Patent reform

The Something Awful Forums > Discussion > Debate & Discussion > Patent reform

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?

# ¿ Dec 9, 2013 03:49

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# ¿ Apr 19, 2024 07:53

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.

# ¿ Dec 9, 2013 04:17

Shifty Pony: Dec 28, 2004; Up ta somethin'

evilweasel posted:

Every claim I see on there is an overly wordy way to describe anything a computer could possibly be doing in response to the request. I really don't see any limitations in there.

That describes just about any computer implemented patent claim ever. I am so loving glad that I examine nearly entirely structural hardware stuff where a belt is a belt.

# ¿ Dec 10, 2013 02:22

Shifty Pony: Dec 28, 2004; Up ta somethin'

Kalman posted:

Rounded corners on a phone aren't being patented as a new useful feature; they're being patented as a new ornamental feature. Usefulness isn't a requirement for design patents - they don't fall under 101 requirements (new and useful) but instead 171 requirements (new, original, and ornamental).

While I'm no expert in design patent law, I was a bit surprised that patent wasn't attacked on the grounds that a majority of the "ornamental" features were actually functional in nature. Rounded corners easier to manufacture and pull out of your pocket, a bezel all around a screen allowing for adhesion of the LCD and connection of touch input circuitry as well as permitting a user to grip the device without covering up the screen, a centered button at the bottom to allow a left or right handed user to press it with equal ease without covering the screen, etc.

I think that certain utilitarian and minimalist industrial design trends raise the really interesting question of if a lack of ornamentation can itself be ornamental.

# ¿ Dec 10, 2013 22:12

Shifty Pony: Dec 28, 2004; Up ta somethin'

Kalman posted:

What? No, I get billed out at around 500 an hour, but I work for a law firm, not the PTO. Examiners get paid reasonably well but they're definitely not getting paid anywhere near as much as you seem to think..

A topped out GS14 examiner will make about $70 per hour.

# ¿ Dec 12, 2013 23:23

Shifty Pony: Dec 28, 2004; Up ta somethin'

Kalman posted:

I don't make 500 an hour (my firm does, but, well, capitalism). I make closer to 100 per hour billed. Then again, a topped out examiner will have been doing this a lot longer than I have (and yet still frequently be far worse at it than me...)

Yeah, billed rates are strange, but then again so is the GS Pay system and quota system used by the PTO. Here's the Examiner pay scale:

code:

SPECIAL RATE TABLE
Number 0576
Grade 	STEP 1 	STEP 2 	STEP 3 	STEP 4 	STEP 5 	STEP 6 	STEP 7 	STEP 8 	STEP 9 	STEP10 SUPPLEMENT
05 	41969 	43368 	44766 	46165 	47563 	48962 	50360 	51758 	53157 	54555 	53%
07 	51988 	53721 	55455 	57188 	58922 	60655 	62389 	64122 	65856 	67589 	53%
09 	60682 	62704 	64726 	66748 	68770 	70792 	72815 	74837 	76859 	78881 	46%
11 	69899 	72229 	74558 	76888 	79217 	81547 	83877 	86206 	88536 	90866 	39%
12 	80164 	82836 	85508 	88180 	90852 	93524 	96196 	98868 	101540 	104212 	33%
13 	95326 	98504 	101681 	104859 	108036 	111213 	114391 	117568 	120745 	123923 	33%
14 	112647 	116402 	120156 	123911 	127665 	131420 	135175 	138929 	142684 	146438 	33%
15 	132505 	136922 	141339 	145756 	150173 	154590 	155500 	155500 	155500 	155500 	33%

26 pay periods per year, 80 hours per pay period.

The amount of work you have to do is governed by your "expectancy", which is set at the number of hours a GS-12 examiner is expected to take on all parts of an application, spread out between an initial search/action and a response to at least one amendment if that first action is a rejection. These expectancies vary anywhere from north of 30 hours to less than 10, supposedly in relation to how complex a technology is but they mainly haven't been tweaked since the 70s. The grades come with different adjustments: 0.5, 0.6. 0.75, 0.9, 1, 1.15 (1.25), 1.35. I could be off on the lower ones, I haven't had to worry about them for a while. At GS-13 the expectancy is split between those with partial signatory authority and those that still have to get all actions approved by a supervisor.

# ¿ Dec 13, 2013 00:00

Shifty Pony: Dec 28, 2004; Up ta somethin'

I really wish the SC would do more to clarify the requirements of scope of enablement, claim interpretation, and 103 with respect to software in the manner of KSR instead of whatever the gently caress Bilski was.

# ¿ Dec 13, 2013 15:20

Shifty Pony: Dec 28, 2004; Up ta somethin'

Munkeymon posted:

Yeah, I read up and unsurprisingly it's more complicated than I thought. It looks like you couldn't put anything about using a computer system in your claims before that, right?

You could, it just was a grey area until the supreme court decision.

I seem to recall at least one of the Justices musing in the Bilski arguments that a newly programmed computer wasn't any different from the old machine, but that it was just a process disguised as an apparatus claim.

Ah, found it, with the memorable end quip...

quote:

JUSTICE STEVENS: I don't understand why that isn't just the application of a process, which -- which is not itself patentable subject matter, to a particular machine that can use the process --

JUSTICE KENNEDY: That's -- that's a problem I have.

MR. STEWART: Well, I guess -- let me backtrack. If you look at the text of the statute �- it�s reproduced at page 2 of the Blue Brief -- and it says -- it's right in the middle of the page. "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter is potentially entitled to" --

JUSTICE BREYER: So I thought you were saying that the correct argument for the people attacking the patent in that case was to say, this is not a machine. The machine there is a computer. This is a program that changes switches, and that is a different process for the use of the machine. Now, whether that process is or is not
patentable depends upon a lot of things that we don't have to go into in this case. Is that right?

MR. STEWART: I don't -- no. I don�t think that is what I was saying.

JUSTICE BREYER: Okay. Well, then what is right?

MR. STEWART: What I was saying is that �- and I guess the -- the first point I would make is, when somebody claims to have invented a new machine, the transformation test really has nothing to do with the inquiry because a -- a better television or a better DVD player can be patented as a machine, even though transformation of matter is no --

JUSTICE STEVENS: It's not on a computer, which the only difference from the old computer is it's using a new program. You can't say that's a new machine.

MR. STEWART: Well, but my -- I think -- first, I think you can because I think if you -- if you improved the hardware of the computer in order to enable it to perform --

JUSTICE STEVENS: But that patent didn't require any change in the hardware, if I remember it correctly.

MR. STEWART: But I -- but I think the argument that has been made with success -- and PTO agrees with this -- is that programming a computer by means of software to produce -- to perform new functions can create a novel --

JUSTICE BREYER: But then all we do is every example that I just gave, that I thought were examples that certainly wouldn�t be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it's a machine. So all the business patents are all right back in. Now, that -- what I think we were looking for was -- or at least I was -- was why that isn't so, and how you are going to later, down the road, deal with this situation of all you do is you get somebody who knows computers, and you turn every business patent into a setting of switches on a machine because there are no businesses that don't use those machines.

MR. STEWART: Well, first of all the only ruling that we're -- I backtrack a bit, to say, we opposed cert in this case because we recognized that there are difficult problems out there in terms of patentability of software innovations and medical diagnostic --

JUSTICE KENNEDY: You thought we -- you thought we�d mess it up.

MR. STEWART: I didn't think you would --

(Laughter.)

MR. STEWART: We didn't think the Court would mess it up. We thought that this case would provide an unsuitable vehicle for resolving the hard questions because the case doesn't involve computer software or medical diagnostic techniques, and therefore, we thought the Court would arrive at the position that I think at least some members are feeling that you have arrived at, that you will decide this case, and most of the hard questions remain unresolved. And, frankly, we think that's true.

Mr. Stewart was representing the US Patent Office/Government in the case.

Whether or not a general purpose computer programmed with a program becomes a particular machine is something we really need a ruling on, but goodness will it be a clusterfuck if the lines between 101 and 102/103 isn't clear. I know that reading anything into Justice questions in oral arguments is very unreliable but the reasoning in those kind of questions make me worry that we'll get another Bilski.

# ¿ Dec 14, 2013 04:21

Shifty Pony: Dec 28, 2004; Up ta somethin'

KernelSlanders posted:

Is there some authority on what "about" means in reference to ISO settings and f-stops, or in these super precise version of a common thing patents generally?

It is context specific and depends on what a person of ordinary skill would conclude is "about" the setting claimed in light of the specification. In this case this is in the disclosure: "In embodiments of the disclosure, terms such as "about," "approximately," and "substantially" can include traditional rounding according to significant figures of the numerical value."

Someone from the dorkroom would be better able to answer but I think f-numbers and ISO values are pretty standardized. So some hypothetical crazy lens with a setting at an f-stop of 5.6452 would be "about" 5.6, but one set at f-4 or f-8 would not be.

# ¿ May 9, 2014 14:25

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# ¿ Apr 19, 2024 07:53

Shifty Pony: Dec 28, 2004; Up ta somethin'

ayn rand hand job posted:

The entire point of ISO is to standardize things. Like ISO 3103.

I know the values are arrived at in a set way I just didn't know or feel like digging into the standard to find out if vales such as 322 or the like are allowed or it just rounded to the nearest 10.

# ¿ May 9, 2014 19:20

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