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aostling
04-19-2009, 01:37 AM
I'm a little confused about patents for a virtual puzzle. Take the Rubik's Cube as an example. Rubik's patent http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=4378116.PN.&OS=PN/4378116&RS=PN/4378116 appears to claim only the mechanism(s) internal to the Cube. I don't see any claims that pertain solely to the overall goal and manipulation of the puzzle, without regard to how the movements are mechanically effected. This is presumably because Rubik did not invent this type of puzzle -- a Canadian named Nichols had earlier invented a 2x2 cube, held together with magnets.

But suppose there had been no prior invention, and suppose further that Rubik didn't think of his puzzle idea until very recently. In this case, he might not even bother to invent an internal mechanism for the Cube. He could simply create the Cube as a virtual puzzle, to be played on the screen of a PC or iPhone.

Now, of course, such virtual Cubes and other manipulation-type puzzles do exist. Since none of these require any mechanism they can be of any shape imaginable, with movements which might be impractical in any real puzzle.

Is a virtual puzzle like this patentable?

I'm guessing it is, sort of like patenting a game, like Monopoly.

dp
04-19-2009, 02:07 AM
Because it is on the screen does not make it virtual. It is quite real.

I have a patent in the works that is somewhat virtual. I have begun the process to patent the storage of data in space. An example: I place a repeater device on the surface of the moon. I then send a stream of data to that device and it sends it back, and I return it. This continues indefinitely. There are 480,000 miles of space to store data in between here and the moon so it will take a while to fill up. I don't specify a location for the repeater or whether that repeater is passive or active as I'm only patenting the principles of storing data in space. I also cover storing data in solids, of course - sound waves from seismic research will be impacted. I've also petitioned for write-only data storage for data that is one-way (broadcast radio, television, sonar data, for example).

I plan to charge a fair price to those who store, even temporarily, data in space using the principles of my patent. In the case of write-only data I will charge by the AU which I think is reasonable.

A real device is not needed to demonstrate the principles for the purpose of patent, and I can present an entirely virtual solution for the principle elements of my product.

I take PayPal and Visa for those of you using WiFi.

Evan
04-19-2009, 03:20 AM
The US patent system is completely out of sync with the rest of the world in respect of what is patentable. The US PTO allow such things as "look and feel" to be patented, Business Methods may be patented, a sequence of actions to take to accomplish a goal may be patented with a good example being the Amazon.con "one click" patent.

None of these concepts are considered patentable in other countries. All are virtual in that they cannot be produced as a tangible product that is self defined.

I almost forgot, an algorithm may be patented, a living organism may be patented, a computer program may be patented as if it were the material embodiment of a machine. None of these may be patented in other countries. It's a major sticking point in international business affairs.

Barrington
04-19-2009, 05:32 AM
I also cover storing data in solids...

Sorry, at least 40 or 50 years too late ;)

http://www.science.uva.nl/museum/tyco.html

Cheers

tony ennis
04-19-2009, 09:29 AM
The US patent system is completely out of sync with the rest of the world in respect of what is patentable.

We're waiting for them to catch up.


The US PTO allow such things as "look and feel" to be patented, Business Methods may be patented, a sequence of actions to take to accomplish a goal may be patented with a good example being the Amazon.con "one click" patent.


Many of these things require millions of dollars and years of research to develop. I would think the look and feel of Windows or the Mac is protectable. They didn't happen by accident. A virtual invention is still an invention.

Then there are the cases where the patent system is used frivolously, such as Amazon's one-click dealio which I consider more of a marketing ploy. Such abuses are atypical, however, but are used to discredit the entire system.


Say... What's the last thing the Chinese invented?

Dragons_fire
04-19-2009, 09:47 AM
Not trying to hijack the thread, but talking about Rubiks cubes, check this one out.. http://www.youtube.com/watch?v=waY_evu6D_Y It also doesn't use any of the internal mechanisms of a regular cube, so if that's all their patent is for, then its not covered under it.

randyjaco
04-19-2009, 10:32 AM
Allen,

I hold several patents. Be sure to find a good patent lawyer that is very familiar with the technology area of which you are trying to patent. A good patent lawyer will be able to phrase the patent that will give you optimum protection. One improperly used word can invalidate your patent.This is not an area to save money. The down side of patenting is that a patent is only as good as YOUR ability to protect it. So if some big corporate entity likes your idea, they can take it with impunity. The government/ patent office will do nothing to help you.

I learned that the hard way when I lost the best job I ever had because American Cianamid decided that they wanted our multi-patented product. We never had a chance. :mad:

Evan
04-19-2009, 10:51 AM
Many of these things require millions of dollars and years of research to develop. I would think the look and feel of Windows or the Mac is protectable. They didn't happen by accident. A virtual invention is still an invention.

Then there are the cases where the patent system is used frivolously, such as Amazon's one-click dealio which I consider more of a marketing ploy. Such abuses are atypical, however, but are used to discredit the entire system.


There are other ways provided in law to protect intellectual property which is what most of the items I mentioned qualify as. Look and feel falls under a design patent which is a different matter than a utility patent. Utility patents are meant to protect devices that have an actual embodiment as a material invention.

Abuses of the patent system are typical, not atypical. There are a large number of companies that exist with their only business purpose to collect or file frivolous patents that depend on the fact that the USPTO doesn't do prior art searches. They use these often ridiculous patents to greenmail legitimate corporations since settling is usually cheaper than fighting.

As for the specific example of Windows being protectable, it isn't. Xerox essentially placed it in the public domain when the latest from Microsoft was DOS2.0 and CPM was still popular.

J Tiers
04-19-2009, 11:06 AM
Because it is on the screen does not make it virtual. It is quite real.

I have a patent in the works that is somewhat virtual. I have begun the process to patent the storage of data in space. An example: I place a repeater device on the surface of the moon. I then send a stream of data to that device and it sends it back, and I return it. This continues indefinitely. There are 480,000 miles of space to store data in between here and the moon so it will take a while to fill up. I don't specify a location for the repeater or whether that repeater is passive or active as I'm only patenting the principles of storing data in space. I also cover storing data in solids, of course - sound waves from seismic research will be impacted. I've also petitioned for write-only data storage for data that is one-way (broadcast radio, television, sonar data, for example).

As mentioned, you are way too late, and the patent should not issue, based on extensions obvious to one skilled in the art.....

mercury column storage was used long ago, and should be the prototype for any delay-based storage systems. There was also shift register storage, magnetic "bubble" shift storage, acoustic storage in solids, even storage in signals sent through a long length of cable. The latter seems very close to your open reflection storage.

That does not mean that the cretins in the patent office, who are (by all the evidence) either subnormal or corrupt, will not issue. it just means it would not be intelligent for them to do so.


As for the US patent system vs others, most all the others allow anyone to STEAL your idea, and run to the patent office..... happily issuing the patent, and allowing the thief to then blackmail you for rights to your own idea and years of work, at any price they care to name. There are many historically preserved examples for this, beginning, I believe, with James Watt and the notorious crank patent.

The US system is the ONLY rational one, in that it give precedence to the actual inventor, and not to thieves....

Lew Hartswick
04-19-2009, 11:52 AM
As mentioned, you are way too late, and the patent should not issue, based on extensions obvious to one skilled in the art.....

mercury column storage was used long ago, and should be the prototype for any delay-based storage systems.
Yep in the early 1950 (during the Korean war) the CPS 6B radar
used a Hg delay line in the MTI (moving target indicator) system.
Delay one scan and compare it with the next. From the way it
was used it couldn't have been a new idea even then.
...lew...

dp
04-19-2009, 11:54 AM
As mentioned, you are way too late, and the patent should not issue, based on extensions obvious to one skilled in the art.....

Fish on! Somebody get a camera!

aostling
04-19-2009, 12:11 PM
Look and feel falls under a design patent which is a different matter than a utility patent.

I came to that conclusion, as the cheapest step to provide some minimal protection. I applied for a design patent on the puzzle shape in 1983. This was rejected on a technicality, something like not claiming to be a "small business," or not, I forget which. The puzzle craze was then over and I never reapplied.

The embodiment is a geometric shape never seen before, so this may be the easiest approach.

Evan
04-19-2009, 01:02 PM
Say... What's the last thing the Chinese invented

Chinese Inventions:
(compiled by me from various sources)

The Clock,
The wheelbarrow
the crossbow
The animal harness
The printing press
Ink
Playing cards
The Compass
Kites
Porcelain
Steel
The Abacus
Fireworks
Rockets
Cast iron
Black chrome plating
The Rudder
Moveable Type
The Tuned Bell
Row Cropping
Zero
The Crank Handle
Gimbals
Parachute
Hot Air Balloon
Tuned Drums
Drilling for Natural Gas
The Belt Drive
Calipers
Suspension Bridge
The Projector
The Seismograph
The Battened Sail
The Seed Drill
Algebra
Fishing Reel
Umbrella
Dials with Pointer
Paddle Wheel Boat
The Arch Bridge
Matches
Chess
Canal Locks
Glow in the Dark Paint
The Land Mine
The Toothbrush


Since about 1800 Chinese research and development has been suppressed by foreign occupiers or invaders. This culminated with the formation of the Chinese Communist party in 1921 and the civil war of 1946 which resulted in Mao Tse Tung becoming the head of the Chinese government and a defacto dictator. As most dictators do, he quashed all creative thinking, often by execution.

China is now recovering from that period.

tony ennis
04-19-2009, 01:09 PM
Right. Charitably speaking, the Chinese have not invented anything in 200 years. So I'll stick with our way as it encourages invention.

And the Indians invented the zero. Now how's that for a virtual invention!

PS - The Indians invented chess, too. Them's some crafty people!

Evan
04-19-2009, 01:23 PM
Right. Charitably speaking, the Chinese have not invented anything in 200 years. So I'll stick with our way as it encourages invention.



I am sure that isn't accurate. It's hard to find out as China insulated itself from the world for a long time. Right now there is enormous innovation going on in China. China has also put in place laws to protect Intellectual Property and is beginning to enforce them, sometimes harshly.



From Special Action Group of Intellectual Property Rights Protection in Zhejiang Province

Report on the Intellectual Property Rights Protection in Zhejiang Province in 2005
2006-4-26


In 2005, in whole province, the patent application quantity was 43,221 and the authorization quantity was 19,056, which increased 70.9% and 25% respectively comparing to the previous year. The patent application quantity and the authorization quantity were ranked as number two in the country. Among which, the application quantity of the patents of invention was 6,776, which was 89.4% more than that of the previous year. The authorization quantity of the patent of invention was 1,110, which was 41.4% more than that of the previous year. The national IPR city trial work kept on doing in four cities of Hangzhou, Ningbo, Wenzhou and Jinhua. Yongkang was approved to be a national IPR promoting trade trial base. Provincial Intellectual Property Rights Bureau and Provincial Economy & Trade Committee have cognized newly 56 provincial patent demo enterprises. The accumulated number of provincial demo enterprises in the province was 191. On 12 January 2005, National Intellectual Property Rights Bureau Hangzhou Patent Agent started to engage officially in patent activities. The number of patent application accepted that year was more than 28,000 which reached 2 thirds of the patent application quantity in the province. Up to the end of 2005, in the province, there were 30 patent agencies and 16 offices. Among which, there were 4 foreign affair agencies and 168 full-time patent agents.

In 2005, the IPR (patent) administrative departments of different levels in the province kept on carrying out special IPR protection activities. One thousand and forty-three person times of tipstaff have been called out. Two hundred and nine batches of commodities have been checked. Nineteen cases of faked patent have been checked. One hundred and ten cases of patent infringement have been checked. The value of the cases was RMB 780,000. In the whole year, 133 patent dissension cases have been handled and 114 cases have been closed. The rate of closing is 865. The patent administrative law execution agreement between two provinces and one city has been signed with Jiangsu province and Shanghai city. The deportation system of patent case amongst 25 cities of Yangtze Delta has been set up.

http://www.zhejiang.gov.cn/gb/node2/node1619/node1621/userobject13ai39536.html

J Tiers
04-19-2009, 01:40 PM
I am sure that isn't accurate. It's hard to find out as China insulated itself from the world for a long time. Right now there is enormous innovation going on in China. China has also put in place laws to protect Intellectual Property and is beginning to enforce them, sometimes harshly.

We'll believe that when the number of direct copies and look/feel (but not function) counterfeits drops off like a stone.

Not too likely to be enforced except internally..... the copies and counterfeits have very likely been responsible, directly or indirectly, for 25% to 50% of the economic growth of china.

I count in that percentage the hundreds of millions of pirated Microsoft products, for which not one cent was paid to any IP holder, and the ditto movies, games, etc.

The chinese may refuse to cheat themselves, but they don't mind cheating YOU.

You are just "mobile dirt", after all, and no respect need be given to you. (I am speaking of a minority, of course, but it is a minority represented among those who rule china, and tend to foster that opinion. It is visible if you are IN china.)

Your Old Dog
04-19-2009, 01:42 PM
Say... What's the last thing the Chinese invented?

The wheel I think. Have to admit, they maxed out it's usefullness :D

Evan
04-19-2009, 02:17 PM
"Not too likely to be enforced except internally..... the copies and counterfeits have very likely been responsible, directly or indirectly, for 25% to 50% of the economic growth of china.
"


Citation?

John Stevenson
04-19-2009, 02:39 PM
The US system is the ONLY rational one, in that it give precedence to the actual inventor, and not to thieves....

How can that be when they don't research prior art ?
They only give precedence to the inventor of the day who is paying the money.

And if they don't research prior art how do they know that the inventor is not the thief ? Unfortunatly past examples have proven that correct in many cases.

If you want citation then look here.

http://www.2linc.com/engraving_depth_controlling_system.htm

The depth control system patent number 7,093,368 is still held by Gravograph who have used this system for years.

Non of 2linc's patents can be issued in the UK because of prior art and this is from information researched by a patent agent.

.

J Tiers
04-19-2009, 05:01 PM
How can that be when they don't research prior art ?
They only give precedence to the inventor of the day who is paying the money.

And if they don't research prior art how do they know that the inventor is not the thief ? Unfortunatly past examples have proven that correct in many cases.


.

Which is bull crap.

The SYSTEM calls specifically for

1) patents not being issuable if there is prior art

2) patents being voidable if the prior art is located later.

Now, if you get to practicalities, the patent office does not always get it right. Sometimes they do. And getting it fixed can be a problem.

I would have to search for one case in which AFAICS they didn't even look at past patents, since two US patents appear, IMO and in the opinion of our patent attorney, to be in conflict.

In that case, he said that we were unquestionably right, but that it would cost us 2 million dollars in court to get that rightness verified...... and that our particular court district will NOT void a patent anyway, unless you can basically find the patent language as a direct quote from a textbook so that they HAVE to or risk looking stupid.

However, the patent office actions don't affect the actual patent law, so your conmplaint is NOT with the US patent law, but the fact that the enforcement and compliance with the law is faulty. What would happen if the laws were changed is that the NEW laws would still have faulty enforcement, and the latter case would be worse than the former.

I would rather have the court get some wrong but many others right, than have essentially EVERY case of a thief result in the inventor getting sccrewed.

In the latter system I would not bother getting a patent, nor even doing the research necessary to produce the patentable product. The process is too risky unless you have a lot of money. It is counterproductive to the stated purpose of patents, which is sponsoring innovation.


Citation?

I do not have to and do not intend to.

You can look for the claims of Microsoft for example, if you are of a mind to. In this case, Microsoft may actually not be lying.

I have seen the "action" on its home ground, in china. Been offered high end CAD software at a huge discount (more than 95%) by a small chinese parts vendor who suggested that it would allow us to transfer drawings more easily........................

The company I worked for sold millions of dollars worth of equipment in china. And elsewhere in Asia.

Then suddenly we sold nothing, and our equipment was denounced as trash.

We found out that EXACT copies, down to our name and address on the product, the vendor's marks on the PC boards, etc were being sold throughout china, and elsewhere in the vicinity. The copies were built badly, QC was poor, parts were several notches below what we used. But if we had had to prove in court that we didn't build them, it would have been somewhat difficult.

Don't you even show the bald faced nerve to ASK for citations on my statement. Vamo nos./ 'raus mit

Evan
04-19-2009, 05:13 PM
However, the patent office actions don't affect the actual patent law, ...

They most certainly do. By approving patents that should never have seen daylight the Patent Office forces the courts to decide what is patentable or not. This results in case law that then controls how the patent act will be interpreted. Some of the case law is ridiculous and it is case law that is primarily responsible for the current situation where nearly anything can be patented. In reality it is the patent office that is directly responsible for patent law since it is they that determine what will end up in court by granting patents in the first place.

J Tiers
04-19-2009, 05:21 PM
They most certainly do. By approving patents that should never have seen daylight the Patent Office forces the courts to decide what is patentable or not. This results in case law that then controls how the patent act will be interpreted. Some of the case law is ridiculous and it is case law that is primarily responsible for the current situation where nearly anything can be patented. In reality it is the patent office that is directly responsible for patent law since it is they that determine what will end up in court by granting patents in the first place.


very convoluted logic....... effectively true, of course.

But totally false in that the text of the law is not affected by their actions. Only the legislative branch can change the written law.

The courts can change the interpretation. And, in this case, the administrative branch is effectively illegally refusing to enforce the written law.

But the big picture version of what you and JS say is similar to calling for a law against bank robbery because there was another one yesterday.

The answer is not to make new laws, but to enforce the existing one.

John Stevenson
04-19-2009, 06:00 PM
But the big picture version of what you and JS say is similar to calling for a law against bank robbery because there was another one yesterday.

The answer is not to make new laws, but to enforce the existing one.

So if you want to enforce existing laws why don't you get the US patents office to respect laws or patents they have granted previously instead of passing them off and letting courts decide.
They take the money for granting them. That's bank robbery.

I occasionally have to deal with patent agents in the UK, when you mention US patents they either smile, shake their heads or make remarks about the tail wagging the dog.

Most are very happy to deal with combined UK / EU patents but advise against any US patents as being a total waste of money, in fact a total drain of money.

.

lazlo
04-19-2009, 06:15 PM
The US system is the ONLY rational one, in that it give precedence to the actual inventor, and not to thieves....How can that be when they don't research prior art ?
They only give precedence to the inventor of the day who is paying the money.

John, I have a sizable patent portfolio, and believe me -- the USPTO does research prior art.

The problem is that the patent examiners are not subject matter experts -- if they were, they'd be making four times the salary at an outside firm. Combine that with the fact that the US patent database is larger than the rest of the world's patent databases combined*, and it's not a pretty sight.

So basically what the USTO does is a keyword search, sometimes with amusing results. If you ask anyone who's submitted a patent, you always get an obligatory rejection of one of your claims, and it takes at least one edit and re-submission, even for a slam-dunk claim. That's a big reason it's so expensive to file for a patent if you're an individual. Our lawyers bill $20,000 - $30,000, on average, for a US filing, and add another $10,000 or so for foreign filing.

But the most important aspect of US patent law, which our corporate lawyers constantly drill into our heads: a patent is worthless until it's tested in court.

In other words, the USPTO doesn't have the staffing or the expertise to exhaustively determine if your patent violates prior art, or even has intrinsic value. So most patents issued wouldn't stand up to a challenge in court. But even if someone is issued a patent on "how to swing on a swing", or the IBM patent on how to line up for the bathroom, it doesn't matter until someone applies for a license or royalty on the intellectual property.


*Because you file for patent protection in the market you're going to economically exploit, so everyone, everywhere, wants to file in the US.

J Tiers
04-19-2009, 06:52 PM
So if you want to enforce existing laws why don't you get the US patents office to respect laws or patents they have granted previously instead of passing them off and letting courts decide.
They take the money for granting them. That's bank robbery.

I occasionally have to deal with patent agents in the UK, when you mention US patents they either smile, shake their heads or make remarks about the tail wagging the dog.

Most are very happy to deal with combined UK / EU patents but advise against any US patents as being a total waste of money, in fact a total drain of money.

.


it is widely recognized by everyone that there are serious problems internal to the USPTO. Patent lawyers USE those problems to get worthless patents (worthless as far as merit).

A US patent is certainly not worthless or a waste of money, it is a significant advantage, a fact that is recognized by lawyers, CEOs and investors.

if YOUR lawyers think otherwise, perhaps they were told that the US was not the market for your product.

As one who is inventor on a patent, I second lazlo's comments. We were challenged at every turn by the USPTO.

But with so much external literature throughout the globe, EVERY patent office has similar issues of keeping up. The USPTO just has so much volume that it is a serious problem.

fasto
04-19-2009, 09:42 PM
John, I have a sizable patent portfolio, and believe me -- the USPTO does research prior art.


As a holder of several patents, I second this. I've never gotten a patent through without being challenged on several claims. I have even had the USPTO turn up patents that I had not discovered in their search for prior art.

The level of experience with a certain subject matter of an individual patent examiner is highly variable. This is to be expected; one can hardly be expert at everything. I had to provide a detailed description of how three phase power works in one patent application.

BTW, I filed a patent application back in the late 80's for data storage in long lengths of optical fiber! It was not issued and I did not pursue it further.

Evan
04-19-2009, 10:00 PM
BTW, I filed a patent application back in the late 80's for data storage in long lengths of optical fiber! It was not issued and I did not pursue it further.


Long before that oscilloscopes used a 100 foot coil of coax as a delay line to avoid clipping the front edge of a waveform when triggered.

J Tiers
04-19-2009, 10:15 PM
Long before that oscilloscopes used a 100 foot coil of coax as a delay line to avoid clipping the front edge of a waveform when triggered.

I suspect that particular example might not be fatal.

It is a delay, and not a "storage" within the meaning here implied. The example recites only a one-time use of the data, in analog form.

In contradistinction to that example, the storage of digital data in a length of cable, or other delaying device embodies the transmission, reception, and re-transmission of that data in an un-ending sequence through the medium, by which means the data is preserved for an indefinite time. The storage also embodies timing means by which the location of data in the stream may be established, and any specific data read or re-written..

The oscilloscope example recites only a one-time use of the data, in analog form, and completely fails to anticipate any longer-term storage, any means for identifying and retrieving identified portions of the data, etc.

Evan
04-19-2009, 10:29 PM
That brings up what is the major problem in the US patent system. Where do you find a judge that is qualified to judge the technical merits of a technical question? There aren't nearly enough qualified judges to hear the cases. Back in the early 80s this resulted in copyright protection being denied for computer code stored in ROM. The judge applied what seemed to him a reasonable test: Can I read it? If not it can't be copyrighted. That precipitated a long series of trials which eventually reversed his decision.

If, as has been said, you don't have a patent until it is tried in court, then how in hell do you ensure that the patent is judged on it's actual merits? Expert witnesses are no solution. You can always find one willing to support your side while the other guy has one to support his side. I am willing to bet that the majority of patents now are well beyond the capability of the average judge to understand.

The issue of how the data is used after the delay is irrelevant to the concept. Storage is storage and the length of time is also not relevant. It would be very easy to argue that side. I am guessing that a large number of cases are in effect settled by flipping a coin in chambers.

lazlo
04-19-2009, 11:25 PM
That brings up what is the major problem in the US patent system. Where do you find a judge that is qualified to judge the technical merits of a technical question?

The judge doesn't need to be a subject matter expert: he/she is a intellectual property law specialist, and they have the support of a considerable staff of IP lawyers. The plaintiff and defense bring in technical experts, and all claims are examined in detail by both sides.

In some high-profile cases, it can even be a jury trial, and technical experts are chosen that have outstanding presentation and instructional skills, who can communicate the details of the claims to laymen.

I've been involved in several cases, and after the details of the claims are presented and discussed, it's almost always a clear-cut outcome.

J Tiers
04-20-2009, 12:22 AM
If, as has been said, you don't have a patent until it is tried in court, then how in hell do you ensure that the patent is judged on it's actual merits?


That's an exaggeration. The existence of a patent is in 99% of cases, a final outcome. The potential return from knocking the patent out is in most cases well below the cost of doing it, and nobody bothers. That was our conclusion.

In a couple cases, my patent was infringed, but a polite letter from the lawyers reminding the culprits of the existence of the patent was all it took. No lawsuit, no fuss.

In a few high profile cases, there are large investments and high potential return riding on it, and the trial costs are well worth it. Those cases go to trial. In the middle there are "pot boiler" cases which nobody ever hears about.

In otehr cases, nothing happens at all

A co-worker produced a product after he left. It was infringing a patent.

He got a lawyer letter. But, he referred the lawyers to an issue of a magazine of 20+ years before, where the thing was described in full. They shut up so fast it must have jarred their fillings. That article would have got their patent thrown out even in the most hostile court, in short order and no arguments.

obviously the issuance was a gross error.



The issue of how the data is used after the delay is irrelevant to the concept. Storage is storage and the length of time is also not relevant. It would be very easy to argue that side. I am guessing that a large number of cases are in effect settled by flipping a coin in chambers.

Sorry, that is not the way it works.

it is ALL relevant in a patent.

There is a definite patentable difference in the usages, whether or not you agree. I would guarantee to get the patent issued and sustained (but not guarantee the exact claims content) over any objection you could possibly come up with or pull out of the air on that.

Hot things were known to give off light, but yet the filament light bulb patent wa sustained, despite the fact that it was (in hindsight at least) "obvious".

The claims for the patent app would include (1)the delay line, and (2) the device of claim (1) with recirculating means, and (3) the device according to claim (2) with timing means such as to....., etc, etc, etc, in all sorts of permutations. The tree of claims is specifically built to survive the inevitable removal of certain claims.

I would expect the claim 1 to be tossed on the basis that delay lines were already used, but would clearly claim it anyhow on principle. The rest of it is so different from a mere one-time analog delay as to make quibbling about it ridiculous.

barts
04-20-2009, 12:35 AM
John, I have a sizable patent portfolio, and believe me -- the USPTO does research prior art.


I've got several patents; the USPTO office does research prior art - but I don't when working on new ideas or filing patent disclosures (my write up to our lawyers describing my invention; they decide whether to file or not). The reason is that I want to be unaware of any patents in the area, so we cannot get into a "willful infringement" treble damages case.

Mine are all software patents, as that's what I do for a living these days. It's not clear to me that such things are a good idea, but so long as the PTO is granting them, I'll be filing...

- Bart

Evan
04-20-2009, 12:36 AM
In some high-profile cases, it can even be a jury trial, and technical experts are chosen that have outstanding presentation and instructional skills, who can communicate the details of the claims to laymen.


That is flatly impossible in a great majority of technical cases. The average person doesn't have enough (any) science background to be brought up to speed on any real technical issue. I spent half my life in that capacity and am very good at teaching the uninformed how to use high tech equipment. The number of such people that I met in all those years that had a basic understanding of how such thing really work I can count on my fingers.

For instance, I know how to design and build from components a flip flop, a half adder, a full adder, a register and an accumulator. I know how to build an instruction counter and address register and an instruction decode logic tree. I could and probably still can build a simple CPU from parts. I have never personally met anybody else that I know for sure can or even knows exactly how a CPU works at the bottom level.


The real reason for bringing in a jury in a technical trial is when one of the parties is guilty of shafting somebody regardless of the legal merit of the technical arguments. There is an old saying in law: If you are guilty go for a jury, If you are innocent go with a judge only. You win a jury based on sentiment. You win a judge based on knowledge.

That is where the problem comes in and there aren't nearly enough judges around to handle the caseload. We end up with bad case law and bad precedents that also affect Canada. Canadian and US courts will turn to the other's case law if necessary to bolster decisions when there is no relevant case law in their own legal system. Some of the worst examples are in the field of genetic engineering and one of the worst offenders is Monsanto.

In the computer field Rambus is a prime example of a company whose business model was to lie, cheat and steal and then attempt to blackmail (greenmail) their business partners.

While bungled decisions may be the minority in the technical trials they can have and have had wide repercussions throughout the business. This is in large part responsible for some (most) of the idiocy that afflicts the US patent system.

Evan
04-20-2009, 12:49 AM
I would expect the claim 1 to be tossed on the basis that delay lines were already used, but would clearly claim it anyhow on principle. The rest of it is so different from a mere one-time analog delay as to make quibbling about it ridiculous.


That doesn't stop many ridiculous quibbles from becoming court cases. It also doesn't stop the ridiculous arguments from winning as history clearly shows.

http://www.freepatentsonline.com/crazy.html

http://www.google.ca/search?hl=en&safe=active&q=ridiculous+patents+list&btnG=Search&meta=

lazlo
04-20-2009, 12:49 AM
The existence of a patent is in 99% of cases, a final outcome.

Maybe it's different in the Fortune 500 world, but the most common scenarios I've seen are that someone has been issued a patent with overly broad claims, and your company wants to market a device that would theoretically infringe.

So plaintiff and defendant end up in court, and the plaintiff will show prior art in the form of an older patent, or a technical paper, invalidating the offending claims, or less frequently, the entire patent.

The other common case I've dealt with is green-mail. Where a small company will confront a Fortune 500 company with a patent that they claim the large company is infringing. In 99% of these cases, the claimant has a very vague and poorly written patent, that should never had been issued. They're hoping to win the lottery. That was the case in the infamous Blackberry lawsuit.

But overall, the process is pretty simple: both parties get in a room, both have teams of technical experts who have poured through the last 30 years of prior art, and it's instantly obvious which claims are valid and which are not. In many cases, the "inventor" was not even aware that someone had a patent for his invention from years earlier.

lazlo
04-20-2009, 12:58 AM
That doesn't stop many ridiculous quibbles from becoming court cases. It also doesn't stop the ridiculous arguments from winning as history clearly shows.

The USPTO is a loose-net filter. There's minimal examination, and it's up to your competitor (or potential licensee) to determine if your patent is valid or not.

Another, major issue is that the title of the patent is not legally binding, nor is the description, only the claims are legally binding. Many patents have really poor titles because in many cases it's the filing attorney (who's non technical) who decides the title.

Every year at Microprocessor Forum, the last session is an hour-long stand-up presentation of the year's most dubious patents. Those patents are good for amusement purposes, but they have no monetary value -- no one can license anything from it, nor enforce any royalties, and they wouldn't hold up in court for a second.

In other words, it's a huge, dysfunctional, complicated system, and there's a 3 - 5 year backlog of patent filings, but ultimately the system does work.

As one minor on-topic example (for this forum) Fein had the patent on the multi-master (the little vibrating saw), from which they made hundreds of millions. The patent just expired, and now Dremel et al have competing versions. Heck, even Harbor Freight waited 'till the patent expired:

http://www.harborfreight.com/cpi/ctaf/displayitem.taf?itemnumber=65700-9VGA&

dp
04-20-2009, 01:01 AM
For instance, I know how to design and build from components a flip flop, a half adder, a full adder, a register and an accumulator. I know how to build an instruction counter and address register and an instruction decode logic tree. I could and probably still can build a simple CPU from parts. I have never personally met anybody else that I know for sure can or even knows exactly how a CPU works at the bottom level.

I do. I worked on Raytheon radar systems that used discrete component central processing units. I had to understand how they worked because I had to repair them, often at sea, and with little in the way of electronics stores nearby. The whole thing was built on wirewrap circuit boards. Crude, but it sure worked well. They were the first digital PPI radars I worked on. Lots of resolvers, ADC's, DAC's, servo inputs from the ships gyrocompass, vector drawing engines for the collision solutions ellipses overlays on the screen.

lazlo
04-20-2009, 01:07 AM
I could and probably still can build a simple CPU from parts. I have never personally met anybody else that I know for sure can or even knows exactly how a CPU works at the bottom level.

Wow, that's amazingly ego-centric Evan. :D You're saying you don't think anyone else knows how a CPU works "at the bottom level"?

Trust me, a good technical witness can explain the core details of the most complicated patent to the average laymen.

For reference, read the details of the Blackberry patent lawsuit, or the Gene Haas conversational G-Code lawsuit. Both had very subtle technical details, both had jury trials, and both trials resolved correctly.

Evan
04-20-2009, 07:12 AM
You're saying you don't think anyone else knows how a CPU works "at the bottom level"?



You have poor reading comprehension Robert, as I have said before.

I said "I have never personally met anybody else that I know for sure can or even knows exactly how a CPU works at the bottom level."

I will now correct that to "I have only met one person that I know for sure knows exactly how a CPU works at the bottom level (or can build one)."

You sure don't take it well when somebody steps on what you presume to be your area of expertise. Talk about an ego problem. :rolleyes:


Trust me, a good technical witness can explain the core details of the most complicated patent to the average laymen.


Sure. And if pigs had wings they could fly. Many years of personal experience tell me otherwise. Resolved correctly? Perhaps. Did the jury understand the technical details and implications? Highly unlikely. You can't teach somebody the years of background needed to understand most technical issues in just a few week in a trial. There are exceptions but you aren't going to find them in a jury box by random selection for jury duty.

lazlo
04-20-2009, 09:43 AM
I will now correct that to "I have only met one person that I know for sure knows exactly how a CPU works at the bottom level (or can build one)."

You sure don't take it well when somebody steps on what you presume to be your area of expertise. Talk about an ego problem. :rolleyes:

I wasn't referring to myself Evan! :) My point is that there are many people here who know how a CPU works "at the bottom level": Dennis, David Cofer, Barts, BadDog, Bruce Griffing, ...


Sure. And if pigs had wings they could fly. Many years of personal experience tell me otherwise. Did the jury understand the technical details and implications? Highly unlikely.

Any good invention can be condensed down into a single sentence: "I've invented a vibrating saw with pie-sliced blades that can cut into corners", "I've invented an interactive way to create CNC programs without writing G-Code", "I've invented a DRAM technology that transmits 400% faster than common DRAMs"...


You can't teach somebody the years of background needed to understand most technical issues in just a few week in a trial.

I teach a "Computer Architecture for Young Engineers" class for my daughter's Kindergarten class :p I have the kids line up on a jump-rope and half move to one side and are "1's", and the other half move to the other side and are "0's". I teach them simple logic functions, let them play with Wafers and "dead bugs" (cpu packages that are split open for probe during bring-up debug), show the X-ray micrographs of a modern CPU. It's a big hit, and the kids really do absorb the concepts.


There are exceptions but you aren't going to find them in a jury box by random selection for jury duty.

The jurors are carefully selected for those who would have a good understanding of the concepts being discussed.

Evan
04-20-2009, 10:56 AM
My point is that there are many people here who know how a CPU works "at the bottom level": Dennis, David Cofer, Barts, BadDog, Bruce Griffing, ...



I haven't personally met them, except for Dennis. You really need to work on the reading.

lazlo
04-20-2009, 10:57 AM
I haven't personally met them. You really need to work on the reading.

You've met Dennis. Last week. You need to work on your memory.

Evan
04-20-2009, 11:01 AM
I fixed that one second after I posted it. I have a terrible time recognizing names. Never have been good at it.


"I've invented an interactive way to create CNC programs without writing G-Code",

Say that to a general audience, even a well educated one and you will be met with a long blank stare. Try to explain and the eyes will glaze over.

[added] You are to close to a techno-savvy audience to realize how it is. I spent my working career dealing with and training the technologically illiterate.

aostling
05-18-2009, 05:09 PM
I still don't know if it is possible to patent a virtual puzzle. Here is a photo from the Wikipedia article on Alexander's Star, which is an analog to the puzzle I'd like to protect.

http://i168.photobucket.com/albums/u183/aostling/AlexandersStar.jpg

I've read that the Alexander's Star is notoriously difficult to manipulate. That wouldn't matter, of course, for a virtual version. Patent claims would be vastly simplified, since no internal mechanism needs to be described.

Utility patent? Design patent? Software patent? Which is the appropriate type for a Java aplet (or equivalent), for something like this?

Evan
05-18-2009, 07:04 PM
It would be a utility patent on software. The problem with that is that software isn't patentable in most countries so there is absolutely nothing to stop people from copying it by rewriting the program and then distributing it via the internet. Your best bet if you really want to protect it is to not publish it. :rolleyes:

My previous experience with trying to sell software that I wrote is that you won't be able to make any money. The way you make money on writing software is to work for a company like Electronic Arts and be paid a percentage of the profits plus residuals. Individuals rarely make any money from software which is why I don't even think about that any more.

aostling
05-18-2009, 07:34 PM
I don't see this as a software issue. The concept of a particular virtual puzzle -- it's shape and how it moves -- exists independently of any software which might be employed to realize it.

But perhaps a concept without a physical realization cannot be patented.

I could apply for a design patent on the shape, which is unique. But I don't know how much protection that would provide.

J Tiers
05-18-2009, 11:37 PM
I could apply for a design patent on the shape, which is unique. But I don't know how much protection that would provide.

Maybe more than you think.

Design patents and copyrights tend to be far easier to prosecute on..... the concepts are usually all clear and understandable..... It looks exactly like that one, and there is internal evidence it was copied from that one....... guilty, pay up!

it can get tricky with the "look and feel" stuff, but anything with pictures is pretty easy, as I understand it....... I know two people who have gotten large settlements from copyright violations, and their cases went pretty smoothly, basically just laying out the plaintiff;'s cases and having the defendant try unsuccessfully to swear their way through a brick wall.

aostling
05-19-2009, 12:29 AM
Maybe more than you think.

Design patents and copyrights tend to be far easier to prosecute on.....

That is encouraging. However, I now read that a design patent, which covers the specific ornamental appearance of an object, can be overturned if it can be shown that the device has utility. An example: the particular shape of a gear. So a design patent on a puzzle toy may not be viable.

As Evan mentioned earlier in this thread, things are a muddle with the US patent office regarding this class of invention. The European Patent Office is debating how to handle Computer-implemented Inventions (CII), but this could take years.

Evan
05-19-2009, 01:10 AM
I know two people who have gotten large settlements from copyright violations, and their cases went pretty smoothly, basically just laying out the plaintiff;'s cases and having the defendant try unsuccessfully to swear their way through a brick wall.

Copyright is relatively easy to enforce. All the cards are in the copyright holder's hands. Copyright law is extremely one sided in the US and the US is much more lenient than most countries. Most countries have no "fair use" provisons or nearly none. It's also a "reverse onus offense". If you can't demonstrate "fair use" then you are in violation. However, copyright does not protect the utility or the appearance of anything if it can be shown that the similar work was independently created without direct reference to the original.

This approach it commonly taken to "copy" software. Two teams are set up, one team has reference to the software to be emulated and the actual development team must be programmers that have no knowledge of the product to be copied. The first team develops a set of specifications for the product based on the performance of the original. These specifications are turned into a software product by the "cleanroom" team and vetted by the "dirty team" for similar performance. It goes back and forth with the cleanroom team never being exposed to a single line of code from the original product.

In this way software can be "copied" without infringing copyright. It isn't sufficient to show infringement just because some portions of the code are very similar or even identical since in many cases when programming the sequence of code is dictated by the logic that must be implemented to perform a certain task. You must open the door before you can walk through it and in order to close it it must be open.

sansbury
05-19-2009, 09:06 PM
Where do you find a judge that is qualified to judge the technical merits of a technical question? There aren't nearly enough qualified judges to hear the cases.

If you're lucky, the judge admits this up front. A year ago I had a company drag me all the way to the county courthouse over our hiring of an employee of theirs who expressly did not have a non-compete agreement of any kind, on top of which we were not even competitors in any substantial way.

The judge called our lawyers into chambers, told the other side they weren't going to get what they wanted, and that if we (the two companies) still couldn't strike a deal on our own, he would make something up, and that "if I do that you'll both be unhappy because I don't understand all this software stuff you guys are doing."

J Tiers
05-19-2009, 11:45 PM
However, copyright does not protect the utility or the appearance of anything if it can be shown that the similar work was independently created without direct reference to the original.


If a copyright is asserted on a photograph of the US Capitol....... you may stand in the exact same spot and take the same photograph on a day and at a time exactly similar to the original.

You may assert copyright for your picture, and thumb your nose at the original copyright holder. The two pictures will not, of course, be identical, merely nearly so, possibly differing only in very minute details. But you DID independently create that image, and assuming you have the original, you are clear of any wrongdoing.

There is no way, however, to "independently create" the game of "Monopoly", for instance....... And anything bearing the same similarity to the original that the photograph did, would be instantly condemned as an infringement.

Obviously one is a representation of a thing that exists independently of either of you. The other is a unique creation.

Evan
05-20-2009, 01:50 AM
There are many games similar to Monopoly. That however isn't the sort of thing I was referring to. Software is a very different type of critter since the way to do something isn't an arbitrary choice and can therefor result in fairly long sections of nearly identical code being created, especially if the same software tools are used. The cleanroom approach is used not just to insure that "clean" code is produced but so that it is possible to testify in court that this is the case.

The concept does extend to other works, especially works of art and music. Without a formalized "cleanroom" system to back up claims of originality it can be difficult to prove independent creation of a work.

J Tiers
05-20-2009, 08:58 AM
There are many games similar to Monopoly.

Not THAT similar, they don't copy the appearance......... in any case I was agreeing with you. Your choice if you want to diss on it...... :D


That however isn't the sort of thing I was referring to. Software is a very different type of critter since the way to do something isn't an arbitrary choice and can therefor result in fairly long sections of nearly identical code being created, especially if the same software tools are used. The cleanroom approach is used not just to insure that "clean" code is produced but so that it is possible to testify in court that this is the case.

The concept does extend to other works, especially works of art and music. Without a formalized "cleanroom" system to back up claims of originality it can be difficult to prove independent creation of a work.

I would have to look for it, but I seem to recall that recently (last year or two) a "cleanroom" approach was actually judged to be illegal, apparently because the "dirty room" people knew too much about the code......

The argument was apparently that the "dirty room" people duplicated the performance of the code only by directly disassembling and examining the code which was a violation of the user agreements, among other things.

They were apparently stuck either way.... if they had a legitimate copy of the code, they violated the user agreements, and if they did NOT, they were guilty of theft of IP.....

Look at your user agreement next time you see one, and check for a direct prohibition of that sort of activity...... odds are that you will see it.

Evan
05-20-2009, 09:04 AM
That's just a case of not going about it the right way. The "dirty" team isn't supposed to look at the code at all. They are supposed to develop the spec by simply using the software which of course is not reverse engineering.