Join 3,513 readers in helping fund MetaFilter (Hide)


Don't Bother Being Specific
June 25, 2013 7:47 AM   Subscribe

On appeal, the Federal Circuit has upheld Ultramericial's patent on the process of users viewing video ads online in order to view content. The court ruled that the abstractness of the patent does not invalidate it.

A key statement highlighted by Arstechnica:

This breadth and lack of specificity does not render the claimed subject matter impermissibly abstract. Assuming the patent provides sufficient disclosure to enable a person of ordinary skill in the art to practice the invention and to satisfy the written description requirement, the disclosure need not detail the particular instrumentalities for each step in the process.

It may go back to SCOTUS.
posted by juiceCake (37 comments total) 2 users marked this as a favorite

 
Commentary on Hacker News suggests that this was an entirely expected result from the U.S. Court of Appeals for the Federal Circuit.
posted by blue t-shirt at 7:57 AM on June 25, 2013


So can I just go ahead and patent the abstract concept of "beaming ads directly into a person's brain," and get rich in 35 years when someone else actually puts in the work and figures out how to do it?
posted by showbiz_liz at 8:09 AM on June 25, 2013 [11 favorites]


The patent system has flaws, but that issue is separate from the soundness of the court's reasoning.
posted by Teakettle at 8:11 AM on June 25, 2013 [1 favorite]


So is there anything stopping me from patenting the idea of sending written messages to people on the Internet, or charging money for things via a website?
posted by Holy Zarquon's Singing Fish at 8:16 AM on June 25, 2013


the Federal Circuit has upheld Ultramericial's patent on the process of users viewing video ads online in order to view content

Sort of. It's really important to bear in mind the procedural posture of this case. What the Federal Circuit actually did was reverse the district court's decision regarding a motion to dismiss the case under Rule 12(b)(6), basically the earliest stage in the litigation. The patent could still be invalidated by summary judgment, at trial, by a motion for judgment as a matter of law after trial, or on appeal after any of those things.

It's also important to bear in mind that "This decision does not opine at all on the patentability of the claimed invention under the substantive criteria set forth in §§ 102, 103, and 112." Section 112 is where specificity and (over)breadth are judged.

Don't Bother Being Specific

That's not what the Federal Circuit said at all. In fact, it noted that:
This inquiry focuses on whether the claims tie the otherwise abstract idea to a specific way of doing something with a computer, or a specific computer for doing something; if so, they likely will be patent eligible. On the other hand, claims directed to nothing more than the idea of doing that thing on a computer are likely to face larger
problems.
...
At bottom, with a claim tied to a computer in a specific way, such that the computer plays a meaningful role in the performance of the claimed invention, it is as a matter of fact not likely to pre-empt virtually all uses of an underlying abstract idea, leaving the invention patent eligible.
Slip op. at 23-24. And with regard to the particular invention at issue:
The claim does not cover the use of advertising as currency disassociated with any specific application of that activity.
...
In addition, Figure 1, alone, demonstrates that the claim is not to some disembodied abstract idea but is instead a specific application of a method implemented by several computer systems, operating in tandem, over a communications network:
...

The court also notes that the claims in this case are not highly generalized. Instead, the ten specific steps in the claim limit any abstract concept within the scope of the invention.
Slip op. at 27, 28, 31.
posted by jedicus at 8:19 AM on June 25, 2013 [14 favorites]


I feel like I'm failing morally here.

I loathe patent trolling, in all its forms... I thought. But I must admit I'd like to see a chilling effect on interstitial video ads.
posted by reprise the theme song and roll the credits at 8:20 AM on June 25, 2013 [7 favorites]


So can I just go ahead and patent the abstract concept of "beaming ads directly into a person's brain," and get rich in 35 years when someone else actually puts in the work and figures out how to do it?

No. First, your application would almost certainly fail § 112's enablement and written description requirements. Second, patents have a term of 20 years from the time of filing. It would have been expired for 15 years by then.

So is there anything stopping me from patenting the idea of sending written messages to people on the Internet, or charging money for things via a website?

Yes, §§ 101, 102, 103, and 112.
posted by jedicus at 8:21 AM on June 25, 2013 [3 favorites]


Are you upset because it is abstract or because it is obvious? The real problem has been the failure in finding and applying the proper prior art to so many of these garbage patents.
posted by caddis at 8:25 AM on June 25, 2013


It may go back to SCOTUS.

Maybe. More likely is that the Supreme Court takes up CLS Bank and the course of this case at the district court or on appeal to the Federal Circuit following further district court litigation is altered by that Supreme Court decision. The Federal Circuit's CLS Bank decision had ten judges and seven decisions, none of which received majority support. That's as close to a circuit split as the Federal Circuit gets.
posted by jedicus at 8:26 AM on June 25, 2013 [1 favorite]


Are you upset because it is abstract or because it is obvious? The real problem has been the failure in finding and applying the proper prior art to so many of these garbage patents.

Neither the district court nor the Federal Circuit have even got to the issue of obviousness yet. The defendants pushed early and hard on the issue of patentable subject matter. Although the case was filed some years ago, it's really in its earliest stages (before discovery, before pre-trial motions, before trial, before post-trial motions, before "normal" appeals). It could very well be that the patent will be easily invalidated on the basis of prior art, obviousness, or any of the § 112 requirements. Or that, based on an actual evidentiary record or a new legal standard with regard to computer-implemented inventions, it will even be invalidated on the basis of § 101 at a later stage in the litigation.
posted by jedicus at 8:30 AM on June 25, 2013 [2 favorites]


Patents: utterly fucking worthless and failing to achieve any useful goal whatsoever.

The sooner they are gone the better.
posted by Artw at 8:52 AM on June 25, 2013 [3 favorites]


The question to me is very simple - how does something so blatantly obvious ever get approved in the first place? Why is there even a need for prior art for something that's not in any way a technical innovation?

The fact that hundreds of thousands of legal dollars have already flowed and this question hasn't even been allowed to be discussed yet does not convince me that the patent system and the legal framework around it is not terminally broken and stupid.
posted by lupus_yonderboy at 8:52 AM on June 25, 2013 [1 favorite]


Patents: utterly fucking worthless and failing to achieve any useful goal whatsoever.

That's... a little extreme.
posted by xbonesgt at 8:53 AM on June 25, 2013


What valuable knowledge is being preserved for the ages? What useful innovation is being encouraged?

Scrap the fucking lot.
posted by Artw at 8:54 AM on June 25, 2013 [1 favorite]


> Patents: utterly fucking worthless and failing to achieve any useful goal whatsoever.

It's really only software patents and business method patents that are worthless. All of these ridiculous cases that you see regard one or the other.
posted by lupus_yonderboy at 8:54 AM on June 25, 2013


But you know, as a holder of two patents, if I were give a vote: "Keep the current system, or scrap all patents" my hand would fair LEAP to the "KILL ALL PATENTS" button.

What societal good do they really do? Do I really care if one industry giant makes a little less and others make more? Not in the slightest.
posted by lupus_yonderboy at 8:56 AM on June 25, 2013 [2 favorites]


All of these ridiculous cases that you see regard one or the other.

I assure you that this is due to a combination of selection bias (i.e. what media you consume and what stories they report on) and confirmation bias (i.e. what you pay attention to and remember). There are plenty of non-software, non-business method patents that are "ridiculous" to those in the relevant field.

And as it turns out, the same policy changes that would address problems in one area would address problems in the other. Software and business methods are not special.
posted by jedicus at 9:03 AM on June 25, 2013


> There are plenty of non-software, non-business method patents that are "ridiculous" to those in the relevant field.

Some examples would be interesting!

Let's take as an example from the software patent side the Blackberry patent suits - for example, RIM ended up paying over half a billion dollars to NTP, even though the patent office rejected all of NTP's patent claims (source).

What's a corresponding example from non-software patents?

> Software and business methods are not special.

I can't really address business methods patents - but software patents are in effect special, if only because the patent office has never acquired the institutional knowledge to have the slightest competence at being able to tell "obvious" from "non-obvious" in the software field.
posted by lupus_yonderboy at 9:15 AM on June 25, 2013 [1 favorite]


Software and business patents are "special" in that they are only "inventions" by analogy. There are no discrete mechanisms in software which can be replicated and sold other than the code, which is protected by copyright instead of patents, and business methods are literally ideas, with no physical manifestation at all.
posted by Holy Zarquon's Singing Fish at 9:17 AM on June 25, 2013 [2 favorites]


There are no discrete mechanisms in software which can be replicated and sold other than the code ... and business methods are literally ideas, with no physical manifestation at all.

Lack of physical manifestation is the case in any patent with method claims, for example methods of making new chemicals, drugs, alloys, etc. The patent law has long referred to "any new and useful process, machine, manufacture, or composition of matter" (emphasis added).
posted by exogenous at 9:35 AM on June 25, 2013


Absent any good examples of non-software/business method patents that are clearly abusive, we're talking in a vacuum here... I'm not arguing that they don't exist, I have no idea one way or the other.
posted by lupus_yonderboy at 9:41 AM on June 25, 2013


Some examples would be interesting!

Look at any patent application that gets successfully rejected by the PTO (there are more than you'd think) or any patent that gets invalidated in court, then ask someone with the appropriate background. Mine is in computer science, or it'd be easier to come up with specific examples. I can tell you that Pentel wasn't too happy about this patent on a pen with a cushion grip. There are of course the classics: the method for exercising a cat with a laser pointer, the method for swinging on a swing, and the device for kicking the user in the rear.

There are lots of "me too" drugs in pharma that get patented that the "pioneer" drug companies aren't happy with. No doubt there are lots of chemists that feel that those follow-on drugs are obvious in light of their own work.

There are no discrete mechanisms in software which can be replicated and sold other than the code, which is protected by copyright instead of patents

Copyright and patents protect different things entirely. Copyright cannot protect functionality, and patents protect only functionality. One might as well say that because if someone punches you that you can sue them in civil court that the criminal law is unnecessary. Or that because we have laws against theft we don't need laws against destruction of property, since the laws against theft already protect property.
posted by jedicus at 9:54 AM on June 25, 2013 [1 favorite]


Absent any good examples of non-software/business method patents that are clearly abusive, we're talking in a vacuum here... I'm not arguing that they don't exist, I have no idea one way or the other.

"Clearly abusive" is a pretty high standard and not well defined. But a fair number of patents get found unenforceable for inequitable conduct (what used to be called "fraud on the Patent Office"). That's pretty abusive. And many of them are not software or business method patents.
posted by jedicus at 9:56 AM on June 25, 2013 [1 favorite]


Exhibit #245654 in evidence of the insanity of our intellectual property law.
posted by Mental Wimp at 10:15 AM on June 25, 2013


> Look at any patent application that gets successfully rejected by the PTO

Patents that are rejected are evidence that the system is working!

> I can tell you that Pentel wasn't too happy about this patent on a pen with a cushion grip.

"More particularly, the invention relates to a writing implement grip including a responsive polymer designed to provide individuals with a soft and individually conforming hand and finger surface."

This isn't just "a pen with a cushion grip". The idea seems pretty patentable to me - but more, I can't find any indication of legal action or costs when I search. Is this really a half-billion dollar issue?


> There are of course the classics: the method for exercising a cat with a laser pointer, the method for swinging on a swing, and the device for kicking the user in the rear.

Who cares? Why are these patents significant to anyone at all? Did they cost anyone money? Aren't they just a joke?

Let me remind you that the Research In Motion patents involved a two-thirds of a billion dollar payout to a company whose patents weren't even valid. How are the examples you give even remotely comparable?
posted by lupus_yonderboy at 10:18 AM on June 25, 2013


If you read this comment before going on to others, you need to pay me.
posted by dances_with_sneetches at 10:20 AM on June 25, 2013


Reading the Pentel patent in detail, it seems very specific and non-obvious - not just a "a pen with a cushion grip".

"It is still another object of the present invention to provide a grip wherein the viscoelastic hand/finger surface is a viscous liquid material contained within an elastomeric bag."

The idea of putting a liquid cushion inside a springy bag around a pen seems pretty ingenious to me. Is this really "obvious" to any pen engineer? If so, where are the examples - in any field?

Compare and contrast to the idea of "showing a commercial before showing content". Surely each and every movie you go to has exactly this structure - trailers and these days (boo!) advertising before each film? How is this not "obvious" even to a non-engineer?
posted by lupus_yonderboy at 10:25 AM on June 25, 2013


The hilarious thing is how specific they get with things that aren't actually part of the idea being put forward. The patent only covers offering media that's available for purchase elsewhere, and where the viewer has to log in with a username and password before watching the ads. So Hulu isn't covered (no login necessary) but Hulu Plus is, except not for exclusive series unless they're also being sold on DVD.
posted by Holy Zarquon's Singing Fish at 10:30 AM on June 25, 2013


> The hilarious thing is how specific they get with things that aren't actually part of the idea being put forward.

Nu-uh, the specificity makes the patent more likely to be valid, not less.
posted by lupus_yonderboy at 10:33 AM on June 25, 2013


In theory, but here it comes off as saying "oh, and the website has to have a blue background." It's detail for detail's sake, rather than making the idea more specific.
posted by Holy Zarquon's Singing Fish at 10:37 AM on June 25, 2013


The detail in a well-structured patent isn't just for its own sake - these details need to contribute to the value of the invention.

Look at the viscoelastic grip patent. The details: "a viscous liquid material contained within an elastomeric bag" aren't there just as filler - they are the very essence of the invention. If that had simply been a patent for "a plastic grip on a pen" it's almost certain that the patent would have been ruled invalid, if only because of prior art.

In this case, I absolutely agree with you that those specific details appear to add nothing at all to the original idea.
posted by lupus_yonderboy at 10:43 AM on June 25, 2013


To expound on lupus_yonderboy's comments above: The reasoning behind patents made a lot more sense back when the US population was 3.9 million and only half of them could even read (e.g. in 1790). But now we have 316 million people with a 99% literacy rate. Almost one third of those people hold a college degree. More than one third of those degrees are in STEM fields. And those people are able to exchange massive quantities of data in real time with the entire world.

Think about that: the population of people with at least an undergraduate-level degree in STEM fields is about 10 times the entire population of the United States when Congress passed the first actual patent law.

Patent law was created for a different world. It appears it causes more economic harm than good, and that 20-year monopoly on the patent seems to, more often than not, actually slow down the progress of the useful sciences. They have utterly failed to keep up with the times.

Jedicus is injecting some much-needed perspective that the post at large misses, but the patent system still ought to be torched.
posted by Vox Nihili at 10:49 AM on June 25, 2013 [1 favorite]


Has anyone lodged a patent on the process of lodging patents yet?
posted by Lanark at 10:55 AM on June 25, 2013


It's been attempted
posted by exogenous at 11:00 AM on June 25, 2013 [4 favorites]


If you read this comment before going on to others, you need to pay me.

Totally honest, when I read something like this in a patent or copyright thread, I get the urge to go to that person's house and throw a penny at their head really hard.

They got paid for it, but they're not going to enjoy it.
posted by mephron at 1:04 PM on June 25, 2013


I'm raking in royalties on my "Abstract Mouse Trap Improvement Method"
posted by wcfields at 1:32 PM on June 25, 2013


said some guy on Twitter, "Patents are Pokemon for lawyers"
posted by RobotVoodooPower at 5:39 PM on June 25, 2013 [1 favorite]


« Older There are two kinds of people in the world: those ...  |  Save Points is an essay about ... Newer »


This thread has been archived and is closed to new comments