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The other NPR report on Patent Trolls. | 457 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Thursday, June 06 2013 @ 09:08 PM EDT
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan see what needs to be corrected and to avoid duplication of
effort.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Thursday, June 06 2013 @ 09:08 PM EDT
Please stay off topic in these threads. Use HTML Formatted mode to make your
links nice and clickable.

[ Reply to This | # ]

News Picks Threads
Authored by: bugstomper on Thursday, June 06 2013 @ 09:10 PM EDT
Please type the title of the News Picks article in the Title box of your
comment, and include the link to the article in HTML Formatted mode for the
convenience of the readers after the article has scrolled off the News Picks
sidebar.

Hint: Use Preview to check that your links are ok. Geeklog may post long links
incorrectly unless you insert line breaks at punctuation points to make short
lines such as

<a href="http://www.example.com/xyzblahblah_
blahblah/
abcblahblah
.html">text</a>

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Thursday, June 06 2013 @ 09:11 PM EDT
Please post your transcriptions of Comes exhibits here with full HTML markup but posted in Plain Old Text mode so PJ can copy and paste it

See the Comes Tracking Page to find and claim PDF files that still need to be transcribed.

[ Reply to This | # ]

About time
Authored by: OpenSourceFTW on Thursday, June 06 2013 @ 09:11 PM EDT
I was expecting some half hearted action. This stuff doesn't sound half bad.

Thank you, Mr. President.

[ Reply to This | # ]

Executive order number 4
Authored by: PolR on Thursday, June 06 2013 @ 09:43 PM EDT
We are announcing an expansion of our outreach efforts, including six months of high-profile events across the country to develop new ideas and consensus around updates to patent policies and laws.
Waiting for the other shoe to drop. It sounds like we will have other opportunities to talk to the USPTO and the president.

[ Reply to This | # ]

Lawyers prefer functional claiming for software patent
Authored by: Anonymous on Thursday, June 06 2013 @ 10:47 PM EDT
because there is no such thing as a software invention.
Software are mere predefined instructions for a computer and
there is nothing software can make a computer do that was
not already predetermined. Therefore all software is
trivial, non-novel and not patent subject matter.

What makes computers useful are the abstractions the
software embodies. But of course these are not patent
subject matter either. I'm sure the software author
explained all these to the lawyer and so emphasis on
function to make the software sound more less abstract and
more concrete for the overworked patent examiner.

[ Reply to This | # ]

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: Gringo_ on Thursday, June 06 2013 @ 10:47 PM EDT

When implemented, the executive action tightening functional claiming, then, has the advantage that it will keep judges out of the picture, because such patents won't issue in the first place.

What about the thousands of overly-broad patents that are already out there?

[ Reply to This | # ]

It's all about intellectual monopolies of functionality
Authored by: jbb on Thursday, June 06 2013 @ 10:50 PM EDT
Bugstomper's post about blueprints under the previous article on an amicus brief regarding Oracle v. Google made me realize there is a deep similarity between the president's actions and Oracle's lawsuit.

The president is trying to get rid of the intellectual monopoly of functionality in patents, particularly in software patents. PJ's article explains why this particular type of monopoly is really bad for business. Oracle is moving in the exact opposite direction. They are trying to gain an intellectual monopoly on functionality by copyrighting APIs. The amici briefs also explain why this particular type of monopoly is extremely bad for business.

---
Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | # ]

Einstein was Wrong
Authored by: Anonymous on Friday, June 07 2013 @ 12:07 AM EDT
Proof is in the mouseover comment xkcd.
What can Obama do about that?

[ Reply to This | # ]

The Best summary of the mess
Authored by: Anonymous on Friday, June 07 2013 @ 01:42 AM EDT
>
You can't build a better mousetrap if someone has already gotten a patent on
"trapping mice", regardless of how or what device is used.
<

PJ has it in a nutshell.

Tufty

[ Reply to This | # ]

But, what about rat traps?
Authored by: IMANAL_TOO on Friday, June 07 2013 @ 02:34 AM EDT
Context of functional implementation bothers me.

Like the excellent mouse trap metaphor, I would like to see any functional
patent to be generic, and if just linked to mouse traps but by necessity also
valid for rat traps. Unless one decides to remove the concept of software
patents altogether.

It is my impression that Lodsys, Apple and other trolls have confuddled the
borders between the pc:s, tablets, mobile phones, and smartphones claiming they
are distinct contexts so that one general idea can be patented for all classes
separately.





---
______
IMANAL


.

[ Reply to This | # ]

Here is the metric I am missing:
Authored by: Anonymous on Friday, June 07 2013 @ 04:28 AM EDT
What is today's main incentive to do a patent search? Minimizing damage.

The patent system is intended to distribute the cost of trail-blazing new technology.

Large companies producing themselves already have most of the costs accounted for by being first to market. The patent system is indeed intended to enable a business model for non-practising entities: inventors.

It turns out, sadly, that they have become mostly a mythical beast: non-practising entities are nowadays more or less synonymous with patent trolls.

Any regulation that will stop "non-practising entities" as such will also hit independent inventors, and those are the ones that the patent system is actually designed for. If you throw the independent inventors under the bus, it would be much saner to just throw the whole patent system under the bus rather than doing further window dressing.

So how is one going to distinguish patent trolls and independent inventors? Patent trolls are notorious for playing shell games with patents. But shell games are how intangible properties are being managed efficiently: in the parallel world of copyrights, the whole content industry is managed through more or less mandatory shell companies like the MPAA and RIAA.

So drawing the distinction there will not help much.

So the ultimate metric I see here is the return value: a patent needs to provide more value to the patentee than cost.

Patents are not to be awarded for coming up with an idea first, but for casting the idea into a form where making use of the patent is more economical than independent invention.

And the true litmus test is permitting independent invention, making patent licensing not as much a question of "who staked the claim first" but rather of "who built the road".

Patents are not supposed to be a reward for coming first, but a compensation for making a path that is worthwhile to travel on.

For often-cited things like drugs, this is easy to put into perspective: if you claim "independent invention" of a patented substance, you have to get independent licensing, make independent clinical studies etc etc. In that case, taking out a license will provide a significant advantage.

For most other questions, the fundamental question is not "was this the first person to think of it?" but rather "will some person working in this field on average profit from this patent or be set back by it?". If the answer is "set back", the patent should not get granted, as granting it is hurting society more than it helps. That's a much higher standard than laws demand nowadays, and the patent offices undercut the law standards significantly more, to boot.

In a similar vein, general handwaving claims along the line of "an apparatus to handle data received via channels" are not helping more than harming: they are staking claims, not making paths. While working prototypes can't be required from small innovators without manufacturing capabilities, the minimum standard are workable blueprints or schematics.

Not just general sketches.

Again, the decisive metric has to be: will a patent search in my field of work help me to get to a working product faster and cheaper? If the answer is "no", the system is not working according to its intention.

[ Reply to This | # ]

Patents are the problem, not just software patents.
Authored by: Anonymous on Friday, June 07 2013 @ 05:05 AM EDT

The thing is, Nick Desaulniers' invention would not actually be protected by
merely outlawing software patents. It *might* be solved by putting an end to
functional claiming, but that really is a crap shoot. It might solve his issues,
it might not.

No, the only way to *really* solve the core problem is to stop granting patents
in the first place. Abolishing the entire instrument as being too blunt, too
easily abused, too inefficiënt, and ,historically speaking, too ineffective.

Real scientific research proves that the patent system as such is doomed to
fail. It cannot possibly work to promote innovation, and if it doesn't do that,
then what on earth do we have it for?

End the patent mess: End patents.

[ Reply to This | # ]

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: Anonymous on Friday, June 07 2013 @ 08:28 AM EDT

For Making “Real Party-in-Interest” the New Default, IMHO the full ownership chain of the patent should be required so that it is clear when large, anti- competitive companies are selling their patents to trolls like lottery tickets.

Say the following ownership chain existed:
Original 'inventor' -> ... -> Big anti-competitive company -> Laundering shell -> J Random Troll -> Troll Shell

AIUI, under the proposed new rule in any litigation instigated by Troll Shell they would have to declare that they are working on behalf of J Random Troll. Where J Random Troll got the patent from need not be stated.

But this still allows any nasty company (NC) which wants to disrupt a competitor to conclude that selling some patents to trolls might be worth it:
- if the competitor settles it will cost the competitor money and some hassle and NC gets a PR opportunity to rebuke their competitor for not respecting IP and how NC is a paragon of virtue. The troll gets a relatively modest payout and can move on to their next victim.
- if the competitor fights and loses the fine will likely cost the competitor substantially more than settling and the hassle cost will be greater too. Again, NC gets to parade around the media lambasting their competitor. The troll has hit the jackpot.
- if the competitor fights and wins they still have to pay for their defence. The troll might lose the patent if it is particularly flimsy, but this isn't NC's problem as it is no longer their patent. As far as NC are concerned it is a lost opportunity, but they have plenty more patents and trolls ready to have another go.

In all the above scenarios NC doesn't need to get any share of a payout on the patents - the stifling effect is the primary objective and anti-trust law would probably prevent direct action anyway.

Having full visibility of the patent ownership chain would mean that if the same company name kept popping up it would be clear to everyone that NC are conducting a proxy war against their competitors and perhaps something could be done about it.

[ Reply to This | # ]

Contributing to the Economy
Authored by: DannyB on Friday, June 07 2013 @ 09:02 AM EDT
As an initial matter, because trolling patent trolls such as Intellectual Vultures object to the term "patent troll", I will use the non offensive term PTE to refer to Intellectual Vultures and other patent trolls. (PTE = Patent Trolling Entity).

Shuffling money around does not contribute to the economy. Moving money from your pocket to my pocket in exchange for not getting beaten up, but with nothing of material value having been created or no service performed does not enlarge the economy. When a PTE extorts money from innovators, money has changed hands, but nothing of value has been created or no service performed. Remarkably, the money is exchanged in order to prevent something bad from happening.

Note the remarkable similarity of PTE's to SCO's business model, or to a protection racket of organized crime, or Prenda Law's extortion letters wanting a settlement not to suggest to your friends, family and neighbors that you might be a filthy pirate of pornography of the worst kind. SCO created nothing of value and had no hand in the development of Linux but wanted to impose a tax on Linux. No code owned by SCO was in Linux. SCO did not even own copyrights to Unix. Yet SCO wanted money from Linux.

Note the similarity of Microsoft extorting money from Tom Tom for its GPS navigators running Linux. And Amazon, Samsung, Barnes & Noble, HTC, and others. Microsoft did not create something that these victims obtained in exchange for paying their extortion money to the PTE. Microsoft had no hand in creating any of these products -- in some cases quite the contrary as Microsoft made interoperable formats and protocols secret or difficult to use or discover.

The economy is about oranges, tires, usb thumb drives, milk, and many other things of value being exchanged for money. Also we must include services, such as painting the house, installing new plumbing, mowing the lawn, cutting and styling hair, and other services that require skill or labor.

Paying money to a PTE to be able to exercise a natural right you already had, in order to build something, did not grow the economy in any way. It merely moved money around. You would have had no greater difficulty (and almost certainly less) in building your innovative product if the PTE had remained under the bridge. (Or if new patented Trolinicide had been sprayed under all bridges open to public use.)

I'm sure those at PTEs such as Intellectual Vultures make statements about the economy so that they can sleep better at night. They may even have rationalized their behavior for so long that they have internalized this belief. But that doesn't make it true.

Between the two extremes of Google's "Don't be Evil" and Microsoft's "Be Evil Always", the PTE's should seek some moderate comfortable middle ground as Apple has done. While some may still find such a middle position objectionable, other industry leaders such as Microsoft and Oracle would not object.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Another biased, inaccurate, posting: Of course you can build AND PATENT a better mouse trap
Authored by: Anonymous on Friday, June 07 2013 @ 09:32 AM EDT
https://www.google.com/?tbm=pts&hl=en#hl=en&tbm=pts&sclient=psy-ab&a
mp;q=mouse+trap&oq=mouse+trap&gs_l=hp.3..0i10j0l3.3137.5200.0.6241.10.9.
0.1.1.0.160.886.6j3.9.0...0.0...1c.1.16.psy-ab.k8aIXuvW2XU&pbx=1&bav=on.
2,or.r_qf.&bvm=bv.47534661,d.dmg&fp=6008dc95d676f03&biw=1544&bih
=779


Mousetrap and method
www.google.com/patents/US20120297661
App. - Filed May 23, 2011 - Published Nov 29, 2012 - Michael Hansen - Hansen
Michael
An apparatus and method are disclosed for improved operation and
functionality of a spring-loaded mousetrap. The improved mousetrap ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Safety disposable mouse trap
www.google.com/patents/WO2006036767A3?cl=en
App. - Filed Sep 22, 2005 - Published Sep 14, 2006 - Jack B. Sr. Crider -
Crider,, Jack B. Sr.
This product is designed to provide a disposable spring-loaded mouse trap
with a safety arm to prevent accidental discharge of the bow of a spring-loaded
...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Electronic mouse trap module
www.google.com/patents/US20130031824
App. - Filed Aug 3, 2011 - Published Feb 7, 2013 - Rany ARLICHSON -
Arlichson Rany
A controller for a pest trap that includes a sensor, signaler, power source
and activator in a housing to be attached to and detached from a pest ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Mouse trap
www.google.com/patents/WO1990004920A1?cl=en
App. - Filed Oct 25, 1989 - Published May 17, 1990 - Aake Silvandersson -
Silva Miljoe Ab
The invention relates to a mouse trap (1), consisting of means for catching
and killing any mouse (2) which may find its way into the trap, which is simple
and ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Safety disposable mouse trap
www.google.com/patents/WO2006036767A2?cl=en
App. - Filed Sep 22, 2005 - Published Apr 6, 2006 - Jack B. Sr. Crider -
Crider,, Jack B. Sr.
This product is designed to provide a disposable spring-loaded mouse trap
with a safety arm to prevent accidental discharge of the bow of a spring-loaded
...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Electrocuting mouse trap with automatic chamber-clearing mechanism ...
www.google.com/patents/US8418397
Grant - Filed Dec 3, 2009 - Issued Apr 16, 2013 - Robert T. Cruz -
Woodstream Corporation
An electronic mouse trap is provided having multiple kill and automatic
killing chamber clearing capabilities. The trap includes an elevated ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Animal trap, particularly a mousetrap
www.google.com/patents/WO1986005948A1?cl=en
App. - Filed Apr 15, 1986 - Published Oct 23, 1986 - Yngve (Deceased) Eskil
Goete Holmberg - Holmberg Brita G E, Holmberg Dick L L
Animal trap, particularly a mousetrap, comprising a jaw (13) pivoted to a
base plate (10), which is spring biased to engage the base plate on one side of
the pivot ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Enclosed mousetrap having improved trap mechanism
www.google.com/patents/EP0182556A3?cl=en
App. - Filed Nov 8, 1985 - Published Jan 7, 1988 - Denis G. Kaiser - Amcan
Inc
An enclosed mousetrap (10) has a trap mechanism (12) mounted on a back wall
member (26) and having a bail wire (36) with a straight portion (42) that ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Animal trap, particularly a mousetrap
www.google.com/patents/EP0217915A1?cl=en
App. - Filed Apr 15, 1986 - Published Apr 15, 1987 - Göte Eskil Yngve
HOLMBERG - HOLMBERG, Göte Eskil Yngve (deceased, legally represented by
HOLMBERG, Brita G. E.)
Animal trap, particularly a mousetrap, comprising a jaw (13) pivoted to a
base plate (10), which is spring biased to engage the base plate on one side of
the pivot ...
&#8206;Overview - &#8206;Related - &#8206;Discuss
Electronic mouse trap module
www.google.com/patents/WO2013017941A1?cl=en
App. - Filed Aug 3, 2012 - Published Feb 7, 2013 - Rany ARLICHSON - Ym Tech
A controller for a pest trap includes a sensor, signaler, power source and
activator in a housing to be attached to and detached from a pest trap. The
sensor ...
&#8206;Overview - &#8206;Related - &#8206;Discuss

1 2 3 4 5 6 7 8 9 10 Next

[ Reply to This | # ]

Are techies the only ones amused by this?
Authored by: albert on Friday, June 07 2013 @ 09:54 AM EDT
BTW, did the study allow for all the extra runtime getting rid of viruses &
trojans?

I thought not.

And where is Chromium?

I thought it was a little too early to start grasping at straws.., but if
there's a straw to grasp, MS will grasp it,

apparently.

[ Reply to This | # ]

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: Anonymous on Friday, June 07 2013 @ 11:32 AM EDT
"You can't build a better mousetrap if someone has already
gotten a patent on "trapping mice", regardless of how or what
device is used. "

That's brilliant! A perfect description of what is wrong with
the patent system.

[ Reply to This | # ]

Cash Entropy Cost
Authored by: BitOBear on Friday, June 07 2013 @ 11:49 AM EDT
One of the concepts that I think need to be stressed in front of judges who ask
about the how serious the harm might be is what I call the "cash entropy
cost" of any system.

People talk about "toll taking" and similar terms as if they are
bounded incidents. The idea of "taking a toll" is very one-shot in the
mind. It sounds discrete. One thing, and gone.

But the thing is the costs of bad patents are continuous. Worry. Delay. Paten
searches before the fact. Building defences portfolios. Buying unnecessary
licenses. Clean-room avoidance to duck "willfulness" claims. Writing
around claims.

Much the way friction changes by material and circumstance, but cannot be
avoided altogether, the software patent racket imposes an continuous cost if you
program, sometimes enough to prevent the programming in the first place.

So a continuum exists, and along that continuum is a suppuration of cash in all
directions.

[ Reply to This | # ]

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: Anonymous on Friday, June 07 2013 @ 12:10 PM EDT
What rejection do you propose that an examiner make for an
overly broad functionally claimed software invention?

102/103 rejections over art should have been used already
(in fact broad claims should be easier to reject with prior
art) so narrowing the scope of functional claiming does not
help here it would make it harder to find prior art.

101 whether software is statutory is a different issue not
related to the scope/breadth of the claims.

112 2nd paragraph can't be used because "breadth is not
indefiniteness" [mpep 2173.02 (I)].

that leaves 112 1st: written description or enablement both
of which are very hard cases to make. A person of ordinary
skill in the art of program is likely enabled to write code
to perform a function once described.

[ Reply to This | # ]

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: Anonymous on Friday, June 07 2013 @ 01:06 PM EDT
My favorite quote from part 3:

"End-users should not be subject to lawsuits for simply using a product as
intended,"

So then all software patents are now invalid since they're just using a computer
as intended? Nice.

[ Reply to This | # ]

Sad about the TiVO settlement
Authored by: Anonymous on Friday, June 07 2013 @ 05:42 PM EDT
http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-tivo-settlement-go
ogle-motorola-20130607,0,6502417.story

Even if its a "low" $490 million - that's a LOT of money for such
simple patents!

[ Reply to This | # ]

I am not convinced that the effects will be much more than cosmetic
Authored by: AH1 on Friday, June 07 2013 @ 10:15 PM EDT
While I both agree and applaud the President for taking this step, the reality
is this is an Executive order not a change in the law. If I understand
Executive orders correctly the effect will provide instruction/guidance to the
Patent Office. From what I see/read The USPTO will begin looking at
implementing rules for disclosing the true assignees/owners of patents involved
in litigation. They have also been directed to provide more scrutiny over
functional claims to prevent overly broad patents from being granted. While
this sounds good in theory, implementing this is going to be far more difficult.
Let's face it, the Patent Process was never envisioned to include software. As
a result, it is unlikely that the majority of the patent examiners have the
background/training to evaluate software patents. The result is likely to be
either a delay in issuing software patents, or incomplete scrutiny of patents
being issued. OK you can call me a cynic but "Empowering the Downstream
User" through education and outreach is likely to end up being little more
than window dressing. I doubt that education and outreach from the USPTO will go
any further than links on a website. So long as a Patent Troll and their
attorneys "feel no pain" when they send out "demand letters"
then the practice will continue. Unfortunately, the USPTO does not have the
jurisdiction to halt this practice. Sorry but the statement about expanding
dedicated outreach and study ends up as yet another unfunded mandate to the
USPTO. While it sounds good without funding it becomes little more than
updating mission statements. The statement regarding enforcement of exclusion
powers is, fortunately, a statement that has no meaning. It tells the USPTO to
launch an inter-agency review and find ways to improve processes and standards.
I am not a big fan of even recommending this one given the nature of the
"Thermonuclear patent wars raging between Apple, Samsung, Microsoft,
Oracle, Motorola, Google, etc. Given the USPTO track record for bad analysis
and overly broad patents I have little faith that the enforcement and exclusion
powers will favor the troll rather than the innovators.

[ Reply to This | # ]

Patent Function is to patent Perpetual Motion
Authored by: BitOBear on Saturday, June 08 2013 @ 04:58 PM EDT
Consider breaks --- e.g. things that stop other things --- if the function of
breaks and the application of such things to other things like wheels or cars or
trains were patentable the fruit of that patent is perpetual. We now have
air-brakes on planes and we have breaking rockets on spacecraft. It's the gift
that keeps on giving.

This is particular to the nature of language. Long ago "wherefore"
meant why --- and it still does really --- but countless school kids are reading
Romeo and Juliet and thinking that Juliet's speech on the balcony is a query of
location. Asking "where" Romeo is not "why" he is the son of
the enemy of her father. This is so pervasive a mistake that it became the basis
of a TV commercial. The language has been yanked out from underneath the
original work and re-purposed to the detriment of the work itself.

Now software is itself an expression of function. That is, the text is the
action, modelled and frozen, waiting to be invoked. So any patent on any
software task is not just legally "purely functional" in the abstract
it is a case of "form and function = patent" "form =
function" therefore "patent = form form form". If you asked a
waiter for "milk and milk" and he said "so two milks" and
you said "no just the one milk" well how much sense would that whole
conversation make.

Part of the reason you cannot really patent the law, or patent the spy novel, or
poetry, indeed any situation where the words are the function is tied to the
fact that the words _are_ the function. Any description of the words of the
function is now far removed from the function.

I describe cam and lever arrangement for slowing a wheel and the function is
slowing the wheel and the form is the lever and cam. The more accurately I
describe the lever and cam the more correctly the fabricator or replicator of
the invention can make the lever and cam. Function and Form exist orthogonal to
one another, each amplifying the other. If I don't understand the description
but I can get my hands on the device my understanding of the description is
enhanced. Similarly if I have the device and I don't understand it the
description may help advance my understanding as well.

I think that is why the language of patents involves the patent
"teaching" the invention.

So if I show up at the USPTO and drop a rock on the desk and keep repeating the
word "rock", it is unlikely a patent will issue. The fact of a thing
doesn't teach a thing.

And if I show up with vague representations of opacity and weight I likely won't
get a patent for all things heavy and opaque.

So this gets us back to perpetual motion (believe it or not) because perpetual
motion machines are usually "things that would work but for friction and
entropy". Now those a huge things to omit, but they are such givens that we
tend to omit them. And when we just forget about them the devices described look
both inventive and functional. So lots of patents were granted for such devices
but nobody could build them because the details of the patent, absent a working
prototype, didn't have any total meaning. The function of the perpetual motion
machine was illusory because the form and the method were incomplete.

But if those patents were issuing today, we would be having people trying to
enforce the fractional claims. "Hey buddy, you have a ball rolling down a
ramp. I own that as part of my 'wheel of articulated ramps and balls'
machine!"

Now you may have heard programmers say "only the code details the function
of the code"; this is the attempt to explain the missing friction in the
perpetual motion patent problem.

Patents on software, absent the full text of the software itself, are pure
hand-waving. They don't describe the function any more than "heavy and
opaque" fully describes the properties of a particular rock, let alone
rocks in general (quartz, for instance, being translucent not opaque). And the
lawsuits pursuing claims, to a programmer, are like having someone come by and
say "well I can't sue you for the opaque part but I've got you by the
"heavy" bit so I'll see you in court.

The prima facia defense from a software patent that includes the code would be
to pop out different code and say "look, my thing is different, go
away". Just as if you were sued by the cam-and-lever break guy and you
brought out a disk-and-clamp example of your own devising.

This is the meat, in fact, of why copyright is distinct from patent. When you
write novels or indeed software, the writing is the thing and nothing else will
do.

The only real fix is to have congress officially class software as a matter of
copyright and not a matter for patent. Software patents need to be banned just
like perpetual motion patents were banned.

And just like perpetual motion patents were the basis of scams and significant
economic harm, software patents are harmful and without value, but instead of
being used in scams, they are being used in extortion.

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The other NPR report on Patent Trolls.
Authored by: Anonymous on Sunday, June 09 2013 @ 08:50 PM EDT
http://www.npr.org/blogs/money/2013/06/07/188370495/when-patents-attack-part-two Heard it on the radio the other day. Pretty damning to IV. Apologies if already seen.

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The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Authored by: JonCB on Monday, June 10 2013 @ 10:18 PM EDT

Good article overall and definitely positive news i think. I have two comments.

such as by use of glossaries in patent specifications to assist examiners in the software field.
Why this isn't de rigeur to begin with i don't know. Technology in general has a problem with overlapping fields of knowledge and conflicting (and non-obvious without skill in the art, which lawyers and judges aren't) terminology such that (as far as i'm concerned) a patent without a glossary defining its terms should be knocked back without further examination.
After that happens, hopefully folks will notice that the patent system is *still* a mess and still harming the economy, and maybe then they'll try the real solution, which is to face up to the reality that the courts damaged the US economy when they decided to let software be patented. It was a major mistake, and we are paying for it now.

Don't disagree with anything you've said, just would point out that I think this step is necessary. Right now the pro-patent crowd don't understand why software should be so special as to not get any patent protection whatsoever. By working with them to cull the obvious bad apples (e.g. functional claiming) then we reduce the problem without being fought every step of the way and then either get to a place where the problems no longer occur or where the only possible solution remaining is divorce the two.

I think another step that needs to be taken is to clarify what is meant by a) prior art and b) obvious. So many cases I see where the patent is "do what was written X years ago in this academic paper" or "do what is done in this X year old open source project", and neither of these things seem to warrant patent protection. And yet if USPTO rubber stamps the patent to victory, it's an uphill battle to fix.

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