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(Forbes)   Design patents should finish off American innovation once and for all   (forbes.com) divider line 58
    More: Followup, San Jose, design patent, Americans, Samsung, ITC, innovations, organic light-emitting diodes  
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3044 clicks; posted to Business » on 05 Jun 2013 at 9:41 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-06-05 09:49:40 AM
I patented coming up with alternative headlines for articles.  Subby you're really in for it now.  I also patented traveling from one place to another.  Good luck showing up for court!
 
vpb [TotalFark]
2013-06-05 10:12:46 AM
Didn't Apple start this "look and feel" non-sense in the first place when it sued Microsoft for imitating Apples idea of imitating Xerox?
 
2013-06-05 10:13:16 AM

hungryhungryhorus: I patented coming up with alternative headlines for articles. Subby you're really in for it now. I also patented traveling from one place to another. Good luck showing up for court!


Its getting to the point that 90% of the people posting in patent threads could just get by by citing a cliche number.

as an example, above would be [PT Cliche # 1]

/this post is now designated [PT cliche # 272]
 
2013-06-05 10:13:42 AM

hungryhungryhorus: I patented coming up with alternative headlines for articles.  Subby you're really in for it now.  I also patented traveling from one place to another.  Good luck showing up for court!


35 USC 292: Whoever... uses...  in connection with any unpatented article, the word "patent" or any word or number importing that the same is patented, for the purpose of deceiving the public...
Shall be fined not more than $500 for every such offense.
 
2013-06-05 10:15:25 AM

vpb: Didn't Apple start this "look and feel" non-sense in the first place when it sued Microsoft for imitating Apples idea of imitating Xerox?


Not really, since A) That was a copyright suit and B) Apple lost on that argument - big time
 
2013-06-05 10:16:19 AM
upload.wikimedia.org
- has the weirdest boner right now
 
2013-06-05 10:29:41 AM
The answer to this nonsense should be obvious...end patents.
 
2013-06-05 10:33:42 AM

Stone Meadow: The answer to this nonsense should be obvious...end patents.


"You say your breath sometimes smells bad? Well, the answer should be obvious... stop breathing."

/naive solution is naive
 
2013-06-05 10:36:41 AM
Anyone patent sharp knees yet?
 
2013-06-05 10:42:37 AM

Theaetetus: Stone Meadow: The answer to this nonsense should be obvious...end patents.

"You say your breath sometimes smells bad? Well, the answer should be obvious... stop breathing."

/naive solution is naive


Yeah, yeah...it's even in the Constitution. About the only thing more difficult to get overturned would be the 2nd, and that ain't happening either. Still, it is not too late to derail design patents and to force the patent office to adopt much more narrow criteria for what is patentable.

First, we shoot all the patent trolls... ;^)
 
2013-06-05 10:50:27 AM

Stone Meadow: Theaetetus: Stone Meadow: The answer to this nonsense should be obvious...end patents.

"You say your breath sometimes smells bad? Well, the answer should be obvious... stop breathing."

/naive solution is naive

Yeah, yeah...it's even in the Constitution. About the only thing more difficult to get overturned would be the 2nd, and that ain't happening either. Still, it is not too late to derail design patents and to force the patent office to adopt much more narrow criteria for what is patentable.


Why? Design patents are really narrow, and are more like trade dress - pretty much the only way you infringe one is when you intentionally make a look-alike product. I don't think  anyone has ever gotten hit with a design patent infringement suit that they couldn't have easily seen coming, which is one of the more legitimate complaints about utility patents.

First, we shoot all the patent trolls... ;^)

Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.? Of course, they say that they'll respect the rights of small inventors once all of the rules that protect those small inventors are abolished... but notice that none of them are arguing to abolish patents, or even arguing to amend the patent act in ways that would adversely impact  their infringement suits?
I'm not calling you an astroturfer, but I think they're out there and you've been misled by them.
 
2013-06-05 10:52:43 AM

Theaetetus: Why? Design patents are really narrow, and are more like trade dress - pretty much the only way you infringe one is when you intentionally make a look-alike product. I don't think  anyone has ever gotten hit with a design patent infringement suit that they couldn't have easily seen coming, which is one of the more legitimate complaints about utility patents.


For example, here's a comparison of the Lululemon product and design patent, and the Calvin Klein accused infringing product:
www.itsallyogababy.com
You're going to claim that Calvin Klein's designers had never seen Lululemon's pants before they came up with their design, or weren't intentionally trying to make a cheap look-alike version?
 
2013-06-05 11:10:35 AM

Stone Meadow: First, we shoot all the patent trolls... ;^)


Well what are we discussing here, as this has become a term without meaning

1) entities who file frivolous strike suits in order to get a settlement before the defendant can determine that there is little to no merit?

2) entities who own patents and seek enforcement without being major producers of the products contained therein?

3) entities who enforce their patents on products that they make?

In case of 1, totally agree needs more work to discourage.  Note however that this is not really a patent problem, it is a problem of increasing/tuning in sanctions for such suits.

In the case of 2, what exactly is the problem you are seeing?

In the case of 3 same question as 2.
 
2013-06-05 11:16:02 AM
patents are double edged really, if nobody could patent anything then a lot of stuff would simply be hidden and never brought out at the right time or worse - lost completely, on the flip side are companies that do nothing but patent troll and stifle creativity and progress

hopefully in the future we come up with a system that keeps ideas safe while still encouraging others to iterate on those same ideas without fear

the current system really benefits nobody in the long run, samsung winning really doesn't make things better for creativity nor does apple winning really sifle it, the system is the way it is regardless of two entities fighting ego battles
 
2013-06-05 11:19:14 AM

Teiritzamna: 1) entities who file frivolous strike suits in order to get a settlement before the defendant can determine that there is little to no merit?
In case of 1, totally agree needs more work to discourage.  Note however that this is not really a patent problem, it is a problem of increasing/tuning in sanctions for such suits.


See, e.g., Prenda Law, which was a copyright troll. This is a litigation issue, not a patent or even IP-specific issue. The same frivolous harassment suits could be over online defamation ("you posted X about me online, I'mma sue you for libel! ... or you could send me a check for $500 and we'll call it even"); billing fraud ("you agreed to subscribe to our magazine and haven't paid, I'mma sue you for breach! ... or send me a check for $100 and we'll call it even"); etc. Consumer protection laws have been passed to stop some of the latter, and appear to work. Similar laws could be passed to protect consumers against similar frivolous IP suits.
 
2013-06-05 11:26:17 AM

AdamK: hopefully in the future we come up with a system that keeps ideas safe while still encouraging others to iterate on those same ideas without fear

the current system really benefits nobody in the long run, samsung winning really doesn't make things better for creativity nor does apple winning really sifle it, the system is the way it is regardless of two entities fighting ego battles


I think part of the problem is the availability of injunctive relief, a holdover from the patents-as-property philosophy that says that you have an absolute right to exclude others from your property, even if it's an economically poor decision.  For example, if someone is doing construction on a lot that's either accessible via a short 1 mile drive over your land, or a 30 mile looping scenic route, you have an absolute right to stop them from trespassing and force them to take the long route. And that makes sense with property, because you have a right to private and quiet enjoyment of your land. But it makes a lot less sense with an idea.
Additionally, it means that a patent owner has a huge stick to use against an infringer: "settle with me on  my terms, or I'll get an injunction and put you out of business." They can use that as leverage to get royalties that are far higher than the invention merits, because if they don't, they can take their ball  and yours and go home.

On the plus side, the federal circuit is pushing back against that, and the standard for getting an injunction in federal court is getting much, much higher. Money is almost always going to be an adequate remedy for patent infringement, so let's really talk about a fair royalty payment, rather than a mutually assured destruction "I get no royalties, but I put you out of business" threat.

On the minus side, the ITC hasn't caught up to modern times... which is how you get decisions like the one in the article.
 
2013-06-05 11:26:44 AM

AdamK: the current system really benefits nobody in the long run, samsung winning really doesn't make things better for creativity nor does apple winning really sifle it, the system is the way it is regardless of two entities fighting ego battles


See this kind of hands in the air reductionism doesn't really help.  Are there serious systemic problems that need to be addressed in the silicon side of the patent world?  Surely.  In fact there has been fairly consistent efforts, both from the judiciary (see, e.g., the at least once a year ass-beating the SCOTUS gives the Fed. Cir. in an attempt to bring patents to heel - KSR being one of the better examples), to the Legislature (The AIA is flawed, but shows that people are still attempting to fix things) to the Executive (see yesterday's executive orders).  But to say that "Hey! Two big Companies are engaged in a long back and forth series of related cases that in the end are more about recouping the large costs of litigation and gaining slight market advantages rather than anything to do with the purported dispute!  Patent benefits nobody!"  is rather . . . silly.
 
2013-06-05 11:30:32 AM

Theaetetus: On the plus side, the federal circuit is pushing back against that, and the standard for getting an injunction in federal court is getting much, much higher. Money is almost always going to be an adequate remedy for patent infringement, so let's really talk about a fair royalty payment, rather than a mutually assured destruction "I get no royalties, but I put you out of business" threat.


Ebay being yet another "take em behind the woodshed moment" from the SCOTUS to the Fed. Cir.

Of course, on the flip side, the Coase theorem would say that if the companies at issue acted like rational actors, even injunctions would not be a problem, most of the time.  Not entirely sure of course that even companies can act economically rationally though . . .

Theaetetus: On the minus side, the ITC hasn't caught up to modern times... which is how you get decisions like the one in the article.


Yeah, the ITC is often a farking mess.  It's shocking how odd and out of step it is sometimes.
 
2013-06-05 11:31:02 AM

Theaetetus: Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?


Fark is a large company with a giant patent portfolio?
 
2013-06-05 11:33:17 AM

SpaceButler: Theaetetus: Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?

Fark is a large company with a giant patent portfolio?


Given that the average patent thread includes at least 7 farkers claiming to own patents on patenting, headlines, suing, derp and/or herp - yes, it apparently does.
 
2013-06-05 11:43:15 AM

Teiritzamna: SpaceButler: Theaetetus: Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?

Fark is a large company with a giant patent portfolio?

Given that the average patent thread includes at least 7 farkers claiming to own patents on patenting, headlines, suing, derp and/or herp - yes, it apparently does.


The stories about herp are usually found in the Entertainment tab.
 
2013-06-05 11:46:42 AM
SpaceButler
Theaetetus:
Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?

Fark is a large company with a giant patent portfolio?


Those large (US) companies are really charitable organizations.
Just a couple of weeks ago they urged the German government to introduce/increase software patents so that small German software companies have a chance to compete with them.
 
2013-06-05 11:57:27 AM
Meh, the Chinks will just steal it, produce a knock off, and not give a fark about your patent anyway.
 
2013-06-05 12:23:46 PM

The Voice of Doom: SpaceButler
Theaetetus: Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?

Fark is a large company with a giant patent portfolio?

Those large (US) companies are really charitable organizations.
Just a couple of weeks ago they urged the German government to introduce/increase software patents so that small German software companies have a chance to compete with them.


Wow, good on them!  Soon Germany will be able to enjoy all the benefits of software patents.  I mean, just imagine how much farther ahead technology would be today if the GUI, the IBM PC BIOS and all the software underlying the early Internet had been patented.
 
2013-06-05 12:33:39 PM
The more I read, the more I feel like the patent system is designed to be cryptographic or something so people can't get their innovative ideas protected, invariably falling into the clutches of the larger corporations.

/I'm actually surprised there isn't a class on patenting etc. at my University.
 
2013-06-05 12:37:08 PM

SpaceButler: The Voice of Doom: SpaceButler
Theaetetus: Notice how all the companies pushing the "patent trolls are bad!" story are large companies with giant patent portfolios, like Apple, Samsung, Microsoft, Google, etc.?

Fark is a large company with a giant patent portfolio?

Those large (US) companies are really charitable organizations.
Just a couple of weeks ago they urged the German government to introduce/increase software patents so that small German software companies have a chance to compete with them.

Wow, good on them!  Soon Germany will be able to enjoy all the benefits of software patents.  I mean, just imagine how much farther ahead technology would be today if the GUI, the IBM PC BIOS and all the software underlying the early Internet had been patented.


I know. It's such a shame that there haven't been any innovations in software or computers since the mid 1980s when software became patentable. But of course, you can't read this post, since with the graphics and everything on this page, you'll be downloading it for the next several hours on your 300 baud modem, provided your connection doesn't drop.
 
2013-06-05 12:50:14 PM

ajgeek: The more I read, the more I feel like the patent system is designed to be cryptographic or something so people can't get their innovative ideas protected, invariably falling into the clutches of the larger corporations.


Its more that the patent system is complex because what it intends to do is hard.

Imagine that to show that you own a piece of land you have to describe it fully in the deeds office (usually, in fact, you do).  However, also imagine that instead of describing your property either through a set of map coordinates or a special tax-map-key designation, which is what is usually done, you have to actually describe the land itself.  So your deed would be something along the lines of: "the property extending 100 feet from the boulder shaped like the head of Mickey Rooney, 13 degrees south southwest to a depression in the ground 1.98 inches deep . . . ."  Note that under this system, if you screw up in your description, you could end up losing areas of land, or the whole parcel, but if you describe it in a particular way you may end up with somewhat more land than you started with.

Additionally, now add in the fact that other people can think they own the same land and that if the land was ever owned before, you cannot own it, but that to determine if it was owned before, you have to read through every deeds office listing and determine if their descriptions are applicable to the land you think you might own. 

Finally, note that this analogy actually paints the issue much nicer than it often is in many fields, where the very act of figuring out how to describe what is claimed is a bear.  This is one of the reasons why pharma is a more settled house than the silicon dies of things - in pharma patents at least you can draw the chemical structure being claimed, meaning description is easier.*

/*although pharma has its own description problems
//he said looking at you Markush
 
2013-06-05 12:51:35 PM
Teiritzamna: the silicon dies the silicon side

FTFM
 
2013-06-05 01:05:29 PM

Teiritzamna: This is one of the reasons why pharma is a more settled house than the silicon dies of things - in pharma patents at least you can draw the chemical structure being claimed, meaning description is easier.*


... which makes anticipation analysis easier, but not obviousness. But of course, pharma simply shrugs and says that no changes to a chemical are obvious, because they all have unpredictable results (unless you're infringing their patent, in which case any changes you made are trivial and negligible and easily predictable).
 
2013-06-05 01:30:28 PM

Theaetetus: ... which makes anticipation analysis easier, but not obviousness. But of course, pharma simply shrugs and says that no changes to a chemical are obvious, because they all have unpredictable results (unless you're infringing their patent, in which case any changes you made are trivial and negligible and easily predictable).


I would say that the lead compound doctrine and some of the more recent case law has tightened up obviousness in the carbon universe, but i would agree that it is much harder to just point at a prior art reference and say "so its obvious!" The real reason, i think, is that A) PHOSITA in pharma are much smarter these days about saying x or y is obvious on the record and B) judges go crosseyed when forced to re-live organic chemistry and thus just glaze over and then pick a winner out of a hat.
 
2013-06-05 01:54:51 PM

Teiritzamna: ajgeek: The more I read, the more I feel like the patent system is designed to be cryptographic or something so people can't get their innovative ideas protected, invariably falling into the clutches of the larger corporations.

Its more that the patent system is complex because what it intends to do is hard.

Imagine that to show that you own a piece of land you have to describe it fully in the deeds office (usually, in fact, you do).  However, also imagine that instead of describing your property either through a set of map coordinates or a special tax-map-key designation, which is what is usually done, you have to actually describe the land itself.  So your deed would be something along the lines of: "the property extending 100 feet from the boulder shaped like the head of Mickey Rooney, 13 degrees south southwest to a depression in the ground 1.98 inches deep . . . ."  Note that under this system, if you screw up in your description, you could end up losing areas of land, or the whole parcel, but if you describe it in a particular way you may end up with somewhat more land than you started with.

Additionally, now add in the fact that other people can think they own the same land and that if the land was ever owned before, you cannot own it, but that to determine if it was owned before, you have to read through every deeds office listing and determine if their descriptions are applicable to the land you think you might own. 

Finally, note that this analogy actually paints the issue much nicer than it often is in many fields, where the very act of figuring out how to describe what is claimed is a bear.  This is one of the reasons why pharma is a more settled house than the silicon dies of things - in pharma patents at least you can draw the chemical structure being claimed, meaning description is easier.*

/*although pharma has its own description problems
//he said looking at you Markush


This is actually a really good way of putting it.  I think when I write a patent, I spend half of the total time just getting the claim language right.  Dictionaries upon dictionaries are consulted, hands are wrung trying to find that perfect turn of phrase that describes a shape or a dimensional relationship juuuust right.  From start to finish I probably rewrite them over entirely five or six times, on average, sometimes more.  Then the rest of the patent is basically autopilot.

/mechanical, mostly industrial machinery and food/beverage packaging
//no software - acoustics is about as abstract as I think I'm capable of getting
 
2013-06-05 01:56:51 PM
fc03.deviantart.net
 
2013-06-05 01:58:14 PM

Robo Beat: I think when I write a patent, I spend half of the total time just getting the claim language right.  Dictionaries upon dictionaries are consulted, hands are wrung trying to find that perfect turn of phrase that describes a shape or a dimensional relationshipjuuuust right.  From start to finish I probably rewrite them over entirely five or six times, on average, sometimes more.  Then the rest of the patent is basically autopilot.


It's kinda depressing to sit for hours thinking, writing, erasing, revising, thinking more, etc. and at the end, you have maybe three pages, double spaced.

... but then you go write the spec and crank out ten-twenty pages in an hour and feel better about yourself. :)

/mechanical, mostly industrial machinery and food/beverage packaging
//no software - acoustics is about as abstract as I think I'm capable of getting


But can't machinery be described by gear ratios and moment arms, and isn't food and beverage packaging really just combinations of solids, so isn't it all unpatentable math? ;)
 
2013-06-05 02:02:55 PM

Theaetetus: But can't machinery be described by gear ratios and moment arms, and isn't food and beverage packaging really just combinations of solids, so isn't it all unpatentable math? ;)


Lawrence Waterhouse would agree -


"He had figured out that everything was much simpler if, like Superman with his X-ray vision, you just stared through the cosmetic distractions and saw the underlying mathematical skeleton. Once you found the math in a thing, you knew everything about it, and you could manipulate it to your heart's content with nothing more than a pencil and a napkin. He saw it in the curve of the silver bars on his glockenspiel, saw it in the catenary arch of a bridge and in the capacitor-studded drum of Atanasoff and Berry's computing machine. Actually pounding on the glockenspiel, riveting the bridge together, or trying to figure out why the computing machine wasn't working were not as interesting to him."
 
2013-06-05 02:08:09 PM

Theaetetus: I know. It's such a shame that there haven't been any innovations in software or computers since the mid 1980s when software became patentable. But of course, you can't read this post, since with the graphics and everything on this page, you'll be downloading it for the next several hours on your 300 baud modem, provided your connection doesn't drop.


I know, it's annoying as hell.  I have no idea how someone got a software patent on faster modem hardware, and that Tim Berners-Lee asshole should never have patented the web server and web browser.

Snark aside, I'm open to changing my opinion based on evidence.  I just honestly don't know of many software patents where the patent itself has been of benefit; every one which I'm aware of falls into at least one of three categories: (1) easy to avoid via small implementation changes; (2) ridiculously trivial and/or over-broad; or (3) went unenforced or was openly allowed for use without royalties or payment.  Only the third category seems to actually provide general benefit to the industry, and even then, the only good examples I can think of are some compression and cryptography algorithms -- that is, they're more about very dense and difficult mathematics than they are about software functionality.

I'm not against software patents in a moral sense, my dislike of them comes down to two practical issues: patent offices don't seem to get the sort of resources required to properly evaluate software patents for obviousness or specificity, and the 20-year term is much too long for an industry that advances as quickly as the software industry does.  Because of those two issues, the system is extremely vulnerable to abuse by companies with bad patents and money for lawyers, and if there's good evidence of beneficial effects which outweigh the effect of those assholes, then I'm ignorant of it.
 
hej
2013-06-05 03:13:54 PM

Teiritzamna: Stone Meadow: First, we shoot all the patent trolls... ;^)

Well what are we discussing here, as this has become a term without meaning

1) entities who file frivolous strike suits in order to get a settlement before the defendant can determine that there is little to no merit?

2) entities who own patents and seek enforcement without being major producers of the products contained therein?

3) entities who enforce their patents on products that they make?

In case of 1, totally agree needs more work to discourage.  Note however that this is not really a patent problem, it is a problem of increasing/tuning in sanctions for such suits.

In the case of 2, what exactly is the problem you are seeing?

In the case of 3 same question as 2.


In the simplest terms, #2 is usually the primary way that innovation is stifled.  You're effectively doing at least one of two things:
1) Actively preventing consumers from having access to technology by saying "I'm not going to make it, and nobody else is allowed to."
2) Discouraging entrepreneurs from filling an unmet need out of fear that somebody, somewhere is lurking with a (often vague) patent that they can use to sue you after you've spend the time and money trying to spin up a business surrounding this technology void.

Another reason I object to #2 is because it makes exceedingly vague patents even easier to claim when you have no actual implementation demonstrating your technology.  The entire purpose of patents is to prevent people from having their designs stolen by a competing business.  If you haven't created an implementation, it seems ridiculous to say somebody else stole it from you.

 Long story short, creating or buying a patent with sole intention of just sitting on it waiting for somebody to infringe is pretty much the definition of "patent troll."
 
2013-06-05 03:17:39 PM

SpaceButler: Theaetetus: I know. It's such a shame that there haven't been any innovations in software or computers since the mid 1980s when software became patentable. But of course, you can't read this post, since with the graphics and everything on this page, you'll be downloading it for the next several hours on your 300 baud modem, provided your connection doesn't drop.

I know, it's annoying as hell.  I have no idea how someone got a software patent on faster modem hardware, and that Tim Berners-Lee asshole should never have patented the web server and web browser.


You get a "software" patent on faster modem hardware because you're claiming a method - i.e. software - for doing things like TCP multiplexing and pooling, or burst retransmission avoidance, or other various features that make the intarwebs go faster.

That's part of the problem... The complaints about "software patents" don't really apply to all software, and most people are fine with really well defined, non-abstract "software" patents. The bigger issue should be business method patents (like Bilski's patent application, or Alice Bank's patent), but people lump it all together under "software" and confuse the issues.

Snark aside, I'm open to changing my opinion based on evidence.  I just honestly don't know of many software patents where the patent itself has been of benefit; every one which I'm aware of falls into at least one of three categories: (1) easy to avoid via small implementation changes; (2) ridiculously trivial and/or over-broad; or (3) went unenforced or was openly allowed for use without royalties or payment.

Check out the Microsoft v. i4i suits. i4i had come up with a clever little universal XML translator that let you use any word processor as an XML editor by separating the metacodes from the payload data. It enabled all sorts of further features, like working on codes separately from content, reuse of codes to reduce storage requirements, allowing different content editors with their own formatting systems to work  on the same document, etc.  Microsoft copied it and implemented the invention in Office.

i4i was able to enforce their patent, and it was something that Microsoft couldn't easily design around. As for ridiculously trivial and overbroad, Microsoft filed three separate reexaminations with different prior art, including appealing one of them, and couldn't invalidate any claims of the patent.  If the patent's overbroad, then it's overbroad while claiming something entirely new and nonobvious over any art one of the richest companies in the world could find to throw at it.

That patent helped a small company with only a few dozen employees keep a giant company from stealing their idea for free. It explicitly helped the "little guy".

Only the third category seems to actually provide general benefit to the industry, and even then, the only good examples I can think of are some compression and cryptography algorithms -- that is, they're more about very dense and difficult mathematics than they are about software functionality.

Oddly, some of the anti-patent people would argue that those are precisely the patents that shouldn't be allowed: even the most nonobvious, novel, freakin' revolutionary cryptography algorithm shouldn't be patented because it's "just math".

I'm not against software patents in a moral sense, my dislike of them comes down to two practical issues: patent offices don't seem to get the sort of resources required to properly evaluate software patents for obviousness or specificity, and the 20-year term is much too long for an industry that advances as quickly as the software industry does.  Because of those two issues, the system is extremely vulnerable to abuse by companies with bad patents and money for lawyers, and if there's good evidence of beneficial effects which outweigh the effect of those assholes, then I'm ignorant of it.

There's a lag time with patents due to how long it takes to get one and how long litigation takes. So, right now, for example, you're seeing suits over patents that were filed back in the mid-1990s. And more of the famous software patent suits have been on patents from the late 1980s. And the problem there is that, back then, the USPTO didn't hire patent examiners with computer science degrees. So, you had hard-silicon EE and CE guys reviewing them, and saying things like "client-side http caching? That's just like DRAM, right?" and when the applicants explained the distinction, they'd say "oh... Okay, I guess it's patentable" without doing further searches. Basically, they weren't the right experts and didn't know what to search for.

That's changed now, but due to that lag, you won't really start seeing the effect for another 5-10 years.
 
2013-06-05 03:28:16 PM

Theaetetus: Theaetetus: Why? Design patents are really narrow, and are more like trade dress - pretty much the only way you infringe one is when you intentionally make a look-alike product. I don't think  anyone has ever gotten hit with a design patent infringement suit that they couldn't have easily seen coming, which is one of the more legitimate complaints about utility patents.

For example, here's a comparison of the Lululemon product and design patent, and the Calvin Klein accused infringing product:
[www.itsallyogababy.com image 850x374]
You're going to claim that Calvin Klein's designers had never seen Lululemon's pants before they came up with their design, or weren't intentionally trying to make a cheap look-alike version?


No what I'm going to claim is that Lululemon has no right to a PATENT on a piece of clothing.  Prior art stretches back milennia, and fashion design have always been held by the courts to be not patentable, or even trademarkable except under limited circumstances.  And there is exactly Zero societal utitlity in legally protecting the right of one company to charge $100 for an item another company can proftiably and easily produce for $14.  In fact that very idea offends the basic principles of the free market.  Lululemon did no R&D, made no investment in materials science or anything else that justifes protecting tis design for YOGA PANTS
 
2013-06-05 03:33:33 PM

Theaetetus: Theaetetus: Why? Design patents are really narrow, and are more like trade dress - pretty much the only way you infringe one is when you intentionally make a look-alike product. I don't think  anyone has ever gotten hit with a design patent infringement suit that they couldn't have easily seen coming, which is one of the more legitimate complaints about utility patents.

For example, here's a comparison of the Lululemon product and design patent, and the Calvin Klein accused infringing product:
[www.itsallyogababy.com image 850x374]
You're going to claim that Calvin Klein's designers had never seen Lululemon's pants before they came up with their design, or weren't intentionally trying to make a cheap look-alike version?


I'm going to claim who cares.

Patents are only a way for huge companies to block competition.

The advantage for being the first to do something is being the first to the market.
 
2013-06-05 03:43:23 PM

hej: In the simplest terms, #2 is usually the primary way that innovation is stifled.  You're effectively doing at least one of two things:
1) Actively preventing consumers from having access to technology by saying "I'm not going to make it, and nobody else is allowed to."
2) Discouraging entrepreneurs from filling an unmet need out of fear that somebody, somewhere is lurking with a (often vague) patent that they can use to sue you after you've spend the time and money trying to spin up a business surrounding this technology void.


The first one is the injunction problem I noted earlier. The second, however? Patent trolls don't sue the guy running a business out of his garage with $50k revenue per year. It's just not worth it - they'll lose money just filing the suit, even if the guy folds and they get a default judgement. They sue when you get up towards $1M in revenue, or more, depending on the industry. Which, at least according to one entrepreneur, is how you know you've become successful as a business.
And, if damages are  properly calculated as a reasonable royalty, then what's the issue? You might have to pay 1% of your profits to someone who had the idea before you and took the steps to protect it? I guess you'll have to cry yourself to sleep on top of your giant pile of money.

Another reason I object to #2 is because it makes exceedingly vague patents even easier to claim when you have no actual implementation demonstrating your technology.

The requirement for a prototype was removed to protect  small inventors, who frequently couldn't afford to prototype their idea immediately. They'd have to save money and wait, and during that period, someone else could patent the idea.
Basically, this argument boils down to "trolls are bad, so let's kill off small inventors. Only giant corporations should own anything."
... which makes you wonder if the target is really trolls... or small inventors?

The entire purpose of patents is to prevent people from having their designs stolen by a competing business.  If you haven't created an implementation, it seems ridiculous to say somebody else stole it from you.

Except that you published your idea, and maybe even were approaching other people to implement it.
Let's say, for example, that you come up with a major improvement for online music sales. Are you supposed to start your own company and compete, as the tiny ant, with Apple and Amazon and the others? Why not sell it to one (or more) of them? Under your proposal, you couldn't - you'd have nothing to sell, unless you started your inevitably-doomed-to-fail company. And that just seems like economic waste.
 
2013-06-05 03:52:32 PM

Magorn: No what I'm going to claim is that Lululemon has no right to a PATENT on a piece of clothing.  Prior art stretches back milennia...


[Citation needed]
Go ahead, since you made that incredible and unbelievable wild assertion... Go find a photograph, painting, etching, cave painting,  anything showing Lululemon's design.

And before you say, "Bu-bu-bu-but, I didn't mean that specific design... I meant that clothing has existed for millennia," they didn't patent the concept of clothing. They patented the specific design. The one that, contrary to your unsupported wild speculation, did not exist for thousands of years.

... and fashion design have always been held by the courts to be not patentable, or even trademarkable except under limited circumstances.

This is as false as it is unsupported. A simple Google patent search for any type of clothing (jeans, dresses, shoes, etc.) will turn up thousands of examples of patents. And anyone who has ever taken even an introduction to IP class will be able to discuss Louboutin's shoe trade dress, the trade dress of Levi's jeans pocket stitching and rivets, etc.

Now, a  utility patent on fashion is very difficult to obtain, since the  function of clothing is rarely new or nonobvious. But that's a different matter entirely, since we're talking about design patents on the  aesthetics.
Shiat, Magorn, I thought you were an attorney. Do I have you mis-farkied?

And there is exactly Zero societal utitlity in legally protecting the right of one company to charge $100 for an item another company can proftiably and easily produce for $14.

Reading that infographic should inform even a near-illiterate person that they're not the same exact product. And, while you may be wearing an unbleached cotton shift, the rest of the world is in nigh-universal agreement that aesthetics and fashion have value to society.

/this assumes that you're not a hypocrite and  are,in fact, wearing said cotton shift. If you're in anything more aesthetically pleasing, such as a suit, well...
 
2013-06-05 03:54:47 PM

Theaetetus: Check out the Microsoft v. i4i suits.

[snip]
That patent helped a small company with only a few dozen employees keep a giant company from stealing their idea for free. It explicitly helped the "little guy".

Thanks very much, I'll read into that one.

Theaetetus: Oddly, some of the anti-patent people would argue that those are precisely the patents that shouldn't be allowed: even the most nonobvious, novel, freakin' revolutionary cryptography algorithm shouldn't be patented because it's "just math".


Yeah, I gather that the idea that math is unpatentable is an old one in the patent system, and was a major part of the legal battles over the patentability of software back in the 60s and 70s.  I'm not familiar enough with the legal precedents and arguments to have a firm opinion myself, but lately I've started to think that might now be an anachronism, since computers mean that many forms of mathematics are so much more practically useful than they once were.  Not that I'd advocate just making all kinds of maths patentable -- that would create a huge mess of its own in short order.

Theaetetus: There's a lag time with patents due to how long it takes to get one and how long litigation takes. So, right now, for example, you're seeing suits over patents that were filed back in the mid-1990s. And more of the famous software patent suits have been on patents from the late 1980s. And the problem there is that, back then, the USPTO didn't hire patent examiners with computer science degrees. So, you had hard-silicon EE and CE guys reviewing them, and saying things like "client-side http caching? That's just like DRAM, right?" and when the applicants explained the distinction, they'd say "oh... Okay, I guess it's patentable" without doing further searches. Basically, they weren't the right experts and didn't know what to search for.

That's changed now, but due to that lag, you won't really start seeing the effect for another 5-10 years.


I'm glad to hear that's changed.  My understanding is that expertise wasn't the sole issue, though -- that there was/is a general problem with the patent offices being underfunded and thus unable to hire enough examiners to be able to do a thorough job vetting all the applications they receive.  Has that also been addressed?
 
2013-06-05 03:55:56 PM

MugzyBrown: Patents are only a way for huge companies to block competition.

The advantage for being the first to do something is being the first to the market.


Why do you love huge companies like Zynga and hate small guys like NimbleBit?
 
2013-06-05 04:03:27 PM
SpaceButler: My understanding is that expertise wasn't the sole issue, though -- that there was/is a general problem with the patent offices being underfunded and thus unable to hire enough examiners to be able to do a thorough job vetting all the applications they receive.  Has that also been addressed?

Yes, and no... They've been doing a lot of hiring, and are opening two new satellite offices. Also, fees have been increased, so revenue should be increased too.
... but, that said, that revenue is  supposed to be spent by the patent office to improve examination and hire workers, but Congress always seizes it for paying for wars or building post offices or some other bullshiat.
 
2013-06-05 04:03:52 PM

Theaetetus: Why do you love huge companies like Zynga and hate small guys like NimbleBit?


Why do you hate innovation and love litigation?  Oh because you're a lawyer.
 
2013-06-05 04:21:27 PM

Theaetetus: Magorn: No what I'm going to claim is that Lululemon has no right to a PATENT on a piece of clothing.  Prior art stretches back milennia...

[Citation needed]
Go ahead, since you made that incredible and unbelievable wild assertion... Go find a photograph, painting, etching, cave painting,  anything showing Lululemon's design.

And before you say, "Bu-bu-bu-but, I didn't mean that specific design... I meant that clothing has existed for millennia," they didn't patent the concept of clothing. They patented the specific design. The one that, contrary to your unsupported wild speculation, did not exist for thousands of years.

... and fashion design have always been held by the courts to be not patentable, or even trademarkable except under limited circumstances.

This is as false as it is unsupported. A simple Google patent search for any type of clothing (jeans, dresses, shoes, etc.) will turn up thousands of examples of patents. And anyone who has ever taken even an introduction to IP class will be able to discuss Louboutin's shoe trade dress, the trade dress of Levi's jeans pocket stitching and rivets, etc.

Now, a  utility patent on fashion is very difficult to obtain, since the  function of clothing is rarely new or nonobvious. But that's a different matter entirely, since we're talking about design patents on the  aesthetics.
Shiat, Magorn, I thought you were an attorney. Do I have you mis-farkied?

And there is exactly Zero societal utitlity in legally protecting the right of one company to charge $100 for an item another company can proftiably and easily produce for $14.

Reading that infographic should inform even a near-illiterate person that they're not the same exact product. And, while you may be wearing an unbleached cotton shift, the rest of the world is in nigh-universal agreement that aesthetics and fashion have value to society.

/this assumes that you're not a hypocrite and  are,in fact, wearing said cotton shift. If you're in anything more aestheti ...


Trade Dress and Patents are NOT the same thing.  Have you ever noticed how a an exact copy of any dress worn at the Oscars by a famous starlet is available the very next day at any NYC rag merchant?   There's a reason that is perfectly legal FASHION DESIGNS ARE NEITHER COPYWRITEABLE NOR PATENTABLE, the US Supreme Court has said so, repeatedly.  Clothing patents are for things like say, the process by which levi's affixes the rivets to their jeans, NOT the jeans themselves.

the Red shoe example was a TRADEMARK issue

Or int he words of the USPTO itself:
 Improper Subject Matter for Design Patents
A design for an article of manufacture that is dictated primarily by the function of the article lacks ornamentality and is not proper statutory subject matter under 35 U.S.C. 171. Specifically, if at the time the design was created, there was no unique or distinctive shape or appearance to the article not dictated by the function that it performs, the design lacks ornamentality and is not proper subject matter. In addition, 35 U.S.C. 171 requires that a design to be patentable must be "original." Clearly a design that simulates a well-known or naturally occurring object or person is not original as required by the statute.
 
2013-06-05 05:24:52 PM

Magorn: Trade Dress and Patents are NOT the same thing.


Trade dress and  design patents are distinct in their requirements (namely, the former requires secondary meaning associated with the manufacturer, and the latter requires novelty and nonobviousness), but they are overlapping in what they protect - the aesthetic look and feel of something.
They also overlap in the test for infringement, coincidentally.

Have you ever noticed how a an exact copy of any dress worn at the Oscars by a famous starlet is available the very next day at any NYC rag merchant?   There's a reason that is perfectly legal

Actually, it's not legal at all. See, for example, the frequent seizures of counterfeit designer dresses. In fact, it's one of the purposes of Anton Pilar orders.

 FASHION DESIGNS ARE NEITHER COPYWRITEABLE NOR PATENTABLE, the US Supreme Court has said so, repeatedly.

With all due respect, I really,  really, don't believe that the Supreme Court has ever said something was not "copywriteable".

Additionally, they certainly are covered under copyright - a creative work, embodied in a tangible work - but as we don't have matter copying devices yet, it's irrelevant. And finally, of course they're patentable. Did you miss that whole Lululemon  patent we were discussing? The Supreme Court has never said anything of the sort regarding fashion. They have said that  designs are covered under [gasp]  design patents, rather than utility patents, but I already said that to you, so I'm not sure why you're shouting as if you're proclaiming some grand revelation.

Clothing patents are for things like say, the process by which levi's affixes the rivets to their jeans, NOT the jeans themselves.

False, and demonstrably so.

the Red shoe example was a TRADEMARK issue

Maybe that's why I said "And anyone who has ever taken even an introduction to IP class will be able to discuss Louboutin's shoe trade dress"? And maybe I raised it in response to your clearly incorrect assertion (that you appear to be retracting now) that "fashion design have always been held by the courts to be not...  trademarkable except under limited circumstances."

Shiat, dude, you're so wrong, you're even contradicting yourself.

Or int he words of the USPTO itself:
 Improper Subject Matter for Design Patents
A design for an article of manufacture that is dictated primarily by the function of the article lacks ornamentality and is not proper statutory subject matter under 35 U.S.C. 171. Specifically, if at the time the design was created, there was no unique or distinctive shape or appearance to the article not dictated by the function that it performs, the design lacks ornamentality and is not proper subject matter.


See the difference between what you're saying, and what the law is? Go read that paragraph again a few dozen more times until you understand it: designs, including those for fashion, that are  non-functional ornamentation that are new and nonobvious are absolutely patentable.
 
2013-06-05 05:26:51 PM
For anyone in the peanut gallery, this is an example of why a patent attorney is not a tax attorney is not an immigration attorney is not a criminal defense attorney, etc. Just because someone may be an attorney doesn't mean they know jacksquat about an area of the law they've never worked with, never read about, etc.
 
2013-06-05 09:43:38 PM
Theaetetus:

For example, here's a comparison of the Lululemon product and design patent, and the Calvin Klein accused infringing product:
[www.itsallyogababy.com image 850x374]
You're going to claim that Calvin Klein's designers had never seen Lululemon's pants before they came up with their design, or weren't intentionally trying to make a cheap look-alike version?


Both look like any of a million designs of yoga pants.
 
2013-06-05 09:55:39 PM
Theaetetus
Check out the Microsoft v. i4i suits. i4i had come up with a clever little universal XML translator that let you use any word processor as an XML editor by separating the metacodes from the payload data.

I think I finally understand what you must feel like when people use "trademark" and "copyright" interchangably.

For starters, the whole point of XML is being able to edit it with... Arrrgh!

angrydome.net
 
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