their entire lifetime. There is no reason to challenge a patent prior to it’s assertion (or at least belief that it will be asserted), and this is ideal for everyone.

  59. Mr. Snyder:

    if you don’t innovate anything worthwhile to patent, and you don’t spend on R&D (by the way, the two generally go hand-in-hand) and yet you want to participate in an arena with those who do – then why not either buy the insurance, pay the license $fee, or drop the feature that is copying the patent?

  60. Mr. Grayson,

    How many times do you feel is right to serially attack a patent? Is there some rough #number you have in mind where you would say after X failed attempts then the patent owner should be left alone to develop or commercialize his/her invention and no further attacks are allowed?

    I ask because I believe that ALL patents can be shot down at some point with relatively modest amount of $resources. They’re ALL combinations of things that came before. While I’m focused on creating software, I do believe that it wouldn’t take any large set of resources to attack ANY previous patent – whether Wright brothers, Edison, or Google’s first patent that enabled them to get their initial funding. EVERYONE of those small guys (even Edison and Google were small at the start) could have been tied up in courts for years and we/society would be different today.

  61. “Is there some rough #number you have in mind where you would say after X failed attempts then the patent owner should be left alone to develop or commercialize his/her invention and no further attacks are allowed?”
    Of course not, that would be ridiculous. You’d end up with schemes with strawman attacks on patents to use that number up.

    “I ask because I believe that ALL patents can be shot down at some point with relatively modest amount of $resources”
    In that case, there are no truly valid patents, and the only reason they stand is because it’s typically not worth the effort to fight them. The conditions you and Gene are advocating don’t really make much sense. If instead of 20 reviews with 20 sets of evidence, you had 1 review with all of that evidence at once, the results would theoretically be the same. Likewise for if the review happene 1 year after issue or 19. The incontestable status idea isn’t good for the public or innovators.

    “EVERYONE of those small guys (even Edison and Google were small at the start) could have been tied up in courts for years and we/society would be different today.”
    How could it be different if the law hasn’t changed in that regard?

  62. Mr. Grayson,

    You’ve missed my point – I was asking from a philosophical and society perspective – how many times do you feel is right to attack a patent after the PTO has done their due diligence in verifying the patent application before issuing?

    BTW – thank you for lumping me in with Gene – I value his experience and wisdom and am rewarded by reading his in-depth articles – but must say that I am not in the legal profession whatsoever and take this as a compliment :-)

  63. Mr. Grayson, it concerns me when you said:

    “In that case, there are no truly valid patents, and the only reason they stand is because it’s typically not worth the effort to fight them. ”

    Really? Is this really how you feel? There have been no valid patents or inventions EVER? When I said Edison – I literally meant Edison. When I said Google – I literally meant Google. Are you saying they have not innovated?

    Wow, you are more anti-patents than I have ever seen anyone been.

  64. I’m talking about post-issue challenges, and I see no reason to limit it, and neither does the law.

    “Wow, you are more anti-patents than I have ever seen anyone been.”
    I was merely applying your logic that all patents could be invalidated if a moderate effort were applied, not making a claim of my own, but have you really not seen people criticize Edison before? In such a case, I would highly recommend getting out more.

  65. Mr. Grayson,

    At #43 you said: ” What companies follow what you consider responsible business behavior and actually succeed?”

    Hey – how about small innovators that try to innovate and play by the rules only to get screwed around by large companies? When a small inventor (software or not) approaches them, they are misled astray into believing the large corporation is actually interested in pursuing a business relationship with them – only to later discover (after enough data about the inventor AND the invention has been accumulated by said large corp) that now they’re suddenly not interested anymore.

    Who do you think society has a bigger interest in protecting – the large corporation or the small guy trying to innovate?

    Furthermore, the small guy discovers that he stands NO CHANCE at playing the court game with the large corporation (e.g. drag things out in courts for years and years) and so in the end in an effort to just put food on the table for his/her family has to resort to selling off his patent(s) off to what is today mis-labelled as a “patent troll” – where the “troll” DOES have the resources to fight the large corporation.

    So, while I’m no fan of litigation, the “patent troll” is no troll but actually about the closest thing to a *HERO* that the small guy has. Patent Hero if anything.

    So, in answer to your question – I’ll suggest adding the Patent Hero to the small innovator to businesses that ARE acting responsibly.

  66. The responsible behavior in question was in regards to responsibly practicing to avoid or minimize patent liability, something a non-practicing entity can’t do by definition, whether they are a ‘troll’ or a ‘hero’. NPEs are not playing, so they can’t have a winning move.

  67. jodi,

    You should recognize that Mr. Grayson at 64 and 61 merely took a misstatement of yours and applied logic to it.

    You do not appear to understand the legal notion of obviousness – and he played on that mistake.

    Notwithstanding the notion that “They’re ALL combinations of things that came before.” does not mean that they all fail for obviousness.

  68. Mr. Grayson,

    Your “to responsibly practicing to avoid or minimize patent liability, something a non-practicing entity can’t do by definition” is flat out wrong as a matter of law.

  69. How so? A non-praciticing entity can’t be sued for patent infringement, since they don’t practice anything that they can be sued for. Perhaps entities like MPHJ have lowered the bar for ‘practicing’ by quite a bit, though, but the tradional ‘patent trolls’ are often just one lawyer, which means they have virtually no surface area to attack.

  70. Your statement held an implication that a non-practicing entity is de facto irresponsible or must engage in irresponsible behavior.

    The fact that an entity does not practice is immaterial as a matter of law to patents, enforcing patents, and thus combating patent infringement.

    Having “surface area” to counter-attack or not is one of those “nice-to-have’s” that go along with the large corporation’s Nuclear Armageddon strategy that is a bane – not a blessing to society.

    Your post obfuscates this.

  71. My apologies if I wasn’t clear, but what I was saying was that non-practicing entities don’t realistically have to worry about getting sued for patent infringement, so they don’t have to concern themselves with this particular responsibility (which was what the ‘responsibility’ talk was all about). It doesn’t imply irresponsibility on their part any more than a business that doesn’t have a sidewalk is irresponsible because there’s no possible way for someone to slip in front of their business.

    So please, don’t try to put words in my mouth. It’s quite rude.

  72. Mr Grayson-

    You say: “The generally understood meaning of that statement is that the absense of CURRENT evidence is not evidence of the absence.”

    You can believe that if you like, but you are mistaken. Word really matter. It is how we convey meaning.

    You say: “Then you would doom Red Hat in that case…”

    I am not familiar with the case, but if they lost then they lost, period.

    The other thing you seem to conveniently be ignoring is the possibility that 19 years into a patent the patent owner may well have been disinterested. The Smuckers uncrustables patent is a perfect example. In reexamination claims were lost because Smuckers didn’t participate. They had already achieved dominant market position and really didn’t need the patent any more. So many incorrectly say that this proves the invention was ridiculous. No, what it proves is that Smuckers gave up.

    You say: “There is no reason to challenge a patent prior to it’s assertion…”

    Why not? That isn’t the way things work in the trademark world. At some point if it is a property right then title needs to quiet. This is an extremely easy concept to grasp. If title didn’t’ quiet in real property who in their right mind would invest to maintain and improve? No one. That is why in third world countries where dictators can take property as they see fit there is no value to real property. There are plenty of real life experiments to demonstrate this simple truth. What you fail to grasp is the reality that investment would be much greater, which would lead to more innovation, more jobs and a rapidly growing economy. There cannot be any serious, rationale debate otherwise.

    -Gene

  73. “You can believe that if you like, but you are mistaken. Word really matter. It is how we convey meaning. ”
    Yes, but for the sake of brevity and the world’s lack of time machines, not all phrases are completely explicit.

    “I am not familiar with the case, but if they lost then they lost, period.”
    No, they won, but they won by fighting the patent outside of the early years. If you had your way with the incontestible status, Red Hat would have lost.

    “The other thing you seem to conveniently be ignoring is the possibility that 19 years into a patent the patent owner may well have been disinterested.”
    Seeing as IP Innovation was in a lawsuit against Red Hat, that is not a reasonable possibility.

    “Why not? That isn’t the way things work in the trademark world.”
    And how exactly is that relevant? Trademarks and patents are very different, as they should be.

    “If title didn’t’ quiet in real property who in their right mind would invest to maintain and improve?”
    And real property can be improved. The claims of a patent are going to remain more or less static, with little to no discernable improvement. Again, there are differences, and there should be. We don’t have to have tio have everything act in an identical matter.

  74. Mr Grayson,

    You keep on saying “as it should be” as if that is an answer to why Gene is looking at the mechanism – quiet title – and you have not addressed that issue.

    While I do not necessarily agree with the Trademark analogy, the reason it is being brought up – again, quiet title – is arguably even more important for patents than it is for trademarks, given the limited shelf life that patents have. You have already provided your view on patents with lame humor, so I feel the need to stress the importance more so for patents than trademarks of quiet title.

    Do you have a better (or even a different) suggestion for achieving quiet title, or do you feel that the question of title should lay fallow and undeveloped?

    Personally, a view that I would like to see adopted is a de facto court taking official notice that patents are known. Make the patent power greater and you will create the impetus to make people be more aware earlier. By doing so, you drive people to pay attention to the patent system. Instead of the lackadaisical “I’ll wait for assertions,” make people want to be aware. To me, such is much more in alignment with the very purpose of the patent office.

    And I will only offer a partial apology for the ‘putting words in your mouth,’ as your posts have been too coy for a full apology. For example, instead of correcting jodi (obviously not an attorney) for an obvious error, you played her and made a ridiculous statement that you surely would have let ride. So my point about your posts obfuscating things still applies, although I do apologize if it was indeed your intent not to denigrate non-practicing entities (plus, you could have said what you said without the emphasis on responsibility at all – no one forthrightly talks about those without sidewalks as not tending to a responsibility (while coyly knowing that no such responsibility is even in play)

  75. “Do you have a better (or even a different) suggestion for achieving quiet title, or do you feel that the question of title should lay fallow and undeveloped?”
    I think that the value of quiet title is minimal, while incontestible patents would be devastating. I also would argue that it would encourage a lot of wasteful behavior to put down otherwise harmless patents before they reach that state becuase of the potential threat they pose. The likely result would probably be far more patents being invalidated.

    “Personally, a view that I would like to see adopted is a de facto court taking official notice that patents are known.”
    Do you care to explain exactly what you mean by that?

  76. Mr. Grayson-

    You say: “I think that the value of quiet title is minimal…”

    Do you own any real property or do you rent? Making a statement like that I would have to assume you are either extraordinarily naive or you are a socialist that rents and does not own.

    -Gene

  77. Rent is socialist? That’s a mindbogglingly incorrect view of economics. However, I meant that in regards to patents. If someone challenges the title to your house, you could lose your house and have no place to live. The value of a house remains pretty consistent over time. Comparing real estate and patents is ludicrous.

    By contrast, the legitimate usage of a patent is going to be frontloaded outside of medicine (for which challenges to patents are exceptionally rare as far as I’m aware). Note the Smuckers patent you mentioned. The value was in the early years, in which they gained market share. This period would be when you wouldn’t have quiet title under your proposed system.

    One point of clarification, though, is that I meant the value to society, not to a patent holder. Yes, it would potentially be incredibly valuable to a patent holder if the technology remained it use. However, it would serve little legitimate purpose as it would only be protecting patents that couldn’t stand up to a reexam. Basically, it would only serve to enable parasites.

  78. Apologies again if this appears in duplicate – the filter caught the first post

    Mr. Grayson,

    I see implicit in all of your comments a too-detached view from the realities of the world and an antipathy to intellectual property.

    Quid Pro Quo symbolizes an equal exchange. Equal. The State is not placed above the inventor.

    You label as ludicrous and move on. You make inane jokes and move on. It is as if you do not want to acknowledge value where value truly exists. You have avoided the concept I asked you to look at by simply dismissing the value of quiet title, without recognizing that the life span of a patent is limited, and thus, quiet title is more – not less – important. Your very attempt to place the importance of a patent’s life in its early years as detracting from quiet title only serves to heighten – not lessen – its importance. Something about a (bad) joke with 26 years returns to mind…

    Be that as it may, clearly you wish to minimize patents. As a student of innovation for all of my adult life, I believe that you simply have no real grasp of the subject. It is without doubt that strong patents promote innovation. My comment on official notice stems from both the notice function that the patent system is meant to promote and the concept of treble damages for noticing – and then disregarding – what the patent system provides. I have seen actual examples of corporate management directing its people to stay away from reviewing patents and patent applications to avoid knowledge. This is a perversion – an understandable one given how the treble damages provision is applied – but a perversion nonetheless.

  79. I have to wonder what MS’s legal team spent 500K on without filing an Ex Patre reexamine, given MS’s contention his prior art would obviously (pun intended) invalidate ’939? Either they are not as confident, or its the legal team bleeding MS, not IBM.

  80. Mr. Grayson-

    No, renting is not socialist. You can lose the inappropriate moral indignation.

    What is socialist is not understanding the importance of individual property rights. You haven’t a clue about the value of certain ownership of property, which means that you are a socialist. But even as a socialist you would have more respect if you owned property. Even socialists that own property don’t want to lose what they own. So it wasn’t difficult to peg you as a socialist who rents, which most certainly is not “a mindbogglingly incorrect view of economics.” What is incomprehensible is your lack of knowledge on a subject that you seem so passionate about. You really need to inform yourself about basic economics and patent law too.

    -Gene

  81. Maybe I’m blocked by IP or name, but my comments aren’t making it up anymore. Maybe Gene tired of actually debating someone who could dance with usual bullying tactics…

    If this one does, the whole reexamination line is a red herring; there have already been millions spent on this patent in previous litigation(s). That’s why it will be ironic when a chumper like us finally drives the stake.

  82. Mr. Snyder,

    You continue to hold way too high a view of your posts with a comment like “Maybe Gene tired of actually debating someone who could dance with usual bullying tactics…

    Perhaps you would like to ‘debate’ any of the points that I (or others) have put to you, instead of continuing to play the emotion-laden words in an absence of legal arguments.

  83. If millions have been spent in previous litigation, then the “red herring” is more likely MS’s initial assertion that the patent is “a nothingburger inherited 1997 patent … that was absurdly obvious and anticipated by 1987″, than the “reexamination line.”

    We can also conclude either MS does not understand litigation of an infringement suit, or his legal team has done a poor job of developing an effective cost effective strategy.

  84. Mr. Snyder has taken to these boards in the past with grand oratory that amounts to nothing.

    I see nothing new here from him.
    If he ever wants to have an actual discussion on the law, I would welcome such.

    I will not be holding my breath for that day.

  85. “Quid Pro Quo symbolizes an equal exchange. Equal. The State is not placed above the inventor.”
    There is no compelling reason for the state to suddenly change it’s behavior. If inventors suddenly assess, that after hundreds of years they’ve just realized that they aren’t getting a good deal, they are more than welcome to take their ‘Quid’ and go home.

    “What is socialist is not understanding the importance of individual property rights.”
    I undesrtand it quite well. I just don’t buy that treating patents like real estate is good idea. To me, it reads as you whining that your job is too hard, so you want a change that you think would make it easier regardless of who it harms. your idea is a potential nightmare, but you seem unable to see the harm it could present.

  86. Martin-

    I can assure you that I didn’t tire of debating you. Few people give me the opportunity to expose them as know-nothings like you have.

    So why are you afraid of reexamination, which succeeds 78% of the time? Why are you afraid of inter partes review? Do you realize that it is MUCH easier to prove patent claims are invalid in inter partes review because there is no presumption of validity? In litigation you must demonstrate patent claims are invalid by clear and convincing evidence. In inter partes the burden is merely a preponderance, which is much lower.

    You see, what you say is so unbelievable. Anyone who believes what you have professed here would not fight in district court. They would run to inter partes review, which is much cheaper and provides substantial procedural advantages to the challenger. So you refusal to use a cheaper, more effect means to challenge the patent is very telling indeed.

    -Gene

  87. Mr. Grayson-

    You say: “I just don’t buy that treating patents like real estate is good idea.”

    That is correct. Patents should have MUCH greater rights of exclusivity than real property. Real property lasts forever, the life of a patent is at most 20 years. Of course, the overwhelming majority of patents fall into the public domain after either 4 or 8 years. I wonder if you were aware of that fact?

    You say: “To me, it reads as you whining that your job is too hard…”

    Now you are just making up stuff. I never said or suggested anything like that. If you want to fabricate go elsewhere. That type of misrepresentation is not allowed on IPWatchdog.com.

    -Gene

  88. Permanantly being settled is much more important for land because it lasts forever and is inherently scarce. My ownership of land precludes your ownership of that same land.

    You could also strengthen patents by making them permanant, and I’m sure many patent attorneys would love the idea but that would be insane. For similar reasons, incontestible patents are a bad idea. There is no compelling reason for the state to allow either idea. There would be no significant increase in actual innovation, although spamming the USPTO might happen, and there would be tons of harm.

  89. Mr Grayson,

    Your statement of “There is no compelling reason for the state to suddenly change it’s behavior. If inventors suddenly assess, that after hundreds of years they’ve just realized that they aren’t getting a good deal, they are more than welcome to take their ‘Quid’ and go home.” is flawed in two critical aspects.

    1) The current state of patent law and its underpinning premise of Quid Pro Quo need no “‘change” – by either the state or inventors. Your reply to the extent that it indicates otherwise is simply wrong. As I indicated – the exchange is meant to be an equal exchange.

    2) The admonition of inventors taking their “quid” and going home is misplayed. The “quid” is what inventors receive. It is the “quo” that they provide. Further, the system exists for the very reason that an exchange is desired. Your seeming admonition of “don’t bother” is exactly the wrong message to be putting into place.

    So you are wrong to being with, and wrong in the direction that you seem to advocate.

    This is not surprising, given your anti-patent leanings. I mention this not to change your mind (of which I doubt that you are open to), but to point out that your advocacy skills here fall short.

  90. “The current state of patent law and its underpinning premise of Quid Pro Quo need no “‘change””
    The law would need to change for this idea to happen. It’s already equal enough for most patent applicants. There’s no compelling reason for further enticement.

    “Further, the system exists for the very reason that an exchange is desired.”
    To the extent that it is beneficial to society, just like any the parties in any other exchange anyone voluntarily engages in. We could probably get more patents if we guaranteed inventors a million dollars and patents lasted for a hundred years. However, that would be a very bad deal on the side of society.

  91. Ah well now my comments appear to be blocked again, Gene you are unreal. Had to get another IP range so this will go up; I’m not going to bother again. Oh and we come to the cowardly Anon, always judging, never willing to be judged…..

    I’m not a lawyer- so I can’t argue with the full skill and knowledge of one. However, not being a priest does not remotely mean one can’t apprehend and decry the standing orthodoxy where the orthodoxy is unjust, and if I had not been personally hammered by what I KNOW is certain injustice, I would not be on these boards.

    All the way back to the original point: 103 is unjust because of the cost to access it. 101 is attractive because of the low cost to access it in the real world. In the fantasy world here, litigation abuse does not exist, victims are at fault somehow, and proving obviousness is a simple matter of a reexamination (no talk of the downsides to flushing your prior art if you lose at USPTO, which is a crapshoot).

    So it’s attack the messenger; they are anti-patent (I’m not), irresponsible (I’m not) merely guilty (I’m not) looking for unfair advantage (I’m not) unwilling to compete (I’m not) unable to compete (I’m not), poorly advised (i’m not), un-innovative (I’m not), uninformed (I’m not) and even if I were everyone of the above, the message still stands: The asymmetry of litigation expense to access 103 et al. is the entire problem, esp. with software and business method patents, because bright lines are virtually impossible to draw.

    The message is real, its this bubble that’s in need of illumination.

  92. Mr. Grayson,

    Your comment of “The law would need to change for this idea to happen” is dead wrong. Sorry, but if you think otherwise, you simply do not understand the law here.

    Your second comment is likewise wrong, as you still seek to put the equal barter to the favor of one side. Doing such simply is not equal. I cannot be more clear on this basic proposition of patent law. Again, for you to disagree only points out that you do not understand the law.

    Mr. Snyder,

    Your comment of “Oh and we come to the cowardly Anon, always judging, never willing to be judged….. is completely out of line.

    How exactly have I been a coward?

    How exactly have I done anything but express a desire to have an honest discussion of the law? No sir, it is not I that has been the coward. Read again my very first post and see if you understand why I say that you suffer from a bias that you cannot overcome. Repeatedly, you write as if you must be right, but you fail to actually establish that you must be right. You consistently use poor rhetoric steeped in emotion rather than fact or law. History is replete with those that deem themselves to KNOW justice, when a calm and rational view shows exactly otherwise. You continue to seek a knowingly wrong view of the law, not ever pausing to consider those that you would harm in your wrong application of that law, only seeing your own perceived rigorousness. You continue to ploy an undeserved self righteous and errant view.

    Have the courage and decency to see yourself as your are. Stop with the groundless accusations.

  93. A coward does not use her real name when there is no real risk, except embarrassment, in doing so.

    And the point of law where my view(s) are wrong?

  94. Mr. Snyder,

    Your idea that posting in pseudonym is cowardly is badly (even tragically) mistaken.

    You only embarrass yourself by intimating such.

    And a point of law where your view is wrong (just one as an example) is why the law of 101 exists. As for others, you might try actually reading the posts made on this thread.

  95. Really Anon? Will the KGB come for you? Stasi? Matters of national security here on this board?

    No, you “post in pseudonym” to avoid the embarrassing consequences of noxious behavior in the real world.

    Dressing it up (tragically!) in some kind of higher ideal is sophistry, so don’t strawman with the (obvious) value of anonymity in other situations; its the here and now that counts. What’s funny is your writer’s voice is distinctly unpleasant enough that any other anon on this site would not be confused for you….

  96. Do you care to explain what part of current law or case law would allow incontestable status of patents? It’s quite easy to track down those laws for Trademark, but I can find nothing of the sort for patents.

    As for being one sided, it’s impossible for the patent ‘quid pro quo’ to be one sided against patent holders, assuming they are capable of acting in their own self-interest, and that procedures don’t change after the grant. Their involvement is entirely voluntary, and they disclose only as much information as they are willing to disclose.

  97. Martin @ #91

    You say: “Gene you are unreal. Had to get another IP range so this will go up; I’m not going to bother again. Oh and we come to the cowardly Anon…”

    Your comments were not blocked, but they will be now. You and your illogical, erroneous rants have taken up enough space on IPWatchdog.com. You are banned.

    -Gene

  98. Mr. Grayson-

    You ask: “Do you care to explain what part of current law or case law would allow incontestable status of patents?”

    There is no current law or case law, as I have explained over and over. I’ve grown tired of you as well. You mischaracterize and misrepresent what is being said here. So you can go elsewhere. You are banned.

    -Gene

  99. A duplicate caught in the filter can be deleted

    Mr. Snyder,

    With all due and sincere respect, none of my posts has the slightest hint of “embarrassing consequences of noxious behavior.” This is just one last desperate attempt by you to use inflammatory emotional language unhinged from the reality of the conversation.

    Not a single one of my posts are noxious, nor would carry any sense of embarrassing consequence. In any manner. I implored you to take some reason and apply such to actual law. Anonymity is not only for times of strife or dire consequences – and has that ever been the case. You confuse one rational among many that exist. To accuse me of cowardice, when there is none, to accuse me of noxious behavior, when there is none, and to accuse of sophistry and strawmen, when there are none is well beyond the pale of reason and decorum. Plainly put, my posts have used reason and knowledge of the law to dispel the lack of both from you. And while this may have been the last time, it certainly was not the first time.

    Mr. Grayson,

    A parting word for you as well: you do appear more learned in law, at least in some respects, but your all too willingness to be coy and play loose with the law, and to inject your personal philosophies on topics of law (such as the Quid Pro Quo) that such topics do not permit is a large part of your downfall here. There is nothing wrong with having different philosophies or disagreeing about Gene’s philosophies. I said repeatedly that I do not agree with a trademark style treatment. It is quite another to try to play word games and mislead. I tried to bring you to bear on the larger point that patent rights are more precious in some regards due to their limited shelf life and you only wanted to either ignore the point or make bad jokes about the point. Your post at 96 concerning the Quid Pro Quo is yet another example. You post a meaningless statement about “impossibility” and “disclose as much as they care to” which has absolutely nothing at all to do with the equality of the deal and the fact that the deal is not slanted in favor of the government. You choose not to address the point under consideration and instead choose to obfuscate. Games like that – as you can see – are not appreciated nor tolerated for long.

  100. “Thus, software can be explained on its core level as a process for manipulating logic gates.”
    I would say that “software is an algorithm for building a machine made of logic gates”. When the software is compiled the machine has been built. The structure of the machine is revealed through the algorithms used by the software. If you want to compare a claim for a machine built this way with the prior art you must require that the algorithms be sufficiently disclosed so that a comparison of the new and old algorithms can be made to determine whether there a patentable distinction between the structures of the machines.
    For example, my algorithm uses sets while the prior art uses do-loops which requires more clock cycles, therefore, my algorithm is distinguishable and is patentable; or my algorithm uses pointers while the prior art does not, therefore, my algorithm requires less assigned memory space, which is a patentable distinction; or, more simply, my algorithm has never been created before so it is patentable.
    Patent attorneys rarely know how to extract such details from inventors, and so they must share the blame for the crap software patents out there.

  101. Some software is algorithmic. Some software is used to control devices. Typically we verify algorithmic software while we validate control software. I am sure many software engineers could provide much more nuance.

    As for the algorithmic examples, I am not sure using a set (foreach member of Set A) is not logically equivalent to a do-loop, and the claim about cycles would have to be proven. In addition, the term “pointer” could cover address, index, label, etc.

    Can the “abstract idea doctrine” be redeemed?

    The distinction seems to be between abstract and non-abstract ideas. Pure or abstract mathematics provide the obvious examples of abstract ideas. Mathematical theorems and mathematical formulas are thus the fundamental abstract ideas while laws of nature and natural phenomena represent slight extension to the concept of abstract mathematical ideas.

    Normal language reflects the key characteristic of mathematical theorems, mathematical formulas, laws of nature, and natural phenomena. No one invents them, and no inventor should be able to formulate a claim consisting solely of a mathematical theorem, a mathematical formula, a natural law, or a natural phenomena.

    If a patent examiner rejects a claim on the grounds that it is purely a claim to an abstract idea, he should be able to identify or to explain clearly which mathematical theorem, mathematical formula, natural law, or natural phenomena the inventor is trying to claim.

  102. Joachim-

    You say: “If a patent examiner rejects a claim on the grounds that it is purely a claim to an abstract idea, he should be able to identify or to explain clearly which mathematical theorem, mathematical formula, natural law, or natural phenomena the inventor is trying to claim.”

    I agree 100%. Otherwise the law is just letting the patent examiners (and Judges too) conclude that something is an abstract idea without explanation.

    -Gene

  103. Joachim-

    You say:
    “… mathematical theorems, mathematical formulas, laws of nature, and natural phenomena. No one invents them, and no inventor should be able to formulate a claim consisting solely of a mathematical theorem, a mathematical formula, a natural law, or a natural phenomena.”

    This may be getting a bit too meta-philosophical for this blog, but in fact human mathematics is an invention of the human mind. It is not an absolute truth about the universe we live in and it is probably a mis-truth; a twisted way in which we humans see the universe. Not inherently the way the universe actually is.

  104. While a mathematical system may be an invention, a theorem is a derivative of the fundamentals of the system. Usually one derives or proves a mathematical theorem. One does not invent a theorem. It is probably not unreasonable to exclude mathematical systems from the realm of patentable inventions. Maybe I have suffered through too many math, philosophy, and linguistics courses, but if we are really to make a sensible legal distinction between abstract and non abstract ideas, only ideas associated with the foundations of mathematics can truly be considered abstract.

  105. While George Berkeley, Bishop of Cloyne, one of the great philosophers of the early modern period, was not arguing specifically with respect to patent law, he did point out that the doctrine of abstract ideas is responsible for “innumerable errors and difficulties in almost all parts of knowledge.”

  106. It is probably not unreasonable to exclude mathematical systems from the realm of patentable inventions.

    Sorry, Joachim, perhaps I am not following the conversation correctly, but to step back’s point, it would probably be exactly unreasonable to exclude mathematical systems from the realm of patent-eligible inventions.

    Note that I am correcting your syntax, as patent eligible and patentable are two distinct concepts, and at the category level, one does not talk of “patentable.”

  107. Meanwhile, at the OK White House Corral place:

    The Obama administration believes the new actions [against patent owners] will steer businesses toward innovation, added U.S. Secretary of Commerce Penny Pritzker. “America’s entrepreneurs and businesses want to focus their time and resources on R&D, on growth, on hiring, not wasting money in our courtrooms,” she said.

    source= http://www.pcworld.com/article/2099860/white-house-takes-steps-against-patent-trolls.html

  108. I can’t see why making it easier for corporations to squat on other people’s IP encourages innovation. Occam’s razor suggests the opposite. Why innovate when one need not?

  109. Joachim,

    Your post at 108 does not make sense to me. Are you assuming a conclusion not in evidence with your comment about “squatting on other people’s IP”?

  110. Anon, I worked for several years at a company, whose main business was reverse engineering the technology of other corporations. We always checked the relevant patents. If the corporation had staked a valid claim to some subset of the IP associated with the technology, we had to invent a new way to do the same thing.

    Strong enforcement of patent claims forces innovation. It did back in the 90s and would now. If American businesses are not innovating enough, perhaps the US government should re-institute the R&D tax credit.

    Pigouvian approaches to such problems are fairly well-understood. Mucking with the legal system almost invariably has unintended consequences.

    BTW, as for the patent-eligibility of a mathematical system, does a mathematical system meet the definition of “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”?

  111. all software is algorithmic, whether embedded or not. It’s in the nature of writing code. if you think not, you’ll have to post an example. i have never seen one in over 400 drafted and issued patents.

    a mathematical algorithm performed by a computer first needs a machine structure. that is not “abstract”, period. many mathematical algorithms would not be patentable today under 102 or 103 because so many have been programmed before. but that is part of the examiner’s job, to find the prior art.

  112. The precise definition of algorithm is disputed.

    When I was working on the development of PET (Positron Emission Tomography) at Mass General Hospital, we had a microcontroller that moved the scanner’s probes in a circle around the head. Should we really view the microcontroller’s tiny program as algorithmic?

  113. Joachim,

    To answer your question of “BTW, as for the patent-eligibility of a mathematical system, does a mathematical system meet the definition of ‘new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof’?” let me reply with a question:

    Do you recognize the difference between pure math and applied math?

    Also, consider the filed of cryptography. Would you deny the practical applicable utility of such a field and deny patent eligibility to such?

    I will supply a partial answer while I await your answer: mathematical systems can be fully realized – and thus fully patent eligible – in several of the explicit patent eligible categories that Congress created. The fuss over which category is a mere distraction. See Chakrabarty.

    Regardless of this exchange of questions, I still do not understand your post at 108. Where is this notion of squatting on other peoples’ IP? How does that fit into the conversation?

    Gene @111: You are absolutely correct, and this highlights the flaw in Mr. Snyder’s ‘reasoning’ (clearly not his alone) and his unwillingness to recognize that the attack under 101 is a ruse and misapplication of law when other law controls the real question. Education (not obfuscation) of the difference between patent eligibility (a 101 concept) and patentability (102/103/112 concepts) needs to be an essential order of business for any rational conversation. If the only thing that can be intelligibly taken from the Prometheus case is the separation of 101 from 102/103/112, I would gladly accept that.

    Joachim @ 112. No – from the legal standpoint, the precise definition of algorithm is not disputed and is much more restricted than is currently used. See Benson, Diehr and Bilski.

  114. Anon, I am quite aware of the distinction between abstract or pure mathematics and applied mathematics. I probably should have written axiomatic system and not mathematical system, for I was thinking in terms of the Gödel’s incompleteness theorems.

    To explain to what I am referring:

    The first incompleteness theorem states that no consistent system of axioms whose theorems can be listed by an “effective procedure” (e.g., a computer program, but it could be any sort of algorithm) is capable of proving all truths about the relations of the natural numbers (arithmetic). For any such system, there will always be statements about the natural numbers that are true, but that are unprovable within the system. The second incompleteness theorem, an extension of the first, shows that such a system cannot demonstrate its own consistency.

    Part of the problem with abstract idea doctrine seems to come from the different meanings assigned to critical phrases by jurists, mathematicians, philosophers, linguists, engineers, scientists, and patent examiners. There is probably a need for greater sensitivity to the nuances of the terminology in different situations.

  115. Thank you for the clarification between pure math and applied math.

    How about a clarification on post 108?

  116. I don’t know what is not obvious. People don’t innovate when they don’t have to do so. If there is already a known way, patent squatters will use that IP even if someone has already staked a legitimate claim to it.

  117. Still unclear Joachim.

    You seem to be using the notion that someone “owns” IP but that it is unprotected and others use it. I simply have no idea what you are trying to say. If you do not act appropriately to actually “own” the IP, in truth you do not own the IP. Are you thinking that some form of natural rights is sufficient in patent law?

    Sorry, but your post at 108 remains unclear.

  118. Joachim,

    You write:
    Part of the problem with abstract idea doctrine seems to come from the different meanings assigned to critical phrases by jurists, mathematicians, philosophers, linguists, engineers, scientists, and patent examiners. There is probably a need for greater sensitivity to the nuances of the terminology in different situations.

    My experience has been that most people (irrespective of the label attached to their professional or other areas of alleged specialization, i.e., “engineers, scientists, and patent examiners“) make word noises without ever introspectively considering that they have no idea what those noises (e.g. “math”, “computer”, “algorithm”, “software”) mean.

    Take for example the word “math” and its assumed “truthfulness” as applied to all scales of time and space. By that I question whether there could have been a “math” before, during or shortly after the assumed Big Bang birth of our universe. I also question whether our notions of “math” can be applied at the scale of astronomical distances involving millions of light years or at the scale of subatomic particles involving distances of less than an Angstrom. More specifically, can a “line segment” having an infinite number of points in it truly be drawn in the exclusion spaces of an atom when we at the same time say nothing can exist in those spaces? We often hold on to definitions that contradict each other and yet that bothers us not.

  119. caught in spam filter?

  120. Tiny programs are as algorithmic as large ones. Large programs typically consist of smaller programs. Two sequential steps taken together are an algorithm.
    Your example reminds me of a patent dispute between two large international companies that I participated in. The algorithm was a simple method of finding the border of a square that is displayed on a monitor. One party (patentee) approached the border from the outside to find its periphery. The accused claimed to approach it from the inside, and held fast that the algorithms were, therefore, different.

  121. step back,

    Your post reminds me of the adage: “The map is not the land.”

    It also reminds me of all the scientific ‘truths’ that have turned out to be, in fact, not truths at all. Often the notion of Einstein’s theory is mentioned (even by legal professionals) as the quintessential example of a fundamental truth that should not be eligible for patenting.

    Funny then that several of Einstein’s theories as such have been shown (or at least challenged in many more modern theories) to be wrong. To be certain these may be ‘tiny’ things such as at the edges of large scales (both the very big and the very small), but none the less, what Einstein provided was merely a map.

    Why not open that to competing and possible better maps?

  122. Anon,

    Well of course, true science is that which is always open to new and better mappings of the terrain.

    As you point out, many a smart people (even those sitting on the SCOTUS) do not comprehend that the map is not the territory. There are no “laws of nature”. There is only our human-originated mappings of what we “believe” (whether rightly of wrongly) to be the way that nature apparently works.

    BTW, I was intrigued by one discussion over at that other patent blog regarding “inventive concept” and the totally ridiculous legal contrivance that a truth of nature always existed and is therefore part of the prior “art” (the art practiced only by post-dinosaur, post-Dark Ages) humans.

    It always existed? Really? Even before the Big Bang? Even before there was life on this fragile planet?

    http://patentlyo.com/patent/2014/02/inventive-concept-blast.html

  123. Anon, I don’t understand what is unclear. Innovation is the raison d’etre of only a small number of startups. Large companies occasionally innovate, but the bean counters don’t like it because innovation is costly. My companies innovated only when forced to do so by an existing patent held by a competitor or some other entity. As a matter of principle, we did not pay for licenses. If the US government wants to encourage innovation, it must support a strong patent system and re institute the R&D tax credit.

  124. Joachim,

    You leave some of us confused.
    Are you pro-patent or against inventing and protecting one’s efforts in that endeavor.

    And if you are pro-patent, is your support for patents limited to only some technologies but not others (i.e. are you anti-software patents)?

  125. Joachim

    You continue to not address your comments in a particular post that I mentioned are unclear.

    You adding additional views without addressing those that I have questioned will not clarify the ones I have questioned.

    To use a (admittedly poor) math example: I am asking about 7 and you insist on talking about 11, then 15, then 22 and then 30, but not talking about 7.

  126. Joachim, at #123 you said:

    “As a matter of principle, we did not pay for licenses.”

    Since when is NOT paying someone for their hard work a principle to be proud of?

    Because of principle, do you also not pay for books (and thereby contribute to starving the author)?
    Because of principle, do you also not pay movie cinema’s or purchase DVD’s (and thereby punish Hollywood to stop making making those exact movies)?
    Because of principle, do you also not pay for your music (and thereby punish your favorite artists)?
    Because of principle, do you also not pay the architect of your house for their house plan?
    Because of principle, do you also not pay your lawyer after you hired them for some work?
    Because of principle, do you also not pay for your anti-virus or firewall software?
    Because of principle, do you also not pay your taxes for schools and teachers?

    No, I suspect you consider software is simply math, or laws of nature, or ideas that come along by themselves and therefore free for all to copy. And this is the problem – the knowledge and know-how of putting the right lines of code together in the right way is very easy to copy in relation to the effort required to attain that end result of knowledge and know-how. The end result that you see is but the tip of the iceberg. By applying your “principle” of not paying for software innovations, you remove the incentive for many small startups and individual software engineers to quit their high salary jobs or lucrative consulting gigs and instead pursue that crazy idea that others dismiss and requires significant effort to commercialize.

    What is needed is to purge society of this notion that software is easy to make and free to copy. Software patents need to be strengthened such that small entities have the incentive to pursue the technological advancements that benefit society.

    Paying someone for their contributions is a “principle” to pursue – not withholding payment.

  127. Jodi,
    I understood Joachim to mean that they preferred to create their own IP rather than purchase someone else’s. That’s not the same as stealing IP. Our company follows a similar principle (and, in turn, we will not grant our competitors a licence to use our IP).
    Joachim, correct me if I am wrong.

  128. Benny, you are absolutely correct.

  129. Benny and Joachim – nothing at all wrong with the desire to create your own IP.

    Congratultaions.

    However, I think I see a possible point that Joachim is not explaining (related to the post 108 confusion). I might hazard a guess that Joachim does not seek legal protection for the “IP” he creates himself. Can you confirm that Joachim?

    This then would buttress my post at 117. (to wit: “ If you do not act appropriately to actually “own” the IP, in truth you do not own the IP. Are you thinking that some form of natural rights is sufficient in patent law?“)

    Joachim, I would invite you to check out the legal concept of inchoate rights. Just because you may create your own “IP” does not in fact mean that you own that self-created “IP.” Ownership in the legal sense – that the “IP” becomes legal property only happens if you take well-recognized additional affirmative steps to make it so.

    Additionally, if you act to carefully document your creations, you may be able to have new Sui Generis near-patent rights (the Prior User Rights ["PUR"] created** under the AIA).

    However, the fact that you may have created your own “IP” (and for arguments sake, you have not documented the creation of these “IP” items), does not – and should not – prevent anyone from enforcing their perfected patent rights against you.

    To think so is to not understand patent law.

    Up until the weakening of patent law with PUR, patent law used both a carrot and stick approach in order to encourage people to promote the progress by publicly sharing their IP through filing and publishing patents. The carrot was the rights directly to the patent holder, the one willing to share, and the stick was to smack everyone else who was not willing to share. Keep in mind that one did not have to actually use the patent system and incur costs under the patent system to share and keep from being hit with the stick. One could always freely publish their “IP” and share openly – thus preventing anyone else from perfecting a patent right. This has always been a personal option, open to anyone who creates “IP.”

    Please let me know if you understand what I am sharing with you.

    **I will note that a limited (both in scope and time period) PUR did exist prior to the AIA.

  130. And Benny, please note that per the explanation of patent law I provided at 129, even self-created “IP” can be, in a very real sense, stealing of someone else’s “IP.”

    For patents (unlike copyright), there is no defense of separate creation.

    Patent infringement – even if you created the “IP” separately and completely on your own – is a strict liability offense. Now some may quibble over the use of the word ‘theft,’ as that word does carry legal connotations, but keep in mind that jodi is not a lawyer and that her use of the term in a colloquial sense is more ‘correct’ than ‘incorrect.’

  131. Just make sure to recite a very very “specific” machine when you file your IP lest you run into Judge Lourie, whom, as we know insists on very very “specific” machines –the telephone not being one of them:

    http://patentu.blogspot.com/2014/02/rolling-snake-eyes-in-cafc-dice-toss.html

  132. Why do I think that Joachim does not have any actual experience of “IP” and is only engaging in a philosophical discussion?

    Maybe it is because he has not attempted to clarify the post at 108, and has not acknowledged my explanations at 129 and 130.

    Maybe it is because I checked into Joachim and note his background and belief structure, which tends to raise my suspicions and doubts.

    I am open to have those doubts removed. Unlike Mr. Snyder who evidently wishes to continue his nonsensical rantings over at Patently-O (yes Mr. Snyder I can read, and several times have distinguished myself from “little a” anon), I am open to dialogue and reason.

  133. So big A Anon not same as little endian “a” anon?

    Do you both draw your monikers from Shakespeare?

    (Macbeth opening witch scene: “My spirit calls, anon”)

  134. step back,

    I find it sad that I have to actually try to draw a distinction in order to focus comments on a discussion of law as opposed to focusing on the identity of a person making a post.

    It is almost as if any type of distraction from a discussion is sought, and I find that odd when this is a blog for discussion.

    I find discussions rewarding when the parties involved are interested in discussing the subject matter. But it becomes pretty clear when someone does not want to have a real discussion. The buzz words and canned speeches fly. A pointed question or two reveals who is knowledgeable and who is simply advocating from a script.

    Sometimes those who sound like they are reading from a script are interested in understanding more, and the give and take is mutually beneficial. Other times, the shrill of accusations with an evident lack of both understanding and desire to understand makes clear the intentions of the poster.

    On this thread we have seen posters who obviously have no interest in the law or a reasoned discussion of the law and others that do seem interested. I am really hoping that Joachim does not disappoint.

    As to the moniker, nothing as glorious as Shakespeare. I am a fan of history and know that anonymous and pseudonymous writings have been respected throughout time, and for a variety of reasons. I have listed several reasons in the past – notably in defense of an anonymous poster known as IANAE, who use to post with some frequency at Patently-O (his moniker was an abbreviation of I Am Not An Examiner). I choose Anon since it was shorter than Anonymous and because I wanted the writing – and not the writer – to be the focus. “Little a” anon was already active, and so I went with capital A. A bit boring, now that the tale is told.

  135. Big Endian Anon,

    Thanks for the background.

    Generally I stay away from Patently-O due to the mud slinging by MM, 6, et al.

    But now back to the subject of “abstract” claims.

    What is your take on CYBERFONE SYSTEMS v. CNN INTERACTIVE GROUP
    as linked to for example, at:
    http://patentu.blogspot.com/2014/02/rolling-snake-eyes-in-cafc-dice-toss.html

  136. step back,

    The warning about evisceration of the patent system is the first thing that comes to mind.

    The second thing is that the English language is so subtle, so nuanced and so malleable that no claim is safe from the type of analysis used in the Cyberfone case.

    Law should not be so egregiously panel specific.

  137. step back,

    Not including today’s additions (I will have to get back to those), the best comment that I have seen related to the Cyberfone case is:

    OMG – a telephone is not a specific machine…

    from http://patentlyo.com/hricik/2014/02/new-case-scares.html#comments

  138. I’m surprised that Gene Quinn has not yet brought up the Cyberfone case.

    Where is his OMFG?

  139. Apparently the word “machine” no longer means what it used to mean.

    It is merely a nose of wax to be twisted, turned and stretched in whatever political direction that Judge Lourie wishes to pull it.

    Back in the day when I was in high school (in a far away galaxy and not this century) things like a “lever”, wedge, screw, pulley, ramp were each considered a specific kind of “machine”. And them new fangled, vacuum tube filled radio machines were the last in high tech electronic machinery.

    I wonder if Judge Lourie realizes that the caveman club and the flint arrowhead are considered to be different kinds of specific apparatus for aiding man in living the good life?

  140. Caveman club being a specific form of lever (extension, heft) and arrowhead being a specific form of wedge (sharpness, durability)…

    ;-)

  141. Actually, club is a hammer which is a mass/momentum tool. I forgot to include the hammer of Thor as one of the basic “machines”. It converts energies of lifting the the hammer head to height H plus kinetic energy of down swinging the hammer (plus user’s arm) 0.5*mv^2 into an impulse of momentum applied sharply to head of nail or head of enemy caveman.

    Flint arrow is, yes, a wedge and in a pinch may be used to start a “fire”. (I wonder if Lourie considers fire to be an abstraction. After all it was only recently invented and who knows if it actually works as those so-called troll “inventors” claim it works? Hmmm ….)

  142. Thread is about to go to page 4 – which means that Joachim and Benny disappoint on the 108-132 thread segment.

  143. No one reads or responds to page 4 postings
    No one. ;-)

  144. Your present exalted company excluded, of course, my good friend.

    That being said, the people who I would want to respond, who should respond to clarify what they have posted, in most likelihood have moved on to other places to post the same or similar half-stories (a common enough meme for those not truly involved as they like to portray, and yet another sign that raises suspicion).

    Alas, poor Yorick! I knew him, Horatio, a fellow of infinite jest, of most excellent fancy. He hath bore me on his back a thousand times, and now how abhorr’d in my imagination it is! My gorge rises at it.

  145. Anon,
    Were you asking me something at 142? I didn’t notice a question. I haven’t moved on, and you won’t find me on other IP blogs except IPFactor (and he’s an old school mate).

  146. Thanks Benny – I have attempted to temper my reactions to you as you seem to be a genuine poster – my comments above are more geared to Joachim, and only to a lesser extent to you. Specifically, to you, I did not want to assume by your silence that you agreed or disagreed with the legal points I made at posts 129 and 130.

    Those posts contain legal concepts that are (or at least appear to be) at odds with how you view patent law. I recognize that you are not an attorney, and so I was left hanging as to your understanding of the conversation.

    Thanks for following and offering any clarification of your understanding that you care to share.

  147. Regarding your post at 130 – of course I agree that wilful infringement is downright theft, but independent creation of someone else’s IP is, to the lay mind, more akin to trespassing.
    It is specifically to avoid this sort of unpleasantness that I favour early publication of patent applications – I am aware that you hold a contrary view. But of course, your business and mine do not always share common goals.

  148. Yes, Benny, we do seem to have different aims at times. My aim is to protect and maximize my client’s interests.

    And that does include understanding law, its history and intent. I do take a dim view of publication, especially when the exchange is so weak for my client (or someone else’s client). I am all for a balanced Quid Pro Quo, but the moment you transgress that and start feeding me lines about ‘the greater good’ or ‘the public at large,’ my bullsh1t detector goes off and I see someone wanting an uneven exchange.

  149. I will try to respond later today. Among other things I have been busy with a patent prosecution and have not been able to pay much attention to this discussion.

  150. Thanks Joachim – take your time – important things come first of course. I will wait patiently.

    (very pleased!)

  151. In re 129, when I worked on embedded systems, I always sought patent protection for innovation. Now that I work on financial systems, I am unlikely to do so because of the disclosure rules. (BTW, because of the distributed asynchronous nature of my financial software, it is inherently non-algorithmic.)

    Possibly because of my focus, I really don’t have strong opinions on software patents except that most patent examiners might not have sufficient depth of knowledge to judge software patents.

    After all a lot of the innovation in software comes from gaming and porn industries, which are generally not the focus of software engineering education.

    On the other hand, I was on the MIT faculty back when Gettys and Scheifler. I wrote the interface that integrated Gnu Emacs with X and gave Gnu Emacs the ability to detach from one server and re-attach to another (and thereby probably invented workgroup computing back in 1984-5).

    I have never seen any reason why W and X should not have been able to receive patent protection.

    http://en.wikipedia.org/wiki/X_Window_System

  152. [Sorry dropped a phrase]

    In re 129, when I worked on embedded systems, I always sought patent protection for innovation. Now that I work on financial systems, I am unlikely to do so because of the disclosure rules. (BTW, because of the distributed asynchronous nature of my financial software, it is inherently non-algorithmic.)

    Possibly because of my focus, I really don’t have strong opinions on software patents except that most patent examiners might not have sufficient depth of knowledge to judge software patents.

    After all a lot of the innovation in software comes from gaming and porn industries, which are generally not the focus of software engineering education.

    On the other hand, I was on the MIT faculty back in 1984 when Gettys and Scheifler introduced the X window system. I wrote the interface that integrated Gnu Emacs with X and gave Gnu Emacs the ability to detach from one server and re-attach to another (and thereby probably invented workgroup computing back in 1984-5).

    I have never seen any reason why W and X should not have been able to receive patent protection.

    http://en.wikipedia.org/wiki/X_Window_System

  153. Joachim,

    Your posts have information about your background – but do not address my comments. Can you be more clear, more direct, in addressing what I have posted?

  154. Joachim,

    At 149 you indicated that you were busy with patent prosecution, but today on another thread you admit that you are not a lawyer.

    I find myself distrusting your posts more and more. I will wonder aloud whether your new post that you are not a lawyer is a dodge of a legal point that you do not want to admit to.

    I hope that you realize that if you are engaged in patent prosecution that you are engaged in law and have an ethical duty to understand the law that you are engaged in. Of course, if you are only involved as a technical assistant, your supervising attorney has the responsibility of making sure that you do not engage in law and that what you do do is within the law. If you are posting in a manner that seeks to influence the law, or portray the law as something it is not, and you are an active member of the law community, then you better be more careful in your postings about what the law is.

  155. MIT does not have a law school.

    I provide expert technology consultation on patent – related matters. I am hardly a technical assistant. Until recently I thought I had a good grasp of the rules associated with patent prosecution.

  156. A quick check on “Joachim Martillo” turns up a “Financial analyst, who is an engineer in his day job”
    Fair enough.
    That same Joachim Martillo is also portrayed as someone who holds a distorted view of reality, and engages in public discussion which borders on incitement to racial hatred, and denial of recorded history.
    If Joachim the commentator is not the same Joachim the virulent anti-this, pro-that, please make it clear.
    Otherwise, like Anon, I would tend to distrust anything you say.
    Sorry to get personal, but the references found or the web are rather extreme in nature.

  157. I don’t say anything extreme or inflamatory. A few years ago a propaganda organization called Memri circulated a propaganda clip that claimed a Palestinian children’s character called Sanibel said, “Let’s kill the Jews! ” I pointed out in a comment that Sanibel really said, “The Jews are killing us” and that the mistranslation would be typical of a Hebrew speaker with poor command of colloquial Palestinian Arabic. Because my comment got traction, Memri and it’s friends have been defaming me ever since. For the record I am of Jewish descent, practically all my father’s family was killed in the Holocaust, and my relatives seem to be among Netanyahu’s top political funders. I really think all this stuff is irrelevant, and I don’t understand why my comments on software patents and abstract idea doctrine inspire people to dredge up all this crap.

  158. Joachim,

    I too had “Googled” the name looking for background and found the same less than savory portrayals (and in numerous articles, not just one), and actual words posted by this same named person that were simply indefensible. Granted, I do not know if what I saw was in the middle of a conversation, or something taken out of context.

    That being said, my posts here have nothing to do with anything outside of patent law, and the other things I found are not a part of my discussion here.

    My discussion here though is very much on patent law, the perceptions being generated and the corrections that are in order. I really do not mind discussions on patent law from and with non-law types, but dogmatic views from people who do not understand the field make for poor (and dangerous) conversation. Gene does an outstanding job policing for misleading views posing as legal advice, and separating the wheat from the chaff is usually easier to do for his efforts.

    Joachim, this is a legal field, and your ‘consultations’ cannot ethically be of a legal nature. Unauthorized practice of law is a serious matter. Whether or not you think that you know the rules or not should begin with you understanding the rules governing practice of law.

    All that being said, I am still not certain I understood what was being attempted to be said at 108, nor am I sure whether what I posted at 129 and 130 was clear to you.

  159. You are making some very false assumptions on the basic of limited info. I consult for law firms. As for PUR and the software that I have been developing, we have been looking into the matter.

    Of course, non-lawyers should not pronounce on legal issues just as lawyers should be careful in making assertions about software.

    Have I been making pronouncements on legal issues? I admit to bafflement on abstract idea doctrine, but then many attorneys seem to be in the same boat.

  160. Joachim, I am seeking information from you and NOT making false assumptions. My words of care are properly prefaced.

    I am also not obtaining the feedback that I asked of you – still. What did you mean with your post at 108? Do you recognize the legal aspects in my posts at 129 and 130?

  161. I should clarify about the feedback from 129-130 as you have provided some feedback on PUR. The feedback I was looking for was more tied to the earlier discussion and concerns the concept of independent creation as not a defense to patent infringement.

    Especially in the software world, I find a misconception rampant when it comes to a view, a feeling, even so strong as to be considered a dogma, that independent creation must mean that someone else’s patent cannot be valid or enforceable.

    This is simply not true in any art field in the patent world – at least to the extent that lacking a recognized form of prior art, even one’s widespread prior use is not a legitimate defense.

    As I explained above, this facet of law was chosen on purpose. The patent system willingly chose a carrot and stick approach. Some may criticize this approach as a coercion or a ploy to make patent attorneys ‘rich,’ but such a shallow argument quickly falters on closer inspection. Avoiding the stick does not mean that one must use the patent system. It never has. One has always had the option of publishing inventions (which, I will remind you are not necessarily “advances”) in the open market, and such would also meet the designated target of having a patent system (albeit, without the benefit to the one making the invention). One needs to separate the business decision to hide and covet inventions so that any advantage is not lost to competitors, with the patent policy of promoting the arts. It is exactly because of the natural reticence to share a competitive advantage (and in a fair degree, negating that advantage) that the Quid Pro Quo remains central to patent law.

    But the overriding point here is that independent creation does not mean that the results of such independent efforts belong (as legal property) to that independent creator. Copyright law may allow for this, but patent law does not. Thus, even those independently creating innovation can be ‘guilty’ of ‘stealing’ someone else’s property. The stick was consciously chosen in order to make it desirable for people to share – either publicly without any Quid, or through the patent system for some Quid. One did not have to share, but not sharing brought the risk that someone else generous enough to share might be given a stick to beat you with. The legal property does belong to someone else, even though one may have come up with the exact same thing – and come up with it earlier. Such invention remains inchoate until the prescribed steps are taken to turn the inchoate property into legal property. Many non-lawyers often have a difficult time accepting this.

    Regardless though of personal views (typically those that are anti-patent anyway) to the contrary, this is considered fair and just.

  162. “…patent policy of promoting the arts…”
    The policy, yes, but in practice? Either you work exclusively with cutting edge technology high-tech corporations, or you haven’t been reading enough patent applications lately.
    Most of the applications I’ve been reading are of the “improved knurled flange bracket” variety, which are not filed with any intention of promoting the arts, nor to secure license agreements from manufacturers, but are intended solely to push the competitors products off the shelf. I’m not saying this is in any way contrary to the letter of the law, nor am I saying that my company doesn’t continuously look for opportunities to do the same. I am saying that the spirit of the patent policy, that of sharing innovation for the benefit of all, is lost here, and I doubt that it can be found in more than about 20% (very rough estimate) of all applications.
    Anon, I fully understand what you are saying about patent rights and independent development, I’m just saying that the lofty principles of which you speak are, for the most part, not being attained.

  163. Benny,

    First comment: It is regrettable that I have had clients that actively dissuade their innovators from reading any patents due to the treble damage possibility. If I had my way, I would make it a given that all patents are to be considered known. I would add another stick to the patent right and make people want to pay attention to published patents.

    Second comment: As to the filings that push competitors products off the shelves, I will disagree strongly that such is not an act of promoting the arts. The concept of “promotion” is another term of art often mis-translated into the technical world. As I noted at 161, invention is not always an advancement. So-called sideways and even backwards (technically) inventions are very much still legitimate inventions. Your focus on “sharing innovation for the benefit of all” is not lost, since you do not fully appreciate how such shelf-clearing activity promotes innovation. One analogy that I have heard is that patents is not paving a road to future success as much as it is paving a parking lot in order to make innovation easier. In order to appreciate this analogy, one must remember that innovation is often not a linear exercise. We may stand on the shoulders of our predecessors, but those shoulders often belong to people in completely different ventures, art fields, and may even be considered outright failures in their efforts.

    In another aspect, it should be remembered that necessity is the mother of invention, and pushing the “easy” items out of reach makes it necessary to pursue additional innovation.

    In a somewhat counter intuitive manner, I am often contemplative of the KSR decision and one particular aspect of that decision that to me receives far too little attention. I say counter intuitive because of the obvious notion that obtaining an easy sidewise type of patent appears to be more difficult with the decision. But look more closely at the rationale given: to provide a more healthy protection for previous inventions! In other words, if KSR were to be taken at heart, a much more aggressive doctrine of equivalents should be provided to existing patents – making existing patents stronger in the penumbra of what they protect. There is a trade-off between allowing such stronger patent protection and allowing more patents for items not so protected by initial patents. If we agree that patents are a good thing, then this strengthening of protection – either by widening the penumbra of coverage or by promoting with sidewise separate patents – should be seen as a good thing.

    Third comment: the lofty principles are not being obtained because we are making patents weaker. We need to go in the opposite direction and make them stronger.

  164. Much like my post at 142, 146, and 150, this thread is now about to slide to page 8 of the archives and I become saddened that I will not receive the answers that I asked for.

    Perhaps Joachim (and to a lesser extent Benny) and those like them have learned something. Perhaps not. Time will tell.

Leave Comment