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Why is nobody talking about the real issue here: the slashed budget of the USPTO that has made them unable to properly vet patent applications for a decade? The problem isn't the trolls, it's the fact that these bullshit patent requests are being granted in the first place. The USPTO can't afford to have experts review patent applications, and this is the result.
By someone who knows what they're doing, sure. Consider, however, the patent for Linked List that was granted: Any programmer would have balked at it, but the unspecialized clerk reviewing it wouldn't have had a clue.
Would it make you feel better if he'd said that it covers doubly linked lists?
Because those appear to satisfy every element of claim #1 that I can find. IANAL, but I'm pretty sure that's the same as being patented.
Specifically, we have a "plurality" of objects in a doubly-linked list because it's a list and we have a primary and auxiliary pointer that lets the computer go through all the items without resorting them. In a doubly-linked list, the primary pointer points forwards, the auxiliary pointer points backwards and it lets a computer program go through the list without sorting.
Notably, there's no limitation I can see on claim #1 that forbids the auxiliary pointers from all going backwards and the field of invention might as well just say "computers." Maybe there's something limiting it in the prosecution history, but I'm not going to hold my breath.
EDIT: Also note that nothing in that claim's text requires merging two lists. If I'm misreading anything, feel free to cite the exact portion that says otherwise.
At first, I honestly thought this was from a decade or more ago. But then I noticed this: Filing date: Sep 26, 2002 Issue date: Apr 11, 2006
Yeah, because nobody was using more than one pointer on a linked list before then. I feel like I should grep some old FOSS code and see how many published examples of this "invention" I can find.
I don't know enough LISP to be sure, but I wonder if the cons cell itself can't almost be prior art.
Agreed. I'm all for a wall of shame. In 2002, if you didn't know that double linked lists exist, you deserve to have your name and picture on every billboard in Silicon Valley.
Will a generous sponsor (EFF, FSF), spend the $2,000 to get a banner on highway 101?
I think they prefer to get reexaminations to get rid of the patent and have a "Patent Busting Project" to that effect.
While a wall of shame is an interesting idea, killing the patent outright is likely a more effective use of their funds. Some of the entities in question aren't really known for their shame and only programmers are likely to appreciate the absurdity of patenting a doubly-linked list in this day and age.
But you can not crowd-review a patent, since it sometimes gives hints about whole business models, and getting others to know your inventions is dangerous (small differences are easily defensible in patent claims). Therefore you can not have (> reviewing applying).
1.) There are bad feedback loops between speed / quality / price of patent examination and the amount of ridiculous patents issued.
2.) Increasing the budget to improve screening and throughput will lead to an increase in patents submitted - will this increase at a higher / lower rate than their budget? I.e. will new patent submissions bloat the office even more than now?
3.) We could try to increase patent fees to cover costs, but then you'll "hurt the little guy" and fully benefit the IBMs who can afford to blow money like this.
4.) The boundary is quite gray between trolls (IV and others) and institutions with near-troll behavior (IBM's if-it-sticks patent submission methods).
5.) There are higher ratios of bad patents in certain categories: process patents, software, etc.
Conclusion: I bet that reducing the scope of what categories are patentable scales very well in reducing bad patents than any method of trying to make a better filter, because better filters will just lead to more patents to fill the void.
I think you really need to re-examine 1 & 2. Increasing the speed and quality of patent review may lead to more patent applications, but would reduce the number of baseless patents granted. As for price, the USPTO was never supposed to be self-sufficient. Doing it properly means the taxpayer picks up the tab. That's just something you have to accept in exchange for living in a highly developed economy.
IBM's patents, as well as those of Google and others, are generally defensive. They're meant to provide ammo to protect themselves from patent trolls.
It would reduce the ratio of bad/good patents - not number, this is my argument: increasing ease of submitting (speed, etc.) will probably lead to more patent submissions - the relation of these curves says whether the number would decrease.
I wasn't arguing for pricing it at true cost - I'm saying that if you're subsidizing an activity and increasing throughput - you tend to get doubly more of it.
Defensive patents also restrict innovation - see: "patent thickets". Having IBM patent worthless things is just as bad - probably worse than smaller ones because of their credible threat.
Probably due to the fact that IANAL, I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice? Seems like if it's publicly reachable you should be safe. <sigh>
> I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice?
Only having an actual patent gives you a weapon for a counterclaim. And it's a weapon only if the company suing you for infringement is itself infringing your patent.
OK- so you don't need one to protect yourself, only if you want to sue in retaliation. Am I understanding that right? Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you.
> Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you.
Sometimes, yes, but not always. It once worked out that way for one of my clients. The client got a letter from another company's lawyer, saying, "you may be interested in this patent." That's code for a threat to sue. The other company was a legitimate company that actually made stuff; it wasn't a troll, er, non-practicing entity.
My client had solid evidence that it had come up with the invention several years before, and that it had not abandoned, suppressed, or concealed the invention. This put the client in a position to make a powerful invalidity argument, one that can be especially persuasive to a jury -- even assuming this invention was patentable, we'd have been the ones entitled to the patent, not them.
I sent a letter to the patent owner's lawyer (whom I knew), saying, almost in so many words: I've reviewed some prior art not cited by the patent examiner, and my client is not the least bit interested in discussing your client's patent. The lawyer asked if I'd send him a copy of the prior art. I said, if you file a lawsuit, you'll get the prior art in the ordinary course of discovery. The lawyer evidently got the message - we never heard from them again, at least not on that subject.
(As usual, YMMV, and don't rely on this anecdote as a substitute for legal advice. Knowingly infringing a patent without clear and convincing evidence of invalidity could result in being held liable for willful infringement. That in turn could mean having to pay treble damages and the patent owner's attorneys' fees, which will almost always be considerable.)
Thank you; I sure appreciate the insight. It's heartening to know that if you try to do the right thing and mind your own business (as long as you document) then you stand a reasonable chance of being safe (so the system's not completely broken).
Simple solution: change fees on a sliding scale based on number of applications per year. The little guys who might file for one patent in their lifetime won't be affected. The IBMs won't be affected, because they expect an actual return on those patents. The shotgun-approach patent trolls will be affected, especially if frivolous patents are rejected.
I don't think the causal relationship between budget cuts and bad patents is so clear. If the Patent Office weren't so promiscuous to begin with, the inability to properly vet applications could very well lead to fewer patents being granted.
Getting a patent for something isn't necessarily a bad thing in and of itself. Doing harm with those patents is. Many companies get patents to protect themselves from situations just like this one.
It doesn't always have to work that way. If patents are secured, they can effectively be released into public domain, at least as far as I understand. Take a look at Xiph and Ogg; my understanding is that they publicly relinquished any rights to pursue infringement claims on their Vorbis-related (?) patents. IANAL.
Someone may also take a more creative route and attempt to make the point that software patents are terrible and evil by doing something absurd and high-profile by wielding them. For instance, if people can't get an iPhone anymore because of an injunction related to a patent suit, people will get mad and someone will probably at least try to fix the law, but probably end up making it worse. Generally, it seems people don't care about principle as much as they care about having their fleeting wants fulfilled. If you take away American Idol or iPhone, you will get angry citizens.
Yes, both of these scenarios are what we hope, especially the latter since I don't envision the USPTO to just stop software patents without such catalyst. But as you know, obtaining patents to open to public domain isn't the norm. I would guess that change of leadership (or even change of heart of the leader) to ones who don't believe in the original defensive intent of the patent happens more frequently.
When companies must have patents to defend themselves against patent trolls, the only possible winners are lawyers.
Software patents are completely wrong. As a side note, pg said that if software patents are wrong, then all patents are wrong. BTW I'm confident that most of current IP environment (both patents and copyright) hurts people and the economy.
I don't think patents are wrong in all fields. They seem to work when you're required to claim a specific, high-effort solution that the industry wouldn't have found without you. They fail when you're allowed to claim an entire problem by being the first to write down the features all solutions have in common. With software, USPTO is enabling a land rush into a new discipline that doesn't yet have enough written prior art to make any useful work safe, and their bar for "novel and non-obvious" is absurdly low.
Patents can help innovation but only in the rare cases where it's actually worth to license the patent in order to still make serious money _now_. But even specific patented solutions often seem to be a hindrance in overall development.
As an example, when reading the history of steam engines, I recall several occasions where development simply halted until some patent expired. Nobody got any wealthier either but when the thing fell into public domain, innovation rushed forward. And this was in the 1800's, and pretty much a prime example of what the patent system was cooked up for: a mechanical, specified engineering invention...
Software patents are wrong but all are not. There is one difference: When you make a real patent you give a nation the knowledge(plans, diagrams, materials and explanation) to make something and IN EXCHANGE you receive from this nation a monopoly over this particular method for some years.
Software patents are being used as a way of buying monopolies over generic ideas, not particular but broad methods so the powerful could destroy competition, without exposing the proprietary code(not giving the knowledge at all).
The companies that grew and become powerful and rich without patents like MS and Apple want to use this money to buy them eternal prosperity against new comers.
As Dr.Friedman said, the same companies that rise with free market want the free market destroyed. The same person that as a little guy opposed software patents as the boss of a big company tries to enforce it:
"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." Bill Gates
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That's friggin crazy...
http://www.google.com/patents?id=Szh4AAAAEBAJ&printsec=a...
It covers the merging to two lists using linked lists so that there are multiple ways to loop though a list of items.
Fairly obvious? I would say so. But not the sensational claim that "linked lists are patented".
By making such bogus claims, you actually hurt the cause of people who want real patent reform.
This opinion coming from someone who had to go through the legal system to file and defend bogus patent infringement cases.
Because those appear to satisfy every element of claim #1 that I can find. IANAL, but I'm pretty sure that's the same as being patented.
Specifically, we have a "plurality" of objects in a doubly-linked list because it's a list and we have a primary and auxiliary pointer that lets the computer go through all the items without resorting them. In a doubly-linked list, the primary pointer points forwards, the auxiliary pointer points backwards and it lets a computer program go through the list without sorting.
Notably, there's no limitation I can see on claim #1 that forbids the auxiliary pointers from all going backwards and the field of invention might as well just say "computers." Maybe there's something limiting it in the prosecution history, but I'm not going to hold my breath.
EDIT: Also note that nothing in that claim's text requires merging two lists. If I'm misreading anything, feel free to cite the exact portion that says otherwise.
At first, I honestly thought this was from a decade or more ago. But then I noticed this: Filing date: Sep 26, 2002 Issue date: Apr 11, 2006
Yeah, because nobody was using more than one pointer on a linked list before then. I feel like I should grep some old FOSS code and see how many published examples of this "invention" I can find.
I don't know enough LISP to be sure, but I wonder if the cons cell itself can't almost be prior art.
Will a generous sponsor (EFF, FSF), spend the $2,000 to get a banner on highway 101?
While a wall of shame is an interesting idea, killing the patent outright is likely a more effective use of their funds. Some of the entities in question aren't really known for their shame and only programmers are likely to appreciate the absurdity of patenting a doubly-linked list in this day and age.
The ability for one man to know what "real innovation", is always <, the ability of a team with every incentive of faking them out to overcome.
But you can not crowd-review a patent, since it sometimes gives hints about whole business models, and getting others to know your inventions is dangerous (small differences are easily defensible in patent claims). Therefore you can not have (> reviewing applying).
1.) There are bad feedback loops between speed / quality / price of patent examination and the amount of ridiculous patents issued.
2.) Increasing the budget to improve screening and throughput will lead to an increase in patents submitted - will this increase at a higher / lower rate than their budget? I.e. will new patent submissions bloat the office even more than now?
3.) We could try to increase patent fees to cover costs, but then you'll "hurt the little guy" and fully benefit the IBMs who can afford to blow money like this.
4.) The boundary is quite gray between trolls (IV and others) and institutions with near-troll behavior (IBM's if-it-sticks patent submission methods).
5.) There are higher ratios of bad patents in certain categories: process patents, software, etc.
Conclusion: I bet that reducing the scope of what categories are patentable scales very well in reducing bad patents than any method of trying to make a better filter, because better filters will just lead to more patents to fill the void.
IBM's patents, as well as those of Google and others, are generally defensive. They're meant to provide ammo to protect themselves from patent trolls.
I wasn't arguing for pricing it at true cost - I'm saying that if you're subsidizing an activity and increasing throughput - you tend to get doubly more of it.
Defensive patents also restrict innovation - see: "patent thickets". Having IBM patent worthless things is just as bad - probably worse than smaller ones because of their credible threat.
Only having an actual patent gives you a weapon for a counterclaim. And it's a weapon only if the company suing you for infringement is itself infringing your patent.
Sometimes, yes, but not always. It once worked out that way for one of my clients. The client got a letter from another company's lawyer, saying, "you may be interested in this patent." That's code for a threat to sue. The other company was a legitimate company that actually made stuff; it wasn't a troll, er, non-practicing entity.
My client had solid evidence that it had come up with the invention several years before, and that it had not abandoned, suppressed, or concealed the invention. This put the client in a position to make a powerful invalidity argument, one that can be especially persuasive to a jury -- even assuming this invention was patentable, we'd have been the ones entitled to the patent, not them.
I sent a letter to the patent owner's lawyer (whom I knew), saying, almost in so many words: I've reviewed some prior art not cited by the patent examiner, and my client is not the least bit interested in discussing your client's patent. The lawyer asked if I'd send him a copy of the prior art. I said, if you file a lawsuit, you'll get the prior art in the ordinary course of discovery. The lawyer evidently got the message - we never heard from them again, at least not on that subject.
(As usual, YMMV, and don't rely on this anecdote as a substitute for legal advice. Knowingly infringing a patent without clear and convincing evidence of invalidity could result in being held liable for willful infringement. That in turn could mean having to pay treble damages and the patent owner's attorneys' fees, which will almost always be considerable.)
[0]: http://www.hipmunk.com/
Someone may also take a more creative route and attempt to make the point that software patents are terrible and evil by doing something absurd and high-profile by wielding them. For instance, if people can't get an iPhone anymore because of an injunction related to a patent suit, people will get mad and someone will probably at least try to fix the law, but probably end up making it worse. Generally, it seems people don't care about principle as much as they care about having their fleeting wants fulfilled. If you take away American Idol or iPhone, you will get angry citizens.
Software patents are completely wrong. As a side note, pg said that if software patents are wrong, then all patents are wrong. BTW I'm confident that most of current IP environment (both patents and copyright) hurts people and the economy.
As an example, when reading the history of steam engines, I recall several occasions where development simply halted until some patent expired. Nobody got any wealthier either but when the thing fell into public domain, innovation rushed forward. And this was in the 1800's, and pretty much a prime example of what the patent system was cooked up for: a mechanical, specified engineering invention...
Yet it failed, already then.
Software patents are being used as a way of buying monopolies over generic ideas, not particular but broad methods so the powerful could destroy competition, without exposing the proprietary code(not giving the knowledge at all).
The companies that grew and become powerful and rich without patents like MS and Apple want to use this money to buy them eternal prosperity against new comers.
As Dr.Friedman said, the same companies that rise with free market want the free market destroyed. The same person that as a little guy opposed software patents as the boss of a big company tries to enforce it: "If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." Bill Gates