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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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A Prior Art How To
Friday, May 13 2005 @ 04:07 PM EDT

At last! A patent attorney willing to teach us how to find prior art.

Here's a wonderful new aid. PubPat has released a How To, on finding prior art. It's an audio file, with an accompanying PDF, which has slides to help follow the talk and then the patent he uses to teach the process. Here's the Ogg file. And here is the MP3. The PDF is here. The MP3 is 43.6 MB. I wonder. Should we cut it up into segments for dialup users? If so, any volunteers would be welcome.

UPDATE: Here you go, with the smaller files first:

Patent law is a legal speciality, and it's not my speciality, so I've been asking lawyers in the field to help us. The help is now here, and there will be more coming. The important point is this: searching for prior art isn't quite as simple as you might think. PubPat's Executive Director Dan Ravicher explains the difference: "To be worthwhile, the prior art has to be exactly the same or any differences between it and the targeted patent have to fall within the judicially narrowed concept of obviousness that exists in patent law today, which is much, much less than what most reasonable technologists would consider obvious."

If Microsoft or one of their friends does, in fact, bring a patent infringement action against GNU/Linux, maybe against Samba or OpenOffice or Wine, or whatever, we need to be ready. The time to learn is now, before it happens, so if and when it does happen, we can quickly be effective.

I'm learning right along with you, so let's get started. Also, be aware that we have expanded our permanent Patents resource page. It now includes a new feature, Patent Stories in the News This Week, listed by date. We'll be storing them on a new linked-to permanent page as well, in case you want to find them again later. These are patent-only stories, separate from and in addition to the Groklaw Latest News Picks that we have featured every day on the home page.

Here's PubPat's press release about the teaching aid.



NEW YORK -- The Public Patent Foundation ("PUBPAT") released a free program today that details how to find prior art for issued patents. The hour long audio recording with supporting written materials uses a model patent as the basis for examples during the session. PUBPAT's program is made available as part of the organization's ongoing efforts to inform the public and provide advocacy about the patent system.

"One of the biggest problems with the patent system today is that it is not capable of being easily understood by the general public, because it has been intentionally made overly confusing and complex, highly non-intuitive, and extremely expensive for anyone to know what it all means and how patents impact them," said Dan Ravicher, PUBPAT's Executive Director and the author of the "Finding Prior Art for an Issued Patent" program. "The program we released today is one way in which PUBPAT is enabling the general public to better understand the patent system and defend itself from the harms caused by wrongly issued patents."

More information about PUBPAT's education and advocacy activities, including links to the "Finding Prior Art for an Issued Patent" program, can be found at

About PUBPAT: The Public Patent Foundation ("PUBPAT") is a not-for-profit legal services organization working to protect the public from the harms caused by the patent system, particularly the harms caused by wrongly issued patents and unsound patent policy. PUBPAT provides the general public and those specific persons or businesses otherwise deprived of access to the system governing patents, with representation, advocacy, and education. To be kept informed of PUBPAT News, subscribe to the PUBPAT News List by sending an email with "subscribe" in the subject line to To be removed from the PUBPAT News List, send an email with "unsubscribe" in the subject line to ###


A Prior Art How To | 211 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
A Prior Art How To
Authored by: fredex on Friday, May 13 2005 @ 04:13 PM EDT
Thanks, PJ, I'm sure this will be instructive!

[ Reply to This | # ]

Authored by: Anonymous on Friday, May 13 2005 @ 04:14 PM EDT
I can't wait to get started.

[ Reply to This | # ]

Corrections here please
Authored by: WhiteFang on Friday, May 13 2005 @ 04:16 PM EDT

[ Reply to This | # ]

OT here, please
Authored by: overshoot on Friday, May 13 2005 @ 04:17 PM EDT
Please post links as <a href="">clickable
HTML</a> and as always previewing your post is a good idea.

[ Reply to This | # ]

Authored by: Anonymous on Friday, May 13 2005 @ 04:41 PM EDT
Enhanced formats such as Audio, Movies, PFD are great for those who want to
spend the bandwith and live with the restricted usability of these files, but in
general, information should be made available in the least enhanced format that
is usable. This seems to be your method for handling PDF documents, and I think
the same would work for other files.
In this case, a text transcript would do nicely.

[ Reply to This | # ]

  • Format - Authored by: Anonymous on Friday, May 13 2005 @ 04:43 PM EDT
  • Format - Authored by: rsteinmetz70112 on Friday, May 13 2005 @ 04:50 PM EDT
  • Format - Authored by: Anonymous on Friday, May 13 2005 @ 05:09 PM EDT
A Prior Art How To Patent on Using National ID for Computer Log On
Authored by: Anonymous on Friday, May 13 2005 @ 04:56 PM EDT
I will be filing a patent on a method for using the National ID number and
Biometric information just signed into law by President Bush as a unique and
secure method of logging on to computers. All open source software will need to
pay a royalty or be incompatible with this nationally used log in method.

[ Reply to This | # ]

Sometimes It's better not to know?
Authored by: jeffb on Friday, May 13 2005 @ 04:57 PM EDT
As an engineer, wouldn't I be better off not knowing?

If I stumble across something, I would be liable for willfull infringement.

[ Reply to This | # ]

It's almost unbelievable...
Authored by: Kevin on Friday, May 13 2005 @ 06:00 PM EDT
... that a patent issued on chocolate chip cookies.

(This is just reading the patent in the PDF; I haven't
had time even to begin listening to the audio.

73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Converted to a smaller format
Authored by: Anonymous on Friday, May 13 2005 @ 06:14 PM EDT
I have converted the ogg file you posted into a 3MB Speex file. Speex is a
codec (compression format) made by the same people who made Vorbis (ogg) but it
designed specifically to compress speech allowing much smaller file sizes
without losing much quality. Where should I upload or email the file to have it
posted on groklaw?

[ Reply to This | # ]

Audio vrs. Transcript
Authored by: Anonymous on Friday, May 13 2005 @ 06:44 PM EDT

I think that downloading a 40+ MB audio file will be impossible for me and most
dial-up visitors.

Perhaps Groklaw could transcribe the talk into one file so that we could read it
while looking at the .pdf slides accompanying in another window?

That's my advice,


[ Reply to This | # ]

Hopefully Supreme Court will resolve the obviousness narrowing
Authored by: DanBerlin on Friday, May 13 2005 @ 07:55 PM EDT
If they take up KSR International v. Teleflex, currently on petition for cert.

Basically, what happened is the federal circuit got bored and added their own
requirements to obviousness that are nowhere in the actual law, or even
explicitly in conflict with Supreme Court precedent. The particularly onerous
requirement they added is that if you combine completely obvious elements to
make something patentable, the only way it is obvious is if teaching explicitly
provide a "motivation to combine" the two. No common sense is
So for example, you could patent the combination of toothpaste and a toothbrush,
and it wouldn't be obvious unless you found something explicitly saying it would
be a good idea to combine those things.
Which is of course, ridiculous.

According to

Two amicus briefs in support of cert have been filed so far.

[ Reply to This | # ]

Resources referred to in the talk
Authored by: Anonymous on Friday, May 13 2005 @ 08:03 PM EDT

While following the talk, you may find the slides helpful, along with the text and image of the example patent in question.

(PJ - could you add these links to the article, perhaps?)

[ Reply to This | # ]

  • Whoops - Authored by: Anonymous on Friday, May 13 2005 @ 08:12 PM EDT
    • Whoops - Authored by: PJ on Saturday, May 14 2005 @ 02:35 AM EDT
      • Whoops - Authored by: Anonymous on Saturday, May 14 2005 @ 07:11 AM EDT
A Prior Art How To
Authored by: fyredragon on Friday, May 13 2005 @ 08:35 PM EDT
I'd like to volunteer my time to anything that PJ needs regarding file
conversion, splitting, and formatting as it pertains to
PDF/HTML/TXT/MP3/OGG/WAV/ETC and any other formats.

In other words: I'd love to help. You got my email addy :)



[ Reply to This | # ]

Interview with Fuat Kircaali, CEO of Sys-Con re: O'Gara's hack job on PJ
Authored by: Anonymous on Friday, May 13 2005 @ 08:51 PM EDT
Non-clickable link on purpose

It's an interview with the CEO of Sys-Con, a *former* syndicator of O'Gara's

[ Reply to This | # ]

A Prior Art How To
Authored by: Griffin3 on Friday, May 13 2005 @ 10:17 PM EDT
A 40MB audio file? Seems to me, the first thing to do should be to make a
bittorrent out of it. The very purpose of peer-to-peer file sharing is to
publish documents like this, where the entire world can download it without
overwhelming any particular server.

Then again, Groklaw has also had a smashing success with distributed
transcription of audio files, with everyone transcribing a bit, turning a huge
task into a parallel swarm of tasklets.

I've got a long list of honey-do's (mostly out-of-town) all weekend, but if I
have time enough in the morning, I might try to set these up , unless someone
else can ...

[ Reply to This | # ]

For dialup users
Authored by: Anonymous on Friday, May 13 2005 @ 10:18 PM EDT
For dialup users, I have posted a 3.5 MB Speex files (10 times smaller, but also lower quality) here

For those not familiar with Speex, you can get it at or get a DirectShow plugin at

D on't worry, it's a free format like OggVorbis.

[ Reply to This | # ]

WIKI - WIKIpriorart
Authored by: Anonymous on Saturday, May 14 2005 @ 12:40 AM EDT
Why not have a WIKI up so we can store prior art? Perhaps even the people of
Wikipedia/Wikiquote/Wikibooks etc can help (although the GNU FDL can be a pain
in the ass).

[ Reply to This | # ]

A Prior Art How To
Authored by: mdf013 on Saturday, May 14 2005 @ 12:48 AM EDT
I've reduced the size of the mp3 and posted it:

Fi nding Prior Art - Full length

It also can be downloaded in four parts:

Part 1

Part 2

Part 3

Part 4

I'll remove them if there's any concerns.

[ Reply to This | # ]

A game we can't win
Authored by: Anonymous on Saturday, May 14 2005 @ 01:27 AM EDT
judicially narrowed concept of obviousness that exists in patent law today, which is much, much less than what most reasonable technologists would consider obvious.

With the law screwed up like this, there is no way we can win. The effect of case law is that Microsoft (for example) will be able to generate thousands of patents per year, spending tens or hundreds of $millions to do so. This is negligible to Microsoft, but a complete killer to free software.

I don't know what the answer is. We can't change the law because MS has bought most of the pols. We can't fight the patent flood because it needs $billions. We need to come up with some other solution.

Step #1 is to realize that we have a serious problem, and that proposals like the current one are not a solution.

[ Reply to This | # ]

Freedom of the "Press"
Authored by: Anonymous on Saturday, May 14 2005 @ 03:32 AM EDT
The defenders of Maureen's unethical conduct are singing in VERY close harmony
here: all hitting the same notes:

THEY have "freedom of the press", and any criticism of themselves is
not acceptable.

THEY are not responsible for "journalistic ethics" -- it impedes their

So long as something is so, it's OK to print. And if it ain't so, you can print
it anyway, as long as you mention in small print in the last paragraph that,
after all, you have no earthly idea whether it's so or not.

But -- that freedom is reserved to themselves alone. Anyone who DOESN'T have a
large firm to support them (and insulate them from pesky criticism) doesn't have
that freedom. The mere peons, "bloggers", can be suppressed with

The Founding Fathers would be spinning in their graves. By our standards they
were all "bloggers" -- Ben Franklin bought his own desktop publishing
hardware and went to work with his own hands and his own writing. And, poor
foolish deluded man, he though he deserved freedom of the press.

No, say Maureen's backup chorus, "freedom of the press" is only for
the "elite."

[ Reply to This | # ]

A Prior Art How To
Authored by: Anonymous on Saturday, May 14 2005 @ 05:09 AM EDT
Everything I draw is prior art. And what my brothers create, and my sister! ;)

Chris Prior

[ Reply to This | # ]

A Prior Art How To
Authored by: stephenry on Saturday, May 14 2005 @ 07:30 AM EDT

In the future, it may be better to link to a bit-torrent of large files opposed
to the actual files themselves. The simultaneous download of large files by
thousands of Groklaw readers would likely reek havoc on your host.


[ Reply to This | # ]

A patent counter-attack ...
Authored by: Wol on Saturday, May 14 2005 @ 10:33 AM EDT
I wonder how this scenario sounds?

A certain big monopolist is apparently making noises that "you may be
infringing on our patents". While it might be expensive :-( if we can
actually get any evidence of such threats, could an Open Source project sue for
a declaratory judgement that "we do not infringe any monopolist patents (or
they cannot sue because of ant-trust)".

Given that they are making the threats, such an approach sounds plausible. And
it puts THEM in a very big bind. They now must tell us ANY and ALL patents that
we might infringe. Once our "prior art" guns are in place, that could
be a very risky business. And it's less work for them to discover than for us
:-) so they have to do the discovery :-)

Let's say they put up a load of patents. We can, hopefully, blow them all away.
Which is better? Surrender and allow "OS project" to be declared
patent-free, or watch as patent after patent is destroyed. And to make matters
worse, every destruction will increase the chances of the next one being
destroyed, too :-) Plus every one they put up, if it quotes other patents as
prior art, they'll get taken out too...

The end result could (and hopefully will be) that software patents are so badly
discredited they end up not being worth the paper they're written on. What's
even nicer is that WE (if we can find a friendly sponsor - hint hint IBM) will
be in control of when WE decide to press the button and blow the whole mess
sky-high :-)


[ Reply to This | # ]

Doing the transcription
Authored by: Anonymous on Saturday, May 14 2005 @ 04:06 PM EDT

Assuming that PJ does get permission for us to transcribe this talk, it's going to make sense to split the work up, much like we did here for the mammoth September 15 transcript. The talk's an hour long, so I've gone through it and split it into twelve segments, each roughly five minutes long. I'd suggest that people offer to do one (or more) here, or if you've already done some, let us know what. Once it's done, posting the resulting transcript sections back under this comment would seem sensible.

  • A From: 00:00 (Hello, my name is...)
    To: 04:55 (... refer back to the cover.)
  • B From: 04:56 (Now, if you flip...)
    To: 09:43 (... one just long sentence.)
  • C From: 09:43 (If you turn to the next... )
    To: 14:48 (... claim terms mean.)
  • D From: 14:48 (The first place to go...)
    To: 19:56 (... invalidate this claim.)
  • E From: 19:57 (So now we've defined...)
    To: 24:40 (... actually invented something.)
  • F From: 24:40 (But what patent law does...)
    To: 29:52 (... other kinds of documentation.)
  • G From: 29:52 (And if they were...)
    To: 34:28 (... whatever dates are keyed here.)
  • H From: 34:29 (Now this is a little bit...)
    To: 39:33 (... is highly relevant.)
  • I From: 39:33 (So, going back ...)
    To: 44:53 (... claim is invalid.)
  • J From: 44:53 (Now I've added in ...)
    To: 49:41 (... street on Monday.)
  • K From: 49:41 (Now that reference ...)
    To: 54:39 (... finding some references?)
  • L From: 54:42 (There are some good free ...)
    To: 62:02 (... in your jurisdiction.)

(Sorry about the formatting. I wanted to use <pre> tags, but it kept adding extra newlines in, messing up my layout.)

Also, it would be helpful to put a timecheck in the transcript every so often, so that we can refer back and forth between the two, and to make references easier, much like we put page numbers into transcribed texts. How about roughly one per minute?

Tim Reid

[ Reply to This | # ]

A Prior Art How To - TORRENTS
Authored by: Anonymous on Saturday, May 14 2005 @ 07:39 PM EDT
Torrent for the mp3 here (42.5MB), and a smaller version for dialup here; this smaller file is resampled at 32kbps mono mix (14.1MB)

[ Reply to This | # ]

What constitutes patent infringement?
Authored by: Anonymous on Saturday, May 14 2005 @ 09:03 PM EDT
Is it merely product distribution? And if so, is source code considered a
product, or is it merely a formal description of the patent [and thus
distributable freely]?

[ Reply to This | # ]

Wishing for a Patent Expiration HOWTO
Authored by: macrorodent on Sunday, May 15 2005 @ 07:08 AM EDT

I wish Dan Ravicher or another expert would also give some guidance about how to find out whether an old patent is expired. I know this depends on the jurisdiction, but guidance concerning USA and Europe would be a start.

The USA situation would be especially important, both because of its large number of software patents, and because the rules are a bit more complex after a fairly recent patent law change: I have heard some patents follow old rules, some new, and then there are some years where a sort of mixture applies.

[ Reply to This | # ]

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