Microsoft Questions Strong Presumption of Patent Validity over Newly Found Prior Art

Lucent v. Gateway, Dell, and Microsoft (Fed. Cir. 2009)

In its original opinion, the Federal Circuit vacated a $350+ million verdict against Microsoft based on improper damages calculations. On remand, the court must conduct a new damages assessment, but in that scenario Microsoft will certainly be on-the-hook for millions of dollars.

As an end-run, Microsoft has petitioned the Federal Circuit for a rehearing of the Lucent case en banc with a special focus on a particular issue that was ignored by the original opinion: the standard of proof for proving invalidity when the defendant presents prior art evidence that was not considered during patent prosecution. In particular, the software giant asks the court to “overrule its precedents requiring clear and convincing evidence of invalidity when the PTO did not consider the asserted prior art.”

Microsoft argues that the justification for a clear-and-convincing disappears when the patent challenge is based on newly uncovered prior art:

As the Supreme Court noted in KSR, however, "the rationale underlying the presumption [of validity]-that the PTO, in its expertise, has approved the claim-seems much diminished" where the claim of obviousness is based on prior art that was never before the PTO. 550 U.S. at 426. See also Penn Int '1 Indus., Inc. v. New World Mjg. Inc., 69 1 F.2d 1297, 1300-01 (9th Cir. 1982) ("'The basis for the presumption-that the Patent Office has compared the claim of the patent with the prior art and used its expertise to determine validity-can no longer exist when substantial evidence of prior art not considered by the Patent Office is placed in evidence at trial."). As the Supreme Court cogently observed, the force of the statutory presumption-which stems from the conclusion that the PTO has done "its job properly," see Superior Fireplace Co. v. Majestic Products Co., 270 F.3d 1358, 1367 & n.l (Fed. Cir. 2001)-dissipates when the PTO lacked essential evidence.

The case relies on the writings of several academics including the Lichtman & Lemley work on Gold Plated Patents.  In April 2009, I suggested that this type of frontal challenge on the strong presumption of validity would be coming soon.

Notes:

• File Attachment: Lucent petition.pdf (3850 KB)
• Prior Discussion of Presumption of Validity on Patently-O
• Prior Discussion of Lucent v. Gateway on Patently-O

Comments

[HierarchyOfPontificationBuckets]

Hmm, how do we ever know that a reference was not considered? An Examiner may consider many references when doing an art search. We'll never know which references were considered. For that matter, couldn't the party desiring the presumption look at the Examiner's search records and argue that the previously unconsidered reference was most likely consiered? I wonder if a hidden reason for the current rule is that the courts don't want to perform patent examination anew.

[broje]

If the new reference does not clearly and convincingly demonstrate that the claim is invalid, then why is not substantially cumulative with the art considered of record?

Should there not be, at the very least, a preservation of the presumption of validity of the patent claims versus the new art if the defendant cannot show that the new art is not substantially cumulative with the art considered of record?

[Noise above Law]

MaxDrie,

Here is a forum for you - Let's hear your thoughts.

[Alan McDonald]

It's about time someone took this one head on.

Microsoft has the resources and the desire.

I smell an eventual petition for cert and another chance for the Supremes to knock out a Federal Circuit "rule" (invalidity must be shown by clear and convincing evidence).

[Jules]

Ahhh look at that. The old discussion linked to contains my old moniker. That was also the thread where MD was attacked for being a simpleton. No offense MD, but man was that hilarious! Actually, that entire thread was rather enlightening if you ask me.

[Zarkonan]

Interesting. This may lead competitors to hold back art for a given patent application for fear of an Examiner dropping the ball on the art. I know litigators already hold this opinion (hold back your best art), but it was, as far as I know, an opinion never backed by case law. But if art not considered by the office has a lower standard, then it makes sense to hold it back until litigation.
-Z

[Ned Heller]

I have yet to read the opinions, but would like to point out that we have a statute here that cannot be ignored. The presumption of validity remains, by statute, until a patent is held invalid by a court.

Now, if a piece of prior art has never been before an examiner, that fact alone cannot erase the statutory presumption. However, if the prior art is more pertinent than other art, it certainly will help prove a patent invalid, perhaps convincingly.

I read that Lemley has again come down on the side favoring infringers. I begin to smell a rat here. There certainly is bias, but where is its source?

[West Coast Guy]

HierarchyOfPontificationBuckets,

"Hmm, how do we ever know that a reference was not considered?"

The examiner initials the IDS. If the examiner's initials appear adjacent to the citation on the IDS, then the document has been considered. See MPEP § 609.

[MaxDrei]

It's flattering to be asked to comment but just at the moment I'm not feeling inspired. Just to say something to tickle the thread though, here's this:

1. Boards of Appeal at the EPO are open to the idea of admitting relevant prior art late in post-issue opposition proceedings because they perceive a benefit to society in revoking invalid patents.

2. American commentators constantly stress the importance of upholding and enforcing issued patents despite serious doubts about their validity. I think it's the Admiral Byng Principle that drives them. You know: every now and then summarily execute an "infringer" (or an Admiral of the Fleet) for failing in his duty, pour encourager les autres. It is very true that industry on mainland Europe is not as frightened of being caught infringing a patent as is industry resident in the USA

3. Let the Nobel prize-winning economists tell us which approach, EPO or USA, brings most benefit to society. I honestly don't know, cos I'm just a simple coalface worker.

4. But please, please don't tell me again that the USA has so many Nobel prize winners because of the unique features of its patent system. That really would be boring.

[West Coast Guy]

It is Congress that has set the "clear and convicing evidence" standard.

Under 35 USC 273(b)(4):

--

(4) BURDEN OF PROOF.— A person asserting the defense under this section shall have the burden of establishing the defense by clear and convincing evidence.

--

If Microsoft is going to prevail, it would seem to show that Congress intended the c&c evidence standard applies in those situations where there is no newly uncovered prior art.

[Ned Heller]

West Coast Guy, the statute you quoted pertains only to the "prior user" defense available for business method patents.

[Choose Disco]

If the art is that good, shouldn't MSFT force a reexamination? I presume that the art probably isn't 102 art and they have a strong 103 argument. Or they want to change the law so as to weaken the strength of patents in general.

[Malcolm Mooney]

"I begin to smell a rat here. There certainly is bias, but where is its source?"

The source of your bias, Ned, is that you live in Silicon Valley and have a vested interest in keeping crappy software patents as viable as possible.

Mind you, changing the "clear and convincing evidence" standard to a differently articulated standard is not terribly important. What is important is the Supreme Court's compelling logic, noted by Microsoft, and the increasing awareness amongst jurists and the public that the PTO's software/computer art units have been rubber-stamping garbage and continue to do so. In some respects, that recognition is enough to justify invalidation in a jurists mind when that jurist might otherwise not pull the plug. Nobody knows exactly where "clear and convincing" and "preponderance of evidence" begins and ends anyway.

[Ned Heller]

Malcolm, my location is not as relevant as you think as Lemley is also located in "Silicon Valley." Silicon Valley is highly divided on patents, from major companies who have turned anti-patent to smaller startups who value patents highly.

As to the PTO rubber-stamping garbage, I presume you to say that the patents are invalid over the prior art. This is a temporary problem as the patent literature in a new art increases.

What I favor is a prior user defense that was limited in the act passed in the late '90s to business methods. It should be available to all and should not be limited to proof by the clear and convincing standard, as the defense is intended as a form of non infringement.

[broje]

MM, your comments are invalid in view of your own prior art comments that state the same thing. It's a 102 rejection, pure and simple.

[Ken Brooks]

Now see it is quotes like these which make the hair on the back of my neck stand up. ("'The basis for the presumption-that the Patent Office has compared the claim of the patent with the prior art and used its expertise to determine validity-can no longer exist when substantial evidence of prior art not considered by the Patent Office is placed in evidence at trial."). "As the Supreme Court cogently observed, the force of the statutory presumption-which stems from the conclusion that the PTO has done "its job properly," see Superior Fireplace Co. v. Majestic Products Co., 270 F.3d 1358, 1367 & n.l (Fed. Cir. 2001)-dissipates when the PTO lacked essential evidence."

Firstly, essential evidence is irrelevant. Why do the courts throw more nouns at something to try to flesh out a rule. There is only one type of information that is relevant and that is "information material to the patentability of the claims". The faiilure to appreciate this is what gets more pratictioners in trouble than anything else. It matters not where the material information is found, e.g., what reference, what matters is the information. For example, if one brings a patent publication to the attention of the examiner, often I am faced with deciding whether to bring the corresponding published patent to the examiner. In other words, is there information in the issued patent, not present in the corresponding patent publication, which is material to the claimed subject matter. Well, if we are concerned with obvious-type double-patenting, you darn tootin you better bring the issued patent to the attention of the examiner, because the fact that the claims are now issued is important, even if the claims in the two references are identical. See McKesson.

So now let's address the presumption of validity based upon an additional reference coming to light after litigation. It would make sense only if that reference contained material information not considered by the USPTO. The corollary to this is that no patent should be invalidated for failing to bring attention to the Office, unless that information could be used to invalidate the claims. However, that is another discussion.

[Ned Heller]

Choose Disco, just reading the brief, it appears the claims are finally rejected (as obvious) over this art in a reexamination. Lucent probably will appeal, which will take years to resolve. In the meantime, Microsoft's strategy is clear -- keep their own case alive until the reexamination is final. In that case, they might argue that the infringed claims are no longer in the patent, in which case, they win.

[6]

"This is a temporary problem as the patent literature in a new art increases. "

That's actually true, you can never have enough piece's of art showing old computers.

[Ned Heller]

Would it be proper to instruct the jury that so-and-so art was not considered by the examiner? If the is, that instruction would de-facto kill the presumption of validity regardless of the court's instructions to the contrary.

[LeMieux]

Mooney, as usual, you don't know what you're talking about. Regardless of whether or not you think the presumption of validity holds for so-called "garbage" patents, it is a hard surface, a cutting board if you will, against which the good can be separated from the bad.

It is not unlike the presumption of innocence in the criminal law system. That presumption works to increase the likelihood that the legal process will reach the right result in an uncertain world.

Without it, it is like trying to cut squid on a bed if bowling balls.

Now go back to drooling over the picture of Arnold, which we all know was de-stapled from the back of the door in your mom's basement.

[LeMieux]

...Any failure of the strength of the presumption should be attributed to a general failure of the USPTO to issue quality patents. Applicants should not be penalized by marginalizing patents that were legitimately issued.

As was done with business method patents, if a class of patents is deemed to be of dubious quality, the patents should be withdrawn from issue by the office and re-examined properly.

Otherwise, the proposed post-grant review will become an administrative process in which large entities can afford to relatively costlessly tie up small entities in an endless quagmire of "review." You know, like Europe where you never hear of a legitimate patentee prevailing on an infringement suit. You never hear of infringement suits period. What kind of world is that? Not one that I want to live in, and I'm not even a litigator.

[6]

I just put my data into the calculator. In my slightly RCE heavy, and above avg time heavy art, these are the results.

I'll be getting 3.3 more hours per bd. Could be worse right?

The numbers I had are approximately
20 FFAOMs, 25 RCE FAOMs, and 10 2nd RCE+ FAOMs

Some cases kind of skew the count though. Got a few arseholes that think they can claim the entire art and simply file RCE's forever. Literally, one guy really wants to claim practically the whole art.

Additionally there was a period where I was practically doing nothing but finals, allowances and RCE's, but that wave passed after a few months. So that kind of skewed the results as well.

[Ned Heller]

LeMieux, excellent post that last one, especially the point about the abusive practices that abound in Europe where it appears that the patent system is rigged in favor of the vested interests through oppositions and per-state nullity proceeds. However, I must disagree about withdrawing patents from issue and reexamining them -- again. We need instead a prior-user defense, as I said in an earlier post.

[Malcolm Mooney]

"As to the PTO rubber-stamping garbage, I presume you to say that the patents are invalid over the prior art. This is a temporary problem as the patent literature in a new art increases."

What is the new "art" you are referring to? The "art" of recommending movies? The "art" of performing a statistical analysis? The "art" of maximizing profit by minimizing risk?

Please be explicit. What is the "new" "art" you are referring to?

[No One in Particular]

If Microsoft is successful in getting the Court to "overrule its precedents requiring clear and convincing evidence of invalidity when the PTO did not consider the asserted prior art," will the Court also stop assuming that the PTO has "done its job properly" and stop giving the PTO substantial deference when an Applicant appeals a PTO decision?

Or, perhaps the PTO is only doing its job properly when Microsoft benefits from it.

And if the Court wants to decide whether the PTO is doing its job properly they should read 6's posts here.

[Ken Brooks]

Is Mr. Crouch copying the look and feel of the patent prospector blog by including pictures at the head of each story?

[LeMieux]

"Please be explicit. What is the "new" "art" you are referring to?"

Here's a question for you Mooney, what color is the boathouse at Hereford, WHAT COLOR IS THE BOATHOUSE AT HEREFORD...?

Just as I thought, a snivelling wanna-be, just like that guy in Ronin...

[Malcolm Mooney]

"Here's a question for you Mooney, what color is the "

*Yawn*

Seriously, does anyone have any idea what "new art" Ned is referring to?

[Ned Heller]

Malcolm, good rejoinder. However that circles back to what is a "useful Art?" What is it if is 1) made by man; and 2) useful? How are we to draw realistic lines between two things or methods that are both made by man and useful?

The better approach if utility is disclosed is to examine the patents for novelty. If the literature is absent, it will only be so for a short time as patents in the arena are filed. But to protect the public, we need defenses like "prior user" defense.

But what we have here argued by Lemley and others is that the so-called junk patents require us to throw out the baby with the bathwater; to vacant general laws that are necessary for a properly functioning patent system, institute post grant oppositions and unrestrained serial reexaminations by anonymous filers who game the system in the same way they appear to do in Europe.

The problems of patents in new arts can and should be addressed in other ways. The methods argued by Lemley and others are highly destructive of the United States patent system as a whole.

[Ned Heller]

"New art" refers to the accumulation of patent art as people file for patent applications in a new area of technology. For example, once upon a time there was no such thing as independent software, as software was the province of "big iron" who made money selling hardware and who essentially gave away their software as a service. At that time, big iron filed amicus briefs opposing software patents. Then others developed new software technologies, such as databases and spreadsheets that were both useful and which deserved protection. Now big iron is history and the big iron companies have switched sides. They now make money off of software and their software patents.

Alappat and State Street Bank did create a problem in allowing patents on anything useful that produced a concrete result, even if that result were something intangible like price. The Supreme might reverse those cases; but they might not as well. We shall see. But, as I have argued, there are ways to cope with patents in new technologies and this essentially comprises a prior user defense. There is no need to redo the entire system to fix a small problem. Only the most radical would view this as acceptable.

[ESC]

My law review Note defending the clear and convincing standard for rebutting the presumption of validity will be published in a few weeks. Etan S. Chatlynne, The Burden of Establishing Patent Invalidity: Maintaining a Heightened Evidentiary Standard Despite Increasing 'Verbal Variances,' 31 Cardozo L. Rev. 297 (2009).

In the meantime, please see the nearly final version on SSRN. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1346374

[Malcolm Mooney]

"Then others developed new software technologies, such as databases and spreadsheets that were both useful and which deserved protection."

When was that? When was the first "database" invented?

[6]

"But what we have here argued by Lemley and others is that the so-called junk patents require us to throw out the baby with the bathwater"

Actually there is no baby in that bathwater.

"For example, once upon a time there was no such thing as independent software, as software was the province of "big iron" who made money selling hardware and who essentially gave away their software as a service."

And what, prey tell, is the issue with this model? As far as I can tell it worked out all around. Everyone engaging in a useful art was adequately rewarded (or, at least a lot of them were) and those that were not still made their way.

[Ned Heller]

Etan, excellent article. It points out that the Fed. Cir.'s "clear and convincing" burden of proof extends to the "evidence" and not to the burden of persuasion or the ultimate legal conclusion of validity or invalidity.

Now consider for a moment business methods. Before they became patentable, most businesses simply practiced them in private. As such, whether they constituted prior art was and is iffy as unpublished prior art must be "publicly" known or "publicly" used (in the United States). So, even if a business were to prove prior use of a business method, it might not be sufficiently "public" to be prior art.

This is why the prior user defense is important. The prior use can be private. It does not have to be invalidating.

Which brings us full circle to the reason many are advocating reducing the presumption of validity: such prior use evidence can hardly ever be sufficiently clear and convincing, as it most likely relies heavily on oral testimony, which, as your article points out, is a major reason the Supreme Court created the presumption of validity in the first place. Reducing the quality of evidence necessary to establish invalidity would allow for better defenses against business method patents, but it would also critically undermine an essential pillar of our patent system.

Again, I think the central problem with business method patents that cover prior business methods lies in the bells and whistles congress tacked on to this prior user defense. If the statute had been a one liner and not a two pager, the defense would have been viable and the problems we have today with so-called "junk" business method patents would be less severe.

[Ned Heller]

Malcolm: Arguably, E.F. Codd in 1970, invented the database:

http://math.hws.edu/vaughn/cpsc/343/2003/history.html

[Ned Heller]

6, you really like monopolies don't you? You see no value whatsoever in innovation protected by patents so that big blue and big software cannot steal it. Otherwise you would not applaud the monopoly models of doing business you so readily applaud.

[interloper]

Interesting discussion. It beggars belief that the US doesn't already have a 'prior user' defence.
It is drawing a long bow to suggest that the 'presumption of innocence' and the 'presumption of validity' are equally valid. One is to protect against a miscarriage of justice. The other is about more economic certainty. They are qualitiatively different.
I understand the quandry you're all in. With jury trials being such a lottery, it makes sense to try and constrain the jury's power, by forcing a presumption of validity on them. In the abstract, it makes no sense to weight matters towards one side rather than the other. But since when did the law have to make sense?

[MaxDrei]

To LeMieux and Ned Heller it "appears" that Europe is a place where owners of patent claims that have not been found invalid never succeed. Readers, I would suggest a degree of caution. Don't advise your real live clients based on reports of what appeared to Ned and LeMieux in their dreams. Remember instead what I wrote in an earlier thread about the District Court of Duesseldorf setting up a booth in a recent international trade exhibition, for enjoining infringers (and seizing infringing goods) with minimal delay, presuming the asserted patent claim is not invalid. Europe doesn't do triple damages. That makes a big difference. It's true that manufacturers in mainland Europe have traditionally not allowed a big budget for outside counsel FTO opinions, but they're spending a lot more on that now. Suddenly being enjoined is not pleasant.

[MaxDrei]

Interloper you ask "Since when" should the law make sense. I would answer that respect for the Rule of Law is essential to civilisation as we know it, and as a reason to be proud of our society. So lawyers who make the law inexplicable to ordinary mortals are slowly destroying society.

I find it offensive to equate the presumption of innocence with the presumption of validity of a claim asserted in a patent action. One goes to protect the liberty of a real person, the other to skew the balance between the parties in a patent dispute who might be patent owner but equally well might be the accused infringer, depending which product, of which party, the argument is about, in which court, on which day of the week.

[Ned Heller]

MaxDrei, in another thread we discussed briefly the imperfections in the European patent enforcement system and the comments of a British jurist. One of the things he advocated was dispensing with separate nullity actions and to try validity and infringement together with one claim construction for both. I asked you twice in that thread your opinion on this, but I do not know if you replied. Your answer is important, as many here in the US are essentially arguing for a European approach where validity is always decided in the USPTO.

[Ned Heller]

I just finished reading the Fed. Cir. opinion Microsoft wants to "overturn." It appears that the Datamation article was very "unclear" and very "uncertain" on whether it disclosed at least four limitations in the asserted claims. Now we know why Microsoft wants to reduce the standard of proof.

As to what went on the patent office during reexamination, I can tell you without even reading the examiner's final action. Much of the district court's and the Federal Circuit's opinion was based upon the court's claim construction. If one were to adopt the "broadest" reasonable construction the claim could support, the claims would be invalid over the Datamation article.

But this only goes to show the extreme hypocrisy of Microsoft, and the extent of the vicious games reexaminations permit infringers to play. Without a full discussion of the claim interpretation given the claims in the patent office, we can never really tell what was examined there. All we can know with any degree of confidence is that the issues before the examiner and the issues before the courts were different.

[Erez Gur]

It seems that at least part of the problem with this case (and in my humble opinion, most patent cases) could be solved by an injunction.

Instead of having to pay damages, Microsoft should have been asked to immediately deactivate/remove the infringing module from the software package.

That would have stopped infringement from that point on and would provide hard data (e.g., from the number of illegal downloads to reactivate the module) to calculate previous damages.

If Microsoft did not want to deactivate the module, they would have to negotiate a license with Lucent.

[Noise above Law]

MaxDrie,

One little point of clarification - you state "So lawyers who make the law inexplicable..."

Last I checked, "lawyers" don't make laws - Government, specifically Congress (and in civil matters, judges) make laws. Lawyers work within the confinces of the laws already created.

[MaxDrei]

NAL, I stand corrected. I was using "lawyers" loosely, thinking that judges are also "lawyers". Forgive me.

Mr Heller, I have now replied on another thread, to your plea for a comment on deciding infringement and validity before one judge, in one action, in one court. In short, the English way.

I don't recognise your characterization of Europe as a place where courts decide on infringement and Patent Offices decide on validity. There is a distinction between "examined rights" and "non-examined rights". With the former, obviousness is examined before a patent is issued and, with the latter, not. Examined rights have a Presumption of Validity, to the extent that the burden is on the attacker, to prove to the court that the claim in suit embraces matter that is old or obvious. Where we differ is that, in Europe, the petitioner who comes up with a preponderance of evidence of invalidity has done enough to invalidate the claim.

[Wherein Ivory Towers Also Have Mortgages]

Ned--I think the prevailing anti-patent bias in academia is at least partly driven by the demands of academia to publish in order to have a successful career. It appears to be much easier to get attention by attacking the status quo of (what used to be, anyway) a pro-patent system than to support it. (Of course, after some years of this, and now that many are on the bandwagon, one might expect the pendulum to swing back the other way.) In any case, I think it is important to keep in mind that academics (like attorneys and anyone else who works for a living) may end up saying things primarily because it will make them money.

[6]

"You see no value whatsoever in innovation protected by patents so that big blue and big software cannot steal it. Otherwise you would not applaud the monopoly models of doing business you so readily applaud."

Ned, I know this is hard for you but let's take it one thing at a time. First, software "innovation" isn't "inventing" and that is what patents protect. Second, sitting at your computer and using software is not "stealing" software. I'm sorry homeslice, it just isn't, no matter how much you and copyright holders would like it to be.

Plus, there is no reason that big blue et al. should have a monopoly other than that people liked to get their software. If people would have rather had someone else's software then that should be their choice. There was a whole lot of different kinds of software all the time while I was growing up, and while certain kinds were popular there was no reason that other people could not have made substitute software.

[Dale B. Halling]

Eliminating the presumption of validity when any new prior art is presented in a case will just cause patent attorneys to flood the PTO with prior art. The PTO cannot consider every piece of prior art, so Microsoft’s point of view is non-sense. There is a myth out there that the PTO has issued numerous bad patents. This myth has no basis in fact – for more information see http://hallingblog.com/2009/08/18/patent-quality-myth/.

There appears to be confusion about software patents. Software is just a method of turning a general purpose electronic circuit (computer) into an application specific electronic circuit. If electronic circuits should be patentable, then the only logical conclusion is that software should be patentable.

[LeMieux]

"When was that? When was the first "database" invented?"

>yawn<

you don't have to answer that question from the resident sleazebag.

[LeMieux]

Well Ned,

Even though you have put forth some good material, Mooney the sleazebag, will continue to go on and on about "crap" software patents. He is as bad as Mike Masnick over at Techdirt. Heck, he might even BE Mike Masnick. That would explain why he has unlimited amounts of time to blog on and on (and on....)

ZZZZZZZZZZZZZZZZZZZZZZZZ

[Malcolm Mooney]

"Software is just a method"

A Beauregard claim is a method claim?

[Malcolm Mooney]

"Arguably, E.F. Codd in 1970, invented the database"

So, taking your assertion at face value, a 40 year old invention is "new"???

Once again the difference between the childish, greedy behavior of those who want to keep the software patent bubble inflated for as long as possible and the grown ups in other art units is stark. Cloning was invented 40 years and yet somehow the PTO has managed to be very diligent about keeping up to date with the technology, and has scores if not hundreds of thoughtful, qualified Ph.D.s in its ranks examining biotech applications and keeping up them up to a relatively high standard.

No, my friend, the problem with software patenting (and related business method patenting) is not that the art is "new." The problem is that most of the Examiners in that unit are trained to act like idi0ts and cowards and the prosecutors like it that way.

[Alan McGrath]

A better choice of a thumbnail than Arnold may have been Joe Dube. He was the last person from the USA to become a International Federation of Weightlifters World Champ. He did that in 1969. See: http://www.chidlovski.net/liftup/a_interview_dube_032005.asp for more information on Joe Dube.

[Ned Heller]

6, just to clarify my point about "stealing." I am not talking about the individual using pirated software at home. I am thinking about companies deliberately copying the functionality of someone else's code while not copying the code itself and making it their own product. The way to stop this is only through patent protection.

Now suppose that the one copying has a monopoly in, for example, an operating system. If that monopoly software company includes the copied functionality in the monopoly product, the originator of the code will soon find himself out of business -- with no effective remedy.

For a long time, software developers failed to protect their innovations through patents, permitting wholesale copying of their innovations by competitors, include monopoly software. Lately, it appears, software innovators are being more careful and are protecting their investments through patents. So monopoly software fights back by trying to change the rules so that their deliberate piracy is more affordable and less subject to injunctions. A bravo performance all around by monopoly software to the detriment of everyone else but them.

[No One in Particular]

Malcom: "Arguably, E.F. Codd in 1970, invented the database"

Stonehenge (circa 2500 B.C) looks like a database to me.

Interloper: "It is drawing a long bow to suggest that the 'presumption of innocence' and the 'presumption of validity' are equally valid. One is to protect against a miscarriage of justice. The other is about more economic certainty. They are qualitiatively different."

No, they are not different. If you use the Law to invalidate (Steal) my Patent you are stealing the years of my life that I put into it.

Just like corporations, patents should be considered "legal persons" so they will be innocent until (and unless) proven guilty.

[LeMieux]

"childish, greedy behavior"

Who knows this topic better than Mooney?

[Fixed Your Claim]

From the essay that Dale B. Halling linked to: "As to the massive numbers of “unworthy patents” argument, the real-world test is how many patents are challenged and the outcome of those challenges. Between 1981 and 2006 the USPTO issued more than 3.1 million patents. In that period, 8,600 were challenged at the Patent Office through inter partes and ex parte reexaminations. The number challenged amounts to less than three-tenths of one percent. Of those challenged, about 74 percent resulted in claims narrowed or cancelled. In addition, almost 60 percent of the relatively few patents challenged in a court trial are sustained."

The number of patents challenged is not a test of anything. Patent are generally only challenged if they are first somehow asserted, either in an infringement action or in an offer of a license. Even if the challenged patents only represent 1% of all asserted patents, that would mean that 70% of patents are not asserted (according to the source's claim that 3/10 of 1% of patents are challenged). You can't conclude anything about the quality of the 70% that are not asserted from data about the 3/10 of 1% that are challenged, unless you assume that "challenged" patents are representative of the entire population of patents, which would be a questionable assumption.

The essay follows up an admittedly valid critique of the Jensen methodology by relying on a source with an equally poor methodology.

[Ned Heller]

MM: Malcom: "Arguably, E.F. Codd in 1970, invented the database"

Stonehenge (circa 2500 B.C) looks like a database to me."

Indeed! Appears that all database invention since is obvious, not so?

Perhaps we ought to amend my remarks to computer databases as it was "software" that was being discussed at the time.

But your point is humorous nonetheless.