wtf? YAPSIFUT (Yet another patent system is...

[cubby1223]

the first american was one of the smartest people ever and he was against patenting his own inventions.

You know what greatly helped the economy of America in it's infancy? Taking all of the inventions created in Europe and reproducing them in the U.S. for profits.

You know what is keeping the U.S. afloat today? Patents that protect jobs and profits within this country from being exploited by Asia's slave labor.


Or would you prefer we go back to living under the Articles of Confederation?

 

[Markbnj]

I've asked this question a few times but haven't received a response: If not this, then what should be patentable?

Sorry, but it's a stupid question, which may explain the lack of interest in answering it. You want someone to give you a definition that covers everything that should be patentable, rather than specific objections to one thing that they feel should not be. Why? I don't feel that I should be able to patent a way of holding my toothbrush. I also don't think techniques for addressing a golf ball should be patentable.

Edit: and if you really need examples of things that should be: devices, machines, circuits, actual inventions. Things that do stuff.

 

[Sho'Nuff]

Sho-Nuff - I'm far from one of those anti-patent people. And, yes, I recognize your expertise in regarding patents.

However, if you read through #1, and actually try to interpret the jargon used, it says, "A white wall behind the thing you're taking a picture of. A camera on a tripod in front of the object. The white background is lit by lights. The wall is straight up and down (like 99.9999% of background walls). The camera has a very typical lens and f-stop for that lens and amount of white balance. The object you're taking a picture of is on a stand (not the floor). The surface of the stand is white.

As far as the lighting for optimal imaging - I'm not a product photographer. But I DO do a lot of theater lighting for school musicals (both for our school, and for county-wide musicals). The lighting is exactly what's done in theater. There's nothing new there - if you don't want shadows on the backdrop, you light the backdrop from behind the actors. Those lights don't shine on the actors directly, though the brightness (reflection) from the backdrop lights the actors from behind, while other lights light them from the front.

There's nothing novel about this at all, except jargon to describe the obvious. OMG, the object is on a platform that's between the camera and the backdrop? Who would have ever thunk of that!

What about this element? "wherein a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white and a rear edge of the elevated platform is substantially imperceptible to the image capture device; and the first rear light source, the second rear light source, the third rear light source, and the fourth rear light source comprise a combined intensity greater than the front light source according to about a 10:3 ratio"

I am not a photographer and I did not perform a search, so I can't speak to whether prior art exists re: the other elements. But it would seem that the quote element is pretty specific and thus potentially novel in view of the available prior art. Whether it is non-obvious is not for me to say.

But as I mentioned before, the claims of this case are so specific that it is probably going to be very hard to enforce. When the independent claims of a patent contain so many elements (as in this case), it is usually not too difficult to design around them. And in this particular case, it is probably very hard to detect infringement.

 

[Sho'Nuff]

Firstly, they are patent examiners. Secondly, their job is to reduce the amount of possible patent litigation. Instead of 8+million litigated patents, there are far less. Thirdly, they are human beings that are charged to find prior art references in the time allotted. Some examiners are better than others. In general, a patent examiner has an average of 10-20 hours total for an entire prosecution of a single application to come up with prior art references. For most applications throughout history, 98-99%, this is good enough and no problems legally exist, the patent never goes to litigation. For a very tiny minority,1-2%, a more thorough search is required under litigation proceedings by attorneys which involve vastly more resources than utilized during prosecution. So 98-99% success rate - I would say that patent examiners and their counterpart patent prosecution attorneys are doing quite well in protecting the interests of the people.

In most other professional environments, a 99% success rate would be considered excellent. Why should the patent office and the attorneys for the applicants be held so negatively for what amounts to an expected or better than expected error rate? Will mistakes happen and stupid stuff issue? Yes. That is to be expected because patent prosecution is only a part of the patent legal system and only a relatively small amount of resources are utilized. Just because litigation costs so much is no fault of patent prosecution. When suing someone for infringement, huge amounts of manhours are utilized to find any and all prior art and other supoorting documents anywhere and everywhere in all langauges searchable and unsearchable in a "whatever it takes" effort. "Huge amounts of manhours" costs millions of US$. Patent prosecution costs only thousands to tens of thousands of dollars depending on attorney fees.

Can you patent anything under the sun? No.
Can a bad patent slip through prosecution due to limited resources? Yes, but its not very likely.

:thumbsup:

To clarify what an examiner must do in that 10-20 hours, here is a breif outline:

1. Read the application
2. Construe the claims
3. Perform a search of the prior art available against the application
4. Identify art that is relevant to the claims
5. Apply the art under established legal principles to convey the position of the office (most often a rejection) in a first office action
6. Read an applicant's reply to the first office action
7. Construe the (likely) amended claims that were submitted in the response to the first office action
8. Re-search the prior art
9. Determine whether the amended claims are novel and non-obvious
10. If the answer in #9 is no - issue a final rejection
11. If the answer in #9 is yes - issue a notice of allowance.

And that is only a rough list of the action items. Certainly a lot of work to be done in a short period of time. And as Tiamat indicated, less than 3% of patents are litigated, and of those litigations, the vast majority of lawsuits are wound up before they really get going.

 

[Sho'Nuff]

the first american was one of the smartest people ever and he was against patenting his own inventions.

And who was that?

 

[Sho'Nuff]

Not all inventions take that kind of money. Especially when it comes to silly little things like specific camera angles or shapes...

I had decided to ignore your posts re: patents. Then I saw this one and could not restrain myself.

or software (which has zero cost if it's a sole operation as a hobby).

Uh. Opportunity cost? It takes time and effort to develop anything new. The hobbyist programmer gave up the opportunity to do something else so that he could develop software in his basement. That is a real cost, and often not as minimal as you are presuming.

And if a certain thing DOES take that much money, then if someone else can come up with that money, knowledge and overall resources then why the hell should they not too be allowed to compete?

Because economics and business sense indicate that when the cost of development is high, there needs to be more than a marginal chance at a good rate of return. Else the product will not be developed.

Really the only place I can see patents make sense is military, because you don't want other countries/entities having the same tech as you.

You might be surprised to learn that most military technology that is of real importance is NOT patented. Rather it is protected by other means, such as the U.S. criminal code and various forms of classification (e.g., top secret, secret, TS-SCI), etc. U.S. patents and (with limited exception) U.S. patent applications are public documents which are available to anyone with an internet connection. Foreign countries are not bound by U.S. patent law. Translation - patenting sensitive military technology would potentially enable a foreign government to reproduce that technology (or start reproducing that technology) potentially as soon as 18 months after the effective filing date that a U.S. patent application was filed. Not a smart way to protect the country, if you ask me.

I just find these artificial limitations we set on ourselves are retarded. There's just no reason for it if we want to continue to advance. In fact money alone is a huge artificial limitation. We arn't doing more space missions and other cool stuff because we don't have the tech, but because we don't have the money.

The fact that you do not understand the rationale for the patent system or do not agree with that rationale does not mean that the rationale does not exist or that the system is bad. It just means that you disagree with it. FWIW I will take the opinion of 20-30 generations of people over yours (the U.S. patent system is based on the English patent system, which was founded long before ours).

Also - your NASA comment has nothing to do with patents or the patent system.

Don't get me started with drug patents. I can already see it happen in the future, a huge outbreak of something comes up, everyone is trying to work on a cure, some megacorp finds it, but patents it, and makes it really expensive, then nobody else is allowed to do it. People die.

We have been through this argument before. I'm not going through it again with you.

 

[Anarchist420]

You know what greatly helped the economy of America in it's infancy? Taking all of the inventions created in Europe and reproducing them in the U.S. for profits.

You know what is keeping the U.S. afloat today? Patents that protect jobs and profits within this country from being exploited by Asia's slave labor.


Or would you prefer we go back to living under the Articles of Confederation?

Or would you prefer we go back to living under the Articles of Confederation?

yes

 

[DrPizza]

Sho Nuff - I think this is the step that typically is seen as a problem for many:

Determine whether the amended claims are novel and non-obvious

How could someone who knows nothing about photography determine that? Likewise, a lot of these software patents. How can a patent officer, knowing very little about programming, determine that something like, say, solving the quadratic formula in HTML be "non-obvious"?

 

[Rakehellion]

Sorry, but it's a stupid question, which may explain the lack of interest in answering it.

That's a bullshit excuse for your half-baked objections.

Edit: and if you really need examples of things that should be: devices, machines, circuits, actual inventions. Things that do stuff.

This is an invention. Give an example of something that should be patentable.

 

[Rakehellion]

Really the only place I can see patents make sense is military, because you don't want other countries/entities having the same tech as you.

The United States patent office has fuck all jurisdiction over other countries. Are you high?

 

[Rakehellion]

How could someone who knows nothing about photography determine that?

You have someone who knows about photography explain it.

 

[Markbnj]

That's a bullshit excuse for your half-baked objections.



This is an invention. Give an example of something that should be patentable.

No, I don't think so. Again, rather than answer specific objections to a specific patent you requested a definition of everything that should be patentable. I don't think that's a useful question. Something is patentable if the patent is granted. The question here revolves around why something that seems a poor candidate for a patent received one. Why was the "technique for addressing a golf ball" patent granted? I don't know, but I would think the defenses would have some similarity with the current case.

 

[Rakehellion]

In essence, people dislike this patent but none are able to articulate why.

 

[BoberFett]

In essence, people dislike this patent but none are able to articulate why.

Because it's a method, not an invention.

I suppose you also believe the Method For Exercising a Cat is a brilliant idea deserving of the protection of a patent...

 

[Markbnj]

Because it's a method, not an invention.

I suppose you also believe the Method For Exercising a Cat is a brilliant idea deserving of the protection of a patent...

Interestingly, to me at least, the format we followed for the patent apps I co-wrote began with something like "System and method for ..." followed by a general description. So I am wondering what "method" means, precisely, in this context. That language was provided to us by a patent attorney specializing in software patents, so perhaps the specific terms are intended to be more inclusive in light of the goal of getting a generic architecture recognized as a unique device (which is basically what we were attempting, at the direction of our CTO).

 

[DrPizza]

Because it's a method, not an invention.

I suppose you also believe the Method For Exercising a Cat is a brilliant idea deserving of the protection of a patent...

I don't think methods for doing something should be unpatentable, provided the methods are a large innovative step (not a minor step from other methods.) There are plenty of products where people have a concept of what they want to make, but HOW to make it takes a significant amount of engineering to accomplish.

For rakehellion, I'll attempt once again to articulate why: because there's nothing novel about it at all. Every time someone sets up studio lighting and takes a picture, it's as novel/specific of a situation as that described by the patent. E.g., here's someone simply showing what works for her photography: http://www.clickinmoms.com/blog/simple-high-key-lighting-tips/ OMG! Patent it! Right? I don't think so.

 

[Rakehellion]

Because it's a method, not an invention.

So only machines should be patentable? What about the cyclorama?

For rakehellion, I'll attempt once again to articulate why: because there's nothing novel about it at all.

You say this as a photographer who's aware of the technical difficulty of composing a scene?

As you said yourself:

How could someone who knows nothing about photography determine that?

Giving one-sentence responses suggests you're avoiding the question, so I'll let it go.

 

[Sho'Nuff]

Sho Nuff - I think this is the step that typically is seen as a problem for many:


How could someone who knows nothing about photography determine that? Likewise, a lot of these software patents. How can a patent officer, knowing very little about programming, determine that something like, say, solving the quadratic formula in HTML be "non-obvious"?

The fields of science are numerous and it is impossible to have each patent examined by a true "expert" in each field.

That being said, most Examiners become subject matter experts (in a fashion) after spending enough time examining.

Take me for example. I have a background in chemistry and materials science. I spent some time developing stealth tech for the navy. Largely involved depositing magnetic thin films and developing new ferromagnetic particles. After doing that a while I joined the PTO as an Examiner. The powers that be looked at my background and said "Hey, that guy knows something about magnetic thin films! Send him over to the magnetic recording art unit." At the time I knew diddly squat about magnetic recording. But after reading about it for 8 hours a day for almost 4 years, I pretty much knew everything there was to know about a hard drive, perpendicular and horizontal magnetic recording, and about 15 different types of thin film deposition. Within about 15 minutes of looking at the claims of an application I could identify pertinent prior art references with respect to most of the elements, and identify which elements I had not seen before. I would then proceed to search for the "missing" elements, and in about 5 hours I could whip out an office action. In my time at the PTO my allowance rate was a whopping 17%. I'm not proud of that low number. I'm just stating it as fact. There was tons of prior art in the magnetic recording space, so it was very, very difficult to get anything through. And what did get through was generally narrow and/or supported by a declaration asserting "unexpected results."

But like many examiners, I left for the greener pastures of law practice (looking back that was a mistake, but that is a story for another day). That type of "brain drain" happens a lot at the PTO. So much that I would wager that of the 5000 patent examiners at the USPTO, probably 2/3 of them have less than 3 years of experience. That is a problem. A big problem. Particularly when you need experienced people to do the job in the time frame they are asked to do it.

That being said, other posters have raised the argument that the PTO is doing a reasonably good job. Sure, there are some bad patents out there. There is no question that sometimes the PTO lets something through that it shouldn't. But relying on those outlier cases to support arguments that the whole system is in a shambles is a mistake. Its taking the old saying "the squeaky wheel gets the grease" and turning it on its head, particularly when you consider that of the so called "bad" patents, relatively few have any impact on society as a whole.

OK, amazon patented a method of photography. And without searching the prior art I can't comment on whether the patent is valid or not. But if its truly a bad patent, there are myriad ways to challenge it that do not require litigation. Post grant review, inter parties review, reexamination, etc. Any of those tools can be used to revisit a "bad" patent and potentially invalidate it.

Finally, it is not as though patents are magically enforced. It takes time and effort to detect infringement. And then there is a business decision to be made. Because patent litigation is not just expensive to the defendant. It is expensive for the patentee as well. And there is no guarantee the patentee will win even if the patent in question is rock solid and it looks pretty certain that the defendant is infringing. Such is the nature of litigation. So. High expense. No guarantee of reward. Most patentees look at those facts and make an objective decision as to whether it is even worthwhile trying to enforce a patent. And in many cases, they opt for some other remedy. If they didn't, every patent lawyer would practice litigation and we would all be filthy rich litigating any one of the several hundred thousand patents that are in force at one time.

To summarize:

1. PTO examination is a first line of defense.
2. PTO examiners may not initially be subject matter experts, but can develop into such over time.
3. PTO examiners do occasionally make mistakes (though not as often as many people believe).
4. The PTO is fighting an uphill battle against brain drain.
5. There are a variety of options to invalidate a patent
6. Patent litigation is very expensive and often viewed as a last resort.

 

[Sho'Nuff]

Interestingly, to me at least, the format we followed for the patent apps I co-wrote began with something like "System and method for ..." followed by a general description. So I am wondering what "method" means, precisely, in this context. That language was provided to us by a patent attorney specializing in software patents, so perhaps the specific terms are intended to be more inclusive in light of the goal of getting a generic architecture recognized as a unique device (which is basically what we were attempting, at the direction of our CTO).

The title of the application does not really matter too much. The meat of the application is in the claims. That being said, patent attorneys are very (VERY) good at abstracting inventions out, so that their entire scope may be encompassed by a patent. I'm betting that you told your patent attorney that you invented something that does X. Your patent attorney heard that and likely thought to himself that X involves a (potentially multiple) devices, methods, hardware, software, etc. any or all of which themselves could be patentable inventions. He then proceeded to draft a patent application based on that much broader understanding of your invention.

Indirectly you have hit on the precise reason why a good patent attorney can be an invaluable asset. Because patent attorneys are very good at extracting broad value from what engineers are often convinced is a very specific idea. For example - a patent attorney wants to hear about all the stuff that didn't work too well, and he wants to put that stuff in the patent. Why? Because it can increase the scope of the patent right, making the patent more valuable. In contrast, the engineer only sees value in the optimum solution. The thing that works "best." That thing is valuable in an IP sense. But not as valuable as the "best" and all the stuff that was not quite the best but might still allow a competitor to compete in the market.

 

[BoberFett]

The title of the application does not really matter too much. The meat of the application is in the claims. That being said, patent attorneys are very (VERY) good at abstracting inventions out, so that their entire scope may be encompassed by a patent. I'm betting that you told your patent attorney that you invented something that does X. Your patent attorney heard that and likely thought to himself that X involves a (potentially multiple) devices, methods, hardware, software, etc. any or all of which themselves could be patentable inventions. He then proceeded to draft a patent application based on that much broader understanding of your invention.

Indirectly you have hit on the precise reason why a good patent attorney can be an invaluable asset. Because patent attorneys are very good at extracting broad value from what engineers are often convinced is a very specific idea. For example - a patent attorney wants to hear about all the stuff that didn't work too well, and he wants to put that stuff in the patent. Why? Because it can increase the scope of the patent right, making the patent more valuable. In contrast, the engineer only sees value in the optimum solution. The thing that works "best." That thing is valuable in an IP sense. But not as valuable as the "best" and all the stuff that was not quite the best but might still allow a competitor to compete in the market.

So basically you're agreeing that someone skilled in the art - the engineer who actually, ya know, invents things - believes most of what is being patented is obvious and not really an invention. Then in swoops a lawyer who broadens the scope because it can stifle competition, not because there's been any "promotion of the useful arts and sciences". Thank you for summing up why people dislike attorneys and the patent system.

 

[The Stigenator]

oh hell no!

 

[Sho'Nuff]

So basically you're agreeing that someone skilled in the art - the engineer who actually, ya know, invents things - believes most of what is being patented is obvious and not really an invention. Then in swoops a lawyer who broadens the scope because it can stifle competition, not because there's been any "promotion of the useful arts and sciences". Thank you for summing up why people dislike attorneys and the patent system.

I did not say that at all. What I said is that engineers are trained to strive for the optimum solution. But what they invented is not "the" optimum solution. They invented all the stuff that did not work as well along the way too. Patent attorneys are trained to see those alleged non-optimum results (which engineers might call failures) to have value, and to roll all of that into a patent application. I never said the engineer viewed much of his invention as obvious. He just has a narrow viewpoint of it because the non-optimal solutions are not of "as much" value to him.

Patents do in fact advance science and the useful arts. If you do not think so you have not spent much time in an R&D department. Prior to being an examiner I spent some time developing Steal Tech for the navy, and we were always looking through patent documents for ways to address issues we were seeing in real life. The patent databases are a wealth of information. Patents can be difficult to parse through, true. But that is the nature of the beast when one needs to merge a technical document with a legal document.

FWIW - My experience is that most people who think the patent system has no value have no practical experience with it. Rather, they base their opinions on third party opinions offered by persons who also have no practical experience with the system. It is quite literally the blind leading the blind.

As for whether you like me or attorneys in general, I really do not care. I've spent the last 10 years representing some of the largest companies in the world, as well as numerous solo inventors who could barely scrape together the funds needed for the PTO filing fees (I did all other work for them pro bono). All of them saw the patent system as providing value.

 

[Rakehellion]

FWIW - My experience is that most people who think the patent system has no value have no practical experience with it. Rather, they base their opinions on third party opinions offered by persons who also have no practical experience with the system. It is quite literally the blind leading the blind.

Bingo.

(Sorry for reducing your post down to its optimal solution)

 

[_Rick_]

In essence, people dislike this patent but none are able to articulate why.

I articulated why, but you choose to ignore the point I was making.

I'll try one final time:

For an invention to be patentable, it has to be novel.
The method described in the patent is of doubtful novelty.
Therefore the patent is of doubtful legality, and should probably have not been granted.
On the other hand, as bot Sho'nuff and I have attempted to convey, the patent is of no actual consequence, besides Amazon being able to claim "we have patented X inventions this year!", as it is not detectable. Which also makes it immune to prior art, as prior art isn't detectable either, short of someone writing down their precise work flow, which for something this trivial is not likely to happen.

In fact, you can avoid this patent, by simply using a different camera system with a larger/smaller sensor, and adapting lens focal length and aperture to match - the resulting image will look exactly like the one you took using the patented method. Or you can change the ratio in the lighting ever so slightly, and make it 31:100 instead of 3:10 - you're no longer infringing.

 

[Markbnj]

I did not say that at all. What I said is that engineers are trained to strive for the optimum solution. But what they invented is not "the" optimum solution. They invented all the stuff that did not work as well along the way too. Patent attorneys are trained to see those alleged non-optimum results (which engineers might call failures) to have value, and to roll all of that into a patent application. I never said the engineer viewed much of his invention as obvious. He just has a narrow viewpoint of it because the non-optimal solutions are not of "as much" value to him.

Patents do in fact advance science and the useful arts. If you do not think so you have not spent much time in an R&D department. Prior to being an examiner I spent some time developing Steal Tech for the navy, and we were always looking through patent documents for ways to address issues we were seeing in real life. The patent databases are a wealth of information. Patents can be difficult to parse through, true. But that is the nature of the beast when one needs to merge a technical document with a legal document.

FWIW - My experience is that most people who think the patent system has no value have no practical experience with it. Rather, they base their opinions on third party opinions offered by persons who also have no practical experience with the system. It is quite literally the blind leading the blind.

As for whether you like me or attorneys in general, I really do not care. I've spent the last 10 years representing some of the largest companies in the world, as well as numerous solo inventors who could barely scrape together the funds needed for the PTO filing fees (I did all other work for them pro bono). All of them saw the patent system as providing value.

Hmm. I'm not sure the slice is really optimal vs. non-optimal. It's obviousness vs non-obviousness. The definition of obviousness with respect to patents, if I understand it correctly, turns on whether one "skilled in the art" would recognize the method or invention as obvious. So here's the problem: when it comes to software nobody in the world is "skilled in the art" except those of us who do it. The rest of you know nothing. I mean that literally. The distance between the vague comprehension of software possessed by non-engineering professionals who work in its orbit, and what the stuff actually is and does is the difference between pig-latin and the actual language.

Much of my attitude toward patents and the patent system is because of my exposure to the issues with software patents over the last thirty years. The abuses have been legendary.