Friday, August 8, 2008

Slashdot walks through science and technology like an elephant through a china shop

One of the most ignorant forums for the discussing science, engineering and IP law has to be the Slashdot blog. Open source lawyers, who still omit to teach their minions about any of the subtleties of IP law, starting with copyright law (GPL - paragraph 102b = 0) - forget about any of these con-artist copyright lawyers trying to explain patent law. Let's take the beginning of a blog in last week's Slashdot: "An anonymous [idiot] writes: the Patent and Trademark Office has now made it clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google. In a series of cases, including In re Nuijten, In re Comiskey, and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter [under 101]. blah blah blah ....." The post was made by someone who completely misunderstood Prof. Duffy's recent paper on Bilski, with some of Prof. Duffy's hyperbole being taken too seriously - whatever the CAFC decides in Bilski, it won't affect most of Google's patents from a 101 point of view. This paragraph has multiple problems. First, the PTO has no clear position on anything involving 101 - how can it, when no one in the PTO policy office understands anything about science or engineering? Clarity? Despite the boolshirt in Ex parte Bilski, the current PTO precedence opinion is Ex parte Lundgren, which eliminated the technology test for patent claims. If any examiners asserts Bilski against you, ask his SPE to fire him citing Lundgren. If his SPE told him to assert Bilski, ask the Group Director to fire the SPE, and upwards until the next president's new PTO Director asks all of these people to "retire". PTO management is willing to lie about the science and the law to cover up their complete incompetence to manage software patent examination. From what I hear though, the PTO is pretty much tabling most software patent office actions and board appeals until Bilski is decided. The PTO newly develops a position on software patents each and every time its latest management fix to software patent examination fails. Anyone know which is greater - the number of such PTO policy positions, or the number of Ecuadorian constitutions? Or is it Bolivian? Secondly, even in their twisted logic, the PTO really isn't arguing that most software patents should be invalidated, because in the end it is not their decision. Take Nuijten - despite the illogical sense of the PTO's arguments, the CAFC upheld that all forms of signals fixed on a medium are patentable (which most people forget is a reaffirmation of Beauregard claims). And it is unlikely that what the CAFC excluded - signals propagating in the air - would survive any serious science scrutiny. Not that it matters, because as the CAFC pointed out, all forms of signals you need to claim to economically protect a new signal invention are claimable with properly written claims. And that's going to be the CAFC's decision in Bilksi - all forms of software are patentable as long as you use proper claim language to get a bit of machine into the claims (however the CAFC defines 'machine' in Bilski), which most patent lawyers will know how to then draft proper claims for whatever Bilski invented). And part of the reason that CAFC will rule so is that the PTO's written and oral arguments rely on nonsense science and law (so bad the CAFC repeatedly interrupted the non-answers of the PTO lawyer). "End of software patents?" Nice Slashdot fantasy, but the reality outside their IP-utopia is that all of the science and engineering since 1994 fully supports the CAFC's reasoning in Alappat and Lowry. Where Lowry and Alappat are consistent with Benson/Diehr, even better, and where they are inconsistent - it is time the patent bar loudly pointed out to the Supreme Court what Donald Chisum wrote 20 years ago - some of the inconsistent logic in Benson is "monstrously bad" logic. Not surprising PTO management loves embracing such badness.

How to write strong patents using these often neglected caveats

Many patents suffer from too much ego and pompous, advertizing content that disclose zero according to the patenting requirements.

Discovering something: discovery is not manufacture. This is one of most typical patent rejections. Invention necessarily involves the suggestion of an act: new product, new result, new process new combination to produce new product or result.

Misleading description. If there are details which are not necessary and are put in to mislead then the patent is void.

The patenting requirement is to tell of the best method known to ensure good faith on the part of the applicant: if the inventor knowing two agents for effecting an end could by disclosure of one preclude the public from the benefit of the other, he might for his own profit force a more expensive one on the public keeping back the simple and cheap one which is contrary to good faith.

Claim not fairly based: a claim to be supported in the specification must also relate to the problem solved. Otherwise it is too wide. The inventor is entitled protection for an article that embodies his idea but not for an article which while capable of being used to carry out his idea into effect is described in terms which cover things quite unrelated to his idea and do not embody it at all.

Theories that are wrong do not invalidate patent unless it amounts to a statement that would in practice be misleading. This happened in the case of attempts to patent methods of nutrition according to blood types, and in the case of the red Kabalah string.

Grounds of revocation

Insufficiency : the specification is not OK

Non-disclosure of best method

Claim not fairly based - claim not based on specification

Ambiguity - the scope of the claim is not defined

Inutility - it does not solve the defined problem

False suggestion - any falsehood

Prior grant

Lack of novelty - previously revealed


Applicant not entitled to apply- poorly elucidated, formulated, "half-baked" disclosure

Patent obtained in contravention of the rights of the petitioner

Invention not a manufacture)see above)

Use of invention (would be) illegal

Prior secret use

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