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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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No
Authored by: bugstomper on Tuesday, June 04 2013 @ 05:30 PM EDT
"He has to have contemplated and claimed the broader invention for you to
be liable."

No, it is more like this:

Inventor: I have invented a hybrid car with a pedal powered generator.

Patent Lawyer: We'll claim a "mechanical powered generator"

I: But I haven't a clue how to make a generator work except by pedal power.
Well, maybe gerbil running wheel power.

PL: Someone will figure out a practical way to do it someday and when they do,
we'll reap the reward.

Should that inventor really get a patent for inventing an impractical generator
and claiming it broadly enough to cover the future practical inventions? Even
assuming that nobody had earlier patented or written about a mechanical powered
generator, if the critical details on how to make it practical had not yet been
invented, should a patent be granted for the general idea of using mechanical
power for the generator to someone who does not know how to do it in a general
way?

[ Reply to This | Parent | # ]

No?
Authored by: stegu on Tuesday, June 04 2013 @ 05:52 PM EDT
> He has to have contemplated and claimed the broader
> invention for you to be liable.

That's the problem with overbroad patents, of which software patents seem to
constitute a large majority. Contemplating a broader invention is not the
difficult part. It's the specific thing that is hard to invent, and the one that
deserves protection. Specificity, the reduction to practice, is the actual
invention. Without specificity, it's all is just ideas, stuff that could be
thought of in a short brainstorming session or written down at the back of an
envelope in a discussion between colleagues during a lunch break. Such things
are unworthy of patent protection. Imagine that it takes fifteen minutes to
"invent" something. Then someone spends years to get a patent for it.
Once the patent is awarded, it reads on lots of stuff that has actually been
built during the time the patent was pending, and then tons of independent
inventors (real inventors, not just patent hoarders) are sued. This is exactly
what has been happening all over the place with software patents. Something is
seriously wrong in that picture.

I could easily "invent" and, with enough help from a clever and
cynical patent attorney, possibly patent a nonspecific "system to detect
the apparent level of intoxication in users of a computer", to name an idea
that just sprung to mind for no apparent reason. However, inventing a specific
method for such detection is the hard part. If someone else found a way to
detect whether a person was sober or not by analyzing the timing and accuracy of
keystrokes, another found a clever way of finding signs of drunkenness in mouse
movement patterns, and a third one found a way of doing it with a camera, should
they all be required to license my totally nonspecific patent on the idea? I
didn't invent anything, I just thought of a kind of useful task that could
possibly be done somehow, but I didn't care or have the skill or ingenuity to
actually build something that performed the task. I managed to patent an idea,
not a device, and not even a specific method. That is damaging to real
innovation, and this is the kind of patents we see in abundance in the software
field.

[ Reply to This | Parent | # ]

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