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   Re: [xml-dev] US Patent 6,687,897

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On Friday, Feb 13, 2004, at 23:03 Europe/Berlin, Bob Foster wrote:

> 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.

6,687,897 has 27 claims.
of 1 and 2: do they describe any improvement to even just the prior art 
which has already been mentioned in this forum?
of 3 and 4: do they describe any improvement to WD-html-in-xml-19981205 
and those of its successors prior to 20001201?
of 5 through 14, 17, 18, 19: do they describe any improvement to 
WD-xml-961114 and those of its successors prior to 20011201?
of 15, 16: aha! these claim the use of a list menu to effect the 
selection from a multiplicity of the script options.
of 20 and 22 through 27: do they describe any improvement to 
WD-xml-961114 combined with WD-DOM-971009 and their successors prior to 
of 21: aha! this claims an improvement to WD-html-in-xml-19981205 etc. 
which puts script elements directly under the root element.

hmm, 15, 16, and 21. is that the invention?

> 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.

if any of the claims were to have used the word "by" in any sense other 
than generic agency, there might be some argument for "improvement". 
the claims are all "that" something is done. none of them describes 
either a process or a mechanism. patents which claim nothing more than 
"that" cannot meet a usefulness requirement. where they claim no 
mechanism, it is not possible judge usefulness, as one cannot judge a 
non-existent mechanism.

the recent ruling in the automatic identification / lemelson case[0] 
points out at how this issue will make patents of this sort both very 
hard to defend, and an embarrassment to both the filing agent and the 
examiner. one reason the lemelson foundation's income stream is likely 
to come to an abrupt end, is that the purportedly infringing products 
do not embody the claimed mechanism. it was not sufficient to claim any 
mechanism which accomplished a similar end. to the extent that 
lemelson's patent's mechanisms could be interpreted, they specified the 
extent of the claims. another reason lemelson failed, is that his 
patents do not enable a practitioner to carry out the invention. as 
6,687,897 claims no mechanisms beyond those described in 
standards-track documents at the time of its filing, it will be 
entertaining to see an attempt to enforce it.

rdf/owl are now recommendations. i can't wait to read about the next 
wave of patents.



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