Originally published at: http://boingboing.net/2017/03/01/alice-vs-cls-bank.html
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I am happy to let Google fight this battle for me.
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That’s a dangerous attitude.
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If the USPTO fails to give IBM a patent, and IBM sues them, they are a party and have to defend their action in court. They have to have their lawyers go to court and defend their not granting a patent. If they give IBM an poopy patent and somebody sues because there is prior art, USPTO is NOT a defendent in the action, it is between whomever and IBM. So there is a tendency to be very liberal in granting patents to well funded applicants.
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The US Patent Office just (in 2017!) awarded IBM a patent over out-of-office email
No, it didn’t.
(Disclaimer: I am a patent attorney - but I am not IBM’s patent attorney, I’ve had no role in this patent, and the first time I encountered any of this was 10 minutes ago in this BB post.)
Here’s the part of the independent claim that you missed:
in response to said determining that the current date is PRIOR TO the start date … attaching the extracted availability indicator metadata to the e-mail…
In other words:
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I tell my computer I’m going to be gone from, let’s say, March 15th through March 22nd.
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Someone emails me on March 3rd.
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In an outgoing reply to that message, my email client automatically attaches a notification like: “Please be advised that I will be out of the office from March 15th to March 22nd.”
This is a future-looking out-of-office notification. Do computers typically do that in 2017? No, they don’t. They notify you of the CURRENT out-of-office period, but not a future out-of-office period.
You may think that’s a trivial improvement, and that the patent system should not be awarding patents for very small incremental improvements like that. We can certainly have that discussion - but that’s a different assertion than “the patent office (in 2017!) issued a patent over out-of-office email notifications.” Because that’s not what the patent office did in this case.
Now, it’s true that the misunderstanding over the scope of this patent is partly because it’s poorly written: the specification provides very little help in determining the important part of the claim, what’s actually novel and significant. Many applicants, including IBM, have a terrible habit of writing their patents with no context and minimal explanation. They absolutely shouldn’t write them that way, I agree. These obfuscated and lazy patent-drafting practices harm the patent system and the public, I agree.
(And I don’t write my patents that way. My patents read: “Here is a conventional technique for solving a problem. Here are some disadvantages to that technique. Here is an alternative way of solving that problem, and here are the advantages of solving it that way.” That’s how practically every patent should present practically every invention.)
But it’s ALSO true that critics of the patent system, including the EFF, have a terrible habit of either failing to understand patents or intentionally mischaracterizing them, and therefore lying about the patent system with “look at this travesty” types of posts.
Stop doing that.
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Dude that’s total BS…you don’t sue the USPTO. That’s why its called patent prosecution, because from the time you file an application to the time it grants (years) you go back and forth proving why you should get a patent. And if you don’t get it then the decision is FINAL. There is no suing…Any company or person can attempt to invalidate and challenge the patent anonymously but submitting their arguments to the USPTO. IBM wouldn’t dare go after anyone because they are in bed with so many people they would lose all their business because they would effectively be suing their own customers.
And if you don’t get it then the decision is FINAL. There is no suing…
Well, that’s not true. People do sue the USPTO for improper rejections. Diamond v. Diehr is one example where an applicant (Diehr) sued the Commissioner of the Patent Office (Sidney Diamond) for wrongfully denying his patent.
What simonize fails to understand is that this is a routine part of the patent system that the USPTO has dealt with for its entire history. It has a staff of attorneys on hand to defend against these lawsuits, and no motivation to avoid it. Moreover, the person who’s making the decision to allow - the patent examiner - is completely insulated from that process, anyway.
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Correct, I should have stated, you can sue, but its unlikely.
This is top shelf commenting right here.
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It really is. I feel like @sfsdfd really put this whole thing to bed. The hell of it is that the main post will still be screaming from the homepage, while sfsdfd’s critical clarification will be hidden over here in the comments. This is how the internet fills with unreliable information.
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I will grant that you know much more about the whole thing than I do… I do dimly remember reading that there was a perception that patents had gotten easier after the USPTO was sued ~20 years or so ago, but I don’t remember the case (software patents?) It might well be that the article that I read was an advocacy piece rather than a neutral account.
And another thing:
On January 17, 2017 – yes, 2017 – the USPTO granted Patent 9,547,842 to IBM: “Out-of-office electronic mail messaging system.”
Stop summarizing patents according to the title. That’s not what the patent covers.
Look - on February 2nd, 2017, the patent office issued a patent with the title:
ENGINE
That’s the title, in all its glory. Is that what the patent covers? The concept of an engine? Any possible configuration of any engine that’s ever invented or ever will be? No, it simply covers one type of engine, which the broadest claim recites as:
- An engine comprising: an oil control valve which is built in a cylinder head, and which is configured to control a pressure of oil to be supplied to a variable valve mechanism via a camshaft; and a cam cap which is fixed to an upper face of the cylinder head, and which is configured to rotatably support the camshaft between the cam cap and the cylinder head, as a flow passage for the oil to be force-fed from an oil pump to the oil control valve, the cam cap including: a lateral passage which is formed inside the cam cap, and which is extended in a direction along the upper face of the cylinder head; and a downward passage which is extended downward from the lateral passage so as to serve as a downstream side flow passage of the lateral passage, and which is configured to guide the oil toward the oil control valve.
The claims define the scope of the patent. The title merely describes its general field of technology - much like this patent relates to the field of out-of-office messages, which of course it does.
This type of mischaracterization occurs over and over again. Are critics of the patent system intentionally lying when they post these breathless “look what just got patented!!” posts, or are they so badly misinformed that they don’t understand that the title does not define the scope of the patent? I mean, it’s one of the two, and they’re both bad.
Of course, the EFF did not issue any breathless proclamation over the travesty of the patent system issuing a patent for an “ENGINE.” Why? Because the EFF doesn’t care about patents in mechanical engineering - nor chemical engineering, nor electrical engineering. It only cares about patents in software, because it’s on this crusade to push back against software patents. Hence its frequent mischaracterizations about software patents.
Again: stop doing that.
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Well I prefer software patents to software copyrights…They nave a novelty requirement, they have shorter terms, and they provide the kinds of protection that copyrights specifically aren’t intended to grant. The more that people bend copyright to provide patent-like protections the more onerous they can become.
Arguably what we need is another form of IP for software. Quick and fairly easy to get, but providing protection for a very short period of time.
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Daniel Nazer addresses this in the EFF post:
The ’842 Patent describes technology that would have been stupefyingly mundane to a 2010 reader. A user inputs “availability data” such as a “start date, an end date and at least one availability indicator message.” The system then uses this data to send out-of-office messages. The only arguably new feature it claims is automatically notifying correspondents a few days before a vacation so that they can prepare in advance for a coworker’s absence. From a technological perspective, this is a trivial change to existing systems. Indeed, it is like asking for a patent on the idea of sending a postcard, not from a vacation, but to let someone know you will go on a vacation.
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Daniel Nazer addresses this in the EFF post:
“Patent awarded for a minor improvement to out-of-office email” is a very different headline than “patent awarded for out-of-office email (in 2017!)”.
The first is a point that we can argue.
The latter is sensationalized and absolutely not true.
Corey: this is fake news.
As I wrote above, we can definitely argue over whether this specific improvement should have been patented. And I can certainly raise a case for why it should be:
(1) It’s not trivial if it is a useful improvement (I certainly wish computers had been configured to do this all along);
(2) Computers don’t do that specific thing today (and no one has argued that they do); and
(3) Minor, incremental advances get patented all the time in every other field, and they are not only routine but totally uncontroversial.
But that is a topic for another post - one that isn’t fatally mischaracterized as you and the EFF have done here.
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That EMAIL Guy suing in 3… 2… 1…
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I prefer software patents to software copyrights… The more that people bend copyright to provide patent-like protections the more onerous they can become.
Completely agreed.
Copyright protests for artistic works. Patents protect functional utility.
99.9% of software is not created as a creative, artistic endeavor: it is created for its functionality, to solve a problem: to compress data, to transmit data accurately, to represent images, to serve web pages or database records… etc. It should be protected by patent, not copyright.
Oracle v. Google demonstrates the weird results of cramming software into the mold of copyright. It’s just a weird concept with extremely indefinite bounds.
Arguably what we need is another form of IP for software… providing protection for a very short period of time.
This is a frequent suggestion, but I’ve yet to see a persuasive argument as to why.
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—I think that it would be useful to more closely tailor the protections granted to the market for which they are intended to incentivize “progress of science and the useful arts.” The software market is one of rapid change and obsolescence. Copyright terms are even more obscenely long when we’re talking about a world where it is difficult to find machines that can run most 10 year old software. The length of time and amount of work required to get a patent are such that often any individual piece of software isn’t on the market by the time a patent would be granted. (although certainly follow on versions might use the functionality that had been protected with a patent) That is arguably part of the reason people have spent so much effort to try and protect software with patents, but the USPTO’s original decision that software constituted unpatentable mathematical equations was probably more important, at least at first.
Because patent trollies are real things. Patent abuse appears to be rampant in the software industry and trollies are everywhere and it’s expensive and tricky to sort out all the bits and pieces. Software patents encourage companies to sit on patents and aggressively enforce them rather than actually engineer something useful that uses the patented idea or perform any research and development activity at all. Because the patent system, as I understand it, is supposed to encourage and reward innovation, instead we have a system that rewards excessively litigious activity that appears to stifle and discourage many companies who are trying to produce real world goods and innovations. Because many software patents are ridiculous and full of prior art, others are so vague so as to appear to cover anything using computer technology. It’s a mess. That’s why we need something different for software patents. The company I work for (one that actually produces and sells software) has been under ongoing patent litigation from a trolley (some guy and his lawyer sitting on a patent since the early 90’s with no plan to actually produce or sell anything) for several years. It’s expensive, it distracts us from our real work of keeping our clients happy and producing new solutions. The trolley’s patent is incredibly vague, and he basically went after our entire industry (he’s sued our company and all of our known competitors in this space) so far without any success. The status quo for software patents is doing the opposite of it’s intended purpose. It’s stifling innovation instead of rewarding it.
Although it does appear to be a minor improvement over the typical out of office messaging functionality I personally feel that this whole patent system is nonsense. I think it primarily benefits patent lawyers. It stifles creativity because software companies have to spend ridiculous amounts of time and money buying off patent trolls or using stupid workaround to avoid infringing on somebody’s patent.
It’s all a huge waste of time designed to keep huge companies making money off old not very original ideas as well as allowing them to stomp on any competition.
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