RE: Patents? we don't need no stinking Patents!

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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 
> 
> 
> 
> 




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