Althouse: "The Supreme Court just dealt a major blow to patent trolls."

June 21, 2014

"The Supreme Court just dealt a major blow to patent trolls."

"On Thursday, the court upheld the notion that an idea alone can’t be patented, deciding unanimously that merely implementing an idea on a computer isn’t enough to transform it into a patentable invention."

40 comments:

Bruce Hayden said...: The Wired article is beyond ridiculous. What must be remembered though is that we are in the midst of a very well financed attempt to weaken the patent system, and, in particular, to make it harder to force patent infringers to pay for their misappropriation of IP. And, not surprisingly, this major push, at the tune of tens of millions of dollars a year being spent on lobbying Congress, is being paid for by some of the biggest high tech companies in the world, and one reason for that is that they tend to have a business plan of letting others invent, and then when a technology starts to take off, dumping many more millions into the market than the start up that actually invented the technology can afford.

So, back to the decision. At one level, it was a very narrow decision, stating that this one patent was invalid, due to its claim of an abstract idea. On the other hand, it made the trillions in GDP protected by software patents a little less secure.

The Supreme Court cannot seem to get the intentionally distinct decisions that the 1952 drafters of the Patent Act (which has been somewhat modified by the AIA) intended, between statutory subject matter, novelty, and non-obviousness. They keep importing novelty and non-obviousness into subject matter determination, as was evident in Justice Thomas' opinion.

Still, I think that the bigger worry is the tendency to pack the Federal Circuit with tax attorneys, instead of patent attorneys. That Court has exclusive appellate jurisdiction in patent matters, and I would suggest that this loss of patent expertise is a big reason that their patent subject matter jurisprudence has become so fragmented. And, this Supreme Court opinion did nothing except maybe muddy the waters a bit.; 6/21/14, 1:31 PM
rhhardin said...: You could never patent a theorem.

Software patents were a mistake. Maybe they'll all be tossed out.; 6/21/14, 1:51 PM
Original Mike said...: "Software patents were a mistake."

Yep. When some of my patents were granted, my feelings were, "Really?" And they were hardware. Software patents are, to borrow Bruce's phrase, "beyond ridiculous".; 6/21/14, 2:22 PM
Alex said...: There are method patents(describing an algorithm or method of performing a function) and design patents(look and feel).

Apple has been wrong and they feel aggrieved and they will make Samsung pay.; 6/21/14, 2:33 PM
Richard said...: This has nothing to do with weakening the patent system and everything to do with reining in patent trolls. Did you every analyze any of these patents? There is no substance to them. All they do is present some abstract idea for carrying out some activity and then lay out a number of concepts for implementing that idea. In most cases they don’t every bother to come up with an actual implementation. In addition their ideas are covered by prior art. The real problem is that the patent system is broken. Patent examiners don’t seem to have any expertise in software and have no knowledge about the computer industry. They allow almost anything to be patented.; 6/21/14, 2:33 PM
Kirk Parker said...: Bruce, sorry: I'm with rhh -- software (and business-process) patents are an abomination and should never have been granted.

I view this decision as a minor corrective, and wish we were on the road to abrogating every software/BP patent en masse.; 6/21/14, 2:35 PM
sonicfrog said...: "What must be remembered though is that we are in the midst of a very well financed attempt to weaken the patent system"

Weaken the system???

It's a bigger mess than the IRS!

"misappropriation of IP"

So much of what is labeled as "IP" shouldn't be "IP" in the first place. That is the core of the problem.

Like the IRS, the patent system probably needs to be blown up and restructured in a more sensible fashion. When you have companies suing other companies over patents concerning nothing more than on-screen icons that have square or rounded corners, you have a problem. Up until the last year or so, I've been following the silliness that was the 2003 SCO vs anything Linux lawsuit. That was the case that brought the patent system problems to my attention. SCO eventually lost, but the amount of resources in time, money and court cost, cost that we the citizen had to pay for for ten years, is staggering. And it delayed actual innovation in the Linux community for a time because of the fear, uncertainty, and doubt that was part of the built-in goal of establishing via the lawsuit.

"...and one reason for that is that they tend to have a business plan of letting others invent, and then when a technology starts to take off, dumping many more millions into the market than the start up that actually invented the technology can afford."

I'm getting the feeling you don't follow this very closely. There are those cases. But they are much less typical than the big company buying the littler company, such as Microsoft buying Skype. That is a cheaper solution than going to court.

It's all about the bottom line. The reason Microsoft and other are now actively trying to get the system changed is that they even realize that the cost of the current system, where so many companies are suing so many other companies, the expenses for lawyering up to fight claims or defend them, have gotten out of hand, especially when it comes to cases involving patent trolls.; 6/21/14, 2:39 PM
sonicfrog said...: "Apple has been wrong and they feel aggrieved and they will make Samsung pay."

Wrong... Or wronged???; 6/21/14, 2:56 PM
Kirk Parker said...: (I'm laughing at sonicfrog's assertion that Bruce doesn't follow this subject closely...); 6/21/14, 3:05 PM
Kirk Parker said...: "So much of what is labeled as 'IP' shouldn't be 'IP' in the first place. That is the core of the problem."

Under the concept of "he who controls the terms of the debate", some genius recently proposed ditching the term "intellectual property", and replacing it with the much-more-accurate term "intellectual monopoly".

I wish I could remember who it was. (Bruce, any idea?); 6/21/14, 3:07 PM
sonicfrog said...: This comment has been removed by the author.; 6/21/14, 3:15 PM
sonicfrog said...: Oops... Pressed enter before I meant to.

The fact that Bruce is a PatAtt is in one sense a weakness in his argument, as a change in patent laws would possibly interfere with his ability to earn a living. It's the same reasons many teachers don't want tenure messed with... Why many tax attorneys don't favor a much simpler tax system... Why government officials who work for, pick a government agency, don't want budget cuts related to their dept.; 6/21/14, 3:22 PM
sonicfrog said...: Kirk... I stepped in it right there.

I haven't been here for a while, and forgot that was Bruce's profession.; 6/21/14, 3:33 PM
Baronger said...: The best description I had of the way the decision reads, paraphrased:

Take an existing non patenable idea like building a crate, then create a patent that says "building a crate like you would with a hammer and nails, but instead using a nail gun."

This is in essence what a lot of the "with a computer" patents boil down to. Most of them should never have gotten a patent in the first place.; 6/21/14, 3:48 PM
Bruce Hayden said...: This has nothing to do with weakening the patent system and everything to do with reining in patent trolls. Did you every analyze any of these patents? There is no substance to them.

I should probably ask the obvious question - are you legally competent to have made the previous statement? Have you been admitted to practice before the U.S. Patent and Trademark office? Or, do you have substantial patent litigation experience?

My point there is that the verbiage in a patent is mostly fluff, there to support the claims (35 USC 112(a)), and if you aren't a registered patent attorney (or maybe patent agent), you are unlikely to be able to speak with any degree of authority on the subject of what those patents mean. And, yes, I have analyzed a lot of those patents, including the one in the Alice case.

As for "trolls", I doubt that you can define the term with any degree of specificality. If you can, let me suggest that you relay it to the two Judiciary Committees, because that was one reason that the legislation died a month or so ago, at least in the Senate.

Rather, it is an intentional pejorative utilized to designate anyone whom you don't want suing you for infringement, and, esp. if they are individuals or small organizations. And, importantly, it is used to designate first inventors, when much larger entities are attempting to appropriate their inventions through use of their massive wealth. Unfortunately for the proponents of the legislation, it swept in universities and even large companies if they weren't actually selling products in the area of their patents.; 6/21/14, 3:52 PM
Bruce Hayden said...: The fact that Bruce is a PatAtt is in one sense a weakness in his argument, as a change in patent laws would possibly interfere with his ability to earn a living.

I am also a year older than Ann (or graduated from HS and college a year earlier), and that means that my interests are less along those lines than others. Besides, what you are doing is (ad hominem) arguing based on claimed bias, instead of attacking the merits of my points. What you are essentially arguing is that anyone competent to adequately understand the subject matter being discussed should be disqualified from discussing it because they are biased (and know too much).; 6/21/14, 3:58 PM
Bruce Hayden said...: I'm getting the feeling you don't follow this very closely. There are those cases. But they are much less typical than the big company buying the littler company, such as Microsoft buying Skype. That is a cheaper solution than going to court.

Sometimes. But, name for me what you think that Microsoft has actually invented over the last nearing 3+ decades. Dos? Windows type operating system? Spreadsheets? Word processing programs? Web browsers? Etc. And, yet, they are (or were) dominant, or close, in all of those categories. And, where are the inventors of those technologies? Who made the billions? (BTW - my answer to the above is Visual Basic - I really like it and its use of an object model for its Office documents - but this shouldn't be a surprise, since compilers were their first real expertise)

And, again, I know more than most, but not as much as some I deal with on a regular basis. I have spoken professionally on both software patents and submarine patents (before the latter were mostly eliminated by moving from 17 year from issue to 20 years from priority date term). But, I also have 3-4 people on the committee I chaired recently who have been on the Hill lobbying the troll issue. So, I suspect that I follow this subject far more closely than you, or at least am guided by those who are much more qualified to speak than I am.; 6/21/14, 4:17 PM
Bruce Hayden said...: Why are patents in general, and software patents in particular, important? Because, in the end, they are a good part of what funds innovation. The ability to somewhat guarantee that if you discover the next spreadsheet, web browser, etc., that you will be able to make some money, before the Googles, Microsofts, etc. jump in and squash you.

There were a lot of things that went into (temporarily?) defeating the recent "troll" legislation. One was that the brush was much too broad, and likely swept in universities. But another was that the VC community woke up to the reality that without patents to secure their investments, they had no security. And, without security, they were much less likely to invest.

From my point of view, part of the problem with the "troll" legislation is that it didn't even attempt to try to define what a "troll" is. And, lumped all patent plaintiffs together into potential trolls. And, that is what you need to keep straight here. There are patents that protect inventions of first inventors from predation by large companies appropriating their inventions, and there are those who write claims reading on existing technology by stretching their disclosures, often well beyond recognition (most famous there were the submarine patents of Jerome Lemelson). I have mostly been on the former side, but, on occasion, have worked on the other side. The former are trying to protect what they invented, while the latter are trying to profit from what others invented. The problem is that making this distinction has proven, so far, to be almost impossible when drafting legislation.; 6/21/14, 4:30 PM
Kirk Parker said...: Bruce,

Will you address the issues that so many of us working slobs in the software industry have with software patents?

Once you get past the technical issues of the PTO's complete and total inability to evaluate obviousness and prior art in this arena, you still have the conceptual problem that "reducing to practice" is meaningless in software. Really, the watchword in software is the opposite of things in the physical world: INNOVATION IS CHEAP!

As a result, in my view (and every single developer I've ever discussed this with, as opposed to corporate-attorney types, is that software patents hinder rather than promote progress in our arena.; 6/21/14, 4:39 PM
Bruce Hayden said...: Take an existing non patenable idea like building a crate, then create a patent that says "building a crate like you would with a hammer and nails, but instead using a nail gun."

This is in essence what a lot of the "with a computer" patents boil down to. Most of them should never have gotten a patent in the first place.

No. Not even close. The USPTO regularly rejects both types as obvious under 35 USC 103. If a methodology is not novel and not obvious prior to implementing it on a computer, it doesn't become novel and nonobvious just because it is implemented on a computer - which is why such claims would realistically be rejected under 35 USC 103. Plenty of case law to back that up.

The reason for including the "with a computer" language gets us back to the muddled statutory subject matter (35 USC 101) jurisprudence that I mentioned above. You need to keep three things separate (though the U.S. Supreme Court doesn't do well at that): subject matter (101); novelty (102); and obviousness (103). Examiners routinely reject claims any more as too "abstract" (and, thus not eligible under 101) when there is not sufficient tie to hardware (i.e. the computer) - even if the method is completely infeasible absent a computer (such as how do you read those records stored in a database on a hard drive w/o a computer? or How do you process the millions of records required?) When we add "with a computer" to the elements of a software method claim, we are protecting against statutory subject matter (101) rejections which have absolutely nothing to do with obviousness (103).; 6/21/14, 4:41 PM
Anonymous said...: Is this at all connected to the Adam Carolla lawsuit that is happening with what he calls "patent trolls" because they are suing him for doing podcasts?

From what I've heard of the story, seems pretty lame what they are doing.; 6/21/14, 4:54 PM
Richard said...: I should probably ask the obvious question - are you legally competent to have made the previous statement? Have you been admitted to practice before the U.S. Patent and Trademark office? Or, do you have substantial patent litigation experience?

No, but I do play around as an expert witness on networking patents. I have perused enough of these patents to know that if the patent examiner was doing his/her job properly, the patents on many of these "inventions" would not have been issued.; 6/21/14, 4:56 PM
rhhardin said...: Why are patents in general, and software patents in particular, important? Because, in the end, they are a good part of what funds innovation.

Not true, except for drugs, and those owing to the FDA tax of endless trials.

See Michele Boldrin for a nice podcast on the matter.

Everything you know about intellectual property is wrong.; 6/21/14, 5:14 PM
sonicfrog said...: Bruce said:

"I am also a year older than Ann (or graduated from HS and college a year earlier), and that means that my interests are less along those lines than others. Besides, what you are doing is (ad hominem) arguing based on claimed bias, instead of attacking the merits of my points. What you are essentially arguing is that anyone competent to adequately understand the subject matter being discussed should be disqualified from discussing it because they are biased (and know too much). "

I accept that criticism. I jumped into this without cooling my jets a bit.

I recognize on my part, that a lot of what I know is only based on the most sensational pieces of news that makes their way onto the internet.

I find the subject of patent law interesting and do try and dig deeper when possible.

When this ruling was announced on Thursday, I only heard a snippet. I looked at some of the usual law sites, Volokh, SCOTUS blog, etc, but didn't see much of anything on this ruling. When I saw the Althouse post, I jumped the gun.

I apologize.

Sometimes. But, name for me what you think that Microsoft has actually invented over the last nearing 3+ decades. Dos? Windows type operating system? Spreadsheets? Word processing programs? Web browsers? Etc. And, yet, they are (or were) dominant, or close, in all of those categories. And, where are the inventors of those technologies? Who made the billions?

Lets look at Microsoft and DOS. DOS was developed by Tim Patterson who worked for Seattle Computer Products.

How did MS get DOS??? They didn't buy the company, but did the next best thing - they bought the OS from the company in 1980.

Tim Patterson probably didn't get much for that deal, but he did end up working for Microsoft a couple of years later, and continued to develop DOS for them.

If memory serves, that is pretty much what happened with most of the other developments. What it didn't develop, it bought, or bought the whole company that developed the desired product. Of course, the browser situation stands on its own.

As far as the patent troll issue goes. It's not too hard to define initially. A patent troll is a company or organization that purchases patents with the sole purpose of suing those they claim are infringing on said patent and having no other use for said patents... i.e. they are not in any way utilizing the patents to make or develop a product to be offered on the market.

Something like that.; 6/21/14, 5:23 PM
Bruce Hayden said...: Good innovation in the software realm is no cheaper than in a lot of other areas of technology. Back when I was working both for and against IBM, its ratio of patents to R&D expenditures was not all that different between its hardware and software sides. And, its hardware patents were typically in high R&D dollar areas. While I specialize in software patents, due to my software background, I have dealt with a lot of other technologies (or Art Areas) in my 24 years in patent law, and a lot of the patents applications that I have filed have lower development costs than much of the software cases that I have filed. (proviso - I don't do chemical or biotech patent applications - they require a lot more chemistry and the like than I have).

As for reduction to practice - that is mostly irrelevant, since if the disclosure is enabling (under 35 USC 112(a)), it is considered constructive reduction to practice upon filing. And, if not enabling (a person of reasonable skill in the relevant art to practice the invention w/o undue experimentation), then any claims that issue are invalid. (But, of course, you would have to overcome the presumption of validity in issued patent claims).

There are definitely searching problems for software patent applications. One problem is that software has a less uniform set of terminology than do some other fields, and that hampers searching. Another is that the USPTO mostly didn't allow software patent claims until about the time I started in the business (24 years ago), and so didn't build up a nice prior art database in their issued patent (and patent application) database. However, they do have online access to IEEE and ACM journals all the way back, as well as a lot of relevant periodicals. They haven't always, but do now. And, that is where a lot of the prior art should be found.; 6/21/14, 5:29 PM
Bruce Hayden said...: As a result, in my view (and every single developer I've ever discussed this with, as opposed to corporate-attorney types, is that software patents hinder rather than promote progress in our arena.

The place that they help immensely is when you go to get funding. As I pointed out above, patent protection (or at least a serious potential for such) is key to a lot of VC, Angel, etc. funding decisions. You can write code to your heart's delight (which I still do, and expect to get back to shortly today), but taking it to market and building a company with it are a very different thing. If you invent the next big thing, what is going to protect you from the Googles, Microsofts, etc. jumping into the market once it takes off, dumping tens or hundreds of millions into it, and completely squashing you and your startup company? That is what the parties providing a lot of the high tech funding are considering when making funding decisions. And, you really need that money, because it is very very hard to build a company fast enough to build enough market share to attract them as buyers, instead of appropriators, if you don't have a decent market presence. And, that often requires growing quickly, which most often requires more money than you can generate internally.; 6/21/14, 5:37 PM
sonicfrog said...: "As a result, in my view (and every single developer I've ever discussed this with, as opposed to corporate-attorney types, is that software patents hinder rather than promote progress in our arena."

Kirk, the few developers that I know / have known have expressed the same view.

In a way, Linux and GPL'd software are close to having a patent-free style system. On the one hand, few are going going to get rich off software development. But that's always been the case. And there is always the possibility that your skills as a programmer will attract the attention of the Googles and the Microsofts of the world.

Lets examine the success of the mostly open source Andriod (Linux) platform vs the stuttering Microsoft Windows phone platform. I'm a Linux guy and am on a Linux machine typing this. That said, I have no animosity toward the MS operating system. I use that too for specialty items such as bookkeeping and audio production.

I own an HTC One. Wonderful phone. My previous phone was the first Nokia windows phone, the Lumia 900, purchased when it first came out in the spring of 2012. I had no qualms with the phone.... At least at first. When I bought it, MS was already working on the next OS upgrade, Win 8, and the phone was presumed to get that upgrade. The, that summer, Nokia and MS announced that no, my phone would not be upgraded to the next OS.

What the HELL????

Needless to say, I wasn't please. They had just made my phone, new to the market, prematurely obsolete. Because of Microsofts closed source / patent guard-dog mentality, I was stuck. I couldn't afford to go out and buy a new phone even if I wanted.

In the meantime, I still had my older Samsung Galaxy S-1 laying around. Because Android is (mostly) GPL'ed, I was able to upgrade my older phone to ice cream sandwich, and for the last half year that I still owned the Lumia, I found myself using the older phone instead, because the software worked just as well, but i was much more flexible in what I could do with the thing, because people could add and modify existing code to fit my phone without fear of being sued.

I would have loved to have found an open source solution OS to flash to my MS phone, but Microsoft, in part, to protect their patents, will never let that happen.

As of now, the Microsoft phone division that used to be Nokia phones is tanking. In a patent free world, where developers were free to add and improve code, I wonder what the Win Phone experience would be like? It really isn't a bad platform. It's just hobbled by slow innovation, partially due to patent constrains.; 6/21/14, 5:51 PM
Bob Ellison said...: rhhardin and many others above are correct: software and idea patents are abominable. The very simple idea of the reverse auction is an outstanding example of the evil, rent-seeking, warped notion of patent that idea/software patent represents.

Kill it dead. No idea patents.; 6/21/14, 9:40 PM
john marzan said...: is this good news for adam carolla, ann?

fundanything.com/en/campaigns/patenttroll; 6/21/14, 10:58 PM
Joe said...: The problem isn't software patents per se, but any patents that are obvious to practitioners of the craft.

I've reviews hundreds, if not thousands, of software patents for various companies. Most are absurd. A few, though, are genuine and very clever inventions which do deserve being patented. They are, however, the rare exception. (I worked for a company that had a genuinely patentable software invention, but they didn't consider it until the eligibility window had passed. I also worked for a company which had a very valid software patent, that is being violated constantly by companies such as AT&T. There some litigation about five years ago, but I have no idea the outcome.)

The proposal to use copyright is silly since copyright has become even more obscene than patents.

How about tightening the standards and requiring that a working implementation be made withing three years and restricting the length of software patents to five years.; 6/22/14, 1:39 AM
SteveM said...: The true patent trolls (i.e.,patent acquisition entities) by definition are not prosecuting patents before the Patent Office but buying them later. Thus, any tightening of patentability standards by the Patent Office will have no immediate effect on patent trolls . Further, while I have no hard data figures at hand, based on personal experience, the Eastern District of Texas (the jurisdiction most popular with patent trolls) is very reluctant to invalidate a patent on any ground.

I believe that patent trolls are benefiting from courts refusals to consider summary judgment motions early in the case (Delaware) or requiring prior leave of court before allowing the filing of summary judgment motions (ED Texas). I think that defendants would be more likely to fight the patent trolls, rather than settle, if they could file motions for summary judgment early on in the case.

I've recently had an article on patent trolls published in SMU's "The International Lawyer" and in April gave presentations on patent troll litigation to the Japan Patent Office and to the Tokyo IP High Court.; 6/22/14, 6:51 AM
Bruce Hayden said...: The proposal to use copyright is silly since copyright has become even more obscene than patents.

The problem with copyright, when it comes to software, is that it doesn't protect invention, or how the software works, but rather, how that is expressed. Which is just fine when you are talking about the actual copying of software (source or object) code. The further you get though, from the source or object code, the more problematic it becomes. And, the idea behind the software, the actual invention, is most typically explicitly excluded.

So, to take an example, someone might invent a new paradigm shifting program. Let us assume - a spreadsheet. The idea of having certain cells depend on other cells is not subject to copyright (since it is functional, not expressive), nor are (except in the Federal Circuit in a misguided opinion a month or two ago) the names of most of the standard functions (Min, Max, etc.) And, ultimately, probably not even the naming conventions for rows and cells (since there really aren't that many efficient conventions). Menu structure might be protected (though not to the extent used by macros), as well as icons. Not that much is left.

But, think of how spreadsheets (or web browsers, etc.) have changed the way that so many things are done. My docketing and billing are set up as spreadsheets, but I have also used spreadsheets to do engineering and physics homework. It is really just as much a tool of the information age, as are hammers and pliers tools of the industrial age. And, indeed, I use spreadsheets a lot more than I do either hammers or pliers. The only feasible protection for software tools like these is patent protection.; 6/22/14, 8:06 AM
Bruce Hayden said...: How about tightening the standards and requiring that a working implementation be made withing three years and restricting the length of software patents to five years.

Not sure what problem you are trying to solve here with the working implementation. But, the legal standard, at the time of filing (and not 3 years later) is that the patent disclosure, at the time of filing (actually, the priority date), along with the prior art, must enable a person of reasonable skill in the relevant art to practice the invention without undue experimentation.

That said, for the most part, the patent office doesn't require proof that an invention actually works. Examiners look at the disclosure and figure that it probably would. (The big exception there are inventions that appear to violate a law of nature, such as perpetual motion machines, cold fusion, etc.) But, I don't see how software is much different than other areas of technology. For example, I did some patent work in semiconductor structure and the like. You show various structures, and then extol their benefits. The examiner often can't tell whether they actually work as advertised, because he doesn't have a billion dollar fab to test them out. And, I did a lot of work in higher level digital electronics and processor design. The stuff is complicated enough that a lot of examiners really don't know if it works. And, this is esp. bad, since a lot of my inventors had PhDs, while the examiners may have had bachelor's degrees.; 6/22/14, 8:24 AM
Bruce Hayden said...: The true patent trolls (i.e.,patent acquisition entities) by definition are not prosecuting patents before the Patent Office but buying them later. Thus, any tightening of patentability standards by the Patent Office will have no immediate effect on patent trolls.

The problem here is that in many cases, the only major asset remaining in a high tech business that fails are its patents. And, thus, the patents are picked up by creditors, or sold to pay such. And, thus, eliminating the ability of non-practicing entities to buy or otherwise acquire these patents, and then enforce them, would dry up a lot of the financing that is provided either as a result of the patents, or with the patents as security.; 6/22/14, 8:31 AM
Bruce Hayden said...: I believe that patent trolls are benefiting from courts refusals to consider summary judgment motions early in the case (Delaware) or requiring prior leave of court before allowing the filing of summary judgment motions (ED Texas).

What you are essentially saying is that two of the most patent savvy districts in the country are much more reluctant than other, much less patent savvy districts, to grant summary judgment. The ED of TX is a patent rocket docket district, and my experience has been that they can get to a verdict in a year, when it might take 3-4 years in other districts. And, they do that by, for example, limiting discovery. My expectation is that their rule on summary judgment is based on their experience that such slow up the process, and usually aren't that useful, the the view of the courts there.

Something else to keep in mind with patent litigation is the question of what could, or would, be decided in a summary judgment motion. One of the big problems is that courts cannot really determine whether or not there is infringement until after the Markman hearing, which is needed to legally construe the claims. And, usually at least some discovery is needed for courts to make their Markman decisions. Before a Markman hearing in a case, the courts really don't have a lot of room for summary judgment, because both infringement and validity essentially require that the claims have been legally construed. You really can't say that you don't infringe the claims, until you know what they legally say, and you don't know whether they are invalid either. So, I am not really surprised that a rocket docket district is not willing to waste time on summary judgment motions filed too early in the case, since in their extensive experience (when we are talking ED of TX, etc.), they mostly waste the courts' time, because they often essentially involve hand waving.; 6/22/14, 8:51 AM
Bruce Hayden said...: How about tightening the standards and requiring that a working implementation be made withing three years and restricting the length of software patents to five years.

Think about this for a minute. Patent term is 20 years from priority date, less unreasonable delay by the USPTO (they are allocated so many months for this, and so many for that, and anything else is tacked onto the end of the patent term).

One of the big reasons that we moved to the 20 year term was to circumvent submarine patents, where someone could keep a series of patent applications alive for decades (in the most famous case, 40 years), and, then get 17 years of patent protection for each child application that issues. That means potentially many extra decades of patent protection, plus the ability to leverage disclosures to write claims that read on technologies invented years (and in that case, decades) after the priority patent application was filed.

Five years is not unusual for initial prosecution of a software patent application, and I have seen software applications go almost that long before their first office action. I just looked at my docket, and I have one case filed in 2004 that has been on appeal for more than 2 years now to the Board, and a number of software applications in the 2006-08 range that are still pending. Assume that we win the appeal to the Board this year, and get a patent. That would be 10 years after initially filing it, and winning would indicate that the USPTO was wrong in denying the claims. How would that work into your 5 year term suggestion? Would they get 5 years from 2014? Or from 2004? And, if 2014, then aren't we moving back towards the system that we moved away from to thwart submarine patents, by tying patent term to issue date, and not priority date? Moreover, I have one family, also filed in 2004, where I am into the 6th generation or so. Currently, we are facing essentially a 2024 expiration date for the entire family. But, if we go to 5 years from issue for term, why couldn't I extend it indefinitely by just filing continuations and divisionals (as did the famous submariner). Plenty of unclaimed matter in the specification to support such continuations and divisionals.; 6/22/14, 9:10 AM
Kirk Parker said...: Joe,

"The proposal to use copyright is silly since copyright has become even more obscene than patents."

Could you elaborate on that? That's certainly been my position, in the main. After all, even though some languages have gone the opposite conceptual direction from Perl, it's still absolutely true that "There's More Than One Way To Do It." You can always write new code from scratch to implement algorith X, can't you? And no copyright infringement case would ever be won on the duplication of a short phrase like:

x = a ^ b;

any more than won on the basis of the "infringing" work also containing the phrase:

"In the beginning..."

So... where do I go wrong?; 6/22/14, 10:24 AM
Kirk Parker said...: Whoa! By "my position" I mean "use copyright".; 6/22/14, 3:27 PM
Joe said...: "The proposal to use copyright is silly since copyright has become even more obscene than patents."

Bruce gave a good explanation. It has long ceased to surprise me to see code which solved the same problem I did, but completely independently, and observe that it is almost identical. In one case, save for the variable names, it WAS identical (my team lead and I cracked up about that.)

A big problem with copyright is how it is extended to great lengths.

Copyright and patents originally hinged on the notion that knowledge should be freely spread. A limited time frame was made to the creators so they could recoup their investments.

The "Submarine" patent issue hasn't been solved. Moreover, any software patent that takes five years to obtain is useless. Since most software "inventions" are quite obvious to practitioners when faced with the same problem, this results in developers suddenly being hit with absurd patent claims.

I should also point out that my grandfather was once a patent examiner. At the time, inventors WERE required to show a model of the invention. I maintain that failure to implement a patent means it's just an idea and should be voided.; 6/22/14, 6:05 PM
sonicfrog said...: Despite my stupid misstep, this has been one of the more interesting threads I've seen in a while.

Bruce Hayden, thanks for your insights on this.

Just got done with the Songs Of Kris Kistofferson gig tonight to honor his birthday... I'm tired and going to bed.; 6/23/14, 1:38 AM