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Comment: Re:Defending software patents (Score 1) 91

by Theaetetus (#47941959) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47940367) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47939875) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47939783) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47938895) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47938631) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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) 91

by Theaetetus (#47938551) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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: Re:Patent Attorney chiming in (Score 2) 91

by Theaetetus (#47937593) Attached to: Alice Is Killing Trolls But Patent Lawyers Will Strike Back

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".

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