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   Re: [xml-dev] US Patent 6,687,897

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Michael Kay wrote:

 > I find it completely bizarre that this kind of thing can get past the
 > "obviousness" test.
 > The US Patent Office is clearly not applying stringent enough criteria.
 > What I would like to know is, is it a conspiracy (protectionism for the
 > US software industry, jobs for the lawyers), or is it just incompetence?

I believe it's just that your definition of "obvious" and the legal 
definition are far apart.

Programmers are inventors by nature. They routinely replace algorithms, 
formats, languages, protocols, etc. with not quite interchangeable 
equivalents to improve performance, reduce overhead, expand 
interoperability, etc. More rarely, they create a new one of these 
things. So they view replacement by near-equivalents and creation of new 
alternatives as very different processes.

A patent lawyer's view of "obvious" is very different. According to 
http://www.bitlaw.com/patent/requirements.html, patent examiners test 
the nonobviousness requirement by seeing if prior patents can be 
combined to produce the claimed invention. They don't take an opinion 
poll of people skilled in the art. If the prior art does not include all 
the elements in the claim, it will not fail this test.

They will also consider whether the invention can be derived from an 
existing invention by simply substituting one "material" for another. 
Bob Wyman thinks this should stop patents like the one in question, but 
I don't see it. If the "material" substituted brings any measurable 
improvement to an existing process, then use of the material is 
patentable (or DuPont would have gone out of business long ago). An 
equivalent, I'm afraid, means almost exactly equivalent, like the 
substitution of one inert ingredient for another.

The comp.compression FAQ is instructive. Lempel and Ziv genuinely 
invented several new compression algorithms, some of which are in the 
public domain. But improvements to all of them have been patented. To 
even an ordinary programmer swapping out a linear search and replacing 
it with a hash lookup or a tree lookup is "obvious", the sort of thing 
programmers do every day. All such obvious substitutions are the basis 
of patents, one of which was used by Stac to obtain a $120 million court 
judgement against Microsoft.

I'm not a lawyer, either. But Henry Petroski's book, The Evolution of 
Useful Things, where he traces the patent trail of the paperclip, helped 
me understand that patent examiners don't (and can't) think like 

Patents stopped making sense to programmers the day that software 
patents were allowed. The fact that every day they seem to make less and 
less sense only means that programmers don't look at patents every day.

Bob Foster

 > Michael Kay
 >>Systems, methods and data structures for encompassing scripts
 >>in  one or more scripting languages in a single file. The
 >>scripts of a
 >>computer system are organized into a single file using Extensible
 >>Language  Markup (XML). Each script is delimited by a file
 >>element and
 >>the script's  instructions are delimited by a code element
 >>within each
 >>file element.  Other information, such as a name of the script and a
 >>functional  description of the script may also be included in
 >>the file
 >>using other XML  elements to delimit that information. The
 >>language in
 >>which a particular  script is written is also included within
 >>the XML
 >>format. When a  particular script is executed, the file is parsed to
 >>create a list of the  script names or of the functional
 >>descriptions of
 >>the scripts. One or more  scripts are selected and the code
 >>for those
 >>scripts is extracted from the  file and executed by the appropriate
 >>scripting process. The scripting  process that executes a particular
 >>script is identified from the scripting  extension attribute that is
 >>included in the XML format of the file."
 >>At very first glance, it appears to be another case of
 >>"wrapping common
 >>practice in XML tags makes it patentable".  Of course, there
 >>could be
 >>subtleties here that are more innovative than are apparent at first
 >>glance, but needless to say it's hard to have any faith that
 >>the USPTO
 >>would be able to tell the difference.


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