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Patent Office Director: "My Hands Are Tied"
Goatbert writes: "Grant Gross from NewsForge has posted a report on a panel discussion on patents featuring TCP/IP co-inventor Vint Cerf as moderator, and with Tim O'Reilly and Todd Dickinson, director of the U.S. Patent and Trademark Office. Very interesting read, with some good (and bad) ideas on patent laws."
I'd like to see this apply to all patents, though, not just those in the software industry. Your argument fits in other areas of commerce as well, I think.
The Divine Creatrix in a Mortal Shell that stays Crunchy in Milk
The House Between - Original Sci-Fi Series
And you are violating my patents: a method for transforming any statement about patents into an obvious claim on a related patent; and a method for posting such a statement onto a moderated website.
[off topic]
In SF here we are realizing that there is a problem with our streets. They were not designed well for the amount of traffic we have, now for the peds, or even the bycyles. They are starting refor this year.
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The patent office is going to start to go through the same thing. It is about time. 4 years ago I worked there and it was a goverment beaurocracy that was riddled with BS. Any idea was either getting rejected or allowed based on the supervisor that was reviewing the patents of his examiners. I don't blame the examiners, I blame the system. 'one click shopping' -. oh please. That is obvious. I think that next year we will be seeing many changes in the way we think about things within the USPTO and outside it.
The big appocalypse that Nostradamous predicted was vastly misinterpreted, it is not the end of the world, just the end of the world as we know it. The future holds many changes, of which we will see in the next 5 years.
HINT: There were no political fights at the olympics like there were in the past, with the russians and the us or some other countries. It was all fun and games.
I don't want a lot, I just want it all!
Flame away, I have a hose!
Only 'flamers' flame!
Put simply, it is the so-called businessman that makes it happen.
More accurately, it's whoever takes the initiative that makes it happen. That doesn't have to be in a monetary framework. For example, an inventor (or programmer) invests time and energy, sometimes in great quantities. S/he's the one who "makes it happen" first. Sometimes a businessperson can help, but the gold they run away with is usually way out of proportion to their contribution.
Without "capitalists" like that...yeah, I think it's pretty safe to say this country would be no where today.
Ummmm, speak for yourself, I have more faith in our culture than that.
There it is again, the capitalist attitude taking credit for everything good that happens (and nothing bad?). I think it's more the spirit of taking initiative in general that contributed to whatever the USA is now. Again, that doesn't necessarily mean "free market". I can take initiative to build a log cabin, grow crops, or write a great Web server without money entering the equation.
It didn't hurt that the USA had vast arable land, a good climate, and two oceans to separate us from invaders. To credit all of our prosperity to merely our economic system is ignoring a lot.
Where are all the great inventions from China? Russia? Or even, to a lesser extent, Europe? They're few and far between...
If you're implying that the only contributions to the world are in the form of profitable inventions, then I respectfully say that you have a lot to learn. That's something I can't explain in one post. But consider music, other art, common sense, human wisdom, family wisdom, spiritual wisdom, ... the list goes on.
But addressing the point directly-- Don't be fooled into thinking that communism in China and Russia are the only forms of non-capitalistic economy. Those two are/were merely military regimes. Soviet Russia, for example, actively squashed other more democratic forms of communism that tried to arise, like the Prague Spring in 1968. It's just as possible to have a democratic communist as a democratic capitalist system. (Chile had that with Allende until the US overthrew it and installed a dictator; the same happened with Nicaragua, I believe.)
For the record, I'm not a communist; I just see serious problems with our current capitalism that need to be addressed. One is the major blind spot that one's wealth measures one's contribution to the world, and the belief that people only create things out of greed. In believing that, we've created a system where it's very difficult to create things other than out of greed.
Where does all the money come from that allows these "scientists" to research? Do you think it's any coincidence that most early inventors were aristocrats or part of an emerging middle class?
It's true that to do R&D, it helps to not have to wonder where your next meal is coming from. In the old days, it helped to have a royal benefactor. But today, we have the means to ensure that few if any go hungry. I'm not talking about a life of luxury, I just mean not desperate. If we did that, more people would be able to research science, write software, create art, etc.
There are other things to say, but that's enough for one post.
Martial arts is much more than the study of how to fight - it is mainly - at least at the highest level - a study of why humans fight. I understand how to fight, when to fight, and when not to fight.
My problem is not that the court room is a battle front - my problem is why the courtroom is a battle front.
We as humans have been fed the idea since the earliest of times that the only way to determine the truth is though battle. Battles are a lousy way to determine truth! How can anyone hope to arrive at the delicate beauty of truth by the ugly process of a fight? All battles result in destruction - not construction. Whether battles are physical, intellectual, emotional, or otherwise the result is damage.
Evil is about destruction and the creation of human misery. As a result the destruction caused in fights is always part of evil's plan.
Evil gets away with this because of the natural fighting which bulls do to set up a pecking order - so those of us who are not evil will buy the idea that the fights that evil people sell us on are a good and natural thing - they are not.
So ingrained in our thought patterns are the fighting ways which evil has conned us into that it is hard to imagine any other way of doing things. Here is a suggestion:
Suppose that instead of an adversarial legal system that we adopt a cooperative legal system which works in this way: any people who use the weasel arguments typical of lawyers are deemed uncooperative and automatically lose . This is not a fool proof system - but it is infinitely superior to the system which evil people have foisted off on us. It at least stands a chance of working. That is a lot more than the system we have been handed - which everyone seems to accept without even questioning it.
The problem with your amoral view - that it is not your place to decide which of us is right - is that by taking that position you surrender your part of the world to evil. Be aware of that simple fact.
The problem with your amoral view - that it is not your place to decide which of us is right - is that by taking that position you surrender your part of the world to evil. Be aware of that simple fact
This is the only part of your reply that I disagree with absolutely. It is not amoral, it is in fact a statement of my own morals and ideals, which whilst different from yours (as evidenced by your classification of my position as amoral) are held as strongly as yours. For the most part an enlightened society frowns on an individual taking upon themselves the right to judge their peers. There are places where however distasteful we find it an individual must be given that responsibility, as part of their duty to the society they live in but outside those areas both the principle of allowing personal freedom to live ones life as one sees fit and the principle of "judge not, lest ye be judged" apply. Nothing has given me the right to say your statement is "right" or "wrong", but nothing can take away my right to either agree or disagree with your statements. As it happens I agree with most of them but that doesnt make it any more "right" than it would be if I didnt. Absolute right and wrong are not in any human hands to judge no matter how loudly and stridently some may claim the right to usurp a power that almost every faith reserves to the divine. Personally I think that if a few more legislators remembered that we'd have a lot more common sense in the making and applying of laws.
# human firmware exploit
# Word will insert into your optic buffer
# without bounds checking
I had a
There's a great organization, which is easily the most funded secret organization in existance. Unlike some secret societies (which are highly secretive), this one is somewhat public. Not in membership or what they talk about, mind you, but in their results. This organization's decisions visibly shape American foreign policy. They even have a periodical, Foreign Affairs, with article which, though seemingly bipartisan (laugh now), are so close to each other in terms of political POV that they are the same. Amazing to me is that they have a website with public access.... (Just don't believe the bulldrek.) This organization consists of some of the more important business, political, and military leaders of the nation, as well as no small number of NY Times journalists, who serve as background on the NY Times massive policy reviews, once they are announced. In 1972, there was a quote, which boiled down to there not being a damn's worth of difference between CFR Candidate Nixon and CFR Candidate Humphrey. That situation exists today with CFR Candidate Gore, Jr. and CFR Candidate Bush, Jr. That's why I am encouraging everyone who prefers to have a better life online and in the real world to vote for Ralph Nader. Click the link below, and you get to see where he's going, and show your support. Remember: The real majority in this country consists of people who don't vote. Make your voice heard, unless you like living in a country for the GM's, by the Exxon's, and of the GE's instead of for, by, and of the people.
I used to be someone else. Now I'm someone better.
Real life is underrated.
Patents are fundamentally non-cooperative and exclusionary. That is their purpose.
On the internet, an environment which depends on collaborative refinement and exposed technology, patents are counter productive and, if unchecked, would diminish the usefulness and usability of the internet in favor of granting privilege to a few.
The question is now: Will those enlightened enough to understand this prevail against the anal-retentive children who threaten to take their ball and go home.
The remedy is of course to change the game...
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
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Lessig framed the debate about software patents (really business method patents) as being 3 separate debates: 1) Is there really property involved, i.e. should the patent office even be involved? 2) Is the property being properly administered, i.e. the way in which the patent office is handling things. And 3) should there be a separate class of property defined for business methods?
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When Jeff Bezos asked Tim O'Reilly whether he [Tim] thought Amazon was justified in pursuing its patents, Tim told Jeff that he was "pissing in the well", because he was angering both his core customer base and the very people that provide the technology Amazon's business is based on.
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At one point, Lessig remarked on the '97 change in business practice patent law by quoting Norman Mailer: "Being evil is doing something you know is wrong. Being wicked is upping the ante without knowing the consequences."
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Dickinson started out the night by stating that his staff had researched the earliest relevant business patent they could find. It was from the 1860's, and covered the process of creating a hotel registry book which had advertising down the margins. The patent included a hand-drawn picture of such a register, which Dickinson held up for people to see. That drew a lot of laughs, because the register looked *strikingly* like a web page.
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Dickinson stated that a new "18-month publication" rule will be in effect soon, whereby the review process will be shortened. He also indicated that, starting sometime next year, they will change the rules so that applicants can apply for legal relief from the time they submit a patent for review, rather than having to wait until the end of the review process.
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O'Reilly's comment about farmers and ranchers was actually the very last comment of the night, given as Vint Cerf was about to dismiss the crowd. In context it was a conciliatory remark that he made to try and explain to Dickinson and Walker why there was such emotion from O'Reilly's and Lessig's side of the debate. The comment drew the biggest applause of the night, and my companions thought O'Reilly had been pretty shrewd to nab the last remark as he did.
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At one point, Walker stated that Priceline's business method patents were a driver of innovation across the industry, because people had to "find ways to work around" his patents, instead of copying his methods of doing things.
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In contrast, Vint Cerf jumped in at one point to state that he felt the "View Source" option in web browsers, and the fact that it was easy to copy someone else's methods, was one of the primary reasons the Web had grown so fast.
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Lessig at one point suggested a compromise: allow patents, but forbid lawsuits to enforce them until a comprehensive review of the effects of business method patents could be conducted. This struck me as remarkably naive, especially for a law professor. Walker was just about apoplectic - "You want Microsoft to take my property? You think Microsoft should take my property?"
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Walker: "The burden of proof is not on those who say that property should be, but on those who say that property should not be."
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Walker: "Property drives innovation [because] humans are economic animals. Except for economists."
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O'Reilly: "That work [having to file and defend against patents] is a tax on innovation." Walker: "All property is a tax."
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Dickinson stated that an NSF study has been started to determine the effect that IP laws are having on not just the software industry, but technological ventures in general.
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Dickinson stated that Congress had passed a law in November of '99 that explicitly forbade him to solicit or accept outside criticism of patents under review. To wit: "The Director shall make no provision for pre-grant opposition."
I'm sure I'm leaving some out - the evening was chock full of quotey goodness. It was quite entertaining, and educational. Kudos to the Internet Society for putting on the debate.I almost wish that the word "Property" was never associated with information. Information is radically different than physical property. Authors use other authors' information to create new information. Information is easily copied and essentially impossible to restrict in ways that a single piece of physical property is. Yet some people still tend to think of information "property" as the same as physical property.
The fact that nothing has gone into the public domain for a long time just reinforces the cultural idea that authors get to retain control of their works forever.
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I am no fan of Walker, but to group him and all other businessmen as just "businessmen" is ridiculous. What you fail to see is that real invention, innovation, and development go hand in hand with business. Very few of the improvements in this world are the strike of genius; they're generally the result of a lot of effort and, more often than not, resources. Put simply, it is the so-called businessman that makes it happen. It is the so-called businessman who applies the technology and creates a viable product. It is the so-called businessman who obtains the funding. It is the so-called businessman that takes the lionshare of the risk.
...or even the Steve Jobs of this world. Without "capitalists" like that...yeah, I think it's pretty safe to say this country would be no where today.
I'm not talking about slick VCs, Wall Street types, MBAs, bankers, feeble minded Dot Commers or what have you. I'm talking about people that have their feet on the ground and, more often than not, get their feet wet (to say the least)....the Henry Fords, Thomas Edisons,
Tell me something, if invention/innovation were merely a spark of inspiration. Where are all the great inventions from China? Russia? Or even, to a lesser extent, Europe? They're few and far between... and it's not for want of education or minds. You think it's just a coincidence that the word business is that much further from their vocabulary? What's more, where do you think most academics/scientists are ultimately deriving their funding from? Without real life products like the internal combustion engine, the telephone, the car, the microprocessor, etc....where would our economy be? Where does all the money come from that allows these "scientists" to research? Do you think it's any coincidence that most early inventors were aristocrats or part of an emerging middle class?
Science and modern day business go hand in hand. It's very much of a chicken-or-the-egg type problem.
While I sympathize quite whole-heartedly with your sentiment, I cannot help but to point out the flaw in your solution. (I also provide my own solution at the end).
Absence of proof is not proof of absence. In this case, it would be impossible for an applicant to prove that an idea is their idea by simply failing to find proof to the contrary. The only possible "proof" to such a claim would be to explain how every idea ever in human history is not related to your idea.
This is why the system relies on challenges. It is far easier to disprove the originality of an idea by providing a counterexample.
Yes, these sound very similar to one another. The difference however, is that of proving a claim to be true versus proving something to be false.
What is broken is the means by which to perform the disproof. Currently, one must either challenge the application via the overworked and over-beaureucratic Patent Office, which simply does not have the time or the funding to care, or via the capricious and technologically-clueless court system with a civil suit, which takes a great deal of time by which point the patenet holder has strangled its competition into submission. In either case the patent continues to be enforced all during whatever time it may take to resolve the issue. It is due to this web of red tape that the applicant/holder has all the power rather than the people.
What needs to be instituted is a simpler way of challenging patents. My solution?
Remember: a single counterexample is sufficient to disprove a claim. The Patent Office needs to have the power to suspend or withdraw a patent instantly upon being furnished with a single counter-example of the originality of the idea, even after a patent has been granted. At that point, once a counter-example has been provided, it would be the burden of the applicant/holder to show that said counter-example is not related to their patent, either via the same overworked Patent Office or capricious court system. Yet in this way it is the applicant/holder which must struggle through the system, not the challenger. Thus the scales of power are balanced between the interests of business and the interests of humanity. And further, this would require no additional funding of the Patent Office.
Per the Patent Act, "person having ordinary skill in the art." It's important to develop some sense of what is a PHOSITA, and how obviousness is determined. The following is an intentionally informal, incomplete, but well-intended effort to offer some intuition for how the problem is legally analyzed. It isn't the whole story, but if it helps develop some gut understanding, it did some good:
Imagine Vern, from the movie. A very dull lad, barely sentient. Now give him sufficient understanding to be able to read the "general literature" of the art, at least to the extent of being able to dully follow instructions set forth there and apply it to the art. What is more, give Vern a photographic memory containing all the relevant prior art.
So Vern can use a reference that spells out how to practice, and can "fill in the blanks" using routine practices. (To attach two pieces of wood, Vern the carpentry artist would probably figure out to use hammer and nail, because somewhere is a primer saying to affix two pieces you can use a hammer and nail). But Vern won't combine the art, put 2+2 together, unless the art expressly suggested the combination.
A patent claim is anticipated (and invalid) when a single reference contains EACH AND EVERY ELEMENT recited in the claim appears in the reference. If elements are missing in one reference, but appear in another, related, reference, Vern the artist might consider it obvious to combine the two elements, BUT ONLY IF THE ART (or another piece of art) teaches or suggests the combination.
If there are new elements in the art of record that are not naturally known as substitutes one for the other, it is very rare that obviousness will be found.
Those are just the basics, but perhaps it will provide a framwork/intuition for resolving these questions.
You are oversimplifying things. If I invest millions of dollars in researching a much better, more efficient way to make widgets, and you then use that knowledge to make widgets to compete against me, then I am put at a severe disadvantage in the market. Patents are a way to ensure that I am allowed to profit from my invention. Patents are good, even though the current patent system is very flawed and is most likely doing a lot more harm than good.
I think that copyright exists for good reason as well, simply because I feel that authors should receive some compensation for their sharing of their creation with the world. Now, the compensation will be decided by the number of people who want to purchase a copy of the work, so in that way it is regulated by the market. I do believe that copyright terms should be much much shorter than they currently are. They should be more like 10-20 years rather than anywhere from 70 to well over 100 that they are now.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
The Republicans, while for a more corporate US, are very conservative in many areas, including patents.
The Democrats believe that patents should be given to ANYTHING, including some things that redefine "prior art."
IMHO, the patent office simply needs to take their lolly time reviewing things. Yes, some things that are offered can get outdated while the review process happens, but hey, that will probably weed out many bad ones by itself. They do a better job taking their time, and really, the only people that should be irritated with the time would be those who want to slip something by (**ahem, M$**). Also, that will discourage the people with nonsense patents. People with real innovations will be motivated enough to pursue that impossible patent.
I think the best suggestion was "Patent technology under development, not existing software/tech." (paraphrased badly). If that patent passes, then the patent should pass on to the developed product after a review. A double check system for the bad ones, eliminating many the first time around.
We don't need no Net Explorer We don't need no Thought control
Burris
It's the patent office's fault; they are over taxed and not thoroughly investigating patent applications.
Burris
As they should be. Now if we can just gag and blindfold them and find a convenient firing squad, we'll be sorted...
if You haven't signed yet, please help to fill up the 50.000:
This petition is directed to the European Parliament. Its goal is to warn European Authorities against the dangers of software patents. This petition is supported by the EuroLinux Alliance together with European companies and non-profit associations. Please make this petition well known to everybody concerned.
http://petition.eurolinux.org/index_html.
One of the fundamental flaws of a patent system designed for the industrial age is that it assumes the payback time is relatively long and conmeasurate with the development time. Thus if you spend 10 years working on finding a new chemical treatment, then you would expect to gain the benefits for at least that amount of time. However, if you let any half-baked idea through that takes 5 minutes to implement (cough*one-click*cough) and claim exclusivity with the intention of hindering your competitors, this is effectively a form of
If these guys were really innovative, they would create a completely new industry sector like Adobe desktop publishing or SGI's 3D graphics instead of filing lawsuits and generally clogging up the system.
LL
Well, the goal of the patent system is to do two things: encourage the release into the public of new technology through disclosure, and encourage businesses to thrive...
Yes, the constitutional mandate is the former, but the congressional mandate is the latter.
On the disclosure front, it isn't too relevant for some of the Internet related patents, especially business plan patents. I mean, you can't exactly keep your business secret. However, the business issue is real.
The Internet holds the potential to be the first perfectly competetive marketplace. While good for consumers, perfect competition is horrible for businesses. If you are guaranteed to mark zero profits, VC money disappears.
The other problem in a perfect market, sunk costs are gone, never to be recoved. You sink costs knowing they are gone, but you hope to make profits. In a world where you can't make profits, every business venture is a failure.
So, if we have the world of a microeconomics text book, entire industries that would benefit consumers never materialize because noone can make a profit. As a result, perhaps this "tax" serves a purpose. I mean, if the industry potentially doesn't happen because of no profits, then aren't we better as consumers to have the option of paying a premium instead of no option at all?
Also, with growing protections for trade secrets, doesn't encouraging patents make sense? Perhaps Congress should do the intelligent thing and reduce patent life for business plan/software patents? That way, their is an incentive to invent and create technology/business ideas, while the public benefits from cheaper prices in a few years.
Also, with Internet patents, it is easy to create something similar (an overly broad patent is easier to overturn), and this merely forces uniqueness. Hell, an Internet with dozens of similar but different major players in each space is FAR more interesting than one with everyone directly copying each other.
Done playing Devil's advocate,
Alex
Walker demeans the scientific and academic world, while claiming that patent holders like him are "creating hundreds and thousands of jobs". Let me rephrase it-- the inventors and developers create jobs for people like him. Or more directly, the developers increase the general welfare of society by making computers useful in so many ways. That welfare may not be in cash form, but it improves our lives nonetheless. The businesspeople merely find a way to transform that welfare into cash and move it toward themselves, much like an engine transforms one kind of energy into another. One tool to do this is to claim ownership of technology by using patents, the equivalent of building a fence in a public park and keeping everyone out with a gun. Ultimately, patent enforcement uses guns, too.
What a familiar pattern in this world-- some people work to increase the total wealth for everybody, while other people work to grab as much of it for themselves as they can.
When a patent is applied for, the applicant should specify how long they want the patent to be granted for. The patent office should charge accordingly, and spend a proportionate amount of time and effort analysing the patent for valididy. That way, you can get your dumb patent for a year reasonably quickly, but getting a 20-year patent is going to have to be well-justified and watertight.
Article I, section 8 - "To promote the progress of science and useful arts, by securing for limited times to Authors and Inventors...."
It doesn't say "In order to create value..." or "To create jobs...."
try { do() || do_not(); } catch (JediException err) { yoda(err); }
One of the most important things that I have learned in martial arts is that the person who wins a fight has won the fight and nothing else. This is fairly obvious in the physical world: a thirty year old beating up a three year old hardly makes the thirty year old right. It is not so obvious in the intellectual world; someone with a high IQ beating up someone with a low IQ does not make the person with the high IQ right! I used to use my intellectual strength to win arguments (intellectual fights) all the time; very few people were ever successful arguing with me - so I thought I was right. The truth is that I was often wrong - sometimes disastrously so. I suspect that many people here on slashdot are guilty of making that particular mistake.
The confusion comes from the fact that right makes might. However there are many reasons that fights can be won or lost which have nothing to do with being right. Legal fights are often won or lost for reasons having absolutely nothing to do with right or wrong; one side might have a lawyer who is just a better fighter than the other side - or, as I have pointed out before, case law may have been established by a large corporation taking on an individual with no resources (thirty year old vs three year old) and that case law is then used as a precedent for other bad rulings.
A legal victory does not mean 'right'. The arguments that this poster used - while impressive sounding and intimidating to the average person are not sufficient to prove he is correct. Slashdot is not a court of law; there is no judge to keep truth from being spoken.
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The law, 100's of millions of lines of code, not one line of which has ever been tested to see if it works.
Walker (founder of Priceline.com): "Those of us who are creating hundreds and thousands of jobs ... are here to tell you that if we slow this engine down because of the study groups you want to have, I'm not sure you're going to be well served in the economy."
New York Times this morning: "Priceline WebHouse Club, which licensed Priceline.com's name-your-own price technology to sell groceries and gasoline, said it would cease operations by early next year. [...] WebHouse's closing deals a blow to Priceline, whose shares fell $2.47, or 26%, to $6.91 in early trading.
You do make a good point about 2 people independently inventing the same thing. Right now it's simply settled by who gets to the patent office first. That's not really a fair way to handle it, but life ain't always fair. I can't think of a better way to handle that kind of situation off the top of my head. I still believe patents are, in theory, a good idea. I just think the current implementation is horribly broken.
Face it, some things require massive resources to come up with. Drug companies are the classic example. They spend years on research and development to come up with a new drug. How could they do this without some sort of guarantee that someone won't just start churning out cheap copies of the drug? They couldn't. Nobody would invest in it. Therefore we wouldn't get better drugs or better treatments for various diseases. Nobody would be able to afford the research involved. How would you plan to deal with that?
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
True, but consider this; a drug company develops a drug to cure a disease. This disease affects both cows and humans, and the same drug is usable for treating both. However, as the disease is rather rare in humans, it is not valuable to develop that track any more. However, as the cow-cure track goes ahead they patent the base, preventing any company from selling the cure for the disease in humans. Suddenly the patent has blocked advancement.
How to solve it? I dont know. Revoke the patent rights for anyone abusing their patent? Place the burden of proof on the patent holder, and allow duplicated 'good faith' research (so that a patent holder cannot sue someone who developed the same thing without knowing about the original patent)?
As is today, it doesnt work anymore, and it's actively hindering human progress in many cases.
I think my example would be a lot more common than yours, but I'll consider yours anyway. If you take recent events as an indicator, there are exceptions made in cases where a drug is needed but the people can't afford to get it. When drug companies were trying to enforce their patents in Africa, many African countries basically told them exactly where they could stick their patents. People were contracting AIDS at an alarming rate over there and they needed the drugs badly. They decided that since the drug companies were asking much more than they could possibly afford, they'd just manufacture the drugs themselves, patents be damned.
Now, this got people's attention and made the drug companies look like a bunch of cold-hearted bastards that put profits before human life. Granted, it wasn't really that black-and-white, but it was close enough and that's how many people saw it. So, the drug companies ended up cutting a deal with the African countries to allow them to obtain the drugs much more cheaply than normal. This way the drug companies get some return, and get to not look like greedy bastards, and the people in Africa get the drugs they need so badly. So while patents may sometimes cause problems, such problems are generally dealt with rather swiftly if they become serious.
While it's obvious that I think patents have their uses, I strongly disagree with the direction the patent office has taken and with the shoddy review process they currently have. I think business model patents should be thrown right out. I think software patents should also be scrapped. I think there should be a MUCH more rigorous review process than we currently have, and I think that patents should be challengeable before they are awarded, and the burden of proof that an invention is unique should fall on the party that is attempting to gain the patent rather than on the party that is offering some form of prior art. I also think that the standard for obviousness should be more strictly enforced. It certainly hasn't been in quite a while.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Yes, obviousness is an important legal term. It's both an issue of fact to be determined by the court and a requirement for patentability. The angry posts of slashdotters saying "this is
incredibly obvious -- I can't believe such a patent application would be granted" is EVIDENCE that the invention does not meet this requirement.
My point is that the remarks to which I have replied manifest little understanding of the applicable standard. An undifferentiated sensation of obviousness by a technical person explained there actually *ISN'T* evidence of obviousness, as several Federal Circuit cases have stated -- indeed, there are cases where such a statments are properly excluded as irrelevant.
You state the obviousness test is a failure for many patents that have been granted.
I'm not sure what you mean by your remark. This appears to be a straw man, but I'm not sure precisely what you mean.
If you're not going to suggest we change the law and eliminate that test entirely (which I know
would be a distortion of your argument), then perhaps you could consider the slashdotters' views as evidence of both a) problems with a particular patent and b) probable problems
at the patent office.
I do not suggest the law needs to be changed, in fact. Nor would I agree with your proposal. While this is something about which reasonable people might disagree, that wasn't the subject of my posting. The subject wasn't whether a patent SHOULD be invalid -- this is about whether a particular patent *IS* invalid.
Before we analyze any proposal for a new standard, however, that standard should be clearly articulated so that it can be analyzed in depth. Merely waving arms around shoulda'-coulda' arguments will shed far more heat than light.
Best,
A
This is the fundamental flaw in today's thinking about intellectual property rights in general, and patents specifically. The view expounded above is very common: people believe that inventors and companies somehow have a right to patents.
Well, the very nature of intellectual property. combined with the nature of a patent, says otherwise. A patent is a privilege, a monopoly granted by the government to a single entity for a period of time. To argue that an individual or company has the inherent right to dictate to the rest of the world what can and cannot be done with an idea is as ludicrous as arguing that an individual or company has the inherent right to dictate what can and cannot be done with other forms of property that individuals own, like saying that an individual or company has the right to say what I can and cannot do with my computer, my car, or anything else I legitimately have in my possession.
No, Thomas Jefferson had it right: intellectual property is a contradiction of terms: ownership has no meaning when the thing in question is a mere idea, something that can be copied directly from person to person simply by the telling of it.
The logical conclusion of the assumption of intellectual property is thought control, and that way lies a police state.
At the same time, of course, it's appropriate to reward people for their intellectual work. And so, a compromise was reached and the system of intellectual property involving copyrights, trademarks, and patents was developed over centuries of civilization.
But make no mistake about it: intellectual property is itself an artificial construct, a set of rules that we as a society attempt to apply to ourselves in order to maximize the benefit to society, to ourselves.
And that goal, to maximize the benefit to society, should never be ignored, as it's being ignored right now. People have been brainwashed into thinking that this artificial construct we know as "intellectual property" is real and natural, as Walker illustrates so well.
It's not. The sooner we all realize that, the better off we as a society will be.
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From the linked document:
Walker added: "The burden of proof is not for the people who defend property rights, but those who want to take them away."
Goddamn it, what a load of manipulative crap! It's frankly up to the people who allege a certain idea to be their idea, to prove that instead of smirkingly demanding that other people prove that it was stolen or blaringly obvious. I approve of valid patents, but vehemently oppose the idea that a fucking grant of privilege ought to just automatically be your problem unless you prove, at your great cost, that it shouldn't be your problem.
The patent system today is simply whacko, insane. It amounts to massive, legalized extortion against all of us for using our own damn ideas in routine, even trivial ways.
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The law says that prior art and anything obvious to someone trained in the art are specifically not patentable. Storing someone's credit card number and shipping address, indexed by the cookie returned by their browser is obvious to any software engineer.
That's not, precisely, the law, and at least one federal District court has already rejected this "hand-wave" obviousness argument with respect to the Amazon patent. Time will tell whether or not the Amazon patent is invalid, but to date, no court of competent jurisdiction has considered prior art and allegedly obvious differences therefrom to be read upon by the patent claims.
The actual language of the patent act is this: "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. "
Each word of Section 103 is rife with meaning, including the important difference between someone trained in the art and a "person having ordinary skill in the art." Obviousness is an important legal term of art filled with meaning that is trivialized by the casual -- "its obvious to me" -- remarks so often seen on Slashdot.
The cliche of blaming the patent office for not thoroughly investigating patent applications, particularly because some colleague after the fact thinks the solution was obvious, proves too much -- if you think there is art invalidating a patent -- set it forth. If you think there are arguments for invalidity, state them. Making non-falsifiable allegations that a patent is "obvious to me" is merely to engage in demagoguery.
It's the patent office's fault; they are over taxed and not thoroughly investigating patent applications.
Pot. Kettle. Black. It is as much the critics fault for not thoroughly investigating the actual legal bases for patentability before drawing conclusions about the inadequacy of the system, and for not actually themselves investigating prior art of specific issued patents they claim to be invalid.
Whatever may be said about Amazon's one-click patent, it is not patently invalid -- not only has the patent office so ruled, but so has at least one Federal District Court. The failure of the obvious "obviousness" test, is that it doesn't work for many patents that have been held to be valid. Next time, let's use actual standards, not ones we wish were substituted for the law.
The initial postings related to the novelty and unobviousness standards. Your posting addresses the subject matter questions. To be patentable, an invention must satisfy BOTH requirements: (1) it must be patentable suject matter; and (2) it must be new, useful and unobvious as those terms are defined in the Patent Act.
Your well-reasoned post relied upon informal interpretations of old cases, and thus does not reflect the present judicial view of the subject matter issue. The most recent cases make clear that patentability "is understood to be [based] not on whether there is a mathematical algorithm at work, but on whether the algorithm-containing invention, as a whole, produces a tangible, useful, result.
That is the ultimate test. Does the process/method/apparatus produce a tangible, useful result. And tangible does not require a physical thing, as you will see if you review the citation below.
The seminal case in this arena is the State Street Bank case, but the best description of how "tangibility" works into the matter can be found in AT&T v. Excel. Required reading for anyone who would discuss the subject matter requirement.
Certainly it would be nice to clarify the Supreme's view on the matter, but they denied Cert in both the State Street and AT&T cases. The Federal Circuit has exclusive jurisdiction over patent cases, so until the Supes speak next, this is the final word.
Let me state my position on patents: Here is my original linux-kernel posting and if you find this subject really interesting, here is the entire thread You'll be amazed what happens.
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