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Comment by 10ren | Hacker News Reader

It's pointless looking at patent titles (or abstracts), You have to examine the claims.

Even there, you can't just look at claim 1, because the standard approach is to begin by claiming overbroadly, and then narrowing the claims, so that usually claim 1 wouldn't be expected to hold up, but one of the later ones. Which later ones, you don't know because of the uncertainties of litigation: it's hard to predict what a court will find. As in negotiating, why not ask for as much as possible?

It's a little bit like the dubious criminal defence I didn't kill him, and if I did it was an accident.

btw typo: in "for infringing the following patent", patent should be "patents". That confused me.

Gee I sound like a patent advocate/apologist. It's just that I love inventions.

EDIT I'm not arguing for these particular patents, but against how they're being assessed.

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Yup, you have to examine the claims. So I took a look at the claims for US patent 5,742,768 ("System and method for providing and displaying a web page having an embedded menu"). Claim 1 is (I'm paraphrasing a bit) having a web page with an applet that displays a menu in which there are some links. You might think "oh yeah, that's a typically overbroad claim 1", but the others don't restrict it in at-all-interesting ways. Doing it over the internet. Doing it on a private internet. Doing it in Java. And -- this is as innovative as it gets -- having the applet pop up a menu when the user's pointer moves over a hot spot in the web page.

Yup, it's true that sometimes what seems on the face of it a ridiculous patent turns out to be a more sensible one whose title and/or abstract make it look worse than it is. On the other hand, sometimes what seems on the face of it to be a ridiculous patent really is ridiculous.

> On the other hand, sometimes what seems on the face of it to be a ridiculous patent really is ridiculous.

I hope we can agree that this is one of those.

How did we ever get this far?

If claim 1 is tossed then subsequent claims based on claim 1, which will probably be many, are automatically tossed. Therefore claim 1 better be your best claim.

For example, in "Method and system for mapping between logical data and physical data," if Claim 1 is tossed, then claims 2-9 automatically go with it.

This is absolutely not the case.

Sorry, I meant to upvote you but clicked the wrong arrow...

No, you've got that backwards. Suppose you have:

Claim 1. A method for surviving, comprising: Cooking a meal.

Claim 2. A method as in claim 1, wherein the meal is breakfast.

Claim 3. A method as in claim 2, wherein the breakfast comprises sausages and bacon.

Claim 4. A method as in claim 3, wherein the sausages and bacon are fried.

and so on. A court might decide that there's some prior art for having meals, and toss out claim 1. But that prior art might only be for lunch and dinner, in which case claim 2 might survive. On the other hand, maybe someone else has had breakfast before (publicly enough to count as prior art). Then claim 2 goes too, but maybe claim 3 survives. Oh, too bad, it turns out that the court thinks having sausage and bacon for breakfast is obvious to one ordinarily skilled in the art. Bye-bye to claim 3, but maybe frying them is an extraordinary new idea that no one else would have thought of.

Of course, similar things can happen during patent prosecution (i.e., filing; the terminology is silly), only now it's the patent office that keeps objecting to your claims and requiring you to fall back to weaker dependent claims.

It's absolutely standard for your first claim to be very broad, and subsequent ones to be narrower. It's absolutely not standard for claim 1 to be "best" in the sense of "least likely to be invalidated".

Yes, but if you're not doing Claim 1 ... i.e. you're not cooking a meal ... even if your meal is breakfast, and the breakfast comprises sausages and bacon and those are fried ... you're not infringing.

That's only because if you're not doing all the claims, you're not infringing.

Exactly.

Salesforce can defend two ways: 1) challenge the validity of the patent, or 2) prove that they don't infringe the patent.

Option 1 is harder. Patents are presumed valid. Defendant (Salesforce) has the burden of proof that the patent should be overturned. Salesforce will have to do that for each alleged infringing claim.

Option 2 is easier. Plaintiff (Microsoft) has the burden of proving infringement. Salesforce just needs to show that they aren't infringing claim 1 and then they also aren't infringing claims 2-9.

That's not the case.

Think of your quotation as a claim, that describes the set of all possible inventions that meet that claim. Within that set are all kinds of mappings, between different kinds of logical data and kinds of physical data, in different situations, and using different methods for doing so. Subsequent claims restrict that set, until (the inventor hopes) you get one that is novel and inventive etc enough.

Perhaps you're thinking of the term "dependent claims", which describes claims 2-9 in your example. They're not dependent in that way.

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