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Um... | 364 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Um...
Authored by: OpenSourceFTW on Friday, January 04 2013 @ 03:07 PM EST
I object to the fact that the Patent Office grants a ludicrous number of
ridiculous patents, some of which conflict with each other. So many patents are
so broad that they can be used to sue companies over matters no one can
foresee.

Even within the scope of the court rulings and legislation, they are doing a
miserable job.

Oh, and many of us are not lawyers, but software developers who are affected so
much by this mismanagement.

[ Reply to This | Parent | # ]

Oh please...
Authored by: Anonymous on Friday, January 04 2013 @ 04:36 PM EST
Please explain how we can resolve the dichotomy whereby
>> CONGRESS and the COURTS [cannot] decide
what subject matter is considered patentable. <<

Which is to say Congress writes the law. Typically the law is not
understood by attorneys or lower courts, then the FCAC interprets
the law in one way, and SCOTUS interprets it in another way.

>> The administration [USPTO] simply tries to
do the best they can to implement these [overreaching] policies. <<

Perhaps we gentle readers who see the law as clear and concise,
really need more education in mathematics, eg.
Ambition, Distraction, Uglification, and Derision.

[ Reply to This | Parent | # ]

Oh please...
Authored by: hAckz0r on Friday, January 04 2013 @ 04:46 PM EST
And the REAL problem is that Congress gets money for each *stupid* patent awarded by the USPTO. Neither has any incentive to break off from the source of their money. USPTO needs Congressional support for their budget and Congress (US Treasury actually) gets pork money from the excess revenues taken from the USPTO. Its a given that neither party is going to budge on the topic of getting a divorce from each other, or anything that is going to diminish that lucrative relationship.

---
The Investors IP Law: The future health of a Corporation is measured as the inverse of the number of IP lawsuits they are currently litigating.

[ Reply to This | Parent | # ]

  • Oh please... - Authored by: Anonymous on Friday, January 04 2013 @ 11:09 PM EST
Software patents are technically unConstitutional
Authored by: reiisi on Friday, January 04 2013 @ 07:10 PM EST
Breach of first amendment, to start with, and some provisions within the body of
the Constitution itself.

If you understand the underlying nature of software.

This has a lot to do with the reasons patent law was supposed to prohibit pure
process patents (and be very strict on any patent that seemed to attempt to put
limits on processes themselves).

The ability to handle complex processes with computers has turned into a legal
conceit that complex processes should be exempt from the ban.

[ Reply to This | Parent | # ]

Oh please...
Authored by: PJ on Friday, January 04 2013 @ 11:01 PM EST
Oh please, yourself. If, as we believe,
software is unpatentable subject matter,
then no law needs to change. People just
need to start to actually obey the law.

That would be refreshing.

Also, you are evidently not aware of it, but
software became patentable not by statute but
by court rulings, which are not even consistent.

[ Reply to This | Parent | # ]

When the USPTO complies with the Supreme Court statement of the law,
Authored by: Ian Al on Saturday, January 05 2013 @ 09:03 AM EST
When the USPTO complies with the Supreme Court statement of the law then the USPTO's reason for holding this discussion will vanish.

The meeting is to discuss problems with patents failing to adequately meet 35 U.S.C. § 112. When the USPTO put the question to the Supreme Court in a Government brief as Amicus Curiae, this is what they were told:
“The Government argues that virtually any step beyond a statement of a law of nature itself should transform an unpatentable law of nature into a potentially patentable application sufficient to satisfy §101’s demands. Brief for United States as Amicus Curiae. The Government does not necessarily believe that claims that (like the claims before us) extend just minimally beyond a law of nature should receive patents. But in its view, other statutory provisions—those that insist that a claimed process be novel, 35 U. S. C. §102, that it not be “obvious in light of prior art,” §103, and that it be “full[y], clear[ly], concise[ly], and exact[ly]” described, §112—can perform this screening function. In particular, it argues that these claims likely fail for lack of novelty under §102.

This approach, however, would make the “law of nature” exception to §101 patentability a dead letter. The approach is therefore not consistent with prior law. The relevant cases rest their holdings upon section 101, not later sections. Bilski, Diehr, Flook, Benson.See also H. R. Rep. No. 1923 (“A person may have ‘invented’ a machine or a manufacture, which may include any thing under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled” (emphasis added)).

We recognize that, in evaluating the significance of additional steps, the §101 patent-eligibility inquiry and, say, the §102 novelty inquiry might sometimes overlap. But that need not always be so. And to shift the patent eligibility inquiry entirely to these later sections risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do.
I have quoted this so often that I am not going to give you a link. You can search for my other comments if you need one.

So, the USPTO said to the Supreme Court that a review of the later sections of U.S.C. were quite sufficient to be legally specific and now they are holding a conference because 35 U.S.C. § 112 is proving inadequate:
While it is permissible to use functional language in patent claims, the boundaries of the functional claim element must be discernible. Without clear boundaries, patent examiners cannot effectively ensure that the claims define over the prior art, and the public is not adequately notified of the scope of the patent rights. Compliance with 35 U.S.C. 112(b) (second paragraph prior to enactment of the Leahy-Smith America Invents Act (AIA)) ensures that a claim is definite. There are several ways to draft a claim effectively using functional language and comply with section 112(b). One way is to modify the functional language with structure that can perform the recited function.

Another way is to invoke 35 U.S.C. 112(f) (sixth paragraph pre-AIA) and employ so-called ``means-plus-function'' language. Under section 112(f), an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material or acts in support thereof, and shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

As is often the case with software-related claims, an issue can arise as to whether sufficient structure is present in the claim or in the specification, when section 112(f) is invoked, in order to satisfy the requirements of section 112(b) requiring clearly defined claim boundaries. Defining the structure can be critical to setting clear claim boundaries.
After being told that their philosophy is contrary to the law, they persevere and ask the victims of their illegality to help them make § 112 a more effective screening mechanism for invalid patents. If they had followed the directive of the Supreme Court, all their problems with software patents would have been solved:
JUSTICE BREYER delivered the opinion of the Court.

Section 101 of the Patent Act defines patentable subject matter. It says:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U. S. C. §101.

The Court has long held that this provision contains an important implicit exception. “[L]aws of nature, natural phenomena, and abstract ideas” are not patentable.
Again, you can hunt for the source in my other comments through the years. In other cases, it has been pointed out that mathematics is abstract ideas (Benson). PolR has shown that all software is math algorithm. The software writers brain is full of inventive ideas on how to implement functions in software, but the thing that gets executed on-a-computer is math algorithms. If this is true, then software, per se, is not statutory subject matter as stated in the law and as clarified over many years by the Supreme Court.

You said:
For your information, my dear lawyers, it is CONGRESS and the COURTS that decide what subject matter is considered patentable. The administration simply tries to do the best they can to implement these overarching policies. They can't change them. They'd be sued if they did.

Seriously, I understand how logic can be subverted by high emotions, but that was embarrassing.
I agree that ' it is CONGRESS and the COURTS that decide what subject matter is considered patentable.' Congress passed U.S.C. 35 § 101, - Inventions patentable. However, I fail to see how logic is being subverted by high emotions in an embarrassing way by pointing out that the USPTO are not abiding by the law and explaining how they are failing.

Unless, of course, you are one of those ad hominems that PJ tells us to avoid.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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