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That would make sense if there was a shred of evidence that people only invent things because they hope to patent them. Say maybe if the world were full of saying like "IP protection is the mother of invention" or "invent a better mouse trap and the world will grant you exclusive use of the idea for a limited time."

Or suppose we had clear evidence that primitive people lived lives little different than those of other animals until some freak accident created the first intellectual property laws, triggering the taming of fire, agriculture, and so forth.

Of course, we don't see any of that. We don't live in that world and it takes a rather twisted view of human nature to swallow the notion that patents somehow cause invention.

On the other hand, all it takes to support the notion that patents were intended to cause disclosure of inventions is a little reading. For example, in the second paragraph of The Patent Act of 1790 we find the prerequisites for obtaining a patent and the reason for them spelt out. In the second full sentence of US patent law we are told that those seeking patents must:

[...] deliver to the Secretary of State a specification in writing, containing a description, accompanied with drafts or models, and explanations and models (if the nature of the invention or discovery will admit of a model) of the thing or things, by him or them invented or discovered, and described as aforesaid, in the said patents; which specification shall be so particular, and said models so exact, as not only to distinguish the invention or discovery from other things before known and used, but also to enable a workman or other person skilled in the art or manufacture, whereof it is a branch, or wherewith it may be nearest connected, to make, construct, or use the same, to the end that the public may have the full benefit thereof, after the expiration of the patent term;

If you want a patent on your gizmo, you have to fully disclose the details so anyone reasonably competent can make and use one after the patent expires.

That is what society gets out of it. The promotion of progress isn't about gulling people into inventing stuff (they were doing that already). It's about making sure that other people can copy those inventions, build on them, progress from them, rather than having the secret die with the inventor thus forcing everyone else to (as the saying goes) "reinvent the wheel".

--MarkusQ

The observation that its both true that its hard to keep secrets and that society doesnt benefit from secrets is obvious. The justification for patents is that you no longer have to try to keep your manufacturing process a secret, that the government is willing to grant you exclusive rights to it for a limited time, but this service is in exchange for public publication of your process. You still have liberty and can choose not to patent your process, but then you run the risk of a competitor spying on you or independently coming up with it themselves.

This is completely true.

But what we have today is a situation where not only are manufacturing processes patented, but also features of the products that those processes make. One-click, rounded corners, and so on.

But this is false. Aside from the fact that you're referencing a design patent on aesthetic ornamentation, which is a different animal altogether (and more like trade dress), manufacturing processes were not the sole domain of the original patent act. Rather, as with the current 35 USC 101, the Patent Act of 1790 granted patents for any useful "art, manufacture, engine, machine, or device, or any improvement therein". Machines were absolutely patentable, even though once sold, they could be easily taken apart and reverse engineered, contrary to your statement here:

You see that the justification for manufacturing process patents doesnt justify these new types, for these new types cannot be kept secret and in fact are by definition only valuable when they arent a secret and are displayed openly as features of the product.

In fact, the very first patent, back in Florence in the 15th century, was for a low-draft merchant boat, not a manufacturing process.

That is a new law.

"New" as in from 1790. Specifically, the 1790 Patent Act - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.

The original constitution states "physical inventions".

Au contraire. The Constitution grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The phrase "physical inventions" does not appear in the Constitution.

In fact, the word "physical" does not appear in the Constitution.

If it subverts the original meaning that is grounds for the supreme court to throw it out.

First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.

Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".

Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.

The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.

You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.

Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.

I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?

What I want to know is if laws of nature as unpatentable are a European idea or American or both?

Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.

The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.

As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.

Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.

And yet the economy continues and Apple

That's not copyright law from the year 1852, that's just the sequentially numbered page on that website. If you want to read up on 19th century US copyright law, try this pdf file. It covers 1790 through 1905. It really wasn't until the end of the 19th century that any sort of infringement was criminalized. It made certain infringing public performances a misdemeanor, so infringers faced up to 1 year.

However, here's the important thing: to take advantage of their patents, Microsoft does not need to sue.

According to Doctrine of Latches Microsoft eventually has to enforce it's patent rights or it loses them.

Can you imagine the havoc this can still wreak despite no past damages? Some ingrained system is distributed with Linux, and then a few years after some major corporations have settled on using it, Microsoft jumps out and says, "Okay, fine, you don't have to pay retroactively since you didn't know. But from now on, pay us $10k per computer."

Even if MS were able to enforce legal patents and do this, they first have to name the patents being violated. Within days of naming those patents the offending code will be removed and new code added. So there won't be much if any disruption in the market. But let's say there is a big disruption, then some big businesses would be hiring big lawyers and lobbyists to pressure congress to make software patents illegal. Either way MS would loose.

I'm pretty sure you can only lose rights to sue for not enforcing Trademarks, not patents. If you can find any evidence to the contrary, please post it.

Thanks to another poster I found this:

" *11 The doctrine of latches, meaning undue delay in claiming one's rights, may result in loss of those rights. In this case the loss may be the right to a priority date, or the right to a patent."

If Microsoft takes too long to enforce it's patent rights it loses those rights. What I don't understand is that because MS has some good lawyers who can explain this to MS MS hasn't filed any lawsuits. The only reasons I can think of is to spread FUD or because they have no evidence to back up their position.

Fiber is paid for by the telcos, not the gov't so is not a tariffed service. While Verizon MUST lease copper to competitors, it isn't compelled to lease fiber access. Verizon cutting the copper is effectively cutting off any competition that was not a Baby Bell in a past life.

You may want to correct this statement. The government has and does subsidize fiber. The fiber-to-the-home project is funded through the Agriculture Department's Rural Utilities Service (RUS). Adam Golodner, deputy administrator of the RUS says: "We do encourage the development of technology that would bring broad band to the home at reasonable cost to meet the growing demand in rural areas by citizens who recognize perhaps more than citizens in urban areas that telecommunications shrinks time, distance, and space." As a percentage of funding of different broadband technologies as of September 2006 RUS (pdf) has spent "30% of approved and funded projects employed fiber-to-the-home technology, 24% employed DSL, 22% wireless (unlicensed), 19% hybrid fiber-coaxial (cable), 3% wireless (licensed), and 2% broadband over powerlines (BPL)."

"Savvy developer wins federal money to wire homelands"
By Kevin Dayton
Advertiser Capitol Bureau Chief

A local politically connected company is eligible for as much as $400 million in federal loans to weave fiber-optic cable through Hawaiian Home Lands on six islands, even though much of the land is undeveloped and lacks roads, water and electricity.

" No action may be brought under this title , or under section 337 of the Tariff Act of 1930, alleging infringement of copyright based on the manufacture , importation, or distribution of a digital audio recording device, a digital audio recording medium , an analogue recording device, or an analogue recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analogue musical recordings."

but the whole concept still seems ridiculus to me

I don't know if I find it that ridiculous. Gambling has long been one of the primary sources of funds for organized crime. Various criminal organizations have long used gambling to launder money from other activities. There have been a number of articles published in various sources warning that funds raised from internet gambling are finding their way into criminal organizations. Plus there is the issue of loss of tax revenues. Also there have been studies in both the UK and US that show internet gambling attracts a much higher percentage of addictive or pathological gamblers (75%) vs. the 20% normally observed at casinos.

as they had resigned from the company before that law even came into effect.

You are assuming they are being charged under this new law. I have not seen any indication that this is the case. The US Atty General's statement is "connection with the creation and operation of an Internet payment services company that facilitated the transfer of billions of dollars of illegal gambling proceeds from United States citizens to the owners of various Internet gambling companies located overseas". There are US laws going back to 1961 covering wire tranfers of funds associated with gambling. This link contains a summary as of 2004 of these laws. It looks to me like these people are being charged with money laundering provisions under one of the older laws rather under the recently passed Safe Port law.

Yeah, I know about Hugo.

It is poorly organized, but there are copies of prior US federal copyright laws (and colonial laws, and the Statute of Anne), here.

As for vesting, I think that it should be more like patents. Upon creating a work, you can get a copyright, but that window of opportunity swiftly expires. Thus, authors that don't care (such as most of us here vis-a-vis our posts) can take no action and no copyright will ensue, but authors that do care can engage in a token action so that they are identifying themselves and the relevant works, and can get rights in them. For patents, it's a year from the time when the invention becomes publicly known (paraphrased). I figure that's a good span of time.

And with regard to int'l copyright, the only treaty obligations I will tolerate are 1) national treatment (that is, a country treats foreigners just the same as it treats its own people), and 2) an agreement that whatever conditions various states set on copyright, they work to avoid conflicts such that it would be impossible for an author to simultaneously get copyrights in various countries. (e.g. if the US said that you had to get the copies made in the US, and China said you had to get them made in China, you'd have to pick one, and I would be opposed to that)

Any particular minimum standards, however, I disagree with. Each country should do what it feels is best for its own people and goals.

i'm a law student at franklin pierce law center in NH, and am currently working as a student attorney at out IP & Transaction Clinic (where we provide free legal services). if you are interested, then check out http://ipmall.info/news_activities/concomlawclinic .asp and contact us. we might be able to help you out...