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   Re: [xml-dev] Another Microsoft XML patent

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* Ronald Bourret <rpbourret@rpbourret.com> [2005-06-06 02:16]:

> Michael Champion wrote:
> >On 6/5/05, M. David Peterson <m.david.x2x2x@gmail.com> wrote:
> >
> >
> >>I doubt any official or non official comment could (or should) be made
> >>by an MS blue badge 

> > It's quite true that IBM gets a very big chunk of money from
> >licensing its IP portfolio (1-2 billion $ per year?) and the other big
> >companies wish they could as well.  All major software companies AFAIK
> > encourage their employees to submit patent applications when they
> >come up with what appears to be a novel, non-obvious, and useful
> >technique.  Whether these are actually patentable is the USPTO's
> >business to determine.  If the patent in question is indeed bogus,
> >look to the USPTO's incompetence, not some evil plotting, for the
> >source of the problem.

> For what it's worth, my disgust here is primarily with the USPTO,
> which doesn't seem to have the expertise, wherewithall, or
> inclination to determine prior art or obviousness for software
> patents. (Goodness only knows how obviousness is defined. What's
> obvious to one person is magic to another.)

    You're right. Obviousness is difficult to argue.

> As Michael points out, this presents the software community with a
> pretty nasty Catch-22. If they don't patent, they expose
> themselves to risk. If they do patent, they expose everybody else.
    Hello, everbody. I'd like to take part in this conversation. It
    is an issue that causes me concern, and I don't often find it
    discussed by such level heads...

    I've often thought of the USPTO as more of a licensing bureau,
    less a peer review body. Patent's are like fishing licenses.

    Like a fishing license. You don't have to qualify for a
    fishing license, but you can't catch fish without one, and if
    your caught catching over limit, they take your license away. 

    My take has been that the USPTO will filter out that which is
    blidingly obvious, or was clearly invented by the Romans.

    I found an interesting article, however, that I'm currently
    reading. An interview with Todd Dickinson from 2000 who was then
    the director of the USPTO. In this page he describes a group
    within the USPTO that reviews applications:

    "About five years ago, because of an increase in the number of
        the [software patent] applications, which is now rather
        substantial, we had created a group - a special art unit
        called 705. Group 705 now has 40 or 45 examiners. We will
        probably increase that number.  All of those examiners that
        have come to our office either have computer science
        degrees, advanced degrees, or electrical engineering

    I was going to make the point that it would be an extraordinary
    organization that could deterine the novelty and obviousness of
    any idea or process in any scientific endeavour or business. And
    that the USPTO would politicize itself if it were to make more
    than a cursory examination, but they approve 67 percent of their
    appliations, meaning the reject 33 percent.
    They do make a determination, they do make an effort to review
    the claims, but I still feel that they must err on the side of
    caution. Mr.Dickinson goes on to say that of the 161,000 patents
    issued in 1999 only 600 were reviewed by Mr. Dickinson's Group
    705, so one must assume that the some patents made it though
    without the benefit of this special team of examiners.

    Which is to say, I think the notion of a federal bueracracy as a
    scentific review board is a flawed concept, and that it is hard
    for me to see the incompetence of the USPTO as the core of the

    Think of the other half of the United States Patent and
    Trademark Office, Trademark. When you register a trademark, the
    USPTO looks in their books to see if someone else is using the
    same trademark in your industry.
    They make a determination as to whehter your use of the
    trademark would confuse the public. If not, they issue the
    trademark. Such a decision is much easier to make, since the
    factors invovled do not vary greatly from trademark to
    trademark. A resonable set of standards can be established.

    To make a determination about the novelty and obscurity of an
    invention, idea, process is far more difficult. It doesn't
    surpise me that the USPTO sends through patents that shock those
    that live and breath the industy they affect.

Alan Gutierrez - alan@engrm.com
    - http://engrm.com/blogometer/index.html
    - http://engrm.com/blogometer/rss.2.0.xml


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