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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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Insanity | 297 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Insanity
Authored by: Anonymous on Sunday, January 20 2013 @ 04:05 PM EST
My thoughts exactly. I would love to hear how the supporters of patents think
the process should work. Should a company review hundreds of thousands of
patents before starting the design on a smart phone to either avoid breaching
them or acquire a license? Remember, it is unlikely that one could select just
the 200,000 that cover smartphones (after all, they are not categorised as
'smartphone' patents) so the net would have to be cast far wider.

How long would one have to study a patent to get the appropriate level of
understanding? Would 60 seconds per patent be enough? If you had one person
processing each of the 200,000 patents for a standard 8 hour day/5 day week and
assuming that person had the speed and efficiency of the Apple vs Samsung jury
and could do one a minute, it would still take over 83 weeks to get through them
all. You could put two people on and halve the time, or spend double the time on
each patent. The maths is pretty simple, but no matter how you cut it, the
labour required would be enormous. Then you have the problem of each member of
the team understanding a selection of the patents and then having to educate
everyone else. More time.

Another solution is to decree that Apple is the only company allowed to sell
smart phones and competition is not allowed. The problem is that you could
design something that is not a smart phone and still run foul of the patents.

Maybe you just go ahead and design your product and should a company claim that
you have breached one of their patents, just pay whatever they ask. I can see an
interesting business model here to make money without even owning any patents.

So, if the system is working, how is it working? How does it create a healthy
competivive market where all of these flaky patents over obvious functionality
help the process rather than hinder it?

Yes, the USPTO have not been doing their job properly. Whether that is due to
poor staff, underfunding, or some other reason makes no difference. The damage
is done. The US now has hundreds of thousands, if not millions of patents over
really stupid things that should not have been granted in the first place.
Without a time machine, you can't undo history, so how do you move forward?

[ Reply to This | Parent | # ]

Illegal
Authored by: Ian Al on Monday, January 21 2013 @ 02:14 AM EST
Patents are only supposed to be awarded to new and useful machines or useful
improvements to an existing machine. If the patents are for a brand new machine
of the smartphone class, the patents fail under 112 because they don't tell you
how to make the complete machine. The patents can only be improvements to an
existing machine. So, which (in legal terms) is the single existing smartphone
design which is being improved? What is the legal definition of 'smartphone'?

This issue can be seen more clearly by looking at another class of machine (cue
auto analogy). What is the likelihood of patenting an invention which is a new
and useful improvement for every auto? Does that machine include trucks? How
about tracked vehicles? Motorcycles? Sit-on lawnmowers? Beachbuggies?

Even if the smartphone were a single improvable machine, it is no more possible
to have 200,000 valid useful improvements warranting a patent for a smartphone
than it is possible to have 200,000 valid useful improvements to a single design
of mousetrap.

Motorola have valid patents on smartphone components. It is easy to see how,
using the auto analogy, a component of *some* autos could be improved. Apple
patent the whole smartphone machine and this makes the patents invalid under the
law.

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

[ Reply to This | Parent | # ]

  • Illegal - Authored by: Anonymous on Monday, January 21 2013 @ 09:05 AM EST
    • You forgot - Authored by: Ian Al on Tuesday, January 22 2013 @ 04:50 AM EST
      • Hmm ... - Authored by: Anonymous on Tuesday, January 22 2013 @ 11:58 AM EST
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