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First, I have to admit that I had to look this up -- this is not from my head. :-)

However, the beta testing phase at a software company is generally defined as being a phase in the software life cycle during which the software is being tested to find any possible incompatibilities or user problems outside of the (small) initial development testing group. It is an phase that has one purpose -- to verify and test the software.

There is provision made in case law for experimental use, which does not start the one year patent application clock running.

Note that it is possible to call something a "beta" release, but still not have it be protected. The purpose of the release must be to test the software. I know a couple of packages that have been in "beta" for ages and are widely used. It's the purpose of the release, not the name that matters.

However, I'd say that Microsoft would have a pretty good case that their Chicago release was for experimental purposes.

Are they saying it's somehow illegal for Company A to read Company B's patents?

It's not illegal in the normal sense, but willful infringement makes it much easier for the patent owner to claim triple damages. Thus, you're better off never reading patents so you can honestly claim ignorance if you charged with infringement.

If it weren't inevitable that you're breaking countless patents as soon as you sit down and write a program over a couple hundred lines, this might be insane. But since the odds are effectively 100% you're violating a patent or can at least be construed as violating a patent, it makes sense to minimize claimable damages, since you can't eliminate them short of not doing anything at all. (That's hard to build a business on.)

So it's not illegal in the "it's a felony" sense, but it is illegal in the sense of "if you behave in this fashion, you will end up being legally penalized".

Incidentally, this is a classic example of why it's so hard to write laws. You can't assume that "first-order effects" will be the only effect of the law; in fact this is a case where the desired first-order effect isn't even dominant.

The obvious cause for this law to be written was to strengthen patent law by making people less likely to infringe patents by penalizing them if they do it knowingly. Instead, because of the second-order effect of people not reading patents at all in order to avoid the treble damages, the patent system is weakened by making sure nobody ever reads the patents, causing us to live in a world (after a bit more logic) where there are so many patent violations nobody even knows how many there are.

It's also easy to propose a solution to the problem on Slashdot, but a lot of them (all of them?) have equally horrid second-order effects themselves. This stuff is hard to work out.

From lawnotes:

Q: Is Infringement OK As Long As Not All the Claims Are Infringed?

A: No -- infringement of even one valid claim results in liability.

These may be invalide, but also note:

A defendant can avoid liability by proving that every infringed claim is invalid. It is the defendant's burden of proof; the patent owner need not prove that the infringed claims are valid.

This last bit is one of the biggest problems with the current patent system: it requires financial and legal resources to prove that a patent claim is invalid, and individuals and small organisations facing patent claims may not have access to this, even though the patents are stupid.

Take a look at
http://www.lawnotes.com/patent/claims.html for some details. I obviously cannot vouch for the accuracy, but I'd guess it's pretty good.

Basically the broad early claims do have force (unless deemed unenforceable or whatever by a judge.) Certainly infringing on claim 1 in the MS patent in question is enough to bring a lawsuit, and then you'd need a few $m in the bank just to fight off the patent (which is enough to intimidate, even if the patent does not hold up in court.)

I agree with many here that the current patent systems are rather ridiculous (basically those doing the checking cannot possibly have enough expertise in the relevant area to evaluate the 'obviousness' or novely of a given claim, yet their approval puts the burden of proof on others to prove that they have not infringed: it is this shift in the burden of proof, and how easily it can be obtained that is a large part of the problem.)

Most of these Eula's are unenforceable anyway.

Really? Are you a lawyer? How did you reach that decision? What country are you discussing when you say that?

For Canada, you're quite wrong. There have been cases and EULAs have been upheld.

In the US, it's more questionable. There have been judgements either way, but from my reading of this article it would apear that they are more likely enforceable than not. The ProCD case is pretty damning from the POV of the average consumer. You don't even need to be able to read the license before agreeing to it as long as you can return the software afterward. Isn't that fun?

There are exceptions. The license cannot violate the law, nor can it be "unconscionable" (yeah, there's a term that'll be fun to define, just like "pornography"). The appellate court's ruling is not binding except inside of it's perview, and even then only specifically to Wisconsin. But it's apparantly a well regarded Federal appellate court and its decision is going to be cited/referred to in any other cases regarding EULAs.

IANAL. But I'm at least willing to do a Google search rather than spout my opinion on this kind of thing. I find most of the more absurd T&C's in EULAs to be "unconscionable", as I'm sure many /.ers do, but that doesn't mean it's going to hold water in court.

When you file under the PCT, you don't get a patent in every country, you merely reserve a date and allow the patent to be brought into various other countries. Here is a PCT FAQ from a Canadian law firm. Here is another FAQ. And here is the WIPO FAQ about PCT.

While that is true for U.S. patents, I would very surprised if Amazon didn't have an application pending already, before doing the press release. Many if not most countries other than the U.S. have an "absolute novelty" requirement that prohibits filing an application for something after it has been publicly disclosed unless the application can claim priority of another application, e.g., one filed in the U.S.

If Amazon has indeed filed a U.S. application with intent to file overseas as well, that application will be published 18 months after filing.

Ed Suominen
Registered Patent Agent * Open Source Developer (Yes, both...)
+ http://www.eepatents.com
+ Nothing above to be construed as legal advice or the opinion of my firm or any client.

From http://www.lawnotes.com/patent/patblty/nonobvio.ht ml
What is the Nonobviousness Requirement?

A: Obvious inventions can't be patented.

Even if the subject matter of a claim is "novel," in that it has not been exactly done before, it may still be unpatentable. Under section 103 of the patent statute, if the claimed subject matter would have been "obvious" to a hypothetical "person of ordinary skill" in the relevant art(s) at the time the inventor invented it, then the claim cannot be patented. [35 USC 103]

Most foreign countries have a similar requirement, often described as the "inventive step" requirement: An invention that lacks "inventive step" is not patentable.

I thought it had to be non-obvious to someone "skilled in the art" or somesuch?

Under section 103 of the patent statute, if the claimed subject matter would have been "obvious" to a hypothetical "person of ordinary skill" in the relevant art(s) at the time the inventor invented it, then the claim cannot be patented. [35 USC 103]

Either way, the patent office doesn't seem to apply this rule very often. How about the patent for `method of exercising a feline with a beam of coherent light' or whatever the name was? My two year old daughter could figure that out.

No.

To apply for a patent, paperwork must be recieved at the USPTO within 1 year of the invention's public use or publication. "Prior artists" who hadn't thought about filing a patent before will usually find it's too late to start one now.

(Note that once the application process has started, it's possible to drag it on for years and re-apply several times before the patent is granted or denied. Some companies have intentionally delayed the awarding of their patents, as a way to extend the eventual expiration date)

Well, there is an "obviousness" exception, related to prior art. Shouldn't that take out most of this? People have been doing keyword searches since the invention of the index, for example.

The nonobvious exception is of course nonobvious in appplication. And the USPTO doesn't always get it right -- though the eventual litigation might. :)

Certainly this sort of discussion is nothing new.

Please someone mod the above post down! (not up!) That guy is a *moron*.

"Falsely indicating that a patent application is pending, for the purpose of deceiving the public, can result in a fine of not more than $500 'for every such offense'. Any person may sue an alleged false marker and collect half of any fine paid, with the other half going to the U.S. Government."
http://www.lawnotes.com/patent/patmark.html

According to many online sources (e.g. the U.S. Copyright Office or Lawnotes), works created by the U.S. Government are not copyrightable. However, the government can aquire copyrights for works created by others.

Do it yourself and you could end up making matters worse for yourself (read: willful infringement) or making a mistake.

Here is a brief overview of patent infringement lawsuits. If this does not make you want to seek legal help, then I wish you luck.

Export-level Encryption Proves Insufficient

Yes ... that was the point.

The rules were relaxed a couple of years ago though. Link. You can export anything after it's been reviewed.

http://www.globalideasbank.org/BOV/BV-393.HTML

The biggest problem about getting science fiction applied in what is laughingly called 'the real world' is the old Catch-22. It is best exemplified by Arthur C. Clarke's explanation of why he is not rather better off than he actually is. When he first had the idea of the communications satellite, he tried to get it patented. 'Come, come, Mr Clarke,' said the people at the Patent Office. 'We're a serious outfit, we haven't got time to waste on fantastic ideas like this.' Years later, when the first satellite (with which Arthur was actively involved) actually went up, and the nations were queuing to get their own satellites up, Arthur went back to the Patent Office. 'But, Mr Clarke,' they said, 'the satellite already exists. You should have come to us earlier.'

Typical Bureaucratic bungling.

and there is more:

The very first paper describing the very first constellation, consisting of three satellites in geostationary orbit. Allegedly the only accurate science-fiction prediction ever. Authored by the famous Arthur C. Clarke, before the space race, before Sputnik 1, and before Arthur C. Clarke became a famous author. (There's a mirror of the paper. And now we call it the Clarke orbit, and you can simulate the original proposal.

This Page also discusses the legal issues because at the time Clarke wrote his paper, there was no way to get a satellite into orbit to begin with.

In the case of willfull infringement, the patent owner may be entitled to treble (3x) damages.

-snellac

Also, you can use a trade secret if you discover it legally. You can't steal the secret from a safe. You could analyze the product yourself and try to duplicate it. The secret holder is not required to confirm that you did it right, of course. But the keeper of the secret has no legal protection against someone else rediscovering the secret. [IANAL; you can look it up in any introductory protection document]