The patents in question are a new level of terribad. So bad that they can be trivially invalidated by prior art. Nikon's going to spend a lot of money on lawyers but is likely to win (if they don't settle out of court...)
(When reading patents, skip to the claims, they are the only part that actually matters).
7,830,967's independent claim is a 2k+ resolution video camera that records sRGB or rec709 gamma. That's it.
8,174,560 is even more ridiculous. It's a 2k+ resolution camera that records at a 6:1 or more compression ratio. No actual method or anything, just the concept of compressing at least 6:1 compression ratio. Check out indepedent claim #1.
Both of these are very likely to have very easy prior art available. Finding any camera that records high resolution video, made before the priority date would do it.
I checked what you said about the 967 patent. I'm afraid it's just wrong. You quoted some of the initial part and missed out the bit which actually describes what's happening:
"an image processing system configured to perform a pre-emphasis function on the digital raw image data, to compress the digital raw image data after performing the pre-emphasis function such that the digital raw image data remains substantially visually lossless upon decompression, and to store the compressed digital raw image data in the memory device at a rate of at least about 23 frames per second, wherein the pre-emphasis function comprises a curve defined by the function y=(x+c)^g, where 0.01 <g<1 and c is an offset."
Sure, I can't say - but when was that made part of Rec 709? I suppose that may well be what it invented...
Edit - to clarify better that what I'm trying to convey is that the time and context matters too, and the claims have to be read in light of the description, so suggesting that claims are trivially invalid is something to be cautious about.
Rec 709 was published in _1990_ (and had that gamma structure then, of course!).
All you can say red is doing is reciting the rather obvious combination of a 2k+ camera with rec 709, 23+ fps, etc.
Maybe it's the case that someone can't find a 2k camera being offered to the public early enough to invalidate on a prior art basis-- but I can't see how anyone could conclude from this that a red success would be indicative of anything but a deeply flawed patent system in dire need of reform.
Again, the patent to compress Bayer pattern data before de-Bayering is the pivotal one. There's a reason Apple is still paying royalties, and it ain't because they don't have good lawyers.
That is not the problem. Just because an agency is funded by fees does not mean that it has perverse incentives nor corruption (though it can be the case). After all, the FDA has to assess all of Pfizer's drug applications -- do you want to pay for all that out of your income tax, or should Pfizer be paying it? Furthermore, the USPTO has had the same issues described here long before they were self-funded by congress.
The problem is that that the USPTO doesn't have enough money to hire inspectors and officials. They are woefully, desperately underfunded. The same problems that plague the USPTO also plague the IRS, and for the same reason. The USPTO would do much better if they were permitted to double the fees, or more, for patent application.
Former patent examiner here. The main problem with quality is as you describe: patent examiners don't get enough time. I've written about this before on HN: https://news.ycombinator.com/item?id=31197809
Note that increasing fees alone won't necessarily change anything if USPTO management doesn't give examiners more time in response. For example, the USPTO charges applicants extra if they have more than a certain number of claims (20, I believe), but examiners only get 1 hour extra if there are more than that number. I once had an application with 45 claims... I estimate that I only got around 23 hours total for the first "office action" on that one (most of the work), and that includes the extra hour I got. So I got 5% more time for 125% more work!
> That is not the problem. Just because an agency is funded by fees does not mean that it has perverse incentives nor corruption (though it can be the case). After all, the FDA has to assess all of Pfizer's drug applications -- do you want to pay for all that out of your income tax, or should Pfizer be paying it?
The FDA gets billions in funding from the government and the USPTO does not. I'm not saying you are right or wrong about the problems regarding the USPTO but to compare its funding to the FDA is disingenious and wrong.
The FDA used to not be funded by the pharmaceutical industry, and instead be directly funded. There are routine questions about how the current arrangement influences FDA decision making in a way that negatively affects their ability to independently review drugs. IOW: the current setup causes the FDA to approve things they probably should not have approved, because they are incentivized to "get along" with the companies paying them.
Patent lawyers consider the "not obvious to someone skilled in the art" test done by merely looking at prior art. If it's not previously explicitly patented, it's valid.
According to them. This is exactly what a patent lawyer told me when I asked about how they test for that requirement.
Anything available to the public can be used in a prior art rejection, not just patents. (I'm a former patent examiner and I frequently used "non-patent literature" as it's called.)
I wasn't around long enough for many to get to the point where they could be granted. I think I only granted around 3 or so. And those ones were unlikely to cause anyone trouble.
I've heard a second-hand story of one examiner who granted a patent that was later strongly criticized. They specifically requested more time from their supervisor to work on it, but their supervisor denied the request. Since they didn't have any valid reason to reject the application, they allowed it. The examiner suspected that it wasn't valid, but they really didn't have a choice as they have to meet a quota and "docket management" requirements. So it's not a matter of an examiner using their own discretion. The examiner knew it was likely a problem but they couldn't find any evidence which was legally enforceable.
Why do patent examiners sometimes grant invalid patents? For the same reason software developers sometimes release buggy software: Management doesn't give them enough time or resources to do a quality job.
I haven’t looked at the claims here, but the independent claims are the most broad claims of a patent. The dependent claims are always necessarily narrower. So, even if an independent claim is invalidated, it’s dependent claim may survive if it is novel and non-obvious over the prior art.
This is not true. Dependent claims are often viewed as "backup" claims in case the independent claims are rejected in prosecution by the patent examiner or found invalid by a court.
It's not hard to find online sources to back this up, for example:
You might be confusing infringement with patentability.
If an independent claim isn't infringed, then by extension none of the dependent claims are infringed and they don't have to be considered. So the easiest route to defending a patent lawsuit can be proving the independent claims don't apply.
There are two main defenses: invalidity and non-infringement. You're correct, and you're talking about non-infringement.
Invalidity can be proven outside of a full-blown lawsuit (via re-exam) and so it's cheaper. Asking a jury to judge invalidity is asking for trouble, because they usually figure they're not competent to do it.
I actually watched a video of a mock jury, where they debated this. It's pretty shocking how little they understand the law. One juror actually said, "well, that prior art reference -- it's not fair to expect the PTO to have heard of that."
You have it backwards. If a dependent claim is invalid, then the independent claim from which it depends is also invalid. It doesn't make sense the other way around.
Your Patently Obvious article refers to patent prosecution, which is different from re-examination. Let's keep referring back to my original 1(A, B, C) and 2(D) example.
A dependent claim is "backup" because the examiner may find that (A, B, C) is not patentable, but coupled with D, you get (A, B, C, D) which is.
This happens all the time in prosecution. So let's say (A, B, C, D) is allowed and issued.
Note that you did not win the right to sell a product with (A, B, C, D), because someone else (Call them CompanyX) has patented (A, B, C) and you are infringing it.
All you've got is the right to exclude anyone, including CompanyX, from selling (A, B, C, D).
If someone else infringes your patent and you sue them, and they're able to prove that 'A' was known in the art, then CompanyX's patent and yours are both invalidated.
1. A fly-swatter comprising
(A) a shaft,
(B) a handle attached to one end of the shaft, and
(C) a perforated paddle attached to the other end of the shaft.
2. A fly-swatter according to claim 1, further comprising
(D) a robot attached to the handle and configured to identify and kill a fly by applying force to the handle so as to cause the perforated paddle to strike the fly.
Here, if claim 1 is invalidated (*) by a prior art fly-swatter, then claim 2 may remain valid if the combination with element (D) is novel, non-obvious, and the other requirements are satisfied (written description, enablement, etc). If claim 2 was invalidated by a prior art fly-swatter, however, then claim 1 would also be invalidated.
(*) Note: This would only happen in a trial or IPR because during prosecution if the examiner objects to a claim then it must be withdrawn or amended to be allowable.
A good test question there (I realize I was wrong about the (A, B, C) example. You have to knock out all three.
You have two contradictory hypotheses: "if claim 1 was invalidated by a prior art fly-swatter" and "If claim 2 was invalidated by a prior art fly-swatter"
If fly-swatters are prior art (as they are), then you would claim your robot thingie as :
"An automated fly destroyer, comprising:
a fly swatting device,
and a robot configured to etc. etc."
And you would say in your spec, "the fly-swatting device can include, in one embodiment, a commercial fly-swatter, but could be any device capable of killing a fly, including newspapers, rolled up magazine, board, book, and many more."
However, if your claim enumerated the features of a fly-swatter, then it would certainly be questioned. You should not bother listing things that are known in the art, and furthermore, you'd have failed to claim the book, newspaper, magazine, etc. methods of killing the fly.
On further editing: your idea of knocking out a dependent claim by knocking out all the elements is theoretically correct. However, that's not the way things are usually done.
[1] explains the issues around this. IPRs almost always go after the broadest claims, and the patentee needs to respond "even if claim 1 is invalidated, claim 2 is still valid because blah blah blah."
Patents almost always put the heavy novelty in claim 1, like I did for your robot fly-swatter invention. The dependent claims are narrower because they add additional elements which often aren't very novel. However, you're right that they can still survive and be useful.
> Awaiting a patent lawyer who does this every day
I am a registered patent attorney (*), but I don't practice in patent prosecution.
> a fly swatting device ... And you would say in your spec ...
You're alluding to means-plus-function claiming. "An element in a claim for a combination may be expressed as a means or step for performing a specified function ... and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof." (35 USC 112(f) or pre-AIA 35 USC 112 sixth paragraph).
> You should not have claim elements that are known in the art, and furthermore, you'd have failed to claim the book, newspaper, magazine, etc. methods of killing the fly.
As a strategic matter, I agree because you usually want to claim the broadest, most essential form of an invention, and that's a good reason to use means-plus-function claiming. The presence of prior art elements in a claim, however, do not invalidate the claim because (1) for a prior art reference to anticipate a claim, all elements must be present in the prior art reference (all elements rule), and (2) for non-anticipating prior art references to render a claim obvious, the claim must be considered as a whole, not element-by-element. (35 USC 103, "...such that the claimed invention as a whole would have been obvious...").
OK, you're an attorney, I also passed the Patent Bar (and am a Patent Agent). But it was before AIA. I don't think the 2004 Patent Bar had anything about re-examining claims, but it sure as hell did cover PCT, reissues, death of the inventor, and other crucial points of law :)
Now that we've managed to alienate all the civilians, would you say
"means for killing flies" or
"fly-killing device" where you say in the spec what that includes? Or have dependent claims that name the most common fly-killing devices.
> would you say "means for killing flies" or "fly-killing device"
I don't know. Again, I passed the patent bar, but I don't practice in prosecution. So, by my estimate, you have infinitely more experience than me. The answer probably depends on whatever the Federal Circuit most recently said about 112(f).
If you really believe they can be trivially invalidated, then it sounds like you should probably help out the patent office and initiate a patent challenge showing the prior art, so they can invalidate the RED patent?
Hit up https://www.uspto.gov/web/offices/pac/mpep/s2206.html so that the USPTO can actually do the work necessary here because you prompted them to (they're not going to invalidate a patent until someone shows they should. They are backlogged for years on their regular queues already).
> the concept of compressing at least 6:1 compression
The level of bullshit that this industry gets away with is absolutely fascinating. I'm a gamer and I was part of the crowd who were galvanized by TotalBuiscuit, rest his soul. I am not alone, and part of an ever increasing amount of people, that seriously question the anti-consumerism (hence, anti-capitalist, if you're very patriotic) practices employed by the status quo. It's patently obvious to do so in hindsight, but I look at a lot more through that lens nowadays.
Red is that 6-times distilled, 10-times cold filtered, 50 times purified, embodiment of anti-consumer practices and it's maddening.
Red isn't a consumer company. How are they anti-consumer?
I'm not defending their IP practices, but this is not as stupid as it seems. Nikon knew about the patents when they designed their cameras. The patents were not dumb in 2007-2008.
Claims like the one excerpted are part of larger claim sets; if any claim gets invalidated, the rest that rely on it are useless. For the sake of being explicit, but also robust, lawyers will take a technical description and devolve it into a series of nested claims. Those individual claims, in isolation, sound dumb. But they're usually contingent on earlier claims that might reveal the novelty.
However, the product was/is okay-ishm but the fan boys are utterly toxic pricks.
the charged for everything, made special names for all sorts, and had tesla levels of bullshit when it came to deadlines and capabilities.
For example, the "RED ray" laser projector, which supposedly was a 4k native laser based projector, except that it wasn't, never ran at 4k during NAB and if I recall correctly at some point was replaced by a barco. (https://www.extremetech.com/electronics/126579-red-ray-4k-ci...)
They made "redrockets" that were supposedly super high tech decoding cards, but were in reality rebadged from another company. They were extra ordinarily fragile (I personally accidentally killed 3 in just one event) and fucking expensive (£4k each)
It was me, apparently that was the problem, not the design. In the same event I replaced graphics cards, a boat load of Fusion IoDrives, none of them died.
So yes, they were anti-consumer to a certain extent. However if they liked you, they'd invite you to the ranch, you'd hang out with other RED people and generally have a good time.
Yeah this is all accurate... there is a lot of marketing at that company, which is unsurprising given that it was founded by Jim Jannard, who made his money selling consumer fashion goods at Oakley.
> Red isn't a consumer company. How are they anti-consumer?
Really?
I think you know like everyone else here what consumer means in this context, it's not literally about consuming food, or the disease known as consumption, and that entities that aren't individual consumers in the nightly news sense of the word are called 'consumers' as well.
There's a conversation to be had about how much money Red is making from selling luxury goods to amateurs but this thread probably isn't the best place.
> if any claim gets invalidated, the rest that rely on it are useless.
This misunderstanding came up in another thread. If a dependent claim is invalidated, then it invalidates the claims it depends from, but not the other way around. For example, consider the following claims:
1. A method comprising steps A, B, and C.
2. The method of claim 1, further comprising step D.
If the prior art only teaches claim 1, then claim 2 could still be valid if the addition of step D is non-obvious over the prior art. If the prior art teaches claim 2, however, then claim 1 is also invalid.
> Red isn't a consumer company. How are they anti-consumer?
Everything is consumer these days. CNC machines, milling machines, soldering stations, tablesaws, planers, and, yes, high-end cinematic cameras.
You're no longer talking about Hollywood and maybe 4 or 5 other big studios leveraging this stuff. Marques Brownlee, Linus Tech Tips, Corridor, and tons of other Youtubers (and I'm sure many more from other platforms) eat these things like candy. If you or I wanted to get into this stuff, we reasonably could with a little financial discipline (and maybe bargaining with our significant other :D).
They are unimaginably vulnerable to someone coming along with a platform that accepts any, say, NVME, with some form of "works best with" certification system. That way, if your risk is low ( enthused hobbyist) go with your MLC dumpster diving special, if your risk is high then go with OEM, certified, or better (because there is better storage than what Red offers). Keep in mind that Red have supplanted a stupidly broken industry with a vastly less broken industry, but on the absolute scale they are still pretty fucking stupid. They are living on the time it takes for someone to realize that, given a huge amount of R&D into a sensor (because Red is likely the leading sensor), a more capitalist/competitive approach exists.
When did the consumer stop being the ones who consume the product?
I’m sure many farmers would consider John Deere’s practices regarding DIY repairs, anti-consumer, as they are the consumers. Any person who might reasonable be considered an end-user of a product, or might buy a type of product might be considered a consumer of that type of product.
Anti-consumerism and protectionism do not even require that you be a customer of the company in question, some practices extend beyond the product itself when the company seeks to stifle competition.
That line between "business" and "consumer" is becoming increasingly indistinct. This is the very nature of "influencers." We have every-day-joes/janes setting up multi-thousand dollar machines in their own (or rented) garage for their own, or followers', enjoyment.
> are not consumers but media businesses.
This idea of yours is extremely out of touch with reality, just like Red are. Those "media businesses" would be nowhere without an engaged audience. The modern audience are participators, not watchers. Commodity 3D printers have succeeded for a reason.
People aren't as one-dimensional as they used to be. They take their interests to an extreme degree. It might take a videography/cinematography enthusiast 2 years to save up for a Red, but they will.
Influencers are businesses, plain and simple. They buy the camera to make a profit.
Compare this to someone like me, who also owns expensive cameras, but I have them to take pictures and show my friends. I plan to make $0 from this endeavor. I'm a consumer, not a business.
Oh, I shoot stills on Sony equipment, so I just use good old SD cards. And film when I need high resolution ;)
I agree that RED is cost-prohibitive for individuals that aren't running a business because of things like the 500% markup on SSDs. That is always the risk of a proprietary ecosystem; kind of like how you can buy 128GB of RAM for your PC for a few hundred dollars, but the same RAM in an Apple computer is $1600. That's just the price of "we guarantee that it will work", and for business use, it makes a lot of sense. For consumers, it kind of sucks, because you feel so close to being able to afford something really cool, but you just can't make the math work.
I do understand the pushback; people want to pay for the impressive sensor and not the mind-numbingly-boring SSDs, but they want to make money on both. I am not sure that's strictly consumer unfriendly, but just how they do the financial engineering.
I read your post at least 3 times and still don't understand how those sentences fit together into a coherent thought.
What does TotalBiscuit have to do with video compression? What does anti-capitalism have to do with being patriotic? How is TotalBiscuit related to anti-consumerism?
The only thing that somehow makes sense is that Red employs some anti-consumer practices through overly broad patents, thus restricting innovation.
“I am not alone, and part of an ever increasing amount of people, that seriously question the anti-consumerism (hence, anti-capitalist, if you're very patriotic) practices employed by the status quo.”
this is one of the most bizarre sentences ever written
How many people on this forum, specifically, suggest that they use Apple devices because of, ultimately, good-will garnered by Apple? There should be no doubt that Apple manufactured the best laptop hardware on the planet, for the general use-case, between 2014 and 2020. Yet, many people continue to perceive Apple based on historic merits as opposed to current merits. You could always get much more than Apple for much less, but they had the quality nailed down: it is certainly not rare (especially on HN) to come across someone still using their MBP from 2014 and reluctantly considering an upgrade. Following the golden days of Apple hardware, we still have people defaulting to that prior perspective, even in the face of the the keyboard "don't use it in an environment with dust" problems of recent history.
Consumer psychology is extremely fascinating, and until you look at the overall behavior of consumers (which includes your own stupid self), you just don't realize how you've monkey brain has been exploited.
That sentence is only bizarre to people who haven't realized their own bizarre behavior.
Edit: I include myself in monkey-brain analogies, I am a human/stupid/exploitable just like you.
> Edit: I include myself in monkey-brain analogies, I am a human/stupid/exploitable just like you.
Yeah, I mean, kinda right back atcha here ;) A lot of people are still stuck in the "apple is dumb Jony Ives design with no ports and super bad performance and overheating" era too, despite Apple actually putting ports back on laptops and having an in-house ARM core that is far and away the most performant laptop you can buy with multiples of the battery life of similar x86 laptops too.
A more productive take on the topic is that a lot of times these things come down to values differences between various consumers: you value repairability and open ecosystem, Apple customers value high-quality OEM parts/service and the all-around build quality (other laptops have a few of the selling points, but it's hard to check all the boxes that Apple does). You highly value the keyboard, Apple customers are willing to tolerate it even if it's not ideal because of the rest of the package. Apple customers value the battery life, you are willing to tolerate plugging in more often even if it's not ideal because of the rest of the package. Etc etc. Those are values differences, not in the sense of moral differences but different customers have different needs and preferences and a lot of time is spent arguing about stuff that ultimately comes down to "I value different things than you do".
It's fairly rare that things actually come down to what I'll call "alternative facts" scenarios - sometimes it does, like the broad disagreement over how to interpret M1 performance numbers (but the differences in performance/battery life that people observe tend to lead to a pretty obvious conclusion imo). But it's generally a lot rarer than the "I like different stuff than you" spats.
I'm saying this as someone who has an x86 apple laptop for work and is not particularly pleased with it, but who is looking at the M1 as a prospect for a personal laptop, but also considering a few particular x86 laptops as well. People get super weird on the x86 side with the "nothing apple can ever be good" shit too, or the Android people getting super weird about how sideloading is a must-have feature (and ignore how that sidesteps the app-review process and leads to facebook/netflix/other must-have apps forcing their way to escalated privileges). It's generally a lot of values arguments, people value different things and that leads them one way or the other.
Of course marketing does play a key role in telling people what they should value, and I am no different from anyone else in that I am affected by marketing even when I think I'm making rational, logically-supported choices ;)
(When reading patents, skip to the claims, they are the only part that actually matters).
7,830,967's independent claim is a 2k+ resolution video camera that records sRGB or rec709 gamma. That's it.
8,174,560 is even more ridiculous. It's a 2k+ resolution camera that records at a 6:1 or more compression ratio. No actual method or anything, just the concept of compressing at least 6:1 compression ratio. Check out indepedent claim #1.
Both of these are very likely to have very easy prior art available. Finding any camera that records high resolution video, made before the priority date would do it.