Re: [Discuss] more on software patent

[Rich Braun]

Jerry Feldman  observed:
> one of the biggest issues is not patents per se, but the fact that
> litigation can take many years ... it does
> not matter if the allegation stands or not, it is sometimes the fact
> that a company will settle even though it knows it can win.

One of the famous cases is Lotus (123) vs. Borland (Quattro Pro), fighting
over a technology that wasn't even invented by either of them (to wit,
VisiCalc).  As I understand it, a Boston-based judge intervened by stalling
the case to benefit the local company (Lotus) long enough to bleed the faraway
company (Borland) into bankruptcy.  The decision itself (supposedly in
Borland's "favor") was anticlimactic.  Neither company really won:  20 years
later, most people are users of Excel which swooped in and scooped up the
pieces.

That issue turned on a question which I haven't yet seen discussed on this
thread:  can a company protect (via copyright or patent) a software interface
(protocol)?  (Example, TCP or SCSI or XML or, more specifically, CLI
scripting/macro languages like those of Cisco or Oracle.)  I remember the US
patent office soliciting public comments on that question, and in fact sending
in my own submission, sometime in 1991.

If a company can force royalty payments or large out-of-court settlements from
protocol/command-compatible product makers, the legal system can be used to
retard innovation rather than encourage it.  To my knowledge, that's pretty
much what has happened over the years, with everything from web browsers to
TV-remote controls to database systems to online address books to the current
crop of online-video distributors from YouTube on down.

-rich


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Re: [Discuss] more on software patent

[Jerry Feldman]

On 10/04/2011 12:54 PM, Hsuan-Yeh Chang wrote:
> That's part of the litigation strategy.  If you've ever sued or get
> sued, you would know that many of the particulars are not pleaded in
> the initial complaint.  It often takes years for the court to figure
> out whether the allegation stands or not.
SCO vs. IBM was similar. During discovery, SCO kept adding things. In
SCO's scenario, the longer that litigation lasted, the more they could
try to get Linux users (especially corporate) to pay their Linux license
fee. Subsequently Novell knocked the legs out of that litigation by
waiving the Unix IP that SCO claimed it owned. This caused SCO to sue
Novell which SCO essentially lost after a couple of trials summary
judgments and 2 appeals. I think one of the biggest issues is not
patents per se, but the fact that litigation can take many years even
before the first trial. As we saw in SCO vs. IBM, SCO was able to
threaten (and sue) end users which caused Red Hat, HP, and others to
issue insurance to their customers. Note that the SCO vs. IBM case was
initially a contracts case where IBM had their Unix license issued by
AT&T way before Novel bought USL from AT&T and sold the rights to
enforce the contract to the original SCO. Once thing most of us do not
consider here is the "litigation strategy". It is the companies and
attorneys that know how to utilize the system. In many cases, it does
not matter if the allegation stands or not, it is sometimes the fact
that a company will settle even though it knows it can win.

-- 
Jerry Feldman 
Boston Linux and Unix
PGP key id:3BC1EB90 
PGP Key fingerprint: 49E2 C52A FC5A A31F 8D66  C0AF 7CEA 30FC 3BC1 EB90

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Re: [Discuss] more on software patent

[Hsuan-Yeh Chang]

On Tue, Oct 4, 2011 at 10:53 AM, Kyle Leslie  wrote:
> Ok well to give you the scope of what I am looking at, here are the public
> records for the Lawsuit
> http://ia600700.us.archive.org/22/items/gov.uscourts.wiwd.30864/gov.uscourts.wiwd.30864.docket.html
>
> and here is the claim of the patent which is numbered (the very last number)
> of this particular patent
> http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5546397.PN.&OS=PN/5546397&RS=PN/5546397
>
> 21. The high reliability access point of claim 2 further including a back-up
> power source.
>
> If you look at the court case it doesn't say anything about which parts of
> the claim they are acting on it just says they are using these exhibits .
> So perhaps its a different part.  It was not meant to be a direct example in
> this case but an example of what is possible from this case.

That's part of the litigation strategy.  If you've ever sued or get
sued, you would know that many of the particulars are not pleaded in
the initial complaint.  It often takes years for the court to figure
out whether the allegation stands or not.

> These small business' (and large ones) are being sued because they are
> providing wifi internet access.  That means airlines can be sued now right
> (and you and I if they so please)?  They provide wifi with internet access.
> Now from the looks of it, they aren't going after residential people (I
> assume because we don't profit from people connecting to our wifi).  The
> thing that confuses me is that these places generally aren't charging you
> for the use of the device but the internet that it distributes.  Along the
> lines of what everyone else is saying (and Cisco and Motorola have come to
> the defense of these companies). These people or companies should not be
> paying the bill for using a device they bought a Best Buy.  If I go out and
> buy Macrosoft Windows instead of Microsoft Windows but I don't know any
> better Microsoft should not be able to tell me that I owe them for the
> software they have patents for because I am using it.

What patent and copyright infringement suits can do is to 1) seek
monetary damage from the infringing party, and/or 2) stop the
infringing party from practicing.  These patent trolls are not really
serious about either one of them.  Patent trolls file suits because
they want to settle for less of the cost for defending a patent suit.
The courts are well aware of this litigation strategy.  I believe
there's at least one Federal appellate court opinion has addressed
this (sorry cannot think of the case name on top of my head).  I also
believe that there are rules to prevent and punish attorneys from
bringing frivolous suits.  Let's watch what the court would do to this
particular case.

> Now in relation to software patents, I have become a recent fan of Hardware
> hacking I frequent these types of sites all the time.  People are often
> times coding inputs and outputs for Arduino boards and so forth.  Now in
> essence if they were take these devices that they create and patent them
> (which they don't so that they can stay Open Source).  I can't go back and
> recreate that or do anything that the has been patented with out direct
> permission from (or payment to) the holder of the patent.  Now if Arduino
> has created a device that only accepts a particular piece of code and that
> is held in a patent, I then lose the functionality I am looking for before I
> even had a chance.

In theory, yes.  But to bar anyone from doing anything, the patent
holder would have to ask a court to issue an order.  As many BLU
members have already pointed out, patent litigation is extremely
expensive.  So, if you are not using a patented technology to the
extent worth being sued, most patent holders would simply keep silent
and wouldn't bother bring a suit.

> In some cases this may work, but I think my issue with the patents is where
> do you stop?  There are no lines that can be drawn which creates a gapping
> hole in the entire system.  In my example for the wireless AP, this person
> literally added a backup power source to the the wireless ap and that can be
> acted on as a patent infringment.  No person can make a "21. The high
> reliability access point of claim 2 further including a back-up power
> source" with out being sued.  That is a humongously broad statement because
> if you look at the "Claim 2" this high reliability source is any access
> point (from claim 1) is that is wired to a "host network".  Hey (insert
> anything here) you are currently infringing on this patent if you have a
> wireless AP with a backup power source connected to your wired network.

We look at "independent" claims first before looking at "dependent"
claims.  Dependent claims incorporate all claim limitations from all
the preceding claims upon which it depends.  In this case, claim 1 is
an INDEPENDENT claim, while claim 2 is a DEPENDE

Re: [Discuss] more on software patent

[Kyle Leslie]

Ok well to give you the scope of what I am looking at, here are the public
records for the Lawsuit
http://ia600700.us.archive.org/22/items/gov.uscourts.wiwd.30864/gov.uscourts.wiwd.30864.docket.html

and here is the claim of the patent which is numbered (the very last number)
of this particular patent
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5546397.PN.&OS=PN/5546397&RS=PN/5546397

21. The high reliability access point of claim 2 further including a back-up
power source.

If you look at the court case it doesn't say anything about which parts of
the claim they are acting on it just says they are using these exhibits .
So perhaps its a different part.  It was not meant to be a direct example in
this case but an example of what is possible from this case.

These small business' (and large ones) are being sued because they are
providing wifi internet access.  That means airlines can be sued now right
(and you and I if they so please)?  They provide wifi with internet access.
Now from the looks of it, they aren't going after residential people (I
assume because we don't profit from people connecting to our wifi).  The
thing that confuses me is that these places generally aren't charging you
for the use of the device but the internet that it distributes.  Along the
lines of what everyone else is saying (and Cisco and Motorola have come to
the defense of these companies). These people or companies should not be
paying the bill for using a device they bought a Best Buy.  If I go out and
buy Macrosoft Windows instead of Microsoft Windows but I don't know any
better Microsoft should not be able to tell me that I owe them for the
software they have patents for because I am using it.

Now in relation to software patents, I have become a recent fan of Hardware
hacking I frequent these types of sites all the time.  People are often
times coding inputs and outputs for Arduino boards and so forth.  Now in
essence if they were take these devices that they create and patent them
(which they don't so that they can stay Open Source).  I can't go back and
recreate that or do anything that the has been patented with out direct
permission from (or payment to) the holder of the patent.  Now if Arduino
has created a device that only accepts a particular piece of code and that
is held in a patent, I then lose the functionality I am looking for before I
even had a chance.

In some cases this may work, but I think my issue with the patents is where
do you stop?  There are no lines that can be drawn which creates a gapping
hole in the entire system.  In my example for the wireless AP, this person
literally added a backup power source to the the wireless ap and that can be
acted on as a patent infringment.  No person can make a "21. The high
reliability access point of claim 2 further including a back-up power
source" with out being sued.  That is a humongously broad statement because
if you look at the "Claim 2" this high reliability source is any access
point (from claim 1) is that is wired to a "host network".  Hey (insert
anything here) you are currently infringing on this patent if you have a
wireless AP with a backup power source connected to your wired network.

The worst part is this particular company isn't even the "innovator" here.
They are a company that is looking to make money simply by enforcing a
patent they acquired from Broadcom (who also wasn't the original owner).
The worst part is from the article this person is sueing as many people as
possible with low dollar amounts because it will be cheaper for them to pay
up instead of defend themselves.  That is the most disgusting part because
it shows its clearly a financial gain and absolutely zero other motive.


On Tue, Oct 4, 2011 at 9:52 AM, Hsuan-Yeh Chang  wrote:

> It is the patent CLAIM, not the abstract, that defines the scope of a
> patent's "exclusive right."  So, we should look at the claim language
> (normally numbered at the end of a patent document) to determine the
> scope.  Each and every claim limitation must be read or found on a
> device/method to infringe.
>
> HYC
>
> > Date: Tue, 4 Oct 2011 09:29:03 -0400
> > From: Kyle Leslie 
> > To: BLU 
> > Subject: Re: [Discuss] more on software patent
> > Message-ID:
> > nltqkyuv0kaq5vrw6-a4...@mail.gmail.com>
> > Content-Type: text/plain; charset=UTF-8
> >
> > While I don't have a ton of a background in this whole Patent thing, I
> have
> > been reading this thread and trying to form my own opinions and gain
> > knowledge. I decided to read the article that Matt posted and in doing so
> I
> > stumbled upon one of the patents that the company is claiming has be

Re: [Discuss] more on software patent

[Matt Shields]

On Tue, Oct 4, 2011 at 9:29 AM, Kyle Leslie  wrote:

> While I don't have a ton of a background in this whole Patent thing, I have
> been reading this thread and trying to form my own opinions and gain
> knowledge. I decided to read the article that Matt posted and in doing so I
> stumbled upon one of the patents that the company is claiming has been
> infringed on.  I found it so interesting because some things look like they
> are just thrown in there for added benefit of blocking other people.
>
> US5546397 - (Abstract)
>
> A high reliability access point for RF communications in a wireless local
> area network. The high reliability access point includes a central
> processing unit (CPU) for handling high level protocol functions and for
> interfacing with the infrastructure of the local area network. The high
> reliability access point also includes at least two wireless adapters. Each
> wireless adapter includes a radio, a media access control (MAC) processor
> for handling low level protocol functions, and at least one antenna. The
> multiple wireless adapters allow the access point to perform self
> monitoring, reduce the effects of multipath interference, reduce some
> occurrences of collisions at the access point and provide infrastructure
> backup in the event of an infrastructure failure. The access points also
> allow for wireless network infrastructure communication for connection of
> one or more remote access points to the infrastructure. *A backup power
> supply for the access point is also shown.
>
> *---
>
> The last sentence is what I found so interesting.  From everything I have
> read, if someone designed a similar item but included a backup power supply
> then they would be infringing because that is patented.
>
> To prove infringement, the patent owner must establish that the accused
> party practices all the requirements of at least one of the claims of the
> patent. (This is from wikipedia)
>
> You essentially can't have an access point with a backup power supply
> because this patent holds that.  This is my understanding of how patents
> are
> used to block other people.  Find one small thing that is similar or the
> same and say "No you can't use it or pay me money".  It literally looks as
> if someone was standing over the shoulder of the person writing the patent
> and said "Oh put that in there so you can hold the patent for it".
>
> It was always my understanding that a part of innovation was to build off
> the ideas of other people.  To take what they created and make it better.
>
> If what I am saying is totally wrong then just delete this email.. but if
> what I understand patents to be and how they work correct then how is
> anyone
> supposed to be inventive with out the penalty of cost?
>
> If a program's algorithms are able to be patented, then software is in
> trouble (from what I read it sounds like it already is). What if HTML code
> were to be patented.  You wouldn't be able to use head or title tags with
> out a fee?
>
> Please let me know if I am stating things here that are correct in theory.
>
> Thanks,
>
> Kyle  (Trying to learn about Software Patents)
>
> On Tue, Oct 4, 2011 at 2:57 AM, John Abreau  wrote:
>
> > The BLU leadership has neither the interest nor the funds to support
> this.
> >
> >
> >
> > 2011/10/3 Hsuanyeh Chang :
> > > If I have the honor, what I can offer now is to write up, in the name
> of
> > > BLU, a "request for ex parte reexamination" and get it on file in the
> > patent
> > > office in an attempt to invalidate the asserted patent(s).  But, I
> would
> > > need support from the BLU (e.g., knowledge and time to find prior art,
> > > official fees to be paid to the patent office, and other costs). Would
> > > anyone be willing to take action together?
> > >
> > > HYC on the go
> > >
> > > 在 Oct 3, 2011 9:01 PM 時，Matt Shields  寫到：
> > >
> > >> On Mon, Oct 3, 2011 at 10:57 AM, Hsuan-Yeh Chang 
> > >> wrote:
> > >> 35 U.S.C. 101 Inventions patentable.
> > >>
> > >> "Whoever invents or discovers any new and useful process, machine,
> > >> manufacture, or composition of matter, or any new and useful
> > >> improvement thereof, may obtain a patent therefor, subject to the
> > >> conditions and requirements of this title."
> > >>
> > >> Talking about this particular patent (USP 7,818,225), the claims are
> > >> directed to "a financial instrument," which does not even fall into
> > >> the four statutory patentable classes (i.e., "process," "machine,"
> > >> "manufacture," and "composition of matter").  This very patent cannot
> > >> really prove that the patent system is screwed up.  This patent only
> > >> proves that the Patent Office should train their Examiners better.
> > >> Plus, there are administrative proceedings that one can use to knock
> > >> down this patent.  The owner of this patent should better not seek
> > >> enforcement, or it would be invalidated rather easily...
> > >>
> > >> HYC
> > >> - Hide quoted text -
> > >>
> > >>

Re: [Discuss] more on software patent

[Kyle Leslie]

While I don't have a ton of a background in this whole Patent thing, I have
been reading this thread and trying to form my own opinions and gain
knowledge. I decided to read the article that Matt posted and in doing so I
stumbled upon one of the patents that the company is claiming has been
infringed on.  I found it so interesting because some things look like they
are just thrown in there for added benefit of blocking other people.

US5546397 - (Abstract)

A high reliability access point for RF communications in a wireless local
area network. The high reliability access point includes a central
processing unit (CPU) for handling high level protocol functions and for
interfacing with the infrastructure of the local area network. The high
reliability access point also includes at least two wireless adapters. Each
wireless adapter includes a radio, a media access control (MAC) processor
for handling low level protocol functions, and at least one antenna. The
multiple wireless adapters allow the access point to perform self
monitoring, reduce the effects of multipath interference, reduce some
occurrences of collisions at the access point and provide infrastructure
backup in the event of an infrastructure failure. The access points also
allow for wireless network infrastructure communication for connection of
one or more remote access points to the infrastructure. *A backup power
supply for the access point is also shown.

*---

The last sentence is what I found so interesting.  From everything I have
read, if someone designed a similar item but included a backup power supply
then they would be infringing because that is patented.

To prove infringement, the patent owner must establish that the accused
party practices all the requirements of at least one of the claims of the
patent. (This is from wikipedia)

You essentially can't have an access point with a backup power supply
because this patent holds that.  This is my understanding of how patents are
used to block other people.  Find one small thing that is similar or the
same and say "No you can't use it or pay me money".  It literally looks as
if someone was standing over the shoulder of the person writing the patent
and said "Oh put that in there so you can hold the patent for it".

It was always my understanding that a part of innovation was to build off
the ideas of other people.  To take what they created and make it better.

If what I am saying is totally wrong then just delete this email.. but if
what I understand patents to be and how they work correct then how is anyone
supposed to be inventive with out the penalty of cost?

If a program's algorithms are able to be patented, then software is in
trouble (from what I read it sounds like it already is). What if HTML code
were to be patented.  You wouldn't be able to use head or title tags with
out a fee?

Please let me know if I am stating things here that are correct in theory.

Thanks,

Kyle  (Trying to learn about Software Patents)

On Tue, Oct 4, 2011 at 2:57 AM, John Abreau  wrote:

> The BLU leadership has neither the interest nor the funds to support this.
>
>
>
> 2011/10/3 Hsuanyeh Chang :
> > If I have the honor, what I can offer now is to write up, in the name of
> > BLU, a "request for ex parte reexamination" and get it on file in the
> patent
> > office in an attempt to invalidate the asserted patent(s).  But, I would
> > need support from the BLU (e.g., knowledge and time to find prior art,
> > official fees to be paid to the patent office, and other costs). Would
> > anyone be willing to take action together?
> >
> > HYC on the go
> >
> > 在 Oct 3, 2011 9:01 PM 時，Matt Shields  寫到：
> >
> >> On Mon, Oct 3, 2011 at 10:57 AM, Hsuan-Yeh Chang 
> >> wrote:
> >> 35 U.S.C. 101 Inventions patentable.
> >>
> >> "Whoever invents or discovers any new and useful process, machine,
> >> manufacture, or composition of matter, or any new and useful
> >> improvement thereof, may obtain a patent therefor, subject to the
> >> conditions and requirements of this title."
> >>
> >> Talking about this particular patent (USP 7,818,225), the claims are
> >> directed to "a financial instrument," which does not even fall into
> >> the four statutory patentable classes (i.e., "process," "machine,"
> >> "manufacture," and "composition of matter").  This very patent cannot
> >> really prove that the patent system is screwed up.  This patent only
> >> proves that the Patent Office should train their Examiners better.
> >> Plus, there are administrative proceedings that one can use to knock
> >> down this patent.  The owner of this patent should better not seek
> >> enforcement, or it would be invalidated rather easily...
> >>
> >> HYC
> >> - Hide quoted text -
> >>
> >> On Mon, Oct 3, 2011 at 10:03 AM,  wrote:
> >> >
> >> > >> See the poster child
> >> > >> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
> >> > >>
> >> > >> If this is a valid patent; already in; how do you accommodate that?
> >> > 

Re: [Discuss] more on software patent

[John Abreau]

The BLU leadership has neither the interest nor the funds to support this.



2011/10/3 Hsuanyeh Chang :
> If I have the honor, what I can offer now is to write up, in the name of
> BLU, a "request for ex parte reexamination" and get it on file in the patent
> office in an attempt to invalidate the asserted patent(s).  But, I would
> need support from the BLU (e.g., knowledge and time to find prior art,
> official fees to be paid to the patent office, and other costs). Would
> anyone be willing to take action together?
>
> HYC on the go
>
> 在 Oct 3, 2011 9:01 PM 時，Matt Shields  寫到：
>
>> On Mon, Oct 3, 2011 at 10:57 AM, Hsuan-Yeh Chang 
>> wrote:
>> 35 U.S.C. 101 Inventions patentable.
>>
>> "Whoever invents or discovers any new and useful process, machine,
>> manufacture, or composition of matter, or any new and useful
>> improvement thereof, may obtain a patent therefor, subject to the
>> conditions and requirements of this title."
>>
>> Talking about this particular patent (USP 7,818,225), the claims are
>> directed to "a financial instrument," which does not even fall into
>> the four statutory patentable classes (i.e., "process," "machine,"
>> "manufacture," and "composition of matter").  This very patent cannot
>> really prove that the patent system is screwed up.  This patent only
>> proves that the Patent Office should train their Examiners better.
>> Plus, there are administrative proceedings that one can use to knock
>> down this patent.  The owner of this patent should better not seek
>> enforcement, or it would be invalidated rather easily...
>>
>> HYC
>> - Hide quoted text -
>>
>> On Mon, Oct 3, 2011 at 10:03 AM,  wrote:
>> >
>> > >> See the poster child
>> > >> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
>> > >>
>> > >> If this is a valid patent; already in; how do you accommodate that?
>> > >
>> > >
>> > > If I were the Examiner, I would reject the claims and have the
>> > > applicant
>> > > appeal my decision.  With this particular case, I would blame the
>> > > Examiner
>> > > for passing this application to issuance.
>> > >
>> > And that's the problem. You assume the patent examiner has the real
>> > ability to reject this patent. He or she does not. The patent examiner
>> > must have a defensible reason to reject a patent, it can not be
>> > arbitrary.
>> > There are limited tools with which they can reject a patent application.
>> >
>> > With Bilski, its a little easier, but it is still hard. The weight is on
>> > the examiner to prove it can't be patented, the patent application is
>> > assumed to be patentable otherwise. This is why absurd patents get
>> > approved.
>> >
>> > The patent system has been destroyed by IP lawyers and it is broken.
>> >
>> ___
>> Discuss mailing list
>> Discuss@blu.org
>> http://lists.blu.org/mailman/listinfo/discuss
>>
>> Hsuan-Yeh,
>> This is exactly the kind of ridiculous stupidity that IP and patent
>> lawyers do to waste people's time and money.  Again, I'll repeat my
>> recommendation to you, if you are serious about helping the OSS community or
>> the industry in general, donate your time to defend against these trolls.
>>
>>
>> http://yro.slashdot.org/story/11/10/03/2236255/Patent-Troll-Says-Anyone-Using-Wi-Fi-Infringes?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Slashdot%2Fslashdot+%28Slashdot%29
>>
>>
>> Matthew Shields
>> Owner
>> BeanTown Host - Web Hosting, Domain Names, Dedicated Servers, Colocation,
>> Managed Services
>> www.beantownhost.com
>> www.sysadminvalley.com
>> www.jeeprally.com
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>>
>>
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>



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Re: [Discuss] more on software patent

[Derek Martin]

Hsuan-yeh,

On Mon, Oct 03, 2011 at 09:56:36PM -0400, Hsuanyeh Chang wrote:
> If I have the honor, what I can offer now is to write up, in the
> name of BLU, a "request for ex parte reexamination" and get it on
> file in the patent office in an attempt to invalidate the asserted
> patent(s).  But, I would need support from the BLU (e.g., knowledge
> and time to find prior art, official fees to be paid to the patent
> office, and other costs). Would anyone be willing to take action
> together?

My reading of the material posted on this patent was that it was
rejected, I thought.  But even if it's not, I think you're really
missing the point.  

I argued with a friend of mine about this several years ago...  You
may or may not appreciate the analogy I used with him (he didn't,
though I did eventually win him over to my opinion anyway).  A
computer is a machine, like a player piano.  It is made up of millions
of tiny switches, not unlike the keys of the piano, either off or on
(at rest or depressed), except much smaller, and lots more of them.
Software is like a document that describes the state of all the
switches of the computer, which gets fed through it, like the cards
that feed the player piano.  Do you think a particular card describing
some particular song should be patentable?  I'm sure that sounds
ridiculous, but it's not really that different with computers: When
you write software, you're only telling the computer to do something
it was already designed to do!!!  The only difference is that the
computer is a general purpose machine that was designed to be able to
input, process and display information in a generalized way.  The
magic was already invented... it's the computer itself.  Whatever else
you do with it is just the card that tells your player piano what to
play. By and large, with rare exception, there's nothing inventive
about it.  And even when there is, you're essentially trying to patent
a peice of math or logic, which we all know the patent system doesn't
allow.  Unless it's software, that is.  As with most analogies, my
player piano analogy is not without flaws, but I think it's fair
enough to illustrate the point.  

Your solution to this problem is for us all to patent our own
"inventions" -- and right there in quotes is the problem.  None of
this stuff is inventive at all, for the most part, so we don't know
what to patent.  Choosing what to patent is very important, given our
extremely limited budget.  And the megacorps already have hundreds of
thousands of patents, so chances are they already have one filed that
covers what we're imagining.  The expense is great, and the value of
our contribution is minimal, if anything.  There's strong
disincentive.  As you can see from the attitudes here, we already feel
that the cards are stacked strongly against us, so there's a sense of
futility.  Microsoft and others have already proved their willingness
to engage in (or at least support financially) long, drawn-out legal
battles against anything that benefits either open-source software or
any sort of little guy who won't play ball with them.  If some
organization did arise for the purpose of collecting a patent
portfolio to use for cross-licensing purposes, or even just to
file them for prior art, I fully expect that they would be litigated
into oblivion by those megacorps, who would, in all likelihood, become
the owners of whatever patent rights the organization managed to
accumulate, since that would be the only thing of value left once
the money ran out.  That's the worst possible outcome.

-- 
Derek D. Martinhttp://www.pizzashack.org/   GPG Key ID: 0xDFBEAD02
-=-=-=-=-
This message is posted from an invalid address.  Replying to it will result in
undeliverable mail due to spam prevention.  Sorry for the inconvenience.

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Re: [Discuss] more on software patent

[Hsuanyeh Chang]

If I have the honor, what I can offer now is to write up, in the name  
of BLU, a "request for ex parte reexamination" and get it on file in  
the patent office in an attempt to invalidate the asserted patent(s).   
But, I would need support from the BLU (e.g., knowledge and time to  
find prior art, official fees to be paid to the patent office, and  
other costs). Would anyone be willing to take action together?


HYC on the go

在 Oct 3, 2011 9:01 PM 時，Matt Shields  寫到：

On Mon, Oct 3, 2011 at 10:57 AM, Hsuan-Yeh Chang  
 wrote:

35 U.S.C. 101 Inventions patentable.

"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."

Talking about this particular patent (USP 7,818,225), the claims are
directed to "a financial instrument," which does not even fall into
the four statutory patentable classes (i.e., "process," "machine,"
"manufacture," and "composition of matter").  This very patent cannot
really prove that the patent system is screwed up.  This patent only
proves that the Patent Office should train their Examiners better.
Plus, there are administrative proceedings that one can use to knock
down this patent.  The owner of this patent should better not seek
enforcement, or it would be invalidated rather easily...

HYC
- Hide quoted text -

On Mon, Oct 3, 2011 at 10:03 AM,  wrote:
>
> >> See the poster child
> >> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
> >>
> >> If this is a valid patent; already in; how do you accommodate  
that?

> >
> >
> > If I were the Examiner, I would reject the claims and have the  
applicant
> > appeal my decision.  With this particular case, I would blame  
the Examiner

> > for passing this application to issuance.
> >
> And that's the problem. You assume the patent examiner has the real
> ability to reject this patent. He or she does not. The patent  
examiner
> must have a defensible reason to reject a patent, it can not be  
arbitrary.
> There are limited tools with which they can reject a patent  
application.

>
> With Bilski, its a little easier, but it is still hard. The weight  
is on
> the examiner to prove it can't be patented, the patent application  
is

> assumed to be patentable otherwise. This is why absurd patents get
> approved.
>
> The patent system has been destroyed by IP lawyers and it is broken.
>
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Hsuan-Yeh,
This is exactly the kind of ridiculous stupidity that IP and patent  
lawyers do to waste people's time and money.  Again, I'll repeat my  
recommendation to you, if you are serious about helping the OSS  
community or the industry in general, donate your time to defend  
against these trolls.


http://yro.slashdot.org/story/11/10/03/2236255/Patent-Troll-Says-Anyone-Using-Wi-Fi-Infringes?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Slashdot%2Fslashdot+%28Slashdot%29


Matthew Shields
Owner
BeanTown Host - Web Hosting, Domain Names, Dedicated Servers,  
Colocation, Managed Services

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www.sysadminvalley.com
www.jeeprally.com
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Re: [Discuss] more on software patent

[MBR]

On 10/2/2011 9:10 PM, Tom Metro wrote:

The NPR piece cited above makes the point that current patents fail at
the objective of disclosure because they are intentionally worded to
obscure the invention as much as possible while also being as broad as
possible. (This is the difference between a "professionally" written
patent and an inventor's self-written patent.)

Anyone here tried building or coding something based on the description
in a patent?

Occasionally you'll see one that is straight forward, but clearly if the
objective was disclosure, the norms for patent language wouldn't be what
they are.
If you've seen Stallman's talk or watched the video, he makes this point 
in an unforgettable fashion!  He makes a joke about being heckled by 
"Heckle".  His talk is transcribed into print at 
http://www.gnu.org/doc/fsfs-ii-2.pdf.  The following is from p. 146:


   Well, you can't find all the patents by searching, but you can find
   a lot of them. And then you've got to figure out what they mean,
   which is hard, because patents are written in tortuous legal
   language which is very hard to understand the real meaning of. So
   you're going to have to spend a lot of time talking with an
   expensive lawyer explaining what you want to do in order to find out
   from the lawyer whether you're allowed to do it.

   Even the patent holders often can't recognize just what their
   patents mean.  For instance, there's somebody named Paul Heckel who
   released a program for displaying a lot of data on a small screen,
   and based on a couple of the ideas in that program he got a couple
   of patents.

   I once tried to find a simple way to describe what claim 1 of one of
   those patents covered. I found that I couldn't find any simpler way
   of saying it than what was in the patent itself; and that sentence,
   I couldn't manage to keep it all in my mind at once, no matter how
   hard I tried.

   And Heckel couldn't follow it either, because when he saw HyperCard,
   all he noticed was it was nothing like his program. It didn't occur
   to him that the way his patent was written it might prohibit
   HyperCard; but his lawyer had that idea, so he threatened Apple. And
   then he threatened Apple's customers, and eventually Apple made a
   settlement with him which is secret, so we don't know who really
   won. And this is just an illustration of how hard it is for anybody
   to understand what a patent does or doesn't prohibit.

   In fact, I once gave this speech and Heckel was in the audience. And
   at this point he jumped up and said, "That's not true, I just didn't
   know the scope of my protection." And I said, "Yeah, that's what I
   said," at which point he sat down and that was the end of my
   experience being heckled by Heckel. If I had said no, he probably
   would have found a way to argue with me.

   Mark Rosenthal
   m...@arlsoft.com 


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Re: [Discuss] more on software patent

[Matt Shields]

On Mon, Oct 3, 2011 at 10:57 AM, Hsuan-Yeh Chang  wrote:

> 35 U.S.C. 101 Inventions patentable.
>
> "Whoever invents or discovers any new and useful process, machine,
> manufacture, or composition of matter, or any new and useful
> improvement thereof, may obtain a patent therefor, subject to the
> conditions and requirements of this title."
>
> Talking about this particular patent (USP 7,818,225), the claims are
> directed to "a financial instrument," which does not even fall into
> the four statutory patentable classes (i.e., "process," "machine,"
> "manufacture," and "composition of matter").  This very patent cannot
> really prove that the patent system is screwed up.  This patent only
> proves that the Patent Office should train their Examiners better.
> Plus, there are administrative proceedings that one can use to knock
> down this patent.  The owner of this patent should better not seek
> enforcement, or it would be invalidated rather easily...
>
> HYC
> - Hide quoted text -
>
> On Mon, Oct 3, 2011 at 10:03 AM,  wrote:
> >
> > >> See the poster child
> > >> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
> > >>
> > >> If this is a valid patent; already in; how do you accommodate that?
> > >
> > >
> > > If I were the Examiner, I would reject the claims and have the
> applicant
> > > appeal my decision.  With this particular case, I would blame the
> Examiner
> > > for passing this application to issuance.
> > >
> > And that's the problem. You assume the patent examiner has the real
> > ability to reject this patent. He or she does not. The patent examiner
> > must have a defensible reason to reject a patent, it can not be
> arbitrary.
> > There are limited tools with which they can reject a patent application.
> >
> > With Bilski, its a little easier, but it is still hard. The weight is on
> > the examiner to prove it can't be patented, the patent application is
> > assumed to be patentable otherwise. This is why absurd patents get
> > approved.
> >
> > The patent system has been destroyed by IP lawyers and it is broken.
> >
> ___
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> Discuss@blu.org
> http://lists.blu.org/mailman/listinfo/discuss
>

Hsuan-Yeh,
This is exactly the kind of ridiculous stupidity that IP and patent lawyers
do to waste people's time and money.  Again, I'll repeat my recommendation
to you, if you are serious about helping the OSS community or the industry
in general, donate your time to defend against these trolls.

http://yro.slashdot.org/story/11/10/03/2236255/Patent-Troll-Says-Anyone-Using-Wi-Fi-Infringes?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Slashdot%2Fslashdot+%28Slashdot%29


Matthew Shields
Owner
BeanTown Host - Web Hosting, Domain Names, Dedicated Servers, Colocation,
Managed Services
www.beantownhost.com
www.sysadminvalley.com
www.jeeprally.com
Like us on Facebook 
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Re: [Discuss] more on software patent

[markw]

> The current patent system has a measurable negative impact on my
> business as a contract developer of software solutions. More often I'm
> seeing clients seeking to put patent indemnification clauses into their
> contracts. If such a clause is present, there is no action my business
> can take to avoid liability. With a copyright violation, you are fully
> aware that you are copying someone else's work, and this can be easily
> avoided (and management can use tools to insure employees aren't
> infringing). But with patents it is an impossible task. Even if you took
> the impractical step of performing patent research on every line of code
> you produce, that code is generally kept proprietary, and not patented,
> and thus could be in violation of a patent published in the future, and
> you'd have no prior art as defense.
>
> The only recourse is to modify the contract, when possible, to make
> liability conditional on *knowingly* violating a third party's IP, or
> buying insurance.

There is no way to insure yourself. If you wrote something for google and
oracle sues because of what you wrote, you'd reach the insurance limit
pretty quickly.

I have had to walk away from jobs because of this. The problem with
software contracts is that the people who do the "hiring" always say the
same thing "Its just a standard contract." I always counter that there
is no such thing. If there is a clause in the contract, it is there for a
reason, and that reason isn't designed to be in your best interest.

You have to negotiate the contract and don't just sign as presented. I
have had pretty good success getting clauses attached to contracts.
Remember, most of the time you are not dealing directly with their
lawyers, so if you read up, its possible you'll be more knowledgeable than
the person you are dealing with.  Two things are a must: I have a standard
page of my "intellectual property" in which I define technology that I
have prior to the contract which can not be claimed by the company. (We
have all seen the over-reaching "what's yours is mine" contracts.) And
second, I make sure that I have a clause that disclaims any indemnity, but
states that I will not knowingly infringe.

If I can't get those two things, I walk away. It isn't worth the risks. My
feeling is that if they won't be reasonable, I can't depend on them being
reasonable.


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Re: [Discuss] more on software patent

[Hsuan-Yeh Chang]

35 U.S.C. 101 Inventions patentable.

"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."

Talking about this particular patent (USP 7,818,225), the claims are
directed to "a financial instrument," which does not even fall into
the four statutory patentable classes (i.e., "process," "machine,"
"manufacture," and "composition of matter").  This very patent cannot
really prove that the patent system is screwed up.  This patent only
proves that the Patent Office should train their Examiners better.
Plus, there are administrative proceedings that one can use to knock
down this patent.  The owner of this patent should better not seek
enforcement, or it would be invalidated rather easily...

HYC
- Hide quoted text -

On Mon, Oct 3, 2011 at 10:03 AM,  wrote:
>
> >> See the poster child
> >> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
> >>
> >> If this is a valid patent; already in; how do you accommodate that?
> >
> >
> > If I were the Examiner, I would reject the claims and have the applicant
> > appeal my decision.  With this particular case, I would blame the Examiner
> > for passing this application to issuance.
> >
> And that's the problem. You assume the patent examiner has the real
> ability to reject this patent. He or she does not. The patent examiner
> must have a defensible reason to reject a patent, it can not be arbitrary.
> There are limited tools with which they can reject a patent application.
>
> With Bilski, its a little easier, but it is still hard. The weight is on
> the examiner to prove it can't be patented, the patent application is
> assumed to be patentable otherwise. This is why absurd patents get
> approved.
>
> The patent system has been destroyed by IP lawyers and it is broken.
>
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Re: [Discuss] more on software patent

[markw]

>> See the poster child
>> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
>>
>> If this is a valid patent; already in; how do you accommodate that?
>
>
> If I were the Examiner, I would reject the claims and have the applicant
> appeal my decision.  With this particular case, I would blame the Examiner
> for passing this application to issuance.
>
And that's the problem. You assume the patent examiner has the real
ability to reject this patent. He or she does not. The patent examiner
must have a defensible reason to reject a patent, it can not be arbitrary.
There are limited tools with which they can reject a patent application.

With Bilski, its a little easier, but it is still hard. The weight is on
the examiner to prove it can't be patented, the patent application is
assumed to be patentable otherwise. This is why absurd patents get
approved.

The patent system has been destroyed by IP lawyers and it is broken.

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Re: [Discuss] more on software patent

[Hsuan-Yeh Chang]

> See the poster child
> http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html
>
> If this is a valid patent; already in; how do you accommodate that?


If I were the Examiner, I would reject the claims and have the applicant
appeal my decision.  With this particular case, I would blame the Examiner
for passing this application to issuance.

HYC
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Re: [Discuss] more on software patent

[Jerry Feldman]

On 10/02/2011 09:10 PM, Tom Metro wrote:
> Glad to see the spirited discussion on software patents.
>
> If you want to listen to a decent investigative report on how the patent
> system in general (not specific to software patents) is broken, and
> learn more about how troll companies operate, check out:
>
> "When Patents Attack!"
> http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack
>
> Also:
>
> "The Very Basis Of Our Patent System... Is A Myth"
> http://www.techdirt.com/articles/20110725/03174515229/very-basis-our-patent-system-is-myth.shtml
>
> The above article comments on this paper:
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610
>
> and pulls this key quote from it:
>
>   The theory of patent law is based on the idea that a lone genius can
>   solve problems that stump the experts, and that the lone genius will
>   do so only if properly incented. But the canonical story of the lone
>   genius inventor is largely a myth. Surveys of hundreds of significant
>   new technologies show that almost all of them are invented
>   simultaneously or nearly simultaneously by two or more teams working
>   independently of each other. Invention appears in significant part to
>   be a social, not an individual, phenomenon. The result is a real
>   problem for classic theories of patent law. Our dominant theory of
>   patent law doesn't seem to explain the way we actually implement that
>   law.
>
One interesting patent fight is the telephone. But there was a very
nasty fight because Western Union tried to patent the telephone and
nearly got the patent. Another issue on patents that is not Linux
related is patent medicines. Many medicines we use (such as Lipitor) are
patented and as a result we pay a premium for that drug. The drug
companies argue that the patent system provides them with a competitive
advantage so they have the funds to do research on new drugs.

-- 
Jerry Feldman 
Boston Linux and Unix
PGP key id:3BC1EB90 
PGP Key fingerprint: 49E2 C52A FC5A A31F 8D66  C0AF 7CEA 30FC 3BC1 EB90

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Re: [Discuss] more on software patent

[Greg Rundlett (freephile)]

I call BS on the whole idea of prior art.

It's everywhere and patents are issued that defy the rules.

There is no art in the system.

Ask a real patent attorney what he thinks.

See the poster child
http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html

If this is a valid patent; already in; how do you accommodate that?



Greg Rundlett
my public PGP 
key


On Sun, Oct 2, 2011 at 9:10 PM, Tom Metro  wrote:

> Glad to see the spirited discussion on software patents.
>
> If you want to listen to a decent investigative report on how the patent
> system in general (not specific to software patents) is broken, and
> learn more about how troll companies operate, check out:
>
> "When Patents Attack!"
>
> http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack
>
> Also:
>
> "The Very Basis Of Our Patent System... Is A Myth"
>
> http://www.techdirt.com/articles/20110725/03174515229/very-basis-our-patent-system-is-myth.shtml
>
> The above article comments on this paper:
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610
>
> and pulls this key quote from it:
>
>  The theory of patent law is based on the idea that a lone genius can
>  solve problems that stump the experts, and that the lone genius will
>  do so only if properly incented. But the canonical story of the lone
>  genius inventor is largely a myth. Surveys of hundreds of significant
>  new technologies show that almost all of them are invented
>  simultaneously or nearly simultaneously by two or more teams working
>  independently of each other. Invention appears in significant part to
>  be a social, not an individual, phenomenon. The result is a real
>  problem for classic theories of patent law. Our dominant theory of
>  patent law doesn't seem to explain the way we actually implement that
>  law.
>
>
> In regards to the RMS talk, even if you don't buy his case for the
> abolition of software patents, most of his reasoning applies equally
> well to making a case that any purely software invention should be
> granted a substantially shorter protection period, simply because
> software invention is comparatively easier. (One could pretty easily
> expand on that line of thinking. For example, no need to make massive
> capital investments in factories, etc. to produce a software product.)
> 17 to 20 years of protection is laughable. 3 years would be more like
> it, though if that's from time-of-filing, and our approval process
> doesn't get streamlined, it would need to be more like 5 years.
>
>
> The current patent system has a measurable negative impact on my
> business as a contract developer of software solutions. More often I'm
> seeing clients seeking to put patent indemnification clauses into their
> contracts. If such a clause is present, there is no action my business
> can take to avoid liability. With a copyright violation, you are fully
> aware that you are copying someone else's work, and this can be easily
> avoided (and management can use tools to insure employees aren't
> infringing). But with patents it is an impossible task. Even if you took
> the impractical step of performing patent research on every line of code
> you produce, that code is generally kept proprietary, and not patented,
> and thus could be in violation of a patent published in the future, and
> you'd have no prior art as defense.
>
> The only recourse is to modify the contract, when possible, to make
> liability conditional on *knowingly* violating a third party's IP, or
> buying insurance.
>
>
> Hsuan-Yeh Chang wrote:
> > By filing a patent application and getting it published, your
> > Examiner friend would have citations to reject late comer's claims.
>
> As others have pointed out, prior art can come from just about anywhere,
> and doesn't need to be another patent.
>
>
> > Should the open source community started to file patent applications
> > in the few decades, there would have sufficient number of references
> > to knock out those what you called "obvious" patents.
>
> Your premise seems to imply that merely having a concept contained
> within a patent application will make it easy to find by the examiners.
> While having the information in the PTO's database should help, it
> should be obvious to anyone who has done patent research that it can
> still be very challenging to find prior art. Patents are classified into
> broad categories, and with software being abstract concepts, what
> categories are used and how a concept is described could vary tremendously.
>
>
> > Examiner's would not even bother looking at your applications, if you
> > expressly abandon them AFTER publication at the 18th month.
>
> Wile apparently typical that they don't make their decision sooner than
> 18 months, in theory aren't they supposed to start looking at them
> before then?
>
>
> > The patent office has already received tens of thousands patent
> > applications for

Re: [Discuss] more on software patent

[Tom Metro]

Glad to see the spirited discussion on software patents.

If you want to listen to a decent investigative report on how the patent
system in general (not specific to software patents) is broken, and
learn more about how troll companies operate, check out:

"When Patents Attack!"
http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

Also:

"The Very Basis Of Our Patent System... Is A Myth"
http://www.techdirt.com/articles/20110725/03174515229/very-basis-our-patent-system-is-myth.shtml

The above article comments on this paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610

and pulls this key quote from it:

  The theory of patent law is based on the idea that a lone genius can
  solve problems that stump the experts, and that the lone genius will
  do so only if properly incented. But the canonical story of the lone
  genius inventor is largely a myth. Surveys of hundreds of significant
  new technologies show that almost all of them are invented
  simultaneously or nearly simultaneously by two or more teams working
  independently of each other. Invention appears in significant part to
  be a social, not an individual, phenomenon. The result is a real
  problem for classic theories of patent law. Our dominant theory of
  patent law doesn't seem to explain the way we actually implement that
  law.


In regards to the RMS talk, even if you don't buy his case for the
abolition of software patents, most of his reasoning applies equally
well to making a case that any purely software invention should be
granted a substantially shorter protection period, simply because
software invention is comparatively easier. (One could pretty easily
expand on that line of thinking. For example, no need to make massive
capital investments in factories, etc. to produce a software product.)
17 to 20 years of protection is laughable. 3 years would be more like
it, though if that's from time-of-filing, and our approval process
doesn't get streamlined, it would need to be more like 5 years.


The current patent system has a measurable negative impact on my
business as a contract developer of software solutions. More often I'm
seeing clients seeking to put patent indemnification clauses into their
contracts. If such a clause is present, there is no action my business
can take to avoid liability. With a copyright violation, you are fully
aware that you are copying someone else's work, and this can be easily
avoided (and management can use tools to insure employees aren't
infringing). But with patents it is an impossible task. Even if you took
the impractical step of performing patent research on every line of code
you produce, that code is generally kept proprietary, and not patented,
and thus could be in violation of a patent published in the future, and
you'd have no prior art as defense.

The only recourse is to modify the contract, when possible, to make
liability conditional on *knowingly* violating a third party's IP, or
buying insurance.


Hsuan-Yeh Chang wrote:
> By filing a patent application and getting it published, your
> Examiner friend would have citations to reject late comer's claims.

As others have pointed out, prior art can come from just about anywhere,
and doesn't need to be another patent.


> Should the open source community started to file patent applications
> in the few decades, there would have sufficient number of references
> to knock out those what you called "obvious" patents. 

Your premise seems to imply that merely having a concept contained
within a patent application will make it easy to find by the examiners.
While having the information in the PTO's database should help, it
should be obvious to anyone who has done patent research that it can
still be very challenging to find prior art. Patents are classified into
broad categories, and with software being abstract concepts, what
categories are used and how a concept is described could vary tremendously.


> Examiner's would not even bother looking at your applications, if you 
> expressly abandon them AFTER publication at the 18th month. 

Wile apparently typical that they don't make their decision sooner than
18 months, in theory aren't they supposed to start looking at them
before then?


> The patent office has already received tens of thousands patent 
> applications for ridiculous inventions.  I believe that they wouldn't
> mind to take hundreds or thousands more from the open source
> community.

Flooding the PTO with applications that are never intended to be pursued
seems like a poor solution.

As was mentioned earlier in the thread, the open source community could
set up their own database. Even if this couldn't be funded by some large
sponsor (like IBM, for example), the "filing" fee would likely be less.
And the application could be designed better for electronic
cross-referencing of concepts, with the ability to let others tag and
link related art, and comment on the originality.

Eventually you c