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Comment Re:Defending software patents (Score 1) 92

A detailed description of a process in a textbook is also enough for any skilled programmer. For Alice and Bilski you can find the steps to perform the process in any finance book. Pseudocode and flow charts don't teach anything when the process is well known. Chances are finance books have charts in them as well.

Sure, and completely stipulated. The "do something well known and described in finance books" and "on a computer" stuff shouldn't be patentable... Rather, it's new processes (that are nonetheless, done on a computer):

If your talking about a brand new process then your not talking about a software patent. Your patenting a new business method.

What if it was a brand new process or business method, never been done before, on a computer. Like, say, calculating the value of some strange multidimensional factorial required to teleport yourself twenty feet to the left and six hours into the future? Certainly new, but let's assume it can be done with a TI-83. Should that be patentable?

Comment Re:Defending software patents (Score 1) 92

Patents don't disclose source code. So they don't teach a programmer how to "put the bits of plastic together".

Pseudocode and detailed* flow charts should be enough for any skilled programmer. You shouldn't need C+ code - and if you do, what happens in 5 years when you say "I don't know C+, I only know Swift" or whatever the next language is? Conversely, what about art from the 60s or 70s - if it had COBOL code would you know how to use that? No, pseudocode and detailed* flow charts should be enough of a disclosure, because from them, you can implement the program in any language.

*Many patent applications do not have detailed flow charts, but rather "flow charts" that just show a single series of steps in a line, as Prof. Lemley noted in one of the interviews linked from another comment. You're right - those are total crap and don't teach anyone anything.

Comment Re:Patent Attorney chiming in (Score 1) 92

Patent examiners can do their thing. Alice gives them a tool now too.

Yes, and no... Patent Examiners are bound under the requirements of due process to present a prima facie case for why an application is not patentable, as the initial burden rests on the Office. How do you provide a prima facie case that an idea is abstract? It's a conclusion, not an argument supported by evidence, as the Courts have admitted when their evidence is "I know it when I see it".

How do you define "actually inventive"?

Here are the questions I ask when contemplating patent filings, post-Alice, for a software method (or computer implemented method):
* Can I reasonably determine the bits and pieces you put together a specific solution to a specific problem based on your claims? should avoid a 101 issue.
* Do the claims give me all of the pieces of the puzzle or does it give me a flowchart?
* And, to entirely avoid an Alice question, are you using generic bits of technology for their ordinary purpose to solve an old problem the old way?

"Good" answers to these questions should avoid a 101 issue.

Quite possibly, though it fails to answer my question about your definition of "actually inventive". It also points to part of the problem with Alice, since your first question is really about 112 written description, your second question is really about 112 enablement and unclaimed essential matter, and your third question (as you note) is really about 103 obviousness. Now, I agree, that if you meet 103 and 112, Justice Thomas would likely not "know an [abstract idea] when he sees it" and find the application invalid under 101, and maybe that's a fine answer from a pragmatic standpoint, but it's a terrible one from a jurisprudence standpoint.

Comment Re:Patent Attorney chiming in (Score 1) 92

Section 101: 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.

The supreme court has over the last century defined what the words in that statement mean. The word "abstract" is just shorthand for "not a process, machine, manufacture, or composition of matter or new and usefull improvement thereof" The supreme court has a very narrow and limited definition of "process" for this statute.

Which is a shame, because Congress has already defined it in Section 100:

The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

So, for example, a new use of a known machine - like, say, a new business method performed on a known computer - would fall under that statutory definition.

Comment Re:Patent Attorney chiming in (Score 3, Interesting) 92

I think this procedural aspect is critically important. Patent litigation is incredibly expensive. Defendants generally expect to spend >4 million dollars to defend against allegations of infringement. Post-Alice, judges have been ruling on the issues very early in litigation and cutting of those costs and timelines. As Theaeteus mentions, the problem with this approach is that it is generally done without full development of evidence. As a policy-matter, it remains unclear which approach is better (we don't know how good judges are at making the 101 determination (knowing it when they see it)).

They've been great in the two major 101 cases, Bilski and Alice. Hardly anyone thought those claims were (or should have been) valid, as the methods were old and well known... But that's also like going back to the old obscenity cases and having your "test case" be Two Girls, One Cup. The old saying "bad facts make bad law" is true primarily because everyone agrees with the outcome based on those bad facts... but then it's used as precedent in cases where the facts aren't nearly so bad.

As an aside, patents have a historic tie to property law, hence things like permanent injunctions and willful infringement damages... but maybe that's not such a good thing, as they're primarily economic instruments. It leads naturally to equity-based judgements rather than concrete tests and rules... people would be outraged if judges were routinely invalidating contracts as a matter of law on a "I know it when I see it" justification.
If we did away with the property tie and abandoned permanent injunctions and what are effectively punitive damages, in exchange for compulsory licensing and reasonable royalties, a lot of the issues people have with trolls would go away, too.

Comment Re:Patent Attorney chiming in (Score 1) 92

of which I've to actually see an example

Let me quickly respond to that point too. One recent victim (at least at the lower courts) was this patent: http://www.google.com/patents/.... The district court found the claims to upselling to an online buyer invalid under the Alice case. http://www.law360.com/articles...

Technically, one could easily argue that the District Court found the claims to be invalid under 35 USC 103 over an electronic device in view of Official Notice that "suggesting an additional good or service... based on certain information obtained about the customer and the initial purchase" is known in the art because "shrewd sales representatives have long made their living off of this basic practice" and it therefore is "purely conventional steps that are well-understood, routine, and previously known to the industry". Certainly, nothing in the decision points to it being abstract - rather, the judge repeatedly states that it is known.

In fact, one could argue that if something is routinely done, it's not abstract at all. It's just not new.

Comment Re:Patent Attorney chiming in (Score 1) 92

Those patents - of which I've to actually see an example - would already be invalid under 103:

I so hate this argument. Sure, they could be. The road to a 103 invalidity is an expensive and often arduous task that is often left to a jury. What's more, its met with a high burden and a presumption of validity.

... at trial, yes. Not at the USPTO or before the PTAB.

The Federal Circuit and patent lawyers have done a marvelous job making invalidity under 102/103 all but impossible except in the most extraordinary cases.

And in KSR, SCOTUS pushed that way back. Now it's actually quite easy, unless the claims recite an element that you just can't find a reference for, anywhere.

The point is: they shouldn't have been patent eligible in the first place. You can't take something done previously, stick it on a platform that's used for it's conventional purpose and suddenly you're in patent-eligibility land.

That'd be an easy 103 rejection: you can prove it's been "done previously," right? You can prove that the platform existed previously, right? Where's the problem?

Now the burden, under 101, is for the inventor to show that which they did was actually inventive.

Good patents shouldn't have this issue. 101 should be a very, very low hurdle.

How do you define "actually inventive"? Currently, we have the 102/103 tests of novelty and nonobviousness, but if you're saying we shouldn't use those tests and should just determine, under 101, whether something is "actually inventive", what's the test? As Judge Wu said, "I know it when I see it"?

Comment What's your suggestion for intelligence work? (Score 1) 504

I presume you wouldn't say it was "wrong" of the United States to crack the German and Japanese codes in WWII...

...so when US adversaries (and lets just caveat this by saying people YOU, personally, agree are legitimate US adversaries) don't use their own "codes", but instead share the same systems, networks, services, devices, cloud providers, operating systems, encryption schemes, and so on, that Americans and much of the rest of the world uses, would you suggest that they should be off limits?

This isn't so much a law enforcement question as a question of how to do SIGINT in the modern digital world, but given the above, and given that intelligence requires secrecy in order to be effective, how would you suggest the United States go after legitimate targets? Or should we not be able to, because that power "might" be able to be abused -- as can any/all government powers, by definition?

This simplistic view that the only purpose of the government in a free and democratic society must be to somehow subjugate, spy on, and violate the rights of its citizens is insane, while actual totalitarian and non-free states, to say nothing of myriad terrorist and other groups, press their advantage. And why wouldn't they? The US and its ever-imperfect system of law is not the great villain in the world.

Take a step back and get some perspective. And this is not a rhetorical question: if someone can tell me their solution for how we should be able to target technologies that are fundamentally shared with innocent Americans and foreigners everywhere while still keeping such sources, methods, capabilities, and techniques secret, I'm all ears. And if you believe the second a technology is shared it should become magically off-limits because power might be abused, you are insane -- or, more to the point, you believe you have some moral high ground which, ironically, would actually result in severe disadvantages for the system of free society you would claim to support.

Comment Re:Patent Attorney chiming in (Score 2) 92

Among other things, the worst offenders were patents that issued between 1996 and 2006 where there is a huge number of "do such and such old thing on a [computer | web | network| mobile device]" as if the "such and such old thing" was suddenly now a patentable thing by virtue of a new platform. Alice will largely undo those patents.

Those patents - of which I've to actually see an example - would already be invalid under 103: [known method]+[known computer/network/device]=obvious combination of two prior art elements that, between them, teach or suggest each and every element in the claim.

Sure, they're also invalid under Alice's interpretation of 101... but that's because Thomas' eligibility test is really just an obviousness test, hence his repeated references to "conventional techniques". Effectively, what Alice changed was to give courts an easy way to handwave something away as obvious as a matter of law, without requiring any actual prior art evidence, simply by calling it "abstract".

Comment Re:Still pretty affordable (Score 1) 393

How are you powering the timer/microcontroller?

I'm not disputing that it'd be easy to do - as a matter of fact I believe that most chargers/cars already have more complex logic installed to control charging in order to save money via drawing when electricity is at it's lowest rates.

Of course, if 'everybody' starts getting EVs said lowest rates might go away, but it'd still be cheaper than gasoline.

Comment Re:Still pretty affordable (Score 1) 393

being a home improvement, he'll get that back in house value, so i wouldnt chalk that up against fuel cost equivalence.

Only if he can find a buyer specifically interested in the charging capability. That's getting easier and easier, but if we lose too many rebates and incentives it could bottom out, at least before Musk gets the gigafactory up and an 'affordable' model out.

Same deal really with my interest in having a vault in my house. Nice for most people to have some secure storage, but they generally don't value it at what it cost to put it in.

Comment Re:Still pretty affordable (Score 1) 393

As he mentioned, it was an electrical upgrade he was looking to do anyways due to his house not meeting his standards for electrical work. I'd have done more of the work myself, but I'm lucky that way.

As for 'saving money after 4 years', it'd actually be a bit longer - $4.5k costs like $225-450 a year in opportunity costs alone. Then I was figuring that there was at least some extra expense with the vehicle. With the revelation that his electrical wasn't to code(or even all that safe) otherwise and that he was deliberately building in room for expansion it all became a lot more reasonable.

Comment Re:Actually against Islam (Score 1) 981

I know you are probably referring to the paradox of teaching Chemistry without using Math being a bit difficult.

Exactly what I was referring to.

However the cynic in me thinks that the morons at least understand that basic chemistry is required in the manufacture of things like bombs and bullets.

My cynicism is that they'd have their bomb & bullet makers run an apprenticeship where they teach the stuff to 'properly vetted', IE fanatic enough to their cause/group, individuals.

Comment Re: I never thought I'd say this... (Score 1) 353

For your grandfather, would he have been allowed to install it himself the final 500 feet and if so what would have the telco cost been to establish the connection?

For the rural community, what sort of housing density are we talking about?

One thing that I would like to see it community networks that are then leased out to ISPs, with non-exclusive agreements. I would hope that in this scenario the ISPs and telco could not argue unfair competition and therefore be unable to block this.

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