What an incredible cop out. Basically this is an entire page of saying nothing. Nothing at all. He's not saying they are going to do something about the patent problem. He's not saying they aren't. He is just trying to inspire you without committing to anything...at all.
Saying nothing would be slightly better than the false promise that's actually there:
We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.
This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.
If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Have you actually read this document (http://edocket.access.gpo.gov/2011/pdf/2011-2841.pdf)? Because it gives clear guidelines applicable to new and existing patents. It DOES cover most issues raised against software patents. It CLEARLY provides means to defend against crap and broad patents. Meaning: unscrupulous lawyers and trolls WON'T be able to play on ambiguities anymore. Presumption of validity is worth zero against most cases covered by this document. Just read it, because it could put a smile of your face !!!
I had not read that. Thank you. Those guidelines, if followed, will address some issues with software patents, but not the problems I mentioned. This is understandable, because the problems I mentioned are intractable.
The key problem you mention, of not having enough specialist knowledge, applies to /all/ patents. Actually, like every other field, 99% of engineers will understand 99% of patents. The specialist areas are the small minority. I'm sure I can find 100 UI or web patents for every sound or graphics one... for instance. So I agree this is an intractable problem, but I disagree that its a serious one...
It's not a problem of understanding the patents. The problem is determining novelty and non-obviousness. There are so many open-source jQuery plugins coming out all the time that a web/UI patent's novelty is going to be very hard to determine. Similarly, this ongoing flood of progress will help give new ideas to ordinary skilled programmers, rendering lots of potential "inventions" obvious.
I still contend that this is a serious problem in a legal system that includes presumption of validity.
I only had time to briefly skim this, but I didn't catch anything about reforming the compensation system for patent examiners, which incentivizes the granting of patents without giving them sufficient review. Anyone else find any info of this nature in the PDF?
(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)
From what I've heard, it's combination of time restrictions for reviewing a patent and penalizing rejections that later get overturned when the applicant appeals the decision.
> If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.
And yes, it was relatively easy to get the equipment and start making things.
From what I've seen this is how the response has been to every petition thus far. They basically give an overview about the topic and some historical information but really say nothing and promise nothing. It's the equivalent of setting a trashcan in your office and putting a sign on it that says "Complaint Department".
Yep. "If enough people care, we'll copy/paste a press release." But what else could we have expected? That they'll drop everything, gather the experts, and rethink the past N decades of policy just because enough people on the internet clicked a button? Just another reason that the type of mass democracy that people keep saying that the internet will bring won't work without some Big New Thing for how people interact. There are still too many people and too many ideas.
It's not that hard for the Obama spin machine to respond to this. "Blah blah blah, of course we take all suggestions very seriously. In fact we have already done [something unrelated]. We thank you for your interest. Give us money."
Well, they clearly state in the response that the executive branch does not have the power to regulate what is patentable. I don't see that as really being a cop out. They legally cannot do anything about software patents.
This can only be handled by Congress. They say that. It's a perfectly reasonable response.
And laws can't be written without Congress. That's the first step. Without Congress, there are no laws for Obama to sign. That's simply how the American government works. Sure, Obama just signed a patent bill into law - that does not give him the authority to change that law before he signs it.
Yes, I suppose Obama could start a push to change software patents, but frankly, there are more important things for him to deal with at the moment.
Congress makes legislation. That's only part of law. The judicial branch of government attempts to resolve ambiguities in the legislation. That's what the Supreme Court did in 1972 when they ruled in Gottschalk v. Benson that software for a general-purpose digital computer was not eligible material for patent protection. They were careful to say that Congress should really clarify this question, and that they weren't categorically saying no software could ever be patentable.
Congress has still not clarified this question. What should be followed is Supreme Court precedent, i.e. Benson, Flook, Diehr. Theoretically, that's the law until Congress says something different.
The word of the Supreme Court should be actual law, not just theoretical law. It's up to the executive branch to direct the USPTO to follow that law. Patents should be examined consistent with Supreme Court precedent.
Astonishingly, people have been known to disagree about what the Supreme Court's holdings mean. You keep bringing up the same set of cases, but I don't agree with your analysis. Why? Because it seems to me that some of the time you're relying on the SC's dicta rather than its holding, and only the holding really counts; and furthermore, you seem oblivious to questions about standards of review and so forth.
If the circuit courts were flouting the judgment of the Supreme Court as blatantly as you allege, how come the Supreme Court hasn't granted certiorari on a suitably iconic case and reiterated its judgment in even clearer terms? It's not like there is any rule that prevents that, a grant of certiorari only requires 4 justices to sign on.
I don't think the Supreme Court wants to reiterate its judgement in even clearer terms. They said even in Benson that they felt Congress should clarify the whole business.
I laid out clearly why I think what I think about Benson, Flook and Diehr in http://ourdoings.com/ourdoings-startup/2011-07-28 and I have yet to see a similar outlay of the arguments for an opposing view.
If I've neglected a question about standards of review, I apologize. Please repeat it.
We discussed this in September, but I just now see you left me another reply(though I don't think it alters the argument that much): http://news.ycombinator.com/item?id=3031449
I'm on my phone at the moment and don't really have the time to write a long article in any case; but in a nutshell I think you are making too many assumptions about the meaning of the SCs words without considering their meaning as legal terms of art.
I wasn't aware of that. However, I suspect that legally, Congress must clarify that before it comes into force as law. But I don't know, the Supreme Court is a funny thing. Good question for a lawyer...
A bill can actually become law without the president's signature. If the president does not sign it or veto it after Congress passes it, it becomes law eventually (IIRC). Also, congress can override a presidential veto. (I don't know if an executive decision could override that.)
Congress can override a presidential veto with a 2/3 vote of both houses. That cannot be overridden by executive power.
After 10 unsigned days, excluding Sundays, bills become law, unless Congress adjourns before the 10 days expire, at which point it is automatically vetoed—the so-called “pocket veto”: http://en.wikipedia.org/wiki/Pocket_veto
That's true. But, again, though - that requires Congressional action, and Congress is most decidedly not part of the executive branch of the US government. My point is that this is a Congressional (legislative branch) issue, not a Presidential (executive branch) issue.
This site cost him my vote. It was the last straw. It's clear that these are nonsense answers and it was just a waste of my time to participate in the process. I won't be voting for either major party in the coming election, but that still costs the Democrats a vote.
That is exactly what a good politician does, talk a lot while saying nothing. Of course, when its written down rather than being delivered in person by a smooth talker, its pretty obvious whats going on.
I like Obama (for the most part), but he is the king of this.
At town halls, even when he gets a coherent question, he'll go into "let me explain the situation to you rubes" for so long that when he's done talking he's only explained the problem and offered no solutions.
Politicians that "have some balls" stop getting elected to public office. Your comment is simply a less precise restatement of the Median Voter Theorem, which is very well known to political-economists.
The administration itself set the bar for how "big" a problem needs to be to warrant a response. It's reasonable to want a response with some actual content.
Comments
What an incredible cop out. Basically this is an entire page of saying nothing. Nothing at all. He's not saying they are going to do something about the patent problem. He's not saying they aren't. He is just trying to inspire you without committing to anything...at all.
Saying nothing would be slightly better than the false promise that's actually there:
We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.
This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.
If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Have you actually read this document (http://edocket.access.gpo.gov/2011/pdf/2011-2841.pdf)? Because it gives clear guidelines applicable to new and existing patents. It DOES cover most issues raised against software patents. It CLEARLY provides means to defend against crap and broad patents. Meaning: unscrupulous lawyers and trolls WON'T be able to play on ambiguities anymore. Presumption of validity is worth zero against most cases covered by this document. Just read it, because it could put a smile of your face !!!
I had not read that. Thank you. Those guidelines, if followed, will address some issues with software patents, but not the problems I mentioned. This is understandable, because the problems I mentioned are intractable.
The key problem you mention, of not having enough specialist knowledge, applies to /all/ patents. Actually, like every other field, 99% of engineers will understand 99% of patents. The specialist areas are the small minority. I'm sure I can find 100 UI or web patents for every sound or graphics one... for instance. So I agree this is an intractable problem, but I disagree that its a serious one...
It's not a problem of understanding the patents. The problem is determining novelty and non-obviousness. There are so many open-source jQuery plugins coming out all the time that a web/UI patent's novelty is going to be very hard to determine. Similarly, this ongoing flood of progress will help give new ideas to ordinary skilled programmers, rendering lots of potential "inventions" obvious.
I still contend that this is a serious problem in a legal system that includes presumption of validity.
I only had time to briefly skim this, but I didn't catch anything about reforming the compensation system for patent examiners, which incentivizes the granting of patents without giving them sufficient review. Anyone else find any info of this nature in the PDF?
This is not the purpose of this document.
What are these incentives?
(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)
From what I've heard, it's combination of time restrictions for reviewing a patent and penalizing rejections that later get overturned when the applicant appeals the decision.
> We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
So "new" and "non-obvious" weren't already requirements?? That explains a lot.
> So "new" and "non-obvious" weren't already requirements?? That explains a lot.
On the off chance that you weren't being ironic, novelty and non-obviousness (to one "skilled in the art") have been requirements for decades.
The author of "we've issued new guidance" is either playing you for a sap or doesn't know patent law.
> If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.
And yes, it was relatively easy to get the equipment and start making things.
From what I've seen this is how the response has been to every petition thus far. They basically give an overview about the topic and some historical information but really say nothing and promise nothing. It's the equivalent of setting a trashcan in your office and putting a sign on it that says "Complaint Department".
Yep. "If enough people care, we'll copy/paste a press release." But what else could we have expected? That they'll drop everything, gather the experts, and rethink the past N decades of policy just because enough people on the internet clicked a button? Just another reason that the type of mass democracy that people keep saying that the internet will bring won't work without some Big New Thing for how people interact. There are still too many people and too many ideas.
Would be humorous if this petition got the necessary signatures to get a response: https://wwws.whitehouse.gov/petitions/!/petition/actually-ta...
Thanks. It won't make any difference but I still love it.
Everyone please sign this petition. The sign up process sucks but it will be worth it to make the Obama spin machine have to respond to this.
It's not that hard for the Obama spin machine to respond to this. "Blah blah blah, of course we take all suggestions very seriously. In fact we have already done [something unrelated]. We thank you for your interest. Give us money."
Exactly. The UK government did this a few years ago, and every response amounted to "we're going to do it anyway".
The Obama administration is pretty much the Bush administration with better PR.
"He is just trying to inspire you without committing to anything...at all."
How out of character for the Obama administration.
"How out of character for any administration."
Fixed that for you.
Well, they clearly state in the response that the executive branch does not have the power to regulate what is patentable. I don't see that as really being a cop out. They legally cannot do anything about software patents.
This can only be handled by Congress. They say that. It's a perfectly reasonable response.
Hardly, nothing can become law without the president's signature, and Obama just signed a new patent bill into law.
Just as important, the president can use the power of his office as a "bully pulpit" to lead his party and the country on this critical issue.
And laws can't be written without Congress. That's the first step. Without Congress, there are no laws for Obama to sign. That's simply how the American government works. Sure, Obama just signed a patent bill into law - that does not give him the authority to change that law before he signs it.
Yes, I suppose Obama could start a push to change software patents, but frankly, there are more important things for him to deal with at the moment.
Congress makes legislation. That's only part of law. The judicial branch of government attempts to resolve ambiguities in the legislation. That's what the Supreme Court did in 1972 when they ruled in Gottschalk v. Benson that software for a general-purpose digital computer was not eligible material for patent protection. They were careful to say that Congress should really clarify this question, and that they weren't categorically saying no software could ever be patentable.
Congress has still not clarified this question. What should be followed is Supreme Court precedent, i.e. Benson, Flook, Diehr. Theoretically, that's the law until Congress says something different.
The word of the Supreme Court should be actual law, not just theoretical law. It's up to the executive branch to direct the USPTO to follow that law. Patents should be examined consistent with Supreme Court precedent.
Astonishingly, people have been known to disagree about what the Supreme Court's holdings mean. You keep bringing up the same set of cases, but I don't agree with your analysis. Why? Because it seems to me that some of the time you're relying on the SC's dicta rather than its holding, and only the holding really counts; and furthermore, you seem oblivious to questions about standards of review and so forth.
If the circuit courts were flouting the judgment of the Supreme Court as blatantly as you allege, how come the Supreme Court hasn't granted certiorari on a suitably iconic case and reiterated its judgment in even clearer terms? It's not like there is any rule that prevents that, a grant of certiorari only requires 4 justices to sign on.
I don't think the Supreme Court wants to reiterate its judgement in even clearer terms. They said even in Benson that they felt Congress should clarify the whole business.
I laid out clearly why I think what I think about Benson, Flook and Diehr in http://ourdoings.com/ourdoings-startup/2011-07-28 and I have yet to see a similar outlay of the arguments for an opposing view.
If I've neglected a question about standards of review, I apologize. Please repeat it.
We discussed this in September, but I just now see you left me another reply(though I don't think it alters the argument that much): http://news.ycombinator.com/item?id=3031449
I'm on my phone at the moment and don't really have the time to write a long article in any case; but in a nutshell I think you are making too many assumptions about the meaning of the SCs words without considering their meaning as legal terms of art.
> Congress has still not clarified this question.
I wasn't aware of that. However, I suspect that legally, Congress must clarify that before it comes into force as law. But I don't know, the Supreme Court is a funny thing. Good question for a lawyer...
A bill can actually become law without the president's signature. If the president does not sign it or veto it after Congress passes it, it becomes law eventually (IIRC). Also, congress can override a presidential veto. (I don't know if an executive decision could override that.)
Congress can override a presidential veto with a 2/3 vote of both houses. That cannot be overridden by executive power.
After 10 unsigned days, excluding Sundays, bills become law, unless Congress adjourns before the 10 days expire, at which point it is automatically vetoed—the so-called “pocket veto”: http://en.wikipedia.org/wiki/Pocket_veto
That's true. But, again, though - that requires Congressional action, and Congress is most decidedly not part of the executive branch of the US government. My point is that this is a Congressional (legislative branch) issue, not a Presidential (executive branch) issue.
This site cost him my vote. It was the last straw. It's clear that these are nonsense answers and it was just a waste of my time to participate in the process. I won't be voting for either major party in the coming election, but that still costs the Democrats a vote.
That is exactly what a good politician does, talk a lot while saying nothing. Of course, when its written down rather than being delivered in person by a smooth talker, its pretty obvious whats going on.
I like Obama (for the most part), but he is the king of this.
At town halls, even when he gets a coherent question, he'll go into "let me explain the situation to you rubes" for so long that when he's done talking he's only explained the problem and offered no solutions.
Many of the responses to other petitions are the same. A whole lot of words, nothing actually said.
It's common for politicians to sit on the fence, otherwise they risk alienating some of their voters.
They say things like (not a quote) 'we need to balance both sides' etc even when the idea is truly stupid.
Only a few politicians have some balls to make a decision upfront.
Politicians that "have some balls" stop getting elected to public office. Your comment is simply a less precise restatement of the Median Voter Theorem, which is very well known to political-economists.
It's almost like they think the country has bigger problems. Don't they know Sillicon Valley is the center of the universe?
Yep, Washington is dealing with lots of bigger problems http://www.cbsnews.com/8301-503544_162-20128587-503544/house...
The administration itself set the bar for how "big" a problem needs to be to warrant a response. It's reasonable to want a response with some actual content.