Subject: Re: A thought about patents

From: Henning Schulzrinne <[email-masked]>
Date: Sat, 01 Apr 2000 05:50:30 -0500

In looking in multimedia-related patents, I'm also utterly amazed by the
complete lack of citation of published technical articles or related
work (RFCs, Internet drafts, etc.). The problem with many patents is
that if submitted as a technical paper at even the lowliest conference,
it would be laughed out of the program. Maybe we need a peer review
(under suitable secrecy arrangements) of patent applications by real
experts, not the one patent examiner that seems to have missed the
existence of engineering libraries in his or her undergraduate
education.

Graham Klyne wrote:
> 
> As many of us are finding, it seems to become more and more difficult to
> develop or implement a standard without tripping over somebody-or-other's
> patent for some piece of technology that many of us would regard as fairly
> obvious or lacking in novelty.
> 
> The recent announcement from the U.S. Patent and Trademark Office about
> overhauling their scrutiny of applications for online business patents
> seems to imply a tacit acknowledgement that their is a problem with the
> review process with respect to discovery or prior art or determination of
> novelty in a claimed invention.
> 
> My thought is this:  I'd like to see a presumption of lack of novelty if an
> idea gets raised in a public forum, even if it happens _after_ a patent has
> been applied for, unless it can be shown that the information came from
> leakage of proprietary information.
> 
> Maybe such an approach might ameliorate the "gold rush" mentality to be the
> first to slap a patent on an idea or technique that is coming to be
> accepted art in the normal process of technology evolution.
> 

-- 
Henning Schulzrinne   http://www.cs.columbia.edu/~hgs

---

From: Jon Crowcroft <[email-masked]>
Date: Sat, 01 Apr 2000 22:36:08 +0100

>>leakage of proprietary information.
 
intersting idea

i would liek to offer another:-

perhaps the length of patent protection should be directly related to
the cost of developing an idea - in pharmaceutical industry, long
patents make sense because of the large investment in testing a new
drug safely - similar i nthe automotive and aero industries

in software, its pretty obvious that this is silly - one-klik took
someone about 6 nanoseconds to think up, and 3 to test...

 >>accepted art in the normal process of technology evolution.

the ietf has a very good protection in principle against people who
think that a patent is power to "own" a standard - it would be nice
to try to identify the mistaken "stakeholders" who belive that 
patents are a weapon...

 cheers

   jon

---

From: Toerless Eckert <[email-masked]>
Date: Mon, 3 Apr 2000 06:27:05 +0200 (MET DST)

> not the one patent examiner that seems to have missed the

That's a bold presumption, and even though i don't know any of those guys whom
you put the blame upon, i'd rather think that you're trying to come up with
a much too simple explanation of the problem. First of all, there's an
inquality of weapons. The patent lawyers working on persuading the patent
office of the worthyness of the application get paid huge amounts by the
hour, the patent office examiners have to get through a specific amount of
applications per unit of time for a fixed income. "Resistance is futile,
your objections will just be out-processed by us" is what the lawyer will
just say.

Please don't forget that the requirement is just "non-obviousness" for the
typical person working in the field. Not for the experts after appliying
the insights that they've learned from the patent application itself. 

And if i read that "peer review" of yours, then this reminds me very much
of the stuff that happens in the scientific community. Read: Your paper get's
accepted in peer review for a conference, if your professor is good buddy
with all the peer reviewers, or your name is already well known. Else not.
Just look at how many european paper submissions get accepted by america
n conferences, then you know what i am talking about. I think there's less
justice in "peer review" than even in the broken patent process we
have today.

Just split the money someone pays for a patent application equally 
between the patent lawer and the patent office and make both of them get less
the longer it takes. Then give both type of people equal success money for the
amount of patent applications they refused (for the patent office) or
managed to get through (lawyers). That should already give a much more
equal and incentive battlefield.

Cheers
	Toerless

---

From: John Stracke <[email-masked]>
Date: Sun, 02 Apr 2000 21:39:49 -0700

Toerless Eckert wrote:

> typical person working in the field.

Side note: I think I've been told (by patent lawyers) that it's non-obviousness
for a skilled, even expert practicioner in the field.

> the longer it takes.

Can't be done--at least, not in the US.  A lawyer is hired by the applicant.  It
more or less has to be that way; a lawyer is someone I hire to represent me, to
speak for me in the complex language of the law.  To keep me from hiring whoever
I want to speak for me might well be unconstitutional; it would certainly run
against the common-law tradition (tracing back, oh, 500-100 years).  The Roman
Republic had such a system; only designated people could bring a legal action,
and they could only use prescribed forms of language.  It was a wonderfully
designed form of job security; but it wasn't justice.

--
/================================================================\
|John Stracke    | http://www.ecal.com |My opinions are my own.  |
|Chief Scientist |===============================================|
|eCal Corp.      |We want forty million helicopters and a dollar!|
[email-masked]|--"Dinosaurs"                                  |
\================================================================/

---

From: Pankaj K Jha <[email-masked]>
Date: Mon, 03 Apr 2000 08:13:42 -0700

On thought of 'peer review' I remember going to ATM Conference a few years ago
where at the end of a joint paper by three 'well-known' contributors a
'not-at-all-known' engineer from another company got up from the rear rows of the
audience and complained that his paper had been stolen and was being resubmitted.

When he was told there might have been a confusion, he pointed out that he
presented an exactly the same concept, in the same sequence, and with similar
examples a few months ago and was voted down unanimously by the 'gurus' on the
grounds that the idea wasn't good enough.

He demanded withdrawal of the paper, with a public apology. Despite protests, he
lodged his formal complaints. They budged, offering to include his name in the
author list. He wouldn't settle initially, but later he accepted after receiving
an apology. Later either his name was added to the author list or to the
acknowledgment section, I do not remember.

This kind of "peer review" is common. There is a common resistance by frequent
contributors to a newcomer's bold new ideas. Especially when it challenges other
technologies developed by established companies. And this is human nature. People
love credit, and sharing the glory is not part of usual human psychology.

Companies use patents to guard exactly that - if you don't think it's good
enough, don't worry, you do not have to use it. If you think otherwise, we're
willing to sell you results of our investment in R&D. Unfortunately, people don't
mind buying products for a price but they don't like buying a technology for a
price. They both cost money and are of value to the company that owns them.

As far as some patents being laughed out of lowliest of technical conferences, I
agree. By the same token, however, I find some technical contributions in
respected technical journals by "well-known" people that I can only laugh at. So
it goes both ways. (Can you ever imagine a famous person submitting a draft/paper
and not being accepted by the technical committee? For them, it's an honor to
have the paper.)

Although many times the stupidity of patents does surpass every limit, often it
helps a company secure a place for its own credibility. It also allows it time to
develop products. If a new technology is given to public for general education
the big companies will immediately copy it and come out with a new product. They
already have everything else. The startup company, however, has to build
everything else before it has a chance to put its own technology into its
products.

Most startup companies take a third approach - they do not announce their product
or technology until they are done. Their websites have nothing more than
directions to their office. And they hope that no one will invent the method
before they are out with their products.

I think the policy of allowing patented ideas to appear in technical journals (on
way to standards development), with a permission to other companies to use the
technology on a non-discriminatory, open licensing terms is quite fair. Two
benefits are: companies get the credit they deserve, and they are able to swap
their patents for free with some other company for some other patents that they
would like to have. Patents are often used to cross-license technology, and are
as good as cash in that regard. This, I feel, is a fair way for a company to
benefit from the technology that they have developed.

Peer review may not do much to achieve the objective.

Patents that are technically stupid are of no use to anyone anyway. If patents
cover too broad an issue, they will anyway get challenged successfully.

-Pankaj

---

From: Henning Schulzrinne <[email-masked]>
Date: Mon, 03 Apr 2000 11:26:05 -0400

I suppose it depends which conferences you attend. I can tell you from
personal experience (and the angry phone calls...) that papers from
"famous" people do get rejected, frequently. Are you arguing that there
should be no peer review, given that it fails on occasion or because
some people are unethical? Indeed, peer review can help catch the case
of intentional or otherwise duplication of earlier work.

The problem is that a patent provides a presumption of validity. Thus,
even if the patent ignores prior non-patent art, the creator of that
prior (published) art has to spend time and money defending himself in
court. Ultimately, that favors the big corporation with a standing army
of lawyers over any small or not-for-profit outfit. I'm not worried
about the stupid ideas (yes, there's a patent on including a list of
destination network addresses in a packet header to do multicast), but
rather the previously published and slightly non-obvious results.

Henning

---

From: "Brijesh Kumar" <[email-masked]>
Date: Mon, 3 Apr 2000 12:07:25 -0400

Henning Schulzrinne [[email-masked]]> writes
> it would be laughed out of the program.

I have been on internal patent evaluation committees of my previous
employers (that doesn't mean I support idea of software patents.).
I would like to clarify a bit on the subject.

Granting of patents only means that a person grated a particular patent
was first to make "a claim" about the novelty of an idea or technique
as far as the patent office knows on the basis of "previous claims submitted
to it.". It is impossible for them to evaluate every  claim  on its
scientific
or intrinsic merits (even then they do a fairly decent job). The patent
office
basically notarizes the claim, date of a claim and the person who made a
claim.
It doesn't guarantee any usefulness or scientific merits of a claim (though
the person making a claim has to justify usefulness of a claim). It doesn't
mean that there are no better ideas already published or known to others in
the field, or the patent is of any great use to others. How do you expect
them
to know just about every thing under the sun?

> Maybe we need a peer review

Remember, a patent office works within a legal framework and is not a
ACM/IEEE technical review committee. Only a US law can stop software
patents.

All said, software patents should be declared crime against software
engineers (if not against, humanity.). The problem is that no big company
is likely to lobby for banning software patents because of their
vested interests since they already have a number of patents in their
portfolios.

Cheers,

--brijesh

---

From: Lloyd Wood <[email-masked]>
Date: Mon, 3 Apr 2000 18:06:54 +0100 (BST)

> ACM/IEEE technical review committee. Only a US law can stop software

Only a *US* law?

What is http://www.wipo.int/ for? WIPO's getting involved in e.g.
domain names, and is probably a better place to raise the issue of
software patents than some navel-gazing backwater which has only
recently grasped the idea of copyright and has yet to abolish 'design
patents'.

L.

software design patents can be incredibly trivial:
http://www.patents.ibm.com/details?&pn=USD0421974__

<[email-masked]>PGP<http://www.ee.surrey.ac.uk/Personal/L.Wood/>

---

From: Toerless Eckert <[email-masked]>
Date: Tue, 4 Apr 2000 07:12:23 +0200 (MET DST)

> rather the previously published and slightly non-obvious results.

True. Which still doesn't say that any "peers" would be the more favourable
choice of review. What's needed is a prior-art database run by the PTO
into which people can submit their pointers. Without that the PTO can really
only well look up prior art that has been filed for patent. And the
knowledge of prior art by "peers" is very selective too.

Cheers
	Toerless

---

From: Jon Crowcroft <[email-masked]>
Date: Tue, 04 Apr 2000 11:57:43 +0100

In message <[email-masked]>, Graham Klyne typ

 >>obvious or lacking in novelty.

prior art can be in the eye of the beholder

for example, i remember distinctly havign a discussio nwith a bunch of
cambridge university computer lab people about 
Noke Lick [TM] (sorry, Zero Click) technology based on eyetraxx ideas
(apologies to pat cadigan) -
basically, by using specular reflection analysis, its possibler to see
where on a screen someone is looking (quite easy) - by tracking this
over tiem as they browse, its possible to come up with a 
"signature" for when someone is about to click on "buy", and avoid
mouse use altogether

one of the grad students in cambrisdge on the nemesys project hacked
up a demonstrator (cool operating system work btw) - this would
predate a certain companies claim, and was certainly talked about in
public at a UK national, open workshop.... it is also
more obviosuly innovative, contains actual technology and
developement and testing time, and  is possibly not obvious (some of
the details at least are quite tricky)

i would claim that this undermines any system with clicks>0,
but some people might not....

 >>accepted art in the normal process of technology evolution.
 
the other problem with patents is that challenging a patent after the
fact is typically as expensive as the lawyers that the richest
companies are prepared to pay for

given the intention of patents (to avoid company secrets, and to
promote reward for genuine innovation), this is the real problem, and
reflects  a mainly US problem with the way that lawyers are usually
rewarded and not punished for litigation - a profit/loss share
approach to defending patents might make this a more level playing
field....or a professional peer review process

 cheers

   jon

p.s. can we get below 0 clicks? perhaps: one small delta
is for us to have to do a noke-lick to NOT buy something online...

p.p.s this mail was composed on 1/4/00, if not sent then:-)

---

From: Henning Schulzrinne <[email-masked]>
Date: Tue, 04 Apr 2000 08:51:21 -0400

> knowledge of prior art by "peers" is very selective too.

These databases are readily available and have been for years (inter
alia, the ISI (the other one) and databases licensable from IEEE and
ACM). If a patent examiner working in the area of networks does not
consult ITU, IETF and standard research conference publications, there
is no excuse. We expect any graduate student to know these sources. Peer
review will not identify all prior art, but more than it does now. As
far as I can tell (having been involved with a number of conferences), I
don't remember ever seeing an employee of the PTO show up at one of
these major conferences. Why not?

---

From: Masataka Ohta <[email-masked]>
Date: Thu, 6 Apr 0 10:04:20 JST

Graham;

> novelty in a claimed invention.

The Internet solves the problem.

Online business patents are, at large, ineffective and harmless.

We can have servers outside of US and there is no legislation (even
under US laws. note that the servers can serve yet another countries)
to make the servers illegal.

Clients in US may still be a target of a patent, if claims of the
patents do not cover servers and cover the clients only.

However, virtually no one can control downloading of software from
the servers to the clients at home.

As the Internet is not a collection of private IP networks connected
by NAT boxes, ISP has no knowledge nor responsibility on what their
customers are doing.

It's like copyright, so called, piracy, against which Holywood is
fighting seemingly in vain.

But, in this case, there is no problem of copyright violation.

The only effect of the patents is that they drive servers outside
of US and makes the Internet a lot more globally connected. :-)

							Masataka Ohta

PS

I don't protect this message by patents or by copyright. :-)

---

From: John Stracke <[email-masked]>
Date: Thu, 06 Apr 2000 12:08:17 -0400

Brijesh Kumar wrote:

> to it.".

At least in the US, at least sometimes, the examiners do at least some
literature search.  I remember being involved in a patent where the examiner
sent it back with an article clipped from the trade press.

--
/==============================================================\
|John Stracke    | http://www.ecal.com |My opinions are my own.|
|Chief Scientist |=============================================|
|eCal Corp.      |Among animals, it's eat or be eaten. Among   |
[email-masked]|people, it's define or be defined.           |
\==============================================================/

---

From: John Stracke <[email-masked]>
Date: Thu, 06 Apr 2000 12:11:49 -0400

> to make the servers illegal.

Mmm...that sounds like a grey area.  A company using patented tech to do
business in the US may be subject to US law even if the tech is not resident
in the US (under the same sort of theory used against Internet gambling).
Even if it's not true in the general case, a sufficiently expensive lawyer
might be able to convince the court that, since the Internet makes location
irrelevant, the location of the infringement is irrelevant.

---

From: Masataka Ohta <[email-masked]>
Date: Fri, 7 Apr 0 9:42:39 JST

John;

> in the US (under the same sort of theory used against Internet gambling).

Legislation logic around patent does not allow US patents applicable
to servers outside of US.

If US tries to change its law, companies in US may be affected by
US laws, which will drive servers and companies away from US.

> irrelevant, the location of the infringement is irrelevant.

that US patents are applicable even if both servers, clients and network
inbetween are all located outside of US?

							Masataka Ohta

---

From: Salvador Vidal <[email-masked]>
Date: Sat, 08 Apr 2000 13:15:54 +0200

Hi folks and all,

>fighting seemingly in vain.

When some irresponsable companies use copyrights like another marketing mix
element, promoting piracy in promotion and begining agresive campaigns
agains it when everybody use their products, it is very difiicult that
people take seriosly this issue!

It doesn`t not have any sense a system where some people don`t pay
copyrights not because money but to avoid that his friends will call him
idiot!.

With the general crash of protection systems I think that the copyrights
will be mainly driven in indirect way, by charging copyrights royaltties to
hardware products, telephone bills,..., some strong points of indirect way
are:

-It is more just that everibody pay, but is expected that the people that
pay now, pay much less becouse there are more people paying, so that
copyright owners dont use it to get more incomes.

-Telecomunications companies that get big profits thanks to webmasters
work, perhaps will now begin to PAY SOMETHING FOR THEIR WORK!

-Indirect incomes impulse copyrights owners goal of have as much audience
as posible, not limited like now by market ofert demand market decisions,
so in this point is worthy to impulse universal cultural access.
...

The weaks points that I see are:

-If rooyalties are based only on trafic, developers will increse their
efforts on products driven to the mass, usually with poor intelectual
value, so we will promote that Internet becomes a Huge garbage TV, the
products with hight intelectual value has small audience but it is worthy
to promote them.

-Indirect incomes give everybody equal treatment but there must be
exceptions, i.e. third world people, schools,..., to promote universal
access to the culture.

-Some people will think that is injust to pay royalties on their
telecomunications when they use telecominications service just for
cominicating with other people, so the amount that comes from comunications
between people must go to services to the comunity not to copyrights owners.
...

The current Internet culture of take things, transform, or not, them and
publish again, have some profits and bad things, like everything, to put
yourself front of culture and say this is not the way, simple does not work
but also don´t get the profits of this culture, so I think that copyright
concept must evolve from the static form, aplieed to finish works, to a
dinamic one for works in evolution, in order to been able to get the
profits of the current culture:

The intelectual work like a work in comun in evolution, evolution that get
that some products incrise their value and other decrease it, and the
market will do the natural selection of them. 

And to avoid the bad things of this culture: 

Mainly that someone gets incomes thanks to other work without reward.

So I think that copyrights will be mainly indiret and dinamic but require
many ajust in order to realy impulse progress, prosperity and culture.

Salva

******************************************************************
"Where money is the measure of everithing, it will be very dificult that
public matters where driven with justice and life with prosperity" ,
Copyright: Thomas More  ;-)
******************************************************************

---

From: John Stracke <[email-masked]>
Date: Sat, 08 Apr 2000 11:03:58 -0400

> inbetween are all located outside of US?

No, not that; but, if the server is outside the US and the client is inside, then
maybe.

--
/=================================================================\
|John Stracke    | http://www.ecal.com |My opinions are my own.   |
|Chief Scientist |================================================|
|eCal Corp.      |"Where's your sense of adventure?" "Hiding under|
[email-masked]|the bed."                                       |
\=================================================================/

---

From: Jon Crowcroft <[email-masked]>
Date: Sat, 08 Apr 2000 22:23:53 +0100

as ye sow, so shall ye weep...in reading this thread i guess i saw
several problems:

oxymoron alert
"thought...patent"

tautology alert
"sufficiently expensive...lawyer"

internet bogon alert
"find the server"

is a server where the ip address, DNS name, lat/long of the CPU,
memory, disk, or cache, transprent or otherwise is"

sorry,
all bets are off about this dicussion except in the presence of the
european union, where all bets are subject to VAT 

:-)

 cheers

   jon

---

From: Masataka Ohta <[email-masked]>
Date: Sun, 9 Apr 0 8:15:51 JST

Salvador;

Yes, they are individuals, not companies. Individuals can not be
effectively controlled with patent or copyright.

> will be mainly driven in indirect way, by charging copyrights royaltties =
> to
> hardware products, telephone bills,..., some strong points of indirect wa=
> y
> are:

Indirect way does not work.

If major form of distribution is through uncontrolled copying on the
Internet, which can not be illeagal if royalities are charged, it is
impossible to know the fair share of the royalties for each copyrighted
material.

							Masataka Ohta