Patent troll CEO explains why company wants names of EFF donors
arstechnica.com
arstechnica.com
http://www.google.com/patents/US8112504
Here is a summary of the patent and a discussion of prior art:
http://patents.stackexchange.com/questions/3884/disseminatin...
This will go until patent law is changed to make this no longer economically viable.
> Given that there's no question Internet broadcasting pre-dated Logan's business, Ars asked if Liddle and his colleagues at Personal Audio felt that it was justifiable to keep pursuing small podcasters for royalty payments. "I'm not going to comment on that," he said.
1) The patents are not on "Internet broadcasting". They are, effectively, despite claim oversimplification being the primary sin in discussing patents, on skipping episodes of audio content. That is it. If you want to find relevant prior art, you don't go about looking for "Internet broadcasting", you look for things that involve audio content that is episodic and can be skipped from episode to episode with a user command. Yes, really.
2) The prior art that EFF dug up, if it is indeed on "Internet broadcasting", is probably not relevant to this patent.
3) Personal Audio is arguing Estoppel. Estoppel, overly simplified, means what you say and do can be used against you.
4) If you consider 2) and 3) it's highly ironic then, that Ars asks the lawyer a question that would effectively do nothing other than create estoppel for himself. Conveniently, the article gets to present that as a shady response. But consider this: whatever he may say offhand about the prior art Ars mentioned can work against him. This is the same principle as "Don't talk to the police" that gets parroted so often around here: Don't say anything without having thoroughly thought it through beforehand. As an oversimplified example: The lawyer may have said something like "That is just Internet broadcasting. This patent covers something else like skipping episodes". An opposing lawyer can then argue, "Defendant does Internet broadcasting, but plaintiff's lawyer just implied these patents don't cover Internet broadcasting."
5) Askpatents.com is much better for this work, because dedicated users (shoutout to Micah Siegel) take efforts to describe in plain english and as precisely as possible, the claims and what prior art should contain. Anything less than that devolves (as it does on HN or Slashdot) to discussions of completely irrelevant prior art.
6) Relevant prior art may actually lie in the domain of simple digital audio players, because those have had skipping of content for, like, ever. Problem is, these claims use "means for doing XYZ" in their language. This, while sounding extremely broad, is paradoxically narrow, because "means for" is now interpreted to cover only exactly the methods described in the specification. But anything that skipped episodes of content is what we want.
While I am strongly pro-patent, I completely accept there are flaws in the system. The article implies the patents are overbroad, but the reality is they are narrow enough to be literally inconsequential, but impart an over-inflated worth because of the legal environment.
However, reporting like this twists the issues and actually impedes progress. If, for example, you called your Congress-people (hah!) and complained saying "How can there be a patent on Internet broadcasting?!", they would consult with someone who actually knows how patents worked, who would then say, "Well, it's not really a patent on Internet broadcasting per se...", and that's all the politician needs to bucket you in along with the old lady who keeps calling up about the UFOs in her backyard.
OK, I'm stretching it with the politician scenario and have no experience with politics. But am I far off?
1) Hindsight is a powerful effect. Once you've been shown something new, a person of skill may instantly deduce how it works. This does not necessarily mean it was obvious in retrospect.
2) This presents a significant problem for any system that purports to reward innovation. How do you objectively tell if anything was truly novel and non-obvious at the time it was invented? Any opinion on the quality of an invention is inherently subjective. [1]
3) As such, the way patent offices have historically decided this, is that novelty or non-obviousness is completely based on the delta with the prior art that came before it, where prior art := any published material with an identifiable date prior to your invention. [2] This is because, in true CYA style, when contended, you have an established historical record of documents proving your stance.
Novelty is easy: Anything that a single prior art reference doesn't cover is novel. Obviousness is the tricky part: all inventions are combinations of existing elements. But was that combination obvious? How's that for subjective!
The USPTO seems to have a rule of thumb that any claim that requires combining more than three+ references of prior art is probably non-obvious. That seems like a pretty low bar to clear (and you'd not be far off) but the catch is, those references could be anything that mentions anything resembling any element of the invention. Under this standard, it is my belief that truly innovative inventions like Diffie-Helman or RSA would not have been patentable [3].
4) And herein lies the rub: To be fair, you must be objective. But to be objective, you must abandon all measure of quality to the power of raw data. And as data scientists tell me, data often lies. All the data in the world (at that time) may not be enough to prove non-obvious the specific combination of elements that a patent claims.
Such as this patent. Really, who's going to document and publish at a venue with a proper date the fact that they developed something to skip audio files? Yes, to be fair, you must judge all patents by the same standards, so the patents in areas that have been most published about (because, you know, they are interesting research problems) are less likely to get through than those that cover some obscure, unimportant aspect hat nobody thought to document.
And that, ladies and gentlemen, is why we have this situation
1. Imagine if Einstein was your patent clerk as opposed to the guy you interviewed week before last who failed Fizzbuzz.
2. This, of course, relies on good search, and IMO Google has been the biggest boon (or bane, depending on your perspective) to the patent system than most imagine.
3. Choosing primes and taking mods? Is that all?!
Same with this patent. It's a patent on a process, only given form through software (which is itself math). The patent references communications ports, digital memory, output units, media players. (Claim 1). The idea is that by combining physical parts with programming, they've developed a claim on a machine in the classical sense that is patentable.
There's simply a divide between people who think this sort of reasoning and patent is perfectly reasonable, and people who don't (most of HN).
It doesn't matter how clever any of the other individual claims are. They're specifying an abstract procedure and not a thing. And the software implementation of such procedures is math. That's not supposed to be patentable.
1) It is reductio ad absurdum, like saying "machines are metals". It is not the naturally occurring metals that are patentable in physical inventions, it is how you configure and use them. Similarly it's not the mathematics that is patentable, it is the application thereof to a practical problem.
2) More importantly, it misunderstands what abstract math is from a legal perspective. People will invoke the Church-Turing thesis and several related theorems to prove that software being executed is math, but they miss the point.
An abstraction, by definition, cannot affect or effect anything in the real world. An idea in your head is abstract. The moment you act on it in the physical world, it is real. Similarly, if you can run some piece of software and get useful, practical, real world results, it is not abstract.
The legal profession has at best an inaccurate and non-uniform concept of what math is. Relying on what the legal profession views as math therefore is not a valid argument and depends on which part of the legal profession you survey.
If software by itself can be a patentable device/machine for the purposes of patent law, that needs to be made explicit, and I happen to think it will cause serious problems; it already is causing major problems, even without explicit supporting precedent.
Almost every software patent you can find mentions network communications, memory storage, disk storage, display, or other artifacts of general purpose computing. If software by itself is, or should be, patentable, why is everyone trying so hard to patent complete machines rather than only software algorithms? Maybe it's that they don't agree with you that pure software implementations of solutions to real world problems are patentable?
According to your paradigm of allowing patents for application of math to a practical problem, you're fine with someone patenting a moon slingshot maneuver to get back to Earth? That's an application of pure math.
We agree you can't patent using equations to predict motion, right?
Can you patent using equations to predict motion and reversing that to generate a solution to a specific orbital problem?
Can you patent running that algorithm on a general purpose computing machine?
Can you patent an embedded platform that is built out of a general purpose computing machine, but is sold as a black box running only that algorithm with suitable inputs and outputs?
A moonshot is certainly patent-eligible. You said it yourself: it is an application of pure math, and it achieves tangible results, namely, transporting an object through space. The pure mathematical equations are not patented. You can use those equations for other uses, say calculating asteroid trajectories.
As you said, equations on predicting motion are not patentable by themselves because they don't do anything by themselves. They simply describe aspects of the physical world. Any patent hoping to claim anything as such is supposed to be, and usually is, rejected out of hand.
But, a computer running those equations for a practical purpose, such as say, predicting impact with a car on the road and warning you, is patent eligible. Or maybe a method of calculating those equations more efficiently or faster using e.g. a GPU.
Do you see the difference? Neither of those examples is a patent on the equation itself, but rather an application thereof or a particular way of implementing it. None of those preempt you from using the equation somewhere else, e.g. to control a robot that can catch a ball you throw at it.
That leads to why most software patents include language for hardware. The reasons are manifold:
1. To be properly enabled, they must describe the invention in as much detail as possible. Ironically, after adding all that boilerplate about the hardware, they then skimp on the description of the invention itself.
2. The software is useless without the hardware. No machine will infringe without executing that software on hardware.
3. The term software itself is not well defined in the context of patent law. The constitution certainly seems to allow it, because it is undeniably a "science and useful art". But when the laws were drafted there was no such thing, and so there is no statute allowing it or denying it. So it is claimed as both a method or process (a way of doing things) or a system (a machine that does things) or both. And really, software is both: when executed it does things, and the machine that executes it is a machine that does those things.
We need to ENCOURAGE investment into innovations. Without patents, investors hesitate investing into costly R&D which can be easily copied once seen.
Innovations of the 70's like asymmetric cryptography led us to Internet ecommerce which have led to the flourishing world of online startups which we today take for granted. It's all connected.
You think RSA (the inventors) would have kept RSA (the algorithm) secret, had they not been able to patent it? I think you're mistaken.
The history of software/algorithm patents is a history of technologies with limited adoption and/or interop problems until the patents expired. Patents are more likely to kill the future of a technology than to promote the technology.
Assuming I ever even saw the patented implementation. Chances are almost nonexistent that the patented work was what inspired me as a (hypothetical) implementer of podcast skipping functionality.
This presents a significant problem for any system that purports to reward innovation.
If an idea is so obvious that nearly everyone faced with a similar problem stumbles on a similar solution, it's not worthy of a "reward," much less a 20-year monopoly. It can only be economically destructive to award such monopolies.
And there in lie more issues with obviousness: it may be obvious if presented a similar problem. Many scientists, mathematicians and engineers will tell you that the biggest step to solving a problem is to state it the "right" way. But once you do that, the solution becomes obvious! In that case, the issue is, was the problem obvious in the first place?
Fortunately, patent systems have a provision for this. In the US it's called the Teaching/Suggestion/Motivation (TSM) test: roughly, if any reference identifies a problem that would motivate someone to solve it in a particular way, it counts towards obviousness. Note that TSM is not the only criteria these days.
As a well known example, think about the iPhone. In hindsight everything it does seems obvious. But the problem, as. But the problem, as Jobs restated it, was "current phone interfaces suck, touchscreens are better, how do we make it awesome?" I don't think anybody was looking at that smartphones in that light. Yes, there were tons of touchscreen phones but they all sucked. If you look at Apple's patents, each one looks trivial now, but taken together, there's no denying that the iPhone when it came out blew everyone's minds.
> It can only be economically destructive to award such monopolies.
There is insufficient empirical evidence for this thesis. Interestingly, the same goes for the opposite thesis, that our patent systems are economically beneficial.
Everyone agrees that the bar should be higher, though. Nobody knows how to set it higher, unfortunately
Even if that may be true, I honestly believe that we should not reward any invention that's so trivial that someone could figure out how to do it merely by being told what it was without experimentation.
After all, the original rationale for patents was to promote the advance of Science and Useful Arts and I don't believe that rewarding trivial ideas (i.e. anything someone skilled in the art could make simply by being asked for something that does X) is something that society has any good reason for doing.
To the extent that current IP laws are in conflict with this idea (and you would be correct to point out that they are quite hostile to this very notion), I believe we need to fix them.
Yes, that would mean fewer patents. It would mean that many low quality patents were, legally, rubbish. I consider that a feature, not a bug.
We certainly need to fix things, but these are complex issues.
We have better things to do than tie up our justice system with slide to unlock patents and similar nonsense.
You site a post saying "Everyone agrees that the bar should be higher, though. Nobody knows how to set it higher, unfortunately."
I'm saying that something that can be trivially implemented by someone skilled in the art who is told what the invention does, but not how, should be below the bar.
Right, but what I'm saying is, that is not a good measure of the value of an invention, which is also why patent law is structured the way it is. Think about physical inventions like mechanical linkages or arrangements or other structures. Let alone someone skilled in the art, even we, knowing nothing more than how objects interact in the physical world, could look at it and figure out how it works, but that does not necessarily mean the mechanism was obvious before the fact.
The problem is that you're merely asserting that, rather than arguing it and going back to point out the legal standard of obviousness and it's control against hindsight bias, which I have already acknowledged. Patent publication was supposed to expand the prior art. If the invention is so trivial it can be figured out by knowing what it does (and not by what mechanism), then merely using/selling it is enough to inform society and I don't see why it's useful to society to grant protection to that nonsense. It's very useful to patent holders and patent lawyers mind, but it has been made very clear of late that their interests are adverse to the rest of ours and the whole thing is in need of fundamental rebalancing, rather than minor tweaks.
The thing is, I simply don't care about the legal standard of obviousness. I understand how it works and disagree that the outcomes it produces are useful to society. So I'm advocating a new standard of triviality. No, I doubt that patent lawyers would like that, as it overturns quite a lot of apple carts.
For instance, until the Wright brothers built their flier, controlled flight was deemed impossible after decades of failed and fatal attempts. But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Also it's not just the obviousness of the invention that's at play, it's the obviousness of the problem. The solution may be trivial, but the problem may not even be encountered without exploring new boundaries (think Apple and touchscreens). Sometimes the problem is right there in front of everybody's eyes and yet nobody notices it (think Flash of Insight).
In addition, you would be surprised by how many incredibly complex problems are solved by "trivial" solutions which nonetheless take years of effort to arrive at. One example I am aware of is digital and wireless communications methods: most of those patents appear trivial. But the mathematics that goes into proving that they actually work and work well span pages.
However, if you change the standard to that of non-triviality, it will reduce the incentives for improvement, and proportionally, the rate of innovation, in areas where copying would be trivial. This is not hypothetical [3].
If you think we don't need incentives for innovation in the "trivial" areas of technology, why did we need Apple to show us how to do touchscreen UIs right when companies like Nokia had developed touchscreen smartphones decades before?
Changing to a standard of triviality will instead focus efforts on areas where inventions cannot be reverse-engineered easily, and those already don't need patent protection because trade secret is enough for those (again, see [3]). Think of Google's search algorithms and distributed systems infrastructure. How is hoarding of valuable technology behind the walls of data centers conducive to diffusion of knowledge and the progress of "useful arts"?
1. Before you say "and look how it held up the aviation industry!", I encourage you to read this paper [2] that busts that myth.
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930243 - paper studying historical rates of innovation in countries with and without patents. It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.
I do appreciate that you've come back with more now.
> But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Oddly enough, your own paper describes quite a few features of that Wright patent not immediately apparent, but it doesn't matter, as you've missed one point about the standard I articulated. If you recall, my standard was for people who had not seen it to be able to make it simply by being told what it does. If anything, the history of flying would support the notion that "make a thing that flies" was non-trivial at the time.
> But the mathematics that goes into proving that they actually work and work well span pages.
Math is not patentable subject matter... unless you disguise it as software :) And standard that excluded silly UI patents that lead to billion dollar lawsuits (modulo various jury errors, like charging them for things not found infringing and other court adjustments)? Let's just say that I'm thinking "feature" when you're thinking "bug".
> It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.
"Innovation" is an inherently nebulous thing to measure. Also, if the only patents are the things the public can't easily figure out, then they would actually do the job they're supposed to--advancing science and the useful arts. I don't like software patents at all, though, and if we did have them they should require source code. It's frankly insulting that they can get away with that and I honestly question whether some of the "inventors" of software patents I've seen actually made anything.
Now you've heard the old adage that invention is 1% inspiration, right? Well that's the problem with our patent system. With these 'idea' patents, you simply have to have enough money to pay a patent lawyer to submit the application and it's suddenly a patent. Meanwhile, you have not produced a product, maybe you can't, maybe you never intended to! Edison would roll over in his grave if he could see the charlatan inventors all over America proclaiming patents of things as silly as this--skipping to specific audio tracks is as intuitive as having bookmarks in a book. I'm not saying the method itself is not creative or novel--I am really not in a position to judge as patents are inexplicably incomprehensible. (I mean the first diagram on that patent is ridiculous, did they really have to sketch the CPU?)
Invention is about the 99% perspiration. If you can't produce the product or convince someone else to make it into something useful, you don't deserve a patent.
the idea that patents are handed out like candy is utter rubbish. Try it sometime.
> Edison would roll over in his grave
Edison was by today's definition a patent troll himself. That definition has basically come down to anyone who dares sue someone over a patent.
Patents are not handed out like candy, but that's mostly because most patent submissions are still done by people who honestly think there's still some merit to the patent system. Those who try to game it are, in fact, handed patents like candy:
A patent examiner has ~8 hours to examine a patent over its life, and rarely looks at prior art that was not listed in the patent. Said patent examiner is rarely an expert in the field of the patent.
With this situation, a patent examiner can mostly check the coherence of the application, not its novelty or obviousness - so as long as you (or your patent editor) can write a coherent, term-obfuscated, long enough document, and are willing to persist through resubmission after the first rejection, you'll get your patent.
And the patent people (editor, legal, tech) like it that way.
wrong - they perform diligent prior art search - and believe it or not ARE experts at that.
I'm basing my statements on the real life experience of my self, colleagues and patent attorney. What are you basing your statement on?
It will be immensely boring reading. But you will see all the work that goes behind a patent application. The File Wrapper will have tons of documents, mostly boilerplate, so you want to look for documents titled Office Actions, (Non-Final Rejections, Final Rejections, Allowances) and Applicants Arguments in response.
You will see almost everything, including the evolution of the claims from application to issue, the search strategy the examiner uses, the prior art references presented, the rejection issued, and the applicants responses on 1) how the prior art does not apply or 2) amending the claims to sidestep the prior art.
There obviously is variance in quality of examiners, but typically they're a tough bunch to get anything past. I would echo everydayman's sentiment, that while they are they not all technical experts, they are very good at search and they do find stuff pretty well on average. They do have pressure to get rid of cases ASAP, but their default is to reject. I have seen more frivolous rejections than I've seen frivolous allowances.
I did not write the patent myself - I described it to our patent-writing-guru-for-hire, and he wrote it in patentese (which is compatible with, but slightly more readable than plain legalese). He also echos yours (and everydayman's) sentiment that those guys are tough. But he also has a 95% success rate, with rarely more than two back-and-forth iterations.
Just to be clear, this is actually 2 distinct data points: 1) 95% success rate 2) rarely > 2 rounds
First on your #2: any software patent[1] that was obtained in the last ~10 years AND was granted with <= 2 rounds is either: a) truly innovative and from out of left-field (READ: extremely rare) b) the original Claims were very narrow c) the Claims were significantly narrowed during prosecution
Now combine this with your #1 and what we can likely ascertain is that your "patent-writing-guru-for-hire" either doesn't try to get a decent patent for his clients, doesn't know what he's doing, or allows his customer to dictate that time-to-completion outweighs quality.
When you write code, do you get credit for how fast you can get the thing compiled and out the door - or do you take pride in the end result is not only to spec AND well thought out AND thoroughly QA'd AND provides advantages in running it? Yet, with "95% success rate" and "<= 2 compiles" is basically asking your "patent-writing-guru-for-hire" to sacrifice quality for speed in getting the job done. Make no mistake, the english words used in patent Claims is as serious and deliberate as the writing of any code - a wrong placement of a comma, period, semi-colon, choice of words, or ordering is on the same level as a misplaced bracket, for-loop, choice of data structure, etc... At some point, they'll likely come to bite.
Take coding as analogy - anyone can write code that compiles AND then claim he's got 95% success rate at compiling - but the question is whether the end result is worth the time, effort, and expense spent. Just as there is a justification for top coders to be paid upwards of $150k/yr despite the existence of $5k/yr alternatives: QUALITY.
If you are a startup with real money poured into true R&D (e.g. where many trials and experiments and dead-ends were required to achieve the innovation) that can then be easily duplicated and you determine that you need solid protection - then investors demand you to get some defensible attribute - patents offer this. I suggest you simply won't get that with someone who claims a 95% success rate in <= 2 iterations. Impossible.
If you still don't believe me, then give me your patent number and I'll detail you some simple workarounds that competitors can (and will if need be) use to completely avoid your patent - aka workaround.
[1] technically, there is no such thing as a software patent
Except the company for which this technique was developed (and patent was written) was acquired, partly on the basis of this cluster of patents (which the buyer believed would give them ammo against the leaders in the field). So the guru was right in the path he took.
I will not give the patent number because that will expose me (no thank you), and I'm aware of workarounds. The thing is, That's true of every software patent[1] I've seen that is not mandated by some standard. Do you have counterexamples?
[1] there's no such thing as a software patent, of course.
There are workarounds to just about every way of doing something. The question is how feasible and practical the workaround is.