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What Can Be Patented?
datapulse asks: "I was wondering what exactly can be protected by a patent? Can I patent an idea or a business idea? I ask this because I've always thought that only a tangible invention could be patented. I have a lot of ideas that I believe could be of very good use but I don't have the capital to put them to work." I'm running this one mainly so we can have a discussion on the true meaning of the "patent" and why so many of us disagree with the idea of software patents. As I understand it: patents were to protect the details of implementations, not ideas, but software patents have blurred this area tremendously. (Read More)
Tom Dunstan is wondering if it might not be a good idea to start up some sort of Patent Watch: "It seems that we only hear about patents (taken out in the U.S., at least) after they get granted. How public is the patent registering process? Would it be possible for the FSF or some likeminded volunteers to keep an eye out at the patents office so that we can make representations on the idiocy of some of the patents being granted before they get given? "
Speaking as a holder of 14 patents, at least as a chemist you can patent compositions and proecesses. I believe if you patent an idea, you have 1 year from the filing of the abstract (brief) to append the filing with documentation proving the viability of the idea. Meaning , while you can file an idea, you do need to support it with proof, as well as a through patent search of the prior art to show the patent examiner you've done your homework.
WHAT CAN BE PATENTED
(Excerpted from General Information Concerning Patents print brochure)
The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.
In the language of the statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent," subject to the conditions and requirements of the law. The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products.
The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.
The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented, thus it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.
I'd like to see a discussion (not just on slashdot) about what rights a patent can grant you.
Should I be able to hold a patent, simply for defensive use? If I don't use the patented technique, should I lose it? Should a patent follow the inventor or the investor? Is it fair how I'll have to pay legal costs to defend my patent against pirates?
All opinions are my own - until criticized
is the right question, at least WRT the US lately. :(
I think that patent policy is a very important issue, and I've been concerned since the 1980s that the rising US patent office fees are now being thought of as a direct revenue source. Individuals getting patents (if there are any left!) are poor, and patents are seed-corn for future prosperity. Corporations -- especially non-US corporations -- apply for an increasing percentage of US patents, and a lot of this is because of the higher fees IMO. The stereotype idea of the cash-strapped individual with Einstein-hair (and perhaps Einstein-ideas?) is no longer typical, and it's sad. This effect, combined with a much more promiscuous policy of issuing patents for any-damn-thing, will have profound negative effects on the long-term future of the US. IMO.
JMR
Try e-gold - (contact me). I'm NOT e-
IANAPL ;)
an original invention or an improvement to another
(many, many software patents seem to have been awarded by ignoring the requirement that there not exist "prior art" of essentially the same "invention")
Nonobvious to one skilled in the art
(Try telling a group of non-computer people that some straight-forward hack isn't really nonobvious to a programmer of ordinary skill...)
Geeky modern art T-shirts
I looked at these issues and decided it didn't make sense for me to patent merely "very good" ideas as an individual--the expense and time are too high, and if I wanted to get something out of a patent as an individual inventor, I would have to dedicate my life to the pursuit of that (no fun).
Where I find it probably makes sense to get the patents is if there is a specific technology business you want to start; in that case, you may want to get several patents around that business. And if you want to get VC funding, having patents on your basic technology is important.
Large companies, of course, routinely patent everything under the sun. With a dedicated staff of patent attorneys, a pipeline to the patent office, and a burning need for a large patent portfolio for trading with other companies, it makes a lot of sense for them to patent anything that's patentable, even if it just barely makes the cut (or so the thinking goes, at least).
I think none of this is particularly fair or beneficial for innovation, but it seems to be the rules people have to play by today.
In any case, if you think you have a good idea but don't want to go through the expense of patenting it, consider "disclosing" it in the formal patent law sense (in addition to publishing it). That requires little more than a brief note to the patent office. Formal disclosure will protect you pretty well from other people claiming a patent on the same invention.
hi, patents was originally meant to do good, but we all know that it's not working right now, as the FSF have already pointed out. i remember one patent. getright. it's patented. i'm not sure why a software like that could be patented. it's just another download manager, that cleverly uses some ftp commands to allow resuming! in fact, those ftp commands were there _long_ before getright was invented. i could do resuming with any old ftp client, even the console based one that came with linux/Windows. i must say that getright is a nice tool but it certainly does _not_ deserve a patent. i read on the news that someone's trying to patent herself (in great britain, i think.) because of all the gene research going on...
If I invent an object I patent that object and therefore I own intellectual rights over it's creation.
This can also be applied well to the physical process of production, ie how I made it
The problem now is that patent law is being applied to areas where it doesn't apply
Take for example software patents. Amazon wrote code for the single click process and that code is theirs. However they patented the process of application rather than the process of production. Basically like if macdonalds patented the idea of taking money and putting it in the till rather than patenting a specific till design.
I've been thinking about this a lot at the moment. In Pharmacuticals there is a very specific patent system whereby after a certain number of years people are allowed to release the same product freely. Maybe a derivation of this law would be better applied to the software industry, whereby people own the rights to their product for 5 years after which time it becomes freely available. IANAL and I'm not entirely au fait with the process of drug patenting, but I think this could be worked.
ALthough also with the distinction between production and use. 'Cos Otherwise I'm off to patent the hamburger.
Working for the (other) man
Having been through a few patent actions, here are some of my lay-person's "reads" on patents. Patents can be awarded for devices and methods. The system is supposed to encourage the sharing of technical ideas in a public way -- while protecting the rights of the inventor. Patents need to go through a defense before they really have any validity. When you apply for a patent a search is done to try and locate prior art. They use the citations you provide and try and find other references that could disallow one or more of your claims. The process is not exhaustive and any prior mention of an invention or a test, etc. can be used to show that someone else had an idea earlier. You can protect your ideas by filing disclosures on them -- this doesn't give you the right to be able to assert the idea economically, but it would disallow someone else from exercising an awarded patent if your disclosure proceeded the ... (I think) date of application, not award -- lots of date issues in patents that you have to watch out for. We tend to file a lot of disclosures with our lawyers (this costs zip) and keep them in our back pockets to prevent someone from asserting a later patent on us. One other comment -- the real cost comes in trying to defend the patent in court and this is carried out in a normal court room with a normal judge or jury that may not grasp all the technical finery of the topics -- it becomes a teaching show, where the best (most expensive) exhibits can sway the process -- not that we ever went very far through it, we settled -- which most people end up doing rather than give years worth of profits to the lawyers. Disclaimer: these are my opionions, I'm no patent expert ...
The legal basis for patents in the USA is, as I understand it, something along the lines of promoting commerce by encouraging people to share what they might otherwise keep secret in order to retain a competitive edge.
If that is correct, then the implications are astounding: you should only be able to patent something that others can not observe.
For instance, suppose you are a musket maker and you start making firearms with rifled barrels. People notice the increased range and accuracy of your work, and it doesn't take a genius to look down the barrel and see what you have done. One cannot, however, tell how you did it.
So patenting the rifling itself does nothing to promote commerce; indeed, it hinders commerce by keeping other craftsmen from producing the more technologically advanced work. But patenting your technique for rifling the barrels does promote commerce, because it allows licensed parties to start rifling barrels by your method, which otherwise they would not have been able to deduce (unless, of course, it was "obvious to a skilled worker in the field").
Hence my conclusion: if my understanding of the basic phrasing of the legal basis for patents (in the USA) is correct, and if that written basis was for real (rather than, say, just a nice excuse to justify something that the public might not care for otherwise), then it should not be possible to patent anything observable, whether it be one-click shopping or windshield washers. Patents should only apply to things that would otherwise be trade secrets, if not revealed by the patent.
Caveat lector: I am not a lawyer. (But I will consider honorary degrees from suitably prestigious institutions!)
--
Sheesh, evil *and* a jerk. -- Jade
Much of the debate over what patents are legal seems to focus on ones that don't fall under that standard...they're not new ideas, and therefore patenting them is equivalant to stealing. (for instance, the whole amazon patent thing that's been going on.) In those cases, the patents most certainly should not be awarded.
I for one don't really like software patents and the like, however, i think that releasing those ideas is really an ethical issue for the programmer or company that created it, and they should still have the oppertunity to patent their ideas and use them how they wish.
How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
Judging by the latest trend in patenting everything under the sun, I think you can patent everything under the sun except for what someone else has already patented.
Personally, I think the patenters aren't really patenting things to safe-guard their ideas. I think it's a funky new type of DoS attack on the system that overlooks, approves, and files the patents. "... Dude--if we patent everything we can think of, that'll like... make it difficult for anyone else to patent anything and then we'll crash the patent system! Yeah!"
/will
League for Programming Freedom -- organization that opposes software patents and user interface copyrights.
Free Patents Pretty much what the name says. Patent reform. No software patents. Etc.
Patently Absurd-- Great, but old, article from Wired about the Patent office.
HTH
Because the snark was a...
From the information on the USPTO site which I posted it seems that one can patent an idea. It just has to be a well fleshed out and specified idea. This means with drawings and blueprints if possible. This allows for the patenting of a machine,process or manufacture when the inventor cannot afford to build it.
For instance, there are several patents for devices that have not yet been invented yet. IIRC several oil companies have patents on various electric cars or electric car concepts defensively so as to make development of such cars more difficult.
Anyway to answer the ask slashdot question, if your idea is concrete enough to be specified in documentation as opposed to something vague like "a website like Amazon but for geeks" then go for it. The patent office does not require a working model or implemntation of your idea to give you a patent.
Saw this the other day on Yahoo News:
This one's a little wierd, but in the current atmosphere it makes some sense: Woman patents herself.
You can trust me. I'm with the government.
While I'm not to wild about software patents myself, your reasoning is not really usefull. After all, all ideas can be converted to very large numbers. patents forbid you to use that number, they forbid you to use that number _in that context_.
It would be interesting to have answers not only about US patent legislation.
What about Europe, Japan, the rest of America,...?
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__
Men with no respect for life must never be allowed to control the ultimate instruments of death.
GW Bu
Today we have huge amounts of open-source software, but very little of it has been challenged on patent grounds. Even where such issues arise, they usually seem to be known about before the "infringing" software is written. The only minefield case I know of was the GIF patent, and even there the effect on the community was minimal because the owners behaved sensibly.
And in general patent holders will behave sensibly. In theory Megacorp could sue some innocent Joe into eternal insolvency over a single patent. In practice Megacorp knows that they will never recover even their legal fees, and the bad publicity will cost even more. If Joe is making money from the patent then they will want to come to some licensing deal that leaves Joe in business (no point killing the goose that lays the golden eggs), and if Joe is smart he will negotiate coverage by their patent umbrella as part of the deal. And if Joe is writing free software then litigation gains them absolutely nothing.
Yes, there are things that could be done to reform patents in general and software patents in particular, but the sky is not falling down.
Paul.
You are lost in a twisty maze of little standards, all different.
patents can cause strange stuff: one of the stranger ones: Kevlar, a very strong aramid fiber. quite a bit stronger in tensile strength than steel. There are 2 manufacturers at the moment (or up to not so long ago). 1 has the patent on kevlar. However, the process for the creation of kevlar involves some pretty hefty chemicals only allowed in laboratory use, not for large-scale production process. The second company has patented an alternative process for Kevlar. Now they both produce the stuff. They decided the best way was to cooperate, for neither could produce kevlar without the other ones consent.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
I saw this article at the Chicago Sun Times today, March 2nd and it shows the lengths someone has gone about getting a patent on herself.
-m
The one mistake here is this: you say the FSF would be able to accumulate a large portfolio of patents. That is incorrect and would also be phenomenally more expensive, wasteful, and ineffective for the desired purpose. The FSF is not _about_ hoarding and propagating restrictive intellectual property! That's appalling.
Instead, what I'd LOVE to see is the FSF maintaining such a database, for people to file anything they can which can be written in the form of a patent (i.e. detailed and explicit). The database would be broadly, publically accessible, but more importantly, there _is_ a substantially cheaper means to file a claim that a thing is in the public domain. It might still be costly for inventive but broke programmers living on Ramen, but it'd be well within the ability of the FSF to cover this cost for the idea donators.
Once an idea is filed with the patent office in this manner, it is _formally_ not available for a patent. I think this mechanism was originally intended as a block while a company got together a formal patent, but it's just sitting there waiting to be used by something like the FSF. Not only is it explicitly a public-domain-maker, patent-blocker by express design, it is also substantially cheaper than filing a patent! It'd be a terrific resource.
Please, FSF, start doing this! Hunt down the proper forms and arrange with somebody like SourceForge for the web space and bandwidth and throw open the doors for inventors and programmers to file ANTI-PATENTS, free for anybody to use with the one restriction being you can never file a patent on the things. It's the IP version of the GPL, complete with using the mechanisms of the patent process against itself. Please?
For a change, it's easier for poorly-funded individuals to be illegal in this manner, and harder for big corporations and businesses to get away with it. So, interestingly, this might prove to actually be a mechanism to hurt large corporations and bullying businesses. Their very nature means they have nowhere to hide from the patent-oriented attacks of other large corporations and bullying businesses. Meanwhile, poorly funded individuals can, to some extent, completely scorn and ignore the patent system and just play the odds hoping to not be made an example- if caught, the thing to do would be to roll over and play dead and erase all your (GPLed, and widely mirrored) software and bow out of mailing lists and communities for a time. "Me, an intellectual property criminal? I _never_ coded that toolbar that is like the MS patent! It was a bunch of us over CVS at a server that used to be around at the time. No, I don't remember who else was there. It was dark ;) Yes, I'll erase my copy and turn in my copy of the illegal crime tool 'egcs' to the police... *whistles innocently*"
If you go to the USPTO website, you will find there are several job openings for people in computer science to help establish the legitimacy of patents. If the jobs are available, that means they are not filled oddly enough. Which means we don't need a patent watch any more than any other industry, we need some people to apply for the damn jobs!
I don't have the experience they require and I abhor filling out the 99 forms they want you to fill out to even get considered, or I'd do it.
Esperandi
That's 35 U.S.C. section 101. Section 102 provides more detail on the novelty standard, and Section 103 lays out the unobviousness standard. There are some other provisions, but these are the key ones. The Courts have provided substantial gloss on this, and have added some judge-made limitations on the scope of a patent as well. Among those limitations recently abrogated was the business methods rule and the broad construction of the mathematical algorithms rule.
It is clear that you can't patent an idea in the abstract, but you certainly can patent an implementation of an idea. Two recent cases are well worth reading if you have an interest in this area. One, AT&T v. Excel , dealt with a very simple software solution in telephony involving a straightforward data structure. The Federal Circuit held that it was patentable under Section 101.
There, the Court noted
As applied to software, the Court noted that
The State Street Bank & Trust Co. v. Signature Financial Group, Inc. discusses in some depth the business methods exceptions. These are the key cases, and essential reading for anyone who really wants to understand what is going on today with respect to the patentability subject matter standards.