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| Authored by: Anonymous on Thursday, January 31 2013 @ 09:00 PM EST |
Maybe this should be made explicit. The document strongly
hints at the disappearance of the quid pro quo bargain but
does not spell that out.[ Reply to This | Parent | # ]
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| Authored by: bugstomper on Thursday, January 31 2013 @ 09:03 PM EST |
"What else needs to be said?"
I would like to see a legal point of view on that question. I completely
understand and agree with the notion of that quid pro quo that underlies patent
law. What I don't know is the right way to present the argument to the PTO so
that it really does present a reason for them to set aside decisions of the
courts. Even more, how do you present the argument so that the courts would not
override any change made by the PTO? Not being a legal expert, I don't know what
would happen in the face of these court decisions if the PTO did decide to
require or prefer source code working models or source code embodiments. Would
that leave them open to being overruled by the courts?
I almost posted the above and then saw your reply to a different comment,
beginning "I think Lemley's paper is close to be the argument you
want." That may be the piece I'm reaching for.
The fundamental problem with those court decisions is that it is not always true
that the functions are so well described that the production of source code is
merely clerical, even if one were to agree that it was merely clerical in those
two cases. Often the functional descriptions contain ambiguities or
inconsistencies that do not come to light until the programmer attempts to reify
them in actual code. The patent examiner cannot be expected to test that the
descriptions in the claims can be reduced to code by a PHOSITA, if the only way
to know is to actually try it. If reduction to code is merely clerical then the
invention is in the statement of the problem and the functions, which should
invalidate it by Lemley's argument. If that is not the case, then it is not the
same as in those two court cases in that it is more than mere clerical work to
convert the stated functional definitions to working source code. In that case
avoiding indefiniteness would require an example embodiment in working source
code. Either way working source code would allow the examiners, who are not
prepared to test if the coding is mere clerical work, to make the determination
for themselves.
[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Friday, February 01 2013 @ 04:44 AM EST |
We're assuming that the patent office is actually going to find out that the
only time a developer will look at a software patent is when he's being sued
over it?
I don't give them that much credit.[ Reply to This | Parent | # ]
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