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Then if its not innovative - show me the prior art ? There is none - so it's innovative under law - regardless of whether I agree or not. Amazon patented an innovative process unthought of at the time - the fact you apply retrospectivity to it now and look at it as ridiculous does nothing to prove it was not innovative back in 1998. If you thought of this process - would you be happy not to charge Amazon if you patented it ? Lets assume you didn't patent it and now its used by everyone on the planet - would you sit back and think "I wish I had of patented this so I could make millions" ? Again, they're the questions you need to ask because in my view it's a capitalist question over and above hating patent rights. If you didn't choose to patent it and someone took advantage of you - then in every country but America - they would have the rights (as has happened before). America relies on first to invent - but its a big ask and its being abolished in changes passed by congress to fall in line with first-to-file.


In the case of one-click, it's first important to note that in addition to prior art, a patent must also pass the obviousness test. One-click does not. You may not be a developer, I don't know, but I know any developer here could implement one-click in a day.

Patents are not intended to be a lottery rewarding insight. Patents protect development effort. One-click fails that test.

But in terms of prior art, Jeff Bezos and Tim O'Reilly backed BountyQuest in 2001 as a forum for researching prior art for patents. They couldn't monetize it, so it shut down in 2003 - but not before O'Reilly received what he calls a "killer piece of prior art" on the one-click patent, which he has on his bookshelf in case "Amazon loses its senses and sues someone". [http://openp2p.com/pub/a/oreilly/ask_tim/2003/bountyquest_10...]

The point here is not that your example is wrong. Where you go wrong is assuming that a patent granted on software is anything like a useful mechanism to support innovation.


But again - "i know any developer her could implement one-click in a day" and indeed a huge number of inventions could be implemented in a day. But you are again applying retrospecitivity (at least in my mind) - you need to remove that. Just because something is simple - doesnt mean it is not innovative. You contend that simply because something is simple that therefore it fails the test of obviousness - but that is not true and it's right that it's not true.

The test is asking whether the invention is an adequate distance beyond or above the state of the art. The state of the art at the time had no idea of such a simple one-click method - if it did - why wasn't it invented ? The fact it can be implemented so easily is irrelevant to fundamental idea that its innovative, non-obvious and unique. The best ideas are usually the ones no one see's and yes I am a front-end dev so I deal with more interaction components than anything.

Patents do not protect development effort - they protect novel, non-obvious and useful concept's. If they protected development effort - it would be a requirement to actually develop the idea and there is no such requirement and indeed many inventions wouldn't be possible to protect if such a requirement existed - that is, you must fully develop the invention before being granted protection. You're contention that because something is simple infers that its not patentable is incorrect in my mind.


I am utterly flabbergasted to discover that you are right with respect to a working model. [http://www.businessweek.com/articles/2012-08-09/startups-new...]

However, I think I don't "need to lose" my opinion that innovation consists of more than saying "put a grid of buttons on a larger screen than most phones" or even "click one link to get to an order screen". You're welcome to your view, although I question your ability to understand what innovation is. I don't issue arrogant ultimata that you "need" to lose your attitude. I just think you'll fail if you live your life that way.


And I totally do agree with you that some patents are totally absurd - but I reject your notion I don't understand what innovation is. The problem is - innovation as a concept and innovative step under law are two completely segregated idea's. The language and their use are unfortunately bipolar.

My point is - the unfortunate way that patent law currently works is - you are a doomed if you have something innovative that is patentable - not to patent it because you are most likely going to invest a huge level of resources developing it only to have someone copy it later without anything to fall back on. You might not agree with the patent system, you might hate the way it currently works (and I agree with this notion) but you are stuck with it and you aren't protecting your business from an intellectual property stand point - or providing adequate shareholder return if you don't seek to protect it.

You will do hundreds or thousands of hours developing, fixing and perfecting what could be an amazing idea - you will (maybe) get lots of fresh VC investment and take money from your parents, friends and family all who believe in you - only to push it to market and have someone copy it in a flash and reproduce it without question. What to do then ?


Granting a monopoly on insights does not benefit society. Granting a monopoly on non-obvious inventions in return for the knowledge to replicate it does benefit society. Pharmaceuticals take years and millions of dollars to develop. Pinch-to-zoom took a moment of insight and a day of development work to prototype.

Apple's victory in this case is a negative for society.


> Just because something is simple - doesnt mean it is not innovative.

Just because something is innovative doesn't mean it isn't inevitable.

I believe capacitive touchscreen interfaces like the iphone's were inevitable. In fact, pinch to zoom was widely demoed before the iphone's launch. That doesn't invalidate the patent, but it does invalidate the idea that without apple it wouldn't have been invented.

Should the first on a market that was going to arise anyway get the monopoly rights on that market? If we were talking about a 5 year patent I could begrudgingly accept it, but to see the touchscreen device market chained to apple's whims for two decades cannot be anything but bad for the customer.


The patent doesn't cover the idea of using pinch to zoom. Patents are not on features or on ideas. They are on implementations.

Thus someone else demoing pinch to zoom using a different implementation is completely irrelevant to this discussion.

You guys are trying to redefine patents in order to argue that they should be "reformed"!


No, i think they should be abolished, not reformed, at least in the case of software. While they may benefit the megacorps like apple, they seem to be only doing harm to the industry as a whole.

By the way, patents don't cover implementations, they cover methods. A method can be so generic that it covers all possible implementations.

Specifically, apple's 915 patent seems to cover two things: determining whether you're in scroll or zoom mode based on the number of discrete inputs on the screen, and also while zooming rubberbanding the content if zoomed out too much. The second claim is something you could replace with some other solution (and samsung did that in a software update), but the first one seems generic enough that it covers all sensible implementations of the concept.

http://www.google.com/patents/US7844915.pdf


I don't know any programmer who could implement one click in a day.

You think that it is just "checking out with a single button press", but that's not what the patent covers.

This is the fundamental problem with the anti-patent position. It is based on a lie.

The lie is the claim that patents give the "right" to use "features", like checking out with one click. They do not.

The One-Click patent, for instance, spends a great deal of time talking about fraud.


You're overly-focused on the existence of prior art. Simply being the first to do something shouldn't automatically give you the right to prevent anyone else from doing it. That philosophy, applied consistently, would lead to ridiculousness.


Because that is what patent law is focused on. And yes - that's exactly why is ISNT applied consistently because only things worth patenting are filed. If you think you have a billion dollar idea (and you may have) - and no one has thought of it - are you suggesting you simply tell the world and expect everyone to play nice ? The only way to prove something is unique is if nothing is available in the public domain or nothing is filed before hand. I'm in no way suggesting the patent system is great (read above) - but removing it entirely like this article suggests is also wrong.


Yes, but so what if I have a "billion dollar" idea? An idea is merely a thought inside the mind. Just because an idea can be used to make money shouldn't give me (or anyone else) the right to own it. If you don't want others having access to your idea, then keep it to yourself. Thomas Jefferson put it far better than I ever could:

    If nature has made any one thing less susceptible than
    all others of exclusive property, it is the action of 
    the thinking power called an idea, which an individual
    may exclusively possess as long as he keeps it to
    himself; but the moment it is divulged, it forces itself 
    into the possession of every one, and the receiver cannot 
    dispossess himself of it.

    That ideas should freely spread from one to another over
    the globe, for the moral and mutual instruction of man,
    and improvement of his condition, seems to have been
    peculiarly and benevolently designed by nature, when she
    made them, like fire, expansible over all space, without
    lessening their density in any point, and like the air in
    which we breathe, move, and have our physical being,
    incapable of confinement or exclusive appropriation.
    Inventions then cannot, in nature, be a subject of property.
I like to think of it like this: At some point in the past, two ancient humans were sitting in the rain. One of them -- let's call him CavemanA -- was smart enough to construct a shelter. That certainly would have been a unique and valuable idea at the time. But do you really think that CavemanA should then have the power to tell CavemanB that he's not allowed to build a shelter?

Ideas are not property. Allowing people to own them is extremely harmful, and should only be done to prevent even more harmful situations from arising. We certainly shouldn't give someone ownership of an idea for no other reason than to reward them for having it first.


I entirely disagree. "keep it to yourself"

a) the society doesn't benefit b) then you do nothing with it c) then you don't commercialise it for gain d) if you don't protect it - you get crushed by everyone else who does

and so on and so on. Indeed, Jefferson stated

"Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility"

Discouraging commericalisation of unique ideas - discourages those who are capitalist and want to move society forward. If every had no protection of their ideas - then all good ideas would be copied and the incentive to produce new ideas would be reduced as a result - or rather everyone remains secret and tries to produce entire products by themselves - again argubly reducing innovation. As I stated in my first post

"The problems with the patent industry are patents abused by companies who have absolutely no interest in developing them but rather trolling them to simply extract money from other companies. Hence the reason the law should be reformed to attach patentable rights to have a enforceable requirement to actually 'use' the patent - thus destroying the majority of trolls. If you dont actively use it as it is meant to be - you have nothing. The requirements and the search of prior art should be greater and longer - to ensure patents are truly innovative and this should not be the role of the courts (due to expense, time and so on within the legal system)"

The argument with the cavemen is a primitive example. My response - Caveman B would most likely build it or kill Caveman A to build it. Which extrapolated to the protection of ideas in modern society may very well occur - competitor A and competitor B want to succeed more than each other and so on. If Caveman A is stronger than Caveman B - then he may very well ask for fruit to borrow his design - Caveman B gives him something of value to borrow his unique design - the other alternative.

Idea's should be able to be commercially protected. You suggest that by no one having a right to commercialise them that society would be better off - what is then the point of innovating and trying to essentially fulfil the capitalist dream of commercialising inventions to profitability if everyone is freely copying everyone else's ideas ? It results in no competitive advantages to some degree. The desire to be innovative and drive society forward is closely coupled with the profitability and commercialisation attached. That's not to say that all inventions require profitability - but most people seeking to protect their inventions are seeking to do so to ensure they maximize the potential of their idea's from a commercialisation standpoint. If anyone was free to copy anyone's truly awesome idea - that doesn't reward or provide additional incentive for people to innovate per my post below - what you get instead is the Samwer brothers who just outright cloned everything.


I think you are missing his point. His point is not that patents should not exist, it is that patents are not protection of ideas. They are protection for inventions, as in, the actual (used to be physical) functional embodiments of an idea.

If you allow someone to patent cotton gins just because they thought that they sounded swell and wrote the idea down, you've seriously hindered any kind of market at all. Your idea is worthless without an embodiment, and no one else can make anything until your patent expires.

If you allow someone to patent all cotton gins based on their single implementation one, you again have poisoned future implementations -- perhaps better and more efficient ones with completely different physical forms -- just because they belong to the idea class of "cotton separating machines".

The point is a very important one: ideas are not property. We can go a little further and say all IP is not property either. You cannot be deprived of it (short of a lead pipe), but you can be deprived of your granted right to profit from it, for a little while at least. That's the motivation you speak of, and that's the only reason patents exist at all, at least in the US.


In October, the US Patent and Trademark Office (USPTO) rejected 21 of the 26 claims of Amazon's famous patent after an Auckland patent enthusiast, Peter Calveley, produced evidence of prior art.

http://web.archive.org/web/20081211093025/http://www.out-law...

Of course, this was only after Amazon bullied others, including B&N, using the bogus patent.


Nope. The patent should be granted only if it is "not obvious to a skilled practitioner skilled in the art", not just if nobody published the same exact thing before. 1-click WAS obvious in 1998 to any skilled practitioner who knew about cookies.


Again, this patent has been litigated over and over and over - so it has been deemed not to be obvious to a person skilled in the art at the time of filing relevant to the claims. You can't state "it WAS obvious" - because literally millions has been spent on PROVING it wasn't. Even if some of the claims have been subsequently rejected - there are still components that are patentable.


You're talking about the US. The patent was never granted in the first place here in the EU. So yes, I can state that it WAS obvious - at least in Europe.


And as a result Europe produces the Samwer brothers - who just copy everything from the United States and open it in Europe. I'm not arguing that patent law is perfect (per my first post) but rather that it does have a function and the original article conveys the view its entirely pointless. EU patent law has its problems as well and its a long post to discuss it - but without any protection you just get outright copies (Airbnb, Stripe and so on and so on) and that does nothing for innovation.


It's funny to have to state this on a site where a common mantra is that "execution matters":

If US entrepreneurs suck at serving a global market (and they do - failing even with covering Canada and Mexico for years, their direct neighbors), someone else is bound to fill the niche.

Instead of whining about the Samwers, how about expanding as soon as possible? Either there's money to be had abroad (then go and get it) or there's not (then why aren't Samwers bankrupt by now, at least thrice?).


I totally agree with you that execution does matter. But the Samwer's don't execute - they outright copy. From reverse engineering, to out right cloning the CSS style sheets and design UI's which is totally wrong. That's not innovation in any sense and I wholeheartedly disagree if you are defending the cloning of a product completely.

I'm not "whining" about the Samwers - I am bringing them into the larger context of this debate. That is - with patent protection - their outright clones would not exist. You draw a completely different imputation by comparing it to business strategy of expanding faster and cloning a product. I am not against, in any sense, taking an idea (groupon) and making it work in a different part of the world - as long as it adds something to it - a different UI and so on.

The Samwers don't add that and that's what is detestable. If your startup worked hard, built a product with a great UI that is commented upon and then a competitor clones it outright in a different market - are you suggesting you wouldn't be pissed ? Because that's exactly what the Samwers do. And sometimes it's not so easy to just "expand as soon as possible" - payments is a whole massive legal headache (in the case of stripe). Verification systems, financial approval and so on and so on per country and many others. Plus, expanding quickly involves local offices, larger teams, greater strategic planning, more investment capital which then dilutes existing people more and so on and so on. So it's not a simple matter of "expand as quickly as possible" but sometimes that's just not feasible.


What they bring to the table: experience in foreign markets (all that legal headache, market research, contacts).

They probably "should" do that by offering this as a service to promising US startups. But who would pay for that an even remotely comparable amount of $$$ than what they get now?


Are you serious? The Samwer brothers don't do anything different from thousands of US startups and big companies that try to imitate new ideas that have success in the market. How many venture capitalists in the US finance exactly that kind of ventures?

The only difference is that they evidently found a good formula to do it with repeated successes by focusing on early localization on European (and especially German) market, and so became famous.

By the way, I'm in favor of patents in general, but with very stringent non-obviousness requirements. IIRC the USPTO changed its attitude not so many years ago here, going from a "reject as much as possible" one to a "accept as much as possible" one.


And as a result Europe produces the Samwer brothers

Thanks for the pointer, I'd never heard of these guys. Pretty amazing...


This attitude frankly disgusts me. The legal system is all kinds of screwed up and its verdicts don't necessarily have any relation to reality. It's an intellectual cop-out: I don't have to actually put thought into the issue, because a bunch of expensive lawyers already did, and I can just parrot them!




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