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Apple and Microsoft file patents for touchless controls
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Comments (45)
Prior art and obviousness all over this ...
Prior art and obviousness all over this ... The
Nokia N900 has had this for years. It's about time that users start attacking these bogus patents.
Quoting:Prior art and obviousness all over this ...
That is not the issue any more. The real question is, who is going to stand up in court to challenge either one of the two?
Touch-less control is the opposite of Virtual Reality control and could have been conceived as a result of VR research. In VR, objects and sensations felt by an observer are created by software and probes, in Touch-less control, actions and objects are sensed by probes and software.
In other words, VR brings virtual objects and actions to real space, while TLC brings real objects and actions into virtual space.
The real question is exactly what's being patented.
Remember: Patents do not cover ideas, they cover implementations.
You can have a hundred patents covering the same idea implemented in different ways. That's the basis of "inventing around", a common process to bypass patents.
Remember: Patents do not cover ideas, they cover implementations.
You can have a hundred patents covering the same idea implemented in different ways. That's the basis of "inventing around", a common process to bypass patents.
Dino, don't fool yourself. Patents are supposed to cover implementations. But, they are all written so broadly as to be used in lawsuits whenever something comes close to looking like the process is supposed to cover. You also aren't supposed to patent mathematics (and all programing is arguably mathematics) or nature (patents on genes), but we all know it works differently in practice.
@JaseP -
No, we don't all know it works differently in practice. And no, they are not all written so broadly as to be used in lawsuits.
It's true that a lot of bad patents have been written and continue to be written because nobody has clarified important concepts like obviousness with regard to software patents, but...patents have to be written in a way to get past patent examiners and that is not as trivial as you seem to think.
No, we don't all know it works differently in practice. And no, they are not all written so broadly as to be used in lawsuits.
It's true that a lot of bad patents have been written and continue to be written because nobody has clarified important concepts like obviousness with regard to software patents, but...patents have to be written in a way to get past patent examiners and that is not as trivial as you seem to think.
Given how many bad patent applications have gotten past the examiners and turned into actual bad patents, I am left wondering just how difficult it really is. (Again, that pesky "in practice" thing.)
@gus3 -
Having been involved in the patent process a couple of times, my experience is "very difficult" -- but that's not the same as saying it's difficult to get bad patents through. It's saying it's difficult to get patents through that aren't written properly. Unfortunately, patent examiners understand physical engineering a lot better than they understand software.
Having been involved in the patent process a couple of times, my experience is "very difficult" -- but that's not the same as saying it's difficult to get bad patents through. It's saying it's difficult to get patents through that aren't written properly. Unfortunately, patent examiners understand physical engineering a lot better than they understand software.
The patent officers understand sending you back for a re-file to drive up fees... Patents are a quagmire of filing fees...
Quoting:The patent officers understand sending you back for a re-file to drive up fees...
They also understand that their salaries depend on fees too.
Dino: Good luck in your utopian world where patents only cover an implementation.
In the _real_ world, at least the one where I live, the 'implementation' of a "software-idea" is source code.
Source code though, is never given in the patent applications, and therefore it's pretty obvious to anybody with IQ over 70 that it's not the implementation being patented.
Look at it this way: Both chemical and physical patents offer the source code to make the implementations, software patents however never do.
Read some Apple patents, and you see they 'claim a method to do A and B'. They don't explain how their software _does_ A and B. Because that's in the source code, but they don't reveal their code meaning they don't reveal their implementation, which means they don't deserve a patent.
Maybe some elaboration: Probably, patents were invented to make sure inventors would publish / share new technologies which would remain closed otherwise.
For pharmaceuticals, this works: If they patent a medicine, another chemical company who reads the patent can make a chemical plant to make exactly those medicines in exactly the same way. In fact, the patents describe _how to make_ those medicines, not the physical substance.
For the average software patent, it doesn't work: Nothing is revealed. For example, Apple claims a technology for 'a method using heuristics to decide what direction the user meant to wipe'. But the patent doesn't give a recipe of how to roll your own version of it: It doesn't describe which heuristics used in which way using which formulas. So basically, nothing is disclosed. Moreover, the implementation remains closed, as it's in the source code. No disclosure of the implementation means no patent, at least not in your utopian world where patents cover implementations.
In the _real_ world, at least the one where I live, the 'implementation' of a "software-idea" is source code.
Source code though, is never given in the patent applications, and therefore it's pretty obvious to anybody with IQ over 70 that it's not the implementation being patented.
Look at it this way: Both chemical and physical patents offer the source code to make the implementations, software patents however never do.
Read some Apple patents, and you see they 'claim a method to do A and B'. They don't explain how their software _does_ A and B. Because that's in the source code, but they don't reveal their code meaning they don't reveal their implementation, which means they don't deserve a patent.
Maybe some elaboration: Probably, patents were invented to make sure inventors would publish / share new technologies which would remain closed otherwise.
For pharmaceuticals, this works: If they patent a medicine, another chemical company who reads the patent can make a chemical plant to make exactly those medicines in exactly the same way. In fact, the patents describe _how to make_ those medicines, not the physical substance.
For the average software patent, it doesn't work: Nothing is revealed. For example, Apple claims a technology for 'a method using heuristics to decide what direction the user meant to wipe'. But the patent doesn't give a recipe of how to roll your own version of it: It doesn't describe which heuristics used in which way using which formulas. So basically, nothing is disclosed. Moreover, the implementation remains closed, as it's in the source code. No disclosure of the implementation means no patent, at least not in your utopian world where patents cover implementations.
Hans -
It is not a utopian world. It is the real world.
Believe as you wish, but patents that do not provide an implementation -- and there is no reason at all why it needs to be source code -- are not valid patents.
It is not a utopian world. It is the real world.
Believe as you wish, but patents that do not provide an implementation -- and there is no reason at all why it needs to be source code -- are not valid patents.
dinotrac wrote:Believe as you wish, but patents that do not provide an implementation -- and there is no reason at all why it needs to be source code -- are not valid patents.And yet - again - so many of them manage to get past the examiners. How many of them fail the (apparently cursory) examination process doesn't matter.
As currently designed, with the default being "accept" rather than "reject," the US patent system is broken.
I think everyone agrees on the broken part. It's the "how to fix it" part that gets everyone into arguments.
@gus3 -
The examination process is not remotely cursory. That used to be the basis for submarine patents:
1. Draft the patent claims in relatively broad terms sure get bounced back by the examiner. 2. Go through as many iterations as it takes to note new things one can incorporate into the final claim 3. End up with a group of more specific claims informed by all the stuff that came along while you were stretching out the application process and -- oh my! -- have a group of new infringers who came along while your application was pending and hence not public knowledge.
This strategy has lost a lot of its appeal now that the patent term runs from the application date instead of the grant date.
The examination process is not remotely cursory. That used to be the basis for submarine patents:
1. Draft the patent claims in relatively broad terms sure get bounced back by the examiner. 2. Go through as many iterations as it takes to note new things one can incorporate into the final claim 3. End up with a group of more specific claims informed by all the stuff that came along while you were stretching out the application process and -- oh my! -- have a group of new infringers who came along while your application was pending and hence not public knowledge.
This strategy has lost a lot of its appeal now that the patent term runs from the application date instead of the grant date.
I'm more interested in the process of bringing third party challenges, under the new act. Specifically, I'm more interested in the ability of third parties to; a) Bring an objection for something that is obvious, trivial and/or already exists in the market, and/or b) Using preemptive publication of software "inventions" to short-circuit a patent. I believe that the Open Source community should have a published software invention journal, complete with a printed circulation, and provide a gratis copy to all patent examiners.
@JaseP --
Is that third party challenge procedure within the application process or is there a provision for challenging existing patents short of filing suit?
Is that third party challenge procedure within the application process or is there a provision for challenging existing patents short of filing suit?
For pharmaceuticals, this works: If they patent a medicine, another chemical company who reads the patent can make a chemical plant to make exactly those medicines in exactly the same way. In fact, the patents describe _how to make_ those medicines, not the physical substance.
We need war
8 earlier comments in the full thread.
The fine for rejected patents thing might be workable though: make it dependent on how many patents you file per year. So if you file <5 patents/year, there's no fine for rejected patents. If you file thousands per year, however, you get big fines for rejected ones. This would spur large corporations to only file more worthy patents instead of the mountains of rubbish patents they currently file.
Like $1B for 1st bad patent after patent application 5, $2B for for 2nd, $4B for 3rd......
That should cut it down a bit. :P
That should cut it down a bit. :P
You don't need a fine for a bad patent as such. Dino can correct me if I'm wrong, but I believe the statements signed when applying for a patent stating that the patent is valid to the best of your judgment are given under oath. Simply start charging the companies and the appropriate company officials (under Sarbanes Oxley, that could conceivably include the CEO) of companies who submit patents later ruled obviously invalid with criminal perjury, and levy fines/jail sentences accordingly.
You'd be amazed at how quickly things change when CEO's, other top company officials, and board members face the risk of jail time.
You'd be amazed at how quickly things change when CEO's, other top company officials, and board members face the risk of jail time.
@jdixon: It's nearly impossible to prove that someone knew or didn't know anything; there's no way you'd prove that some CEO knew a patent was invalid at the time of signing (esp. when CEOs have nothing to do with filing patents, other than vaguely directing their underlings to file as many patents as possible; it's not like the CEO personally reviews each one, or would even be competent to know anything about them).
Besides, SOX is probably going to repealed very soon.
Besides, SOX is probably going to repealed very soon.
> ...t's nearly impossible to prove that someone knew or didn't know anything; there's no way you'd prove that some CEO knew a patent was invalid at the time of signing
Immaterial. You don't have to prove that any knew anything, only that they should have known. Both the lawyers and company officers involved are supposed to be competent to do their jobs.
Under Sarbanes Oxley, CEO's must make an affirmative statement that their financial statements are true, and can be held criminally liable if they're not. I believe the same is true for the CFO and board members. Since a patent is a financial holding, there is little doubt the same standard could be applied to the company's patent submissions. And since a false patent is an attempt to defraud both the public at large and the ones who could otherwise be the legal holders of the patent, it is arguably a criminal offense, not just a civil one.
Remember that these people have both legal and fiscal duties. They are supposed to be competent to perform their jobs. Incompetence on the order of many of these patent filings is a breach of those duties. There are currently penalties for such breach of duties. They're simply seldom enforced. The civil conviction of President Clinton under perjury charges should be a clear reminder that they can be if a court so chooses.
All I'm arguing is that the laws governing such behavior should be enforced to the maximum extent. Whether my understanding of that extent is correct or not, there is no doubt that they're not being enforced currently. If they were; most of this problem would go away.
Lawyers who submit invalid patent applications should either have their licenses revoked or go to jail, depending on how blatantly invalid the application was. The corporate officials responsible should be held criminally liable for their actions.
Immaterial. You don't have to prove that any knew anything, only that they should have known. Both the lawyers and company officers involved are supposed to be competent to do their jobs.
Under Sarbanes Oxley, CEO's must make an affirmative statement that their financial statements are true, and can be held criminally liable if they're not. I believe the same is true for the CFO and board members. Since a patent is a financial holding, there is little doubt the same standard could be applied to the company's patent submissions. And since a false patent is an attempt to defraud both the public at large and the ones who could otherwise be the legal holders of the patent, it is arguably a criminal offense, not just a civil one.
Remember that these people have both legal and fiscal duties. They are supposed to be competent to perform their jobs. Incompetence on the order of many of these patent filings is a breach of those duties. There are currently penalties for such breach of duties. They're simply seldom enforced. The civil conviction of President Clinton under perjury charges should be a clear reminder that they can be if a court so chooses.
All I'm arguing is that the laws governing such behavior should be enforced to the maximum extent. Whether my understanding of that extent is correct or not, there is no doubt that they're not being enforced currently. If they were; most of this problem would go away.
Lawyers who submit invalid patent applications should either have their licenses revoked or go to jail, depending on how blatantly invalid the application was. The corporate officials responsible should be held criminally liable for their actions.
You generally can't prove ignorance, but you can prove "wilful ignorance".
> You generally can't prove ignorance...
The point with Sarbanes Oxley is that the burden of proof isn't even ignorance. You have to show that you made a good faith effort to comply. I don't think there's much doubt that patent applications would fall under the Sarbanes Oxley provisions, given their potential impact on a company's earnings.
The point with Sarbanes Oxley is that the burden of proof isn't even ignorance. You have to show that you made a good faith effort to comply. I don't think there's much doubt that patent applications would fall under the Sarbanes Oxley provisions, given their potential impact on a company's earnings.
racketeering is the name....nothing else.... :
Quoting:In the manner B&N described, Microsoft seemingly approaches each OEM and informs them rather vaguely (nothing specific) that their products are infringing on their patents. At that point there are two important questions the OEM’s must ask themselves, what’s the estimated cost of filtering through these patents, comparing them with the source and seeing if their legit and on the flip-side, what’s the cost of settlement in comparison. To expand a bit on the first thought of the two, companies must fist diagnose how expensive it will be to prove in court that they aren’t infringing and asses how solid of a case they can build all while cross referencing how does “that” cost relate to the product they’re selling. While that nice approximate number is rounded out they must also look at the second question which is, ultimately, how much the cost to settle is. Large corporations use their size and influence to intimidate smaller ones all the time, it’s not uncommon for the smaller company to simply settle when it knows that it would be far out of its comfort zone enduring a long costly battle with a company with the heft of Microsoft.http://www.thebitbag.com/2011/11/02/microsoft-protecting-inn...
@henke54
Nice link. Thanks,
Nice link. Thanks,
"Companies must fist..."
I suppose, if dueling is still illegal.
I suppose, if dueling is still illegal.
Huawei confirms that Microsoft is chasing it for Android patent licence :
http://www.guardian.co.uk/technology/2011/nov/08/huawei-micr...
when is goog gonna do something ? maybe when pigs fly ?
http://www.guardian.co.uk/technology/2011/nov/08/huawei-micr...
Quoting:Xu suggested that Google's acquisition of Motorola Mobility, which is still underway, might lead to more protection from Google for Android licences.
when is goog gonna do something ? maybe when pigs fly ?
@With Huawei being pursued by MS, maybe now we'll see some patent fixes: Huawei can get their government to threaten the American government to deal with Microsoft, or else the Chinese government can call in their loans, causing our economy to collapse overnight.
Quoting:Nice link. Thanks,
What is so nice about it when the first thing one sees is in your face picture of a gangster? :-)
At least B&N is 'going for it' :
Quoting:Barnes & Noble, book seller and maker of Android based Nook devices, has called on the US Department of Justice to investigate Microsoft's demands for patent royalties on devices that run Android. Bloomberg reports that, in a letter to Gene Kimmelman, the DOJ's chief counsel for competition policy, Barnes & Noble says that "Microsoft is attempting to raise its rivals' costs in order to drive out competition and to deter innovation in mobile devices."http://www.h-online.com/open/news/item/Android-device-maker-...
FTA: "The patent trial which will consider Microsoft's claims against Barnes & Noble is set for February."
I will watch this with the intensity of the Ali/Shavers bout in 77. Now we'll see just how strongly politics and lobbying does influence law. Barnes and Noble has a stong case...strong enough that it might just force MS to finally show their hand.
The extremely interesting part of this will be if MS is shown to have no basis for charging these fees, what recourse will be taken to punish them. Of course, a lot has to happen in our favor before that is even a possibility.
I'm particularly interested in learned opinions here. Dino?
I will watch this with the intensity of the Ali/Shavers bout in 77. Now we'll see just how strongly politics and lobbying does influence law. Barnes and Noble has a stong case...strong enough that it might just force MS to finally show their hand.
The extremely interesting part of this will be if MS is shown to have no basis for charging these fees, what recourse will be taken to punish them. Of course, a lot has to happen in our favor before that is even a possibility.
I'm particularly interested in learned opinions here. Dino?
Last minute settlement, I'm betting, ... with terms B&N is willing to swallow, plus the obligatory NDA... Any takers on that bet?!?!
They say that those who fail to learn from history are doomed to repeat it. B&N at least has the means to learn from history. Here's hoping that they decide to fight back against the Danes rather than pay the Dane gold.
Although I sure won't bet against you JaseP
Although I sure won't bet against you JaseP
> Any takers on that bet?!?!
I think we all know better by this time. :(
I think we all know better by this time. :(
Much as I hate to say it, that's a very likely scenario -- if for no other reason than that both sides' lawyers will be reminding them that anything can happen in court, and it's best avoided if at all possible.
Microsoft may have weak and/or bogus patents that don't apply and should never have been granted anyhow, but Barnes and Noble can't count on that basic truth carrying the day, and they have to be able to afford to fight instead of sign some deal. RIM still had to settle with NTP ($612.5 Million) even though none of the patents in question held up under review (and in fact only one, already clearly destined to be shot down, even lasted till the settlement was reached).
Microsoft may have weak and/or bogus patents that don't apply and should never have been granted anyhow, but Barnes and Noble can't count on that basic truth carrying the day, and they have to be able to afford to fight instead of sign some deal. RIM still had to settle with NTP ($612.5 Million) even though none of the patents in question held up under review (and in fact only one, already clearly destined to be shot down, even lasted till the settlement was reached).
Somewhere, sometime, and somehow, Microsoft is going to have to show their patent hand, or be forced to show their patent hand. I can't see any other way to analyze it... Microsoft is encouraging continual infringement so companies like HTC and others have to pay them license fees. How can they NOT lose the rights to said patents if that is proven? You either offer the opportunity for people to avoid the infringement or lose the right to that patent all together. You can't trap someone into infringing then demand a payment. Well wait, maybe you can....MS has been successful at it for a while now.
I realize that it is up to the corporate leadership NOT to lead their company down litigatgion trails but dammmm, it's also impossible to see all the landmines within the obscure and goofy patents that exist.
I still say B&N may stay in this long enough for it to make a difference in the long run....The judge's attitude out of the gate will determine much.
Let's just hope it isn't in East Texas.
I realize that it is up to the corporate leadership NOT to lead their company down litigatgion trails but dammmm, it's also impossible to see all the landmines within the obscure and goofy patents that exist.
I still say B&N may stay in this long enough for it to make a difference in the long run....The judge's attitude out of the gate will determine much.
Let's just hope it isn't in East Texas.
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