Developer Week in Review

Apple's PR juggernaut rolls through, patent legislation still has life, and P = NP continues to taunt.

Coming to you from 24 hours in the future, it’s this week’s Developer Week in Review.

All your news cycles are belong to us

We’re using the O’Reilly Tempro-Spatial Distorter to send you back news of Today’s’s iPad 2 launch before it’s even happened. Who could have predicted that the iPad 2 would have both a 3D Retina display and Smell-o-vision? But the real shocker had to be the announcement that the iTunes store was finally going to have the long-missing catalog of Up With People available for sale.

Ok, so we don’t have a time machine, and deadlines dictate that this will be going to edit before the Big Announcement today. I’m sure one or two other news outlets will be covering the event, so you can probably find out what happened sometime later this week. For those keeping score, this is something like the 3rd or 4th Big Announcement so far this year, and we’re only through February. It must be truly depressing to be anyone else in the industry, and have to compete with Apple’s PR machine.

Unnoticed in all of this is that Google has replaced their Gingerbread Man with a more insectile sculpture, as Android Honeycomb begins to appear in the wild. Remember folks, Honeycomb’s got a Big Big Byte.

New patents pending?

Once upon a time, I did an article on patent reform, and as part of it I interviewed a staffer in Sen. Patrick Leahy’s (D-Vt.) office, since Leahy sits on the Judiciary Committee. Ever since then, I get at least one press release a week from the Senator’s office about the never-ending progress of patent reform legislation (and with no opt out link …). I ignore the stuff most of the time, but this week I got notice that some very interesting provisions have been added.

The first is an item entitled “Create a pilot program to review the validity of business method patents.” It goes on to explain:

Many business method patents are of dubious validity because they are not truly inventive. This provision will create a temporary, limited proceeding at the USPTO to challenge business method patents.

So it looks like Bilski lives on, and maybe some of the truly junky software patents may finally get a second look.

The other item that caught my eye is: “End fee diversion at the U.S. Patent and Trademark Office; establish a revolving fund to ensure that funds collected by the USPTO can be used at the USPTO.” This is a long-standing sore point, in that the USPTO is regularly raided for cash, leaving them underfunded to hire examiners. This, in turn, leads to the junky patents mentioned above.

Of course, as the press release baldly states:

Congressional efforts to reform the nation’s patent system first began in 2005. The Senate Judiciary Committee has reported patent reform legislation to the full Senate in each of the last three Congresses.

In other words, don’t hold your breath.

P <> NP, at least for now

The world held its breath recently as word came that there may have been a breakthrough in the long quest for P = NP. The world started breathing again this week, as word came that the promising line of attack wasn’t so promising after all.

P = NP is one of the most vexing problems left in theoretical computer science, and also the one most likely to make a lay listener’s eyes glaze over. As assistance to anyone trying to explain P = NP to their mother (for whatever reason), may we suggest the following one sentence description, courtesy of Wikipedia?

Suppose that solutions to a problem can be verified quickly. Then, can the solutions themselves also be computed quickly?

This will almost certainly leave her just as confused as before, but will lead her to believe the $50,000 she spent on your CS degree was worth the money.

Got news?

We’re cranking up the power on the Time Portal, so next week we’ll be bringing you news of the 2011 WWDC and the results of the 2012 presidential elections. If you want to get us news the old fashioned way, please send tips or leads here.

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  • staff

    Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America. What it will do is help large corporations maintain their monopolies and kill their small entity and startup competitors (which is exactly what they intended it to do) and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs.

    Please see for a different/opposing view on patent reform.

  • Bruce Burdick

    This “patent reform” bill has been retitled “America Invents Act”. Changing the name doesn’t change the intent. S23 is a pro-big business bill designed to kill small entity patent enforcement.
    So, how does S23 propose to stop small businesses from protecting their inventions? The table of contents is reproduced below with the effect of each provision briefly described. See if you can detect what the provisions have in common.

    Sec. 1. Short title; table of contents.-lists the provisions.
    Sec. 2. First inventor to file. – switches to a system that gives the patent to the first inventor to file rather than the actual first inventor, because big businesses know about patents and how to quickly file their application so big business will have a huge advantage and can more easily steal inventions by simply filing quicker.
    Sec. 3. Inventor’s oath or declaration – allows big business to file in the name of the business without having to get the inventor’s signature, so that big business won’t have to negotiate with inventors and can screw over its employee inventors and screw over university researchers and more easily steal inventions.
    Sec. 4. Damages – decreases damages for deliberate infringers like big business and makes damages much harder and more expensive to prove as that forces small inventors out of court due to costs so that big business can more easily steal inventions. This is going in the wrong direction. We should instead be trying to increase damages and make infringement litigation less expensive for inventors.
    Sec. 5. Post-grant review proceedings – allows continual expensive challenges to patents with resultant delays in related patent litigation so that big business has multiple avenues of attack and small inventors cannot afford to defend their patents so big business can more easily steal inventions. We should instead be making patents more certain and less susceptible to challenges.
    Sec. 6. Patent Trial and Appeal Board – Eliminates interferences, which determine who the actual first inventor is since they allow a real first small inventor to get the patent rather than a big business first to file second inventor so big business can more easily steal inventions. We should instead be simplifying and keeping interferences.
    Sec. 7. Preissuance submissions by third parties – allows big business to gum up and delay small inventor patent examinations on small inventor patent applications by submitting alleged prior art and forcing examiners to delay normal patent application processing to look at and consider such submissions so small inventors will not get as many patents and big business can more easily steal inventions.
    Sec. 8. Venue – allows big business patent infringers to transfer small inventor patent infringement cases out of low-cost,pro-patent forums to an high-cost, anti-patent forums so small inventors patent enforcement can be more easily defeated so big business can more easily steal inventions.
    Sec. 9. Fee setting authority – locks in super high patent fees so that small inventors are priced out of the patent system and big business can have it to themselves and more easily steal inventions.
    Sec. 10. Supplemental examination – allow patent owner to seek further examination while not letting the results to cure any inequitable conduct or misconduct, so big business patentees correct their patents, but small businesses which cannot afford the cost will not, so big business can more easily steal inventions.
    Sec. 11. Residency of Federal Circuit judges – removes life tenure of CAFC judges so that big business lobbyists can get them replaced if they turn out to be against theft of inventions so that big business can more easily steal inventions.
    Sec. 12. Micro entity defined – defines a new more restrictive type of small entity so that reduced fees can be more limited and fees raised for small businesses to limit the number of patents they can afford so big business can more easily steal inventions.
    Sec. 13. Funding agreements – decreases the amount of large Government contractors’ licensing revenue going to Govt and increase amount going to pay contractor’s R&D costs, as these contractors are generally big businesses and this gets the taxpayers to pay for their R&D so big business contractors can more easily steal inventions that taxpayers funded.
    Sec. 14. Tax strategies deemed within the prior art – rules out patents for inventions involving tax strategies, without defining what a “tax strategy” means or what portion of the invention must be a tax strategy, so everyone can more easily steal inventions involving lowering of taxes. This means that people who devise tax lowering strategies which are useful, new and non-obvious are not to be rewarded, so they will be required to keep their strategies secret. This also opens up any patent which might result in a tax saving to be attacked as a tax strategy and invalidated, so infringers can more easily steal inventions.
    Sec. 15. Best mode requirement – eliminates failure to meet the best mode requirement as a defense to patent infringement – this is the one provision in the bill that favors small inventor patentees, indeed all patentees. Big business wants it so that big business can obtain patents without disclosing their best ways of making the patented invention, that is so that big business can “hide the good stuff” and disclose junk and still get a valid patent. That will favor all patentees as it removes a ground for challenging patents, but makes patent disclosures less beneficial.
    Sec. 16. Technical amendments. These are mostly to remove limitations on correction of errors in patents even if done with deceptive intent. These will allow purchasers of patents to correct errors even where the applicants or prior owners lied about various things such as inventorship, foreign filings, etc. The first such “technical amendment” is to permit big business to lie about inventorship name an inventor and still correct the defect later when they are caught so they can more easily steal inventions without penalty. The second is to allow foreign filing licenses to be granted retroactively to patentees that deceptively file applications in foreign countries without a foreign license.
    Sec. 17. Clarification of jurisdiction. This merely clarifies the exclusive jurisdiction of the US District Courts and CAFC relative to patents.

    Yes, what they have in common is to allow big businesses to more easily steal inventions. Small inventors and startup businesses are where new industries arise. Big businesses generally start small with a great new idea and protect that idea while they begin to grow, develop new ideas, protect those new ideas while they grow and expand, and eventually get to be major players in their field, at which time they now have to switch grears and try to maintain their dominance. One way to maintain dominance is to not let any new small businesses become big. Stealing their inventions and then sending them overseas to be produced at super low wages is one of many ways. Patents are an obstacle to that practice and an equalizer since the patent does not care if the alleged infringer is big or small, only whether it infringes or not. So big business tries to make patents expensive, make infringement suits expensive and minimize damages so small businesses lose the benefits of patents but big businesses keep the benefits. Reduced fees for small entities is one way the patent system tries to equalize things. S23 seeks to minimize fee reductions. Injunctions is another, as an injunction does not care whether the party enjoined is large or small, but rather only whether the injunction is obeyed. S23 seeks to minimize injunctions. Enhanced damages for deliberate infringement is another equalizer. S23 seeks to minimize enhanced damages. Forcing the patent to be filed in the inventor’s name is another equalizer, as it forces big business to negotiate with inventors. S23 seeks to eliminate that requirement. Giving the patent to the first inventor rather than the first big company to file a patent application is another equalizer. S 23 eliminates that equalizer.

    In short S23 is a big business bill designed to keep big businesses big by allowing them to more easily steal inventions from small businesses. We have explained how. Next we want to explain what real patent reform would look like, and it is nothing like S23.

    Overall, the changes small entities need include:

    1. Speed the time it takes to get patents and decrease their cost.
    2. Make the PTO more responsive to small entity needs. For several years now the PTO has been noticeably hostile to our needs.
    3. Restore the ability to get injunctions.
    4. Make it easier, not harder, to get enhanced damages and willfulness findings. Otherwise, large infringers have no incentive to stop stealing inventions, putting more strain on the courts and jeopardizing our ability commercialize our inventions.
    5. Restore the inadmissibility of settlements as evidence for determining reasonable royalty. Otherwise, pre trial settlements are less likely to occur, putting further strain on the courts.
    6. Tighten the standard for granting a reexam. The burden should be on the requestor, not the PTO or the patentee. The present system makes the PTO adverse to the patentee. Instead, the system should put the burden on the requestor to prove invalidity with the PTO in a neutral position so as to avoid bias. Such an approach would also minimize the demands on the PTO. If small entities cannot rely on their issued patents after fighting for years to get them, we cannot get funded and we will no longer innovate.
    7. Ensure future hearings on the bill focus on small entity testimony so as to overall offer a balanced view between large and small entities.
    8. In general, level the playing field for small entities so large competitors must respect our property rights.
    9. Increase penalties for large firms who develop a track record for infringing the patent rights of small firms.

    As it now stands there is no credible threat to large firms to not infringe. If infringers are caught and lose a patent infringement case (which is getting rarer all the time), they simply pay a reasonable royalty, which they would have to do if they were licensed anyway. S23 would make this situation much worse, however by introducing new features designed to let big business more easily steal inventions. Without injunctions and triple damages for example, we do not have a fair chance of commercializing our inventions. Any inventor who has been through the system knows better the second time around than to even start. That is why small entity filings at the Patent Office are significantly down and first office action abandonments substantially up.

    Please help us create a patent system that is fair and transparent for all entities, large and small. S23 is a disaster for small business creativity. It is a job-killing piece of legislation that itself needs to be killed so jobs can be created here in America rather than sent overseas because the American inventions which are created by American ingenuity make new American jobs possible should not be stolen from American small inventors so easily. Congress should be helping keep American jobs not helping them get stolen in an unwise and foolish attempt to appease big business lobbyists.