Patrick Elliott wrote:
> Some of this stuff just gets bloody stupid.

There's a lot of stupidity in the patent process, but it isn't anything I've 
ever seen talked about *here*.  People just don't understand the patent 
process, and think that legal terms like "obvious" have some relationship to 
what they mean in English, or that you can look at a patent filing and tell 
exactly what's covered by it without looking at the prosecution of the patent.

-- 
   Darren New, San Diego CA, USA (PST)
     Is God willing to prevent phrogams, but not able?
       Then he is not omnipotent.
     Is he able, but not willing, to prevent phrogams?
       Then he is malevolent.

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On Wed, 18 Nov 2009 14:33:47 -0700, Patrick Elliott wrote:

> Some of this stuff just gets bloody stupid.

That's true about just about everything. :-)

Jim

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On Wed, 18 Nov 2009 13:09:12 -0800, Darren New wrote:

> Jim Henderson wrote:
>> the hacker can concentrate on that account.
> 
> User-friendly is always in counterpoint to secure. No way around it.

I might argue that, but not today. :-)

Jim

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On Wed, 18 Nov 2009 20:05:30 +0000, Orchid XP v8 wrote:

>>> But yeah, if you're too broke to hire a lawyer, chances are good
>>> you're too broke to be worth suing, too
>> 
>> That hasn't stopped RIAA....
> 
> Different motivation.

True enough - which kinda makes my point, though; lawsuits have different 
motivations, and money isn't always the primary (or only) motivation.

Jim

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Darren New wrote:
> Patrick Elliott wrote:
>> Some of this stuff just gets bloody stupid.
> 
> There's a lot of stupidity in the patent process, but it isn't anything 
> I've ever seen talked about *here*.  People just don't understand the 
> patent process, and think that legal terms like "obvious" have some 
> relationship to what they mean in English, or that you can look at a 
> patent filing and tell exactly what's covered by it without looking at 
> the prosecution of the patent.
> 
Hmm. Problem here is that obvious isn't a "precise" term either. Anyone 
trying to the solve the same problem *and* with the expertise to do it, 
has a high chance of seeing the same "obvious* solution, unless they are 
just so caught up in existing failed ones that they don't think of it. 
For someone with no expertise, who doesn't have the problem... it might 
as well be Chinese, translated from Greek, and originally written in 
Klingon. The relevant experts need to be questioned, not some guy behind 
a desk with a search engine, which isn't *designed* to make such 
assessments, just look for keywords.

Read something on Groklaw a few days ago, with respect to precisely this 
sort of "software patent" issue. The point made in the article is that, 
in principle, everything a computer does is "math", or something 
equivalent, software is merely a description of the process to get a 
result, and that **in theory** any human being, with enough time, 
pencils and paper, could "follow" those instructions, to produce the 
same result. Such "lists of instructions" are ***not*** patentable under 
law. Yet, because a computer follows them real damn fast, companies are 
allowed to both copyright the instruction **and** patent them. I sort of 
had the sense that it didn't make any damn sense for a while, but I 
never had someone adequately describe *why* I found the idea absurd before.

http://www.groklaw.net/article.php?story=20091111151305785

Though, I have to admit, reading that was a lot more boring than reading 
why it is that SCO is screwed, even if they *do* somehow manage to 
convince someone to believe that they owned Linux:

http://www.groklaw.net/article.php?story=20091116121914292

That one gave me a good laugh. Though, the amount of time and money 
wasted on this BS with them... Sigh...

-- 
void main () {
   If Schrödingers_cat is alive or version > 98 {
     if version = "Vista" {
       call slow_by_half();
       call DRM_everything();
     }
     call functional_code();
   }
   else
     call crash_windows();
}

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3D Content, and 3D Software at DAZ3D!</A>

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Patrick Elliott wrote:
> Darren New wrote:
>> Patrick Elliott wrote:
>>> Some of this stuff just gets bloody stupid.
>>
>> There's a lot of stupidity in the patent process, but it isn't 
>> anything I've ever seen talked about *here*.  People just don't 
>> understand the patent process, and think that legal terms like 
>> "obvious" have some relationship to what they mean in English, or that 
>> you can look at a patent filing and tell exactly what's covered by it 
>> without looking at the prosecution of the patent.
>>
> Hmm. Problem here is that obvious isn't a "precise" term either.

It is in the legal way it's used. That's my point. "Obvious" doesn't mean "I 
could have done that."  It means something like "each clause of the claim is 
detailed in the claim of another patent in the same or related field."

So if you want to patent an ergonomic desk for touch-screen use (one I had 
to look at), it may be obvious how to do that to a person, but it's not 
"obvious" unless someone patented a touch screen and someone else patented 
an ergonomic desk.

> has a high chance of seeing the same "obvious* solution, 

Irrelevant. You're making my point for me. You think "obvious" in 
patent-lawyer-speak means what "obvious" means in English. It doesn't.

> The relevant experts need to be questioned, not some guy behind 
> a desk with a search engine, which isn't *designed* to make such 
> assessments, just look for keywords.

As far as I understand it, whether it would be the first solution thought of 
by an expert trying to solve that particular problem has nothing to do with 
"obvious".

> Yet, because a computer follows them real damn fast, 

Also incorrect. It's because a computer is hardware. You don't patent the 
instructions. You patent a computing device that follows the instructions.

-- 
Darren New, San Diego CA, USA (PST)
   Is God willing to prevent naglams, but unable?
     Then he is not omnipotent.
   Is he able, but not willing, to prevent naglams?
     Then he is malevolent.

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Darren New wrote:
>> Yet, because a computer follows them real damn fast, 
> 
> Also incorrect. It's because a computer is hardware. You don't patent 
> the instructions. You patent a computing device that follows the 
> instructions.
> 
And, the point here is, the argument made, sadly effectively by some, is 
that loading software onto a machine makes it a new machine. It doesn't. 
Not any more than handing a person a list of instructions makes the 
person a new person, or the combination of that person and the 
instructions a new person/machine. The argument is invalid by the 
definitions given for what is patentable in the first place. Its only 
*been* allowed because neither side in the extant cases have bothered to 
point out *why* its invalid. Loading them into a machine doesn't make 
the instructions a "new" machine *period*. The very idea of absurd.

-- 
void main () {
   If Schrödingers_cat is alive or version > 98 {
     if version = "Vista" {
       call slow_by_half();
       call DRM_everything();
     }
     call functional_code();
   }
   else
     call crash_windows();
}

<A HREF='http://www.daz3d.com/index.php?refid=16130551'>Get 3D Models, 
3D Content, and 3D Software at DAZ3D!</A>

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Patrick Elliott wrote:
> And, the point here is, the argument made, sadly effectively by some, is 
> that loading software onto a machine makes it a new machine. It doesn't. 

I don't think people make that argument. If they did, they wouldn't be 
worried about the Beloski case, or whatever it's called. Right now, you 
don't have to patent only "a new machine". You patent any machine running 
that software.

> Loading them into a machine doesn't make 
> the instructions a "new" machine *period*. The very idea of absurd.

Can you show me anywhere that someone claimed that loading instructions into 
a machine makes it a new machine?

-- 
Darren New, San Diego CA, USA (PST)
   Is God willing to prevent naglams, but unable?
     Then he is not omnipotent.
   Is he able, but not willing, to prevent naglams?
     Then he is malevolent.

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Darren New wrote:
> Patrick Elliott wrote:
>> And, the point here is, the argument made, sadly effectively by some, 
>> is that loading software onto a machine makes it a new machine. It 
>> doesn't. 
> 
> I don't think people make that argument. If they did, they wouldn't be 
> worried about the Beloski case, or whatever it's called. Right now, you 
> don't have to patent only "a new machine". You patent any machine 
> running that software.
> 
>> Loading them into a machine doesn't make the instructions a "new" 
>> machine *period*. The very idea of absurd.
> 
> Can you show me anywhere that someone claimed that loading instructions 
> into a machine makes it a new machine?
> 
Benhart case:

"There is one further rationale used by both the board and the examiner, 
namely, that the provision of new signals to be stored by the computer 
does not make it a new machine, i. e. it is structurally the same, no 
matter how new, useful and unobvious the result. This rationale really 
goes more to novelty than to statutory subject matter but it appears to 
be at the heart of the present controversy. To this question we say that 
if a machine is programmed in a certain new and unobvious way, it is 
physically different from the machine without that program; its memory 
elements are differently arranged. The fact that these physical changes 
are invisible to the eye should not tempt us to conclude that the 
machine has not been changed. If a new machine has not been invented, 
certainly a "new and useful improvement" of the unprogrammed machine has 
been, and *Congress has said in 35 U.S.C. § 101 that such improvements 
are statutory subject matter for a patent.* It may well be that the vast 
majority of newly programmed machines are obvious to those skilled in 
the art and hence unpatentable under 35 U.S.C. § 103. We are concluding 
here that such machines are statutory under 35 U.S.C. § 101, and that 
claims defining them must be judged for patentability in light of the 
prior art."

You get that. Congress accepted the definition, and concluded that 
"improvements" to a machine, which involve loading software onto it, 
**changes** the machine, thus making it a patentable product. The case 
in question doesn't even deny this possibility, it just makes the 
argument I do, which is that such things are, "obvious to those skilled 
in the art and hence unpatentable". You are saying that this is "not" a 
legal grounds to make something unpatentable. So, we have, "Stuffing 
instructions into a machine makes it new, therefor patentable", and, 
"Sorry, but even if this is a blindingly obvious solution for people 
that know how the machine works, its still patentable."

So... Tell me again how no one is making this absurd argument?

I am sure I linked the groklaw page talking about this some place, but 
maybe I didn't..

http://www.groklaw.net/article.php?story=20091111151305785

-- 
void main () {
   If Schrödingers_cat is alive or version > 98 {
     if version = "Vista" {
       call slow_by_half();
       call DRM_everything();
     }
     call functional_code();
   }
   else
     call crash_windows();
}

<A HREF='http://www.daz3d.com/index.php?refid=16130551'>Get 3D Models, 
3D Content, and 3D Software at DAZ3D!</A>

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Patrick Elliott wrote:
> which is that such things are, "obvious to those skilled 
> in the art and hence unpatentable". 

Except they're not always, and it's not the patent examiner's job to say 
whether some *other* expert asked the same question would invent the same 
invention.

> "Sorry, but even if this is a blindingly obvious solution for people 
> that know how the machine works, its still patentable."

That's fine, but that's not really what the patent examiner looks at. Again, 
"obvious" has a technical legal definition that does *not* mean "anyone 
skilled in the art would have thought about this if asked."

Was RSA or Diffie-Helman "obvious"?  Was First Virtual "obvious"?  Both 
pretty much astounded the experts in the field, all of whom thought it was 
impossible to do such a thing at all.

Hell, I have a patent just issued on how to print different receipts on a 
credit card terminal depending on what you just bought.  It was damned 
obvious to me, but after talking to three manufacturers of terminals and 
asking how to do it and getting back "there's no way to do that on our brand 
of terminals", we figured it wasn't nearly so obvious to the experts in the 
field as it seemed.

> So... Tell me again how no one is making this absurd argument?

OK. Nobody said it's a new machine. They said it's an improved machine.

If I figure out how to add color to TV broadcasts, have I not simply 
improved the television?

> I am sure I linked the groklaw page talking about this some place, but 
> maybe I didn't..
> 
> http://www.groklaw.net/article.php?story=20091111151305785
> 

"""

-- 
Darren New, San Diego CA, USA (PST)
   Is God willing to prevent naglams, but unable?
     Then he is not omnipotent.
   Is he able, but not willing, to prevent naglams?
     Then he is malevolent.

Post a reply to this message