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Comment: Re:Defending software patents (Score 1) 92

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) 92

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) 92

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) 92

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) 92

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) 92

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: The district court found the claims to upselling to an online buyer invalid under the Alice case.

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

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) 92

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".

Comment: Re:The protruding lens was a mistake (Score 1) 424

by Theaetetus (#47923269) Attached to: Apple Edits iPhone 6's Protruding Camera Out of Official Photos

Yeah, I guess it's not so bad if you assume that you're going to have a case, and that the case thickness will result in a flat back to the whole thing. I hadn't really thought of that.

Still, I think it's a bad choice. It seems kind of dumb to design your product with the idea that the dumb design won't be quite so dumb if you also buy a case.

Agreed. I never used a case with my iPhone, and a protruding lens would've been annoying and probably gotten caught on things on my pockets.

... but I do admit that I'm the only person I know of my friends who doesn't have a case on his phone.

Comment: Re:The protruding lens was a mistake (Score 2) 424

by Theaetetus (#47921247) Attached to: Apple Edits iPhone 6's Protruding Camera Out of Official Photos

And for what? Assuming that they can't make the camera any thinner, make the phone slightly fatter, and make use of the extra space. It's not as though the iPhone 5 was obscenely thick and needed to be made thinner. Hell, just fill the rest of the thing out with additional battery, and give us more battery life.

Although I agree and would rather have the additional battery, most people put their phones in a case, which adds some thickness... The lens will protrude into the case cross-sectional region, allowing the overall phone+protruding-lens+case to be thinner than a thicker-phone+flat-lens+case.

Comment: Re:Who would have thought (Score 4, Insightful) 194

by Theaetetus (#47886747) Attached to: The Documents From Google's First DMV Test In Nevada

The only slight problem with that is that in order to react at all in time, you must be paying the same amount of attention as you would if there was no autonomous drive system at all. This is otherwise known as the human being in the loop. Removing the human from the loop in aircraft automation has been a source of unending problems, and only recently one could say that it's a reasonably well understood problem - if not quite solved just yet. Don't forget we're talking about trained professional pilots here.

So, when faced with a self-driving car, the relatively untrained non-professional driver will always be so far out of the loop, that there's no way for him to overtake control safely in real time.

If you read the article, in the instances where the automation didn't know what to do, it pulled over and stopped:

Construction work, however, proved trickier. When faced with a partially blocked-off road, the car switched between autonomous and manual modes and then braked to a halt, requiring Urmson, the safety driver, to take control.

The driver doesn't need to react in time - the car does that. The driver merely needs to make the next decision to start moving again and guide the car to where it needs to go.

Comment: Re:Patents cited in article (Score 1) 30

by Theaetetus (#47785907) Attached to: Judge Lucy Koh Rejects Apple's Quest For Anti-Samsung Injunction

The linked article cite the following patents : - Auto-correction/completion on keyboard entry... Il looks quite similar to the autocompletion that you find in some Japanese IME under Linux... which sometimes allow both conversion to kanjis and completion. Auto-correction is quite old on the wordprocessor scene - transformation of email & phone numbers to link AFAIK, most forums and webmails already convert email to link for a long long time. As for Phone number, the extension is quite trivial - slide to unlock it's mimicking a physical (door) lock... so nothing real new...

In hindsight, everything looks trivial. That's why you need to find actual prior art that invalidates the claims. And in particular, mimicking something in the real world may still be patentable, if the patent goes to the method of how it's mimicked. For example, we're trained from birth to recognize faces, but would you say that a facial recognition technology for a computer would never be patentable, because it just mimics that real-world ability? No - it depends on what's actually in the claims, and whether they go to how that simulation is implemented, rather than just the general idea of "recognizing faces" or "unlocking something".

Comment: Re:Slashdot comments indicative of the problem (Score 1) 1262

>be the games journalist who never wrote a review, or even a single word, about Depression Quest Sorry to burst your bubble, but that's a myth borne out of people being unable to use a search engine properly. What's funny is that Grayson himself lied about having written anything about it:

That's what the controversy is over? "Here's a list of 50 games, and oh yeah, this is one of them"? Geez. Are you going to start demanding long form birth certificates from everyone now?

Sure, he didn't write a full-blown review, so he's not technically telling a lie, but he DID give her game preferential treatment in an article he wrote about Steam games being greenlit and there is ample evidence (pictures and video) that Grayson and Quinn were spending private time together prior to that article. I'll let the readers be the judge of whether or not Grayson's choice of her game as cover art was influenced by their relationship.

Well, when you're done clutching your pearls, we'll get you a glass of water so you can calm down. I mean, the way you were carrying on, I thought there was a review, not a "here's 50 new Greenlighted games".

Comment: Re:Slashdot comments indicative of the problem (Score 1) 1262

There's also the part where she's declaring harassment because people are trying to find out the truth about whether or not she unethically used an intimate relationship with a games journalist to promote Depression Quest. The fact that she had an intimate relationship with Nathan Grayson is a big deal, especially considering that they officially started dating less than a week after Grayson's article was published, and there is evidence that the relationship may have existed before that but was kept away from public view.

Ah, yes, would that be the games journalist who never wrote a review, or even a single word, about Depression Quest? The journalist who wrote an article about a reality show, months before Depression Quest was even created, and hasn't published anything since?

Comment: Re:What lessons are the video games teaching? (Score 2, Interesting) 1262

Mod this up please...

Not sure why. Most people on Slashdot should realize that screenshot of a web browser showing a page that says "12 seconds ago" doesn't necessarily mean that the corresponding message was created 12 seconds before the screenshot, but just that the page was refreshed 12 seconds after the message... and then the page could have sat, displayed from local RAM, for minutes or hours before a screenshot was taken.

"Our vision is to speed up time, eventually eliminating it." -- Alex Schure