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"One-Click" Patent Takes a Hit in Japan
natet writes "The Japan Patent Office once again shows it knows technology. They recently informed Amazon that unless Amazon can show them differently, they will reject the "One-Click" patent on the grounds of prior art. " So there are sane patent offices out there. On an almost completely offtopic and unrelated note, Hemos and I are planning on being in Japan for the Tokyo LinuxWorld in a few weeks, so I'll see you guys there. Bring translators and we can talk about anime ;)
But the different standards for patents in different countries isn't something we need in this day and age where products compete in a global free market.
.2euros of the average french geek...
This is WRONG !!!
I'm a citizen of France, and more and more a citizen of Europe nowadays. Around here, all the LUGs and a lot of individuals are fighting (lobying) together against the establishment of an international patent office (==an american rooted patent office), in fact we are also fighting with succes to make Europe realise (==vote) that one cannot patent software
We are living in a global market, we are not dumb enough to deny this, but what we do not accept is the way that you north americans consider patents.
I think it's now a well understood point that patents (at least in north america) are not anymore a way to developp researsh (as it was and should be) but more a way to protect a market segment for companies that have the money to inforce them.
Aroud here we think (even if it may seem hypocritic) that we would rather NOT inforce ANY patent than depend on an international patent office. An international patent office would imply that only the richest companies would be able to survive. And since such an office would probably be driven by american economy that would mean the not-so-long-term end of any real new buizeness rooted locally. And guess what : we also like to change our ideas into money...
Capitalism is NOT the only way. Try to put that in your heads !
This was the
It seems that perhaps Amazon's CEO has come to the same conclusion.
Or perhaps he just realized his company's valuation is a joke.
I just had a horrible vision of Taco and Hemos
running around Tokyo dressed as Digiko and Rabi-en-Rose.
-- your Web browser is Ronald Reagan
There is absolutely *NO* extraterritorial right in Japan derived from the grant of a United States patent. The only way *AT ALL* to enforce a United States patent in Japan is to get the grant of a corresponding Japanese application. Each sovereign has its own patent system with different rules for patentability, and the procurement of a patent in each nation is a precondition for enforcing a patent there.
It is not only possible, but common, that a patent might be obtained in the United States, but not in a foreign country (because of the 12-month grace period for filing, as opposed to most nation's absolute novelty requirement). Moreover, sometimes a sale, act or public use may need to take place within a nation to constitute prior art. Thus, prior art in the patent office of one country may not be prior art in the office of another.
The only significant treaties relating to patent applications are the Paris and PCT conventions (modified somewhat by the GATT agreements of a few years ago). Under Paris, each signatory agrees that it will accord a filing date for foreign applications based upon an original local national application; provided, however, that the foreign applicaitions are filed no later than twelve months after the local national. No deference is given to the local national application, except with respect to the effective date used to determine what is prior art.
The PCT modifies this, providing a mechanism that,in effect, permits an extension of this period as much as thirty months or so. This allows companies to avoid the enormous expense of foreign filings until they have been able to evaluate the practical value of the patent.
*NONE* of these issues are decided by the USPTO. They are matters of statutory law, and there are powerful lobbies defending the status quo. It may surprise you to know that most corporate entities embraced and supported patent reform -- it was the small, and not so small, individual inventor community that opposed it.
Virtually *ALL* of these changes were proposed two years ago during the patent reform bills proposed by Senator Hatch. Individual inventors, largely supported by the Slashdot community, were violently opposed to this for obvious reasons. I noted then, and note now, that U.S. harmonization with the general practice described above, which is uniform with only subtle differences throughout VIRTUALLY THE REST OF THE WORLD (not just Japan) is not only a good idea, but ultimately an essential step for the benefit of the community.
For the record, U.S. *DOES* publish applications after 18 months, unless the inventor swears under oath that he will not pursue foreign patents.
The Japanese patent term is based upon the date a patent issues. The US patent term is based on the date of filing. The Japanese patent term is based on the date the application is FIRST published for opposition. Neither patent is enforceable until issued. Accordingly, the practical terms of the patents are comparable, but will differ, some longer some shorter, depending upon the speed of prosecution.
I found this article using Google!
"The Unisys patent on LZW compression will run out either on 10-Dec-2002, or 20-Jun-2003, depending on whether the GATT agreements grandfather in existing patents, or not. The first date is 17 years from issuance of the patent (old U.S. law), and the second is 20 years from the date of first filing (GATT requirement)."
I wonder what it would take to attack a patent on "So obvious and trivial that when we told college CS freshmen a patent had been granted on it, 9 out of 10 of them started laughing hysterically because they thought we were joking." The trivial stuff tends to be the hardest to find prior art for, but that doesn't mean that patents should have been granted on it.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
The U.S. Patent office also allows challenges to validity without going to court. It's called a "patent office re-examination", and can be brought by any party once the patent has been granted if they have documented proof of prior art previous to the priority date of the granted patent.
The reason a patent's validity is often challenged in the U.S. courtroom is because a patent office re-examination frowns somewhat upon expert testimony, whereas expert testimony is given the same weight as other forms of prior art in a court case.
The glaring errors in the glaring differences are obvious...
Patents granted on the basis of first-to-file?
US: Yes
Japan: No
**This is the wrong way around. The U.S. is the ONLY country that is not first-to-file. The independent inventors push quite hard against change on this count. Japanese patent applicants file many small patents, because once you file, you automatically get priority. So the U.S. system certainly helps the small inventors, while the Japanese system favors the large corporations who can afford the filing fees. As a side note, the Japanese filing feels are much higher than U.S. filing fees.
Filing permitted in any language?
US: Yes
Japan: No
**Neither country permits filing in any but their national language. In the US one can file with a "certified translation." This is the same in Japan.
Are patent applications published?
US: No. Kept secret until patent is granted.
Japan: Yes. 18 months after filing.
**U.S. now publishes applications 18 months after filing, unless the applicant specifically requests otherwise and does not file in any other country outside the U.S. This is expected to permit small inventors to maintain the secrecy (permitting them to exploit their invention without having to defend it from the big guys) but force larger corporations that foreign file to publish.
Patent Term:
US: 20 years
Japan: 15 years
**Both countries have 20 years from initial application. Both countries take about 3 years to grant a patent. The U.S. now compensates in time for those applications that take longer than 3 years. The actual term is gauged to 17 years.
Pre-grant opposition?
US: No
Japan: Yes
**Japan changed this, I believe in 1997. Now opposition is after grant. Additionally, the U.S. has added post-publication pre-grant informal opposition. There is no formal opposition procedure in the U.S., however.
**If you ask any small inventor, Japanese or U.S. you will find that they much prefer the U.S. system to the Japanese. Japan very much favors the large corporation that can afford huge filing fees (~$3000 compared to U.S. ~$800 for a large entity and only ~$400 for a small entity).
By the way, you can challenge a patent before the U.S.P.T.O... it's called an Interference.
Yes, I AM an IP attorney, why do you ask...
Profit motivates invention.
http://www.amazon.com/exec/obidos/ASIN/1568843224/ o/qid=989937860/sr=2-2/102-2340656-1796903
Stop stealing ideas from the books on your shelves and trying to patent them as your own!
Bad Amazon! *smack*
--You will rephrase your request for me to go to hell. Goto statements are not acceptable programming constructs
During that time, anyone can look up your patent and contest it. There is a formal procedure for challenging a patent prior to aproval. While it isn't exactly like prospective patents are posted on the avenues and streets of Washington for public discussion, they are available for review, and you can challenge them if you like.
--
In spite of the suggestions and all the tests that I have made, I have not cavato a spider from the hole.
Could this ruling actually be in violation with treaties signed with the US and the WTO? I Hope not, but if it is, I hope Japan will hold its ground. A concervative aporach to patents is the only way to insure that they will actually do what they are supposed to - encourage inovation, not protect (and indirectly subsidize) research investments.
--
In spite of the suggestions and all the tests that I have made, I have not cavato a spider from the hole.
Does any patent office anywhere allow a provisional period where a possible patent can be challenged by other companies? I have a feeling that private industry would be more effective at discovering rotten patents than the government would.
"mmmmm.... Minty Fresh!"
Bah, this is already happening, and it's *bad*, as it forces nations to abandon their own policies and bow to external forces. Example: Canada, US, and Mexico entered into a FTA (Free Trade Agreement). In order to fulfill the terms of the agreement, Canada was forced to change it's patent system to extend the patent period to 17 years, in order to line up with the US system. In fact, there's currently a bill in the Canadian parliament to extend it to 20 years, as per the GATT requirement mentioned in comment #41 under this same article. The result of a global PTO will simply be that the office policies will be determined by the will of those with the most economic clout. See WTO.
Challenges to patents are also handled differently... Unlike in the U.S., a challenge to a patent's validity is not brough before the courts, but instead directly to the Japanese Patent Office.
Other Glaring Differnces:
Patents granted on the basis of first-to-file?
US: Yes
Japan: No
Filing permitted in any language?
US: Yes
Japan: No
Are patent applications published?
US: No. Kept secret until patent is granted.
Japan: Yes. 18 months after filing.
Patent Term:
US: 20 years
Japan: 15 years
Pre-grant opposition?
US: No
Japan: Yes
I think that the USPO might be able to take a couple of hints from the JPO...
Amazon will just change the name and patent the "One Crick" method of shopping
Smythe: Hi, I've got a patent I'd like to run by you.
Wossname: Watcha got?
Smythe: It's for a one-click sequential dynamic bread slicer with a net to catch the slices at the output end. I calls it a NET strategy.
Wossname: I say! That's enough to cripple the entire computer hardware and software industry if it's broad enough!
Smythe: You think I should limit the scope of me patent?
Wossname: Oh, no! This is exactly what we live for. Now have you researched it?
Smythe: Well... I didn't see anything like it in my 1906 History of the World, volumes 1-12, except 7 which I've lined the bird cage with.
Wossname: Sounds good enough. Patent granted.
Smythe: Thanks, Guv!
Wossname: Just remember who your friends are! *wink* *wink*
-- .sig are belong to us!
All your
A feeling of having made the same mistake before: Deja Foobar
You should remember a few things. For starters, it's really hard to get a patent in Japan, especially if you're a foreigner. The best advice has always been to hire a local Japanese patent lawyer to shepard your claim through the process. Also, that period of public comment has been notoriously used against foreign companies extending their patent protection to Japan. The foreign company would make their patent claim, then during the 18 month inspection period, Japanese companies would dissect the idea and come up with their own non-infringing version of the same technology. By the time you got the patent, you've suddenly got competition.
Now, with all that, believe it or not, I'm still in favor of us adopting a similar system in North America. Jeff Bezos' idea for reform is the best version I've heard yet.
The bitter lessons of a veteran coder: http://bitterprogrammer.blogspot.com
First off, I applaud the Japanese patent office for forcing Amazon to actually prove that their patent has innovation rather than assuming it as the American office did.
But the different standards for patents in different countries isn't something we need in this day and age where products compete in a global free market. It costs companies more, adds complexity and creates legal problems.
What we need is to standardise on an international patent body which can allow patents to be filed once and once only, and be internationally binding. This way both everyone benefits.
While I think this is a great idea in such a market, I would only want it if it wasn't based upon the USPTO. America has shown itself time and time again to be the enemy of progress and technological innovation, and the EU and Japan have fostered a more balanced approach to what has become a critical concern to companies.
So well done Japan, and I hope that organisations like the WTO start considering patents in a global manner. Having a global body regulating patents can only be a good thing for corporations competing in the free market.
Though I strongly disagree with Bezos' and Amazon's position on one-click, I agree with him here as far as a fair compromise to the utter mess of the current patent system. Yes, a novel business plan should be rewarded, but not as much as the standard patent amount. If we would have had this system in place, one click would be a distant memory, either through prior art challenges or expiration, instead of the fighting that could go on for more than a decade to come.
As a postscript, when does the patent on LZW expire? That's one patent I won't miss at all.
If god had intended you to be naked, you would have been born that way.
Who owns the double click patent? And wouldn't this include the one click patent too?
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Living is a way of life
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"The chances of a demonic possession spreading are remote -- relax."