Using the USPTO Against Itself

fidget42 writes: "This article in the LA Times tells of how a scientist went about using the patent office as a mechanism for trying to force a change in that office's rules. To quote from the article: 'Nearly 10 years ago, a friend called Stuart Newman with an intriguing challenge: Could he think up a new form of life that would be scientifically useful and possible to patent--yet so disturbing that the public would recoil?' Could the same be done with the US Patent and Trademark Office (USPTO) concerning software patents? I know some companies have used the rules of the USPTO to 'spoof' it, most notably Despair, Inc.'s trademarking of the frowney."

Comments

Should this concept be patented?

[mangu]

"A Method to Force the USPTO to Behave in a Dignified Manner" perhaps?

Now now, calm down

[wuzoe]

I'll go out on an unpopular limb and defend the frowny.

Although it is a very common emoticon, it was completely neutral commercially. Despair claims the :( (tm) as their trademark. Unlike naming a game SimSuburbia*, there's no chance that anyone seeing a :( will mentally link it to another company or product. They may not know of Despair.com, but please - how many unheard-of trademarks are out there? For most people, the vast majority of them.

(SimAnything is tm Maxis., IIRC.)

Look at their site. :( (tm) is a very distinct and very well fitting mark for the company.

... Now, those cease-and-desist letters are good satirical entertainment, but please realize that is a completely different issue. 8-]

Re:Patches on patches on patches

[H310iSe]

Howabout we patent the idea of growing clones of people in tanks. We pith them early (you know, when you hit a frog on the head with what is essentially an awl to kill them quickly in case they come out from under anesthetic while you're operating on them in science class?) and then just feed them nutrients. When they're old enough, we can start harvesting the organs out of them, giving them to the source of the clone as organ 'upgrades' (replace them before failure). This will enhance the lifespan of the clonee.

This post can count as art (as in prior) now, right?

Suing USPTO

[arjennienhuis]

It might be possible to get a patent on some silly peace of software (hyperlinks, databases), and then sue the USPTO for violating your patent.

What about in vitro fertilization?

[Innominate Recreant]

From the story:

But the patent office was forced to change its policy in 1980 after it turned down a patent application from General Electric for a bacterium that had been genetically engineered to "eat" oil spills.

General Electric appealed to the Supreme Court, in a case called Diamond vs. Chakrabarty. Only one "friend of the court" brief was filed arguing that life should not be patented. It was written by Jeremy Rifkin and his colleagues.

The Supreme Court, however, said in a 5-4 ruling that Congress had authorized patents on "anything under the sun that is made by man." And because the GE microorganism was man-made and not naturally occurring, the court ruled that it qualified for a patent.

What about human beings that are produced as a result of in vitor fertilization? They are "man-made" and not "naturally occuring." By the Supreme Court's definition, these people could be patented.

Governments (not just the U.S.) need to step up and ban patents on all DNA.

Re:What about in vitro fertilization?

[Hektor_Troy]

And afterwards the lawyers took over, and issued patent-applications (and getting them approved) for everything under the sun, even if it's not man made.

Witness patents on DNA. No - they won't charge you for running around with one of their genes, but they will charge you, if you get the idea that you want to know, if it's inside your body, because they have patented any process linked to checking for that specific gene; witness the 2,000 odd dollars it costs in royalties to a specific company, if you want to see if you are carrying the breast cancer gene. No, it doesn't matter what process you use - you want to know if it's there, you have to pay.

Some patents are good, some are bad, and some should be taken out side and shot!

I wholehartedly agree with a poster on Slashdot who once said something to the effect of:

Change the standard procedure, and reject all patent applications by default. If the applicant can't make a good enough case as to why the patent should be granted, then the invention isn't worth patenting.

Butt-kicking, sideways swinging...

[dpbsmith]

Patents such as #6,293,874 ("User-operated amusement apparatus for kicking the user's buttocks...a user-operated and controlled apparatus for self-infliction of repetitive blows to the user's buttocks by a plurality of elongated arms bearing flexible extensions that rotate under the user's control.") and #6,368,227 ("Method of swinging on a swing," discussed recently in Slashdot) certainly sound as if SOMEONE is trying to prove SOMETHING.

I'm strongly tempted to mail copies of these patents to my congressman with a letter saying, simply, "The patent office is broken. Fix it."

The assumptions are wrong?

[ilmarin]

I haven't thought about this enough, but something is seriously wrong with the ground rules. The purpose of patent law is to motivate private industry to develop inventions for the public good. Patent law is created and maintained by we the public for our benefit, by definition. Here there is some notion that an invention can itself become part of the public, which sounds like someone (besides just me) is confused. That is, something that was not someone has become someone by human invention. !.

This is a collision of a several loaded issues in one place. The two most obvious to me are the "right to life vs. right to choose" issue, and the "capitalist vs. socialist" debate. The "capitalist vs. socialist" issue is not so obvious so I will address it first.

Suppose we succeeded in defining "life" and decided that life shall not be patentable. Then private industry would stop working on all life containing products, and the public would loose the benefit of oil eating bacteria and similar products. But these products may be so compelling that the public does not want to loose these benefits. So let the public develop them. Furthermore, let the public nationalize inventions surfaced by private industry that encompass "life." Practically speaking, this would mean an absorption by the government of most biotech talent, wherein all research and results would naturally be in the public domain. This may well be in the best interest of the public. There is a qualitative difference between the benefit of a light bulb or a hyperlink and that of a humouse.

Nationalizing biotech would also defuse the "ownership" issue and let people concentrate on the more pertinent issue of ethics.

Which brings me to the "right to life vs. right to choose" issue. If the public cannot decide on the entity status of a human embryo, how on earth is the patent office going to make decisions regarding the property ownership of modifications of the embryo? But then again, perhaps the current status of the law is that an embryo is not an entity. But apparently it is possible for an industry to invent it into an entity, though hopefully not a human entity? Addressing this in the context of patent law is fascinating and insane.

MonkMan Patent

[ealbers]

Actually, modifying the monkey genome to increase their intelligence a bit, then addict them to a drug for their survival, would make excellent workers. Just keep them looking like monkeys, and keep the IQ down, and keep the agression in check and you've got a patent worth billions.

We Need a Transhuman Ethos, NOT Banned Technology

[FreeUser]

Maybe we need to clone some of the thinkers from the Age of Enlightenment and have them draft something for us (that would probably make their cloning illegal).

I like your dose of irony, but beyond that, why ban cloning? Cloning is simply a new reproductive method, nothing more. One that is currently fraught with risk, quite probably unacceptable risks at this point in time, much as test-tube reproduction was 40 years ago. Making it illegal, and banning other bioengineering techniques that could be used to create non-human species as smart as ourselves, completely skirts the underlying issue which needs to be clarified: namely the rights of all beings, not merely those who happen to be defined as human, based on some reasonable metric (such as perhaps intelligence, or some broader definition of sapience that factors in degrees of self-awareness and thought, not an easy task I grant you).

Such a regime would require:

1) a definition of sapience, probably one that (a) recognizes sapience and intelligence as a spectrum, and not a binary, condition, (b) uses the human norm as a starting reference, (c) explicitly states that any member of a species with average intelligence comparable to that of a human being or greater, enjoys full 'sapient rights' (what we now call human rights) even if their intelligence is significantly below the norm (e.g. retarded people have, and should have, all the rights of a normal person, even if the average chawowow can outthink them on a good day, but chawowows should not necessarily be considered equal to human), and (d) any unusually intelligent member of a species not normally expected to have human level intelligence or greater would enjoy full sapient rights if their unusually high intelligence is found to be such that, were they they norm, the species would be considered sapient.

2) The definition of species that enjoy full sapient rights (vs. those that do not, i.e. what we typically consider 'animals' or 'dumb machines') must be inclusive of any being demonstrating said level of sapients, regardless of whether they are human or nonhuman, bioengineered or naturally occuring, mineral (machine, crystaline, whatever), animal, or vegitable, or other.

We need a recognition of sapient rights that transcends humanity, not merely to deal with the inevitable results that bioengineering, and quite likley software engineering, is likely to create in the next century, but also to cover contingencies such as meeting alien life in our exploration of space, etc.

It is important, as life evolves and more intelligences arise (artificial or otherwise), that we have a foundation for interacting with that life in an ethical and kindly manner. Banning technologies and cowering behind our outdated religious myths does nothing to prepare us for these eventuality, and indeed increases the liklihood greatly that, if and when we meet intelligences that are other than ourselves, we will react in exactly the wrong way, with prejudice and ethno- or speciecentrism ('intelligent computers have no soul' claim theologens, for example, or 'we created the creature, we are its god, it can never be our equal', both of which are appallingly unethical and quite probably false assumptions to be making, but appear to be our default stance on such things).

Anyone else notice?

[pete-classic]

Did anyone else notice that this bears a striking resemblance to Asimov's "The Bicentennial Man"?

Specifically, petitioning the system to get "partly not human" declared not human, with the hopes of losing, to set a precedent that "partly human" is legally human.

To me that is a pretty striking example of life imitating art.

I can never get over how ahead of his time that man was.

-Peter

Abuse of process

[Paul Johnson]

They are happy to go to court. A judge's denial of a humouse patent would probably bar patents on all human-animal hybrids and possibly on human embryos. And even if they win a patent in court, they expect a public outcry that also could force Congress to act.

This would be an abuse of process. The courts (rightly) take a dim view of people manufacturing a controversy and then coming to court aiming to lose. Imagine if the 2600 case over DeCSS had not happened. Instead suppose the MPAA had created a small company to host a copy of DeCSS and then sued that company. The front company would put up a lawyer who would make a very weak case, and the MPAA would have gotten a binding precedent set without giving the real opponents of the DMCA a day in court to argue their corner.

These guys are proposing exactly the same abuse. They want a broad precedent against organisms with human cells in, and they propose to get it by creating a court case that does not give the proponents of patenting such organisms a chance to argue against it.

Incidentally, check out Friday by Robert Heinlein for more on this subject.

Paul.

Paul.

Re:Abuse of process

[Catiline]

Two problems with that argument:

They aren't creating the controversy (just trying to bring it to national attention). IIRC, the school segregation case (Brown vs. Ed of Kansas) was taken to court... and deliberatly lost... up until the Spreme Court appeal. Sometimes, the lines are so clear anyone would rule against the law, but a deliberate loss is the only way to have the Highest Court rule on an issue.

Secondly, they aren't really aiming to lose. They plan on winning- and to thus force Congress to do something about it. Otherwise, they will get a good, crisp, legal line drawn for reference by the patent office.

Now, if there were only some way to do this with software... hmm... (starts thinking about how to patent addition)

This strategy has been proven futile.

[hey!]

Many people find patenting living organisms offensive. Most people find the idea that a copmany can have a patent on a gene that is in their family repugnant. Nonetheless, there is commercial support for these ideas, and so they go ahead more repugnance be damned. The only result is a weakening of the public capacity to fell moral repugnance.