Prior to 2000, the USPTO required a patent examiner to have a Master's degree in *Engineering*. Unfortunately, since universities only granted Computer *Science* degrees, no CS grads in the patent office. After 2000, the USPTO said that a Master's in Computer Science counted. That said, when I last looked (around 2000), the starting salary for a patent examiner was in the neighborhood of $56,000 per year. That is a little more than what a high school science teacher makes in Fairfax County (near the USPTO). Old information, FWIW. > -----Original Message----- > From: Dean Anderson [mailto:dean@xxxxxxx] > Sent: Sunday, April 04, 2004 11:12 PM > To: Dan Kolis > Cc: ietf@xxxxxxxx > Subject: Re: Patents? we don't need no stinking Patents! > > > On Fri, 2 Apr 2004, Dan Kolis wrote: > > > Dean Anderson said, and is ">" > > >While finding prior art is hard problem in any field, it > would be helpful > > >if the Patent Office hired more experts in the fields > that they offer > > >patents in, and in particular, more computer scientists. > > > > Dan says: > > In the above, a chemist would substitute "Chemist" for > computer scientist, a > > Mechanical engineer the same. > > Well, the PTO actually hires Chemists and Mechanical > Engineers to review > patents in those fields. But it does not hire Computer Scientists. At > least, it didn't. I don't think anyone's checked in a few > years, but we > also haven't been told that this has changed. > > > Obviously, the patent inspectors know there is probably > public domain > > material, but it doesn't seem like they have a reasonable > access to it. > > One might think so. It is more likely a result of not having people > trained in computer science analyzing software patents. > Perhaps having too > much work to do. > > > The review process looks degrading to the patent inspector if the > > applicant goes over their head in their internal appeals > process. So > > its easier to grant it. > > I don't think this the case. One nearly always has a recourse > to challenge > a government decision. There is nothing degrading about doing > so. I think > most government bureaucrats try to do a good job, even if its > in a field > they aren't trained for. But their lack of training in the field is a > policy problem. It doesn't mean there is anything inherently > wrong with > the patent system. > > Human failures sometimes mean there is something wrong with > the system. It > could be the case that the system promotes human failures, > like the Airbus > autopilot user interface that led pilots to mistakely enter > 3500 feet per > minute descent rate instead of 3.5 degrees down decent. This led to at > least one crash and several near accidents. The system was > fixed, so that > humans were less likely to fail. On the other hand, the > aircraft that hit > the WTC performed perfectly. There was nothing wrong with the > airplanes. > > Similarly, if you have monkeys instead of railroad engineers, > it doesn't > mean the concept of trains and railroads is flawed. It means that the > policy of hiring monkeys instead of trained professionals is > flawed. And > by "monkeys", I don't mean to be perjorative. Albert Einstein > wouldn't be > safe driving a train, even though he wrote a lot about train cars and > railroad embankments. Its a matter of training and knowledge base. > > In our instant case, while the policies are harmful and the computer > science training insufficient, this is a relatively minor > problem. It is > the system itself that is flawed. We do not want to focus on the > policies, except to say that they are relatively unimportant, > though they > do create a negative. Even if the policies were changed, it > is ultimately > hard to avoid the problem of bad patents entirely and I don't expect > that's possible. > > There have been people who have filed purposefully > embarrassing patents, > but I don't encourage this. In fact, I strongly discourage > it. Sabotaging > the system never helps change it. In fact it hurts, because then the > proponents can claim that its problems are due to the sabotage, not to > anything inherently wrong with the system. > > > Dean says: > > >Such patents as this are clearly mistakes, and are > frequently overturned > > >on review. > > > > Dan says: > > As a reality check I just walked over to a desk here and > touched an object > > recently contested in a Patent battle. *any* trip to a flea > market could > > fill a pickup truck of goods built before 1940 that show > the patent is at > > least partially invalid. (some claims... stink). But, the > Grantee won. Why? > > Its cheaper to be right and lose, then pay a license fee... > than be right > > and win. > > True, "The right thing" doesn't always prevail. But I think it usually > prevails. But these sort of mistakes are > administrative--there are human > failings in _any_ system. In principle, one can't criticize > 'the system' > for human failing, because only the humans failed. There is > a difference > between the system and the operation of the system. We can and do > criticize the operators for having too many human failings. This is a > reason to change the policies of the operators, but not a > reason to change > the system. We seek primarily to change the system, and want > to focus on > that. > > > Dean says: > > >if you file right before product > > >release, and that product catches on. 18 months is a > long time for > > >software. 30 months, and you are into lifecycle > maturity. You've already > > >made commitments to using the software. Now you have to > pay whatever they > > >want to charge. If the patent is solid, there is no way > out, not even for > > >OJ or MJ, or BG for that matter. > > > > Dan says: > > The general principle is built on pain and suffering. The > trick is, (like > > Sam Ting said about how to win Nobel prizes: "I think you > should be first, > > and be right"). "Interference" is super complicated, when > they actually > > overlap like you described. I think if I remember > correctly, it happens in > > about 5% of the cases, so its a lot. No doubt, its a > pipeline, so one begins > > to wonder what public interest is served with long > delays... I can't think > > of any. > > The delay isn't an "intentional" delay, in the sense that > they just sit on > it for 18 months. The delay is to process the paperwork and review the > patent. The delay is also due to a backlog of work. Its no > different (in > principle) than if you file for a building permit: you don't > get it same > day. It takes a bit. If there is a backlog, it takes longer. > At the PTO, > it generally takes 18 months, but occasionally takes 5 years. > (There are > exceptions having to do with classified technology that can > take much more > time--effectively unlimited time, but I'll ignore those) > > > A usual way to deal with the reality is to use the granted one as a > > citation, make a trivial improvement, and now you have > reset the clock 2 > > years or so. Of course, if there are real damages, all this > is retroactive, > > plus often a bonus multiplier of 1:3 for being a evil-doer, so its a > > financial burden. > > True. Though anyone can do this. If you want to screw your > competitor, or > buy a company at a discount, you can file for the improvement > and prevent > them from using it. I suppose it is a financial burden, or an income > source for patent attorneys. The counter argument is that people were > still spurred to invent new things, and to make improvements, and of > course, inventors are motivated to work harder and file sooner for the > enhancements to prevent competitors from doing so. So in > fact, the patent > system is "working" in this case and promoting progress. This > is just sort > of the "Stick" side of it. "Innovate or Die" makes > progress. You may not > like that, but it isn't a strong argument to change the patent system. > > > Dean says: > > >But anything halfway novel, and new. Well, that is another > > >story: Patent it or someone else will. > > > > Dan says: > > What is "Obvious to one practised in the art"; (which is > the US PTO test for > > novelty). Our patent attorney says if it takes more than 45 > seconds for the > > dumbest person actually employed in that field to figure it > out, then its > > not "obvious". > > Well, that's not the test that the patent office uses, thankfully. > > Also, keep in mind that my comment is about the first-to-file system, > which hasn't been passed into law yet, in the US. Though, it > is fair to > say that even the current system strongly encourages patent > filing over > public domain publishing. For example, if someone else gets a similar > patent, and you have published in the public domain, your > only recourse is > to challenge the validity of the patent, and you have very > little leverage > with which to negotiate a cross license. If you had instead > filed for a > patent, you would have some leverage to counter sue them for > infringement, > and probably obtain a cross license. This creates a strong incentive > against putting things in the public domain. > > > Who know for sure, but I doubt this was the intention 300 > years ago when > > this concept emerged. > > Actually, the intention (more than 300 years ago) was to > create arbitrary > monopolies. Patents were gifts of the King--you got to be the > exclusive > maker of shoes, for example. It was a way to reward subjects > and enrich > them. It had nothing to do with invention. The concept was > changed, in > the US constitution, to have a more beneficial purpose, limited to > inventions, and for limited times. > > > (*) Different durations for different kinds of patents. > Maybe software > > should be sort enough to make it functionless completely. > That would suit me > > fine. I think many good programs behind the scenes do > things in non-obvious > > ways, but somehow because someone else stumbles into the > same proceedure, it > > just doesn't seem like patentable material to me, at all. > > I think many people would find a 3 year software patent much more > acceptable. But the problem is, once you get into such a > short time frame, > it is even harder for the government to keep up. It would be truly > unacceptable to have a 3 year patent granted 18 months into a 36 month > term. The alternative is then an "accelerated review process". The > problem with that is that it is even more susceptible to bad > patents. > And there is even less reason to challenge them, versus pay them for 3 > years. This also runs afoul of GATT obligations, I think, since the > "normalized" term is 20 years, and there aren't provisions for varying > terms. > > Most people think of the patent system in relation to > inventors. But the > major users are venture capitalists. They use the patent > system to justify > their investments. That is why the patent system can't just > be abandoned > or changed capriciously. Doing so would cause economic chaos. > Like any > function of government, the people who have the most money > involved tend > to be the movers and shakers of the policy. If the VC lose > interest in > software patents (and there are indications they are), then > there is very > little reason to have them at all. The remaining players are > basically > the inventors and the lawyers. There is an argument that the patent > system protects the inventor from unscrupulous people who simply have > superior manufacturing and distribution capabilities. This is hard > discount completely, and I think there is a legitimate > concern about the > unscrupulous profit on truly novel ideas. But it clearly > becomes an issue > of governance--is it economical for the government or the inventor to > invest the time and expense for a patent application for a > product that > has a useful lifetime measured in months? > > As soon as you drop the time limit to a major fraction of the > processing > time, and lose the interest of the major players, there is > little purpose > in having a software patent system. The value of a true 20 > year monopoly > is significant. It justifies significant government and legal expense, > both in creating and overturning, and in defending against > infringement. > The value of a 3 year monopoly is much less so. It basically become a > government jobs program, but there are no computer scientists > employed by > the PTO to keep employed. And given the backlog of patent > applications in > all fields, it would be better for other patent system users > to not have > software patents crowding the works. > > > XOR operations for a blinking cursor? Can you think of > another way NOT to do > > that? > > Yes. You can redraw the entire screen. You can save and restore the > entire contents under the cursor without XOR. You can make > the cursor an > analog sprite, drawn over the image as an added analog > signal. There are > other ways, but XOR is clearly, _obviously_, the easiest way > to do it. It > is not the only way. Its just the obviously best way. There is nothing > novel about the application of existing mathematics to > cursors. That is > expected. > > The XOR patent was finally reviewed and revoked. We used this as an > example of an obviously bad patent for a long time. But as I said, > mistakes are reasons to change the policies that govern the > operation of > the system. They are not reason to change the system itself. A > knowledgeable computer scientist working in the PTO would never have > approved that patent. > > And as I said earlier, it is not the obviously mistaken patents that > concern me most. I am concerned most with the genuinely novel software > patents, and how a monopoly granted 18 to 30 months after its > introduction > could impact the industry, the economy, the users, and the > programmers. > A novel software patent is a lot more similar to the > airplanes that hit > the WTC, without the murderous intent. The system can be > expected to work > perfectly, with disastrous results. > > --Dean > > > >