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Posted on Sep 24, 2012 at 10:43 AM | Permalink
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Very plausible logic from the good professor. By virtue of a strong patent system, the pioneers are worshipped, but the tweakers (who are the real life "makers") are hobbled.
People, where's the flaw?
Sep 24, 2012 at 11:56 AM
Since the only technology example in this video is the well known story of Steve Jobs getting leading Xerox PARC R&D for free to use in LISA and then the Mac, one should at least be aware that that particular situation was both avoidable and abnormal. It was the result of two very unfortunate [especially in hindsight] decisions made by certain members of Xerox management at the time. First, to order PARC personel to provide Steve Jobs and his Apple staff with full and detailed access on a non-confidential basis to the PARC technology. Secondly, and equally unfortunate [to chose my words carefully], a decision to not even devote the resources to filing 16 proposed patent applications on that technology, contrary to the advice of the line patent attorneys involved.
To think that this could be done to a normal company's important R&D is a grave missassumption. The example, and irony, of the just decided Apple v. Samsung IP litigation is a more relevant lesson.
Sep 24, 2012 at 12:09 PM
Tweaking is not the same as copying (a difference that seems lost to the good professor).
Tweaking is every bit as patent eligible as the pioneering (if the existing law is correctly understood).
Sep 24, 2012 at 02:30 PM
Indeed, and if we're to be having an "innovation economy" trust me when I say that we're not all going to be pioneers. There is going to be a whole sht ton of tweakers.
Sep 24, 2012 at 02:39 PM
"Tweaking is every bit as patent eligible as the pioneering (if the existing law is correctly understood)."
He knows that it is eligible, but he also knows that the person with the patent on the original mouse captures all the downstream efforts and makes it more difficult (or costly if you prefer) for those downstream people to bring their stuff to market.
Sep 24, 2012 at 02:40 PM
"People, where's the flaw?"
"the pioneers are worshipped"
Sep 24, 2012 at 02:41 PM
Curmudgeon, I didn't know this. If this is true, but for a SOL problem, I thing the shareholders of Xerox would have serious cause of action against management for gross negligence if not borderline criminal misconduct.
What a joke.
But, bully for Jobs in bringing the Xerox technology to market. Bravo for that.
Ned Heller |
Sep 24, 2012 at 02:54 PM
6, are you saying that everyone that makes an improvement on the mouse must pay a royalty to the original patent holder on the mouse?
101 Integration Expert |
Sep 24, 2012 at 03:05 PM
101, in essence, yes.
Patent 1: The mouse.
Patent 2: The improved mouse.
The practice of patent 2 infringes patent 1.
Patent 1: Functional claim to moving a pointed on a computer display in response to human input. Disclosed: a mouse.
Morse/Halliburton: claim 1 is invalid.
Judge Rich to Supreme Court, "I overruled Halliburton and for that matter, Morse. The claim cover the corresponding structure, the mouse."
Patent 2, Mouse pad.
Does Patent 1 cover patent 2?
Supreme Court, no. Judge Rich, of course.
Now, who was the best patent judge of all time in his own mind?
Ned Heller |
Sep 24, 2012 at 03:20 PM
Well said 6.
No patent thickets in fashion; fashion creativity booms, unrestrained.
But wherever there's engineering, and patent-eligibility, patent thickets will stifle further technological progress. What remains are the engineering corporate behemoths, with piles of patents threatening each other with MAD (see Apple v Samsung).
Sep 24, 2012 at 04:09 PM
Mistake repeated for at least the fourth time: "Halliburton:"
See your own submitted source of Frederico.
Also, your passion against Rich is misplaced. It appears that you should be assailing Frederico.
Piles of dead prisoners are mounting again.
Sep 24, 2012 at 04:13 PM
Incoming post on the director's blog related to whether or not 101 can be used under the new review process to invalidate business methods. Turns out, he thinks we'll be looking at 101 challenges.
Sep 24, 2012 at 04:13 PM
"fashion creativity booms, unrestrained"
You clearly know nothing of the skullduggery in the fashion world.
Sep 24, 2012 at 04:14 PM
Tell me then. Is the skullduggery in the fashion world qualitatively different from the skullduggery in the world of patent-eligible matter? And to think how many times in recent months have I seen the word "derivation".
One man's skulldugger is another man's "maker", is it?
Sep 24, 2012 at 04:42 PM
An existing patent doesn't make it any more costly too "bring their stuff to market". Stealing someone's patented invention is done all the time and theft costs nothing. It is possible that it MAY make it more costly to keep it on the market later. Perhaps decades later. Perhaps not all.
Prof Sprigman lives in a illusion - an illusion that a patent is actually an instrument to protect the pioneer.
Calistus Obrien |
Sep 24, 2012 at 04:43 PM
"One man's skulldugger is another man's "maker", is it?"
I most assuredly hope not. That's what we hope to avoid, is it not?
Sep 24, 2012 at 05:53 PM
Patent Assault Starts Thursday
Patents attorneys have a chance to pick up some easy bucks before their evil regime ends. Google and others have pushed through a rule that allows 3rd parties to shoot down established "frivolous patents" which in practice is one and the same thing.
If you are unemployed, or otherwise free to pile on, join up, get busy and bring help bring down this evil intellectual property regime that is one of the main reasons you are unemployed. This is truly a nonviolent response to a constant threat of violence that by dint of effort of patent attorneys has grown ever more evil over the years.
Rarely do we get chances like this. Get busy! Spread this around.
Feel free to forward this by email to three of your friends.
Sep 24, 2012 at 05:54 PM
anon, I do not mistake anything. The statute clearly is a codification of the law regarding functional claims prior to '52. It did not overturn anything.
Ned Heller |
Sep 24, 2012 at 06:43 PM
Yes, Anon, an improvement patent seems to be "lost" on him. This guy sounds like another Lemley except not as clever or amoral.
You have to love all the strawmen and just not mentioning disclosing inventions for the right to exclude.
You know, those of us that worked in corporations and have seen product development first hand can see what would happen. The "tweakers" would be the only ones with jobs. That means if what you are doing needs more capital investment than what can be gained before it is copied then you are out of work.
In other words, if what you contribution to the product is more than fashion or a tweak, then you are fired. That is what would happen.
Sep 25, 2012 at 03:44 AM
Aren't others deeply offended too that supposed reform is being pushed as a soap commercial from a law professor? Clearly this is at about the same intellectual level of a Lemley law "journal" (aka vanity press) publication (advertisement).
Microsoft hired thousands of researchers because of patents.
This guy wants to change a system based on his own agenda of wanting fame. That is what it is all about. He wants fame and so he makes a soap commercial for "his" idea and wants to get his trademark on the idea as quick as possible so someone else doesn't steal it.
Isn't there irony here? Someone strips the debate of all possible reason and turns it into a soap commercial, and wants to trademark the reform as his in a way that is a lightening strike campaign to insure he keeps ownership of the reform idea.
We product managers can imagine that this is how technology would look inside corporations post patents. This man is a fashion designer of ideas just like Lemley. Lemley has more flair. Lemley is better at the tease and his ideas have more flow and hide the flaws better. I get such a rush when Lemley trots out one of his fashion ideas. But, ahh, then, in the end, I am left alone at night with my own thoughts and reality.
Sep 25, 2012 at 04:04 AM
Fashion is great is it. Good strawman.
And, the NFL. Gee, fashion and the NFL. They are just so similar to product development in electronics.
Sep 25, 2012 at 04:14 AM
Ned, all areas have exactly the same problem with funcional language right now. Mechanical. Hinge. EE a to d converts. In fact, all areas functional claim.
All areas. there are too many ways to implement things that functional language is used.
So, you mischief makers, are trying to use a problem with the patent system to get rid of information processing patents. Not productive. Not fair. Bad Ned.
Sep 25, 2012 at 04:18 AM
from now on, I think we should decide all policy decisions with a panel. Each side presents their 2 minute video and then the panel decides on which side made them feel better. We should decide criminal cases like this too. And civil cases. Just like Project Runway, and the talent programs. Why not? What makes you feel good is the essense of life.
His video made me feel just so good about the world. Everything will be fine. The tweakers are really good and help us like elfs in Santa's workshop. Let's abolish all patents and copyrights. The NFL and fashion will go on, and after all that is all I really care about anyway. Pretty women and a good game of football.
I feel so wonderful inside at just the thought of the wonderful tweakers making our world a better place. The underdog tweaker. The basement tweaker. That nasty patent person.
Professor: you suck.
Sep 25, 2012 at 04:35 AM
Considering how unashamedly the fashion industry is currently recycling garish 1980s fashions (have a look at a current American Apparel catalogue)...this is not exactly what I understand as "booming creativity".
Sep 25, 2012 at 04:58 AM
Also, there may not be patent thickets in fashion (something disputable, in view of the patenting activity in the textile field), but Beware The Red Sole...
Sep 25, 2012 at 04:59 AM
"Miller said the PTO ended up working with Stack Exchange thanks to a 2007 collaborative experiment spearheaded by New York Law School professor Beth Noveck called Peer to Patent, which tested the idea of crowdsourced patent testing of patents submitted by applicants who agreed to be vetted. Though the experiment was limited, the site proved that “crowdsourcing can work,” according to Miller."
Maybe an objective review is in order...
Sep 25, 2012 at 06:37 AM
Instead of endlessly repeating the same balderdash, why don't you explain the exact words that Frederico used, the exact words I have highlighted for you, the exact words that you provided?
Black is white to you is the only viable explanation.
Sep 25, 2012 at 06:42 AM
Don't assail the tweaker. That's the "truth" in the half-truth here.
There is absolutely nothing wrong with improvement patents that rightfully belong to tweakers.
But celebrating the tweakers does NOT mean that patents must be thought of as "bad."
The non-truth in the half-truth is the other side of the coin made up of those who only copy and those who want to diminish patent rights for everyone in the thought that dependent patents, those that depend from others' just rewards somehow should eviscerate those rewards in order to be fully applied in the marketplace.
But taking the very reward that is given would rob the fuel of interest and dampen the light of innovation.
There is a systematic un-appreciation of the patent system benefits in this line of thought that surreptitiously strikes at the foundation of the constitution clause. Our founding fathers didn't think twice about having a patent system and yet we have a vibrant network of those who wish to do away with patents - both from the left and the right, from academia and its anti-property leanings and from Big Business who would rather not deal with market-turning advances protected in the hands of the otherwise non-market powerful entities.
Sep 25, 2012 at 06:57 AM
I agree with all of what you said Anon. People just don't understand how the system works and so naturally just see the bad parts.
What people don't get is the enormous pressure the patent system puts on all companies to hire researchers and innovate so that they have the patents and not their competitors.
And, disclosure is huge. When I was a programmer back in the early 1980's everything was a secret. Microsoft had super secret rooms. You weren't allowed to talk about how things worked with outsiders. I interviewed for jobs where people wouldn't even tell me what I'd be doing.
The other thing going on here is that we get these bizarro hindsight interpretations of history. Xerox PARC, for exmaple, was only there as a safeguard against anti-trust action. The deal was be a good citizen or we are coming for you. Now that deal does not exist. Xerox PARC would not be there but for patents now.
Also, had Apple not taken the technology what would have been? Maybe it would have turned out better than it did. Apple certainly messed it up better bad with their Lisa. We had one sitting there not plugged in next to a Xerox workstation.
Man, am I old.
Sep 25, 2012 at 07:27 AM
Yes, I actually worked on a Xerox workstation with a mouse and graphics and wrote a graphical extension to the interface. The Lisa sat there dead and no one wanted a thing to do with it. Then Sun came along and life was good.
Sep 25, 2012 at 07:28 AM
IBM was also a major backer of this prior idea of increased opportunities for third party submissions of prior art in pending published applications of others. The usage was minimal, the effect even less so. But it made for good PR.
Thus, it will be interesting to provide a count of how many times IBM uses the document submision system for which the AIA now provides an increased opportunity?
Also, I hope Dennis will track statistics on the total percentage of patent applications that will be affected. It will undoubtedly be very small, for the several good reasons previously noted.
Paul F. Morgan |
Sep 25, 2012 at 08:01 AM
No design protection, American stylistic conservatism, and American need for brand identification have combined to turn what used to be the "US fashion industry" into the "US clothing industry".
Inviting Body Punches |
Sep 25, 2012 at 08:57 AM
"No patent thickets in fashion; fashion creativity booms, unrestrained."
What a leadup to a strawman if I ever saw one. Do you think that we are lacking creativity in the computer arts, the software arts, the semiconductor arts, etc.?
The pace of technoligical innovation is increasing -- so much so that the computer device you buy today is obsolete in a couple of years (if not sooner).
get a grip |
Sep 25, 2012 at 09:13 AM
Surprise, surprise .... did ANYBODY think otherwise?
What a shock |
Sep 25, 2012 at 09:14 AM
"The usage was minimal, the effect even less so. But it made for good PR."
It only makes good PR if you don't mind helping move the deck chairs around.
Me, I would rather be in line for the lifeboats.
Sep 25, 2012 at 09:21 AM
Night, once upon a time means plus function claims to were used everywhere until the Federal Circuit begin tightening their scope.
But I will agree with you, many patent attorneys no longer even attempt to draft a good apparatus claim. They instead right every claim as if it were method claim, essentially claiming all apparatus that can achieve the claimed result.
The Federal Circuit has a big job to do with functional claiming. If they don't do it, I can only hope that somebody will take the issue to the Supreme Court.
Ned Heller |
Sep 25, 2012 at 11:07 AM
Frederico obviously thought 112, p.6 was a modification of Halliburton. But, was that of his perception of Halliburton? I think it was.
If the statute was intended to overturn Halliburton, it would have said something about points of novelty. The SC had made it clear in Faulkner that there wan no problem with combination claims generally.
There is nothing in 112, p. 6, that is inconsistent with a codification of the law regarding functional claims at that time. The CCPA said in Fuetterer that the purpose was to restore the law regarding functional claims to its state prior to Halliburton. What Faulkner made clear is that Halliburton did not change that law. It simply banned functional claims at the exact point of novelty, in essence, single means claims.
Federico's insistence that single means claims remain invalid is the key here.
Ned Heller |
Sep 25, 2012 at 11:37 AM
"Our founding fathers didn't think twice about having a patent system and yet we have a vibrant network of those who wish to do away with patents "
Well if you look at what they were giving out patents for back then one can understand why a bit better. The patents were "signposts" rather than the nonsensical claiming paradigm we find ourselves in now.
Sep 25, 2012 at 02:03 PM
" I interviewed for jobs where people wouldn't even tell me what I'd be doing."
Sounds like the job interview at the PTO.
Sep 25, 2012 at 02:05 PM
The Knockoff Economy approaches the question of incentives and innovation in a wholly new way--by exploring creative fields where copying is generally legal, such as fashion, food, and even professional football.
Improvement on Social Media |
Sep 26, 2012 at 06:06 AM
Yes, food and fashion, areas of work where the median wage is poverty-level, with a very few established names making a living wage.
Except for pro football, of course, the wage structure of which owes its inflated status to a monopoly.
(Hey, isn't a monopoly sort of like what happens with patents?)
Inviting Body Punches |
Oct 01, 2012 at 09:47 AM
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Jason Rantanen, Associate ProfessorUniversity of IowaCollege of LawSSRN Articles
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