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Talk To a European Patent Examiner
While the US Patent and Trade Office sparks more discussion on Slashdot, the European Patent Office and the patent examiners who work there do much the same job as their US counterparts, although they work under a different set of laws and regulations. John Savage is a European patent examiner, and he has kindly consented to answer questions from Slashdot readers about the EU patent process. Usual rules apply: One question per post, we send 10 of the highest-moderated questions to John about 24 hours after this post appears, and run his answers verbatim when we get them back.
Why do we need to examine patents?
exactly what IS your opinion on such ridiculous patent claims as the BT claim on hyperlinks? What actions do you think should be taken when something as dumb as this comes around?
Looking for Book Reviews? Check out Literary Escapism.
what is the one question you ask yourself just before you stamp "APPROVED" on the patent application?
MORTAR COMBAT!
What is being done to stop the abuses of the patent system we see in the US ? (I'm particularly thinking of the recent so-called "JPEG" fiasco).
Or perhaps you do not view them as unreasonable, but I myself see this kind of patenting of existing things plus litigating against large corporations as an ethically bankrupt "revenue stream".
graspee
Are European patent examiners graded on the same "points" system as their American counterparts? I believe the points system goes something like "Approval : 1 point, Early Approval : 2 points, Rejection : 0 points plus possible appeal".
Who grades your performance, and how?
Doubtless you are aware of the broad problems and miadventures of the USPTO. In your opinion, what are the USPTO doing wrong?
Cretin - a powerful and flexible CD reencoder
How often do you get applications for simple stuff that clearly has been done by others or are non-innovative, such as using images in an online business, or one-click shopping? If the rate is high, do you suspect that frivolous patents in the US are to blame? If the rate is low, do you attribute this to the overall examination of each application?
The One Rule Of Chess You'll Ever Need: Don't play someone who carries a kit in their bookbag.
Do you guys laugh at all the stupid stuff we aprove here? Thinking about that paten to swing that was approved!
With the recent scuffle over JPEG licensing, the issue has come up about patents that were not actively enforced until they became industry standards. If I create a new widget design, let it be copied until all homes on the continent have my widget, then decide to enforce my patent and take the 300,000 or so manufacturers to court, do I have a right to enforce my patent or does it get dismissed?
There is no reasonable defense against an idiot with an agenda
:wq
What resources do you use looking for prior art and how exhaustive is it? How does the prior art help you determine obviousness?
I am not a number! I am a man! And don't you
What sort of process do you go about when you come across a patent for a device (especially a technology device) that is in everyday use? Forinstance, the "hyper link", how do you determine if that is even patentable.
this question has nothing to do with the expertise of the interviewee. he has no idea what is being done to stop patent abuse in the US.
:/
mod parent down...
I have always thought that the solution to alot of the patent problems we are seeing lies in the details. Alot of Patents that get granted seem very open ended. "A process for doing X with Y", but they many times seem to lack detail and are very openended in how they can be viewed. It seems to me that the public would be better served
if Patents were granted on ver specific fine grained processes. "Specific Process for doing X with Y by using Z in combination with A, B, C, to achive K..." Would you agree? Why or why not?
Power Corrupts,Absolute Power Corrupts Absolutely, leaving one person(group)in charge is absolutely corrupt.
is it more difficult to get a patent in Europe? (i.e. do you issue fewer patents due to more stringent requirements?)
Do you feel pressure from the US and other countries to approve software patents? I know many corporations will withhold business from countries that don't have "support" for this sort of thing, so is there a big national-level economic incentive in software patents?
How do the US and EU patent offices differ in the realm of ethics? Does the EU patent office even consider this when appoving patents?
The GPL and other Open Source licenses were created in the US. Do you know how they conform with European laws?
One of the major shortcomings of the USPTO seems to be that there are far too many patent applications for the number of people processing them; thus patents on stupid things, obvious things, and even long time standard industry practice things slip through frequently.
Do you believe that your organization has enough employees to adequately review all patent applications? This includes all of the tasks that you're presumably charged with: examining the patent's relevance to its field, searching for prior art, etc. We don't hear much brou-ha-ha with regards to the European patent system, so presumably you folks are doing something right. I'm curious as to whether "a ton of staff" is the key.
One of the most worrying trends is the development of software patents which (unfortunately) especially the UK is pushing very hard for (yup, that's why the UK directive to 'consider Open Source alongsize proprietary solutions' is not as valuable as it seems). Do you see any alternatives to the present yes/no binary answer?
'cause slashdot is for hypocrites and losers who can't sp3ll
sorry about that. -krog
What qualifications do you require for granting a patent to someone?
I am a meat popsicle.
With more and more patents being applied for buisiness practices and non-tangible inventions, how is the requirement for working examples being affected.
Specifically, do you feel that patent requirements have had to be relaxed because of the nondemonstrable qualities of many patent applications recently?
The EU, Africa and Russia have all threatened to bypass U.S. drug company patents on drugs used to combat H.I.V. in order to reduce the costs of distribution to the people who need them.
Could you ever see the same measures taken in terms of technology to help bridge the digital divide?
Thanks!
tcd004
Read the EXTREME Worst-Case Scenario Guidebook
With the millions of technical papers, conference proceedings, theses, dissertations, textbooks, previous patents, and other publications, how does the patent office verify that technical content is acutally patentable (novel and non-obvious) and owned by the submitter? Further, is there a way that the technical communities could assist in preventing these troublesome patents?
//TODO: Think of witty sig statement
It's too bad we can'r interview a US patent official. My first question then would be "Does it hurt to have your head that far up your ass?".
I am a research student from the UK. I am currently researching a relatively new area in computing. My research is novel and my own work. A company with an "aggressive patent program" (Quote from their website) have placed several broad patents across my research area.
They basicly can stop me from using my research and take all my work from my posession.
My University does not stand up to any accusations. They do not have lawyers and any research is not worth a lawsuit even if I have strong evidence that my work was independant from their and only based on prior art.
My question is "Is there any way I can question their patents several years after they were accepted without involving large sums of money or my university?"
Mouse powered Chips, Open source Processors and Lego
Do you ever get put under pressure (e.g. lobbying, words with MP's etc) by big business to grant a patent, or are you just left to get on with it without any pressure being put on you?
Now tell us about the scariest, most unbelievable patent application you've ever seen.
[o]_O
He is going to fuck himself with the thootbrush and use the shampoo as lubrication, of course is what it means.
How seriously are you taking the issue of big business (primarily American business) buying up huge catalogues of software patents and affectively locking out anyone without the finances to pay a royalty from continuing to operate and develop software ?
The US system is based on the power of courts to arbitrate on ownership and validity after the fact. What would you describe as the basic theory behind the EU approach.
An Eye for an Eye will make the whole world blind - Gandhi
What is the process in the patent office from the point when an application is received to when a decision is made? How much of the decision is up to the patent reviewer, and is there much group discussion before patents are granted?
A major problem in the USA is that the patent office is funded from patent submission fees. This gives them a financial incentive to accept as many patents as they can, and this pressure filters down to the patent examiners.
As the well-known principle goes, if the regulations say X, and the financial incentive is for Y, then people get creative about how to derive Y from X. (And lawyers specialize in exactly this form of creativity.)
So my question is how are the European patent offices funded, and what safeguards are in place to keep them from only representing the desires of (would-be) patent holders?
I've often needed to search patents to see if my software is infringing. One of the most difficult task I found was to understand what was described in the patent. It's hard even for patents that apply to my field (speech processing), so I'd like to understand how you (and other patent examiners) handle incomprehensible patents applying to fields that's not necessarly yours. Do you think that's the reason why so many dumb/obvious patents get through?
Opus: the Swiss army knife of audio codec
In many countries the patent application process requires sending hundreds (or thousands) of pages of paper to the patent office. I have no doubt that the patent office then copies the application several times, particularly if it's approved. Many online patent databases provide hard to read scans of what appear to be third or fourth generation copies of the original patent application.
What is the EPO's position of online patent submissions and searches? Can it be done? Does it require commercial software or are there open source alternatives for generating the non-paperwork?
How would your answers differ if you were writing anonymously?
"Be thankful you are not my student. You would not get a high grade for such a design
Is there any way to stop the onslaught of software patents? Or prehaps even reverse the damage that has been done by them?
Free Mac Mini Yeah, it's
It seems to me that patents that are issued in the area of computer science are often of similar doubtful validity.
I thought that the purpose of a patent was to encourage innovation and technological advance, whereas what is happening now is quite the reverse.
Would rate of progress in genetics and computing slow if patents were abolished in these fields, copyright provides sufficient protection for the few years until the technology is overtaken by something newer and better.
When an application comes in, what is the mindset of the patent reviewer? Is that person skeptical and therefore attempts to prove it to be a valid patent, or is the goal to assume it's a legit claim and then disprove a patent? It's kind of an innocent until proven guilty, or guilty until proven innocent thing.
I thought his name was Gary.
In U.S patents are valid for 17 years. Even if E.U accepts software patents isnt it a long time for a industry like software engineering where patents kills innovation . So if EU accepts to apply software patents will it be valid for 17 years as in US? Or will it be a more reasonable time interval like 5-7 years.
Never learn by your mistakes, if you do you may never dare to try again
What can we, as the Slashdot community, open source community or just as people interested in fair patents, do within the framework of the European patent system to ensure that patents are allocated fairly and do not ride rough-shod over existing methods and devices?
Matt Thompson - Actuality - Insert product here.
Assuming that removing this status would roughly double the offices wage cost (which is obviously a major part of the budget), which would entail the costs of applying for a patent rising by a significant amount, what do you think the effects would be?
Less applications, those that apply can afford it anyway, what? Are the EU tax-payers supporting big business or the small inventor in this way? Not a troll, just hoping for a discussive answer!
What level and what type of education do you and your fellow examiners have? Do you routinely divide up work according areas of expertise or knowledge? Do you feel it helps in your decision making process to weed out frivolous applications and approve genuine patents? Do you and your co-workers find time to stay up-to-date on issues surrounding your office's public view such that it helps guide you toward positive ends?
The One Rule Of Chess You'll Ever Need: Don't play someone who carries a kit in their bookbag.
Do patent examiners do any search at all for prior art, or do they just take the applicant's "word" for it?
Corporatism != Free Market
What would Einstein think of today's patent environment? Do you think he would have been able to tackle the theory of relativity if he had to put up with companies trying to patent hydrogen or using friggin laser beams to play with their cats? Would he have quit being a patent clerk in protest?
What is the general view of U.S. patents and the USPO? Is there some type of cricism or anti-U.S. feelings, if so why? Is there a certain arrogance factor with the USPO?
I guess you wouldn't support compensating those who do knock down bad patents out of the Patent Office Employees Pension Fund? :)
Most Americans probably won't understand what this is about, but it's worth asking anyway..
With new states set to join the EU, and perhaps even more joining in the future, how will the patent office deal with this?
For example, a company in Romania could have a national patent on, say, a form of compression. A company in the EU may also hold a similar patent.
When Romania joins the EU what happens to harmonize the patent law across the EU? Does the EU patent immediately get preferential treatment? Or does the older patent of the two get the final EU patent?
If this is the case, could a company in a country currently outside the EU get broad patents for a whole bunch of areas, and then claim licencing fees when they join the EU and have their patents validated?
Also, what happens to patents currently held in multiple countries already in the EU? Does the EU take precedence, or do the countries have to fight it out? For example, people in Sweden and the UK might both have patents on the same thing!
mogorific carpentry experiments
The actor with the same name?
What sort of technical qualifications are required for someone to be given the authority to judge whether something as techincal as, say, a software patent, is acceptable? Do you need a bachelor of science degree? A masters? In what fields of study? Is experience in the software field required?
"Can't you see that everyone is buying station wagons?"
How can you patent a sentence or description of how to do something? If say someone tomorrow makes a development system that lets you tell the computer what to do in normal talking voice? Am i illegal if i happen to tell it to do something thats patented? The whole thing is absurd. Copyrighted software is bad enough but patent? No frigging way! Its like taking a patent on the way my new speaker makes air bend and sue everyone that makes a noice. Software patents are flawed by nature and i do hope it never reach europe.
HTTP/1.1 400
For example, a U.S. inventor is required to indicate the "best way" to use her invention as part of the patent process. A European patent application is required to include at least one potential use of the invention, but it doesn't even need to be a particularly good use.
Do you see potential abuses of that absence in the European system? Do companies and individuals avoid disclosing potential uses of their inventions, thinking of those uses as guarded business secrets, or do they see it as in their best interests to specify use as clearly as possible in order to strengthen the patent? (I'm thinking of examples like "one-click" ordering, where the patent seems to be as much on the potential use as it is on any distinct "invention.")
"Fundamentalism" isn't about divine morality. It's about human authority.
Does Britain have a legal Patent industry like that which exists in the US? I am refering to need in the US for the hiring of a lawyer (one or more) if one wishes to accomplish a Patent Search and Patent Registration. Do you have ideas for the simplification of the European and US Patent Office Procedures and/or requirement?
Thank you. MadDad32.
It means he is obviously not a Linux user, since he is buying grooming items.
It is widely feared in the technology community that increased intellectual property protection, both in scope and time, may be a threat to innovation and creativity.
European copyright law enters the USA with moral rights and non-registration, while US patent law enters Europe with business model patents and software patents. This is done, without the former weaker protection (i.e. the patent system or copyright protection) is modified. The sum is a new framework for intellectual property protection where the current author or inventor is handed a shiny toolbox of protection, possibly making it harder for the future author or inventor to create new works or innovations without the consent or license from the current author or innovator.
How much intellectual property protection is just right (or "lagom" as we would say in Sweden) and how do you in your daily work weigh patentability against copyright to find a result where creativity is ensured and not stifled?
Regards
Mikael
Pawlo.com
Could you please tell us if you, as a patent examiner feel lobbies pressure ? If yes, how ?
Are patent examiners' voices heard in the debate about patents in Europe ? What is their feeling about patents on algorithms, software or file formats ?
Click here for more information about Newfoundland and it's school system.
Are patent examiners' voices heard in the debate about patents in Europe ? What is their feeling about patents on algorithms, software or file formats ?
Could you tell us if you, as a patent examiner feel lobbies pressure ? And if yes, how ?
Do you see any chance of the rest of the world succeding in forcing USA to behave? For example, could we threaten to exclude USA from the international patent treaties, and stop enforcing US patents anywhere else?
In Murphy We Turst
What are the limitations you use in relation to overly vague or broad patents?
That what was all this school was for... to teach us how to solve our own problems. -- janeowit
Do you think your office would have approved this patent (approved April 9, 2002)?
My beliefs do not require that you agree with them.
Patent and IP Law is exceptionally hot these days in the press, and the patent officers both in the US and worldwide endure significant criticism. We've seen coverage of patents that are groundbreaking as well as patents for the ethically obscure (read: human gene patenting, HIV medication), the mundane, the obvious (JPEG) and the downright silly (/. had a story, and forgive my forgetting the link, about a gentleman who had patented a particular was to sit on a playground swing).
My question: out of any 100 patents you review on any given day, how many:
1. really impress you as having widespread industry implications; whiz-bang innovations
2. are rejected
3. are rejected for being completely asinine
4. implicate an ethical debate
Many Thanks,
-FC
Being a patent officer obviously requires knowledge in various areas. Is the patent office devided into various sections (mechanical, computers, agricultural, etc...)?
And what about enhancing your knowledge? How do you tackle new technologies that are coming out. What tools are given to you in order for you to do your job? (training, seminars, courses, books, etc...)
It's better to burn out than to fade away
Is it really true that the patent office gets paid only for granting patents and not denying them, or is this the case in Europe as well as the US?
If so, then what incentive does the patent office have to be impartial?
If you agree the system is skewed in favour of granting patents then do you have any ideas on how to make the patent system fair to both those seeking patents and also to those who may be challenged from a patent holder?
Regards,
What made you want to become a patent examiner?
If you can't see the value in jet powered ants you should turn in your nerd card. - Dunbal (464142)
Basically my question is this: Do you, as an employee of a patent office, feel that the work you do is done in an efficient, straightforward, and intelligently designed manner, and/or what are the parts of the procedure you would like to see change?
hmmmm?
That is, there are several factors which would deter a lone inventor or small company from trying to enter an innovative field. These include:
- The time and expense of a thorough patent search
- The time and expense of preparing a patent (especially if a lawyer is hired to do the job properly)
- A large company somewhere is bound to have a patent at least tangentially related to the product in question, which could be used as a tactical weapon against the smaller company. Even if the product is found not to violate the patent, the cost of defending such cases can sink a small company.
Do the benefits of the patent system outweigh the above disadvantages?1. You say your name is John. Is that an honorific or is that your real name?
2. If my substantial claims, upon examination, are denied because of prior art, what appeal rights do I have?
3. Are European Patent Examiners better than American Patent Examiners?
4. When you open up a patent application, what is the first thing you look at?
5. Have you examined Cowboy Neal's claims? Are the actually novel or have you seen everything?
Do I now have to bribe patent officers in euros, or are good old-fashioned pounds still acceptable?
(I'm not sure I agree that the current state of the US system has any close connection with the system's basic underlying philosophy, btw.)
As a US Patent attorney, the fault of "lame" software patents is not that of the office but of the poor state of documentation of software inventions. In the USPTO and as far as I am aware the EPO, valid rejections must be based on printed publications, not some vague knowledge on the patent examiner that "this has been done before." Without that prior art, the Examiner is helpless not to issue the patent. So, in part, the software industry can blame itself for poorly documenting. The other fault is the shortsighted Supreme Court and Congress for failing to recognize the patentability of software until 1980, leaving the patent records woefully short of invention documentation in this field. Because the EPO has ruled similarly, I'm sure Mr. Savage's colleagues in the software areas find themselves having the same difficulty. True Mr. Savage?
In the time of chimpanzees I was a monkey . . .
Hi
Waning: I do not live in a English speaking country,
so my posting might have several grammar mistakes.
For some time I have been speculating about improvements
for the patent system and I have come up with the following changes.
* The invention must be a trade secret.
With a trade secret I mean that the
inventor must be able to keep the invention
secret while using it to do business.
This rule will remove patents like '1-click shopping'.
* The patent should be filed in a computer readable format.
In the future who needs paper based patents.
A computer based format is easier to distribute and work with,
I suggest a XHTML+MathML+SVG based format.
* Free public access to all patents.
Everybody should be able to access
the patents via the Internet of free.
With the patents computer based it should not be a problem.
* It should be possible to fill a anti-patent.
A anti-patent is a patent a publication of a
invention for everybody to use without restrictions
of any kind and it should be free for the inventor to make.
* A patent should be approved if there is not any prior patents and
anti-patents against it.
This might seams strange at first, but what actually happens now,
is that patent examiners only look at patents and not at other
publications.
With this rule everybody know that they will have to fill a
anti-patent to be safe for patents.
This should help force all human knowledge into the patent database.
Can I have your comment on this changes ?
At a conference I attended end of last year, the EPO's director admitted that software patents had been accorded to companies, without a legal basis from the EU.
What is the legal status of these patents? Do they have any value, or could any court throw them out? Does it even have to go to court? And how does the EPO justify such (IMHO, illegal, but IANAL) practice?
The European Union has a large enough R&D and manufacturing base that it can still determin it's own path on this issue. Do you see the current EU patent policy as setting the initiative or to what extent is EU patent policy having to be reactive to Patents lodged in Japan and the USA? How do you see you job changing in the increasingly globalised world?
I just did a quick check on the EPO search engine.
A competitor was granted a patent in 2002 with "almost" the exact title as my 1997 patent. His one abstract paragraph is exactly lifted from my abstract and his claim 1 is my claim 1. No doubt who would win a court battle, but how can such a blatant copy get through the system. My patent was even listed in prior art.
It is my impression that the EPO allows members of the public to follow the prosecution of a patent application and submit information to the examiner to consider in examining the patent. Do you think that the relative openness of the European system affects most applications, and if so, to what degree?
Do you see any value in a ranking or grading system for patents themselves?
Clearly, some patents are more ingenious than others. If there was a "strength" ranking system, then it may make it easier for smaller companies to defend against weak or silly patents.
Table-ized A.I.
I believe that software patents are not necessary and on balance a hinderance to prosperity and technological progress. You may or may not agree with my sentiment, but what I'd like to know is: what do you believe to be the most effective strategy to change patent legislation?
I've helped litigate international patent cases before and I know that English, French, and European Patents all exist, what is the relationship among them? How about the other countries in Europe? Does one patent office have priority over another?
If brevity is the soul of wit, then how does one explain Twitter?
Shhhh....
That's just what they want you to think.
Here is the feeling from the outside.
Software patents are a complex subject in Europe. The law itself is clear (Art 52):
This decision to ban computer program from patenting was the result of a long discussion in 1973, were a lobby of industrial lawers were trying to make "computer programs" patentable. Fortunately, they didn't succeed at the time.But the law makers didn't want to rule out everything that use an algorithm. Just the thing that were only algorithms. So, they added (Art 52):
In plain english: what is not patentable is only computer programs as such. The normal understanding of this is that what is only a computer program is not patentable. But if something is already patentable, and then use as a part of it an algorithm, then the whole is patentable. But still not the bare nude algorithm.This understanding is confirmed by the 1973 metting notes and by the scandinavian translation of the "as such" clause.
But the industrial lobby used this "as such" clause to brings back software patent by the backdoor. First by saying that the "as such" clause is too complicated to really understand what it means, and then by providing their view of it: a computer program that have a "further technical effect" is not a program as such. For example, in the EPO examinator's guideline, it is written:
This interpretation of "as such" is written nowhere in the law. A woman from the INPI even explained me once that as long as an algorithm does have a functionnality, then it is patentable. For example, "making a dictionnary of the most frequent lines in a file and replacing thoses lines by their dictionnary index" could not be patented, but add "in order to compress the file", and then it could be patented. The example is from her.But the guideline go further:
So, with this guideline, an examinator should not unrule software patent, but more, he should not even search for a "further technical effect".But the EPO have no juridictional power. That's why, when there is patent litigation, it goes in front of a national court. But EPO could not impose its views on national court. So, in every european software patent case, the court has found the software patent illegal.
So, in order to have the Europe comply to its views, the industrial lobby, and especially our friends of the BSA, has lobbyed the European Commission to propose a new law to make software patent lawfull. My prefered line from the FAQ is about the answers they have got from a consultation he subject, and the respect they have for those answers (my emphasis):
.Fortunately, our gouvernment is still opposed to the idea. But how long could it stand against Europe or industrial lobbies ?
So, from outside, the feeling is that the EPO is defying the law, on the pressure of the industrial lobby. And in order to align the law to their views, they even lobby the European Commission.
And you ? What is your feeling about this ? Especially from the inside of the EPO. You are somehow in the center of the whole thing. I would really like to have an opinion "from the inside".
do you ever think -- "i wish I though of that?"
and then accidently loose the application? =)
-- Coops
zadok.org.uk
Can you tell any success stories about patent lawyers who have decided to fight for students instead of universities or companies that fund university research?
Example: A startup that was funding my (university) group's research decided to take data from my group without explicit permission from the students that took it, then they proceeded to display that data on the company website without permission from the people that did the work and then attributed the work to the company's new product.
Do IP lawyers ever go into private practice (or do pro bono) with the goal of protecting this kind of property theft? Or, are IP lawyers always working for big firms: writing patents, supporting big institutions and sometimes hurting the little student?
As a patent examiner I assume that you can reasonably well defend the legislative system you are representing and would therefore like to hear your oppinions on the following reasoning: After talking to a patent layer briefly I was told that publications on the net (websites) count as prior art in patent applications. Regardless if I could actually prove that anyone had read the website or not. Shortly after this I made a (dynamically generated) website containing *all* algorithms which could be expressed with program smaller than 4 MB in a turing equivalent language of my invention. They way this worked was that enumerated all such programs and after viewing the algorithm you just had to click the "next" button to get to the next algorithm until you have seen all algorithms (no doubt a *very* time consuming activity). Formally I had thus given a description by example of in principle every humanly concievable algorithm. Thus, do we have a case of prior art for all yet unpatented algorithm? Even if you dont think the above reasoning would hold in court it would be nice to hear any thoughts about since it realy highlights that there's a fundamental difference between an algorithms (which, just as mathematics, can be *discovered* - not invented) and "normal inventions". Please note that most of the limitations in the above reasoning can be removed with just a little bit more of effort (currently the website is down but I'll put a new version up if there's any interest in it). The underlying problem here is that the set of all algorithms is a quite small enumerable set as compared to the set of all inventions which is realy a set of untangible ideas, not mathematically enumerable.
Has the European Patent Office remembered that patents were originally intended to protect individuals from companies and how has that policy changed over the years.
We all know that in the US once Companies were granted similar rights as individuals that our patent system has been abused terribly. Not to beat a dead horse, but look at the JPEG debacle. The current owner of that patent never invested a dime in research.
oh well,
As we know, patents on mathematical formulas or algorithms does not exist in Europe. Those things are not patentable at this moment.
What forces are currently pushing for relaxing these laws and allow software-patents?
As I understand it, with the current system patent examiners have the task to find out whether or not a patent application is truly new/innovative/...
This implies that if you take the path of least resistance (underfunded patent examiners/time constraints/whatever/...) by default, the patent will pass, and a monopoly on the device (albeit temporary) is given out. Effort has to be made to stop a patent application.
Isn't this placing the "burden of proof" at the wrong side? Shouldn't it be so, that by default the patent should NOT be given out?
I've heard (don't know if this is correct) that with the USPTO the patent examiners get rewarded for every patent granted. Shouldn't the patent examiners get a reward for every patent application blocked?
The infamous U. S. patent 6,368,227 granted a patent to the method of swinging sideways on a playground swing, in the manner practiced by children for decades.
Could this patent have been granted in Europe, and, if not, what would have prevented it?
"How to Do Nothing," kids activities, back in print!
This is the single most important question that needs to be asked and answered.
In the US (probably in the EU, also), you aren't allowed to defend yourself at a patent trial because it's assumed that you can't understand the patent.
On the other hand, the only reason patents exist is to convince inventors to put their research out there for everyone to see and build upon (after a certain time period).
So, if these inventors are supposed to look at a patent and it's supposed to be "reduced to practice" then they're supposed to be able to implement it, right? Which means that they have to understand the patent right? If they're expected to EXTEND the patent, then they have to understand the current patent right?
But they can't understand a patent since they're not patent lawyers...
It makes no sense to me. If people are assumed to be unable to understand a patent unless they're patent lawyers, and if the only reason patents exist is to let engineers avoid reinventing the wheel by reading and understanding the patents, then aren't they worthless?
Or if not, could you explain the legal contortions that give two totally separate meanings to "understanding" a patent?
Best. Comment. Ever. Enjoy!
Please allow me to clarify what I think Graspee_Leemoor was trying to get at:
What is being done in Europe to stop [] abuses of the patent system similar to those we see in the US ? (I'm particularly thinking of the recent so-called "JPEG" fiasco).
Or perhaps you do not view them as unreasonable, but I myself see this kind of patenting of existing [] inventions or allowing patented technology into an international standard but then drastically changing the licensing terms[1] as an ethically bankrupt "revenue stream".
[1] added by yerricde to correspond more closely with the JPEG facts
Will I retire or break 10K?
It's been said that patent officers should be experts with regards to the field they are judging (for example, only software engineers should be allowed to grant software patents). With the large number of bad patents being granted here in the US it seems quite attractive. What are your opinions on the matter?
Science may someday discover what faith has always known.
As it is now, there is virtually NO incentive for patent examiners to do their job correctly.
There are NO penalties for a lazy patent examiner who ignores tons of well known prior art and just signs off automatically on every ridiculous piece of crap that lands on his desk.
Here's how it can be fixed:
1) patent examiners get paid some very low base rate for examining a patent
2) patent examiners get a bonus for every prior art they can find which invalidates the patent
3) patents which are invalidated via prior art in court result in the responsible patent examiner's payment for that patent being revoked
4) examiners who have a history of patents being invalidated are suspended or fired.
Essentially, the patent examination process would then provide REAL incentive for examiners to do exhaustive research to invalidate patents -- as it should be.
Right now there is NO incentive for patent examiners to do a proper prior art search. And this leads to extensive abuse of the system from bogus and invalid patents. The most incredible crap gets signed off these days, and it's obvious the examination process needs a total overhaul.
What is the impact of patents going to do to markets that issue them, which are small such as the combinded US and European Markets, and those that do not?
How can American and European startup companies possibly compete against foriegn markets if they must pay patents on ridiculously long patent lifetimes vs foreign companies who do not have such startup costs?
How can American companies hope to do any sort of research if they have huge legal battles ahead of them in patent research, into Biotech or Software for example, if foreign companies of other nations do not have these problems in thier own domestic markets?
Do you feel patents lead to monolithic, and very unhealthy non-diversivied, economics in the high tech industry of countries that issue patents? If so why and if not why not?
Do you think a high tech industry heavily patented is more healthy than one that is not?
I tend to feel patents should have a maximum lifetime of 2 years for the following reasons:
1) 2 years is long enough for almost any technology, and allows other companies a lower barrier to market for what most patents come to be: industry standards or acceptable practices.
2) It prevents a market place or any one company from manipulating the legal system for extensive periods of time to squash competition. Not only because of fear that a product might be superior, but to keep prices high and competition low.
3) Both 1 and 2 breed an industry, that economically in any country that has patents, that is unhealthy to said countries economic well being, and effectively causes problems in a world emerging marketplace for that company who wishes to compete world wide.
Hack
Got Geometrodynamics? Awe, too hard to figure out? Too bad.
sorry that turned out to be kind of a rant. to turn it into a question -- do you think the proposed changes would work? how would you change it, given the current brokenness of the patent examination system?
Most patent (applications) I know are written in an obscure variation of english, probably only known by lawyers. In particular, it seems that any applications are obscured by the lawyers to point where the experts in the area can hardly understand what's going on [or anyway, it's made unnecessarily hard to understand]. I'm wondering what is the reason for this, and what you think should be done to prevent it?
-- Esa Pulkkinen
I hate the monopolistic practices of bigs companies, avoiding the comercialization of any product that could decrease their money ingress, using patents payed only to avoid the use of the payed patent.
So, my question is this: Could be possible a future law, to register a free patent, (without any tax, or very cheap) to avoid the use of industrial monopolistic actions, and letting everybody to use it with freedom?
Paying patents isn't always possible for the individual inventors, or for little and young companies. Other adventage for a free patent is that the author never could be forced to sell the own patent.
The free taxes should be compensated with money aportations from the nations, or if that's too much, with a new little tax, paying the companies who are using the free patents.
I can only remember one decision which was appealed, and we won that one. We didn't argue against all applications, because many were very trivial, but even some of those we shot down by demonstrating previous publication or use if doing so was simple. We didn't do anything on a very few applications against which we thought we didn't have a chance. But we stopped nearly all of the others. Some times we worked together with other companies to stop a patent, but at other times these temporary allies would work against us if they happened to be interested in licensing the process.
Most applications in our field came at that time from Japan, but I recall very few from the USA.
Now my questions:
1. Is this system still being used at the European Patent Office?
2. At the time I had the distinct impression that some patent examiners did not fully understand the technical issues, which in many cases is impossible for them. What do you do in this case?
To be sure that there is no prior art, would you recomment an 'open phase' or 'beta patent', a time where every paper or 'near patent', is available to the public to ensure that there is no prior art? Every product or patent seen after the release of the beta patent could be seen as patent infringement until no prior art can be found.
This could happen before you did all your steps, searches, research, etc., just before you put the last 'approved' stamp on it.
I have often thought that shorter patent terms for software patents
Larry Lessig has outlined the following suggestions for the US patent system:
(1) A moratorium on business-method & software patents until a regulatory impact statement is produced.
(2) The substitution of damages for injunctions as a legal remedy to patent infringement regarding 'net-related patents.
(3) Imposing a "negligence standard" on patent applicants, giving them incentive to find prior art.
Does EPO policy currently differ from USPTO policy in any of these regards, or have trade treaties (e.g. WIPO, GATT, etc..) generally homogenized developed nations' patenting process??
Considering the fact that the Computer itself is an invention designed in order to enable complex problems to be solved, how do you determine whether a particular patent application is in fact non-obvious and should be granted? How in fact do you determine if the average software developer might come up with the same solution or not? Who are these 'average' developers and are they actually presented with problems to see if they will come up with similar solutions or is this part of the examination phase actually an estimate of believed capabilities instead of actual measurement of actual creativity of an average developer? Do you take into account whether a particular patent application would make it legally impossible for a skilled developer to implement a solution to a problem using a computer that was invented for the specific purpose of enabling problems to be solved?
1- Are you having any fun in your job?
2- I hear some patent applications are in the several hundreds of pages long, how do you assess those?
3- Are you secretly working on a new theory of everything?
Given the fact that the European patent-examiners
are required to have a University degree
(as opposed to their USPTO counter-parts),
do you think the `quality' of the European
patents is better due to this fact?
Or does the EPO have better standards
and/or rules than the USPTO?
Just to put it in other words: do you think the
quality of service is determined by the men or
by the machine?
What do you think about the OpenPatents.org Project ?
/ op l-discuss.0103/msg00000.html
I posted a response to 'Open Patents' in their discussion forum and gave the Open Source Community a n example of the type of idea I would like to see fulfilled and what I think about Patents.
http://www.openpatents.org/discussions/archives
Ideas shouldnt be exploited to make someone a millionaire and Patents are bad in general IMHO.
Pixels keep you awake!
What do you think about the conflict between business method patents and laws against monopoly (or oligopoly) businesses in the society? (Considering that a business method patent is a state granted monopoly on a business.) //Fredrik
Do you think it is good for society to allow companies to squash private individuals who write free software and unknowingly reinvent software patents? //Fredrik
I think the Patent system isnt very good ATM and I know in the future technology will be at the hands of most (if not everyone). I think we should have a Voting Device in the hands of everyone and they could vote which Patents should be granted.
Would my Voting Device be Patentable and if so do you honestly think I should be granted a monopoly on a device which everyone may need/want. If the answer is a no then why?
NB. I just made that device up as an example - I wouldnt pursue something as trivial. =)
Pixels keep you awake!
I dont know if you can apply for free but there is OpenPatents.org which supports Patenting ideas which 'want to be Free'.
Pixels keep you awake!
Which ID represents the algorithm of DeCCS?
I think I can partially answer this one. The important fact to note is that the European Patent Convention (the document constituting the EPO) isn't part of the body of treaty law comprising the EU. This creates some interesting problems, especially when the EU passes patent directives that could require member states to try and alter their obligations under the EPC (while all EU members are parties to the EPC, not all EPC parties are member states of the EU).
The basic upshot of this is that there is no single European patent that can be overseen and enforced by a transnational judicial system (i.e. the European Court of Justice). Instead, the grant of a patent from the EPO is recognized and enforced by the domestic courts of each party to the EPC. Effectively, you get a "bundle" of national patents in countries with quite similar patents law (as the EPC requires).
So, a general answer to your question would be: while there are many similarities in the way the EPC countries treat patents, there will be differences according to the system of law employed domestically by each country. So while the UK would have a similar approach to the US, the civil law countries on the European continent will have minor, but not insignificant, differences. Since I'm no expert on civil law, I can't give you any more information than that.
there is no Points system for US examiners as you described. there is a quota system, but you get credit for your first response for the application and the abandonment or allowance of a patent.
.5 credits for doing a PCT(patent cooperation treaty) application.
if a patent is allowed, you get 2 credits. you also get 1 or
I'm a US examiner.
um you probably won't believe this, but the european system is switching to the US system. they used to do separate examination and searching.
the US has it done by the same person.
the jpeg thing is legitimate, its just that people don't understand how the claims actually work. all you have to do is modify a common standard in a new way that has never been done before or is non-ovbious
I read on the EPO site that "Within nine months of the date of grant, any third party may file opposition against a patent they believe does not comply with the substantive provisions of the EPC.". This is great, but I'd like to know more about how the public can become aware of the pending patents? Is there a website where people can search for them, or is there a sheet of paper pinned to a corkboard somewhere in Munich? It strikes me that wider circulation of this list would do the public and the reputation of the Patent Office a great deal of good.
Cool, but i don't mean only for software patents. I also want free patents for engineering, science, etc.
You can look it up in their search engine.
What interesting technology do you use in your day-to-day work that helps you do a better job? What is your general opinion of the state of automation in Europe vs. the US patent offices? What do you think the US can learn from Europe about automating the patent work process, including reference materials?
A nameless company once hired me to perform some network magic. I did and was informed that they were going to patent the process I had demonstrated. It was totally prior art and I had prior knowledge of the so called Intelectual Property. I brought it to the table. They know it yet they have gone ahead and filed for world wide patents. At the very least I am embarassed to have my name associated with the patent and have refused to cooperate. What can be done? I would hate to see the public domain pass into private hands.
As an OSS developer, software patents are a topic that concern me.
Some of the more worrying cases in the US involve small to medium enterprises getting sued for patent violation by large companies, or IP holding companies (set up specifically to obtain revenue by suing others for patent violation), where prior art exists for the patents involved!
These patents were usually granted by the USPTO because either the staff there are overworked and don't have the time to check it out properly, or the prior art was obscure and hidden away somewhere.....
Unfortunately, proving prior art and getting a patent revoked involves an expensive court case, which is beyond the means of the small to medium enterprises.
So my suggestion is this: You get a patent from the patent office and not a court, and the patent office has the power to either grant or refuse a patent. Given that the patent office can grant a patent, shouldn't they be able to revoke one too?
In this case, someone who is being sued for violation of a patent for which prior art exists, can challenge the patent for small cost (say less than a patent application) by providing the necessary proof of prior art to the PTO.
what could have prevented it was an affidavit.
i don't think you are going to see swinging sideways in a printed publication.
wow dude, you ovbiously have NO CLUE how the patent office works.
you make it sound as though the patent office allows EVERY case it recieves. this is in fact VERY incorrect. in excess of 90% of applications are rejected the first time. The average application takes several years after it is filled before it gets a first examination by an examiner. Afterwards it takes months-years before it becomes abandonded or allowed.
If an examiner allows the vast majority of cases on their docket on the first action, their boss would wonder what is going on. the patent ofice makes money in the US via fees, the more time you have to ammend and add new claims, the more revenue the office recieves.
btw im a US examiner.
Bring back the old version of slashdot.
actually the incentive for the examiner to do a prior art search is called keeping their job!
however, that being said, the stautes (35 USC 102,103) say , a person is entitled to a patent unless (read the statute).
Bring back the old version of slashdot.
I tend to feel patents should have a maximum lifetime of 2 years for the following reasons:
1) 2 years is long enough for almost any technology, and allows other companies a lower barrier to market for what most patents come to be: industry standards or acceptable practices.
Two years is not really long enough time by any means. What if you are a small inventor. You may need months or years to find someone to purchase your patent or someone to license too. is 2 years enough time? What about if you developed a new drug and it takes the FDA 2-7 years to approve your drug for sale, by that time, the patent has expired and you can't recoupe the research expenses.
2) It prevents a market place or any one company from manipulating the legal system for extensive periods of time to squash competition. Not only because of fear that a product might be superior, but to keep prices high and competition low.
A patent is a limited MONOPOLY granted to a inventor in exchange for the inventor disclosing how theinvention works to the public. without such a system, there will be little public disclosure of new invention except through peer reiew publications. what does that mean? Well, through a published patent, the public learns about new inventions and can use that base invention to make improvements and in turn file a new patent. With out a patent there is no incentive to make such information public and everything in industry would likely be a trade secret. Technology would likely develop at a slower rate since it would be more difficult for peple to learn how things work except through reverse engineering, which in some cases may take an inordinate amount of time.
3) Both 1 and 2 breed an industry, that economically in any country that has patents, that is unhealthy to said countries economic well being, and effectively causes problems in a world emerging marketplace for that company who wishes to compete world wide.
I would tend to disagree. Without patent protection, someone can easily copy your invention and manufacture it outside the country and possbily reimport it or use it to develop their own products and out sell you.
if a forgien company wants patent protection for a product they wish to sell in the US, they have to file a patent, likewise in their own country.
Bring back the old version of slashdot.
based on the complete bullshit patents that are granted all the time, I would have to say you guys are doing a VERY POOR JOB.
so many patents are granted with so much obvious prior art that its obvious you guys never bothered even the simplest of searches (eg google).
um what are you talking about?
READ THE CLAIMS
not the disclosure
look at the filing date, not date of patent
go take a course on patent law, its not as easy as you think. the claims are what define the invention, they can be worded so that you WILL NOT find it despite an invention which exists and seamingly appears to be prior art.
Bring back the old version of slashdot.
..Two years is not really long enough time by any means. What if you are a small inventor. You may need months or years to find someone to purchase your patent or someone to license too. is 2 years enough time? What about if you developed a new drug and it takes the FDA 2-7 years to approve your drug for sale, by that time, the patent has expired and you can't recoupe the research expenses.
..Two years is not really long enough time by any means. What if you are a small inventor. You may need months or years to find someone to purchase your patent or someone to license too. is 2 years enough time? What about if you developed a new drug and it takes the FDA 2-7 years to approve your drug for sale, by that time, the patent has expired and you can't recoupe the research expenses.
Oh plu-eaze....
You are going to tell me, that for example, Lipitor, a drug that controls enzyme blood levels for cholesterol for people that have high LDL levels in thier blood, would not be financially recovered in research and development if world wide a monopoly on the drug sale for 2 years, couldn't recoupe the cost? Furthermore because the market is a world wide monopoly as you suggest, the drug company in question sets the price anyway based on recovering expenses during that two years?
Especially when the patient has to take the drug on a DAILY basis, in this case?
I am sorry, but that was a real BAD assumption, basis for your argument, for biotech products in general in the pharmacological industry. Drug costs can be recovered in monopoly markets, costing BILLIONS of dollars for research and development in a VERY short period of time for example if they are sold world wide, in MONTHS, let alone years.
It also takes COPYCAT drug companies a few years to get to market with generics EVEN AFTER the Patent expires, and THEY TOO must go through FDA approval processes for distribution that makes the process longer than just a question of copying the mechanical aspects of production of the copycat drug.
Very very BAD example my friend.
This is drivel. If your idea is worth a hill of beans you do what ever other person does, you build a demo product from investors, prove it works, and THEN patent it. You can't patent anything just from a sheet of paper and an IDEA you have to have a working model to begin with. I am sorry but your contention that no one would buy your invention before the patent expires is putting the horse before the cart.
It just doesn't work that way in the real world.
Your example is contrived, heavily, like an astroturfed AD claiming everyone is using your product when nobody has even heard of it.
In fact, if you do the research in the Biotech industry you will find it doesn't take long for drug research to be recovered and profits to be achieved. This is more a function of the patient having to consume the drug, usually fairly frequently for example on a daily basis, and the size of the market. Which, is quite huge if we are talking world wide with possibly hundreds of MILLIONS of people suffering from a common disease such as high cholesterol levels.
I also do NOT believe, since you glossed over a lot of what I said for example in my argument, that longer than 2 years, companies tend to get cash stock piles that are SO HUGE, they use them to legally suppress NEW RESEARCH that disproves a drugs effectiveness. For example, in the liptor case, inflamation, NOT HIGH LDL cholesterol levels, is emerging to be the root cause of heart attacks and heart disease, NOT high cholesterol levels.
I have NO DOUBT, that current Phizor attorneys at THIS VERY MOMENT are looking at suing, or putting out of business ANYONE that touches thier Lipitor drug markets until Phizor, and ONLY Phizor has a solution to this inflamation problem, REGARDLESS of the market opportunities for anyone who decides they want to do research or sell into that market share Phizor already owns from the sale of Lipitor.
This is a common problem with patents that last longer than 2 years. You can also see this in the unhealthy diversification of the software market, for example here in the US. Companies like Microsoft use thier HUGE accumulated cash stockpiles from YEARS of Monopoly market control to SQUASH, or legally DESTROY any small inventor, company or that has a particular idea.
Most investors won't even TOUCH YOU if your idea has ANY IMPACT on Microsoft's percieved market place AND FOR GOOD REASON.
That shouldn't be the case, and I would argue just the opposite. Patent systems that provide market monopolies to companies longer than specified 2 years create stagnant market places, very little innovation and locks out new ideas or small inventors. Investors won't take the chance on an idea that could exhaust a startup's funds, just in legal expenses, if a company that controls a market monopoly can sue them out of business.
This has happened so many times in the past years with Microsoft and smaller companies it has bullied, I can't begin to explain.
Don't forget too, that the American consumer never ever gets to see any of these new ideas either because Microsoft would not permit the company to sell them on the open market place as well.
-hack
Got Geometrodynamics? Awe, too hard to figure out? Too bad.
what is the possible reasons and limitations for cancelling an EPO patent once given ?
how do you compare with USPTO in this regard ?
Working for necessity's mother.
I would like to see the following improvements:
- if there is prior work the patent should be sent back to the applicant (with a bill) and the applicant should have to reframe the patent so that it does not cover prior work
- The above mentioned bill will not impress corporations but it will stimulate the Patent Offices to search for prior art.
- any time lost due to the fact that the patent had to be rewritten should be subtracted from the duration of the patent. (this will impress the corporations)
..Two years is not really long enough time by any means. What if you are a small inventor. You may need months or years to find someone to purchase your patent or someone to license too. is 2 years enough time? What about if you developed a new drug and it takes the FDA 2-7 years to approve your drug for sale, by that time, the patent has expired and you can't recoupe the research expenses.
Oh plu-eaze....
You are going to tell me, that for example, Lipitor, a drug that controls enzyme blood levels for cholesterol for people that have high LDL levels in thier blood, would not be financially recovered in research and development if world wide a monopoly on the drug sale for 2 years, couldn't recoupe the cost? Furthermore because the market is a world wide monopoly as you suggest, the drug company in question sets the price anyway based on recovering expenses during that two years?
Perhaps you can do it for 2 years AFTER the FDA approves the treatment. By that time under your proposal, the patent would have expired. Besides, you are asuming that the drug would be patented/approved worldwide at the same time, a US patent is not enforced in another country, the inventor/asignee has to have a patent in another country as well. In the US, you can't get a patent on something which was made public or on sale in the US or another country at least one year prior to the date of filing.I am sorry, but that was a real BAD assumption, basis for your argument, for biotech products in general in the pharmacological industry. Drug costs can be recovered in monopoly markets, costing BILLIONS of dollars for research and development in a VERY short period of time for example if they are sold world wide, in MONTHS, let alone years. It also takes COPYCAT drug companies a few years to get to market with generics EVEN AFTER the Patent expires, and THEY TOO must go through FDA approval processes for distribution that makes the process longer than just a question of copying the mechanical aspects of production of the copycat drug.
Yes as you said, it takes everyone years to get to market because you have to go to the FDA, even generic manufacturers. In the US, a patent is good for 20 years from DATE OF FILING. It takes several years(currently as many as 4+) for a patent to be approved via the US patent office. Now, add in another 2-4 years for the FDA and you are down from 20 years patent protection to 12-14 years. It may only take a few months development, but not every drug can be patented, heck not every drug developed by companies can even go to market (the sucess rate is certainly less than 100%). I'm not sure if you are aware of this, but on the patent side, you have to believe the inventors specification and research when it comes to the effectiveness of the drug (if they are coming up with a new treatment that has never been done before, there is nothing to counter it).Very very BAD example my friend. ..Two years is not really long enough time by any means. What if you are a small inventor. You may need months or years to find someone to purchase your patent or someone to license too. is 2 years enough time? What about if you developed a new drug and it takes the FDA 2-7 years to approve your drug for sale, by that time, the patent has expired and you can't recoupe the research expenses.
This is drivel. If your idea is worth a hill of beans you do what ever other person does, you build a demo product from investors, prove it works, and THEN patent it. ,/p>
YOU CAN NOT DO THIS. DOING SO PREVENTS YOU FROM GETTING A PATENT. (I am a patent examiner, that is a violation of 35USC 102 (a): the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.) You have then relinquished your right to a patent because you have disclosed it to others. Don't beleive me? Well, there have been more than a few cases of this. You can't disclose the invention until after you submit the application to the patent office, unless you work for a company, because most likely you assigned all IP that you create to that company. This does absolutely nothing for an independant inventor. Hence 2 years is still not enough. Now, you can file then go out and try to sell your invention while the patent is waiting to be examined.
You can't patent anything just from a sheet of paper and an IDEA you have to have a working model to begin with. I am sorry but your contention that no one would buy your invention before the patent expires is putting the horse before the cart.
I tend to disagree, again as I said, I am a patent examiner, and used to work in sales engineering at one point. It easily takes months or years to sell anything to someone which is not a commodity (i.e. some proprietary system).It just doesn't work that way in the real world.
Yes, it does. I have the real world experience to prove it.Your example is contrived, heavily, like an astroturfed AD claiming everyone is using your product when nobody has even heard of it. In fact, if you do the research in the Biotech industry you will find it doesn't take long for drug research to be recovered and profits to be achieved. This is more a function of the patient having to consume the drug, usually fairly frequently for example on a daily basis, and the size of the market. Which, is quite huge if we are talking world wide with possibly hundreds of MILLIONS of people suffering from a common disease such as high cholesterol levels. I also do NOT believe, since you glossed over a lot of what I said for example in my argument, that longer than 2 years, companies tend to get cash stock piles that are SO HUGE, they use them to legally suppress NEW RESEARCH that disproves a drugs effectiveness. For example, in the liptor case, inflamation, NOT HIGH LDL cholesterol levels, is emerging to be the root cause of heart attacks and heart disease, NOT high cholesterol levels. I have NO DOUBT, that current Phizor attorneys at THIS VERY MOMENT are looking at suing, or putting out of business ANYONE that touches thier Lipitor drug markets until Phizor, and ONLY Phizor has a solution to this inflamation problem, REGARDLESS of the market opportunities for anyone who decides they want to do research or sell into that market share Phizor already owns from the sale of Lipitor.
They are entitled to do so, a patent is a monopoly. Without it, what incentive do they have to create the product?This is a common problem with patents that last longer than 2 years. You can also see this in the unhealthy diversification of the software market, for example here in the US. Companies like Microsoft use thier HUGE accumulated cash stockpiles from YEARS of Monopoly market control to SQUASH, or legally DESTROY any small inventor, company or that has a particular idea.
I don't remember microsoft patenting MSDOS or patenting Windows. You can't patent an operating system via a single patent, you need dozens-hundreds to do so. Monopolies aren't inherently wrong (although lack of competition isn't good for the consumer). Microsoft used the money the recieved from being the only player in the business market, a position they gained because IBM did not seem to consider the OS market to be important. Did, you know that back in the early days of digital electronics, no one bothered patenting electronics because things changed so rapidly? The result was that everyone copied everyone else. Now was there innovation derived from that copying, most certainly yes and the world of electronics advanced, but early inventors were clearly shortchanged from their rights and ability to profit.Most investors won't even TOUCH YOU if your idea has ANY IMPACT on Microsoft's percieved market place AND FOR GOOD REASON. That shouldn't be the case, and I would argue just the opposite. Patent systems that provide market monopolies to companies longer than specified 2 years create stagnant market places, very little innovation and locks out new ideas or small inventors. Investors won't take the chance on an idea that could exhaust a startup's funds, just in legal expenses, if a company that controls a market monopoly can sue them out of business. This has happened so many times in the past years with Microsoft and smaller companies it has bullied, I can't begin to explain. Don't forget too, that the American consumer never ever gets to see any of these new ideas either because Microsoft would not permit the company to sell them on the open market place as well.
Well, all the inventor has to do is get a patent. Microsoft then has to fight it in the courts like everyone else. They can use their accumulated wealth to squash it from a marketing perspective or investment prospective, but they can't buy the examiner (you can't accept large sums of money/gifts from a company, its called bribing a federal offical). You can not get a software patent in the US. However, if you read the "software patents" claims, they usually read something like: A computer readable medium on which...... That is a slight distinction. Software patents really aren't that usefull (and you can't get a patent on algorithims), because the marketplace changes so quickly (as I stated above with early digital electronics). Buisness methods on the otherhand are another story. Actually my friend I am an expert on this. Want to know why? I deal with it every day. I am a patent examiner, I use google for prior art. You can't just use what the applicant provides you for prior art because it is compromised (the search firms have a financial interest in finding the prior art). The problem is this, if I'm working on a patent which was filed in 1999, and today is 2002, i cant use something which was published on google in 2000. People dont seem to realize it that the examiner does their search for the state of that art at the time that the invention was filed! You can't use hindsight reasoning for ovbiousness as well. Has microsoft done some "evil" things, sure, but so did the train barons of the 19th century. What you are arguing seems to be that for biotech and software, patents should be treated differently. You might not be aware of this, but the bigest application filers are in the ELECTRONICS/TELECOMMUNICATIONS industry. Likewise, for someone who patents machinery, do you believe that they should be entitiled to a 2 year patent? The mechanical device industry does opperate differently and it may take longer than the 2 years you suggest for all industries to recover the costs of development. Perhaps a better arguement is that software patents should last 2 years, but as an examiner, i see more than just software type patents, as such, I can't see how the vast majority of companies/inventors can recover their profits in only 2 years on physical devices. The software patents/biotech patents are not the only ones issued worldwide.Bring back the old version of slashdot.
You should publish as much as possible and as detailed as possible. Try to keep in mind that one of the purposes of your publication is to invalidate as much as possible of their claims. So:
- Don't forget the applications. Research is about general ideas while patents are about application of that technology. So if you invented the wheel, take time to describe the axis, the suspension, etc. in your publication. Also, many companies try to patent general ideas and will patent the implementation later on.
- Also mention alternatives. If you find several ways to do something: mention more then one. If you publish an alternative for some claim of them you will make their claim rather useless.
- Mention the prior art. It is good scientific practice anyway to do that, but here you may get some additional profit from it.
There is no problem if you publish about something that they have patented. Only when you start using the technology in some productive use will you become liable.
The big question is what you want several years from now. You may be able to establish a lot of prior art for their patents. But patent law is a jungle: if you are not prepared to fight you have no chance. You mention that that company has an agressive patent policy. So you can be sure that they will go to court to protect their patents even if they don't give themselves much of a chance. the only thing that can stop them is when they know that you will fight back and that you have the resources to win. This may mean that you have to look for some big corporation to back you.
If you want to start your own corporation to implement your work you should apply for some patents of your own. Not only will that impress you financial supporters. It will also be essential when dealing with that aggressive company. Without any patent of your own they can stop you with one tiny patent claim of their own. As soon as you have some patents of your own you can stop them too. In that situation you keep each other hostage and can negotiate a reasonable deal.
Excellent point in the reply. Sideways swinging would not be the subject of a printed publication. Moreover, one will note that the examiner has a decidedly Vietnamese name, and is probably between 30 and 40 years old and did not grow up in the good old U.S. of A. Accordingly, that Examiner probably did not even have the anecdotal knowledge necessary to reject the patent. I doubt that swings were a common commodity in Saigon in the 60's and 70's.
In the time of chimpanzees I was a monkey . . .
Techniucally a US patent on software shouldn't be inforceable in Europe because they don't allow those kinde of patents.
Thats where the WIPO come in, they make you life unbareable if you don't adopt someone elses (Normally the US?) patent.
So is the question, what do you think about the enforcement of US patents in Europe where a patent wouldn't have been granted in Europe.
thank God the internet isn't a human right.
you can't ahve a software patent in Europe (yet)
Could you please highlight differences in the EPO prosecutiong system with U.S. and J.P. systems?
Thank you
http://swpat.ffii.org
huge database and information about swpat-laws and akteurs in Europe
For UK, please check with a UK patent attorney or a sollicitor. And check the UK patent law first, this might even save you the first attorney fees. It's probably on the net.
With respect to your question: too bad. Legal help is expensive, especially in the UK (compared to mainland Europe). After a (European) patent has been granted, it's split into separate patent rights for the designated countries and the patent has to be attacked in each country separately.
- I am a dutch & European patent attorney trainee, so of course, this is no legal advise :-P
for more information, you may want to check this site, a patent info site for techies set up by a colleague of mine.