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   USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
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   Author  Topic: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY  (Read 20483 times)
JimIvey
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #10 on: Jan 18th, 2006, 12:41pm »
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on Jan 18th, 2006, 11:06am, Cibola wrote:
... the Eolas patent, a poster child of evil to many in open source

Do any reasonable people consider Eolas the poster child for improperly allowed patents (claims)?  It withstood challenges in court (all the way up to the Supreme Court) and in the USPTO (and, as you note, undergoing a second challenge in the USPTO).  Not many patents withstand that sort of scrutiny.  While I haven't read the Eolas patent, it seems that it's of sufficient quality at the very least -- perhaps relatively high quality.  I certainly hope my patents fare as well.
 
on Jan 18th, 2006, 11:06am, Cibola wrote:
If the open source folks use a patented approach to evaluate patents, doesn't that undercut their underlying claim to fame a bit?

I'm not sure I follow here.  I don't think the OS community ever asserts that they can deftly avoid infringement of all patents (if any such assertions are made, it must be out of pure ignorance).  My understanding of their perspective is that it seems you can't do anything without running afoul of patent infringement liability.  I would think a patent on evaluating patents would support their claims, not contradict them.  Perhaps I misunderstood your point.
 
I think the biggest problem in this whole issue is the insistence in treating all patents like commodities.  Parent are, by definition, unique.  Each one must be considered on its unique merits.  
 
Of course, economists hate that.  I heard a joke at a recent IP CLE conference.  I'll shorten it considerably....  To improve efficiency of a dairy farm, a panel of expert economists are called in to study the operation.  As the collaboration begins, some assumptions are agreed upon.  First: "assume a spherical cow of uniform density...."
 
Like cows, patents are not spherical and do not have uniform density.  Assumptions to the contrary are ... "inefficient" (evil and an anathema to any economist).
 
Regards.
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James D. Ivey
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Cibola
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #11 on: Jan 18th, 2006, 8:04pm »
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Of opinions on U.S Patent No. 5,838,906 (Eolas), the W3C's HTML Patent Advisory Group put together prior art which it claimed would establish that the Eolas patent is invalid and "should therefore be re-examined in order to eliminate this unjustified impediment to the operation of the Web."  The Group stated the object embedding technology being claimed by Eolas has been a part of the HTML standard since the early days of the Web.  The Group warned that changes enforced by the Eolas patent would have a "permanent impact on millions of historically important Web pages," including pages with non-commercial content or older material that is not generating revenue.  In a letter to the USPTO Director, Berners-Lee wrote:  "Removing the improperly disruptive effect of this invalid patent is important not only for the future of the Web, but also for the past.  The '906 patent is a substantial setback for global interoperability and the success of the open Web."  Karsten Schneider wrote:  -->To me the Eolas patent is the poster child for software patent abuse. This so called invention has been independently “discovered” by everybody who has implemented a modern browser. The patent has done absolutely nothing to advance the art (one of the primary reasons for patents). <-- See http://kas.felinity.net/ndate/2005/09/
 
Of the quality index, one question might be whether or not Wagner and others seek to license the patented technology or simply just use it.  So far, there has not been much discussion by Wagner of the existence of the patent.   Similarly, there has not been much discussion by Wagner of why he believes the 97% patent grant rate is correct, in view of the substantial attack on the approach by Quillen.
 
 
 
 
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JimIvey
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #12 on: Jan 18th, 2006, 11:25pm »
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Whether a particular patent advances technology isn't really the final determination of the quality of a patent.  I've seen many clients extoll the virtues of their technology only to have the VC community completely ignore it.  Of course, eventually some company that gets funded comes up with the similar solution.  And, the funded company, having independently created the same solution asserts that the patent added nothing to the technology.
 
I don't know how many presentations in front of VCs you've made, but many times it seems like you're casting pearls before swine.  If the swine don't appreciate the pearls, it doesn't mean the pearls weren't valuable.  Like a contract, contribution requires both offer and acceptance of the technical teachings.  The inventor has control over the offer only, not the acceptance.  If the acceptance comes later, it's no fault of the inventor's.
 
As for the spot-on prior art of the early HTML standard, are you suggesting that Microsoft, with half a billion dollars on the line, couldn't find something as basic and fundamental as an HTML standard?  Perhaps they couldn't afford good experts or didn't have access to qualified software engineers.  Perhaps they thought they could save 1% of a $3,000,000 litigation budget by avoiding having any experts look at HTML standards for patent on web browser technology.
 
The notion that the validity of the Eolas patent wasn't adequately challenged in court by Microsoft just seems absolutely ludicrous.  The only plausible explanation (for a lame defense) is that MSFT didn't care about the half-billion dollars given MSFT's size.  I find that very hard to imagine -- especially with all the other patentholders in line with hands extended, palms up.  To paraphrase a Senator whose name I can't remember, a half-billion here, a half-billion there... pretty soon you're talking about real money.
 
Lastly, I haven't read the articles, but just because someone has a by-line doesn't mean that they know what they're talking about.  That includes me, by the way.
 
Regards.
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James D. Ivey
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #13 on: Jan 19th, 2006, 6:28am »
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There are various measurements of quality, but they boil down to an index related to patents that the statistician thinks should not be granted.   The PTO is likely to measure quality in terms of patents that an examiner reasonably allowed or rejected under the constraints faced by the examiner.   Someone else might measure quality based on whether granted patents meet the definitions of patentability under the law.
 
Poster Cibola is basically suggesting that the invention in the Eolas patent is obvious independently of whether the legal standard suggests otherwise.   He is suggesting that independent reinvention by a number of different implementers suggests that an invention is obvious.    
 
Inherent in his "definition" of obviousness is a fairly high standard for inventiveness that IMO has already been shown to be hostile to reaching the objectives of the patent system.   Unlike copyright law which requires creativity and not sweat of the brow, the patent system does reward hard work and being first; no flash of genius required just small improvements over the existing technology.  
 
The other issue is that a reimplementation test is highly subject to hindsight.   Once you know that someone has invented X, it becomes much easier for a motivated someone to invent X.  In hindsight everything is obvious.
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #14 on: Jan 19th, 2006, 8:35am »
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Isaac and JimIvey may have misinterpreted my earlier remarks.  I was responding to the statement  -->Do any reasonable people consider Eolas the poster child for improperly allowed patents (claims)? <-- by furnishing evidence of some (perhaps reasonable) people who do consider the Eolas patent a poster child for a low quality patent.  I did not say anything about what I thought, so extrapolations to  "my" view of obviousness (or anything else) are unjustified from the text presented.    
 
One notes that W3C employed Pennie & Edmonds to write a paper attacking the claims of the Eolas patent in the director-ordered re-exam under 102 (not 103) grounds.   The combination of the smart technical people of W3C and the smart legal people at P&E did not go far towards invalidating the claims.  The examiner made an initial rejection under 103 and then dropped the arguments made by W3C/P&E entirely.
 
Microsoft attempted to utilize Wei's Viola browser as prior art, but the district court (strangelyand wrongly) applied abandonment principles to 102(a) art.    Although the Viola browser is not an anticipation, the failure of Berkeley to cite the art to the PTO, after Wei asserted its relevance prior to Berkeley's filing, makes inequitable conduct loom large.
 
Could Microsoft have done a better job?  Could W3C have done a better job?  Probably yes.  These were big guys who maybe didn't get the job done.  Turn the fact pattern around to what has happened with the Kamil patent, wherein the patentee attacks small guys who can't put up much of a fight (or Smucker attacking Albie's over the peanut butter and jelly patent).  Do litigation victories really prove the quality of those patents?  No.  Wagner's approach in  "objectively" counting noses out of context does not bring much to the party of patent quality.
 
Returning to the background of Wagner's quality index, this is an attempt to look at the past, in terms of why other patents were/were not invalidated, to predict via identification of variables obtained through regression what will happen to other patents (or even applications).   This approach is covered in a US patent issued in 2003.    Wagner has announced that his algorithm will be made freely available.   Wagner also has adopted the "97% of all applications are granted" number of Quillen's first paper, even though Quillen himself dropped the 97% in a paper published one year later, and years before Wagner adopted the 97% number.  This is way more than a byline issue or nice guy issue.
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