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Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49457199) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Patents are equally useless for protecting against copying the look and feel of a game.

Design patents aside, of course.

You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

You're saying a better way to handle it is to get no legal protection and just hope that Zynga never decides to copy them? Worse insanity, particularly because we've seen it fail, over and over.

The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the patent war madness that everyone else seems to be currently engaged in. Companies like Zynga are the exception to the general trend, and may end up forcing everyone else to do the same goddamned thing. Do you know who'll be left behind here? Yeah, the indie devs, because they can't afford patent lawyers and ridiculous lawsuits.

Patent litigation is frequently done on contingency. That's like saying "I can't afford to have you place a bet for me, because if it wins, I have to give you a share of the huge pile of free money I get."

Read the massive list of Zynga patents. It makes me weep as a game developer.

Why should it? After all, I believe a wise man once said, "The only way to beat a company that steals your best ideas is to keep coming up with better ones." Similarly, the only way to beat a company that comes up with the best ideas and patents them is to come up with better ones, right? Or pay a reasonable license fee if you can't come up with a better idea.

The USPTO seems to be rubberstamping whatever the hell Zynga sends their way, so long as it's couched in enough confusing terminology and legalese (oh, and "online" is mentioned anywhere).

[Citation needed]. The USPTO currently rejects around 95% of patent applications in this industry, so if they've got a rubberstamp, it says "DENIED".

If you actually read the patents in detail, they're essentially the sort of thing any competent developer would think.

If you read anything in detail, then ask yourself immediately afterwards if you could think of what you just read, you'd say yes. It's called hindsight. The question is whether any competent developer would have thought of it before reading the patent. And that takes evidence to prove, not a gut feeling based solely on "I understand what I just read, so therefore it must be obvious."

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49455305) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

And look what happened to them. Zynga are bottom feeders, and are absolutely loathed in the more 'traditional' videogame industry (those of us that make AAA PC and console games) for this and plenty of other reasons. They're the perfect poster child for why software patents are a horrible idea.

Zynga goes after indie and mobile developers for whom copyright is useless, unlike you giant AAA players. So they're the poster child for why software patents are a horrible idea? That makes no sense. Software patents - or being a multi-million dollar AAA developer - are the only thing that can stop them.

In fact, it's actually the classic story justifying why patents should exist: you've got small innovators whose ideas are copied by a ruthless giant corporation, and other giant corporations - such as your own - ignore the issue.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454431) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

There are such mechanisms - ex parte reexamination (available from 1981 until 2012) and post-grant review (available since 2012). And it works as you say - a panel of senior examiners review the patent, in response to a challenge, which can be based on obviousness or other issues.

Thing is, it's not started with just someone screaming "that's obvious! Review the patent!" Just like we don't go through a full trial based on someone merely saying "that guy's guilty of a crime!" or "that guy owes me money!", the challenge or complaint has to meet a minimum threshold for likelihood of invalidity/guilt/liability. If you do your homework and search for some good prior art, then you can challenge the patent. If you don't do that homework, and just make a conclusory claim, then your challenge will get immediately dismissed, as it should be.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454391) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.

They haven't forgotten it - what they realize is that they have to prove that a person with ordinary skill in the art could come up with the claimed invention based on the prior art. It's not something as simple as a gut feeling of "this is obvious", particularly because they get that gut feeling after reading the patent application. If it's a really well written application, super clear with tons of explanatory diagrams and examples, the end result should feel pretty obvious, in hindsight... but that says nothing about whether, one day before without reading that application, someone could come up with it.

So, they have to prove obviousness using evidence that was available on that previous day, and specifically, if they can show that all of the elements in the claimed invention were known on that day and could be easily combined, then it's obvious. So, for example, if peanut butter sandwiches are known and riding bicycles is known, then "eating a peanut butter sandwich, but on a bicycle!" is obvious, even if no one has ever done that particular combination before. The question is where there's some element of the invention that no one actually has ever done before - turning at an intersection based on a degree of tire rotation to peanuts crunched per bite ratio exceeding a threshold - then proving that that is obvious gets a lot tougher.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454369) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

There's nothing about our products that isn't perfectly well protected by copyright and trademark law.

Copyright is great for protecting that specific piece of software from piracy. It does almost nothing to prevent another developer from doing a copycat game. That's why Zynga laughs at copyrights, but does file a bunch of patent applications.

Comment: Correction - 5 claims of 35 invalidated (Score 1) 58

by Theaetetus (#49454357) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated
The patent still has 30 currently valid claims - only claims 31-35 were invalidated. They were also the only claims that Personal Audio claimed Corolla infringed, so invalidating them is a good step forward, but it's a bit much to claim the patent itself is invalidated.

The remaining 30 claims were also quite a bit narrower than Claims 31-35, so this decision wouldn't necessarily indicate they're likely invalid.

Comment: Re:Pao = Sexist (Score 1) 892

Men negotiate harder than women do

Is this because woman are unable to negotiate as hard? Because they are unwilling to? Because they are too stupid to? What is her explanation? Is it hormonal? Does it have to do with having different body mass distribution? Inquiring minds want to know.

It's impressive that you got a several hundred word post out of failure to read the rest of a sentence. The full quote was:

"Pao told with the Wall Street Journal Monday that the plan would help level the playing field. 'Men negotiate harder than women do and sometimes women get penalized when they do negotiate,' she said.

Women tend to be penalized for negotiating, so women have learned not to negotiate very hard. It has to do with hormones or body mass as you are actually an "inquiring mind", which is to say not at all.

Comment: Defense was never arguing innocence (Score 4, Insightful) 250

by Theaetetus (#49431859) Attached to: Verdict Reached In Boston Bombing Trial

Given his poor defense, I'm really not all that surprised. Though I wonder how it will flesh out in appeals if he gets the death penalty. One might argue the poor quality defense would force a retrial if they can convince an appeals court of incompetence or something like that.

The defense strategy was never to argue that he was innocent, it was to argue that he should receive life in prison rather than the death penalty. That will mainly occur over the next few weeks in the sentencing phase of the trial. This first guilt phase could've been done on day 1, but the prosecution wanted to grandstand.

Comment: Re:Look at the table in the PDF (Score 1) 71

And for Cassini2 specifically, it's not an issued patent vs. rejected patent. Both were issued, the point being that the new one was issued after the first was invalidated by a district court...

USPTO wanted comments on the guidance, not pointing out where they are failing to meet the guidance. This is where the EFF probably overstepped.

Actually, it's issued patent vs. pending application. And where the EFF overstepped was in violating 35 USC 122(c):

(c) Protest and Pre-Issuance Opposition.— The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.

Had the application been issued, that wouldn't be an issue (pun aside), but as the EFF admits in their comments:

For example, on Nov. 12, 2014, U.S. Pat. App. No. 11/091,200 received a notice of allowance.5

5 The applicant has since filed a Request for Continued Examination (RCE), the 12th RCE filed since the application was first filed in 2005.

So, yeah, it's a pre-issuance protest to the grant of an application, without express written consent of the applicant.

Comment: Re:Constipated Justice System (Score 1) 230

by Theaetetus (#49406363) Attached to: 'Revenge Porn' Operator Gets 18 Years In Prison

I realize that it is difficult to achieve a balance in fairness in sentencing but here we have an example of a court getting whacked out. Try and find a single case in which a drunk driver or hit and run driver who has killed someone gets 18 years in jail.

Ah, but this wasn't a single case with a single victim. This was 27 separate charges with literally thousands of victims. It shouldn't be surprising that someone who commits a crime 27 times serves more time than someone who commits it just once, and that yes, even though it may be only a couple of years of time for a single charge, when you aggregate more than two dozen charges, the time starts approaching that served for a more heinous crime.

For comparison, would you say that it was an example of a court getting whacked out that this guy got 20 years in prison even though he didn't kill anyone, unlike your hypothetical drunk driver (his 11 armed robberies notwithstanding)?

Comment: Re:Bring on the discussion of fair sentencing... (Score 1) 230

by Theaetetus (#49406311) Attached to: 'Revenge Porn' Operator Gets 18 Years In Prison

From what I can see the normal prison term for aggravated identity theft is five years and for extortion of $30,000 is about 2 years or a bit more depending on prior criminal record, so a five to seven year sentence would be normal and actually feels reasonable to me. There's no question that this guy's behavior was abominable and deserving of punishment, but the novelty of the offense is not an aggravating factor.

It's not. Rather, the number of separate victims and separate instances of crime is the aggravating factor - he was convicted of 6 counts of extortion and 21 counts of identity theft. Going by your math above, that's 12 years for the extortion and 105 years for the identity theft, or 117 years. He got about 1/6th of that, so, if anything, this is light.

Comment: Re:Nothing to do with software patents (Score 1) 42

Informative? Really mods? When a PATENT ATTORNEY uses outright FUD like comparing patents to trade secrets while outright ignoring the description for the fucking thing is IN THE PATENT?

... what are you talking about? I didn't compare patents to trade secrets, and what description "IN THE PATENT"? What "PATENT"? There's no patent mentioned in the article, thread, post you're replying to, etc., etc. Are you off your meds? That would explain the all-caps frothing of rage.

Comment: Re:Nothing to do with software patents (Score 1) 42

Software patents are explicitly not allowed in US either.

That's true, which is why there aren't any enforceable patents on software, nor are any being issued now. There are patents on machines that implement software, but not on the software itself.

It was the US patent court that after it was established as being outside the normal courts that unilaterally decided to allow software patents.

I'm not sure what you're trying to say here. The "US patent court"? You mean the Appeal Board at the USPTO? And no, it wasn't anything "outside the normal courts" - it was the Supreme Court in Diamond v. Diehr that said that inventions aren't excluded from patentability merely because they use software. And the PTAB wasn't involved in that one at all.

Comment: Re:Nothing to do with software patents (Score 3, Interesting) 42

Sorry, but other experts then me says the opposite:

http://epla.ffii.org/quotes

Notice that none of those are actually complaining about the establishment of a unitary court or patent, nor are they saying that this legalizes software patents, which it doesn't. Instead, they say that this could "restart the debate" over software patents. In fact, if you only read the fear-mongering, bolded "software patents are fully enforceable across Europe" in the second quote, you might miss the fact that it's saying that pro-software patent groups want that result, not that it actually exists now.

Comment: Nothing to do with software patents (Score 3, Informative) 42

Mr. Henrion is apparently so strongly opposed to software patents that he's seeing them everywhere he turns. The Unitary Patent is not an "attempt to legalize software patents," it's an attempt to harmonize the current patent system in Europe, which is a silly mishmash of union-wide and nation-specific laws. Specifically, right now, you file a patent application with the European Patent Office, which examines it. If it's allowed, then it doesn't become a patent, as there is no "European patent". Instead, you then also have to file patent applications in the UK, France, Germany, Spain, Greece, Italy, Austria, Belgium, etc., etc., paying national patent fees to each country. Those countries will rubber-stamp the patent as allowed based on the European Patent Office's decision to grant, so there's nothing added - it's just a way for each country to grab additional fees.

Of course, as a result of those individual country fees, hardly anyone files for patent protection in, say, Luxembourg, or Albania, or Latvia, because the markets aren't big enough to justify several thousand in fees per country (except in pharma, where they can just charge thousands of dollars per dose of medicine and get the costs back easily). In fact, generally, high tech inventors only get protection in the UK, France, and Germany.

As a result of not having patent protection in those other countries, companies also don't invest in those other countries... You're not going to open a manufacturing plant in, say, Portugal, even if the labor is really cheap, if you have no patent protection there and your competitor can simply open a plant across the street and spy through your windows. Nor are you really going to focus marketing efforts in those countries, if your competitor can simply buy the product and reverse engineer it. So, you end up with 1st world Europe in UK/FR/DE, and 2nd (or 3rd) world Europe everywhere else.

The Unitary Patent, on the other hand, is an actual European Patent. Rather than nationalizing in each individual country, you get a single European Patent that is enforceable everywhere in Europe. It doesn't make software patents legal - and in fact, software patenting is explicitly not allowed in Europe already, and this doesn't change anything about it - it just makes the filing and fees more straightforward, while extending protection into those other countries.

The other thing it does - and Slashdot should like this - is that it creates a Unified Patent Court that hears cases on infringement and validity of European patents. And it's not just one old fart in a black robe who doesn't use email and 12 idiots who had the day off from work, it's actually panels of three specialist judges who only hear patent cases and have appropriate scientific or engineering backgrounds (there's a mechanical division, a chemical division, and an electrical division).

Now, there is some opposition to the Unitary Patent, but it's not "zomg, this legalizes software!" Instead, it's coming from companies in those countries that no one bothers getting a patent in that actually are doing reverse engineering of competitor's products. And yeah, they should be upset, because this would force them to come up with their own inventions rather than just stealing everyone else's.

Disclaimer: I am a U.S. patent attorney, I'm not your attorney, this is not legal advice, etc.

APL is a write-only language. I can write programs in APL, but I can't read any of them. -- Roy Keir

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