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WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


To end a derail...

Kalman posted:

Hindsight is the worst kind of obviousness analysis.

Think of it this way - until the iPhone, did any electronic device use a slide to unlock function? It's not like touch screens were new, or lock screens, after all.

Kiwi Ghost Chips posted:

The Neonode n1m.



Just for fun, here's the patent. Here's how I'd reject the claim:

quote:

Neonode (per the picture) teaches:

1. A method of controlling an electronic device with a touch-sensitive display, comprising:
detecting contact with the touch-sensitive display while the device is in a user-interface lock state;
transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and
maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture.

Neonode, however, does not teach:

moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device.

Physical sliding locks are well known in the prior art:

However, it would have been obvious to one of ordinary skill in the art to modify the interface of the Neonode N1m to move an unlock image as claimed by mimicing the movement of the knob element of a sliding lock on a graphical user interface, as this mimicry achieves skeumorphism of the unlock functionality, which in turn makes unlocking the phone intuitive for the user.

Some scattered thoughts:

1) Hindsight reasoning. We know all about skeumorphism and its role in graphical user interface design now in the year 2013, but was this knowledge available in 2005? I'm not entirely sure, but on the balance, I'd say yes.

2) Patent office resources: Should the examiner have found the Neonode N1m? Sure they were exhibited at CeBit in 2002, but it doesn't look like they were actually delivered until 2005, and at that, only a total of 50,000 units worldwide. Obviously someone found them, but should the patent office have? Is that realistic based on the resources that they have? The examiner had somewhere around 20 hours to conduct a search of the prior art. Do we drastically increase the amount of time that examiners have to conduct a search? Do we give Peer-to-patent another go, and just not whine when poo poo inevitably falls through the cracks still? Do we accept this as the cost of doing business? Do we throw up our hands and say that there's so much activity in this area that nobody gets patents?

3) One of the cited publications used in a previous rejection of the Apple patent was a Nokia application for unlocking a phone that itself eventually issued and happens to be far, far more egregious than the Apple patent (looks like it covers entering a numerical combination).

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Kalman
Jan 17, 2010


That's actually not the patent I was referring to when I said the Neonode doesn't anticipate - that's a much better case for anticipation.

I was referring to:

code:

1. A method of controlling an electronic device with a touch-sensitive display, comprising:
   detecting contact with the touch-sensitive display while the device is in a user-interface lock state;
   moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device;
   transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and
   maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Kalman posted:

That's actually not the patent I was referring to when I said the Neonode doesn't anticipate - that's a much better case for anticipation.

I was referring to:

code:
1. A method of controlling an electronic device with a touch-sensitive display, comprising:
   detecting contact with the touch-sensitive display while the device is in a user-interface lock state;
   moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device;
   transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and
   maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture.

That's the patent I'm referring to also; I broke the moving limitation out because Neonode clearly doesn't anticipate it, but it's arguably obvious.

eSports Chaebol
Feb 22, 2005

Support the International Campaign to Ban Spider Mines

Perhaps patents on software and cutting-edge gadgetry would be less obviously egregious so often if the terms were simply shorter. There's plenty of genuine debate over what should be patentable, but aside from that, everyone who would say that 14-20 years of protection for anything on a smartphone is a good idea and a reasonable amount of time to promote the Progress of Science and useful Arts is willfully lying. It really should be seen as a practical rather than an ideological question: it's not like people bought a new version of the Victrola gramophone or McCormick reaper every other year.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Kalman posted:

Like putting teeth into functional claiming restrictions again, which is what I suggested earlier in the thread.

Please expand on this, because I'm not sure how you could: even under 112(f), the means is a computer running a suitable program to carry out the function, and my understanding is that the state of the law is that a general purpose computer, once programmed, is understood to be a different thing - a specific purpose computer, that is patent eligible, etc. etc.

An issue arises that generally "program a computer to carry out the function" is sufficient disclosure to enable one of ordinary skill in the art to carry out the invention, which, when combined with the general lack of requirement that there be an actual reduction to practice prior to filing an application...

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


eSports Chaebol posted:

Perhaps patents on software and cutting-edge gadgetry would be less obviously egregious so often if the terms were simply shorter. There's plenty of genuine debate over what should be patentable, but aside from that, everyone who would say that 14-20 years of protection for anything on a smartphone is a good idea and a reasonable amount of time to promote the Progress of Science and useful Arts is willfully lying. It really should be seen as a practical rather than an ideological question: it's not like people bought a new version of the Victrola gramophone or McCormick reaper every other year.

Kalman posted:

Finally, reducing the duration of software patents would have little to no effect on what's going on unless you reduced the duration to a trivial duration, which would then give you problems when trying to distinguish a software patent from other patents. Most modern inventions (outside of the world of pharma) are mixtures of software and hardware anyway, so are those software patents, or not? If you try to draw lines, people like me will play games with which side of the line the patent sits on depending on which is advantageous, and if you don't draw lines, you're killing the rest of the patent system (some of which clearly works well like pharma and to a lesser extent semiconductors, some of which has mixed results) in order to deal with a problem that there are better solutions to.

Paul MaudDib
May 2, 2006

My name is a killing word.


To answer that, and speaking normatively rather than about current law, I'd say the situation should depend on what precisely is novel in the invention. If the patent is mostly about hardware and the software consists of "a computer algorithm to control the system", no, that shouldn't be patentable. If there's a novel, non-obvious combination of algorithm and data structure that solves some significant problem in the system, sure, that should be patentable.

Remember that something doesn't need to be patented to be protected against infringement. Source code and binaries are still copyrighted - if someone actually stole Apple's work, they would still get boned on copyright even if Apple couldn't sue over rounded corners.

Kalman
Jan 17, 2010


WhiskeyJuvenile posted:

Please expand on this, because I'm not sure how you could: even under 112(f), the means is a computer running a suitable program to carry out the function, and my understanding is that the state of the law is that a general purpose computer, once programmed, is understood to be a different thing - a specific purpose computer, that is patent eligible, etc. etc.

An issue arises that generally "program a computer to carry out the function" is sufficient disclosure to enable one of ordinary skill in the art to carry out the invention, which, when combined with the general lack of requirement that there be an actual reduction to practice prior to filing an application...

I'm referring to a growing trend (oddly enough, spearheaded in at least some respects by ED TX judges) to limit mpf algorithms implemented on general purpose computers to only those algorithms disclosed in the specification and equivalents thereof. If you perform the function by a different algorithm, you don't infringe, and if no algorithm is disclosed for the function you perform, you don't infringe because the patent scope can't cover it.

The basic justifications is that mpf was supposed to be a bargain allowing functional claiming in exchange for narrowed scope to only those means for implementation the patentee described. Since software is generally a functionally claimed patent in practice, applying this rule across he board to any claim implemented via a general purpose processor running specific software (or a special purpose processor, since there the case law is clean on requiring structural disclosure) pretty much fixes the breadth and disclosure issues in software patents.

The main cases to take a look at, if you're interested, are WMS Gaming and in re Katz. There are a number of others but mostly they're cited by or cite to those cases so you can shepherding your way to them.

(Also, thanks for quoting my post on patent term issues, and in general for starting this topic. Patent law and patent reform is something I've worked on both on the legislative side and as a patent lawyer in litigation and prosecution, so it's a topic near and dear to my heart.)

Kalman fucked around with this message at Dec 8, 2013 around 23:45

Kalman
Jan 17, 2010


Paul MaudDib posted:

To answer that, and speaking normatively rather than about current law, I'd say the situation should depend on what precisely is novel in the invention. If the patent is mostly about hardware and the software consists of "a computer algorithm to control the system", no, that shouldn't be patentable. If there's a novel, non-obvious combination of algorithm and data structure that solves some significant problem in the system, sure, that should be patentable.

Remember that something doesn't need to be patented to be protected against infringement. Source code and binaries are still copyrighted - if someone actually stole Apple's work, they would still get boned on copyright even if Apple couldn't sue over rounded corners.

Except that copyright protection is far narrower than patent and has an independent invention defense. If someone does exactly what Apple does in their software but didn't actually copy it, just redid it from scratch with the end result as a target, they don't infringe copyright. And if they take Apples code as a starting point and rewrite it to be functionally equivalent but new code, they don't infringe.

Cicero
Dec 17, 2003

Jumpjet, melta, jumpjet. Repeat for ten minutes or until victory is assured.

Kalman posted:

Except that copyright protection is far narrower than patent and has an independent invention defense. If someone does exactly what Apple does in their software but didn't actually copy it, just redid it from scratch with the end result as a target, they don't infringe copyright. And if they take Apples code as a starting point and rewrite it to be functionally equivalent but new code, they don't infringe.
I don't think that's necessarily true. AFAIK there have been a few legal kerfuffles lately in the gaming world where a company's clone hewed too closely to the original, even though nobody was asserting that code or art assets were directly stolen.

Kalman
Jan 17, 2010


Cicero posted:

I don't think that's necessarily true. AFAIK there have been a few legal kerfuffles lately in the gaming world where a company's clone hewed too closely to the original, even though nobody was asserting that code or art assets were directly stolen.

That's a different issue in copyright - protection of a character, general design, or art asset, rather than protection of the technical aspects of the code itself. Those disputes (Triple Town is the first one that comes to mind) are claiming that the other side took a look at an artistic aspect and copied it (in the sense of taking the essence, rather than directly copying). For creative elements, copyright has a substantial similarity test in copying, but for less creative aspects (ie code) there's an understanding that you can reverse engineer something identical and have it be protected, and that code that does the same thing in the same way to achieve the same result (the standard for equivalence in patent law) but which has substantial differences in the code itself is not an infringement of copyright.

Copyright is perfectly good at protecting that... Except for a line of cases that said that aspects of user interfaces can't be copyrighted, stemming from someone (Lotus, I think) copying the WordPerfect user interface.

Basically, copyright is pretty good at protecting the artistic aspects of software and reasonably good for preventing out and out copying, but is a poor mechanism for protecting the technological aspects of software.

Kalman fucked around with this message at Dec 9, 2013 around 00:13

OneEightHundred
Feb 28, 2008

Soon, we will be unstoppable!


Reducing the term of patent would definitely help, by far the biggest problem of software patents is that independent reinvention is assumed by the patent system to be rare, and since independent reinvention is fairly random, reducing the pool of potential accidental infringements would help tremendously.

As for what you could call a "software patent," a rough description would be any patent that only claims an invention that reads information from a device, component, or other software, executes an algorithm on that information, and sends that information to another device, component, or software. If that's the entirety of the patent, then it's effectively patenting something that is no more novel than the algorithm itself, and should not be enough to turn an otherwise-unpatentable algorithm into a patented process by just saying "do it on a computer."

OneEightHundred fucked around with this message at Dec 9, 2013 around 00:20

falcon2424
May 2, 2005



WhiskeyJuvenile posted:

Please expand on this, because I'm not sure how you could: even under 112(f), the means is a computer running a suitable program to carry out the function, and my understanding is that the state of the law is that a general purpose computer, once programmed, is understood to be a different thing - a specific purpose computer, that is patent eligible, etc. etc.

I think my problem starts here. Neonide is claiming to have created a specific device. But they haven't actually disclosed any novel, non-obvious parts of a device. They've just asserted that the two could be joined together.

I'm imagining a physical analogue for the patent. Someone puts a touch-screen on a cheese-whiz dispenser. And I'm mentally translating 'micro-controler' to gears.

So, the pre-existing patents would be a "a touch-screen that updates a computer's state turns a gear" and "a device for dispensing cheese-whiz." In principle, there might be some interesting engineering problem involved with interfacing the two. But I'd need to produce more than this:



The interface is the core of the idea. But, the flowchart doesn't show how controler-dispenser interface works. It might as well say, "Put solution here."

And if I want to argue that any idiot could figure out how to connect two micro-controllers gears, then my invention is obvious.

If, on the other hand, I disclosed some very specific algorithm gear-box, then I might be able to justify a patent for that particular implementation. If my design had some clever advantage, or solved a difficult problem, then I'd helped society by disclosing. Otherwise, people could just invent their own design.

So, it seems like the problem could be solved by requiring much more specificity in the applications, and rejecting ones that have a "insert solution here" gap.

falcon2424 fucked around with this message at Dec 9, 2013 around 01:04

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


falcon2424 posted:


And if I want to argue that any idiot could figure out how to connect two micro-controllers gears, then my invention is obvious.

This is the wrong way to look at obviousness. It's not whether, given a description of what to do, one of ordinary skill could figure out how to do it (that's whether the disclosure is enabling) but whether one of ordinary skill in the art would have thought to do it in the first place.

Shifty Pony
Dec 28, 2004

Up ta somethin'


WhiskeyJuvenile posted:

This is the wrong way to look at obviousness. It's not whether, given a description of what to do, one of ordinary skill could figure out how to do it (that's whether the disclosure is enabling) but whether one of ordinary skill in the art would have thought to do it in the first place.

Slight correction: it is whether a person having ordinary skill in the art at the time of the invention would have found the claimed invention obvious. There is no requirement that they would have been driven to make it, which is why merely plastering a bunch of old bits together where they all perform the same function individually as they used to is not patentable.

Just my own little musing, completely unsupported by present legal holdings and patent examination practice, follows: when nearly every major computer processor and programing language is explicitly designed to be Turing complete and thus be able to simulate any computable algorithm, would a computer scientist consider the programming of such a system to perform an arbitrary algorithm to be merely the obvious logical end result of that initial design goal, or a change in the basic purpose of the system? Is the programming of a general purpose computer not merely a combination of old, known programming elements (individual data retrieval, modification, and storage/display steps) with each just performing their individual expected function, or is the final result considered unexpected or synergistic enough to raise itself above this base level analysis in the same way that an engine is more than just an amalgamation of pumps, bearings, and castings?

Kalman
Jan 17, 2010


Shifty Pony posted:

Slight correction: it is whether a person having ordinary skill in the art at the time of the invention would have found the claimed invention obvious. There is no requirement that they would have been driven to make it, which is why merely plastering a bunch of old bits together where they all perform the same function individually as they used to is not patentable.

Combination patents actually are patentable, because the discovery of a new problem is a factor in the obviousness inquiry. In other words, sticking together a bunch of known things to do what they do normally can be patentable when the combination itself/the problem thus solved is novel.

Shifty Pony
Dec 28, 2004

Up ta somethin'


Kalman posted:

Combination patents actually are patentable, because the discovery of a new problem is a factor in the obviousness inquiry. In other words, sticking together a bunch of known things to do what they do normally can be patentable when the combination itself/the problem thus solved is novel.

Oh of course, the problem solved is a part of the "invention as a whole" inquiry, although generally speaking in a competitive art field the problems are very well known.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Shifty Pony posted:

There is no requirement that they would have been driven to make it

There needs to be some motivation to combine, still, is what I'm getting at.

Paul MaudDib
May 2, 2006

My name is a killing word.


Kalman posted:

Copyright is perfectly good at protecting that... Except for a line of cases that said that aspects of user interfaces can't be copyrighted, stemming from someone (Lotus, I think) copying the WordPerfect user interface.

Basically, copyright is pretty good at protecting the artistic aspects of software and reasonably good for preventing out and out copying, but is a poor mechanism for protecting the technological aspects of software.

Again, I don't see how that's problematic. Word processor interfaces aren't novel, there's no reason you should be able to patent "a system of menus with buttons that accomplish word processor functions". The whole thing is entirely analogous to physical controls on a typewriter anyway. There isn't really anything in a word processor interface that should be patentable, and the actual code itself is copyrightable. The trivial design aspects aren't, but this gets back to the problem where one company shouldn't be able to have a monopoly on word processors for a couple decades.

Kalman
Jan 17, 2010


What part of "the interfaces aren't copyrightable" did you miss in that post?

Paul MaudDib
May 2, 2006

My name is a killing word.


Kalman posted:

What part of "the interfaces aren't copyrightable" did you miss in that post?

Calm down. The design of the interface is not patentable, the interface itself (the source code and binary) most certainly is copyrightable. Please cite the case where Lotus copied/pasted WordPerfect's source code and got away with it.

I haven't seen a word processor interface yet whose design is sufficiently novel to really warrant a patent. They are all basically some variation on classic typewriter interfaces, with modifications to increase control (more typefaces, etc) and adapt to existing user interface paradigms (drop down boxes instead of physical sliders, menus and panels of related options grouped together, etc). I view the issue of patents for such things to be totally frivolous, and it's actively and seriously detrimental to regular activity in the software field.

Paul MaudDib fucked around with this message at Dec 9, 2013 around 18:01

Helsing
Aug 23, 2003

THUNDERDOME LOSER

While patents on smart phones are a certainly a Byzantine nightmare (especially when you have Apple, Google and other tech companies buying up huge numbers of patents and then using them lobbing lawsuits at each other like they are cruise missiles) that seems to interfere with genuine innovation I think that any discussion of patent reform really needs to involve a discussion of medicine.

So much of our medical research is conducted in public universities or drawing upon public funds in one way or another, and of course the enforcement of patents is an almost entirely public expense. Yet the result of this system is to massively inflate the cost of life saving drugs that end up costing many hundreds or thousands of times their actual cost of production.

I suppose you could argue that without these massive economic rents the drug industry wouldn't be making all these life saving drugs but given that so much of this research already goes through a publicly funded system that just doesn't seem plausible. We'd probably get equally good or better results if we abolished patent protections on drugs and just spent all the money that went into patent protections on publicly funded research that is freely available.

This really matters because the high cost of life saving drugs means that tens of thousands of people around the globe die every year because they cannot afford the medicine that they need, and many other people are impoverished paying for something that should be a fundamental human right. Even worse the US and other governments are actively lobbying to extend patent protections on many of these drugs.

So yeah, I get that its annoying when somebody tries to patent a smart phone tech that really shouldn't be patented, but it sort of pales in comparison to the massive injustices going on in the medical world.

Buffer
May 6, 2007
I sometimes turn down sex and blowjobs from my girlfriend because I'm too busy posting in D&D. PS: She used my credit card to pay for this.


That same critique also applies to software and smartphone patents. It's just not, you know, lifesaving.

But yea, ain't a loving thing in this world that doesn't come back to a 3-letter agency grant. Repeal Bayh-Dole.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Buffer posted:

That same critique also applies to software and smartphone patents. It's just not, you know, lifesaving.

But yea, ain't a loving thing in this world that doesn't come back to a 3-letter agency grant. Repeal Bayh-Dole.

Exercise of March-in would be sufficient.

Space Gopher
Jul 31, 2006
CRYBABY FUCK


Paul MaudDib posted:

Again, I don't see how that's problematic. Word processor interfaces aren't novel, there's no reason you should be able to patent "a system of menus with buttons that accomplish word processor functions". The whole thing is entirely analogous to physical controls on a typewriter anyway. There isn't really anything in a word processor interface that should be patentable, and the actual code itself is copyrightable. The trivial design aspects aren't, but this gets back to the problem where one company shouldn't be able to have a monopoly on word processors for a couple decades.

I'm pretty sure that Kalman was talking about Lotus v. Borland, where Borland's Quattro Pro spreadsheet copied the Lotus 1-2-3 menu interface and keyboard commands character-for-character. Lotus still lost the case, but it wasn't the "I hereby claim all implementations of x software using current standard UI conventions" that you seem to think it was. There was a legitimate argument there.

Why do you feel that user interfaces are inherently non-novel? I don't think anyone will argue with the fact that the current system is broken, but there are a lot of possible ways to implement a given UI to perform certain tasks. Human/computer interaction is a big field of study in corporate and academic environments for just this reason. Some UI implementations are obviously better than others (you probably don't want the save function - which, incidentally, a typewriter can't do - to be buried four menu layers deep) and some of them are non-obviously better. And, there are some significantly different user interfaces which haven't received a lot of positive attention but are nevertheless novel and patentable - take, for instance, an engine that analyzes a user's writing in real-time and pops up options relevant to what the system predicts the user might want to do (Microsoft did this; you probably know the technology as "that drat paperclip"). Unless you take a hardline "no inventions should be patentable, ever" stance, it's hard to see how user interface elements should never be patentable.

Paul MaudDib
May 2, 2006

My name is a killing word.


Space Gopher posted:

I'm pretty sure that Kalman was talking about Lotus v. Borland, where Borland's Quattro Pro spreadsheet copied the Lotus 1-2-3 menu interface and keyboard commands character-for-character. Lotus still lost the case, but it wasn't the "I hereby claim all implementations of x software using current standard UI conventions" that you seem to think it was. There was a legitimate argument there.

So Kalman's implication is that keyboard combinations and menus should be patentable?

I really think that goes to show just how far up its own rear end the entire patent system is.

Space Gopher posted:

Why do you feel that user interfaces are inherently non-novel? I don't think anyone will argue with the fact that the current system is broken, but there are a lot of possible ways to implement a given UI to perform certain tasks. Human/computer interaction is a big field of study in corporate and academic environments for just this reason. Some UI implementations are obviously better than others (you probably don't want the save function - which, incidentally, a typewriter can't do - to be buried four menu layers deep) and some of them are non-obviously better. And, there are some significantly different user interfaces which haven't received a lot of positive attention but are nevertheless novel and patentable - take, for instance, an engine that analyzes a user's writing in real-time and pops up options relevant to what the system predicts the user might want to do (Microsoft did this; you probably know the technology as "that drat paperclip"). Unless you take a hardline "no inventions should be patentable, ever" stance, it's hard to see how user interface elements should never be patentable.

I'll change your example slightly - instead of popping up Clippy, how about predictive typing? Sure, a new engine that produces better predictive typing should be eligible for patent. But it's a novel type predictive engine - we haven't described a novel user interface paradigm with that. It's going to slap the text ahead of the cursor as you type just like every other type prediction system ever. If you can come up with a novel way to display and interact with the suggested type, that would be a UI patent.

I don't think that user interface paradigms should never be patentable, there are certainly some innovations possible there, but they certainly appear to be the vast minority of the UI patents I've seen around. Given that the balance tips heavily towards "frivolous", and every patent causes fairly large losses in terms of economic activity, I'm perfectly OK with either a hardline "no user interface patents ever" or a strong presumption against issuing them.

When issued, they should be for very short terms - something on the order of 3 years non-renewable. Software development cycles are just too fast compared to the 1700s. Whoever said you didn't buy a new cotton gin every year hit the nub of the situation - a patent might have covered 3 development cycles or so at the time, and now it's 20-40. Companies shouldn't be allowed sole use of a basic UI paradigm for the entire lifespan of a device's existence, and that's what current law provides. Copyright will still protect their actual work, but the concepts need to be free for competition within relatively short spans.

Paul MaudDib fucked around with this message at Dec 9, 2013 around 18:32

Vladimir Putin
Mar 17, 2007
Pardon me sir, would you like to have some Polonium ?

Helsing posted:



I suppose you could argue that without these massive economic rents the drug industry wouldn't be making all these life saving drugs but given that so much of this research already goes through a publicly funded system that just doesn't seem plausible. We'd probably get equally good or better results if we abolished patent protections on drugs and just spent all the money that went into patent protections on publicly funded research that is freely available.


The current system works fine.

Large companies and shareholders who want quick profits do poorly in investing in basic research where it's hard to pick out where the profits will roll in. It's already so difficult to start a biotech and try to get funding despite NOT see a profit for 10+ years.

Universities and public institutions can't attract enough capital to push a basic scientific concept to consumer product. It costs approximately 1 billion dollars to get one successfully approved drug. That's approved. Not profitable (ask me about the drug that costs 6 billion dollars to gain approval and was ultimately written off by Pfizer).

Bayh-Dole makes an almost perfect public-private partnership. The federal government relinquishes IP rights to research it funds over to the university that discovered it with NIH/NSF funding. The University files the patents and licenses it to biotech/pharma who invest in it further and hopefully make a product.

Profits are shared back with the original owner of the IP (University) who as a non-profit reinvests it back into the university. Bayh-Dole funds education, funds scientific research, and stimulates economic activity.

There are ways to get the government to fund the entire enterprise start to finish, but that would entail restructuring the entire public and private health care research enterprise. It's possible, but will cost hundreds of billions if not trillions. Of course, anything is possible if you have enough money.

Vladimir Putin fucked around with this message at Dec 9, 2013 around 18:36

Vladimir Putin
Mar 17, 2007
Pardon me sir, would you like to have some Polonium ?

Buffer posted:


But yea, ain't a loving thing in this world that doesn't come back to a 3-letter agency grant. Repeal Bayh-Dole.

Repealing Bayh-Dole would make things worse. Someone has to seek IP protection for things they invent when funded by the government. Otherwise, there will be no investment of capital to develop it further. Without Bayh-Dole it would revert back to the federal government who has almost no institutional connection with the individuals who invented it in the first place. It's going to be a living hell for investors to try to interface with the federal government to try to get access to the inventors and license the technologies.

evilweasel
Aug 24, 2002


Every soup ladled to the hungry, every blanket draped over the cold signifies, in the final sense, a theft from my gigantic paycheck.

Helsing posted:

So much of our medical research is conducted in public universities or drawing upon public funds in one way or another, and of course the enforcement of patents is an almost entirely public expense. Yet the result of this system is to massively inflate the cost of life saving drugs that end up costing many hundreds or thousands of times their actual cost of production.

What's the proportion of R&D costs met with public funds vs. private funds? Just saying it's conducted in public universities doesn't mean much: the drug companies could easily be footing the bill. In addition, many of those public universities own patents: what's the percentage of funds extracted by patents that go back to public universities and how favorably/unfavorably does that compare to the funds they put in?

I tend to see a lot of these sorts of arguments but I don't know that I've ever seen the numbers to back up the conclusion people are expected to draw from them.

Vladimir Putin
Mar 17, 2007
Pardon me sir, would you like to have some Polonium ?

evilweasel posted:

What's the proportion of R&D costs met with public funds vs. private funds? Just saying it's conducted in public universities doesn't mean much: the drug companies could easily be footing the bill. In addition, many of those public universities own patents: what's the percentage of funds extracted by patents that go back to public universities and how favorably/unfavorably does that compare to the funds they put in?

I tend to see a lot of these sorts of arguments but I don't know that I've ever seen the numbers to back up the conclusion people are expected to draw from them.

I've had experience in public research in the biotech sector. Most of university research in that space is funded by public money. The money it gets back in royalties from patents is usually a small percentage of total funds received from the federal government in grants. Most of the time, a successful IP case takes in a couple of million per year for the remaining lifetime of the patent (which was most likely filed at the most early stage of the lifetime of the product).

That tells only part of the story in that the IP also stimulates economic activity. Startups are launched which hire highly skilled workers who produce more valuable IP which is licensed, developed, and so on. That kind of activity is harder to measure, but it's pretty valuable and is part of the mission of the government and the university.

Kalman
Jan 17, 2010


Paul MaudDib posted:

So Kalman's implication is that keyboard combinations and menus should be patentable?

I really think that goes to show just how far up its own rear end the entire patent system is.

No. My point was that those features of UIs aren't copyright able, no matter how novel they are, and if they aren't patentable (e.g., because of a hypothetical ban on software patents) simply can't be protected.

quote:

I don't think that user interface paradigms should never be patentable, there are certainly some innovations possible there, but they certainly appear to be the vast minority of the UI patents I've seen around. Given that the balance tips heavily towards "frivolous", and every patent causes fairly large losses in terms of economic activity, I'm perfectly OK with either a hardline "no user interface patents ever" or a strong presumption against issuing them.

When issued, they should be for very short terms - something on the order of 3 years non-renewable. Software development cycles are just too fast compared to the 1700s. Whoever said you didn't buy a new cotton gin every year hit the nub of the situation - a patent might have covered 3 development cycles or so at the time, and now it's 20-40. Companies shouldn't be allowed sole use of a basic UI paradigm for the entire lifespan of a device's existence, and that's what current law provides. Copyright will still protect their actual work, but the concepts need to be free for competition within relatively short spans.

Three year patent grants would be worthless, as the grant would occur after the patent expired in many cases (given an average patent time from filing to grant of 32 months, who he as what USPTO reported in 2012). Patent terms run from filing date, not from grant date.

(Also, the vast majority of patents cause about 15-30k in economic losses (the cost of filing and lawyers fees) because the vast majority of patents are never asserted.)

That still ignores the basic difficulty of drawing lines between types of patents and the fact that if you make a UI patent only last three years, my clients will make sure I find a way to write a patent that falls outside of the lines of UI even if it really is a UI patent at its heart. Instead of trying to classify patents (a scheme which will work poorly and only works at all in the pharma context because the classification is tied into the FDA regulatory process) it'd be better to employ rules that naturally have the desirable outcome, like my aforementioned pet project of enforcing a disclosed algorithm limitation to provide adequate structure and reasonable scope to software patents.

(SCOTUS could help things out in CLS Bank by adding in some language about how implementing a known non-computer system on a computer is prima facie obvious, of course.)

KernelSlanders
May 27, 2013


Its further worth pointing out that it's essentially impossible to get a biotech startup funded without some IP. VCs know the big firms won't enter an untested market on their own, but if a startup without IP protection becomes successful genentech will just come in a crush it. So, without IP protection a lot of the Bayh-Dole act derived medical treatments would never reach market.

One could, of course, argue for public funding all the way through the pipeline until it reaches patients essentially nationalizing some pharma, but that's really not the way healthcare works in the US and, if the ACA fight is anything to base opinions on, that's not going to change anytime soon.

Phyzzle
Jan 26, 2008
I'LL ONLY BEAT MY FIANCEE WHEN I THINK SHE DISRESPECTS ME. BITCH CAN LOWER HER STANDARDS AND FIND SOMEONE ELSE IF SHE DON'T LIKE IT.

falcon2424 posted:

So, it seems like the problem could be solved by requiring much more specificity in the applications, and rejecting ones that have an "insert solution here" gap.

To put it another way, “goals” should not be patentable. There was a guy who sued Apple over his patent on ‘having a playlist’. But playing audio tracks in a sequential order is a thing that is accomplished, and that’s not the sort of thing that should be patentable. I’d put most of these user interface features in that same category.

For people who know more about patents, I’ve always wondered something about the classic case of the windshield wiper patent:

quote:

These consist, preferably, of the wooden strips H, which carry a rubber T,adapted to sweep across and clean the window-pane. These strips H are joined to the tubing or bar D by means of bearings [BlahBlahBlah]…

From the foregoing description it will be seen that a simple mechanism is provided for removing snow, rain, and sleet from the glass in front of the motorman, and it is simply necessary for him to take hold of the handle L and turn it in one direction or the other to clean the pane…In this way the difficulty of not being able to see through the front glass in stormy weather is effectually obviated.

Under today’s precedents, would it have been possible for Mary Anderson to simply patent the second paragraph? That is, something like “a mechanism which removes rainwater from the front glass, comprised of a handle or switch which activates a wiper moving in a predefined way across the front glass.”

I have no idea why that would be unacceptable when something like the Neonode patent passes.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Kalman posted:

No. My point was that those features of UIs aren't copyright able, no matter how novel they are, and if they aren't patentable (e.g., because of a hypothetical ban on software patents) simply can't be protected.


Three year patent grants would be worthless, as the grant would occur after the patent expired in many cases (given an average patent time from filing to grant of 32 months, who he as what USPTO reported in 2012). Patent terms run from filing date, not from grant date.

(Also, the vast majority of patents cause about 15-30k in economic losses (the cost of filing and lawyers fees) because the vast majority of patents are never asserted.)

That still ignores the basic difficulty of drawing lines between types of patents and the fact that if you make a UI patent only last three years, my clients will make sure I find a way to write a patent that falls outside of the lines of UI even if it really is a UI patent at its heart. Instead of trying to classify patents (a scheme which will work poorly and only works at all in the pharma context because the classification is tied into the FDA regulatory process) it'd be better to employ rules that naturally have the desirable outcome, like my aforementioned pet project of enforcing a disclosed algorithm limitation to provide adequate structure and reasonable scope to software patents.

(SCOTUS could help things out in CLS Bank by adding in some language about how implementing a known non-computer system on a computer is prima facie obvious, of course.)

The patent office recently issued guidance on 112(f) and software claims regarding not requiring "means for" to invoke. I'll see if I can find it.

Kalman
Jan 17, 2010


WhiskeyJuvenile posted:

The patent office recently issued guidance on 112(f) and software claims regarding not requiring "means for" to invoke. I'll see if I can find it.

Unfortunately, PTO guidance only helps at the gate keeping side - until it's either strong Fed Cir (or SCOTUS) precedent or written into the statute, it would still be a litigation problem.

(that said, if you find it, I want to read it, so please do post it.)

Vladimir Putin
Mar 17, 2007
Pardon me sir, would you like to have some Polonium ?

KernelSlanders posted:

Its further worth pointing out that it's essentially impossible to get a biotech startup funded without some IP. VCs know the big firms won't enter an untested market on their own, but if a startup without IP protection becomes successful genentech will just come in a crush it. So, without IP protection a lot of the Bayh-Dole act derived medical treatments would never reach market.

One could, of course, argue for public funding all the way through the pipeline until it reaches patients essentially nationalizing some pharma, but that's really not the way healthcare works in the US and, if the ACA fight is anything to base opinions on, that's not going to change anytime soon.

It should be obvious that no one will invest in a immature technology with no IP protection.

Barring some minor fixes, is probably one of the better systems we can have. Public money brings the very immature technology to the marketplace where private capital develops it into a fully realized product. The profits are shared with the holders of the original IP in proportion to its market value accounting for risk and potential at the time of licensing. For high risk technologies like biotech, this distributes the risks to where each party is ideally suited to handle it.

Kalman
Jan 17, 2010


Phyzzle posted:

To put it another way, “goals” should not be patentable. There was a guy who sued Apple over his patent on ‘having a playlist’. But playing audio tracks in a sequential order is a thing that is accomplished, and that’s not the sort of thing that should be patentable. I’d put most of these user interface features in that same category.

For people who know more about patents, I’ve always wondered something about the classic case of the windshield wiper patent:


Under today’s precedents, would it have been possible for Mary Anderson to simply patent the second paragraph? That is, something like “a mechanism which removes rainwater from the front glass, comprised of a handle or switch which activates a wiper moving in a predefined way across the front glass.”

I have no idea why that would be unacceptable when something like the Neonode patent passes.

This gets to the disconnect between how software applications have been viewed and how physical applications are treated, and the whole concept of "means plus function." This legitimately is a problem with software patents, and it stems from a flaw in the way they're interpreted as a matter of course, though (as WhiskeyJuvenile and I have been discussing) there is some movement on that in the courts and PTO.

"A mechanism for removing rainwater from front glass" is patentable. The trade off is that, instead of forcing a patentee to put into claim language every thing they know about removing rainwater from front glass, instead they can simply say "a means for removing rainwater". But that doesn't mean their patent covers any way of removing rainwater - it means it covers any structure for removing rainwater described in the patent's specification (and reasonable equivalents thereof, so that if it talks about a latex rubber wiper and someone actually uses a neoprene wiper blade, it still infringes.)

The problem you run into is that in software, claims often say things like "a gadget producing entity" and these are interpreted to mean any such gadget, not just ones with the same structure as that in the specification. When people talk about functional claiming being an issue, this is what they mean - patents are supposed to protect implementations (structures) of an idea (function), not the idea itself.

WhiskeyJuvenile
Feb 15, 2002

SIC SEMPER TYRANNOSAURUS


Kalman posted:

This gets to the disconnect between how software applications have been viewed and how physical applications are treated, and the whole concept of "means plus function." This legitimately is a problem with software patents, and it stems from a flaw in the way they're interpreted as a matter of course, though (as WhiskeyJuvenile and I have been discussing) there is some movement on that in the courts and PTO.

"A mechanism for removing rainwater from front glass" is patentable. The trade off is that, instead of forcing a patentee to put into claim language every thing they know about removing rainwater from front glass, instead they can simply say "a means for removing rainwater". But that doesn't mean their patent covers any way of removing rainwater - it means it covers any structure for removing rainwater described in the patent's specification (and reasonable equivalents thereof, so that if it talks about a latex rubber wiper and someone actually uses a neoprene wiper blade, it still infringes.)

The problem you run into is that in software, claims often say things like "a gadget producing entity" and these are interpreted to mean any such gadget, not just ones with the same structure as that in the specification. When people talk about functional claiming being an issue, this is what they mean - patents are supposed to protect implementations (structures) of an idea (function), not the idea itself.

Except method patents exist?

Pesmerga
Aug 1, 2005

You know, that reminds me of a joke...

It's worth noting that the EU has considered the issue of software patents, and a proposed Directive permitting for 'pure' software patents, or to put it another way, software patents not dependent on any technical effect produced by the software, failed. One of the key reasons was a very active campaign by small and medium sized enterprises who argued that the main use of these patents would be by larger market players patenting for the purposes of litigation. In some respects, patents are acting as a form of market protectionism, in which even if a firm knows that they're unlikely to succeed in litigation, the threat of litigation by a large firm against a small one or an individual is enough to result in either some form of licensing agreement or cessation of activities.

Posner has suggested that very time-limited patents may be a potential solution to this litigation issue, and the issue of hampered innovation, specifying a term of no longer than five years. This would also be dependent, however, on a strict registration system. As it stands, both in the US, and at the level of the European Patent Office in Europe and the national patent offices in the EU Member States (which are now in the process of ratifying the EU's 'unitary' patent process), patent registration clerks are notoriously overworked, meaning that quite often the process is neither rigorous nor strictly applied.

Another problematic issue relates to patenting in biotechnology - to what extent genes can be patented, and the impact in the EU of the morality clause under Article 6 of the Biotechnology Directive. There are discussions that, particularly in light of the Trans-Pacific Partnership and the Transatlantic Free Trade Agreement negotiations, the restrictions on the patenting of processes and results of biotechnology research are going to be significantly relaxed.

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Kalman
Jan 17, 2010


WhiskeyJuvenile posted:

Except method patents exist?

Even a method patent (properly understood, at least) is to an implementation of an idea, not to the idea itself. You can patent the method implied by a particular implementation, but you can't patent a method such as:

"A method comprising:
Converting a digit from binary to decimal."

That's the meaning of the prohibition on patenting an abstract idea, with the reason that when you allow that patent, you've foreclosed the field entirely as opposed to foreclosing a method of converting a digit from binary to decimal (e.g using log conversion to change bases as opposed to other methods such as dividing by ten, taking remainder, dividing by 100, taking remainder, etc.).

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