Tuesday, September 11, 2012

Software Patents? No Thank You. PONG "ball image" Bounce-Back and Apple "text list" Bounce-Back: Is There a Patentable Non-Obvious Difference Not Anticipated by Prior Art? Of Course Not.

We are strict opponents of patents for software and a "bounce-back" patent is one example of why software patents are absurd. (See our previous postings at PONG ! About that Ridiculously Granted Bounce-Back Scrolling Patent US 7469381 Which Is Anticipated by the Prior Art and Obviousness of the Old Atari Game of PONG and PONG Revisited: Atari Apple Sigma SLAC and Prior Art for Obvious Developments of the State of the Art in the Digital World.)

Let us assume YOU owned the "bounce-back" patent for an image moving on a display. Would it make any difference to YOU as the patent-holder what the "name" of the gadget using your "bounce-back" would be? Video game display, PC display, tablet display, pad display, phone display, touch display, etc.

ANY bounce-back use would be a clear patent infringement.

A display is a display. You move images or text or lists around on it. So if you had a bounce-back patent, it would obviously apply to ALL displays.

It is therefore incorrect to argue, as has been done, that the Apple "bounce-back" patent is somehow vastly different from the Atari PONG "bounce-back" because the gadget in one case is a video game and in the other case a so-called "touch" gadget. That is irrelevant. Both gadgets are controlled by hand, one indirectly, one more directly, but that would not much change the programming. You could have a modern touch-screen controlled PONG and use virtually the same bounce-back code as in the original machine.

WHERE is the NEW invention? that is the patent question.

Software programming code is written to move defined points on a display and anyone capable of software programming can move such points in myriad ways. The principle of moving points on a screen hitting a pre-defined point and then moving in a different direction was in use from almost the very origin of software programming. Where is the NEW non-obvious invention?

In KSR, the U.S. Supreme Court redefined the standard of "obviousness" in patent cases inter alia as follows:
"In KSR, the Supreme Court relied on the precedent in the Sakraida case regarding the issue of obviousness in cases of combinations or arrangements of prior art. Justice Kennedy wrote:
"[I]n Sakraida v. AG Pro, Inc., 425 U. S. 273 (1976), the Court derived from the precedents the conclusion that when a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. Id., at 282. 
The principles underlying these cases are instructive when the question is whether a patent claiming the combination of elements of prior art is obvious. When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Sakraida and Anderson’s-Black Rock are illustrative—a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.""
The Atari game PONG necessarily contains software code that controls the "bounce-back" feature of the image of the ball -- as defined by a set of coordinates -- and the Apple code controls the "bounce-back" feature of text lists -- as defined by similar set of coordinates. Big difference? Of course not. Both text lists and images -- and their locations -- are defined by software code -- and sections of that code are moved around.

Essentially, we know that the software code in each case -- even if we do not know any of the specific programming code in question -- must contain a routine that keeps track of where an image viz. text or list is located on a display and then define its movement in terms of certain x,y type parameters.

There is no unique combination here not obvious to anyone skilled in the art. It is merely a skillful application of prior art in an obvious combination.

NOT rightly patentable. In our opinion.

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