How tech’s ruling class stifles innovation with efficient infringement

By Steve Brachmann
March 17, 2017

Skull and crossbonesOn Wednesday, March 9th, The Verge published a column written by veteran tech journalist Walt Mossberg, an executive editor at The Verge as well as an editor-at-large at Recode. In the column, titled Tech’s Ruling Class Casts a Big Shadow, Mossberg identifies a group of tech companies which enjoy oligarchy status in the consumer tech sector, calling them the “Gang of Five”: Mountain View, CA-based Google, a subsidiary of Alphabet Inc. (NASDAQ:GOOGL); Cupertino, CA-based Apple Inc. (NASDAQ:AAPL); Seattle, WA-based Amazon.com, Inc. (NASDAQ:AMZN); Menlo Park, CA-based Facebook Inc. (NASDAQ:FB); and Redmond, WA-based Microsoft Corp. (NASDAQ:MSFT)

Mossberg’s column asks a simple question: Is it a good thing to have a small group of companies with so great a hold over the consumer tech market? The answers Mossberg comes up with speak to a major issue of efficient infringement practiced by the top companies in the consumer tech space, more proof of the old maxim that absolute power corrupts absolutely.

“To be clear, I’m not alleging that the Gang of Five is colluding with each other to fix prices, or to actively suppress innovation; or to do anything illegal,” Mossberg writes. “But I do think that their enduring and growing power casts a shadow over the Silicon Valley legend that there are lots of great new consumer tech innovations being incubated right now in garages or dorm rooms somewhere that will be taken all the way to becoming great companies, the way each of the Gang of Five was.”

Mossberg may not see any reasons to hurl allegations of illegal activity, but there is a very interesting section where he notes that the Gang of Five engages in business operations which are the hallmark of efficient infringement:

Another way in which the Gang, with its legions of engineers, extends its power is by aping the features of other tech companies’ products, and incorporating them into a platform. Two recent examples: Facebook’s Instagram launched a “stories’ features that works a lot like Snapchat’s. Amazon’s Twitch appears to be creating a service that operates like Twitter.

And, for many smaller companies, especially makers of apps, hardware accessories and services, it’s necessary to either pay some form of tax to one of these platform owners or to abide by rules they set and can change at any time. That stifles innovation.”

That, right there, perfectly demonstrates efficient infringement and its effects in a nutshell. Innovators today patent their technologies in the hopes of licensing to a tech company but recent legislation from Congress, most notably in the form of the America Invents Act of 2011 (AIA), has increased the difficulties of asserting patent rights. In this environment, it becomes economically viable for a large company to simply copy what it can from available technologies it hasn’t developed instead of actually licensing that technology. That’s why Facebook’s Instagram can copy Snapchat’s stories feature without having to acknowledge that Snapchat developed it first, or why Amazon’s Twitch can offer live-streaming television without licensing such technology through Twitter, who unveiled it first (not that Twitter has been all that successful in building its own patent portfolio, however). Try to assert a patent covering the technology being copied and the Gang of Five will simply petition the Patent Trial and Appeal Board (PTAB), dragging the patent through an inter partes review proceeding and deveining it of any useful subject matter if the proceedings are instituted.

Mossberg’s comments also speak to the perils of being a smaller player in the consumer tech sector and the fealty that must be paid to the Gang of Five just to gain any consumer notice. Software application developers have to work with Apple or Google just to be listed in an app store and then partner with a cloud provider like Amazon or Microsoft to scale up, so it’s not as if the Gang of Five isn’t intimately aware of the most popular programs for consumers. Software developers further have to contend with the ramifications of the U.S. Supreme Court’s June 2014 decision in Alice Corp. v. CLS Bank International, which has cast a pall over the patentability of anything even tangentially related to software, including MRI machines if you can believe it, so if they assert a software patent it unleashes a slew of Alice validity challenges at district court and even at PTAB if the patent has anything to do with financial services, which the PTAB interprets very broadly.

Even when a patent is clearly directed at a hardware innovation, though, consumer tech innovators are still subject to the issue of efficient infringement given that Amazon is both an e-commerce giant and a consumer tech developer. If a smart speaker that includes a facial recognition technology does well on Amazon’s retail platform, it makes all the sense in the world to Amazon to take that feature and work it into its own commercially successful product, such as the Echo speaker.

Efficient infringement is the cause of much distress and agony for innovators struggling to survive. The very existence of widespread efficient infringement, which is nothing more than stealing, absolutely stifles innovation. Mossberg is exactly correct.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 96 Comments comments. Join the discussion.

  1. Anon2 March 17, 2017 9:36 am

    Mossberg is right for coming out against infringement, of any kind, and particularly willful infringement.

    His characterization of large successful private entities as forming an oligarchy is a little indulgence in leftist melodrama.

    Size and power do not corrupt individuals and entities, individuals to the extent they are corrupt, have chosen to be and act as such. Efficient infringement IS wrong, and the big players who engage in it are wrong for DOING that, not for being big and successful businesses.

    Otherwise, good point that efficient infringement is stealing.

  2. American Cowboy March 17, 2017 9:51 am

    Power tends to corrupt, and absolute power corrupts absolutely.
    https://en.wikipedia.org/wiki/John_Dalberg-Acton,_1st_Baron_Acton

  3. angry dude March 17, 2017 9:51 am

    Actually, stealing is part of the culture of Silicon Valley

    HBO’s “Silicon Valley” sitcom portrays it well – in grotesque form to make it even more clear

    Hooli (aka Google) trying to take away technology from its creator by all means…

  4. Edward Heller March 17, 2017 10:07 am

    Steve, yeah the AIA was extremely damaging; but equally damaging is the troll narrative that sweeps litigation abusers in with any failed startup or university, the so-called NPE. When their patents cannot be asserted because their owners are declared to be trolls, the patent system is severely damaged.

    If one cannot reliably enforce one’s patents, one will think twice about investing one’s life and money in developing a product that can easily be copied. As a result, America as a whole become less innovative.

  5. angry dude March 17, 2017 11:31 am

    Edward Heller @4

    For your info: patents are not for protecting consumer products – this was never an intention behind the creation of the US Patent System

    Patents are to protect “discoveries”

    The whole NPE narrative is a pure 100% bs for lemming consumers

  6. step back March 17, 2017 12:03 pm

    The corruption goes way deeper than just the quarterly bottom line for the SV-Five.

    If you are an overbooked federal district court judge or magistrate and your life is about to get way more miserable because some small, advanced-tech start up filed a patent suit in your court; wouldn’t it be wonderful if you can pull out a witchcraft-go-away enchantment card (aka Alice/Mayo) out of your Magic The Gathering deck and make the whole thing just disappear off your docket?

    Yes it would.
    And that is why so many of them jump at the chance to do so.

    Ditto if you are an overbooked patent examiner and a way too complex computer or biotech application appears on your desk.

  7. Stephen Curry March 17, 2017 12:35 pm

    @6 Step

    Don Chisum is a Prophet.
    For the longest time, the USPTO would not allow math majors and computer science majors and general engineering majors and aeronatical engineering major to qualify to take the USPTO patent bar exam. Why so? Well, urban legend says math degree holders were disqualified because someone had an affair with some and so there was a vengeance on math majors. But practically. it Because if people who can’t handle hard core engineering have an easy way out via an Alice-Mechanism or 101 wide rejection methodologies to invoke non-patentability, instead of using their brains to analyze inventions via 102 and 103 for patentability.

    Did you notice that folks who advocate burning patents under 101 (Clarence Tomas, Lemley) are all liberal art majors and the most vocal patent attorneys who are leading USC 101 Champions did not study real engineering like nuclear engineering or BSME or SBEE or ChemE, but these 101 Champion patent attorneys studied some other fields like general engineering or computer science and some even got their technical degrees from NON-ABET colleges or correspondence courses (I know three patent attorneys who got correspondence courses degrees (not even night-school engineering) who fall into this category and no-surprises, and they are big 101 Experts like Clarence Tomas).

    My kids won’t be going into patent law. They will be like Lonzo Ball and brothers, sheeming out

    35 USC 101 is an easy weasel way out of avoiding in doing real patentability review that should be done under 35 USC 102 or 103. That is why many judges love 35 USC 101. Chisum’s Daniel prophesy came true, the man of perdition manifested to burn down our world cherished american patent system.

  8. Anon March 17, 2017 5:22 pm

    As to Mr. Heller’s Freudian slip in regards to “hard goods,” I seem to recall a CAFC decision shortly after Alice came out that in a concurrence remarked that patents should not be “held up” by the “tyranny of manufacturers.”

    For as much as Mr. Heller may want to claim that he believes in software patents, he has also made past Freudian slips geared to viewing patent law through the lens of strictly “hard goods” (for example, he denigrates the process category and attempts to only place that category as a handmaiden to the hard good categories – something that the Act of 1952 quite forcibly drove home as NOT a proper view of the statutory categories).

    Alas, I thought I had this case bookmarked, but now cannot locate it.

    This does recall for me the famous 1908 Supreme Court case (yes, the punchline about blind squirrels might be appropriate here) that recognized the “negative right” essence of a patent property and stressed the fact that any “making” of goods, while perhaps related to patents, was indeed distinct from what a patent property was.

  9. Ned Heller March 17, 2017 6:26 pm

    anon, how often is it that you have made the point that a programmed computer is a machine.

  10. Edward Heller March 17, 2017 6:30 pm

    Angry Dude, on “Discoveries.” Surely we cannot limit ourselves to patenting only discoveries of things that exist, like phenomena of nature (products of nature, laws of nature.) Hard work, trial and error must also be rewarded. The only real requirement is that the invention be “new.”

  11. Anon March 17, 2017 9:24 pm

    Mr. Heller,

    On another thread you posted:

    I have long believed in and patented software inventions – for most of my career in fact.

    My response there fits here as well.

    In short: you have zero credibility on these topics.

  12. Anon March 17, 2017 9:30 pm

    Mr. Heller,

    As far as your (attempted spin) with “new,” please tell me that you understand the law of “new” that comes with the America Invents Act.

    To wit: The decision by Congress to legislatively repeal Metallizing (the ability to patent “trade secrets” as long as the “new” is “new to you,” aka, new to the public.

    Your oft-trotted version of “new” takes a beating with what Congress has done there.

  13. step back March 17, 2017 9:31 pm

    @10 that is a truly deviously crafted ambiguous statement:

    we cannot limit ourselves to patenting only discoveries of things that exist, …

    WTF are you trying to say?
    (We know you can write in English when you really really try. Now is the time to try.)

  14. Anon March 17, 2017 9:43 pm

    Somehow, Mr. Heller thinks that one can discover things that do not exist…?

    And you are correct – Ned is simply trying to be devious (or perhaps in his mind, “clever”).

    Too clever by half, as the saying goes.

  15. Anon March 17, 2017 9:47 pm

    Apparently, Mr. Heller will not discuss 35 U.S.C. 100, and even attempts to make the definition the opposite of what Congress stated by his devious attempt to make “discovery” into something necessarily (and only) into a thing invented.

  16. Edward Heller March 17, 2017 11:07 pm

    step, think Cuno Engineering and Flash of Genius. If taken literally, the Discovery part of the constitution could require that all inventions include some “discovery,” some “flash of genius.” That is the risk of taking Discovery literally.

    All the term requires is newness — to the inventor, I would argue. Two different people can “discover” the same thing, and each would have a right to a patent depending on the rules about first to invent or first to file.

  17. Anon March 18, 2017 12:13 am

    Mr. Heller,

    Please stop.

    I am truly embarrassed for you and what you are trying to do.

    Can you not see that absolutely no one is buying what you are trying to sell?

  18. angry dude March 18, 2017 1:53 am

    Mr. Heller,

    I honestly do not know if they should remove new and unobvious consumer products from patentability definition..

    BUT I do know for sure that if they remove “discoveries” from that equation the whole thing turns into some industry-specific product registration system
    and that is not what was intended when the patent system was established in the USA more than 200 years ago…

  19. step back March 18, 2017 2:05 am

    @16 Ned writes:

    newness — to the inventor, I would argue

    That of course makes absolutely no sense.
    Once the discovery is made, it is no longer new to the discoverer/inventor.
    The issue is only that of whether it is new to others and which others.

    depending on the rules about first to invent or first to file
    First to invent has never been enough on its own. One had to take steps to timely un-cover (to dis-cover) the thing for the relevant audience.

    The “promote” part of the phrase in the Constitution about promoting progress does not mean that progress does not happen without patents. Rather the rate of progress is accelerated (promoted) because a race is set up. He who is first to un-cover (dis-cover) is the winner.

  20. Anon March 18, 2017 7:58 am

    Step back,

    The “promote” item also refers to the sense of the word in the advertising sense of “promotion.”

    I have put forth an analogy that better captures the nature of innovation (oft times it is not a linear or “well mapped street” that enables innovation, but more so the ability to simply know what is all around you – as in a vast parking lot.

    People -typically those with an anti-patent bent, do not like the idea of a parking lot provided by patents, and instead want some orderly grid of streets.

    But that is just not what fosters innovation.

  21. Jenny Piccolo March 18, 2017 9:32 am

    Same lunatic comments, different day.

    Please post the patent number for Twitters bulletin board. It doesn’t exist, and for good reason.

  22. Night Writer March 18, 2017 10:45 am

    Look. Ed the Ned is a joke. He pushes Benson. He makes up witch words. Ed the Ned is an anti-patent judicial activist that says and does these things for work. I know he is or was friends with R. Stern (the original of all evil in patent law). And, I’d bet he is just aping R. Stern to get work. Shameful. I’d clean out baboon cages before I did what you are doing Ed the Ned.

    Also, notice that Ed the Ned runs away from arguments consistently. He avoids the substantive portion of people’s arguments against his Benson fueled witch nonsense.

  23. Edward Heller March 18, 2017 11:24 am

    That of course makes absolutely no sense. Once the discovery is made, it is no longer new to the discoverer/inventor.
    The issue is only that of whether it is new to others and which others.

    Actually step, the sole issue was discussed in the Supreme Court case of Pennock v. Dialogue. At the time the inventor applies for an application, the invention no longer is new to him or her. The only question is whether at the time of the application it still remains unknown to others. But that does not negate the requirement that the time the invention is first made, that the invention be new to the inventor himself. Otherwise you would not be an inventor at all. And neither would he have been a discoverer.

  24. Anon March 18, 2017 12:43 pm

    Mr. Heller,

    I see that you (once again) are refusing to discuss items put to you.

    Comment 12 awaits your response (and likely impacts your version of Pennock – which to this day you have not gotten quite correct).

  25. step back March 19, 2017 6:28 am

    @23 Ned,

    You appear to live in the same fantasy world as do the SCOTeti where ALL inventions are conceived instantaneously in a Eureka moment.

    According to this made up reality even the inventor/discoverer is totally surprised (and screams Eureka!) as the clock’s second hand sweeps from the split second before to the hair thin line after the magical mythical Eureka moment.

    It’s a good thing we have the intellectual giants of Mount Olympus here to explain to us exactly (exactedly) how the world really works. 🙂

    https://patentu.blogspot.com/2013/06/one-nation-under-isolated-diety-with.html

  26. Night Writer March 19, 2017 8:40 am

    What is going on here is that Ed the Ned gets work from people that are anti-patent. He posts these ridiculous interpretations of the law and Constitution to illustrate that he is one of them. These are advertisements for work to Ed the Ned.

    Notice too that Ed the Ned will never address this accusation and I have been making it for years.

  27. Eric Berend March 19, 2017 9:05 am

    How about an observation from an actual inventor?

    Discovery in invention, is not solely the product of a singular “one true way” of process.

    There often IS a moment when a ‘flash’ of ingenuity is experienced, leading to the development of an invention – but that is not a requirement; I have two (of six) which were conceived as a design response to a statement of the problem domain.

    In what I consider my greatest such work, the “flash of genius” manifested in the form of an essential idea that, after over a year and a half of engineering effort, yielded a functionally complete apparatus. Thus, it can be seen that, while in many inventions, there is in fact a so-called “flash of genius”: this is not necessarily true for all inventions; and, even where present; does not, by itself, magically assure a complete and fully operational invention.

    This has the hallmarks of threshold experience, where what is experienced is unknown and difficult or impossible to conceive, prior to the moment of discovery. But that process by which discovery is achieved, can be comprised of ingenuity, experimentation, or analogizing functionality from one area of application to another – or, some combination of any or all of these.

    Inadequate descriptions of this capability and its real life manifestation, by those who have never attempted, let alone accomplished, the actual true feat of invention; even those with the prestige of judges; confuses the debate and impedes accurate comprehension.

  28. Anon March 19, 2017 9:51 am

    Eric,

    It is that very “mystique” (or allure, or even the “majesty of mental triumph”) that accompanies the Flash of Genius that seems to be desired to be celebrated in some special way.

    As you correctly state, this is simply not a requirement of earning a patent.

    In history, a prior Supreme Court had grown to be so anti-patent that its own members coined the phrase: “The only valid patent is one that has not yet appeared before us.

    One of the (recurring) aspects of that anti-patent view is that patents require something extra or (in current parlance) “something more.”

    However, history ALSO shows that Congress told the Court – directly and unambiguously – that such “scrivening” was not acceptable.

    This was a pinnacle feature of the Act of 1952.

    This rebuke of the Court, and the accompanying removal from the Court of the power previously granted to set the meaning of the word “invention” though the use of the (otherwise still respectable) power of common law is a point that cannot be stressed enough – as we see history repeating itself for those who did not learn the lesson previously.

  29. step back March 19, 2017 1:16 pm

    Eric @27

    No offense sir but you don’t speak for inventors or for the owners of “minds” or owners of biological human brains.

    Just because something “feels” as if it is so doesn’t make it so.
    It feels like the sun rises in the East.

    EVERYONE INVENTS. Even if it doesn’t “feel” that way.
    The question is what it is that they are inventing and what resources they bring to the process.

    For example, as I typed the words above, I invented the choice and sequence of of words to be used. (Remember from that courtroom scene in the movie, Flash of Genius, “It was the best of times, it was the worst of times, …”?). So invented did I no? (Spoken with Yoda voice).

    Exactly what goes on in the biological brain organ of a human inventor (doesn’t have to be human, other animals “invent” too) is not exactly clear because the nascent field of neuroscience is still unfolding. What is clear is that many of our “feelings” about who/what we are and how we have “mental steps” are completely wrong. As wrong as feeling that the sun rises in the East.

    What is clear is that the SCOTeti operate out of a philosopher kings mode where they “feel” as if they are doing science by way of pure mental step efforts in their Medieval ivory towers. They have not even a clue sir of how off the mark they are. Consider Judge Scalia’s remarks in Myriad that he believes that isolated BRAC1 is “exactly” the same as the corresponding DNA sequence when embedded in the helix. That’s like saying that isolated methane (CH4) is exactly the same as a CH3 moiety in a long chain or complex organic compound. He flunks chemistry 101 and doesn’t even know it!

    https://patentu.blogspot.com/2013/06/one-nation-under-isolated-diety-with.html

  30. step back March 19, 2017 1:20 pm

    p.s. I do have to thank Ed the Ned for rekindling my interests in the pure philosophers (e.g. Plato) and how they went about comprehending the universe. This is to be contrasted with how modern “science” is done.

  31. Ned Heller March 19, 2017 1:45 pm

    step, you have me exactly backwards. I was cautioning about giving too much emphasis on Discoveries in the constitution because not all inventions are Discoveries.

    Got it?

  32. step back March 19, 2017 1:50 pm

    All inventions that are un-covered by the inventor/discoverer to the public (for free or in exchange of a quid pro quo) are dis-coveries, yes. 🙂

  33. step back March 19, 2017 1:55 pm

    The frustrations arise when we have so many supposedly intelligent people operating with Medieval mindsets and yet taking, without any appreciation, the fruits of 21st Century science.

    Would it not be poetic or philosopher king justice if the SCOTeti, when they fall ill (not that I wish it upon them) were treated with Medieval medical techniques (e.g. blood letting) rather than with 21st Century science techniques which they belittle as being mere discovery of “natural” phenomenon and laws “of nature”?

  34. step back March 19, 2017 2:00 pm

    @31 Ned

    If by trial and error I “discover” a particular formulation for the filament of an incandescent light bulb that last longer and can operate at relatively low voltages, that “discovery” (assuming for argument sake it is new and useful) should be “eligible” for a patent.

    If memory serves, that is what this fellow Thomas Edison (or one of his unsung lab slaves) did.

  35. step back March 19, 2017 2:03 pm

    However, according to reverse logic thinking by our present day SCOTeti, that “discovery” (e.g. of the longer lasting filament formulation) is a “natural” phenomenon or a law “of nature” and thus banished from the right to be protected by patents. 🙁

  36. Anon March 19, 2017 5:28 pm

    Mr. Heller @ 31,

    It appears that you may (finally) be ready to talk about 35 U.S.C. 100 (a).

    Is that the case?

  37. Eric Berend March 19, 2017 9:57 pm

    @ 29., ‘step back’:

    Well, in direct contrast to those who have organized so as to blow our collective inventing interests right out of the water, *someone* needs to speak on behalf of inventors; it is past due. Like it or not, the average public viewpoint needs champions of concept for their edification; something of a cult of personality phenomenon. The opponents of patent protections have utilized this as well as other means, to advance their agenda quite effectively over the past decade and more. Would you like to volunteer for the role?

    This is a blog where patent practitioner professionals are, by far, the largest part of its community; thus, most of the comments to articles found here, are written by attorneys. Forgive me, if it seemed appropriate, that a discussion strongly implicating discovery in invention, might gain value by the inclusion of an inventor’s narrative of such a process.

    If one of the purposes of this forum is not to have individual opinion stimulate debate, then I should stand corrected. There is no intention on my part to speak for or supersede any stance of yours; and if it truly seems that way, then I apologize for creating that misimpression.

    I do consider it a stretch in taking such suppositions, as my putting words in your mouth or inappropriately representing others. Did you not understand the scope of “…an observation…” and “…can be comprised…”, in said comment above? I did not assert for anyone beyond myself; to wit: none such, respectively, as “…what all inventors think…” nor “…is always/solely composed of…”.

    If you truly “feel” offended by my clear logical delineation of a discovery process reflecting inventing experience in the real, and think it inaccurate or inadequate; then, good sir/madam: I invite you to improve upon the attempt. I am glad you spoke up; I think this aspect is sorely lacking in honest debate. Perhaps you can logically define another area of origin from which discovery can occur. I do note, with interest, that you specified an example of exactly what I described as “experimentation” towards discovery, in your comment #34., above – and it is certainly relevant in your own analysis there, regarding patent eligibility.

    As this stage, it might be worthwhile to undertake a survey or study of inventors about this vital aspect – and since, it is, evidently; not only some bone of contention in jurisprudence; but also, seems rather a sore point for you.

  38. step back March 19, 2017 11:14 pm

    Eric @37

    Buried with 35 USC 103 is this one lonely sentence:

    “Patentability shall not be (negatived) negated by the manner in which the invention was made.”

    What does that mean. Why is it there?

    For many many years (before the 1952 Act), them who hate inventors would concoct all sorts of arbitrary and capricious rules about how “true” inventions had to be arrived at, for example by way of a “Flash of genius”, a Eureka moment, … etc. Otherwise it was not a “true” or eligible or “deserving” invention.

    https://en.wikipedia.org/wiki/Flash_of_genius

    Now they are back at it again, demanding and hunting for that elusive “something more”, that “inventive concept”. Spinning that crystal shard at the end of a string to see what the claim is truly “directed to”.

    Why?

    Because they loath and disdain inventors. They know that these hunt for genius, search for the “something more” one liners are highly effective even though they are wholly against the law. Flash of news for you: the SCOTeti hate you.

    Please don’t feed the haters by repeating their lies.
    Everyone invents differently. Yes, some may have that Hollywood Eureka moment.
    Others may pound their skulls against an ungiving wall for years, breaking through bit by brick bit and perhaps never fully getting through. But still. Coming up with something “new and useful” in the process.

    Don’t let the haters bamboozle you.
    I’m on your side. I’m here to shine the light on those cockroaches.
    They are not “supreme”. Quite the opposite. Their mission, and they have chosen to accept it, is to destroy America, destroy democracy, destroy the concepts embodied in the US Constitution, including Article 1 Section 8 Clause 8:

    https://en.wikipedia.org/wiki/Copyright_Clause

  39. Night Writer March 20, 2017 9:39 am

    All of this is just more ways to try to introduce some abstraction in someone’s head about an “invention” and then try to use it to limit the patent right.

    Can we please just stick to 102/103/112? You have some claims that assert that they are new, non-obvious, and enabled by a disclosure. Is there really anything else needed?

    I have asked for years for Ed the Ned to come up with a set of claims that need more than this and I only get crickets.

  40. Eric Berend March 20, 2017 11:46 am

    Perhaps, I have been too abstruse in my comments here. If I wrote that this is something of a sore point for ‘step back’, then I should also write, that there is sound reason for that.

    There is no basis to limit the eligibility of an invention for a U.S. patent as to its methodology of creation – none, whatsoever. To discuss aspects of the process of new development, is not to assert a need for nonsensical restriction on patent eligibility. The standards long established in U.S. jurisprudence – novel, useful, unobvious – are not determined by the journey of discovery; only its destination.

  41. step back March 20, 2017 12:40 pm

    Eric @40

    And given that you are a non-legal person involved in these discussions (an inventor) what you and other inventors situated as yourself need to understand is that the US Supreme Court (SCOTUS) is violating the law, specifically that part of 35 USC 103 that says one cannot do so, by negating (negativing) patentability through their probing into the manner in which they believe the invention was arrived at. Their probe includes stripping away parts of the claim that they arbitrarily and capriciously deem to be irrelevant so as to get to the true “gist” of what they believe constituted the inventive act, the sought after “inventive concept”, otherwise known as the tested for but illusive “something more”.

    Then again there those here who say we must turn a blind eye to the illegal acts of the SCOTeti and give them honorific appellation because they are “supreme”.

  42. You Know Who I Am March 20, 2017 1:44 pm

    “Try to assert a patent covering the technology being copied and the Gang of Five will simply petition the Patent Trial and Appeal Board (PTAB), dragging the patent through an inter partes review proceeding and deveining it of any useful subject matter if the proceedings are instituted”.

    That is simply lazy writing. IPR’s do not cover subject matter eligibility; they only cover obviousness. Of course, If not for the big fat target of 101, 103 would (still) be everyone’s favorite punching bag in these comments,because clearly, the only just patent system is one that grants patents on every single variation of every single thing that human beings do.

    Otherwise, it’s all just “efficient infringement” and “copying” because lordy, we would not want any actual business competition to break out.

    The Big Five are all different firms with different histories. Not too long ago Microsoft and Apple were both given up for dead. Amazon can hardly be called a tech firm per se, since they are the world’s dominant retailer, with massive physical infrastructure enabled by tech, as is almost every major business today. By that standard, Boeing and Lockheed Martin are tech firms too. Facebook is still very young, and software only, while Google too does not produce hardware in any significant way.

    Somehow the software industry is still booming. Seems incredible what with all the theft going on.

  43. Gene Quinn March 20, 2017 1:54 pm

    You Know Who I Am-

    You say: “That is simply lazy writing.”

    Frankly, I’m getting tired of your lazy, stupid commentary.

    You say: ” IPR’s do not cover subject matter eligibility; they only cover obviousness.”

    WRONG! In an IPR you can challenge a patent for lack of novelty under 35 U.S.C. 102, not “only” under 35 U.S.C. 103.

    Please try and do better moving forward. Your comments are filled with inaccuracies. Being wrong is one thing. Being wrong and being condescending at the same time is quite another.

  44. Eric Berend March 20, 2017 2:07 pm

    @ 39., ‘Night Writer’; and 41., ‘step back’:

    This is much of the crux of the matter, is it not? As one who, while not being a legal professional, has nonetheless some experience in moderately complex litigation (of necessity; as prose, of course; in RE proceedings, in particular; with motion practice), I am in perhaps an unusual position.

    Actually I do find study of some areas of law, to be rather fascinating – particularly, the provenance of various origins of jurisprudence of U.S. law, that includes English (British) law, Salic law, Roman law, Canon law and Admiralty (maritime) law. I admire the anecdote about former Pres. Lincoln, that when he bought that barrel full of books, there at the bottom, was a complete copy of Blackstone’s Commentaries.*[1]

    I see the truth of your written words; and have to acknowledge that, unfortunately, it is not the lawful standard in Constitutional separation of powers that matters in these exalted legal fora, lately (meaning, by decades); but rather, the powers-that-be. And so far, to our mutual frustration, that sway has held to much degradation of the prosecution of U.S. patent protection rights, to the point of said ultra vires as you both have described many times, issuing from even such esteemed and lofty judicial bodies, as the Supreme Court of the United States of America, itself; and at the mere behest of the said powers.

    ‘step’, I’m with you in my own personal degree of outrage; however, most readers of your blog, can barely keep up with your pithy, zinger observations; often, delivered with pungent sarcasm. Look at a couple of the occasional responses to my own diction here: I write much as I think; and perhaps, this is the same for you: if one has a quick and broad wit, it can be imposing, for those not quite so blessed.

    *[1] – an account can be found at http://www.authorama.com/life-of-abraham-lincoln-10.html

  45. Edward Heller March 20, 2017 3:15 pm

    Night, Can we please just stick to 102/103/112? You have some claims that assert that they are new, non-obvious, and enabled by a disclosure. Is there really anything else needed?

    The claims in Bilski come to mind. Patented by the Office, they are presumably new and non obvious. Supported, of course.

    Why were these declared ineligible. Well, after a good discussion with Distant Perspective, he convinced me that the reason was that it was because “balancing risk” was an abstract, and everything else in the claim was routine and old.

    So, simply being new, etc., is not enough.

  46. Edward Heller March 20, 2017 3:20 pm

    Step, the Supreme Court was indeed trending in the wrong direction when it begin to impose a requirement for a Flash of Genius — See, Cuno Engineering. That case was overruled by 103, second sentence.

    That is why I opened this whole line of discussion about not placing too much emphasis on “Discovery.” That might get us into trouble in the same way as “Flash of Genius.” Simple hard work, serendipity, flash of genius. It makes no difference. If the invention is indeed new in the sense that the inventor created something new, and that invention was not known to others, it should be patentable.

  47. step back March 20, 2017 3:24 pm

    @45 Ned,

    Simply following the law “is not enough” also for the SCOTeti. (ha ha)
    They’ve got to add their own Spanish Inquisition tests.

    https://patentu.blogspot.com/2017/02/the-post-modern-inquisition.html

  48. step back March 20, 2017 3:36 pm

    @46 Ed

    What’s this with you and your “creationalism”?

    It does not withstand simple logic.

    Suppose I have a hunch that a combination of compound type X and type Y might synergistically react to stop growth of antibody resistant bacterial strain S.

    But suppose there are 100 specific compounds under type X and 100 other specific compounds under type Y.

    I run 10,000 (=100 x 100) experiments simultaneously in Petri dishes over a course of 10 days.

    When I come back 10 days later, nothing there is “new” and I am not “creating” anything “new”. However, I “discover” that Petri dish number 7,654 had the best results. I am entitled to a patent for my “discovery” (at least under 101).

  49. Edward Heller March 20, 2017 4:18 pm

    step, but there is a difference between a method and a product. The Supremes emphasized that new methods involving known products could be patentable.

    But when one is claiming a new composition, it has to be “new.”

  50. angry dude March 20, 2017 4:33 pm

    well, ed the ned

    please answer this question:

    viagra was discovered as a side unexpected results of a routine process of testing some known substance for completely different purpose
    was it patent eligible or not ?

    If not then no viagra for you

  51. step back March 20, 2017 5:11 pm

    The Supremes emphasized that new methods involving known products could be patentable.

    What?
    Not so.
    Perhaps you are confusing the rational previous SCOTUS with the current one.

    The Alice/May SCOTUS says to throw away all conventional parts of a method claim until you are left with nothing.

    Example: Old guy with EDS= nothing new there.
    Add old compound known as Viagra= nothing new there.

    Zero plus zero equals zero. Hence no patent for you Pfiezer.
    Concept of making old people feel young is as ancient as the fountain of youth. Just abstract wishful thinking.

    (Concept of making rational sense out of SCOTUS patent decisions also just abstract wishful thinking.)

  52. Steven March 20, 2017 8:04 pm

    Better Article Title: Efficient Infringement IS Stealing.

  53. Edward Heller March 20, 2017 8:05 pm

    angry dude; viagra was discovered as a side unexpected results of a routine process of testing some known substance for completely different purpose
    was it patent eligible or not

    Of course. How an invention is made or discovered is totally beside the point of whether it is eligible. The new use of Viagra was discovered accidentally, but the use was both NEW and it was previously unknown.

    The Supreme Court repeatedly commented favorably on the discovery by accident of vulcanized Indian rubber by Goodyear.

  54. Edward Heller March 20, 2017 8:18 pm

    step, you have the Supreme Court generally mistaken for the same kind of unformed blowhard blatherers that commonly invest the internet and patent bar associations that reveal they have very little understanding of patent law as soon as they open their mouths or type on a typewriter. The Supreme Court understands patent law far better than the Federal Circuit, and that fact has been on display a lot in the last several years.

    That said, I was and still am highly critical of was Bilski because the Supremes did not explain why the claims in that case were “abstract.”

    But Alice? Now that was a good decision that basically argued by analogy to Bilski as to why the claims in Alice were abstract. And, the Federal Circuit has now reversed course and has tried to follow the Supreme Court for a change, putting meat on the bare bones that help us understand when Software and Laws of Nature are eligible.

    Given this trajectory, there should be very few problems with 101 in the future unless the blowhard blatherers who don’t have a clue get before Congress who themselves do not have a clue and try to f**k up patent just a little bit more.

  55. Anon March 20, 2017 8:37 pm

    Mr. Quinn @ 43,

    The person you are addressing has already been banned once from your site. That person is Mr. Snyder, who insists on pretending that his own concocted “pet theory” is based in patent law, when it clearly is not.

    Mr. Snyder, While no doubt you meant to include a heavy does of sarcasm with your comment of “Of course, If not for the big fat target of 101, 103 would (still) be everyone’s favorite punching bag in these comments,because clearly, the only just patent system is one that grants patents on every single variation of every single thing that human beings do.” ALL that you really do is prove my (much earlier) observation about you correct in that you want to bastardize the law of 101 to reach a certain End, and you really just do not care that you are bastardizing that law.

    That is one of the absolute worst (and downright dangerous) traits possible in the arena of law – hiding the evil in a “cloak” of good.

    Your comment of “Otherwise, it’s all just “efficient infringement” and “copying” because lordy, we would not want any actual business competition to break out.” is simply inane and rests as well upon a fallacy.

    Efficient infringement has nothing to do with “actual business competition” – leastwise in ANY sense of the word of promoting innovation.

    If you understood at all what is going on in efficient infringement, you would understand that all that is happening is that innovation suffers because of non-innovation factors are made the basis of “competition.” Once Big Corp plows the competition (based on innovation) under, there is a decided LACK of competition.

    While Gene is correct in his statement of “Your comments are filled with inaccuracies. . Being wrong is one thing. Being wrong and being condescending at the same time is quite another.

    I doubt that he is correct in his desire of “Please try and do better moving forward.” given that you appear to be regressing in your plainly anti-patent rhetoric and refusal to understand the terrain of patent law.

    You continue instead to show an overabundance of negative emotions that clearly cloud your reasoning, and you desire only that which you have already set your mind to.

  56. Anon March 20, 2017 8:45 pm

    Mr. Heller @ 53,

    You sir are worse.

    You disdain Bilski and would have placed Justice Stevens on a throne and celebrated the direct negation of the words of Congress.

    While Mr. Snyder may be passionate, but not schooled in law, you sir ARE an attorney and yet seek to misrepresent the law to achieve your desired ends.

  57. Ned Heller March 20, 2017 8:52 pm

    Anon, come on now. It is Bilski that has led to a decade of chaos and uncertainty. Had Stevens prevailed, only business method patents would have been impacted. But with the Kennedy majority, any claim could now be labelled “abstract.” Any claim. And, therein lies the problem, does it not?

    Fortunately, the Federal Circuit has fleshed out things just a bit since Alice. That case has gone a long way to help distinguish between the method of doing business with the software that implements it. The latter clearly now is eligible. See the examples given in the other posts here about the examples from the USPTO.

  58. You Know Who I Am March 20, 2017 9:11 pm

    Please. 102/103 are almost always lumped together because the inquiries are so similar. Because I shorthanded that fact has zero to do with refuting the point that IPR’s are not used for eligibility inquiries.

    The KSR opinion speaks better than I possibly could, but it makes the precise point about these many “copied” or “efficiently infringed” features- and about ordinary business competition.

    “We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts”.

  59. Anon March 20, 2017 9:17 pm

    but it makes the precise point about these many “copied” or “efficiently infringed” features- and about ordinary business competition.

    Not sure what you think that you are reading there, Mr. Snyder. But it is most assuredly not what you are typing here.

    Also – it might be worthy to note that a Court – ANY court – that seeks to base its decision on some unknown (and unknowable) conjectural “might” happen has ventured past its legal authority and into the realm of advisory opinion.

  60. Night Writer March 21, 2017 8:47 am

    @45 Ed the Ned: He convinced you that balancing risk was abstract? What does that mean? Balancing risk is probably abstract in some sense, but something that is abstract cannot be enabled so that a machine performs it. How can a machine perform an abstraction? What does that even mean?

    So, what we have is a word that the SCOTUS generated, ‘abstract”, and then they claim that somehow or another your claim is one of those. It is a witch test outside of the law and Constitution.

    Something that is enabled cannot be abstract by any convention definition. Of course, the SCOTUS often just uses an old word and makes new meanings to it as they have here. So, the meaning of abstract is that it fails the Alice test (it sinks.)

  61. Night Writer March 21, 2017 8:48 am

    @56 Had Scalia joined the others it would have all been over and there wouldn’t be this 101 judicial activism.

    Notice too that “abstract” is one of those words that is untethered from the Constitution so the justices just make up what ever they want about it.

  62. Night Writer March 21, 2017 8:52 am

    @56 Ed the Ned > the method of doing business with the software that implements it.

    This is so wrong on so many levels. First, the machines and the “methods of doing business” have become intertwined so that the “method of doing business” would never have been had it not been for the machine. This is the same–by the way–as with manufacturing. One could say that the only patent portion of the claim for the new machine is a method of manufacturing say a new chair and nothing in the machinery is new. But, in Deener, the SCOTUS figured out that this was innovation.

    Anyway, Gene, you know, Ed the Ned is pushing the party line. He is just repeating over and over the position papers that were developed by people like Richard Stern (author of Benson.) It is the same garbage over and over with no substantive response.

    You are truly the definition of a sell out Ed the Ned.

  63. Curious March 21, 2017 9:55 am

    I was and still am highly critical of was Bilski because the Supremes did not explain why the claims in that case were “abstract.”

    But Alice? Now that was a good decision that basically argued by analogy to Bilski as to why the claims in Alice were abstract.
    Huh? If Bilski was bad, how can Alice be good when SCOTUS essentially said in Alice that ‘these claims look a lot like the Bilski claims’ so we are going to rely upon Bilski? Your comment doesn’t make sense. If Bilski was bad then so should Alice.

  64. Curious March 21, 2017 10:06 am

    Federal Circuit has now reversed course and has tried to follow the Supreme Court for a change, putting meat on the bare bones that help us understand when Software and Laws of Nature are eligible
    Follow the Supreme Court? What is there to follow? You already admitted that the Supreme Court didn’t define what they mean by “abstract idea” so all we are left is an “I know it when I see it test.”

    I would guesstimate that perhaps 20% of patents in the “software” area fall within the Federal Circuit’s current case law as being clearly either patentable or unpatentable subject matter. However, a vast number (whether that number is 80%, 60%, or 40%) of patents in the “software” area fall within this gray area of unknown where ultimate patentability lies in the makeup of the panel one faces at the Federal Circuit

    This is little more than closing one’s eyes and throwing darts at a dart board — you call this guidance? This is an unmitigated disaster when it comes to promoting the progress of science and the useful arts since nobody knows for certain whether their intellectual property has any value, and without any certain value, only the foolish would invest in the creation and the harnessing of such intellectual property.

  65. Curious March 21, 2017 10:12 am

    Had Stevens prevailed, only business method patents would have been impacted. But with the Kennedy majority, any claim could now be labelled “abstract.” Any claim. And, therein lies the problem, does it not?
    LOL. First, do you have a definition of “business method patents” that anybody can work with? Perhaps we can find it in the same dictionary that SCOTUS is using to define “abstract.”

    Second, once the nose of the camel got under the tent with the anti-patent crowd achieving victory by eliminating “business method patents” from 35 USC 101 (despite no textual statutory support for such an exception), you think they would have stopped there? It is quite naive on your part to think that “only business method patents would have been impacted.”

  66. step back March 21, 2017 10:27 am

    Interestingly, SCOTUS candidate Neil Gorsuch is in the witness chair right now at the Senate hearing on his nomination.

    He testified that he determines the “facts” based on the briefs that he reads (as well as what the lawyers in the well argue).

    That’s hilarious.

    Appellate judges are not supposed to be determining “facts”, especially because no one is testifying in front of them and being subjected to cross examination.

    Welcome to the brave new world where “facts” are determined by them among the amici curie whom the Court deems to be the true “friends” of the Court.

    So Virginia, it is true. Molecular biology is as simple as plucking leaves off the tree.

  67. Curious March 21, 2017 10:37 am

    the results of ordinary innovation are not the subject of exclusive rights under the patent laws
    Pontification on the part of SCOTUS that has neither Constitution nor statutory support and reflects a poor understanding of invention. Innovation/invention is not “ordinary.” Otherwise, everybody would be doing it. However, every simple innovation is a relatively rare occurrence.

    SCOTUS appears to suffer from the bias that happens when every person you deal with on a daily basis is extraordinary people — they presume that EVERYBODY is extraordinary. They haven’t walked out onto a shop floor or into a design room and seen hundreds of people use the same tools the same way (like they’ve been taught) without deviation day after day for years upon years. It is not ordinary for people to step outside their comfort zone and do something different by creating something new from the known parts around them.

    Promoting innovation was so important to the Founding Fathers that they deemed it worthy of being enshrined in the Constitution. The quote I reproduced above (from KSR) disrespects that innovation (no matter the type) is an important endeavor that deserves protection.

    As a practical matter, innovation is skill set that can be learned and improved upon. How many school “science fairs” are populated by aspiring inventors that are probably combining known elements in known ways that are very likely producing combinations? However, these aspiring inventors are the very people that will start combining known elements in new ways. These first attempts might be considered “ordinary innovation,” but ordinary innovation eventually leads to extraordinary invention. However, if that ordinary innovation is denigrated (like SCOTUS did in KSR), how many of those aspiring inventors will become discouraged? Who wants to continue patenting when your invention gets denied protection as merely being “ordinary”? By discouraging ordinary innovation, we discourage the people who could ultimately achieve extraordinary innovation.

    Ordinary invention is not necessarily the same as being obvious, yet the Supreme Court (in KSR) has created (yet another) hurdle to obtain a patent that ultimately fails to promote innovation.

  68. Tiburon March 21, 2017 10:55 am

    “efficient infringement” is really just whining and crying like a kid in a schoolyard.

    The success of most of those Gang of Five companies is largely due to the functionality and usefulness they delivered more than any reliance on patent protection.

    This whole debate whether software should be patentable has distracted a lot of people from seeing the reality that is all around them – namely that innovators are not just surviving but thriving.

    For example, look at the very webpage you are currently reading and the technology it relies on to assemble it:

    WordPress: 0patents
    jquery: 0patents
    OpenTracker: 0patents
    FormSwift: 0patents
    Feedburner: 0patents

    So 0 patents in total!

    Don’t think those are important to this page? Then go ahead and block those domains to see how this webpage looks without those pieces.

    Rest assured that the services these bring all cost money and wouldn’t be running very long if there wasn’t a profit somewhere. So, I suggest software innovation is alive and doing very well. The sky is not falling, innovation is thriving – it just doesn’t need patents.

  69. You Know Who I Am March 21, 2017 11:23 am

    @67, You nicely restate my argument that clearly, the only just patent system is one that grants patents on every single variation of every single thing that human beings do.

    @68, The people behind WordPress, jquery, OpenTracker, FormSwift, and Feedburner efficiently infringed, so they did not need to bother obtaining patents.

  70. Tiburon March 21, 2017 11:32 am

    You Know Who I Am –

    1) I highly doubt these small players ALL efficiently infringed
    2) you are missing the point – namely that they were able to create something new without having to rely on patent protection to generate profits from their investment in R&D
    3) these examples all show that there is an ALTERNATIVE system to patents to protect software innovations

  71. Tiburon March 21, 2017 11:52 am

    Curious,

    The Founding Fathers was a long time ago, before computers and the Internet. Today we have evidence of new ways of encouraging innovation such as open source software.

  72. step back March 21, 2017 12:22 pm

    @67 Curious

    Spot on.

    I liken the Supreme Court Justices to ingrate Medieval takers of the Magic.

    They know not how the Magic comes into being, just that it seems to always have been so and always will be so. Radios, TVs, refrigerators, washing machines, computers, new medicines; all these wonderful things appear by magic in the marketplace. Obviously thanks to Adam Smith’s “Invisible Hand” (“Market forces” as stated in KSR).

    Therefore we don’t need no stinking troll “inventors” coming up from under the bridge to demand toll fees for that which have ordinarily come about anyway thanks to the intelligent design and actions of Mr. Invisible Hand and the Market Forces.

    Clearly the Founding Fathers did not understand modern, global free trade economics. There is no longer a need for incentivizing individuals to apply themselves, to tinker in their garages and to come up with new stuff. The marketplace and its natural “forces” will be with us and will inevitably provide.

    /end sarcasm 😉

  73. Anon March 21, 2017 12:55 pm

    Tiburon,

    May I suggest that you familiarize yourself with the law (and please do more than read from the “Open Source is Nirvana” script).

    Thanks.

  74. Tiburon March 21, 2017 1:06 pm

    Anon,

    Focus on the law and you lose sight of the forest through the trees.

    Step above the trees and you can quickly see what is going on. Patents are clearly not helping small innovators, while open innovation is. That’s reality. The sheer amount of changes necessary to change the law so that patents do offer something useful to small innovators is enormous. There is no silver bullet. Meanwhile, small innovators have other alternatives that are clearly better than patents.

    Or care to inform us how a software startup could use patents to protect their investment into R&D? ….exactly – you can’t.

  75. Edward Heller March 21, 2017 1:12 pm

    Night Something that is enabled cannot be abstract by any convention definition.

    Exactly. I had thought the very same thing until my discussion with Distant Perspective because I naturally assumed that Supreme Court was referring to the use of “abstract” in cases such as O’Reilly v. Morse and Le Roy v. Tatham, where the problem identified was “scope.”

    After that discussion, I became convinced that the Supreme Court was using abstract an entirely new way, is almost like mental steps.

    Regardless, by not specifying why the claims in Bilski were abstract, we have had a number of years now not knowing why those claims were declared to be ineligible. That to me is completely wrong and not worthy of the Supreme Court.

    So where does that leave us now? I think the courts are now using abstract both in the way of O’Reilly v. Morse and in the way that they were used in cases such as Benson or Flook where math was determined to be an abstract idea.

  76. angry dude March 21, 2017 1:17 pm

    Tiburon @74

    “Patents are clearly not helping small innovators, while open innovation is”

    First part about patents – correct 100% at present (unfortunately)
    second part about “open innovation” ???

    wtf is open innovation and how it can help me as a creator of some new software-implemented technology ?

    “small innovators have other alternatives that are clearly better than patents”

    what other alternatives other than trade-secrets on actual technology and software copyright (on binaries of course) with the source code been kept a closely guarded secret ?

  77. Tiburon March 21, 2017 1:43 pm

    angry dude –

    Look around, there are thousands of successful examples. Think less about keeping things closely guarded secret and more about the community. Is Twitter’s barrier to entry its’ patents or is it the network effect that all the users are on there (ie. angrydudetwitter.com currently has no users – why would I leave Twitter for it?). Google tried it numerous times (Connect, Circles, Orkut, Google+, …) and ended up abandoning them all – if they couldn’t do it then why worry about someone copying the underlying algorithm? And obfuscating to prevent reverse-engineering is equally immaterial – Twitter’s is blatantly obvious after 5mins of use.

    Patents are 100% absolutely useless for small startups – they cost money to obtain and then end up costing magnitudes of order more to enforce and maintain when hit by IPR’s.

  78. step back March 21, 2017 1:49 pm

    @75 Ed,

    The Medieval Justices of our “Supreme” Court believe there is something they refer to as a “mind” and that this mind thing performs “mental steps” where electronic digital circuits also perform the same “mental steps”. Thus by claiming mental steps performed by way of digital circuits one is blocking the “mind’s” right to freely perform the same on its own or with aid of the new fangled machines.

  79. angry dude March 21, 2017 1:59 pm

    Tiburon @77

    patents are useless to me, agreed

    community means nothing – its not stupid web-based app like twitter, its very high-tech embedded inside devices

    once it’s out it will be reverse-engineered immediately unless I manage to trade-secret protect it somehow or at least slow them down and make ripping me off more expensive then paying me

    this is a dog-eat-dog world, my friend
    watch “Silicon valley” on HBO – it’s all in there (except patents for whatever reason)

  80. Tiburon March 21, 2017 2:30 pm

    angry dude –

    while the Constitution or Founders never explicitly said – but certainly the intent for patents was largely for the small guy – yet today they are more than useless in that regard. They cost a lot to obtain, infinitely more to enforce and keep alive when you need to enforce. They only benefit large corporations and patent lawyers – so what’s the point?

  81. Curious March 21, 2017 3:15 pm

    For example, look at the very webpage you are currently reading and the technology it relies on to assemble it
    I suspect that the technology used to create this blog is covered by hundreds of patents. The fact that the headline entities associated with this blog do not, themselves, own any patents is not dispositive.

    The Founding Fathers was a long time ago, before computers and the Internet. Today we have evidence of new ways of encouraging innovation such as open source software.
    Ah yes, the “we are special” argument trotted out from time-to-time by the anti-software patent crowd. This is also a version of the “if everybody shares the technology for free, then everybody wins argument” — a form of patent communism.

    I suggest software innovation is alive and doing very well.
    … and software has been patentable for likely longer than you have been alive.

  82. Curious March 21, 2017 3:22 pm

    certainly the intent for patents was largely for the small guy – yet today they are more than useless in that regard. They cost a lot to obtain, infinitely more to enforce and keep alive when you need to enforce. They only benefit large corporations and patent lawyers – so what’s the point?
    Patents used to benefit the small guy. Until the big guys started spreading propaganda — particularly among you “open source” guys that patents were bad. It used to be if you have a good app, program, or feature and patented it, you could make some money off your work. Today, with the patent system now geared towards the large moneyed interests, you are correct in saying that patents are for the small guy.

    care to inform us how a software startup could use patents to protect their investment into R&D?
    There was a time when it could.

    However, killing the patent system isn’t going to help the small guy. The small guy still has to overcome the massive advantages that the big guys already have. They all have these built-in markets/products by which they can incorporate any new improvement you can come up with. Why would anybody what to pay you for your new app when Google can just roll it into its free offerings (which they use to drive their advertising business).

  83. Tiburon March 21, 2017 3:52 pm

    Curious –

    “I suspect that the technology used to create this blog is covered by hundreds of patents.”

    And I suspect that the innovators didn’t bother with patents and simply wrote and deployed the source code? And why would they bother with the enormous costs of patents when they can simply write the software, deploy it, gain traction, make money before large corporation comes and steals it? Gene is linking in components from WordPress, jQuery, OpenTracker, FormSwift, Feedburner mostly because Google/Cisco/Microsoft/IBM/etc don’t offer the same features.

    R.I.P. patents.

  84. Tiburon March 21, 2017 4:04 pm

    Curious –

    “Patents used to benefit the small guy. Until the big guys started spreading propaganda — particularly among you “open source” guys that patents were bad. It used to be if you have a good app, program, or feature and patented it, you could make some money off your work.”

    Google is going to ensure that those days aren’t going to come back. They’ve got $82B cash in the bank and growing $49m per day. They’ll make enough profits by the end of this week to fund further patent lobbying until the end of Trump’s term (4 or 8 years). Google has launched a fight against Uber over driverless technology – the fight will likely become as big as the smartphone patent wars if not bigger. And patents are front and center in that fight. There’s not a single damned thing patent lawyers can do to stop Google. You are out of arrows, it is game over.

  85. angry dude March 21, 2017 4:33 pm

    Tiburon @84

    Google is not smarter than a little guy in his/her garage
    google glasses is a good example of their stupidity
    patents are not gonna help them once they devalued them so much
    eventually they’ll be laughed out of court
    they want to have the cake and eat it too – not gonna happen
    no respect for patents means no respect for google patents too

  86. angry dude March 21, 2017 4:36 pm

    “…when they can simply write the software, deploy it, gain traction, make money before large corporation comes and steals it?”

    On which planet do you live ???

  87. Night Writer March 21, 2017 5:08 pm

    @75 Ed the Ned > So where does that leave us now? I think the courts are now using abstract both in the way of O’Reilly v. Morse and in the way that they were used in cases such as Benson or Flook where math was determined to be an abstract idea.

    Both ways are wrong. O’Reilly is an issue of scope and the scope should be of enablement. Benson is the root of all evil in patent law. And, I agree that they are using “abstract” as a witch word that is untethered from the Constitution. It is like math or any of the other witch words. They have no meaning in science or philosophy in the sense the SCOTUS is using them.

  88. Curious March 21, 2017 6:32 pm

    There’s not a single damned thing patent lawyers can do to stop Google. You are out of arrows, it is game over.
    Not everybody is enamored with Google. One need only look to the current administration (an administration NOT backed by Google $$) to see that. I’m not sure if backing the wrong horse will hurt Google, but it certainly did not help.

  89. Invention Rights March 21, 2017 6:35 pm

    Tiburon is begging the question. We all agree that patents are incredibly expensive and next to impossible to enforce. Many of us would go so far as to agree that no patent system would be better than the current one. And open source is a fine business model. Patents do not add value to every product. None of this refutes the fundamental benefit of a patent system with an actual quid pro quo. It is a maxim that such a system will increase innovation. Innovators will invest a certain amount of time and money out of altruism/recreation. They will invest a larger amount of time and money if there is an opportunity for a return on that investment.

  90. Edward Heller March 21, 2017 7:43 pm

    Night, I agree that we should look to 112 to determine whether a claim is too broad. But generally, if one only claims a result, the claim will be too broad.

    Regarding abstractions, like risk or math, I think these do not comfortably fall within the four classes. However, when a claim is specific, as in Bilski, I see absolutely no problem with such claims under the statutes — unless the statutes generally relate to machines or manufactures, in which case, a business method is not so related, although software designed to implement the business method may be because of the tie to the machine.

  91. Edward Heller March 21, 2017 7:48 pm

    Curious, assuming that the Bilski claims were ineligible, all that Alice stood for is that claims like the Bilski claims are abstract and require something “more” to be eligible. That something more is turning out to be real software, not just a simple referral to do it on a computer, where specific software is no recited.

    I see that my take on Versata is gradually being recognized by the Federal Circuit.

  92. Night Writer March 21, 2017 9:05 pm

    @90 Ed the Ned

    “only claims a result” — witch phrase. This is unnecessary to evaluate the claim.

    “risk or math” — witch words. These abstractions in your head are unnecessary to evaluate the claims.

    “business method is not so related” –this is a bizarre statement that is counter factual. A machine that is intertwined with the innovation of managing/running business is certainly within the statutory classes.

    Again, you just want to add witch stuff and then create witch tests. Try just sticking to 102/103/112.

  93. step back March 21, 2017 9:41 pm

    @91 Ed,

    One possible way of understanding how the SCOTeti / Federalies might think is to walk backwards into the technical arena (with eyes shut wide and tight to the real physical world). The backwards walk might go something like this.

    Step 1: Accept as an axiom that the human “mind” is a wonderful, ingenious and almost limitless tool.

    Step 2: It follows that the human “mind” can perform wondrous analyses (albeit slightly slower than a generic computer) including assessing the risks involved in different energy commodity markets (ala Bilski) and assessing the current solvency situation of various escrow accounts (ala Alice) where these wondrous analyses are some of the “fundamental” building blocks of human “ingenuity”.

    Step 3: Ponder with horror the possibility that some evil inventor troll might want to monopolize some territory within the wide realm of all the wondrous things the human “mind” can and may want to do (for example pursuant to the 1st Amendment)

    Step 4: Devise a scheme where one identifies a place where one of those evil inventor troll might want to monopolize some territory within the wide realm of all the wondrous things the human “mind” can and may want to do but with the aid of one of those new fangled computing things which merely help the ingenious human “mind” to do it faster.

    Step 5: The scheme is designed to always find in favor of the ingenious human “mind” because it can do (as we know by axiom) pretty much anything it sets its mind to do. Yes we can. So the test includes a spinning compass needle that always points to the abstract pole. And just to be fair, we add a witch buoyancy test. If there is “something more”, she might not be a witch. 🙂

    https://patentu.blogspot.com/2017/03/mirror-mirror-on-wall-we-ar-fairest-of.html

  94. Eric Berend March 22, 2017 8:52 pm

    @ 84., etc.; ‘Tiburon’:

    Did you come here to gloat, or to discuss the issues?

    Your ‘Silicon Valley Pirate’ heroes got and continue to keep their illicit wealth by stealing inventors’ properties: if their is no Constitutional bargain of disclosure, then inventors will keep their private property as trade secrets. You fail to perceive – or rather, as I believe; pretend not to understand – that every invention is entirely the property of its inventor; and ONLY through the disclosure encouraged through the Constitutional bargain inherent in a U.S. patent, as originally conceived; does it become the property of the public domain, or “community”, if you will.

    Your last comment reveals much more of your sponsors’ agenda, than you may intend. You write as if your motivations are software-based; yet, this last remark involves much more than just software in computers: these are physical, tangible apparatus’: and so, the long term agenda begins to emerge.

    The last sentence of comment #84, is unmistakable in its snarky condescension; how “courageous” of you, to bray and chortle so; much as an insect sitting on the shoulder of a giant – or, should I say: like a barnacle on the bottom of a boat.

    Do you realize, that there are those of us inventors who work in other fields such as chemistry or electro-mechanical engineering, who had no dog in that “software fight” and therefore, especially do not deserve to have our legitimate Constitutional standing and interests trampled by the manifest corruption of your darling precious Google; do you not? This, beyond the fact that there is a matter of principle here that patents are legitimate, despite whatever your personal opinion or mine may be; yet, you choose to emphasize the wealth and influence of a corrupt plunderer and vampire of the Internet, as being the most important aspect of this situation, to you.

    How dare you come on to a forum known to be a patent advocate, and strut your juvenile contempt and myopic worldview; celebrating vicious, malfeasant corruption, in the faces of those severely harmed? Surely, your remarks do little to advance that “cause”, which depends on that $82B warchest you described; so, again: are you truly so petty, as to gain mere ego gratification by posting said pejorative insults?

    Begone, worthless troll. Haven’t you some codebase to slog over, for your masters? Isn’t that more productive – you know, for the “community’s” sake – than wasting time snarking along, here?

  95. bad joke ahead March 23, 2017 4:01 pm

    The comical part of this entire article and topic is that the startups being stolen from have been conned by the thieves into agreeing that they should not be entitled to patent protection because of the nature of their advancements (software), and the thieves therefore cannot be held responsible for ripping them off……. But, they ripped me off!

    A sad state of affairs.

  96. Tiburon April 4, 2017 10:50 am

    Eric Berend @ 94 –

    “Do you realize, that there are those of us inventors who work in other fields such as chemistry or electro-mechanical engineering, who had no dog in that “software fight” and therefore, especially do not deserve to have our legitimate Constitutional standing and interests trampled by the manifest corruption of your darling precious Google; do you not?”

    And there’s nothing you or your fellow chemists or electro-mechanical engineer friends can do about it. Google is top dog, they have $82B cash in the bank, they (through Waymo) will take down Uber (using patents by the way) and you will watch it all unfold and complain in 5 years when that Google is even bigger, more powerful than today, and has destroyed patents. You will continue to come on this site and whine and complain because you won’t do anything about it where it really counts. On this site you will find kindred souls where you will rekindle the old times before when patents ruled.

    There is nothing you can or will do about it.

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