Scobleizer: Um, doesn’t this patent have prior art?
scobleizer
· 3 years ago
Zoli: it's not quite that bad (it covers Ajax, doesn't try to patent that now that I've read a bit more about it). Still, this one is pretty broad and I am amazed there isn't prior art that would invalidate it. But proving that will cost millions.
ceejayoz
· 3 years ago
Let's hope someone's willing to spend those millions.
I don't want my little shop to get extorted into paying tens of thousands of dollars worth of licensing fees to avoid a multi-million dollar lawsuit.
Zoli Erdos
· 3 years ago
Of course it's not bad, but it will be used for extortion. This is highway robbery. Also shows how patent laws are stone-age.
This article gives a very lucid explanation of how trolls exploit loopholes in the patent system, and some of the actions the Patent Office is taking. Short term outlook doesn't look to promising. Looks like these disputes will be fought in the courts, boardrooms and marketplace for the near future.
Food for thought from the article:
"Good patents create a financial incentive for innovation; bad patents impose costs on the economy and on national competitiveness." --New York Law School professor Beth Noveck
karan
· 3 years ago
what of the patent granted on most of the "non-coding" DNA? I recall that someone went out and patented most of the human genome that's considered to be non-coding and thus not critical. However, the non-coding DNA has a bunch of interest for those doing research, and subsequently the patent holder is just sitting back and watching the licensing fees roll in.
Similar to this is patents granted for plants that are staples around the world, with companies like Monsanto holding patents on things like Basmati rice. How on earth is that an "innovation"? The patent system has become purely ludicrous these days and needs a shakeout.
rafael
· 3 years ago
i say do away with all software patents, its only locking the industry down and limiting innovation, granted if a product looks too close to another then there is a problem, but shouldnt be a patent dispute, just a trademark suit of sorts where they steal the "look and feel." after all companies still have to protect themselves but not by patenting everything.
Marcus
· 3 years ago
Software patents are bad. In Europe we don't have them - yet. I hope it stays that way. See:
Actually it isn't so much patents that are bad, it's the people that approve them. The US patent office seems to approve *anything*. Clearly they have no clue what they're reading and they just tick the box. Patent trolls are simply benefiting from this.
Mike
· 3 years ago
I as a developer don't bother patents. Anyone's work is protected by copyright already, and a single line of your code makes it different to someone else's. I don't worry.
As long as patents is a way to file a specific implementation, i.e. something built from your source code, I don't see any problem with it. Useless since you are already protected by copyright laws, and of course if you are stupid enough to put your asset in the wild, then you must accept the consequences.
Either way, patents are worthless.
Jason Hawryluk
· 3 years ago
Robert, I sent you a link to this last week "Wake up, and write about this if not done to death already..." It may have been put in the spam folder because of the object of the mail.
In any case. This patent covers not just AJAX but RIA altogether. The guy that patented this is a former Macromedia employee. It does not cover Ajax per say, but what one would do with it. For example MS Office Live would be in violation, as would the new Google page creator. Meaning a “online” product that let’s a user create a RIA via a RIA. If you only read the first part then yes it would seem to cover everything. From what I’ve read of it, and from my limited(non existent) understanding of patent law, that is the impression I came away with. In itself this is a large constraint, and I hope that I understood it correctly.
On a good note, there is prior art dating back to 1997 but proving that is a whole other issue. The fact that the guy attempts to cover so many aspects of Web 2.0 + RIA in general is scary and does not say much for the US Patent Laws. It proves that the law’s and procedures that pertain to patents need to be finally revisited, and/or changed. Unfortunately even that will not solve the problem. The US laws were originally designed to give a company a monopoly, not just protect an intellectual property. Other examples would be “On click”.
If this person get’s to the point where he enforces it (in all it’s context) could set the net back 5+ years. Would hurt not only AJAX but XUL, XAML, MXML. Even asp and asp.net. Considering all the large companies affected I don’t think it’ll go farther then the trash.
However, consider if you would, a large company that has the financing to hold it up in court purchased this patent. Ouch…
I think the guy that patented this, did it for this one reason. He’ll sell it to the highest bidder and retire to some island. The lucky buyer, is now equipped with an industrial duck tape, and would have the power to enforce it. This hypothesis is allot scarier then some lone guy with a patent. So lawyers that say 1,000,000 $ to back it, it’ll never happen…should look at the angles. I’m fairly sure that the original patent owner is well aware that he could not fight it in court, and I think his intensions are to sell it.
Your thoughts?
Jason Hawryluk
· 3 years ago
EDIT:
On above mention of lawyer impression I misread your post. My apologies…
Jason
Jake
· 3 years ago
Patent Troll was coined by Peter Detkin while at Intel.
Where is he now? Intellectual Ventures Notice the familiar Microsoft names (I believe with funding). Looks like a Troller.
Jake
· 3 years ago
There is a benefit to owning patents while not commercializing. Besides the pure profit aspect of settlements, a typical defense of the big guys is the counter claims and license swap settlement. If you don't commercialize and operate or build, then you have nothing to protect by settlement. Nothing stronger than a set of patents with numerous and broad claims and nothing to protect.
Andy Freeman
· 3 years ago
> A company gets a patent that it itself isn’t willing to commercialize in a product,
In other words, if you're not working for "the man", you don't deserve to make any money off of your inventions.
While it may be convenient to suggest that individual inventors abuse the patent process more than BigCo, the reality is different. BigCos can, and do, afford to abuse it more. So naturally we worry about squashing a little guy who is trying to leverage his idea.
And yes, the small guy is often trying to commercialize a product. But, since we don't care if a company just sits on patents (TI among others), why would we object to an individual doing the same?
scobleizer
· 3 years ago
Andy: well, I'd rather reward inventors for BOTH coming up with an idea AND building a product around that idea. That ensures that good ideas get put into products, which improves all of our lives. Instead we have inventors coming up with ideas on paper and then going around and suing those who try to put those ideas into products. That retards the number of new products that consumers get to buy. Not a good system for consumers. Great for the guy who can come up with ideas, though, and who can successfully push them through the system. Also great for the lawyers. Bad for everyone else.
Hint: our patent system wasn't invented to protect the inventor. It was invented to cause more products to reach the market.
Jake
· 3 years ago
Robert:
The patent system is designed to ensure that good ideas get put into products. A patent is a means to teach others about the invention while protecting the owner of the invention. The owner will often be willing to license the use of the invention to those who wish to apply it.
The opening move is often a friendly letter to a company that may be infringing on a patent offering them the opportunity to discuss licensing terms. Nobody wants to sue or go to court. Lawsuits and injunctions are often the result of the hubris of the infringer.
In the little guy/BigCo scenarios: Say you invent a technique that makes a Visio user 10% more productive. To commercialize it, you effectively have to take on Visio - an endeavor with no commercial value and which may entail licensing patents that others own.
Wouldn't it be better to patent the invention, teach Microsoft how to make Visio users 10% more productive and license the invention to Microsoft?
What if you patent the invention, teach Microsoft how to make Visio users 10% more productive, but Microsoft does not license the invention? What recourse does the inventor have except to sue Microsoft and enjoin the use of Visio?
Ray CHOW
· 3 years ago
For us in Europe, Software patents is an HERESY, guess why. But there is a solution, you can still consider to run from European hosting all patented SW that cause problemes with your "inventor Trolls"!
Jake
· 3 years ago
Ray - Why?
The "troll" space is not limited to software or business processes. I believe the man who invented intermittent wipers had to fight long and hard to receive recognition and payment for the invention. I don't think he was manufacturing intermittent wipers at the time.
Nick Mudge
· 3 years ago
Shows how little understood AJAX is. AJAX is nothing but a few javascript functions that are broadly known. You can't patent that.
Itzy Sabo
· 3 years ago
There's another angle to this debate, which has nothing to do with whether software should be patentable: if you invent something and do not patent it, not only can your competitors use it (duh!) but they will patent it and try to prevent you from using your own invention! Then you are forced to fork out $plenty on proving that it was your invention in the first place.
Ray CHOW
· 3 years ago
Itzy - that's true as long as you maintain (sw) patent in force. Look at the situation in Europe, if we have any deficit in (sw) innovation/industry it is certainly not due to the absence of the venal patent process in this area ... I cannot see any weakness comparing to our other patentable industries, it is just more wholesome doing sw here. :cool:
John Swapceinski
· 3 years ago
Hopefully, this is an example of prior art: On page 177 of Jason Hunter's "Java Servlet Programming" book (first edition, published in October 1998), he shows a Java servlet that takes an image as an input from the HttpServletRequest, transforms it using a third-party library (shrinking it, in this specific case), and sends it back to the user in the HttpServletResponse.
Michael Factor
· 3 years ago
Hello, a client of mine, Itzy Sabo (comment 21)referred me to this chain. From the various remarks, I think there are a number of misconceptions about patents in general and software patents in particular. (BTY - I am a practicing patent attorney - for my bio, go to http://www.ipfactor.co.il/english/team.html#mic...). To try and set the picture a little straighter, I am commenting on the wider issues raised in the order they appear. - I am not going to relate to the Ajax application specifically, not least because I have not read it either.
From Scobleizer's posting it appears that you are all getting hot under the collar about a pending patent application. In other words, somebody has filed an application for an invention, and, to date, the US Patent Office has not issued any of the claims. It is still under examination. Now in the US (and many other jurisdictions), patent applications usually publish automatically 18 months after filing. This Ajax application thus presumably relates to an application filed a year-and-a-half ago. Any discussion as to the novelty or invnetiveness of the monopoly sought must be considered as of August 2004. Without reading the claims of the patent application I cannot formulate an opinion of whether they are narrow or broad, well drafted or poorly written. Presumably even the most talented computer geek will have trouble drawing conclusions without reading the specification and claims. Prior art is anything published at the time of filing. In the US only, at the time of inventing, which may be up to 12 months prior to filing. If you think that something is relevant to a particular invention that is in the process of examination, why not bring it to the attention of the examiner? Third parties can, and that is one of the reasons for publishing applications prior to their issuing. A patent confers monopolistic property rights for a limited period of up to 20 years from the filing date(with pharmaceuticals there are various grounds for extension). The property is transferrable. It can be licensed, bought or sold, for example. There is no reason why a patentee need commercialize his idea himself. It is legitimate to file a patent application and to approach a third party. Indeed, many big companies, such as GE, will not sign an NDA and require (would be?) entrepeneurs to file an application first and then to talk to them. Filing a patent application, waiting for it to issue and then suing alleged infringers is a lousy business plan. Most patent infringment cases result in the plaintiff's patent getting voided, as the defendant invests the resources neccessary to find relevant prior art missed by the examiner. Patent lawyers of a firm might ask employees to refrain from looking at patents. Why? (a) because if the firm is prosecuting a patent application in the US (and Australia and Israel), there is a duty to report all relevant known prior art to the examiner, (b) willful infringement carries x 3 damages. In my opinion, neither consideration is a valid reason not to examine patents. Firstly, if a firm gets a patent it doesn't deserve, it won't stand up in court. Secondly, previous court rulings require patent searching as part of due diligence, and if not performed, will probably award tripple damages anyway. Thirdly, patents are accessible, comprehensive resources that can teach technologies and prevent you from reinventing someone elses wheel. Even if you have to license a technology, it is typically a hell of a lot cheaper than developing it yourself, and patents can indicate new approaches to solving problems. SOME patent examiners are not too bright and may miss the point of a patent claim. In the US, the requirements to become an examiner are not particularly tough, and the salaries are less than those that patent agents and patent attorneys earn. - In the European Patent Office, the examiners have scientific degrees and three languages, and since civil servants working for the EU are employed interantionally, they don't pay taxes and have great perks. The calibre of the examiners are typically higher. There is an objective problem with software patenting, in that technology changes much faster than in other fields. Re the great is software patentable debate, I sometimes think that all software is basically input > Processing > output and not particularly inventive. The again, why should a method or device not be patnetable, just because the specific implementation is protected by copyright and the parts are softer than in traditional engineering. For more patent news and views, you are cordially invited to my blog at http://ipfactor.wordpress.com
Regards,
Michael
Jan Egil Kristiansen
· 3 years ago
I am beginning to understand US patent law: Every application - no matter how ridiculous - will be granted.
But the police is not enforcing patents, the patent owner will have to sue. And in the case of patenting 5000 years old kayak technology would certainly lose.
However: Things would be less scary if the US patent office enforced some quality assurance before granting a patent.
Michael Factor
· 3 years ago
Sorry, wrong again! US Patent D508,011 is a design patent, not a utility patent. It does not aspire to prevent third parties from manufacturing Kayaks and it is not a claim for having invented the Kayak. Design patents are limited protection for specific designs. If they go to court the judge will compare the allegedly infringing article with the design as filed, and the latitude in how close the article has to be is determined by the designs of other articles of the type in question at the time of filing.
To put it another way, if ships and boats are known and someone comes up with a paddle-steamer for the first time ever, he might be able to get a patent for "A water craft having paddles arranged around a drum mounted on an axle, that is coupled via a driving means to a steam engine such that power from steam enngine is transmitted via driving means to the drum and rotates the drum criving paddles into the water, thereby propelling craft in accordance with Newton's third law." In a design patent infringment, the judge will compare the infringing article with the registered design and consider whether the paddles are in the same place, the number of funnels, the shape fo the boat, etc.
The kayak frame in question may be different from others in proportions, number and position of struts etc. The protection prevents copying and is little more than a short term copyright for manufacturable articles.
The USPTO suffers from an overload of work, and the combination of low education requirements and low salaries paid results in the level of some examiners to be less than desirable. US Examiners tend not to have the language skills to evaluate patents filed in foreign languages and sometimes have the blinkered perspective not to bother searching stuff filed in other countries. Furthermore, anyone can make a mistake.
Einstein was a patent examiner in the Swiss Patent Office. It is fair to say that most examiners are not of his intellectual capabilities. Nevertheless, I have clashed swords with US Examiners on numerous occasions. Many times examination is professionally conducted and to the point.
This is a good article and comments on software patent issues. I'm convinced that it's time to eliminate the software patent process, and simply use the existing copyright and trademark protection for software. See my article on blog.startupprofessionals.com titled "Software Patents: Time for a Change" for specifics.
Marty Zwilling, Founder & CEO, Startup Professionals, Inc.
All Comments
I don't want my little shop to get extorted into paying tens of thousands of dollars worth of licensing fees to avoid a multi-million dollar lawsuit.
This article gives a very lucid explanation of how trolls exploit loopholes in the patent system, and some of the actions the Patent Office is taking. Short term outlook doesn't look to promising. Looks like these disputes will be fought in the courts, boardrooms and marketplace for the near future.
Food for thought from the article:
"Good patents create a financial incentive for innovation; bad patents impose costs on the economy and on national competitiveness." --New York Law School professor Beth Noveck
Similar to this is patents granted for plants that are staples around the world, with companies like Monsanto holding patents on things like Basmati rice. How on earth is that an "innovation"? The patent system has become purely ludicrous these days and needs a shakeout.
http://www.nosoftwarepatents.com/
Actually it isn't so much patents that are bad, it's the people that approve them. The US patent office seems to approve *anything*. Clearly they have no clue what they're reading and they just tick the box. Patent trolls are simply benefiting from this.
As long as patents is a way to file a specific implementation, i.e. something built from your source code, I don't see any problem with it. Useless since you are already protected by copyright laws, and of course if you are stupid enough to put your asset in the wild, then you must accept the consequences.
Either way, patents are worthless.
In any case. This patent covers not just AJAX but RIA altogether. The guy that patented this is a former Macromedia employee. It does not cover Ajax per say, but what one would do with it. For example MS Office Live would be in violation, as would the new Google page creator. Meaning a “online” product that let’s a user create a RIA via a RIA. If you only read the first part then yes it would seem to cover everything. From what I’ve read of it, and from my limited(non existent) understanding of patent law, that is the impression I came away with. In itself this is a large constraint, and I hope that I understood it correctly.
On a good note, there is prior art dating back to 1997 but proving that is a whole other issue. The fact that the guy attempts to cover so many aspects of Web 2.0 + RIA in general is scary and does not say much for the US Patent Laws. It proves that the law’s and procedures that pertain to patents need to be finally revisited, and/or changed. Unfortunately even that will not solve the problem. The US laws were originally designed to give a company a monopoly, not just protect an intellectual property. Other examples would be “On click”.
If this person get’s to the point where he enforces it (in all it’s context) could set the net back 5+ years. Would hurt not only AJAX but XUL, XAML, MXML. Even asp and asp.net. Considering all the large companies affected I don’t think it’ll go farther then the trash.
However, consider if you would, a large company that has the financing to hold it up in court purchased this patent. Ouch…
I think the guy that patented this, did it for this one reason. He’ll sell it to the highest bidder and retire to some island. The lucky buyer, is now equipped with an industrial duck tape, and would have the power to enforce it. This hypothesis is allot scarier then some lone guy with a patent. So lawyers that say 1,000,000 $ to back it, it’ll never happen…should look at the angles. I’m fairly sure that the original patent owner is well aware that he could not fight it in court, and I think his intensions are to sell it.
Your thoughts?
On above mention of lawyer impression I misread your post. My apologies…
Jason
Where is he now? Intellectual Ventures Notice the familiar Microsoft names (I believe with funding). Looks like a Troller.
In other words, if you're not working for "the man", you don't deserve to make any money off of your inventions.
While it may be convenient to suggest that individual inventors abuse the patent process more than BigCo, the reality is different. BigCos can, and do, afford to abuse it more. So naturally we worry about squashing a little guy who is trying to leverage his idea.
And yes, the small guy is often trying to commercialize a product. But, since we don't care if a company just sits on patents (TI among others), why would we object to an individual doing the same?
Hint: our patent system wasn't invented to protect the inventor. It was invented to cause more products to reach the market.
The patent system is designed to ensure that good ideas get put into products. A patent is a means to teach others about the invention while protecting the owner of the invention. The owner will often be willing to license the use of the invention to those who wish to apply it.
The opening move is often a friendly letter to a company that may be infringing on a patent offering them the opportunity to discuss licensing terms. Nobody wants to sue or go to court. Lawsuits and injunctions are often the result of the hubris of the infringer.
In the little guy/BigCo scenarios: Say you invent a technique that makes a Visio user 10% more productive. To commercialize it, you effectively have to take on Visio - an endeavor with no commercial value and which may entail licensing patents that others own.
Wouldn't it be better to patent the invention, teach Microsoft how to make Visio users 10% more productive and license the invention to Microsoft?
What if you patent the invention, teach Microsoft how to make Visio users 10% more productive, but Microsoft does not license the invention? What recourse does the inventor have except to sue Microsoft and enjoin the use of Visio?
The "troll" space is not limited to software or business processes. I believe the man who invented intermittent wipers had to fight long and hard to receive recognition and payment for the invention. I don't think he was manufacturing intermittent wipers at the time.
On page 177 of Jason Hunter's "Java Servlet Programming" book (first edition, published in October 1998), he shows a Java servlet that takes an image as an input from the HttpServletRequest, transforms it using a third-party library (shrinking it, in this specific case), and sends it back to the user in the HttpServletResponse.
(BTY - I am a practicing patent attorney - for my bio, go to http://www.ipfactor.co.il/english/team.html#mic...).
To try and set the picture a little straighter, I am commenting on the wider issues raised in the order they appear.
- I am not going to relate to the Ajax application specifically, not least because I have not read it either.
From Scobleizer's posting it appears that you are all getting hot under the collar about a pending patent application. In other words, somebody has filed an application for an invention, and, to date, the US Patent Office has not issued any of the claims. It is still under examination.
Now in the US (and many other jurisdictions), patent applications usually publish automatically 18 months after filing. This Ajax application thus presumably relates to an application filed a year-and-a-half ago. Any discussion as to the novelty or invnetiveness of the monopoly sought must be considered as of August 2004.
Without reading the claims of the patent application I cannot formulate an opinion of whether they are narrow or broad, well drafted or poorly written. Presumably even the most talented computer geek will have trouble drawing conclusions without reading the specification and claims.
Prior art is anything published at the time of filing. In the US only, at the time of inventing, which may be up to 12 months prior to filing.
If you think that something is relevant to a particular invention that is in the process of examination, why not bring it to the attention of the examiner? Third parties can, and that is one of the reasons for publishing applications prior to their issuing.
A patent confers monopolistic property rights for a limited period of up to 20 years from the filing date(with pharmaceuticals there are various grounds for extension). The property is transferrable. It can be licensed, bought or sold, for example.
There is no reason why a patentee need commercialize his idea himself. It is legitimate to file a patent application and to approach a third party. Indeed, many big companies, such as GE, will not sign an NDA and require (would be?) entrepeneurs to file an application first and then to talk to them.
Filing a patent application, waiting for it to issue and then suing alleged infringers is a lousy business plan. Most patent infringment cases result in the plaintiff's patent getting voided, as the defendant invests the resources neccessary to find relevant prior art missed by the examiner.
Patent lawyers of a firm might ask employees to refrain from looking at patents. Why? (a) because if the firm is prosecuting a patent application in the US (and Australia and Israel), there is a duty to report all relevant known prior art to the examiner, (b) willful infringement carries x 3 damages.
In my opinion, neither consideration is a valid reason not to examine patents. Firstly, if a firm gets a patent it doesn't deserve, it won't stand up in court. Secondly, previous court rulings require patent searching as part of due diligence, and if not performed, will probably award tripple damages anyway. Thirdly, patents are accessible, comprehensive resources that can teach technologies and prevent you from reinventing someone elses wheel. Even if you have to license a technology, it is typically a hell of a lot cheaper than developing it yourself, and patents can indicate new approaches to solving problems.
SOME patent examiners are not too bright and may miss the point of a patent claim. In the US, the requirements to become an examiner are not particularly tough, and the salaries are less than those that patent agents and patent attorneys earn. - In the European Patent Office, the examiners have scientific degrees and three languages, and since civil servants working for the EU are employed interantionally, they don't pay taxes and have great perks. The calibre of the examiners are typically higher.
There is an objective problem with software patenting, in that technology changes much faster than in other fields.
Re the great is software patentable debate, I sometimes think that all software is basically input > Processing > output and not particularly inventive. The again, why should a method or device not be patnetable, just because the specific implementation is protected by copyright and the parts are softer than in traditional engineering.
For more patent news and views, you are cordially invited to my blog at http://ipfactor.wordpress.com
Regards,
Michael
But the police is not enforcing patents, the patent owner will have to sue. And in the case of patenting 5000 years old kayak technology would certainly lose.
However: Things would be less scary if the US patent office enforced some quality assurance before granting a patent.
To put it another way, if ships and boats are known and someone comes up with a paddle-steamer for the first time ever, he might be able to get a patent for "A water craft having paddles arranged around a drum mounted on an axle, that is coupled via a driving means to a steam engine such that power from steam enngine is transmitted via driving means to the drum and rotates the drum criving paddles into the water, thereby propelling craft in accordance with Newton's third law." In a design patent infringment, the judge will compare the infringing article with the registered design and consider whether the paddles are in the same place, the number of funnels, the shape fo the boat, etc.
The kayak frame in question may be different from others in proportions, number and position of struts etc. The protection prevents copying and is little more than a short term copyright for manufacturable articles.
The USPTO suffers from an overload of work, and the combination of low education requirements and low salaries paid results in the level of some examiners to be less than desirable. US Examiners tend not to have the language skills to evaluate patents filed in foreign languages and sometimes have the blinkered perspective not to bother searching stuff filed in other countries. Furthermore, anyone can make a mistake.
Einstein was a patent examiner in the Swiss Patent Office. It is fair to say that most examiners are not of his intellectual capabilities. Nevertheless, I have clashed swords with US Examiners on numerous occasions. Many times examination is professionally conducted and to the point.
For more patent news and views, you are cordially invited to my blog at http://ipfactor.wordpress.com
Marty Zwilling, Founder & CEO, Startup Professionals, Inc.