Some good points from Clive but to be honest, it's easy to come up with a solution when you've already seen it implemented elsewhere by someone else. If it were that easy to be innovative then Clive would have seen the opportunity to meet a user requirement, developed the solution and patented it and then sold it to Freedom Scientific for a handsome profit. He'd probably be really pissed off then to see someone else nicking his idea...
Kevin E-mail: kevin.lloyd3@xxxxxxx----- Original Message ----- From: "Peter Beasley" <pjbeasley@xxxxxxxxxxxxx>
To: <access-uk@xxxxxxxxxxxxx> Sent: Saturday, August 09, 2008 10:09 PMSubject: [access-uk] Fw: My thoughts on Freedom Scientific suing GW Micro alleging patent infringement
----- Original Message ----- From: "Clive Lansink" <Clive@xxxxxxxxxxxxx>To: <gw-info@xxxxxxxxxxx> Sent: Sunday, July 27, 2008 1:03 AMSubject: My thoughts on Freedom Scientific suing GW Micro alleging patent infringementHello everyone. I know there has been a lot of comment on this list concerning Freedom Suing GW Micro, so I hope you will forgive one more which is my attempt to look at some of the philosophical issues that this raises for adaptive technology in general. I make these comments as an experienced programmer and qualified barrister in New Zealand, though I do not work specifically in the field of intellectual property.I haven't been able to access the case filed by FS because it seems you need a user ID and password to see that, and Freedom's public release on the subject gives no detail on what they are alleging. So I don't know the detail of what Freedom is alleging, other than that it has to do with an alleged infringement of their US patent 6,993,707 referenced in Doug's blog at <http://www.gwmicro.com/blog/index.php/all/2008/07/24/do_companies_really_compete_on_who_has_t>. The patent relates to a method for setting place markers in HTML documents where of course the content of such documents can change. Freedom makes it clear in their release that it is their practice to patent new technologies they invent. I'm sure some or even most of their patents may be justified, but the question in my mind is whether the patent examiner would have sufficient knowledge of adaptive technology to determine that the patent in this case represents sufficient usefulness and originality of thought. For a patent to be granted, the inventor must show that his or her invention is sufficiently "inventive". A patent should not be granted for a new idea that is simply another manifestation of previously established techniques.People claim to invent things all the time but not all inventions deserve a patent. It is the job of an examiner to ensure that patents are granted only for inventions that demonstrate true inventiveness and originality of thought. In software development, programmers have to solve problems all the time but most of the time the solutions they come up with are just the result of good logical thinking which doesn't come up to the standard of truly inventive thought.Though obviously a patent was granted in this case, I think in this case the so called invention does not come up to the standard required to be an invention. The programmers asked themselves what is it about an HTML document we can use to define a place marker when the text in that document can change at any time? Answer, count the HTML tags between the beginning of the document and where the marker needs to go. So big deal. This is hardly a sophisticated programmer's brain wave in my view.But when you look at Freedom's patent application, it is of course written in typical patent application language designed to exaggerate its utility and inventiveness. With numerous diagrams and references to what the user is able to achieve as a result of the invention, an examiner who does not know much about adaptive technology might be forgiven for deciding that this really is the creation of something new, useful and original, when really it is not.While Freedom may be convinced themselves that they came up with a wonderfully new way to create place markers on a web page, the concept of place markers is hardly new. I recall them in existence for documents as early as 1987. Certainly the original Keynote from Pulse Data International had place markers, and I'm pretty sure the early Braille-'n'Speaks also had them. Also the idea that you could be automatically taken to the same place in a document as where you were when you last accessed it is not new either. Both the Keynote and the Braille-'n'-Speak behaved that way also.So the concept of place markers on a web page is to my mind simply an extension of a concept that has been established for documents for a long time. But what then of the way Freedom have achieved it, i.e. by relying on the number of HTML tags? Given that the place marker can't be stored in the document itself because it is a remote web page, it is obvious that it has to be created locally by capturing certain information about the page. You could simply remember the URL and the character position in the document, but that approach would quickly break down for dynamic pages where the data can change. As a programmer myself, I'm sure I would have come up with the same solution, i.e. rely instead on something more constant like the number of HTML tags, after only a few minutes pondering. This is why I say that the so called invention in this case is not inventive; it is merely the manifestation of good logical thinking that is the essence of writing software.Another point to make though is that this approach is hardly going to be 100% reliable. Given that a web page can contain data that changes dynamically, if that data itself contains HTML tags where the number of those tags can change, then surely when you count the same number of tags from the start of the document, your place marker could end up in the wrong place. This brings me to another point that must be established before a patent can be granted. The invention must be useful. Now sure, this so called invention is useful to an extent, but it is not going to be fully reliable. It is going to be the source of some frustration when users find their place markers don't work from time to time, or that they are taken to the wrong place when they access that page again.When you are granted a patent, you are essentially granted a monopoly on that invention for I think twenty years, and you are protected by certain international intellectual property treaties. A patent is a valuable thing to have, but this is why applications for a patent must be held to a high standard in showing that the claimed invention is truly inventive and sufficiently useful. It is not appropriate to grant someone a monopoly over an invention that is not sufficiently original or inventive, or if it only works some or even most of the time, particularly if the reason why it is not 100% reliable is related to a fundamental limitation in the technique on which the patent would otherwise be granted.The adaptive technology industry, like other industries, does rely on inventiveness, and patents provide the mechanism for someone to gain economic advantage from their inventions. The philosophical issue to me however is where are the safeguards to prevent adaptive technology companies from filing applications for patents that are really not justified. It is not cheap to apply for patents, so this is likely to be the preserve of only the biggest adaptive technology companies. It is perhaps a form of abuse of the system for the bigger companies to aggressively file patents for inventions that do not come up to the required standard. In mainstream situations it is perhaps more obvious to the examiner whether the claim of having invented something is warranted. But also in mainstream situations if the examiner thinks the patent is possibly warranted, there is likely to be another big player willing to challenge a patent application they think is unjustified. It is not reasonable in my view for adaptive technology companies to spend their resources on monitoring patent applications and mounting challenges against those which might be regarded as frivolous. It seems to me this raises a matter of policy regarding the patenting process in specialised industries. I am sure this will not be the first time such an issue has come up, but I am not sufficiently up to date with intellectual property law to comment on that. Remember, the patenting mechanism is an entirely man made mechanism of public policy to allow inventors to enforce their intellectual property rights and profit from their inventions. In my view, as a matter of public policy, the patent examiners themselves need to be held more accountable to only grant adaptive technology patents when truly justified. They need to take their own steps to fully understand the adaptive technology industry if they are to appropriately award valuable patents to adaptive technology companies that can then use these patents to their advantage over other similar companies.Of course, in this case, having got this patent, Freedom now has a lever they can use to bully other adaptive technology companies that might simply come up with the same solution because it really is after all just logical programming. Furthermore, Freedom now demonstrates that they are prepared to do just that. But hopefully the patent can be challenged as not being sufficiently substantial, original, or useful.Clive Lansink Email: Clive@xxxxxxxxxxxxx Phone: +64 9 520-4242 Mobile: +64 21 663-999 Fax: +64 21 789-150 If you reply to this message it will be delivered to the original sender only. If your reply would benefit others on the list and your message is related to GW Micro, then please consider sending your message to gw-info@xxxxxxxxxxx so the entire list will receive it.All GW-Info messages are archived at http://www.gwmicro.com/gwinfo, and can be searched through and sorted using the searchform at the bottom of the page. If you wish to unsubscribe from this list, send a message to listserv@xxxxxxxxxxx and include leave gw-info in the body of the message. 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