I'm trying not to "merely assert that" by giving examples supporting my point :-) I'm mentioning the legal standard just to point out that they have come to the same conclusion, and the standards weren't set by patent holders or patent lawyers, but by the very founders of the constitution. If you consider the age they were drafted, it makes perfect sense because back then all inventions were physical, and one could figure out things just by looking at it.
For instance, until the Wright brothers built their flier, controlled flight was deemed impossible after decades of failed and fatal attempts. But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Also it's not just the obviousness of the invention that's at play, it's the obviousness of the problem. The solution may be trivial, but the problem may not even be encountered without exploring new boundaries (think Apple and touchscreens). Sometimes the problem is right there in front of everybody's eyes and yet nobody notices it (think Flash of Insight).
In addition, you would be surprised by how many incredibly complex problems are solved by "trivial" solutions which nonetheless take years of effort to arrive at. One example I am aware of is digital and wireless communications methods: most of those patents appear trivial. But the mathematics that goes into proving that they actually work and work well span pages.
However, if you change the standard to that of non-triviality, it will reduce the incentives for improvement, and proportionally, the rate of innovation, in areas where copying would be trivial. This is not hypothetical [3].
If you think we don't need incentives for innovation in the "trivial" areas of technology, why did we need Apple to show us how to do touchscreen UIs right when companies like Nokia had developed touchscreen smartphones decades before?
Changing to a standard of triviality will instead focus efforts on areas where inventions cannot be reverse-engineered easily, and those already don't need patent protection because trade secret is enough for those (again, see [3]). Think of Google's search algorithms and distributed systems infrastructure. How is hoarding of valuable technology behind the walls of data centers conducive to diffusion of knowledge and the progress of "useful arts"?
1. Before you say "and look how it held up the aviation industry!", I encourage you to read this paper [2] that busts that myth.
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930243 - paper studying historical rates of innovation in countries with and without patents. It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.
> I'm saying that something that can be trivially implemented by someone skilled in the art who is told what the invention does, but not how, should be below the bar.
Right, but what I'm saying is, that is not a good measure of the value of an invention, which is also why patent law is structured the way it is. Think about physical inventions like mechanical linkages or arrangements or other structures. Let alone someone skilled in the art, even we, knowing nothing more than how objects interact in the physical world, could look at it and figure out how it works, but that does not necessarily mean the mechanism was obvious before the fact.
I encourage you to experience a patent prosecution yourself to test these claims. Fortunately, you can do it vicariously completely for free! The entire prosecution history of a patent, i.e. the arguments back and forth between the applicants and the examiner is available for free on the USPTO public PAIR website. Go to that site, enter an application number, then click on "File Wrapper".
It will be immensely boring reading. But you will see all the work that goes behind a patent application. The File Wrapper will have tons of documents, mostly boilerplate, so you want to look for documents titled Office Actions, (Non-Final Rejections, Final Rejections, Allowances) and Applicants Arguments in response.
You will see almost everything, including the evolution of the claims from application to issue, the search strategy the examiner uses, the prior art references presented, the rejection issued, and the applicants responses on 1) how the prior art does not apply or 2) amending the claims to sidestep the prior art.
There obviously is variance in quality of examiners, but typically they're a tough bunch to get anything past. I would echo everydayman's sentiment, that while they are they not all technical experts, they are very good at search and they do find stuff pretty well on average. They do have pressure to get rid of cases ASAP, but their default is to reject. I have seen more frivolous rejections than I've seen frivolous allowances.
I'm not sure which categories you mean I'm splitting mathematics into. As for precedent, even the Supreme Court cannot define abstractness other than "we know it when we see it." Jurists may certainly have a loose grasp of mathematics, but it makes no difference at a general level because saying "software is mathematics" makes no sense when faced with the fact that executing software achieves tangible, practical results, and above all law is about practicalities. You won't convince any judge, jury or any practical person that the software they use is abstract, because they derive practical benefit from it on a daily basis.
A moonshot is certainly patent-eligible. You said it yourself: it is an application of pure math, and it achieves tangible results, namely, transporting an object through space. The pure mathematical equations are not patented. You can use those equations for other uses, say calculating asteroid trajectories.
As you said, equations on predicting motion are not patentable by themselves because they don't do anything by themselves. They simply describe aspects of the physical world. Any patent hoping to claim anything as such is supposed to be, and usually is, rejected out of hand.
But, a computer running those equations for a practical purpose, such as say, predicting impact with a car on the road and warning you, is patent eligible. Or maybe a method of calculating those equations more efficiently or faster using e.g. a GPU.
Do you see the difference? Neither of those examples is a patent on the equation itself, but rather an application thereof or a particular way of implementing it. None of those preempt you from using the equation somewhere else, e.g. to control a robot that can catch a ball you throw at it.
That leads to why most software patents include language for hardware. The reasons are manifold:
1. To be properly enabled, they must describe the invention in as much detail as possible. Ironically, after adding all that boilerplate about the hardware, they then skimp on the description of the invention itself.
2. The software is useless without the hardware. No machine will infringe without executing that software on hardware.
3. The term software itself is not well defined in the context of patent law. The constitution certainly seems to allow it, because it is undeniably a "science and useful art". But when the laws were drafted there was no such thing, and so there is no statute allowing it or denying it. So it is claimed as both a method or process (a way of doing things) or a system (a machine that does things) or both. And really, software is both: when executed it does things, and the machine that executes it is a machine that does those things.
By assuming RSA would be invented without patents, you are begging the question. Would R, S and A even be employed by MIT and given free reign to do their research if MIT was not assured of capturing the rewards of their innovation? I think you'll find there are a negligible a number of institutions who will invest in anything without prospects of getting returns on it, much less risky enterprises like research.
I agree we need fewer, better patents. But triviality is orthogonal to obviousness. As I said above (https://news.ycombinator.com/item?id=7162049) the iPhone UI patents are downright trivial to implement, but were they obvious before Jobs asked "How do we make smartphone touchscreens not suck"? Another related issue in the same comment is, identifying the problem itself is often the hard part, but the solution may be trivial.
We certainly need to fix things, but these are complex issues.
As I said at the end of my reply to CamperBob2 (https://news.ycombinator.com/item?id=7162049), the answer is we don't know. There are many economic and historical studies on this. There are clear costs and benefits, but the empirical evidence for each do not seem to tip the either way.
> If an idea is so obvious that nearly everyone faced with a similar problem stumbles on a similar solution...
And there in lie more issues with obviousness: it may be obvious if presented a similar problem. Many scientists, mathematicians and engineers will tell you that the biggest step to solving a problem is to state it the "right" way. But once you do that, the solution becomes obvious! In that case, the issue is, was the problem obvious in the first place?
Fortunately, patent systems have a provision for this. In the US it's called the Teaching/Suggestion/Motivation (TSM) test: roughly, if any reference identifies a problem that would motivate someone to solve it in a particular way, it counts towards obviousness. Note that TSM is not the only criteria these days.
As a well known example, think about the iPhone. In hindsight everything it does seems obvious. But the problem, as. But the problem, as Jobs restated it, was "current phone interfaces suck, touchscreens are better, how do we make it awesome?" I don't think anybody was looking at that smartphones in that light. Yes, there were tons of touchscreen phones but they all sucked. If you look at Apple's patents, each one looks trivial now, but taken together, there's no denying that the iPhone when it came out blew everyone's minds.
> It can only be economically destructive to award such monopolies.
There is insufficient empirical evidence for this thesis. Interestingly, the same goes for the opposite thesis, that our patent systems are economically beneficial.
Everyone agrees that the bar should be higher, though. Nobody knows how to set it higher, unfortunately
The "software is mathematics" argument has a few flaws:
1) It is reductio ad absurdum, like saying "machines are metals". It is not the naturally occurring metals that are patentable in physical inventions, it is how you configure and use them. Similarly it's not the mathematics that is patentable, it is the application thereof to a practical problem.
2) More importantly, it misunderstands what abstract math is from a legal perspective. People will invoke the Church-Turing thesis and several related theorems to prove that software being executed is math, but they miss the point.
An abstraction, by definition, cannot affect or effect anything in the real world. An idea in your head is abstract. The moment you act on it in the physical world, it is real. Similarly, if you can run some piece of software and get useful, practical, real world results, it is not abstract.
That is a (probably the most) difficult question. Intuitively, I would say, "Of course not". But when you learn more about the patent system and how it works, you understand the reasons why something like this may have gotten through. Let me lay it out.
1) Hindsight is a powerful effect. Once you've been shown something new, a person of skill may instantly deduce how it works. This does not necessarily mean it was obvious in retrospect.
2) This presents a significant problem for any system that purports to reward innovation. How do you objectively tell if anything was truly novel and non-obvious at the time it was invented? Any opinion on the quality of an invention is inherently subjective. [1]
3) As such, the way patent offices have historically decided this, is that novelty or non-obviousness is completely based on the delta with the prior art that came before it, where prior art := any published material with an identifiable date prior to your invention. [2] This is because, in true CYA style, when contended, you have an established historical record of documents proving your stance.
Novelty is easy: Anything that a single prior art reference doesn't cover is novel. Obviousness is the tricky part: all inventions are combinations of existing elements. But was that combination obvious? How's that for subjective!
The USPTO seems to have a rule of thumb that any claim that requires combining more than three+ references of prior art is probably non-obvious. That seems like a pretty low bar to clear (and you'd not be far off) but the catch is, those references could be anything that mentions anything resembling any element of the invention. Under this standard, it is my belief that truly innovative inventions like Diffie-Helman or RSA would not have been patentable [3].
4) And herein lies the rub: To be fair, you must be objective. But to be objective, you must abandon all measure of quality to the power of raw data. And as data scientists tell me, data often lies. All the data in the world (at that time) may not be enough to prove non-obvious the specific combination of elements that a patent claims.
Such as this patent. Really, who's going to document and publish at a venue with a proper date the fact that they developed something to skip audio files? Yes, to be fair, you must judge all patents by the same standards, so the patents in areas that have been most published about (because, you know, they are interesting research problems) are less likely to get through than those that cover some obscure, unimportant aspect hat nobody thought to document.
And that, ladies and gentlemen, is why we have this situation
1. Imagine if Einstein was your patent clerk as opposed to the guy you interviewed week before last who failed Fizzbuzz.
2. This, of course, relies on good search, and IMO Google has been the biggest boon (or bane, depending on your perspective) to the patent system than most imagine.
This is why I hate Internet reporting of patent cases:
> Given that there's no question Internet broadcasting pre-dated Logan's business, Ars asked if Liddle and his colleagues at Personal Audio felt that it was justifiable to keep pursuing small podcasters for royalty payments. "I'm not going to comment on that," he said.
1) The patents are not on "Internet broadcasting". They are, effectively, despite claim oversimplification being the primary sin in discussing patents, on skipping episodes of audio content. That is it. If you want to find relevant prior art, you don't go about looking for "Internet broadcasting", you look for things that involve audio content that is episodic and can be skipped from episode to episode with a user command. Yes, really.
2) The prior art that EFF dug up, if it is indeed on "Internet broadcasting", is probably not relevant to this patent.
3) Personal Audio is arguing Estoppel. Estoppel, overly simplified, means what you say and do can be used against you.
4) If you consider 2) and 3) it's highly ironic then, that Ars asks the lawyer a question that would effectively do nothing other than create estoppel for himself. Conveniently, the article gets to present that as a shady response. But consider this: whatever he may say offhand about the prior art Ars mentioned can work against him. This is the same principle as "Don't talk to the police" that gets parroted so often around here: Don't say anything without having thoroughly thought it through beforehand. As an oversimplified example: The lawyer may have said something like "That is just Internet broadcasting. This patent covers something else like skipping episodes". An opposing lawyer can then argue, "Defendant does Internet broadcasting, but plaintiff's lawyer just implied these patents don't cover Internet broadcasting."
5) Askpatents.com is much better for this work, because dedicated users (shoutout to Micah Siegel) take efforts to describe in plain english and as precisely as possible, the claims and what prior art should contain. Anything less than that devolves (as it does on HN or Slashdot) to discussions of completely irrelevant prior art.
6) Relevant prior art may actually lie in the domain of simple digital audio players, because those have had skipping of content for, like, ever. Problem is, these claims use "means for doing XYZ" in their language. This, while sounding extremely broad, is paradoxically narrow, because "means for" is now interpreted to cover only exactly the methods described in the specification. But anything that skipped episodes of content is what we want.
While I am strongly pro-patent, I completely accept there are flaws in the system. The article implies the patents are overbroad, but the reality is they are narrow enough to be literally inconsequential, but impart an over-inflated worth because of the legal environment.
However, reporting like this twists the issues and actually impedes progress. If, for example, you called your Congress-people (hah!) and complained saying "How can there be a patent on Internet broadcasting?!", they would consult with someone who actually knows how patents worked, who would then say, "Well, it's not really a patent on Internet broadcasting per se...", and that's all the politician needs to bucket you in along with the old lady who keeps calling up about the UFOs in her backyard.
OK, I'm stretching it with the politician scenario and have no experience with politics. But am I far off?
That's just one patent that got invalidated. And that required Google to identify one comment from more than a decade back to argue that the patent was obvious (rather than anticipated). All that to kill a single MS patent.
MS has hundreds, probably thousands of patents in their portfolio. A single patent makes negligible difference to the portfolio.
In addition, MS has prevailed in court with several other patents in many other jurisdictions, so clearly they have enforceable patents in their portfolio. That is why they can rightfully continue asking for licenses.
This is one of the "practical" problems of licensing large portfolios that I alluded to. The quality or fate of a single patent does not reflect on the entire portfolio. Conversely, invalidating each patent or valuing each patent is also incredibly complex.
There is an entire field of specialization for valuing portfolios. Calling it extortion is mostly the efforts of one side of the table to exert indirect pressure on the other
B&N gave them a stake in the eBook business for $300M. That's not nothing. That is an instant entry into the eBook business for Microsoft. Compare that to the huge amounts of time and money and legal fighting and publisher wrangling the other players (Amazon, Apple and Google) had to invest.
No, it's really not. Pretty much all large patent portfolios get licensed this way, and always have been. There are a multitude of legal, technical, practical and business reasons, but that's how it goes.
It's just that some companies don't like to pay what's due, which is fine... It's their right and they can settle it in negotiations or in court. The problem is, due to the current media atmosphere that is conducive to inflammatory rhetoric because it garners rageviews, these companies now also like to complain loudly using words like "extortion", which the tech media eagerly parrot. And then others who don't like the licensor (or patents in general) pick up that rhetoric and run with it.
What most people are missing here is that government money only gets you as far as the discovery, and that's if you're lucky enough to, you know, discover something. More likely, you run out of money with nothing to show. I have no cites handy, but the success rate of drug R&D is pretty darn low.
Say you do get something. Now you want the government to also be involved in the commercialization of the discovery? I think people would argue they are already involved enough, what with the FDA and all.
Further: the person making the discovery spent half a decade of their lives after college to get a PhD, and very likely many years of post-doc, to be extremely specialized in an extremely narrow area of some field. Now you want them to be product managers and manufacturers and businessmen as well?
This is one problem patents solve: Division of labor. Let those who are good at science and technology do their thing, and let people who are good at commercializing do their thing, and let IP ensure one both sides have means to reap appropriate rewards.
I never said "all important discoveries come from the government". The Polio vaccine and penicillin and the theory of evolution and the last Nobel Prize for Graphene and a bunch of other things came out of non-government funded research.
That has no bearing on the fact that most of the biggest advances cannot be had without significant long term investment without guaranteed outcomes that most private investors are extremely unlikely to fund. I mean, have you seen the sort of research proposals professors write that actually get grants from the NSF?
Beyond things like DARPA and NSF and the like, think of things like the various National Labs. Nobody's winning Nobel Prizes every year at these labs, but year after year they do work that pushes the boundaries of human knowledge to enable future discoveries.
Instead of hand-waving about the conductivity of air, what would have helped is a citation that clearly states how hot the heating element of toasters themselves get. (Really. Because I could not find a good cite either :-P)
The best I coud do was wiki answers: The heating element of toasters reaches 1100 - 1200 F [1].
If the answers.com link is not trustworthy, consider this: The most common alloy used for the heating elements in toasters is Nichrome [2]. Nichrome is used because it has a "high" melting point of 2550 F [3].
Not only does the temperature range required by this patent not make toast, it would melt the heating element in most toasters. The spec of the patent itself requires some kind of halogen lamp heaters.
It's pretty clearly not a "patent on toast". "Burnt to a crisp" toast, maybe, but not toast.
> and repeatedly rejected until the PTO folded under seven continued amended petitions in 2010
Also called "prosecution". This is, literally, how every patent is prosecuted at the USPTO: the applicants file claims as broad as they dare, examiners reject using prior art (or other statutory reasons), after which the applicants amend claims to sidestep cited reasons, and rinse-and-repeat, until the applicant finally presents a set of claims that the examiner cannot reject. It is not "folding", it is being procedurally unable to issue a rejection.
The only catch is that examiner time is not free, so each attempt costs some thousand USD, and gives you one non-final rejection followed by a final rejection -- which is, of course, not final, because the applicant can just pay the requisite fees to continue examination. It's not like the applicant gets multiple bites at the apple for free.
> Applicants are encouraged to reword claims to cover technology invented by others since the original application.
Funny, but no. The examiner would like nothing more than getting rid of a case for once and for all, and they can't make frivolous allowances either. (Which is why you get cases like the one above where the applicant had to try seven times to get an allowance.) They can very much make frivolous rejections, though, and they do. There really is no feasible recourse for those other than coughing up more fees and forging on.
The reality of continuations is, applicants have the right to reword claims as long as the original supports the claims, and many applicants exercise that right. Because, if they find something out there that is described in their patent but sidesteps their claims, they'd be outta luck. The Doctrine of Equivalents goes only so far, especially when juries are involved.
Continuations can be abused, but it does not mean they always are. Unless new matter is added, the new claims must still be constrained by the spec of the original patent. (If the new claims refer any new material, their priority dates effectively change to the date the new matter was introduced, automatically bring into play all the new prior art introduced in the meantime as well.) So the claims in continuations are still judged in context of the prior art present at the time the spec was filed.
>The '462 patent ... It does not describe how to build such a device, of course, just that one could exist
I dunno, the figures look pretty descriptive to me:
I agree, however, that it is very instructive to read through the claim construction arguments, just to get an idea of how these things shake out. It is all technical and reasonably easy to grasp, so if you have a few minutes free, go through a few pages of this. (Any more and you run the risk of dozing off.) I couldn't find examples of "abuse of software and networks", though.
Hmm, I'm been unable to respond because I get a "you're submitting too fast" error. Maybe I tripped some sort of flame detector. To avoid multiple replies, I'm consolidating responses into one mega-reply.
davesims:
> The word ['claims'] appears exactly once...
Yes, I worded my argument poorly. The word "claims" does occur, but it's not in the context of a patent's claims, but rather the claims made by a plaintiff. They discuss multiple patents in the episode, but not once do they talk about any patent's claims, and no discussion of a patent can begin without the claims. In fact, the journalists seem to make the very common mistake of interpreting a patent's scope based on what the abstract and other sections mention.
> TAL never claimed otherwise.
Oh, they very much insinuated it by emphasizing how difficult it was to verify instances of inventors getting paid.
Also, yes, the inventor was a schmuck, but that should have no bearing on IV or other trolls who claim to help inventors. The vast majority of inventors don't try to rip off their co-inventors. (Glass half-full: because most people are decent human beings. Cynically: incorrect inventorship, as in this case, can automatically invalidate a patent. If you search askpatents.com, you'll see this issue come up a few times.)
nickff:
> Bread refreshing method US 6080436 A
The main claim in that patent, as pointed out by belorn, requires a temperature of 2500 F to 4500 F. Toasters typically operate at temperatures at 310 F. I don't know what you get at 2500 - 4500 F, but it's not toast. The thing is, you don't even need to be a patent lawyer or an engineer to fact-check this little but.
> The engineers understand how patents work...
This, in my experience with multiple online forums and countless personal interactions over the course of 7 years, is rarely true. Pretty much nobody, especially the tech media making the most noise about patents, even knows what claims are.
I agree that patentese seems esoteric at first glance. But that is because it has this particular structure for legal and historic reasons. It's easy enough to learn, though. If you've had to debug C++ STL compile errors, patentese is a breeze. This was the intent behind my Blub/Haskell comparison: complaining about something wihout understanding it is really not contributing much to the discussion.
reitzensteinm: > Lodsys
In my eyes, Lodsys is clearly a bad actor. They are preying on solo developers who have no way to afford any kind of defense. Many trolls exploit the extreme cost asymmetries of mounting a legal defense, but by targeting such small players, Lodsys is taking it to new lows. In that sense I find IV to be more palatable because at least they pick on "someone their own size". (Lodsys has been linked to IV, but until some time ago, Lodsys had a page on their site explicitly disavowing any relation to IV. No idea why it's been taken down.)
Also, a general note about TFA: I don't see what's so landmark about this trial. Generally, trials are "landmark" if they break new ground, and while interesting because the defendant is formidable, this is a pretty run-of-the-mill lawsuit of IV vs another tech giant.
For instance, until the Wright brothers built their flier, controlled flight was deemed impossible after decades of failed and fatal attempts. But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Also it's not just the obviousness of the invention that's at play, it's the obviousness of the problem. The solution may be trivial, but the problem may not even be encountered without exploring new boundaries (think Apple and touchscreens). Sometimes the problem is right there in front of everybody's eyes and yet nobody notices it (think Flash of Insight).
In addition, you would be surprised by how many incredibly complex problems are solved by "trivial" solutions which nonetheless take years of effort to arrive at. One example I am aware of is digital and wireless communications methods: most of those patents appear trivial. But the mathematics that goes into proving that they actually work and work well span pages.
However, if you change the standard to that of non-triviality, it will reduce the incentives for improvement, and proportionally, the rate of innovation, in areas where copying would be trivial. This is not hypothetical [3].
If you think we don't need incentives for innovation in the "trivial" areas of technology, why did we need Apple to show us how to do touchscreen UIs right when companies like Nokia had developed touchscreen smartphones decades before?
Changing to a standard of triviality will instead focus efforts on areas where inventions cannot be reverse-engineered easily, and those already don't need patent protection because trade secret is enough for those (again, see [3]). Think of Google's search algorithms and distributed systems infrastructure. How is hoarding of valuable technology behind the walls of data centers conducive to diffusion of knowledge and the progress of "useful arts"?
1. Before you say "and look how it held up the aviation industry!", I encourage you to read this paper [2] that busts that myth.
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930243 - paper studying historical rates of innovation in countries with and without patents. It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.