Patents: Two For The Road (To Hell)

The move to patent anything, everything, and all that remains after those categories are exhausted continues apace. rozzin writes: "ColorMax, who makes colour-blindness-compensatory lenses, has acquired a "patent for the human genes responsible for common, hereditary, red-green colorblindness"." Read below for a longer take on another disputed patent, which raises the all-important issue of actually determining what all those words in a patent application really mean. We can probably agree on whether something is a sphere, but what about whether something is "type data," or what constitutes the act of location? How patentable ought such things be? (I suggest browsing The League for Programming Freedom site for some cogent thoughts on this, including RMS's "The Anatomy of a Trivial Patent." Can anyone point to the best online apologia favoring software patents, or perhaps suggesting higher thresholds for them?)

Jim Lochowitz writes "A friend of mine just sent me this ( posted with permission) :

I just looked at Judge Zagel's ruling from yesterday in Eolas Technologies, Inc. v. Microsoft Corporation, 99 C 0626, which is currently pending in federal court in the Northern District of Illinois. Eolas alleges that Microsoft has infringed its patent, #5,838,906, issued November 18, 1998. If memory serves, the gist of the suit is that both Windows and Internet Explorer infringe the patent.

If you want to look at the text of the patent again, it can be found on the PTO's website [here]. (Or search for the patent #5,838,906 from [this] page.)

At this point in the case, the court is trying to resolve exactly *what* the patent covers before it can consider whether or not whatever Microsoft did infringed it. Yesterday's ruling had to do with what was meant by the following key language in the patent (found in Claim 1 and Claim 6):
"wherein said object has type information associated with it utilized by said browser to identify and locate an executable application".

As Judge Zagel put it,
"What is an executable application? What is type information that must be associated with the object? What does it mean for the type information to be utilized by said browser to identify and locate the executable application?"

Experts testified as to the answers to these questions. Eolas' expert was Edward Felten, who is an Associate Professor of Computer Science at Princeton. Microsoft's experts were H.E. Dunsmore, Associate Professor of Computer Science at Purdue University, and Michael Wallent, Product Unit Manager for Internet Explorer.

Judge Zagel found that (as used in the patent language), an "executable application" is computer program code which is launched to enable an end-user to directly interact with data, and one which is not an operating system or utility. He found that "type information" "may include the name of an application associated with the object." Finally, he found that "utilized by said browser to identify and locate" meant that those functions are performed by the browser.

Now that Judge Zagel has determined what this key language in the patent means, the court is now in a position to determine whether Microsoft has, in fact, infringed the patent. Trial could be the next step. It will be interesting to see what happens! I suspect that no matter who wins at the trial court level, there is likely to be an appeal. It will be a while yet before we learn what the resolution will be.

If you want to read the text of the opinion yourself, you can find it on CourtWeb as [this] pdf file.

Many of the rulings thus far in the case are available online. Put in "Northern District of Illinois," hit the "proceed to CourtWeb" button, and then enter the case number on the next screen. (The case # is 99cv0626.) Put in the date range you want- note that the case was filed in February 1999.

"

Comments

Gene patents

[Reality Master 101]

To all of you who are giving knee-jerk "why should genes be patented?" reaction, remember why patents exist in the first place. It's to foster innovation, not to retard it. The point is to allow people to spend a lot of money developing something, without the danger of having it immediately stolen.

Think about it. Why would a drug company spend hundreds of millions of dollars, if not billions, identifying a gene for a disease, developing a cure, and then the day after they ship the drug, it's immediately mass produced by every other drug company? Hey, that'd be a great business -- simply wait for drug companies to develop cures, and then mass produce their labor.

You have to give companies the ability to recoup their expenses in developing these things, or they are simply not going to spend the money to develop them.

--

Re:Gene patents

[jheinen]

So patent the drug. I'm sorry, but the whole concept of patenting pre-existing genetic material that the company had absolutely no hand in creating is utterly and completely ridiculous. Patent the process for identifying it, patent the drugs you make as a result of it, patent the things you actually MADE. Genes are about as prior art as you can get, since they've been around for millions of years. Can you patent electricity? Gravity? How about air? If I invent a device that can identify a breathable atmosphere, does that mean I can patent the atmosphere? Can I charge license fees for everyone who uses 'my' air? Get real man.

-Vercingetorix

Slashdot: maelstrom of misinformation

[Sodium Attack]

How many ways is the story on the color-blindness patent, and the comments on it wrong?

• rozzin presents (and timothy does not correct) as a direct quote text which does not even appear in the linked press release. The press release claims that ColorMax licensed the patent rights from the Medical College of Wisconsin, not that ColorMax had a patent granted to them.

• Yes, the press release says that the genes were patented. I'm not buying it. Company press releases aren't exactly unbiased sources of information. The only patent I could find remotely resembling what is described in the press release is US 5,837,461. (And I search patents for a living, so I know what I'm doing.) Know what? It doesn't claim the gene. That patent claims:

  1. A method of detecting cone-photoreceptor-based vision disorders, comprising the steps of a) examining the amino acid sequence of a patient's red or green photopigments, and b) correlating the amino acid sequence with amino acid combinations associated with vision disorder, wherein the amino acid sequence is the sequence at positions selected from the group consisting of codon positions 65, 111, 116, 153, 171, 174, 178, 180, 230, 233, 236, 274, 275, 277, 279, 285, 298, and 309 of the gene encoding the red or green photopigment and wherein the correlation comprises comparison of the amino acid sequence with amino acid sequences shown to be diagnostic of vision disorders.

  2. The method of claim 1 wherein the examination of the amino acid sequence is by examination of photopigment genes.

  3. The method of claim 1 wherein the sequence at positions 153, 171, 174, and 180 can be correlated with a diagnosis of age-related macular degeneration.

  4. The method of claim 1 wherein the sequence at positions 153, 171, 174, 178, and 180 can be correlated with a diagnosis of deuteranomaly cone, degeneration, or B-cone monochromat condition.

  5. A method of detecting red-green vision disorders and determining the severity of the disorder, comprising the steps of a) examining the predicted spectral separation of L and M pigments encoded by a patient's photoreceptor genes, and b) correlating the spectral separation with a degree of vision disorder, wherein a spectral separation of greater than 8 nM is predictive of very mild red-green color blindness disorder, a separation of 5 nM-8 nM is predictive of mild vision disorder, a separation of 1 nM-4 nM is predictive a severe disorder and a separation of less than 1 nM is predictive of very severe disorder.

  6. The method of claim 5 wherein the examination comprises analyzing the patient's photopigment genes at codon positions 65, 111, 116, 153, 171, 174, 178, 180, 230, 233, 236, 274, 275, 277, 279, 285, 298 and 309 of the genes encoding the red or green photopigment.

• If the gene were patented (and the people who are saying you can't patent genes and those who say you can are both right, in a way; technically, you can't patent the gene itself, but you can patent use of the gene to do X, Y, or Z, where X, Y, and Z are so broad as to cover virtually any use of the gene), you would not be prior art just because you were color-blind. Prior art must be published. That thing you've made in the basement for 50 years but never told anyone about is not prior art. For genes, generally the genetic sequence must be included. So unless you've sequenced your gene for color-blindness and published it, it's not prior art.

Here's my general guidelines for determining what a patent really claims:

• Ignore the slashdot story.
• Ignore any other general news sources.
• Ignore the company press release.
• Go to the patent itself, but ignore the patent's abstract.
• Ignore the detailed description of the invention in the patent.
• Ignore the drawings in the patent, unless they're referred to by the claims.
• Read the claims. This is the part of the patent that determines what's legally covered by it.
• Keep in mind that each numbered claim is like a little mini-patent of its own. If a question arises as to the validity of the patent, each claim stands or falls on its own.
• However, for each individual claim, keep in mind that all of the multiple elements described in that claim must be present in order to be covered by that claim. If a claim reads "A device consisting of A, B, C, D, and E," that does not prevent you from using a device which has A, B, C, and D but not E. If you take C, D, and E out of the context of the claim as a whole, and try to claim "Here's a device with C, D, and E which existed (and was described in a publication) 10 years before this patent was filed for! It's prior art," that's completely irrelevant, and it would not invalidate the patent.

Re:Prior Art?

[WillWare]

While we're patenting pre-existing things that weren't invented by human beings...

What is claimed is:

1. A method for reproduction and elimination of fluid waste comprising: a cylindrical biological appendage enclosing a plurality of fluid-bearing tubes; said tubes bearing said fluids from the interior of a male human body to its exterior; said fluids comprising two unrelated functionalities, the first being the removal of excess water and water-soluble biological waste products from said male human body, the second being to provide a medium of suspension for the transportation of male genetic material for purposes of propogation of the human species, as well as general recreation; associated means to ensure rigidity of the appendage required during conduct of the reproductive act; generous endowment of the appendage's outer surface with nerve endings to provide a pleasuarable experience during the reproductive act, thereby encouraging the user's propogation of the human species; coordination with hands and eyes to direct the flow of said waste fluid during the process of liquid waste elimination toward a suitable and designated receptacle for same.

2. The method of claim 1, wherein said appendage is longer than average.

3. The method of claim 1, wherein said appendage is shorter than average.

4. The method of claim 1, wherein said appendage is wider than average.

5. The method of claim 1, wherein said appendage is narrower than average.

All persons finding themselves in possession of an appendage as described above, however they may have acquired said appendage in the past, are henceforth determined to be infringing this patent. This condition can easily be corrected by the payment of licensing fees amounting to one U. S. dollar per day of said possession. I am authorized to collect said payment on behalf of the patent holder.