| | The USPTO Would Like to Partner with the Software Community ... Wait. What? Really? ~pj | ![]() | |
Friday, January 04 2013 @ 03:10 AM EST |
There is a notice in the Federal Register that the USPTO would like to form a partership with the software community to figure out how to "enhance" the quality of software patents. To that end, they are looking for comments and there will be two roundtable events sponsored by the USPTO, one in Silicon Valley and one in New York, both in February: Each roundtable event will provide a forum for an informal and
interactive discussion of topics relating to patents that are
particularly relevant to the software community. While public attendees
will have the opportunity to provide their individual input, group
consensus advice will not be sought....
The first topic
relates to how to improve clarity of claim boundaries that define the
scope of patent protection for claims that use functional language.
I know the USPTO doesn't want to hear that software and patents totally need to get a divorce, but since most software developers believe that, maybe somebody should at least mention it to them, if only as a future topic for discussion. Most developers I know believe software is unpatentable subject matter. It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way. I'm sure companies with lots of patents will be participating. So some of you should probably try to attend too, don't you think? At least send in thoughtful, respectful but clear and specific comments. Large companies with patent portfolios they treasure and don't want to lose can't represent the interests of individual developers or the FOSS community, those most seriously damaged by toxic software patents. And now that patent trolls are targeting individual apps developers and small businesses that simply use technology like scanners and email, somebody needs to listen to what those of us who are not IBM or Microsoft or Google are enduring. And heaven only knows they are going through plenty too. But my point is there are more of you than there are of them. If you do want to attend, you have to register by February 4th, free, but seating is limited, and it's first-come, first-serve:
To register, please send an email message to SoftwareRoundtable2013@uspto.gov and provide the following information: (1) Your name, title, and if applicable, company or organization, address, phone number, and email address; (2) which roundtable event you wish to attend (Silicon Valley or New York City); and (3) if you wish to make an oral presentation at the event, the specific topic or issue to be addressed and the approximate desired length of your presentation.
For sure many of you have ideas to express on the first topic. The deadline to send in written comments for consideration is March 15, and you can do it by email (SoftwareRoundtable2013@uspto.gov) or by snail mail, but they express a strong preference for email. That is for all three topics, not just the first one:
For these initial roundtable events, this notice sets forth several topics to begin the Software Partnership discussion. The first topic relates to how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language. The second topic requests that the public identify additional topics for future discussion by the Software Partnership. The third topic relates to a forthcoming Request for Comments on Preparation of Patent Applications and offers an opportunity for oral presentations on the Request for Comments at the Silicon Valley and New York City roundtable events. Written comments are requested in response to the first two discussion topics. Written comments on the third discussion topic must be submitted as directed in the forthcoming Request for Comments on Preparation of Patent Applications. That's why the deadline for commenting is after the roundtables, but time your comments based on what issue you are addressing, I'd say.
Comments will be posted online, so keep that in mind in terms of your own privacy interests, and they request you *not* include your address or phone number if you don't want it made public. And why would you want that, unless you are representing a company and have that address to use? If you wish to present at either event, you have to send your materials as Microsoft PowerPoint or Microsoft Word. Lordy, I'd like to give a presentation about the annoyance the USPTO creates by pushing propriatary requirements on us. Don't they realize that most people use mobile devices now, and most of us don't use Microsoft at all for anything any more? It's an Apple-Android world.
Oh, and the events will be webcast, so we can all watch and see how it goes.
Here's a bit more detail on the first topic:
Software-related patents pose unique challenges from both an
examination and an enforcement perspective. One of the most significant
issues with software inventions is identifying the scope of coverage of
the patent claims, which define the boundaries of the patent property
right. Software by its nature is operation-based and is typically
embodied in the form of rules, operations, algorithms or the like.
Unlike hardware inventions, the elements of software are often defined
using functional language. While it is permissible to use functional
language in patent claims, the boundaries of the functional claim
element must be discernible. Without clear boundaries, patent examiners
cannot effectively ensure that the claims define over the prior art,
and the public is not adequately notified of the scope of the patent
rights. Compliance with 35 U.S.C. 112(b) (second paragraph prior to
enactment of the Leahy-Smith America Invents Act (AIA)) ensures that a
claim is definite.
There are several ways to draft a claim effectively using
functional language and comply with section 112(b). One way is to
modify the functional language with structure that can perform the
recited function. Another way is to invoke 35 U.S.C. 112(f) (sixth
paragraph pre-AIA) and employ so-called ``means-plus-function''
language. Under section 112(f), an element in a claim for a combination
may be expressed as a means or step for performing a specified function
without the recital of structure, material or acts in support thereof,
and shall be construed to cover the corresponding structure, material,
or acts described in the specification and equivalents thereof. As is
often the case with software-related claims, an issue can arise as to
whether sufficient structure is present in the claim or in the
specification, when section 112(f) is invoked, in order to satisfy the
requirements of section 112(b) requiring clearly defined claim
boundaries. Defining the structure can be critical to setting clear
claim boundaries....
Topic 1: Establishing Clear Boundaries for Claims That Use Functional
Language
The USPTO seeks comments on how to more effectively ensure that the
boundaries of a claim are clear so that the public can understand what
subject matter is protected by the patent claim and the patent examiner
can identify and apply the most pertinent prior art. Specifically,
comments are sought on the following questions. It is requested that,
where possible, specific claim examples and supporting disclosure be
provided to illustrate the points made.
1. When means-plus-function style claiming under 35 U.S.C. 112(f)
is used in software-related claims, indefinite claims can be divided
into two distinct groups: claims where the specification discloses no
corresponding structure; and claims where the specification discloses
structure but that structure is inadequate. In order to specify
adequate structure and comply with 35 U.S.C. 112(b), an algorithm must
be expressed in sufficient detail to provide means to accomplish the
claimed function. In general, are the requirements of 35 U.S.C. 112(b)
for providing corresponding structure to perform the claimed function
typically being complied with by applicants and are such requirements
being applied properly during examination? In particular:
(a) Do supporting disclosures adequately define any structure
corresponding to the claimed function?
(b) If some structure is provided, what should constitute
sufficient `structural' support?
(c) What level of detail of algorithm should be required to meet
the sufficient structure requirement?
2. In software-related claims that do not invoke 35 U.S.C. 112(f)
but do recite functional language, what would constitute sufficient
definiteness under 35 U.S.C. 112(b) in order for the claim boundaries
to be clear? In particular:
(a) Is it necessary for the claim element to also recite structure
sufficiently specific for performing the function?
(b) If not, what structural disclosure is necessary in the
specification to clearly link that structure to the recited function
and to ensure that the bounds of the invention are sufficiently
demarcated?
3. Should claims that recite a computer for performing certain
functions or configured to perform certain functions be treated as
invoking 35 U.S.C. 112(f) although the elements are not set forth in
conventional means-plus-function format?Here's 35 U.S. C. 112(f):
(f) Element in Claim for a Combination.— An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. They think software developers know what that is saying? I don't know from the words alone, and I'm a paralegal. But
here's a 2011 Federal Register notice on what the USPTO said it means: 3. Computer-Implemented Means-Plus-Function Limitations: For a computer-implemented means-plus-function claim limitation invoking § 112, ¶ 6, the corresponding structure is required to be more than simply a general purpose computer or microprocessor. [96] To claim a means for performing a particular computer-implemented function and then to disclose only a general purpose computer as the structure designed to perform that function amounts to pure functional claiming. [97]
The structure corresponding to a § 112, ¶ 6 claim limitation for a computer-implemented function must include the algorithm needed to transform the general purpose computer or microprocessor disclosed in the specification. [98] The corresponding structure is not simply a general purpose computer by itself but the special purpose computer as programmed to perform the disclosed algorithm. [99] Thus, the specification must sufficiently disclose an algorithm to transform a general purpose microprocessor to the special purpose computer. [100] An algorithm is defined, for example, as “a finite sequence of steps for solving a logical or mathematical problem or performing a task.” [101] Applicant may express the algorithm in any understandable terms including as a mathematical formula, in prose, in a flow chart, or “in any other manner that provides sufficient structure.” [102]
__________
[96] Aristocrat Techs. Australia Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).
[97] Id.
[98] Id.; Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008); WMS Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999).
[99] Aristocrat, 521 F.3d at 1333.
[100] Id. at 1338.
[101] Microsoft Computer Dictionary, Microsoft Press, 5th edition, 2002.
[102] Finisar, 523 F.3d at 1340; see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed. Cir. 2003); In re Dossel, 115 F.3d 942, 946-47 (1997); MPEP § 2181. That's how they explained it in 2011. But let's be real. With the US Supreme Court and the Federal Circuit playing ping pong with where the line should be, nobody knows where it really is any more. You may have noticed that in the amicus briefs being filed in the CLS Bank v. Alice case, a case about when, if ever, software should be patentable being considered by the Federal Circuit. Here's what I know, though. Just saying, "with a computer" shouldn't be enough. Note that there is also a request for comments on what would be best practices when preparing patent applications as they relate to software. That's at the very end of the notice, Topic 3: Oral comments are requested on the
advantages and disadvantages of applicants employing the following
practices when preparing patent applications as they relate to software
claims.
Expressly identifying clauses within particular claim
limitations for which the inventor intends to invoke 35 U.S.C. 112(f)
and pointing out where in the specification corresponding structures,
materials, or acts are disclosed that are linked to the identified 35
U.S.C. 112(f) claim limitations; and
Using textual and graphical notation systems known in the
art to disclose algorithms in support of computer-implemented claim
limitations, such as C-like pseudo-code or XML-like schemas for textual
notation and Unified Modeling Language (UML) for graphical notation. If you understand that, go for it. All I know is saying, "with a computer" or "on a computer" should never be enough. And you should have to provide source code. No excuses. If the point is that the public is supposed to get something out of patent law beyond higher prices, and if it's supposed to be specific enough that someone skilled in the art can know how to duplicate it, surely source code is required. Developers don't speak legalese. They speak code. So if they're supposed to understand and benefit, you need to speak their language. And if a company is too paranoid about its precious software secrets, then patents are not appropriate. Let them use trade secret protection, because otherwise the public is being robbed of its end of the patent law bargain. With that introduction, here is the complete notice from the Federal Register, also available as PDF:
******************
[Federal Register Volume 78, Number 2 (Thursday, January 3, 2013)]
[Notices]
[Pages 292-295]
From the Federal Register Online via the Government Printing Office
[www.gpo.gov]
[FR Doc No: 2012-31594]
-----------------------
DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
[Docket No. PTO-P-2012-0052]
Request for Comments and Notice of Roundtable Events for
Partnership for Enhancement of Quality of Software-Related Patents
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Request for comments. Notice of meetings.
----------------------------
SUMMARY:
The United States Patent and Trademark Office (USPTO) seeks to
form a partnership with the software community to enhance the quality
of
software-related patents (Software Partnership). Members of the public
are invited to participate. The Software Partnership will be an
opportunity to bring stakeholders together through a series of
roundtable discussions to share ideas, feedback, experiences, and
insights on software-related patents. To commence the Software
Partnership and to provide increased opportunities for all to
participate, the USPTO is sponsoring two roundtable events with
identical agendas, one in Silicon Valley, and the other in New York
City. Each roundtable event will provide a forum for an informal and
interactive discussion of topics relating to patents that are
particularly relevant to the software community. While public attendees
will have the opportunity to provide their individual input, group
consensus advice will not be sought.
For these initial roundtable events, this notice sets forth several
topics to begin the Software Partnership discussion. The first topic
relates to how to improve clarity of claim boundaries that define the
scope of patent protection for claims that use functional language. The
second topic requests that the public identify additional topics for
future discussion by the Software Partnership. The third topic relates
to a forthcoming Request for Comments on Preparation of Patent
Applications and offers an opportunity for oral presentations on the
Request for Comments at the Silicon Valley and New York City roundtable
events. Written comments are requested in response to the first two
discussion topics. Written comments on the third discussion topic must
be submitted as directed in the forthcoming Request for Comments on
Preparation of Patent Applications.
DATES: Events: The Silicon Valley event will be held on Tuesday,
February 12, 2013, beginning at 9 a.m. Pacific Standard Time (PST) and
ending at 12 p.m. PST. The New York City event will be held on
Wednesday, February 27, 2013, beginning at 9 a.m. Eastern Standard Time
(e.s.t.) and ending at 12 p.m. e.s.t.
Comments: To be ensured of consideration, written comments must be
received on or before March 15, 2013. No public hearing will be held.
Registration: Registration for both roundtable events is requested
by February 4, 2013.
ADDRESSES: Events: The Silicon Valley event will be held at: Stanford
University, Paul Brest Hall, 555 Salvatierra Walk, Stanford, CA 94305-
2087.
The New York City event will be held at: New York University, Henry
Kaufman Management Center, Faculty Lounge, Room 11-185, 44 West 4th
St., New York, NY 10012.
Comments: Written comments should be sent by electronic mail
addressed to SoftwareRoundtable2013@uspto.gov. Comments may also be
submitted by mail addressed to: Mail Stop Comments--Patents,
Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450,
marked to the attention of Seema Rao, Director Technology Center 2100.
Although comments may be submitted by mail, the USPTO prefers to
receive comments via the Internet.
The comments will be available for public inspection at the Office
of the Commissioner for Patents, located in Madison East, Tenth Floor,
600 Dulany Street, Alexandria, Virginia, and will be available via the
USPTO Internet Web site at http://www.uspto.gov. Because comments will
be available for public inspection, information that is not desired to
be made public, such as an address or phone number, should not be
included in the comments. Parties who would like to rely on
confidential information to illustrate a point are requested to
summarize or otherwise submit the information in a way that will permit
its public disclosure.
Registration: Two separate roundtable events will occur, with the
first in Silicon Valley and the second event in New York City.
Registration is required, and early registration is recommended because
seating is limited. There is no fee to register for the roundtable
events, and registration will be on a first-come, first-served basis.
Registration on the day of the event will be permitted on a space-
available basis beginning 30 minutes before the event.
To register, please send an email message to
SoftwareRoundtable2013@uspto.gov and provide the following information:
(1) Your name, title, and if applicable, company or organization,
address, phone number, and email address; (2) which roundtable event
you wish to attend (Silicon Valley or New York City); and (3) if you
wish to make an oral presentation at the event, the specific topic or
issue to be addressed and the approximate desired length of your
presentation. Each attendee, even if from the same organization, must
register separately.
The USPTO will attempt to accommodate all persons who wish to make
a presentation at the roundtable events. After reviewing the list of
speakers, the USPTO will contact each speaker prior to the event with
the amount of time available and the approximate time that the
speaker's presentation is scheduled to begin. Speakers must then send
the final electronic copies of their presentations in Microsoft
PowerPoint or Microsoft Word to SoftwareRoundtable2013@uspto.gov by
February 1, 2013, so that the presentation can be displayed at the
events.
The USPTO plans to make the roundtable events available via Web
cast. Web cast information will be available on the USPTO's Internet
Web site before the events. The written comments and list of the event
participants and their affiliations will be posted on the USPTO's
Internet Web site at www.uspto.gov.
If you need special accommodations due to a disability, please
inform the contact persons identified below.
FOR FURTHER INFORMATION CONTACT: Seema Rao, Director Technology Center
2100, by telephone at 571-272-3174, or by electronic mail message at
seema.rao@uspto.gov or Matthew J. Sked, Legal Advisor, by telephone at
(571) 272-7627, or by electronic mail message at
matthew.sked@uspto.gov.
SUPPLEMENTARY INFORMATION:
I. Purpose of Notice: This notice is directed to announcing the
Software Partnership which is a cooperative effort between the USPTO
and the software community to explore ways to enhance the quality of
software-related patents. The Software Partnership will commence with
the two bi-coastal roundtable events. The initial topics selected for
comment and discussion have been chosen based on input the USPTO has
received regarding software-related patents. The input has been gleaned
from public commentary on patent quality, dialogue with stakeholders
that have requested that the USPTO take a closer look at the quality of
software-related patents, and from insight based on court cases in
which software-related patents have been the subject of litigation. The
public is invited to provide comments on these initial topics and to
identify future topics for discussion.
II. Background on Initiative to Enhance Quality of Software-Related
Patents: The USPTO is continuously seeking ways to improve the quality
of patents. A quality patent is defined, for purposes of this notice,
as a patent: (a) For which the record is clear that the application has
received a thorough and complete examination, addressing all issues on
the record, all examination having been done in a manner lending
confidence to the public and patent owner that the resulting patent is
most
likely valid; (b) for which the protection granted is of proper scope;
and (c) which provides sufficiently clear notice to the public as to
what is protected by the claims.
Software-related patents pose unique challenges from both an
examination and an enforcement perspective. One of the most significant
issues with software inventions is identifying the scope of coverage of
the patent claims, which define the boundaries of the patent property
right. Software by its nature is operation-based and is typically
embodied in the form of rules, operations, algorithms or the like.
Unlike hardware inventions, the elements of software are often defined
using functional language. While it is permissible to use functional
language in patent claims, the boundaries of the functional claim
element must be discernible. Without clear boundaries, patent examiners
cannot effectively ensure that the claims define over the prior art,
and the public is not adequately notified of the scope of the patent
rights. Compliance with 35 U.S.C. 112(b) (second paragraph prior to
enactment of the Leahy-Smith America Invents Act (AIA)) ensures that a
claim is definite.
There are several ways to draft a claim effectively using
functional language and comply with section 112(b). One way is to
modify the functional language with structure that can perform the
recited function. Another way is to invoke 35 U.S.C. 112(f) (sixth
paragraph pre-AIA) and employ so-called ``means-plus-function''
language. Under section 112(f), an element in a claim for a combination
may be expressed as a means or step for performing a specified function
without the recital of structure, material or acts in support thereof,
and shall be construed to cover the corresponding structure, material,
or acts described in the specification and equivalents thereof. As is
often the case with software-related claims, an issue can arise as to
whether sufficient structure is present in the claim or in the
specification, when section 112(f) is invoked, in order to satisfy the
requirements of section 112(b) requiring clearly defined claim
boundaries. Defining the structure can be critical to setting clear
claim boundaries.
III. Topics for Public Comment and Discussion at the Roundtable
Events: The USPTO is seeking input on the following topics relating to
enhancing the quality of software-related patents. These initial topics
are intended to be the first of many topics to be explored in a series
of roundtables that may ultimately be used for USPTO quality
initiatives, public education or examiner training. First, written and
oral comments are sought on input regarding improving the clarity of
claim boundaries for software-related claims that use functional
language by focusing on 35 U.S.C. 112 (b) and (f) during prosecution of
patent applications. Second, written and oral comments are sought on
future topics for the Software Partnership to address. Third, oral
comments are sought on the forthcoming Request for Comments on
Preparation of Patent Applications to the extent that the topics of
that notice particularly pertain to software-related patents.
The initial topics for which the USPTO is requesting written and,
if desired, oral comments are as follows:
Topic 1: Establishing Clear Boundaries for Claims That Use Functional
Language
The USPTO seeks comments on how to more effectively ensure that the
boundaries of a claim are clear so that the public can understand what
subject matter is protected by the patent claim and the patent examiner
can identify and apply the most pertinent prior art. Specifically,
comments are sought on the following questions. It is requested that,
where possible, specific claim examples and supporting disclosure be
provided to illustrate the points made.
1. When means-plus-function style claiming under 35 U.S.C. 112(f)
is used in software-related claims, indefinite claims can be divided
into two distinct groups: claims where the specification discloses no
corresponding structure; and claims where the specification discloses
structure but that structure is inadequate. In order to specify
adequate structure and comply with 35 U.S.C. 112(b), an algorithm must
be expressed in sufficient detail to provide means to accomplish the
claimed function. In general, are the requirements of 35 U.S.C. 112(b)
for providing corresponding structure to perform the claimed function
typically being complied with by applicants and are such requirements
being applied properly during examination? In particular:
(a) Do supporting disclosures adequately define any structure
corresponding to the claimed function?
(b) If some structure is provided, what should constitute
sufficient `structural' support?
(c) What level of detail of algorithm should be required to meet
the sufficient structure requirement?
2. In software-related claims that do not invoke 35 U.S.C. 112(f)
but do recite functional language, what would constitute sufficient
definiteness under 35 U.S.C. 112(b) in order for the claim boundaries
to be clear? In particular:
(a) Is it necessary for the claim element to also recite structure
sufficiently specific for performing the function?
(b) If not, what structural disclosure is necessary in the
specification to clearly link that structure to the recited function
and to ensure that the bounds of the invention are sufficiently
demarcated?
3. Should claims that recite a computer for performing certain
functions or configured to perform certain functions be treated as
invoking 35 U.S.C. 112(f) although the elements are not set forth in
conventional means-plus-function format?
Topic 2: Future Discussion Topics for the Software Partnership
The USPTO is seeking public input on topics related to enhancing
the quality of software-related patents to be discussed at future
Software Partnership events. The topics will be used in an effort to
extend and expand the dialogue between the public and the USPTO
regarding enhancing quality of software-related patents. The Software
Partnership is intended to provide on-going, interactive opportunities
and a forum for engagement with the USPTO and the public on software-
related patents. Therefore, to plan future events, the USPTO seeks
input on which topics, and in what order of priority, are of most
interest to the public. Input gathered from these events, may be used
as the basis for internal training efforts and quality initiatives. One
potential topic for future discussion is how determinations of
obviousness or non-obviousness of software inventions can be improved.
Another potential topic is how to provide the best prior art resources
for examiners beyond the body of U.S. Patents and U.S. Patent
Publications. Additional topics are welcomed.
Another topic for which the USPTO is requesting oral comment at the
roundtable events is as follows:
Topic 3: Oral Presentations on Preparation of Patent Applications
In the near future, the USPTO will issue a Request for Comments on
Preparation of Patent Applications. The purpose of this forthcoming
Request for Comments is to seek public input on whether certain
practices could or should be used during the preparation of an
application to place the application in the best possible condition for
examination and whether the use of these practices would assist
the public in determining the scope of the claims as well as the
meaning of the claim terms in the specification. To ensure proper
consideration, written comments to the forthcoming Request for Comments
should only be submitted in response to that notice to
QualityApplications_Comments@uspto.gov. However, registrants may make
oral presentations at the Silicon Valley and New York City roundtable
events on the topics related to the forthcoming Request for Comments to
the extent that the topics pertain to software-related inventions. Note
particularly two questions from the forthcoming Request for Comments,
which are previewed below. Oral comments are requested on the
advantages and disadvantages of applicants employing the following
practices when preparing patent applications as they relate to software
claims.
Expressly identifying clauses within particular claim
limitations for which the inventor intends to invoke 35 U.S.C. 112(f)
and pointing out where in the specification corresponding structures,
materials, or acts are disclosed that are linked to the identified 35
U.S.C. 112(f) claim limitations; and
Using textual and graphical notation systems known in the
art to disclose algorithms in support of computer-implemented claim
limitations, such as C-like pseudo-code or XML-like schemas for textual
notation and Unified Modeling Language (UML) for graphical notation.
Dated: December 27, 2012.
David J. Kappos,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2012-31594 Filed 1-2-13; 12:09 pm] | |
|
| Authored by: SpaceLifeForm on Friday, January 04 2013 @ 04:02 AM EST | --- You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
| | |
| Authored by: SpaceLifeForm on Friday, January 04 2013 @ 04:04 AM EST | | Please include a link to the article you
are referencing as they will roll off
of the
main page. --- You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
| | |
| Authored by: SpaceLifeForm on Friday, January 04 2013 @ 04:06 AM EST | | Please make links clickable. --- You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
| | |
| Authored by: SpaceLifeForm on Friday, January 04 2013 @ 04:07 AM EST | --- You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
| | |
| Authored by: SpaceLifeForm on Friday, January 04 2013 @ 04:14 AM EST | That tells you right there that it is
all a sham, and will be an exercise by
the darkside into determining who they
can control or buy off. Complacent parties
will be welcomed, so they can spin the charade
to the public that the sham is in the public interest.--- You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
| | |
| Authored by: Anonymous on Friday, January 04 2013 @ 04:28 AM EST | The UK patent office attempted a similar but smaller consultation when the
european directive was being debated. The outcome was not to the UK patent
office liking:
http://www.zdnet.com/patent-campaigners-make-government-breakthrough-3039181169/Despite this outcome it did not stop the UK government from agreeing the
directive - fortunately it got thrown out by the European Parliament Given the strength of business interest lobbying in the US I suspect your
outcome will be an even more relaxed approach - good luck. [ Reply to This | # ]
| | |
| Authored by: myNym on Friday, January 04 2013 @ 04:31 AM EST | | Uh. Don't issue them. Software patents are illegal. (Or should be. I am not a lawyer.) [ Reply to This | # ]
| | |
| Authored by: Anonymous on Friday, January 04 2013 @ 04:44 AM EST | I wonder how they'd react if everyone on the anti-software-patent side sent
their presentations in as ISO/IEC 26300:2006/Amd 1:2012 format? (That's
OpenDocument's ISO number according to wikipedia)[ Reply to This | # ]
| | |
| Authored by: Anonymous on Friday, January 04 2013 @ 04:49 AM EST | The question I would have addressed is whether software patents describe a new
machine or a new process. If the idea is that a "computer + program" creates a new machine, it
should be recognized that a "computer + data" also produces a new
machine. Should not then (to be consistent) "data" be considered
patentable subject matter? If it is the 'process' of the computer reading the software that is being
patented then why are the software producers being held liable for infringement?
They are not performing the process, they are merely producing instructions on
how the process should be performed. [ Reply to This | # ]
| | |
| Authored by: feldegast on Friday, January 04 2013 @ 05:28 AM EST | it should be fairly straightforward for the Groklaw community
to write a submission including all the points we have
gathered to date into a single submission, using PolRs excellent articles as a
starting point is a significant
start...---
IANAL
My posts are ©2004-2013 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 06:39 AM EST | "Most developers I know believe software is unpatentable subject
matter."I think this is as much a comment on the type of developers that you know as it
is on patentability. As a long-term commercial software developer, very few of the developers of
proprietary software that I've worked with over the years have any idea what I'm
talking about when I object to the concept of software patents, and all of the
companies have had active programs in place to encourage developers to submit
patent ideas, with significant bonus payments in place as carrots. I have never personally become involved in the patent rat-race, but know many
colleagues that have, and many of the quite laughable concepts that have been
put forward as patentable material have proceeded to get patents. [ Reply to This | # ]
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| Authored by: Ian Al on Friday, January 04 2013 @ 07:19 AM EST | | Software by its nature is operation-based and is typically embodied
in the form of rules, operations, algorithms or the like. Unlike hardware
inventions, the elements of software are often defined using functional
language. While it is permissible to use functional language in patent claims,
the boundaries of the functional claim element must be
discernible...Compliance with 35 U.S.C. 112(b) (second paragraph prior
to enactment of the Leahy-Smith America Invents Act (AIA)) ensures that a claim
is definite.
The Supreme Court in Mayo: [T]he
Government argues that virtually any step beyond a statement of a law of nature
itself should transform an unpatentable law of nature into a potentially
patentable application sufficient to satisfy §101’s demands. Brief for United
States as Amicus Curiae. The Government does not necessarily believe that claims
that (like the claims before us) extend just minimally beyond a law of nature
should receive patents. But in its view, other statutory provisions—those that
insist that a claimed process be novel, 35 U. S. C. §102, that it not be
“obvious in light of prior art,” §103, and that it be “full[y], clear[ly],
concise[ly], and exact[ly]” described, §112—can perform this screening function.
In particular, it argues that these claims likely fail for lack of novelty under
§102.This approach, however, would make the “law of
nature”
exception to §101 patentability a dead letter. The approach is therefore
not consistent with prior law. The relevant cases rest their holdings upon
section 101, not later sections. Bilski, Diehr, Flook, Benson. See also H. R.
Rep. No. 1923, (“A person may have ‘invented’ a machine or a manufacture, which
may include any thing under the sun that is made by man, but it is not
necessarily patentable under section 101 unless the conditions of the title are
fulfilled” (emphasis added)).
We recognize that, in evaluating the
significance of
additional steps, the §101 patent-eligibility inquiry and,
say,
the §102 novelty inquiry might sometimes overlap.
But that need not always be
so. And to shift the patent
eligibility inquiry entirely to these later sections
risks
creating significantly greater legal uncertainty, while
assuming that
those sections can do work that they are
not equipped to do.
§101
Says that 'any new and useful process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof', is patentable subject
matter. This means that inventions 'typically embodied in the form of rules,
operations, algorithms or the like' are not statutory subject
matter. The Supreme Court has, many times, pointed out that it is a
waste of time and money considering issues of 35 U.S.C. 112(b) if ' topics
relating to patents that are particularly relevant to the software community'
are easily addressed by considering §101, first. Software by its nature is
operation-based and is typically embodied in the form of rules, operations,
algorithms or the like. Unlike hardware inventions, the elements of software are
often defined using functional language. While it is permissible to use
functional language in patent claims, the boundaries of the functional claim
element must be discernible... ---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 07:37 AM EST | "I know the USPTO doesn't want to hear that software and
patents totally need to get a divorce, but since most
software developers believe that, maybe somebody should at
least mention it to them, if only as a future topic for
discussion."At the risk of violating something akin to Godwin's law, I
cannot help but think of how the situation resembles the
U.S. dispute over slavery from the 1820's to the civil war
(note that I am in no way suggesting that software patents
are remotely as wrong as slavery). Just as the USPTO doesn't want to hear that software patents
should be abolished, it was not considered appropriate or
realistic to mention the abolition of slavery.
"Abolitionist" was a dirty word, much like "communist" or
"radical" in the 1950s. Anyone who suggested that there was
any moral problem with racial enslavement was considered to
be inciting terrorism, particularly after the Nat Turner
rebellion. Abolition could not be discussed on the floor of
the U.S. Congress, nor could anti-slavery literature be sent
through the mail. Great concern was held for the economic
rights of slaveholders, who after all had invested huge sums
of money to acquire their "property". Anti-slavery
discussion was limited to whether the "peculiar institution"
should be allowed to spread into new states and territories,
and how to maintain the "proper" balance of political power
between free and slave states. Until nearly the end of the
Civil War, elimination of slavery was politically off the
table even for the Union. So I think we are in a miniature version of this in the
dispute over software patents. The USPTO may be willing to
talk about minor issues at the edges, but the core issue is
that software patents are simply wrong - all of them, with
no exceptions. It is a fatally flawed idea. As RMS put it,
if someone independently programs a solution to a software
problem, when should anyone else ever be allowed to prevent
that? The answer is never, not under any circumstances. The
monied interests may not want that issue to be raised, but
that really is the issue. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 10:00 AM EST | The comment that source code should be required, I feel, is
slightly overboard. While software patents are WAY to
generally specified, detail pseudo code showing in detail
(sorry for the department of redundancy department speak)
the algorithm should be sufficient. (Of course, specifying
an algorithm makes it plain that it IS an algorithm, and not
patentable.)
After all, if the patent covers the idea, then the
particular language used to implement the idea is
irrelevant, hence the actual source code (a particular
language implementation) is also irrelevant.
Disclaimers: I have software patents (done as a defensive
move), and do not believe any algorithm (implemented in
software or otherwise) should be patentable.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 10:33 AM EST | |
And you should have to provide source code. No excuses. If the
point is that the public is supposed to get something out of patent law beyond
higher prices, and if it's supposed to be specific enough that someone skilled
in the art can know how to duplicate it, surely source code is
required.
Requiring Source Code is akin to the implementation, but
if a physical patented device requires a nut and bolt of a certain size and I
don't have one, but use a substitute which works perfectly fine, then am I in
breach of the patent or not? Similarly, if the supplied source code was Z8000
assembler and I program the "invention" in 68000 assembler have I infringed the
patent or not?
But source code is protected by Copyright, so why the need
for a patent as well?
The requirement should be that the algorithm is
clearly written out so that any programmer could follow it and code it in
whatever language they like (and get it to perform in the same way), just as theUSPTO requires:
The specification must include a
written description of the invention and of the manner and process of making and
using it, and is required to be in such full, clear, concise, and exact
terms as to enable any person skilled in the technological area to which the
invention pertains, or with which it is most nearly connected, to make and use
the same.
Very few software patents actually so this: full, clear,
concise and exact terms would be the algorithm; they are woolly and very broad.
For example, Euclid's algorithm to find the highest common factor of two
numbers:
Currently it would be something like:
Claim 1. A method whereby
two numbers are input and their highest common factor output.
Claim 2. It is
ascertained that the difference between the quotient of the division of the
dividend by the divisor and the same, ignoring partial results multiplied by the
divisor and the quotient is zero or not.
Claim 3. Claim 2 is further
extended by use of such ascertainment to a further decision being made to modify
the numbers so that ascertainment of a second level can be made as to that which
was originally sought.
Claim 4. By use of claims 2 and 3 the the output will
be of a desired result.
Along with more waffle that may, or may more likely
not, actually describe how to do it; whereas what should be required is
something like:
1. Find the remainder of the first number divided by the
second
2. If the remainder is not zero, make the second number the first
number and the remainder the second number and repeat from step 1
3. The
highest common factor is the second number.
Alternatively, I could write it
as:
1. Let the two numbers be N1 and N2
2. find the remainder R when N1
is divide by N2
3. If R is not zero, let N1 be N2 and N2 be R and repeat
from step 2
4. The Highest Common Factor is N2
Either of those tell
anyone who wants to program Euclid's algorithm clearly exactly how to do it: the
actual lines of code to do it are left up to the programmer; for example in
C:
int hcf(n1, n2)
int n1, n2;
{
int r;
for (; r = n1 % n2;
n2 = r) n1 = n2;
return n2;
}
In BASIC, Pascal, Fortran, the code
would be different, eg BBC Basic:
10 DEF FN_hcf(n1, n2)
20 LOCAL
r
30 REPEAT
40 r = n1 MOD n2: n1 = n2 : n2 = r
50 UNTIL r = 0
60
= n1
Or in SuperBASIC on a QL:
10 DEFine FuNction hcf(n1, n2)
20
LOCal lp, r
30 REPeat lp
40 r = n1 MOD n2: if r = 0: EXIT lp
50 n1 =
n2, n2 = r
60 END REPeat lp
70 RETurn n2
80 END DEFine
All
different source codes, all designed for different environments, but all execute
the same algorithm*. If one source code was included, which one
would it be? Also, would the other source codes be non-infringing?
So while
I agree that a source could could be included, the actual algorithm that
the source codes executes needs to be clearly written (as USPTO supposedly
requires) - perhaps a standard pseudocode?
*There are subtle
difference between the versions due to the size of integers that the modulus
operator can utilise; the code could be written to trap for things like one (or
both) numbers zero or negative IF it was used in an environment where
rational inputs (ie both numbers greater than zero) cannot be guaranteed. [ Reply to This | # ]
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| Authored by: 351-4V on Friday, January 04 2013 @ 12:11 PM EST | | maybe somebody should at least mention it to them
P.J.
is right here of course. I'll go further and propose that the only correct
course of action is to insist upon an end to software patents with no further
discussion. Too extreme you say? While I normally agree that dialog and the
compromise resulting from cooperation are usually for the best, I must take
exception in this case. If we agree to "partner" with them and commence a
discussion of how to fix software patents, we have already compromised and
allowed their argument in favor of software patents. The moment we open this
dialog, we concede our main point and gain nothing in return. This is not
compromise, this is capitulation. No doubt there will be many
well-intentioned people of high repute that will engage the USPTO in a
discussion of how to fix a software patent and I wish them well. But do not be
surprised when this spirit of cooperation and compromise is spun in a press
release that claims "Major software authors see need for patents". This will
not happen only because of malice, but it will happen honestly as well because
if you are talking with someone about fixing something, you are implicitly
supporting the thing's existence. I do support discussion and dialog with
the USPTO but that discussion should be limited to how to dismantle the software
patents that exist at the present time and how to create a developer environment
free of software patents altogether. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 12:22 PM EST | I think that the argument that software should simply not be patentable should
be made. Get it on the record. But we also have to realistically recognize
that such an argument will not be accepted. So we need to do like we've seen a
number of legal teams do: We make multiple arguments. If one is not accepted,
we hope that the next one is.If software patents are not going to be completely prohibited, how do we limit
the damage? One way is by making them less vague, less "covering
everything under the sun". How do we do that? One way is by using the phrase "one ordinarily skilled in the art".
My proposal is that the USPTO hire a bunch of programmers who are
"ordinarily skilled in the art" - say, three to five years experience.
(Five years is where you start getting into "senior software
engineer" territory.) Each software patent application is handed to three
of the USPTO's software guys. Each one makes a simple decision: Yes, given the
information in the application, I know how to implement that; or else No, I
don't know how to implement that because it's too vague. If the majority votes
No, the application is rejected because it does not contain sufficient detail to
enable one ordinarily skilled in the art to practice the invention. They might also, at the same time, make a Yes or No vote on obviousness. The point here is to get actual software people rather than just patent
examiners looking at the applications, and weeding out the junk that never
should have been patented. Weed out the vague patents that don't claim anything
concrete. Weed out the obvious stuff. We'd have a lot fewer problem patents.
(We'd still have software patents, which you may consider to be a problem in and
of itself, but I don't think we're going to win that battle this year.) MSS2 [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 01:10 PM EST | | 1) It's easier to try something better if you can go back. 2) Find out that it's easier to run without shackles. 3) Don't attack the portfolio monsters, soothe them instead. 4) Keep old patents intact. They'll be worthless soon anyway. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 01:42 PM EST |
It seems to me that USPTO would like to make patents more specific and more
restricted so that the full width of a process can be covered by more patents.
More patents covering a specific area = more revenue for the patent office.
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| Authored by: Anonymous on Friday, January 04 2013 @ 02:23 PM EST | Groklaw is an amazing blog and I read it with regularity, but I read things like
this, I know you've hit your collective blind spot: "I know the USPTO
doesn't want to hear that software and patents totally need to get a divorce,
but since most software developers believe that, maybe somebody should at least
mention it to them, if only as a future topic for discussion."For your information, my dear lawyers, it is CONGRESS and the COURTS that decide
what subject matter is considered patentable. The administration simply tries to
do the best they can to implement these overarching policies. They can't change
them. They'd be sued if they did. Seriously, I understand how logic can be subverted by high emotions, but that
was embarrassing.
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| Authored by: Anonymous on Friday, January 04 2013 @ 03:02 PM EST | This "round table" will be stuffed with highly paid lobbyists and
lawyers from large corporations and patent trolls.Joe Average Programmer will have to stand at the sideline and watch how the big
boys spin their story that software patents are absolutely needed to ensure
America's leadership and glory, and that being against software patents is
unamerican. [ Reply to This | # ]
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| Authored by: OpenSourceFTW on Friday, January 04 2013 @ 03:20 PM EST | We definitely need to make sure someone brings up throwing out SW patents
wholesale.They are unlikely to listen to it, but at least it will be on record. There should also be a more moderate approach, but not too moderate. RMS's
suggestion on barring patents on general purpose computers is an excellent start
to clearing up the mess. I feel that attempting to reason with them about math and algorithms is not
going to work well, so give them economic reasons as well. Show them how SW
development is so stifled by patents that any developer can be sued over just
about anything. Multiple times. Without warning. And that the developer can do
exactly NOTHING to avoid it except not write software. Searching a patent
database is no help at all. In fact, if they find out the developer happened to
glance at their patent, boom, treble damages. Something needs to be said about how too many SW patents are so broad that they
cover huge segments of computing, even overlapping with other SW patents. Many SW patents are so vague that even if you know about them in advance, there
is not much you can do to avoid infringing upon them. No implementation is
described. The entire point of a patent is to encourage public publishing of an invention
to benefit the whole country. The incentive is the temporary monopoly granted to
practice the patent, after which the invention is available to all. SW patents
are written in such a way as to subvert this, being convoluted, vague, and
broad. The monopoly part is used (and abused) alright, but what happened to the
public publishing that is the entire point of the whole process? If patents are no longer about publishing an invention, then why have them at
all? Also, the technology industry moves at warp speed. A SW patent's term is a
lifetime in computing terms, so they at least need to be much shorter. [ Reply to This | # ]
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| Authored by: YurtGuppy on Friday, January 04 2013 @ 03:30 PM EST | "..an algorithm must be expressed in sufficient detail to provide means to
accomplish the claimed function." ---
a small fish in an even smaller pond [ Reply to This | # ]
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