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   RE: [xml-dev] US Patent 6,687,897

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Some clever guy will always be able to find and patent some aspect that was
missed in the SIR.

The only sure way of identifying prior art is retrospectively, with
programmers reviewing patent applications before they're granted.

Can anyone imagine anything more boring or less suited to the temperament of
the typical programmer?


-----Original Message-----
From: Bob Wyman [mailto:bob@wyman.us] 
Sent: Sunday, 15 February 2004 5:49 AM
To: 'james anderson'; xml-dev@lists.xml.org
Subject: RE: [xml-dev] US Patent 6,687,897

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

	It may already be too late, however, the wise course of action
would be for the W3C or some other organization that cares about RDF
to begin the process of building a comprehensive SIR (Statutory
Invention Registration) that can be filed to block as many patents as
possible. As I've mentioned in earlier notes, the SIR should contain a
specification that attempts to record as much as possible of all the
possible applications of RDF and methods of application that anyone
can think of. The process of building the SIR should be done like with
other internet documents -- i.e. open, permanently recorded
discussions via mailing list, etc. so that the discussions themselves
(considered "published materials" by the PTO) can be used in
establishing prior-art for anything that slips through the cracks.
	bob wyman

-----Original Message-----
From: james anderson [mailto:james.anderson@setf.de] 
Sent: Saturday, February 14, 2004 8:19 AM
To: xml-dev@lists.xml.org
Subject: Re: [xml-dev] US Patent 6,687,897

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
> 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
> the nonobviousness requirement by seeing if prior patents can be 
> combined to produce the claimed invention. They don't take an
> 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
which has already been mentioned in this forum?
of 3 and 4: do they describe any improvement to
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
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
> 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
> ago). An equivalent, I'm afraid, means almost exactly equivalent,
> the substitution of one inert ingredient for another.

if any of the claims were to have used the word "by" in any sense
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
mechanism which accomplished a similar end. to the extent that 
lemelson's patent's mechanisms could be interpreted, they specified
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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