EU software patent process restarted

[Ned]

Originally posted by shawnmmcc
Thank you Ned - a fairly simple, elegant solution.

Now a question for you - the biggest clunker. In either party could we find the constituency to push this? I have my own suspiciions, but I will admit that working for the government has caused me to become very jaded about large corporations and regulatory agencies, as in the big corporations like them because they can so routinely manipulate the regulation process to keep smaller companies out.

I think the largest protest will come from the "small inventors" who basically are the patent litigation bar. Now, you ask me which party supports and which party opposes fraudulent litigation?

[Mr. Harley]

Ned - I have watched the FAA put airlines out of business. It's well documented but hidden, you have to know the implications of certain regulatory actions - the case involved People's Express during the Reagan administration. I can explain it in about three paragraphs if you would like, it was really cute.

Which party supports cutting regulatory agencies, i.e. how are you going to find competent patent examiners without private sector pay and workloads? Again, this is maybe a Republican position? How about the policy of increasing fees to be funded by the affected industry, making the cost prohibitive for small inventors?

Plus which party favors lack of anti-trust enforcement, i.e. look at who initiated anti-trust actions against Microsoft, one of the worst offenders at abusing market position to move into new areas and eliminate opposition. Stacker, Netscape (which was actually over Server Software and the market penetration of browsers determining which would be purchased), word processors (Word Perfect, remember them?), et al. Don't take my word for it, look at the EU as well as substantial articles in the IT press.

Please note that the litigation issue that the Democrats are blamed for is not in the patent area - find me cites from sources better than the Washington Times, as a pre-caveat - but in the areas of liability, personal injury, and class action lawsuits. One of the effects of the new class action lawsuits will be to reduce states rights, one of the purported holy grails of the Neocons. Unless, however, it is inconvenient for one of their constituencies, i.e. large corporations. As I mentioned both parties, 19 Democrats broke ranks out of 45 on this legislation, so this is a semi-bipartisan issue, though since all the Republican Senators voted for it, versus less than 50% of the Democrats.

However, to keep on topic, small inventors are a constituency for whom? Small businessmen and entrepeneurs are solidly Republican, yet most Neocon legislation favors medium - large size businesses. Unless the Republican Party can return to the Barry Goldwater day roots, small inventors will find the Republican party at least as hostile, if not more so, than the Democratic party in reigning in patent abuse.

[Ned]

During the Clinton admin, patent law reform to reduce abuses was championed by the Democrats and resisted by the radical right. Go figure.

[Mr. Harley]

Ned - that's my point, and thank you for the fact, I freely admit I don't watch patent law closely. The only field I know enough about it to have a nuanced discussion is biology. I can follow programming enough to make a general contribution in that area. For every IBM - who I will admit is probably one of the best examples of how a large company can be a patent holder and a good citizen reference intellectual properties, you will find a Microsoft and Monsanto (plant genome squatting).

The Republican party has been hijacked by the religious right and that loosely defined group of people known as Neocons. If you look at legislation they champion, it almost never benefits the small businessman (reference your comment about the Democrats championing patent reform in the 1990s), except coincidentally when it helps larger corporations. I am not opposed to certain kinds of help for larger US based corporations, I believe firmly that Bush adminstration(s) and Clinton singlehandedly pretty much destroyed the aviation industry in this country by rolling over and playing dead on the Airbus, Eurocopter, and Rolls Royce (engines) issues.

But the direct corporate welfare, aka Haliburton and DOD (which was already going on prior to Cheney, so this is bipartisan) which pisses away taxpayer money, or another example being farm subsidies which have minimal benefit to the hypothetical small family farm, are both good examples where the system helps the large companies. Haliburton acted as a contract holder while subcontracting a substantial amount, meaning they took a cut while providing minimal services. That hurts the real small business, cutting out part of their profit margin. Those small businesses are the real drivers of the US economy, and those are the ones that need some of the help the larger corporations get.

[Ned]

Shawn, you got it 100% backwards. It was the radical right defending the small inventors and small business. It was the Dems and particularly the Clinton admin that favored reforms that protected big business.

[Mr. Harley]

Actually, Ned - the radical right, to use the term precisely, are those who espouse change in the right direction. A conservative wishes to maintain the status quo. The so-called traditional Republicans were the ones who believed in small inventors and small businesses. If you look at the people in control of the current Republican party, and the various legislation and tax cuts proposed (looking at actions, not platitudes) the current Republican party leadership is very much the party of large corporations. By the way, Clinton was also very favorable to them, and the backlash by the Greens was one of the critical factors costing Gore the election (note - one of mutlipe but still critical, the man snatched defeat from the jaws of victory).

[Urban Ranger]

Mr Gates got it right once

Originally posted by Asher
Okay, so they're not going to vote on this now?

Why is this a good thing for you?

Let me reply this question with a quote from Mr Gates himself:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today...A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

link

IOW, he once realised software patents stifle progress.

[Asher]

That's funny, I don't see him mention software patents at all.

What I do see him mention is the ridiculousness of the patent process today.

It's kinda funny how that was my point all along?

[Urban Ranger]

Originally posted by Ned
I think the central problem is that in our system we have ex parte prosecution, no opposition and a presumption of validity. I personally would recognize that ex parte examinations are not exhaustive and lead to problem patents. We should attach a presumption of validity only to patents that have been subject to an opposition and that an opposition must be conducted before a patent can be prosecuted in court.

That's a good solution. In addition, make it a requirement that a working prototype is required before a patent can be considered. That is going to eliminate huge piles of applications, particularly the bunk ones such as various incarnations of perpetual motion machines.

One more problem I think is the USPTO should stick with the requirement that a patent must be inobvious. For example, for the online shop application I wrote I sort the list of prior purchases for each customer by frequency. That is, the more times somebody buys something, the higher a ranking it gets. Quite obvious, you would think, but so is one-click purchase (I am waiting for Amazon to sue me now ).

[Urban Ranger]

Originally posted by Asher
That's funny, I don't see him mention software patents at all.

Did you notice he mentioned "the industry?" What industry could he be possibly referring to?

[Asher]

Originally posted by Urban Ranger
Did you notice he mentioned "the industry?" What industry could he be possibly referring to?

Learn to read and discover the big picture:

His beef in that quote is not the concept of software patents, but the process of how they are granted.

Honestly, UR, you really need to go back to the basics and understand what the hell is being said.

[Asher]

And for the record, RMS is a total nutcase. Nothing he says has any credibility as far as I'm concerned.

His picture says it all:

[Asher]

And because I'm exceptionally generous, I'm going to help you and your friend RMS with some basic reading comprehension:

"how patents would be granted" describes a process, not the patents themselves.

It's a shame RMS still doesn't know how to read, and better yet that he wrote his article based around that excerpt...

[Ned]

Originally posted by shawnmmcc
Actually, Ned - the radical right, to use the term precisely, are those who espouse change in the right direction. A conservative wishes to maintain the status quo. The so-called traditional Republicans were the ones who believed in small inventors and small businesses. If you look at the people in control of the current Republican party, and the various legislation and tax cuts proposed (looking at actions, not platitudes) the current Republican party leadership is very much the party of large corporations. By the way, Clinton was also very favorable to them, and the backlash by the Greens was one of the critical factors costing Gore the election (note - one of mutlipe but still critical, the man snatched defeat from the jaws of victory).

I can tell you that you still have it backwards. It was the Dems who favored big business and the Republicans who were very very hostile to the interests of big business. Just saying that Dems favor the little guy and the Repubs favor big business is not true at all. It is the opposite that is true -- at least when it comes to business.

[Ned]

Originally posted by Urban Ranger


That's a good solution. In addition, make it a requirement that a working prototype is required before a patent can be considered. That is going to eliminate huge piles of applications, particularly the bunk ones such as various incarnations of perpetual motion machines.

One more problem I think is the USPTO should stick with the requirement that a patent must be inobvious. For example, for the online shop application I wrote I sort the list of prior purchases for each customer by frequency. That is, the more times somebody buys something, the higher a ranking it gets. Quite obvious, you would think, but so is one-click purchase (I am waiting for Amazon to sue me now ).

UR, don't confuse what you believe is obvious from what the law requires as proof. The examiner has to find each element of the patent claim in the art and demonstrate why an ordinary artisan would choose to combine them in the way the inventor did. The problem with software patents is that the traditional means for an examiner to make this demonstration is lacking as there is no large collection of past software techniques that is easily searchable. With virtually every other technology, the converse is true, which makes weeding out "obvious" variations easier.