Apple wants a trial NOW

[patgolfneb]

It seems the judge is unimpressed, practically begging them to settle settle. OT but it seems like a high percentage of these patents are overturned when challenged. The granting of questionable patents and misuse by firms and patent trolls screams for reform.

[DeanGibson Distinguished Bibliophile]

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patgolfneb wrote:
... it seems like a high percentage of these patents are overturned when challenged. The granting of questionable patents and misuse by firms and patent trolls screams for reform.

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One criteria for a patent is that it "not be obvious to someone practiced in the art."  Unfortunately, most software developers are not "practiced in the art".  Most do not have a computer science degree, but are "self-taught".  The result is not only numerous bugs in poorly-written code, but repeated "reinventing the wheel", even within a company.  When a bright idea comes along, many of these developers (due to a lack of education) think their idea is "original", and try to patent it.  What patent lawyer is going to tell his/her client that his/her idea is obvious?  The US Patent Office is so overburdened by applications, that not only do many obvious ideas slip through, but so do many based on "prior art."

I remember one software product in the early 1980's that claimed its caching of data was original in the computer field.  Caching has been around since at least the early 1960's.  Oops, prior art.

Another company actually got a patent in the 1980's for using "exclusive or" (a binary operation) to invert a bit.  That use of "exclusive or" was also in electronics textbooks since the early 1960's.  Oops, prior art.

Disclosure:  I am the author of a couple of patents, and while they may be clever, they are somewhat obvious upon examination:  after all, the interval from needing the process, to a working prototype, was less than eight hours.  I didn't initiate the patent application;  the company I worked for did.  However, in this case, the patent served a useful purpose:  it allowed us to go after another company that reverse engineered the code, added comments like "We don't know why this statement is necessary, but it works", and then tried to sell the source code.  I mean, how stupid is that (that's how they were caught, by a suspicious prospective buyer)?

[keriflur]

The problem with Apple is that they KNOW when they're stealing ideas, and they're patenting them anyway.  It's just like their commercials where they take an existing idea and present it as new.  They're doing the same thing with patents.

[patgolfneb]

Dean, to a someone with limited tech knowledge like myself, it appears that the firms are trying to protect intellectual capital by patenting concepts. It seems like this has gotten out of hand. Its as if the idea of a horse less carriage had been proposed, patented and without an actual process, product or plan and every auto maker pays the patent holder because they had the idea. Since software, look and feel, and such rely on description and simple drawings rather than detailed schematics or working models the test of what is really an advance is in need of some updating. As I noted I am out of my depth, but I think average Joes like myself feel some of this stuff shouldn't be patentable.

[flyingtoastr Scribe]

To be fair, the patenting of human genes was just upheld by the US court system as well. It's not just stupid software patents that are becoming the norm these days.

Our patent system is so antiquated it isn't even funny anymore.

[deesy58]

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flyingtoastr wrote:

All software patents are crap, no matter who brings suit.

Incidentally, an interesting revelation courtesey of Apple:

Amazon talked with the Government repeatedly throughout the investigation, even hosting a two-day meeting at its Seattle headquarters. In all, the Government met with at least fourteen Amazon employees—yet not once under oath.

(source)

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Wow!  That's a petty strong statement.  On what reasoning do you base your assertion that "[a]ll software patents are crap ...," exactly?  Are you saying that patents should never be issued for any software, ever, for any reason?  How, then, do you expect software developers to protect their creative works? 

This footnote in the Apple response to the proposed settlement between the three Defendant Publishers and the DOJ should not be a surprise.  What else would Apple say?  If a lawsuit had not, yet, been filed, and no court had issued discovery orders that might include depositions that are taken under oath, why would anybody be surprised that Amazon employees were not "sworn in" for investigative interviews?  How well would our justice system work if investigators had to swear-in all witnesses during any investigations of any sort, including simple, trivial cases? 

We can imagine that the process of taking depositions has probably begun now, and any future interviews of witnesses from any side will be conducted under oath.  The investigation is over and the trial process has begun. 

[deesy58]

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DeanGibson wrote:

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patgolfneb wrote:
... it seems like a high percentage of these patents are overturned when challenged. The granting of questionable patents and misuse by firms and patent trolls screams for reform.

---

One criteria for a patent is that it "not be obvious to someone practiced in the art."  Unfortunately, most software developers are not "practiced in the art".  Most do not have a computer science degree, but are "self-taught".  The result is not only numerous bugs in poorly-written code, but repeated "reinventing the wheel", even within a company.  When a bright idea comes along, many of these developers (due to a lack of education) think their idea is "original", and try to patent it.  What patent lawyer is going to tell his/her client that his/her idea is obvious?  The US Patent Office is so overburdened by applications, that not only do many obvious ideas slip through, but so do many based on "prior art."

I remember one software product in the early 1980's that claimed its caching of data was original in the computer field.  Caching has been around since at least the early 1960's.  Oops, prior art.

Another company actually got a patent in the 1980's for using "exclusive or" (a binary operation) to invert a bit.  That use of "exclusive or" was also in electronics textbooks since the early 1960's.  Oops, prior art.

Disclosure:  I am the author of a couple of patents, and while they may be clever, they are somewhat obvious upon examination:  after all, the interval from needing the process, to a working prototype, was less than eight hours.  I didn't initiate the patent application;  the company I worked for did.  However, in this case, the patent served a useful purpose:  it allowed us to go after another company that reverse engineered the code, added comments like "We don't know why this statement is necessary, but it works", and then tried to sell the source code.  I mean, how stupid is that (that's how they were caught, by a suspicious prospective buyer)?

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Your post seems to assert that software patents are, indeed, useful.  In the cited case, it prevented blatant piracy. 

You also seem to imply that a formal education is required in order to be able to defend a software patent.  Didn't we have a discussion about credentials and qualifications just a few months ago? 

BTW, it is not the Patent Office that conducts the Patent Search.  When I applied for, and received, my patents, we paid for our Patent Attorneys to conduct the search (before the Internet was available).  See this synopsis by the University of Texas for additional details: http://www.lib.utexas.edu/engin/patent-tutorial/index.htm#why

Now, it appears that there are a number of patent databases available on-line that would allow anybody to conduct a Patent Search. 

If the Patent Office mistakenly issues a patent (such as for use of XOR, for example, then the patent can be overturned in the courts, can't it?  Isn't that patgolfneb's point? 

How did the thread topic move from the demand by Apple for their day in court before the DOJ is allowed to settle with any of the defendants, to a discussion about software patents?  Strange ...

[deesy58]

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flyingtoastr wrote:

To be fair, the patenting of human genes was just upheld by the US court system as well. It's not just stupid software patents that are becoming the norm these days.

Our patent system is so antiquated it isn't even funny anymore.

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Antiquated?  Well, I guess you were not aware of the America Invents Act of 2011 that was signed into law less than a year ago:  http://judiciary.house.gov/issues/issues_patentreformact2011.html

The link will take you directly to the House of Representatives Web site that describes the law and its effects.  For those not interested in following the link, here is a salient paragraph from the Web site:

"The Leahy-Smith America Invents Act is one of the most significant job creation bills enacted by Congress this year.  The Act implements a first-inventor-to-file standard for patent approval, creates a post-grant review system to weed out bad patents, and helps the Patent and Trademark Office (PTO) address the backlog of patent applications. The enactment of H.R. 1249 is a victory for America’s innovators and job creators who rely on our patent system to develop new products and grow their businesses. The America Invents Act brings our patent system into the 21st century, reducing frivolous litigation while creating a more efficient process for the approval of patents.  These reforms will help the innovators and job creators of today launch the products and businesses of tomorrow."

[deesy58]

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patgolfneb wrote:
Dean, to a someone with limited tech knowledge like myself, it appears that the firms are trying to protect intellectual capital by patenting concepts. It seems like this has gotten out of hand. Its as if the idea of a horse less carriage had been proposed, patented and without an actual process, product or plan and every auto maker pays the patent holder because they had the idea. Since software, look and feel, and such rely on description and simple drawings rather than detailed schematics or working models the test of what is really an advance is in need of some updating. As I noted I am out of my depth, but I think average Joes like myself feel some of this stuff shouldn't be patentable.

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When we filed a patent application for a small, microcomputerized control device, we were required to submit detailed electronic circuit diagrams, along with many pages of detailed software flowcharts showing the operation of the microprogram written into the firmware.  It isn't at all clear that the US Patent Office is simply issuing software patents willy-nilly without adequate documentation.  Some people would like to claim as much, especially players in the big leagues (Microsoft, Novell, Apple, Google, etc.), but is it really as bad as they would have you believe? 

[bobstro]

Knuth summarized his objections to software patents rather nicely with this "... When I think of the computer programs I require daily to get my ownwork done, I cannot help but realize that none of them would existtoday if software patents had been prevalent in the 1960s and 1970s.Changing the rules now will have the effect of freezing progress atessentially its current level. If present trends continue, the onlyrecourse available to the majority of America's brilliant softwaredevelopers will be to give up software or to emigrate. The U.S.A. will soon lose its dominant position."

Patent trolls have become the living embodiment of his fears.

I'm not happy about the state of software patents, but I do think there's humor in GoogMotorola going after Apple the same way Apple's gone after Samsung.