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Petition for a Software Patent Free Europe

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I tried to read the MS patent on double-clicking and it seemed to me quite vague. MS's goal was to lay a claim to something more than just a specific bunch of source code (which would be very specific). So the question potentially arises, how do you determine if some new product infringes on the MS patent on double-clicking? For example, they claim to have invented a way of "expanding the functionality of an application button on a limited resource computing device". The first question that comes to mind is, what is a "limited resource computing device"? Is that in contrast to those every-day infinite-resouce computing device? Does that include my toaster? What's an "application button"? Now perhaps the full document on file with the government somehow makes their claim to ownership more specific, but what they basically did was patent most input devices such as mice, joysticks, and keyboards. Although I'm sure no court would interpret their patent as covering keyboards. The point is that like anti-trust laws, it seems to me that there's no way to know in a specific instance if you've infringed on their patent. There should not be a patent on the idea of double-clicking, only on a particular method of double-clicking, yet I don't see how the MS patent is anything but a patent on the idea itself.

The "limited resource computing device" they are talking about are devices like palm-size data assistants. They are not talking about desktops or even laptop computers.

"Expanding the functionality of an application button" means the ability to open an application in one of several different states or modes depending on how long the button is held down. For instance, holding it down one second opens the application in standard mode, two seconds opens it in view mode, three seconds opens the last document being used by that application, etc.

Regarding the double-clicking, Microsoft has patented the use of the time lapse between presses of a button as a means of telling the palm-device what to do with the application in question.

This patent is based on an application that was submitted sometime prior to 1999. I am not familiar with these products, but my guess is that much has changed since the time this application was submitted. Do Microsoft's current palm devices even use these techniques?

The patent does not cover any other types of input devices such as mice, joysticks and keyboards and it applies only to palm-sized computing devices.

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The protection of intellectual property requires the ability to create and apply an objective standard. Attempting to enforce property rights without the existence of an objective criteria or the ability to apply it violates real property rights, regardless of the potential benefits. Furthermore, the existence of patents must be evaluated in a cost-benefit analysis, at least if the purpose of patents is to provide a benefit to the inventor.

There are some costs common to all patents, including software patents, such as the cost of filling and protecting them, the need for patent portfolios to protect oneself against competitors patent portfolios, the disincentive to inventors and investors of violating existing but unknown patents, and the associated research costs, and the mis-incentives created by directing research into patentable areas versus non-patentable ones.

In regard to software, several characteristics distinguish software patents from other technologies. For one, the cycle time of software development is much shorter than for other technologies. By “cycle time” I mean the period during which an innovation is introduced, marketed, matures, and is used to create new innovations. Because software is inherently more malleable than material creations, the cycle time of software innovation is much shorter, in the range of one to six years rather than the 16 granted for a patent. The evidence for this is trivial: just look the the frequency of software releases, and how quickly new features are introduced, adopted, and dropped for the next generation. If the purpose of time limits on a patent is to prevent it from hindering the next generation of technology, than the patent should expire within a single technology cycle, but the short and variable nature of software development makes establishing such periods impossible.

A widely publicized problem is the granting of patents that are too broad, such as the Hyperlink, or the browser plugin. But is this a rare exception or an indication of the something inherent in the nature of software development? I would argue the latter, due to two factors: the inability to establish objective limitations on the applications of a patent, and the inability to establish the “obviousness” of a patent.

Software innovations take the form of “patterns.” A pattern is a method of doing something, one that is usually not limited to any particular baseline technology. It is like the plot of a book or a movie: the same course of actions can be described in many different ways and set in any location or time period. There are many design patterns for performing specific tasks such as sorting lists and organizing shopping carts that are widely recognized as non-patentable algorithms. But where does an algorithm end and a patentable invention begin? It's impossible establish all the possible variations of a pattern, or how much variation distinguishes one idea from another.

Note that in the case of the BT's patent of the Hyperlink, the court did not invalidate the patent, but ruled that it does not apply. Nevertheless, it's not at all obvious from reading patent just where it applies – it certainly seems to me that there are many current technologies where it would apply. At the same time, the term “hypertext” was coined at least five years before BT's patent, the concept of an “electronic web” in 1971, and the idea of “linking” computers together in 1951(!) – but due to the abstract nature of patterns, I can't say which idea definitely described the concept of the Hyperlink.

Now to your questions:

What is it about the nature of the medium that makes it impossible to apply standards objectively?

See above.

Can you give some examples?

In addition to the above examples, it's easy to think of technologies for which the obviousness is non-obvious, no matter how many experts you ask. Here are some that may or may not have patents: the web browser, file and image compression, streaming media, relational databases, biometrics, speech recognition.

Recognizing violations is equally dubious. Which of these violate patents: “cloned” operating systems such as windows and Linux, (which copy gratuitously from each other as well as Apple and Unix), “cloned” processors such as AMD and Cyrix, “cloned” productivity suites such as MS Office (copied from the existing suites), StarOffice/OpenOffice (copied from MS Office.) Due to the reuse of patterns, it's impossible to create 100% original software, so which patterns are patentable?

I must admit, I do not follow technology news very closely.  Can you give us a link to such a story?

For example, Microsoft recently tried to pattent IsNot a basic programming operator:

http://www.eweek.com/article2/0,1759,1766949,00.asp

The BT case has been thrown out by the judge in a summary judgment motion just 5 months after it was filed.  That is quite fast by legal standards.

The patent itself was not overturned. The judge simply ruled that in the particular case, the defendant for not liable. Based on the actual patent, it isn't obvious to me that the patent does not apply to Hyperlinks, legitimate or not.

Edited by GreedyCapitalist
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This patent is based on an application that was submitted sometime prior to 1999.  I am not familiar with these products, but my guess is that much has changed since the time this application was submitted.  Do Microsoft's current palm devices even use these techniques?

My PocketPC does this. So does my watch. Is it in violation?

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The "limited resource computing device" they are talking about are devices like palm-size data assistants.  They are not talking about desktops or even laptop computers.
But it doesn't say that anywhere, at least that I can see, in the patent. Maybe when they filed the application, the clerk thought "They probably mean PDAs", but "what they are talking about" is not a well-defined limitation. It means that their success in enforcing this concept-patent against an inventor of a new product might or might not succeed, depending on the whims of a judge or jury in making a decision about "what they are talking about", as distinct from what is actually spelled out. That's the essence of subjective law.
The patent does not cover any other types of input devices such as mice, joysticks and keyboards and it applies only to palm-sized computing devices.
What part of the patent indicates that? I don't see any significant restrictions on what it refers to.

NB I had a digital watch which I picked up in 1987, that distinguished "long press" vs. "short press" for its various reset functions. Given that, this is not a novel invention: the "process" already existed and was in use, so should not have been patentable.

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But it doesn't say that anywhere, at least that I can see, in the patent. Maybe when they filed the application, the clerk thought "They probably mean PDAs", but "what they are talking about" is not a well-defined limitation. It means that their success in enforcing this concept-patent against an inventor of a new product might or might not succeed, depending on the whims of a judge or jury in making a decision about "what they are talking about", as distinct from what is actually spelled out. That's the essence of subjective law.

Go past the claims section to the section titled, "Background of the Invention".

What part of the patent indicates that? I don't see any significant restrictions on what it refers to.
Mice, joysticks and keyboards are not mentioned in the claims. In "Background of the Invention", they make clear that they are focused on application buttons on palm-scale devices.

NB I had a digital watch which I picked up in 1987, that distinguished "long press" vs. "short press" for its various reset functions. Given that, this is not a novel invention: the "process" already existed and was in use, so should not have been patentable.
That is questionable. The fact that a given technique is in use in one field does not necessarily rule out an innovative new use of it in another field. Consider, for instance, a new type of microtome device that was developed to make ultra thin slices of samples to be examined in an electron microscope. Would you say that such a device should not be patentable because butchers have been using meat slicers for a long time?

Given the fact that it took more than 5 years to get this patent through the PTO, there were obviously many objections raised and answered. All of the communications between the applicant and the patent examiner are documented and are available from the PTO for a nominal fee. This is called the prosecution history file, and it is a must read for evaluating most patents.

The applicant has a positive duty to make the examiner aware of all potentially relevent prior art. Failure to do so will invalidate the patent, so anyone thinking of marketing a device that might fall under this patent would do well to examine the file and see what they told the examiner.

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The protection of intellectual property requires the ability to create and apply an objective standard.  Attempting to enforce property rights without the existence of an objective criteria or the ability to apply it violates real property rights, regardless of the potential benefits.  Furthermore, the existence of patents must be evaluated in a cost-benefit analysis, at least if the purpose of patents is to provide a benefit to the inventor.

There are some costs common to all patents, including software patents, such as the cost of filling and protecting them, the need for patent portfolios to protect oneself against competitors patent portfolios, the disincentive to inventors and investors of violating existing but unknown patents, and the associated research costs, and the mis-incentives created by directing research into patentable areas versus non-patentable ones.

Let me just interject here that there are darn few "existing but unknown patents" in the sense that all patents are available in the PTO database. It is actually illegal to keep a patent secret. Patents, by law, are public knowledge.

In regard to software, several characteristics distinguish software patents from other technologies.  For one, the cycle time of software development is much shorter than for other technologies.  By “cycle time” I mean the period during which an innovation is introduced, marketed, matures, and is used to create new innovations.  Because software is inherently more malleable than material creations, the cycle time of software innovation is much shorter, in the range of one to six years rather than the 16 granted for a patent.  The evidence for this is trivial: just look the the frequency of software releases, and how quickly new features are introduced, adopted, and dropped for the next generation.  If the purpose of time limits on a patent is to prevent it from hindering the next generation of technology, than the patent should expire within a single technology cycle, but the short and variable nature of software development makes establishing such periods impossible.
If by cycle time you mean the product life cycle, there is great variation in these times in all sorts of products. Pharmaceuticals may have product lives of 20 years or more. Personal computers have life cycles of what, 2 or 3 years? So having a short and variable life cycle is not unique to software.

I don't know how the original patent life of 16 years was arrived at and I cannot defend it.

A widely publicized problem is the granting of patents that are too broad, such as the Hyperlink, or the browser plugin.
I don't see how you can say that the Hyperlink patent is too broad when it has just been ruled inapplicable to virtually all internet software.

But is this a rare exception or an indication of the something inherent in the nature of software development?  I would argue the latter, due to two factors: the inability to establish objective limitations on the applications of a patent, and the inability to establish the “obviousness” of a patent.
Obviousness can be a tough call. One way that is often used to settle the issue is the commercial success argument.

If a product is placed on the market and enjoys immediate and substantial commercial success, this is proof that: 1) a significant market demand existed at the time the product was developed, and 2) there was significant financial motivation to develop the product. Given these facts, if the product is "obvious", why is it not already on the market?

Another way to demonstrate that a product is not obvious is to document the development effort required to create it. The greater the effort, and in particular, the greater the number of iterations required to get it right, the greater the evidence that the product is not obvious.

Software innovations take the form of “patterns.”  A pattern is a method of doing something, one that is usually not limited to any particular baseline technology.  It is like the plot of a book or a movie: the same course of actions can be described in many different ways and set in any location or time period.  There are many design patterns for performing specific tasks such as sorting lists and organizing shopping carts that are widely recognized as non-patentable algorithms.  But where does an  algorithm end and a patentable invention begin?  It's impossible establish all the possible variations of a pattern, or how much variation distinguishes one idea from another.
This seems to me to argue that software patents are of little value to the patent holder and pose little problem for his competitors. If there are so many different ways of accomplishing a given task, why bother to patent any one of them? Sounds like seeking such patents is a waste of time. But does that argue for their abolition?

Note that in the case of the BT's patent of the Hyperlink, the court did not invalidate the patent, but ruled that it does not apply.  Nevertheless, it's not at all obvious from reading patent just where it applies – it certainly seems to me that there are many current technologies where it would apply.  At the same time, the term “hypertext” was coined at least five years before BT's patent, the concept of an “electronic web” in 1971, and the idea of “linking” computers together in 1951(!) – but due to the abstract nature of patterns, I can't say which idea definitely described the concept of the Hyperlink.
If you look at that BT patent, it clearly shows (even in the two drawings) display terminals connected to a single, central computer -- not a network of independent computers.

Can you give some examples?

In addition to the above examples, it's easy to think of technologies for which the obviousness is non-obvious, no matter how many experts you ask.  Here are some that may or may not have patents: the web browser, file and image compression, streaming media, relational databases, biometrics, speech recognition.

I'm a little confused here. I asked for examples in response to your statement that, "There are many man made creations that meet these criteria (novel, useful and non-obvious) that are not recognized as property." Are you saying the things you listed above are obvious, and therefore should not be property? If so, they are not examples of what your statement referred to, unless I misunderstood your statement.

Recognizing violations is equally dubious.  Which of these violate patents: “cloned” operating systems such as windows and Linux, (which copy gratuitously from each other as well as Apple and Unix), “cloned” processors such as AMD and Cyrix, “cloned” productivity suites such as  MS Office (copied from the existing suites), StarOffice/OpenOffice (copied from MS Office.)  Due to the reuse of patterns, it's impossible to create 100% original software, so which patterns are patentable?
I cannot answer this. I don't know enough about it.

Note that the prosecution history file (see my post to David) is also available for determining what a patent covers and does not cover.

I grant that there are some situations that are difficult to define. But is that grounds for abolishing an entire category of patents?

I must admit, I do not follow technology news very closely.  Can you give us a link to such a story?

For example, Microsoft recently tried to pattent IsNot a basic programming operator:

http://www.eweek.com/article2/0,1759,1766949,00.asp

Okay, I agree that is a troubling story. But it is not an example of "Software companies spend many millions and pay out billions of dollars in software patent lawsuits every year."

One result of increasing statism is that government pays less and less attention to the things it should be doing -- and the Patent and Trademark Office is definitely suffering from this. Or at least it was during the 1980s and 1990s when I worked with it. It was hopelessly understaffed and woefully ill-equipped. (Patent searches were done manually, if you can believe that.)

At that time, the PTO policy on patent applications where obviousness was an issue was to approve them and be done with it. Their thinking was that in the first place, the vast majority of patents go nowhere commercially, so why bother spending a lot of examiner time on something that is mere going to gather dust. Secondly, if a patent turned out to be commercially important, it would wind up being challenged in court, and the teams of experts assembled by both parties would arrive at the truth of its obviousness or non-obviousness.

This is clearly not the appropriate policy and has resulted in a large number of foolish sounding patents. The solution is to properly fund the PTO so they can hire the experts needed to properly evaluate patent applications. This would go a long way toward cleaning up the problems.

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I am surprised you do not see how it works. Perhaps a couple of examples will help:
I know how it works, I just don't see the connection between such a solution and Objectivist principles.

Web Programmer #1: "Why, you just ask the shopper for the info once, save it using a cookie or some similar mechanism, and next time he wants to buy a product, he just clicks on it and you deliver it using the info he gave."

He solved the "idea" part, but what about actually making the software that does it? Before you say it's simple, let me put before you the reasons which will point in exactly the opposite direction. Thinking in terms of reliability of such a system, have you any idea of how much security loopholes such a system can have? By a glitch someone may suddenly end up getting logged in as another person and buy half the Amazon with one-click. The programmers had to come up with a solution to that too! Moreover, extra security had to be placed on usernames and passwords - just imagine a bunch of net criminals getting their hands on those. The programmers had to come up with what exactly these percautions will be, to provide maximum protection to the vital info and still make the whole system affordable and easy to maintain.

Do your web programmers 1 thru 5 have solutions to these problems? Are they obvious? It is easy to write a code that does what they've described, but whether what they'd do if they endeavored in making it would be half as reliable and thus trusted by their clients, is questionable. As a consequence, they probably wouldn't be able to end up turning their idea into cash.

Let me ask you a question as well, just for the sake of the non-obviousness part. Can you quickly come up with a thing that can take people to other star systems? Of course you can! A starship, right? And what do you use for propulsion? Thrusters, impuls drive, warp coils... and you certainly know the generals on how to make them, right? Take a look at a star trek website. Soon they'll tell you everything about it - how it works and what it does to propell a star ship. But the tricky part is not the idea itself, it is making it work in reality. How DO you construct an impuls engine? Well that's not quite as obvious any more, especially if you want it to work.

Analogously, if a ship is Amazon's web site, then the One-Click system is analogous to a part of the ship's propulsion - one for which you know how it should work, but you just can't make it work to meet the desired specifications. It's the making it real part that's the trickiest, and the fact that Amazon's One-Click system exists and works is IMO of more worth to me than a bunch of programmers thinking on their feet, looking for quick solutions to a certain problem.

It is based on the principle of non-obviousness. If your solution is obvious, the experts will find it and the patent will be denied. If your solution is not obvious, the experts will not find it and the patent will be granted.

I kept the first part of your post for the end because I think arguments above are more important than the one I'm going to say now. Do you really think that a programmer would give an "obvious" solution? What if he says something that is not obvious, but he happened to work on it for some time now while working on a project which does something else, but this happens to be one of the things that have to be included? Or what if he is some sort of a super-genius who can work out solutions to the most complex problems in minutes or even seconds? What then? Is your life's work going to depend on who's on the comittee, and how they happen to feel that day (whether they're fit for solving problems or sick of it)?

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For one, the cycle time of software development is much shorter than for other technologies.  By “cycle time” I mean the period during which an innovation is introduced, marketed, matures, and is used to create new innovations.  Because software is inherently more malleable than material creations, the cycle time of software innovation is much shorter, in the range of one to six years rather than the 16 granted for a patent.

I don't have time to address your whole post, but I only want to say that I don't think this argument is relevant, or that at least that it's often (including now) used in a wrong sense. That the cycle time is shorter means that old computer inventions quickly grow old. (This is to be expected since computer science is not very old itself, and human knowledge and our requirements are vast.) This in turn means that even if you have a patent, you won't be able to profit from it for long. Someone will come up with something else and/or better. This is, in fact, the reason, why it would be in the interest of both the one seeking a patent and the government who gives it, that the period is shorter (if nothing else, it's less expenses on both sides).

The argument that I often see which says that software patents should last shorter, the reason being SOLELY quicker development, is incomplete at best. It implies the real reason, but doesn't actually say it.

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The protection of intellectual property requires the ability to create and apply an objective standard.  Attempting to enforce property rights without the existence of an objective criteria or the ability to apply it violates real property rights, regardless of the potential benefits.  Furthermore, the existence of patents... <clip>

WOW..! Member number 1 (GreedyCapitalist)..!!!

Holy cow,.. I am in awe. ;)

That said, my proffer...

Programs are machines. "New" machines are the creation of their creator. The

creator is due payment for others use of his creation.

What constitutes "new" and "due payment" are the only real questions here.

And if there is a violation of the "trader principle" involved in the transaction

between the creator and those who use his creation, then the parties can make

their cases to the appropriate "police" agency, and get it resolved (to some final

arbiters satisfaction).

Everything else is trivial.

-Iakeo

Edited by Iakeo
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I know how it works, I just don't see the connection between such a solution and Objectivist principles.

Patents are derived from the principle of the right to property, i.e. that man is entitled to keep the values he creates by his work. An invention is a specific kind of value: namely, the knowledge of how to achieve a goal that men have been unable to achieve due to the lack of an obvious solution. Hence the requirements of usefulness ("...to achieve a goal..."), novelty ("...that men have been unable to achieve..."), and non-obviousness ("...due to the lack of an obvious solution...").

Do you agree so far?

Now, the difficulty lies in finding an objective test for non-obviousness. First of all, we need to clarify the meaning of "obvious." The word comes from the Latin expression "ob viam," which means "in the way." And indeed, when we call a solution obvious, it is one which inevitably comes to one's mind when one starts on the path of thought indicated by the question. For example, if you are an engineer designing a microwave oven and you want to let the user know when the timer is up, then the goal of notifying the user will necessarily bring to your mind the fact sound signals are widely used in electronics to get the user's attention, and this thought necessarily brings you to the solution of emitting a loud enough beep when the timer is up. Given the goal, finding the solution is a matter of course.

Contrast this with the goal of designing an oven that is faster and more energy efficient than conventional ovens while also preserves more of the nutrients in the food being cooked. Before someone first thought of using microwaves to accomplish this, the mere mentioning of these goals did not automatically remind ovenmakers of the range of electromagnetic radiation known as microwaves. The goals had to do with efficiency and nutrients, while the solution had to do with electromagnetism; there was no established connection between the two, not even for experienced ovenmakers; a new connection had to be made. The solution was, so to speak, not "in the way."

Obviousness is the ability of a solution to be reached without making any new cognitive integrations.

Do you agree with my characterization of obviousness?

Now, for my proposed test for patentability. If the solution is obvious, then the experts will name it, so there is no danger of an obvious solution passing the test. Your concerns, too, have been with the danger of a non-obvious solution failing the test:

What if he says something that is not obvious, but he happened to work on it for some time now while working on a project which does something else, but this happens to be one of the things that have to be included?

Then, indeed, the solution is non-obvious, but it will fail the test. The patent will be denied. Which is exactly what SHOULD be done because, although the non-obviousness criterion is met, the novelty criterion is NOT. You can only claim a patent if you were the FIRST one to think of the non-obvious solution, so in this case the patent would rightfully belong to the test person and not the applicant--except that the test person should have applied for the patent when he discovered the solution.

Or what if he is some sort of a super-genius who can work out solutions to the most complex problems in minutes or even seconds?

That kind of person would be too well-paid to volunteer for this kind of test. (I use the word "would" instead of "is" because this kind of person doesn't exist.)

Is your life's work going to depend on who's on the comittee, and how they happen to feel that day (whether they're fit for solving problems or sick of it)?

No matter how good they feel that day, if your solution is indeed "your life's work," they will not be able to name it. (If a person spends his LIFE thinking about something that someone else can figure out in MINUTES, then I'm afraid to say he will starve to death before he figures out how to get to the patent office--so that case is taken care of too! :P)

He solved the "idea" part, but what about actually making the software that does it? Before you say it's simple

I don't say it's simple, I say the software should be copyrighted.

A business idea is distinct from the software used to make it work. In Amazon's case, the business idea--easy shopping by just clicking the goods you want--is frivolously obvious and therefore should not be patentable. In VisiCalc's case, the business idea--an automatically-recalculated table of user-editable formulas with relative and absolute references--is not obvious, so it should have been patentable. In BOTH cases, the software written to support the business idea is copyrightable.

The programmers had to come up with what exactly these percautions will be, to provide maximum protection to the vital info and still make the whole system affordable and easy to maintain.

Do your web programmers 1 thru 5 have solutions to these problems?

If they don't, the solutions are patentable; if they do, they aren't; but in either case, "one-click shopping" is not patentable. If you have a security solution, patent it as a security solution, not as a shopping solution.

To use my previous analogy: If you have just invented the microwave oven, patent it as the microwave oven, not as "something that beeps when the food is ready" !

Analogously, if a ship is Amazon's web site, then the One-Click system is analogous to a part of the ship's propulsion - one for which you know how it should work, but you just can't make it work to meet the desired specifications.

If you can't make it meet the specs, then you DON'T know how it should work. "it works" = "it meets the specs"

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Do you agree with my characterization of obviousness?

Yes.

Then, indeed, the solution is non-obvious, but it will fail the test. The patent will be denied. Which is exactly what SHOULD be done because, although the non-obviousness criterion is met, the novelty criterion is NOT. You can only claim a patent if you were the FIRST one to think of the non-obvious solution, so in this case the patent would rightfully belong to the test person and not the applicant--except that the test person should have applied for the patent when he discovered the solution.
Agreed.

I had one more doubt, but I solved it for myself, so I'm just going to proffer. If for example, two people were working independently on the same thing, but one completes it first and wants to patent it, and one of the experts working for the patent office's non-obviousness test happens to be that other person who is working on the same problem and offers his solution which is identical to the solution being patented. The patent office then should not deny the patent (given the other experts did not offer the same solution), but should instead make an inquiry as to how this one expert got to the same answer. They probably should filter out those experts who have been working on finding solution to the same problem.

If you can't make it meet the specs, then you DON'T know how it should work. "it works" = "it meets the specs"

"It works" indeed = "it meets the specs." However, "it should work that way" != "it meets the specs." But here I've left out the context in which this initially was, because you've explained certain things very clearly. Thanks.

P.S.

You should patent your solution for testing the non-obviousness. :P

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