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Comment This doesn't work for patents (Score 2) 241

Clean room development is a good way to defend against copyright infringement, because you are able to demonstrate you did not have actual knowledge of the copyrighted material, and hence could not have copied it. With patents, it does not matter whether you copied it or not. If your product performs the same invention as described in the claims of a patent, you infringe, regardless of the absence of copying.

Comment Re:Contest (Score 2) 478

No, de minimis copying wouldn't give rise to copyright infringement. One may argue that what Google copied here is de minimis. However, if a plaintiff can show substantial similarity between the allegedly infringing work and the original work, then yes, the defendant in that case could be on the hook. I don't think a plaintiff in the suit you described would be very successful.

Comment Re:Contest (Score 1, Insightful) 478

But that isn't the point! Clean rooming code is a perfectly legitimate way to keep yourself from committing copyright infringement. By all appearances Google opted not to do that, and instead opted to copy code. If that is in fact the decision they made, then they infringed whatever copyright protection there was on that code. I'm not clear on which phase of the trial this is in, but if this is the copyright infringement claim, it makes not one bit of difference if a teenager, tween, or toddler could independently write the code. If Google copied it, they infringed.

Submission + - Blizzard sued for patent infringement over WoW, CoD ( 1

thunderdanp writes: Worlds Inc. filed a patent infringement lawsuit against Activision Blizzard, Inc., Blizzard Entertainment, Inc. and Activision Publishing, Inc. in the United States District Court for the District of Massachusetts on March 30, 2012. Activision's World of Warcraft(R) and Call of Duty(R) video games have been identified in the complaint as infringing on Worlds' patents.

It appears these patents claim priority back to 1995, so invalidating these patents could be difficult, giving how much prior art might be excluded.

Comment Re:Trivial? (Score 1) 386

Purely mental processes, e.g. mathematical equations, are not patentable. This point has been affirmed.

That being said, a software patent is not always purely a mental process, or necessarily analogous to one. I would wager that if you look at the claims of each of MS's patents, there will be something more than the relationship of one item to another, which is what I understand a mathematical equation to be. Any claim to such a relationship has been deemed not patentable subject matter. In my opinion, the Federal Circuit's "machine-or-transformation" test adequately addresses this issue, requiring that a claimed invention involve more than a trivial step being performed by a machine, or the transformation of an entity, something more than transistors changing state.

I say society gains from software patents exactly what it gains from patents in every other art; public disclosure and encouragement of research and development. You ask if Microsoft would have written any software if it did not have patent protection available to it. It seems likely the answer is yes. However, going back the decades of Microsoft's existence, looking at the enormous amount of resources Microsoft poured into R&D, it is far from obvious that MS would have developed many of the technologies it has developed to date.

Comment Re:Trivial? (Score 1) 386

You call resizing text using handles trivial simple. Was it always trivial simple? I am not a computer programmer, and I trust that it is now so simple. Simply because something is very simple now does not mean it always was. Indeed, the simplicity with which such a feature can be implemented now is likely a testament to the patent system; it is simple now because of the development invested years ago. It is all too easy to say such a development was inevitable. Again, this sounds like hindsight bias; it seems inevitable because that is our history. It is immeasurably difficult to predict what would or would not have been developed but for patent protection, but it is foolhardy to say everything that has been developed with the advantage of patent protection would have been developed without it as well. One need only look at the cost of research and development in a variety of fields, such as software development, pharmaceuticals, etc., to see why a limited monopoly makes sense, even mores today with the advances in reverse engineering.

Comment Re:Trivial? (Score 1) 386

First, if Samsung and Google are unable to challenge the validity of these patents, it is not for lack of resources. That seems to make it more likely that there is a lack of prior art raising a substantial new question of patentability, essentially meaning they cannot find prior art to challenge validity. If that is the case, then novelty/obviousness probably are not grounds for invalidity.

Second, I see no reason why the invention should not be patentable. The patent system is a trade-off of public disclosure of the invention in exchange for a grant of a limited monopoly. So, yes, it does present a monopoly; that is exactly what was intended. You say only Microsoft can resize text with handles, and that is bad because it is a feature everyone expects. I ask, why does everyone expect that feature? Is it because Microsoft included it in all of its products, making the feature a much desired one? If the invention truly was disclosed prior to Microsoft's filing for a patent, show me the prior art making that disclosure. If such a reference does not exist, do not waste your or my time saying it was obvious; that reeks of hindsight bias.

As to the J.K. Rowling, the works of authors are protected differently than the work of inventors for a variety of reasons. Needless to say, copyright protection affords less protection, but for a greater length of time. As to trademark protection, that too is a very different type of protection for a different length. I agree that the concept of a boy wizard story should not be patentable, and indeed it is not.

I disagree with your statement that we overrate the idea, at least as far as you seem to imply we undervalue the implementation. When you read through the claims of patents, you will find the implementation of the invention described by the title is much more often the patented invention. Indeed, this is something the Supreme Court has been grappling with in recent cases; abstract ideas should not be and are not patentable. Just see Bilski. A definitive test for patentable subject matter has not yet been crafted, but I think it would be throwing out the baby with the bath water to categorically exclude software from patent protection. Why should a concept, the product of significant investment and innovation, be excluded simply because it is executed within a digital framework?

Comment Re:Trivial? (Score 1) 386

What you're quoting is the written description, which is not what the Examiner would make his/her decision on patentability on. I know some examiners, and they begrudgingly admit they gloss over the written description and head straight for the claims, which is where their decisions regarding patentability are made. That being said, you may or may not be correct about a given patent being invalid, and there are options (some far, far cheaper than litigation, i.e. inter partes reexamination) for narrowing the scope of an overbroad, invalid claim. That major players like Samsung and Google have not instigated such proceedings is suggestive.

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