[A2k] "Gérald Sédrati-Dinet (Gibus): Re: US Federal Circuit to Consider Software Patentability

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Sat Oct 27 05:56:02 PDT 2012

Top me it seems Google is now promoting a completely schizophrenic
policy on internal visavis external "Peer-to-Patent" practices.

Boldrin and Levine says in "The Case Against Patents" paper here
published by the Research Division Federal Reserve Bank of St. Louis:

    "More to the point, companies typically instruct their engineers
    developing products to avoid studying existing patents so as to be
    spared subsequent claims of willful infringement, which raises the
    possibility of having to pay triple damages. Based on sworn
    testimony by Google's chief of Android development in Oracle vs.
    Google (see for example Niccolai [2012]) the engineers that
    developed Android were unaware of Apple (or other) patents, and so
    were unlikely to have been helped by them."

So Google asks its engineers not to read patents while they encourage
volunteers to both read patents *and* to give a way the money they can
make from selling prior art knowledge they find? And this in
collaboration with the USPTO?? (see

That is, if anything, patently absurd.

Btw, how much would this particular prior art knowledge be worth? David
Martin (M-CAM) breaks the news in a Bloomberg interview that Apple's
"rubber-banding patent" is invalid:

    *US Patent Office Rules Apple Patent Is Not Valid

(it's even invalidated by one of Apple's own patents...)

So far I have received some encouraging emails off list. Thanks!

But peer-to-patentists are still silent.

Best regards.


On 10/10/12 10:56, Erik Josefsson wrote:
> On 10/10/12 01:32, Gérald Sédrati-Dinet wrote:
>> And of course amici filed for Bilsky can be a source of inspiration
> What I am missing ever since 2003 is a US take on the EP's first reading
> on the swpat directive:
> http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P5-TA-2003-402
> Is there anything there that the Peer-to-Patent people likes? Or
> dislikes? Or have been inspired by?
> Regardless of the merits of the Peer-to-Patent strategy, when your focus
> is set on asking volunteers to find prior art, you still have to know
> what subject matter you are asking people to look for, don't you?
> If this question was debated a bit more instead of dismissed with a
> plain "the Subject Matter ship has sailed", then maybe volunteers could
> make an informed assessment whether it's worth the effort to look for
> regexps, or whether other solutions to the software patent problem are
> within reach.
> Best regards.
> //Erik
> Here are some goodies I think:
> Recital (17)  Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent.
> Article 2 b) "technical contribution", also called "invention" , means a contribution to the state of the art in a field of technology . The technical character of the contribution is one of the four requirements for patentability. Additionally, to deserve a patent, the technical contribution has to be new, non-obvious, and susceptible of industrial application. The use of natural forces to control physical effects beyond the digital representation of information belongs to a field of technology. The processing, handling, and presentation of information do not belong to a field of technology, even where technical devices are employed for such purposes;
> Article 3. Member States shall ensure that data processing is not considered to be a field of technology within the meaning of patent law, and that innovations in the field of data processing are not considered to be inventions within the meaning of patent law.
> Article 7.3.  Member States shall ensure that the production, handling, processing, distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose.

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