Follow Slashdot blog updates by subscribing to our blog RSS feed


Forgot your password?

Comment Computers as lawyers (Score 3, Insightful) 116

IAAL and a programmer. Let me start by saying: people have been promising expert systems to resolve a "great many disputes" for almost as long as there's been personal computers. And in some cases, those systems exist, but not in the form of legal expert systems, but negotiated transaction expert systems like you see in financial trading and the like. If the goal is always an equitable resolution of shared information, then computers can do it. Divorce between amicable partners would seem to be a prime example.

But that's not the reason people usually use lawyers in transactions. It's for all the other things that can possibly go wrong, including failure to share all the information (e.g., untrusted parties), not wanting "equitable" divisions, interpretation, etc.

If all the world just did the right thing, there'd be no need for lawyers.

Comment Patent attorney chiming in (Score 5, Informative) 224

The real question is: are you applying for a job or are you trying to license your technology? In all likelihood, a blended negotiation is probably not going to happen unless: 1. you're looking for work in academics/advanced research or 2. you're a pre-eminent engineer/scientist being hired for your contributions in your inventive space.

If you're applying for a job, then the recruiter probably doesn't want to hear your invention pitch. The recruiter probably doesn't care about your patented stuff other than perhaps an aggregate count: e.g., I'm a named inventor on 3 million patent applications. You should be focused on what your qualifications for a job are.

If you're afraid that once you get the job that you're going to be deprived of a subsequent royalty stream, you should review your employment contract and should just flag that as a concern of yours. I suspect you're unlikely to get much value for your IPs from your employer, but at least the paperwork will be clear as to rights to use, the existence of the inventions prior to employment, etc.

If you're talking about trying to license your technology, then you need to talk to the right people. Probably their patent attorney or the person in charge of in-licensing technology. This is usually a protracted negotiation.

Last point, on your moral quandary: your patent probably doesn't stop you from deploying your full efforts at a job. It might stop you from implementing your own patented invention. But, on that point, you're the gatekeeper of your own invention. If you elect to deploy your patented invention as part of your regular work, you shouldn't expect compensation for it unless your employer asks you to.

Comment Re:You can copyright maps and manuals (Score 5, Informative) 146

Patent/IP Attorney chiming in.

You can copyright maps and manuals

Sure. You're very specific expression of both. You don't get to copyright the "facts" in either case. Everyone is free to copy the factual aspects of both maps and manuals. The distinction is an important one. And while not addressing maps and manuals directly in their petition, Google takes on the concept: you can write a book about art, but you don't get to stop other people from doing that art.

You can draw (and potentially get a copyright for) an outline of the world, but you can't stop other people from doing the same.

Google's argument about the API isn't all that much different: you can copyright an implementation of the API, but you don't get a copyright for the "facts" of the API: function names, arrangement, etc. The argument is that copyright, by statute, expressly does not extend to "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." (17 USC 102(b)). This is not a trivial argument. It's also pretty important because if Oracle/Federal Circuit are correct, then you can have de facto patent protection for a century without any of the procedural protections such as examination.

Comment Re:Technological Software as Patent Eligible (Score 1) 92

You mean that the Federal Circuit actually followed Congressional intent and the statutory law (35 USC 101) -- apparently against the wishes of the Supreme Court.

Foolishness. Section 101 is broader than you give it credit for. Patent attorneys love to overlook the language.

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.

One may very well look at the Alice patent (or any of a whole series of the business method/software cases) are realize that those claims are drawn to things that the patentees neither invented nor discovered, were not new at the time, etc. What's more Section 101 is entirely permissive "may obtain" which is hardly a requirement: shall or is entitled to, etc.

And, in any case, Congress is bounded by the Constitution's copyright clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Art. I, Sec. 8, Cl. 8). Extending patent rights to abstract ideas, general principles, etc., would arguably be unconstitutional. So, to avoid the constitutional question, it's best to resolve the broad language against that patentability.

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

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

I rarely care about non-issued patents, other than my own. Patent examiners can do their thing. Alice gives them a tool now too.

IPRs are a possible strategy. But people don't willy-nilly file those either. They're more part and parcel of modern patent litigation now to get a stay and hopefully wreck claims. A good IPR is still 5 figures.

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.

And that's still an issue for mid- to late-90s patents. Words are different. Language is different. Experts and lawyer arguments are expensive.

Plus, a wealth of everyday computer stuff from the 90s is still pretty hard to come by or expensive or time consuming to retrieve.

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?

If that's all that was required, woo-boy.

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?
* 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.

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

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

One of the important things to realize is that that actually doesn't matter. The fact that the practice had been done in the real world before did, though. Merely gussing-up the language with technological tools didn't make it patent eligible. The court never gets to the issues under Sections 102 (anticipation) or 103 (obviousness) of the patent laws.

Comment Re:Patent Attorney chiming in (Score 3, Informative) 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. 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.

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.

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.

Comment Re:Technological Software as Patent Eligible (Score 5, Interesting) 92

I read Patently-O. Thank you for all that you do. I'm also a patent attorney. I work in-house at a software company where I'm Chief IP counsel. I cannot help but think when reading patently-o (and PatentDocs and IPWatchdog and others) is that the readership is so skewed to patent attorneys who view the world as fundamentally formed around patents. When a patent attorney like myself makes any argument about the ludicrous nature by which the scope of patents has grown, either in comments or otherwise, it is mostly met with cries of being part of the anti-patent brigade.

What Alice has shown to me is that the generalist legal world (e.g., the one in which the SCOTUS lives) view patents with much, much more skepticism. In my opinion, rightfully so. Patent attorneys get their undies in a bunch about Alice-like precedent "violating" the territories of 102 and 103. But that misses the forest for the trees.

As you suggest, Alice is in but a long line of cases where the Supreme Court looks at the forest, not the trees. Recognizes the absurdity and attempts to restore some sanity.

Comment Patent Attorney chiming in (Score 5, Informative) 92

Alice is a big deal. It's already dealt tough blows to some patents in currently pending cases. This is mostly a good thing. And the patents that Alice affects most are sort of the worst of the worst.

I want to address the last point:

Alice to turn software patents into 'draftsmen's art because as you and I have seen over the years, every time there's a court ruling it just means that you have to word the patent claims differently.'

This may well be the case. But I don't see that as a particularly bad issue. 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.

I also think that the "draftsman's exercise" is likely to bring added meat to claims. It might not sound like much, but every single word that gets added to a claim is one more point of possible differentiation.

Comment Re:Not the same, but tangentially related... (Score 2) 93

Insurance is a weird thing: it works because you pool a bunch of risk and spread the associated costs across all your insured. At the moment, Snapshot only gives discounts to those drivers that establish that they are in fact in the lowest risk pool: few miles driven, during "safe" times, in a "safe" manner (e.g., few hard stops). There's no incentive, currently, for otherwise safe drivers to participate -- such as those that drive too many miles.

However, I consider myself a safe driver but just have too many miles. Heck, I even have a dashcam (I don't live in Russia, either). But other than my clean driving record, I don't have any other driving behavior-based way to lower my risk profile or premium. I would LOVE if Progressive mandated Snapshot, increased rates of those that had poor overall driving techniques (fast acceleration, hard braking, etc.) and lowered the rates for the rest. People whose rates increased would likely flee Progressive, but the risk for the pool would go down (and with it my premiums). Mandated Snapshot won't happen of course for lots of non-obvious reasons, though.

Comment Re:no troll defence here (Score 3, Informative) 52

Not true. Not true at all. The Apache 2.0 license doesn't prevent a user of Apache-licensed software from suing. It's a defensive patent clause: it deprives the contributor of patent enforcement rights as it relates to a contribution, but allows them to sue a user for patent infringement if they're sued first. If a troll sues a "Contributor" for patent infringement, then the Contributor can sue the troll. So, a troll could use Apache all day long and sue Contributors all day long without a license violation.

3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

Similarly, GPLv3 has a patent license. It affects contributors and distributors, not "users."

11. Patents.
A “contributor” is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based. The work thus licensed is called the contributor's “contributor version”.

A contributor's “essential patent claims” are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, “control” includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

In the following three paragraphs, a “patent license” is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement). To “grant” such a patent license to a party means to make such an agreement or commitment not to enforce a patent against the party.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

Comment Re:no troll defence here (Score 2) 52

Spot on. The linked article is ridiculous. The facts of the cases (both Jacobsen v. Katzer and Twin Peaks v. Red Hat) referenced as a use of a OSS license in defense of a patent infringement claim did not involve trolls and did not involve a defense to patent infringement. They had an independent copyright claim.

That's not a "tactic" and it's not reproducible defense. You might as well say, "if you want to defend against patent trolls, you should get a contract with the trolls that they'll breach." Or, "you can defend a patent case, if you catch the patent owner breaking into your house." Your lawyer is going to look for whatever leverage you might have against a troll. Thinking that an OSS license is much of a shield is foolish.

Slashdot Top Deals

It's fabulous! We haven't seen anything like it in the last half an hour! -- Macy's