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Authored by: Anonymous on Wednesday, April 03 2013 @ 08:11 AM EDT |
What I have observed here when various lawyers have posted
on a particular topic is a mirror of what seems to happen in
court. Many arguments and explainations are presented
which may or may not clear the murky waters, some even
providing more mud. If the answers were clear, there would
be no need for lawyers in the first place. Certainly their
viewpoints are welcome, but don't expect definitive clearcut
answers. Not even the courts seem to be able to provide
those.
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Authored by: Anonymous on Wednesday, April 03 2013 @ 08:20 AM EDT |
Every time someone reminds us that common sense does not apply in patent law,
they also point out clearly that patent law itself is fundamentally broken, not
just it's application to specific domains.
Was that intended or the opposite of what you intended? It's not exactly obvious
to me.[ Reply to This | Parent | # ]
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Authored by: kuroshima on Wednesday, April 03 2013 @ 09:27 AM EDT |
Disclaimers: IANAL, IANAUSAC (I Am Not A United States of
America Citizen).
I'm just a coder from the other side of
the pond
I believe that you're
mixing two kinds of things: What
the law is, and what we GL posters believe it
should be. You
make an effort to separate them on your discourse, but not
on
other people's posts. Most people's reactions are not
based on what the law is,
because most of us aren't lawyers,
they are outrage at what is happening with
(software)
patents. You make good points though, because as discussion
goes on
and on (since this seems to be the lawsuit that
never ends, there's a lot of
that), it's easy to get the law
and one's wishes mixed.
Part of the issue
is that IMHO, the law doesn't grok the
tech any more than the tech groks the
law. The "software
makes a general purpose computer into a new machine" is, for
example, unsustainable from a technical point of view. So
are many other legal
fictions. Of course, like all models,
legal models are wrong, the point is, is
the legal model
useful in any way? General opinion here, that I subscribe,
is
that it is only useful for patent lawyers and dying CEOs
with ambitions of
thermonuclear war.
Another issue is that legal language as used in patents
is incomprehensible for us POSITA. It would not be so bad if
it wasn't because
patents are supposed to be a form of
disclosure, aimed to make people reveal
their trade secrets
in exchange for a limited monopoly on them.
Finally,
for us coders, there's the "show me the code"
golden standard. Patents don't do
this, and so we find them
to be at least inneficient and at worst useless in
revealing
the trade secrets protected by the patent.
On the obviousness
front, I understand that what the law
calls obvious and what we coders call
obvious are not the
same thing. However, given that the law is infringing on
our
domain (code), we believe that it's the law that should
change it's
standards, not us. For example, the rangeCheck
function in the Oracle vs.
Google litigation is the sort of
code that I would have been asked to write in
my
introductory programing course at the university. Give
someone the detailed
specs (including exception priority, or
"if multiple checks fail, which one is
notified") and I can
guarantee that the code would not be much different,
modulo
line breaks. It's extremely obvious, and completely
functional (I
understand that I'm mixing copyright and
patent law, bear with me).
Identically, any pre-exiting
method that is "improved" by being "on a computer"
is
obvious to us, given that a general purpose computer is a
tool to execute
any program.
TL:DR1 version, Patents fail to hold their
part of
the bargain to us coders. They are ovten vague,
don't include the critical
information, and even try to
claim the problem instead of the solution. They
are, for all
our intents and purposes, badly broken.
1Too
Long: Didn't Read, an abbreviation
comon in many internet boards, just in case
you were not
familiar with it [ Reply to This | Parent | # ]
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- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 10:22 AM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 10:30 AM EDT
- Legal Fictions - Authored by: PJ on Wednesday, April 03 2013 @ 11:21 AM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 12:27 PM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 01:04 PM EDT
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Authored by: Ian Al on Wednesday, April 03 2013 @ 11:14 AM EDT |
ยง112 demands that you point out, with specificity and full constructional
details, what you consider to be your invention and thus where the protected
inventive concept lies.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | Parent | # ]
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Authored by: Anonymous on Wednesday, April 03 2013 @ 12:10 PM EDT |
Perhaps, by bounce back you mean Claim 16 that refers to
elastically
attached. As been said many times, it is
Claim 19 that matters here. That
claim is not about bounce
back but how an electronic document is
displayed. All
those are in the Lira patent. [ Reply to This | Parent | # ]
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Authored by: PJ on Thursday, April 04 2013 @ 11:30 AM EDT |
Actually, what would be more helpful would be if
you would stop trying to
discourage people from
searching for prior art. You are quite wrong
that
lawyers are needed for that. They are welcome to
help, but they don't know
code like programmers do,
and they don't know the prior art.
Why do you think
the USPTO set up the Peer to Patent
project, and is now asking for the
community's help?
Don't be daft. Thinking that lawyers can fix the
problem is
exactly what won't work. It surely hasn't
so far.
As to your other criticisms,
we have done articles and
provide resources on how to search for prior art.
I
suppose I could repeat them, but here's a sampling:
Our
dedicated
Paten
ts Reference page.
There is a section on patent searching.
Here's one
article
Groklaw published with a how to by the lawyer who heads up PubPat.
We've
done the kind of articles that you suggest. For example, here's one
on
searching to invalidate the Acacia patent.
And when Acacia sued Red Hat as
IP Innovation, we put out a call
for
prior art specifically with regard to that lawsuit, with
instructions.
Groklaw found prior art
for that case, actually.
And Red Hat and Novell prevailed,
with all the patents invalidated. You're welcome, world.
There are references with links to others doing
this type of work on that same Patents page, under the heading Patent Busting.
And under the heading Patent Resources there are links to info on USPTO's rules
re prior art, their manuals, and some EU, UK, Japan links.
Some more
patent references are found on our Leg
al Research page under the Patents heading.
So, you see, you
come here to denigrate and find fault, for reasons that I don't fully
understand, but the truth is, a lot of what you've been posting is inaccurate
information, since you are not a lawyer either.
What is the
purpose?
Here's what I suggest. You comment on things where you are an
expert. If you'd come here when Groklaw first began, and left the critical
comments, you might have a point. Who knew if it could work or not? But the
fact that it did work ought to at least cause a humility check on your part, in
that facts trump theories. Your theory has been disproven.
So, don't
worry so much. And keep in mind that anyone in the world can comment on
Groklaw. Some comments will be
wrong. Some of yours are. But that has not
prevented us from achieving our goals. If you would like to help, that's great.
But you can't teach patent law. You are not a patent law professor. So,
instead of pontificating, why not provide urls on what experts in the field have
written about patent prior art searching? Fill the need that you feel it's
urgent to fill, by all means. That would be
a welcome aid.
However, if your
purpose is to undermine, trust me when I say that it won't work. Groklaw's
reputation was built without any lawyers involved, actually, except behind the
scenes. I've always had friends I could ask to clarify things and help me get it
right behind the scenes, and I still do. So putting Groklaw down for that is
silly. I never want Groklaw to become establishment. Our goal is to change
patent law, by the way, not become experts in its
current malfunctioning.
And while you clearly do not value programmers, that's what
Groklaw started
out to be for, and it has grown to include
others, including lawyers and CEOs of
companies and journalists and many others, but the truth is, it will always be
mainly programmers, because we're trying to
help lawyers and judges get the tech
right. They currently
do not, and that's our special expertise here at
Groklaw.
You may find it non-useful, and perhaps you have the
academician's
disdain for non-academicians, but the truth
is, you don't know programming the
way the guys here do, because it's their area of special skill. And since
software patents are about software, naturally their
expertise is very
valuable.
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Authored by: macliam on Friday, April 05 2013 @ 09:48 AM EDT |
If I do not have the legal qualifications to discuss here on Groklaw
the points I have been trying to discuss in postings, are they more
authoritative coming from Dan Ravicher?
A Prior Art
How To (Groklaw article).
http://g
roklaw.net/pdf/FindingPriorArt-PUBPAT-3to1-low-mono.mp3 is
one of the audios
by Dan Ravicher:
Ravicher at 7:12:
The claims of the
patent are single-sentence paragraphs that define the
scope of the patent, and
patents can have numerous claims. Technically,
neither the title, the abstract,
the drawings, or any other part of the
specification define what specifically
the patent covers. Rather, it is
only the claims themselves that define what is
covered by the patent.
So, for instance, if one were to look at the title of
this patent,
flipping back to the cover, one, if they didn't know that is
the
claims that define the patent, and not other parts of the
patent. They
might look at the title of this patent and be like, you
know: “This patent
says it covers dough for making baked goods.
Well that can't be valid. People
have been using dough to make baked
goods forever.” But that person would
be manifesting a lack of
understanding that it is what is stated in the claims
of the patent,
and not anywhere else, that defines what is covered by the
patent.
Now having said that, the parts of the patent other than the claims
are
relevant to and can impact the scope of a patent, or in other words
they can
impact the interpretation of the claims or the definition
of the claims, but
they themselves, by definition, do not define the
scope of the
patent.
Ravicher at 42:30
Now, once you've
found a reference that you think applies to a claim,
you have confirmed that it
can be classified as prior art under some
section of 102, you have to go back to
the claims and you have to
find in the reference every single element of the
claims.…
Ravicher at 43:15
But let's
say you found a reference that had everything except that
it was not free from
particles. It had particles in it. You
couldn't use it as pure 102
art.….
There is a difference between the claim and the prior art which
I
want to use to invalidate the claim, and that difference means
that it doesn't
seem like they deserved a patent. That is what 103
addresses. That is what 103
obviousness addresses.
And in summary, from the A Prior Art
How To Groklaw article itself
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.”
This is
precisely the point my postings have attempted to draw attention to. If
I myself do not express the point clearly, is the above quote in
error?
[I wrote the conclusion of the comment that this is attached to
when I was very “tired and emotional”, especially after being told
to “reexamine my own biases” etc.. Apologies (particularly to PJ)
for posting. The parent did not appear where I expected, and I presumed that it
had been deleted. I was not trying to disparage programmers etc., but simply
trying to suggest that patent law is counter-intuitive and that the Patent
Statute is applied in a different fashion to what people would naturally expect.
Is that an offensive point to try to make? Because it seems that the same
point is made by Ravicher.]
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