Slashdot Mirror
SCOTUS Set To Examine Combinatory Patents
eldavojohn writes "The Washington Post is reporting that businesses are split on the current situation with patents in the United States. From the article: 'The court is scheduled to hear arguments Tuesday on what's obvious when older inventions are combined to create something new. The law says an invention that's "obvious" isn't patentable, but the definition isn't clear despite decades of litigation. The ambiguity, critics say, has led to an explosion of patents as companies stake claims on everything in sight, from strategies for avoiding taxes to golf ball designs. The result has been extensive and costly legal wrangling as companies of all sizes fight over who's infringing what. In some cases, small companies acquire patents not to develop new products but to sue for a quick windfall.' This sounds like some common criticism of the patent system that often pops up on Slashdot. The last part of the article mentions that most legal experts are expecting some changes to come of this. Hopefully soon we'll see some changes to the patent system for a better concept of intellectual property."
As a result of this, patent cases are often fairly random in terms of the results obtained. It's difficult to know what can be done about this, other then to allow the bench to call an independent expert witness.
"To any truly impartial person, it would be obvious that I am right."
If you been reading GROKLAW, you would have already seen this posting.
Then again it shows how the patent system seams to works today:
Take an idea that is new some where else and patent it to claim money.
Never thought Slashdot would become an annology of the something in the real world!
Most reasonable legal systems are tuned to avoid "false positives". That is, it is acceptable that some number of people who actually committed crimes walk away unpunished, as long as those who are punished are done so justly.
If a country's legal system does not attain to this rule, then it is probably not deemed safe to visit there.
It is a principle well known to legislators, law enforcers, lawyers and citizens in generals.
And I think it should be applied to patents as well. Only if you prove beyond doubt that your patent is non obvious, innovative, and all the criteria apply, it should be granted.
In exactly the same way that nobody is (or at least nobody should be) sent to jail if there are doubts. If there are doubts then you are free.
The patents system is not flawed per se. The problem is that it is being abused with a high noise to signal ratio.
as a way to advance science and copyrights the arts.
In exchange for opening the information, inventors were given a limited time monopoly on said invention. What the founding fathers wanted to get beyond were secretive guilds and the hording of information - instead encouraging a free flow of ideas. One historical objective is to avoid the technological stagnation that accompanied the middle ages.
But with the original aim of inventions in mind - now that it seems that there is a lot of unintentional infringing of patents - it suggests that the original intention is outdated - the patents are protecting knowledge not worth protecting since others stumble onto the ideas at roughly the same time, negating the need to open the information. Even if it is not stumbled upon, reverse engineering can and does often provide the information needed for someone to duplicate many of the results - again negating the original need for patents.
Could it be that patents should only have been training wheels for the industrial revolution until a technological society is achieved - because once a certain level is achieved, there is no easy way of going back, of ceasing the competition for better products, advances, etcetera? That they should have been discarded after a time?
Could there be another way to promote an open exchange of ideas? Which was the original intention of patents. Because it seems that patents, in their current state, are setting us behind other countries (China) in terms of the future, dragging our economies down, and not at all fulfilling their original purpose. And from what I have read - the purpose of the patent was an ultimately social function, not to protect businesses or let them rest on their laurel in perpetuity (Atari).
How do you "aquire a patent"? Yo have to INVENT SOMETHING.
So "Some Companies INVENT THINGS in order to"... MAKE MONEY!!!
Its called an ECONOMY *STUPID*!
They should be restricted to practical engineering for physical objects.
They shouldn't include things like stories or tax shelters or mathmatics or software. That's just BS.
But practical sciences need them because the only way some things is going to happen is by throwing money at them. Stuff like automobile engine optimizations and safty improvements. Space flight. Drug research. Advances in electronic design. New chemistry breakthroughs, etc etc.
Patents are the only way your going to get certain technologies to remain out in the open while providing funding over it. Especially things that require huge amounts of capital such as drug research. Otherwise people will be forced to close everything and innact trade secret insanity which benifits nobody. Imagine corporations having to move to third world nations and hire private armies to protect their billion dollar secrets. That is the bullshit we'd have to look forward to. Patents are much better solution.
Also it avoids the need for government to control funding, which produces generally pretty bad results per amount of money (money also as a reflection of real time taken out of people's lives to deal with governmental bullshit).
Software patents are a very good indication of what is wrong with the system. Should be done away with and as far as reform for the rest of the system I don't know enough about the details to realy comment on it.
The majority of patents would be obvious to those skilled in the art, if they happened to be facing the problem solved by a given patent.
I say that these should all be invalidated and good bye software patents.
For any device, meant to be controlled and travelled... inherently some way to navigate the device is in every way obvious. So, why are steering wheels patented?
It gets even worse, because somethings aren't "obvious" yet they remain inherent of the essence. Example: So a steering wheel for a car is obvious... but is a power steering device? Yes it is, for any person that has drivin a car without power steering, it certainly is.
Back a long time ago, there was much more sense and rationale. Another example, Henry Ford's claim to fame is not the car, but his development and application of an assembly line and in lesser known circles... a pioneer in the dawn of a viable credit system (Model-T, even from an assembly line was still too expensive for most people. Henry Ford was one of the first to develop and provide what we now know as "credit" so everyday people can have one).
I think most people have a hard time identifying what might be a legit claim on development. Sometimes, the claim would be far too broad. For example, not much of the details of space exploration is remarkable or what I might consider a legit patent. From the design of the shuttle, to the booster flaps... if you were a rocket scientist or astro-physicist all of it would make sense. However, what is remarkable is with all that together the ability itself to travel into space. You can't really pinpoint a cause or a crucial component for "space travel", and ONLY "space travel" in any and all the technology integrated to accomplish that task. Even to this day. Rockets were around for thousands of years before we took a human into space... so "rockets" obviously have alternative purposes and not soley for space travel.
But, here's the bottom line.
If someone found the cure to cancer, that knowledge and application is NOT their own property. Such property belongs to Man, as with any other detail or specific peace of knowledge. It's hard for people to understand what I'm getting at here, partly becuase they don't want to face the reality of it in fear that it would invalidate financial incentive, claims or some granted "Right" to legally extort money from someone else. Aspirin is aspirin, for example, but there is Bayer who will sue the crap out of you if you don't pay them for making and distributing it. Is that right? Such a basic biological compound, well known, and some twenty year old schmuck has the audacity to think it's HIS? Riiight. Noone owns their so-called "inventions", the moment you spawn an idea, in the end a thousand years from now, you're name won't be remembered but maybe the idea will be. That's becuase you never owned the idea, it's not yours, it belongs to everyone around you. Even now, while there are people that were alive before during and after landing on the moon, some history books broadly refer to it as "Man entered the space age". A thousand years from now, most "historians" won't even know "Neil Armstrong" to associate him to Space Flight, and if they did, it's probably they won't even pronounce it correctly. And they certainly wouldn't have a clue about much deeper detail than that; such as an Engineers name who came up with the one idea that made it all work. Today... how many names do you know that had anything to do with developing the technology for space flight? Zilch... don't bother looking it up, this is the reality of the situation, this is the point. But then again, go ahead and try to look it up. There were thousands of people that worked on it, you might find just a handful of names.
Point is, whether it's you, or some other guy... noone gives a shit as long as it comes to be. And, most things are destined to materialize from the efforst of Man... becuase THAT is WHY we are HERE!
As for the individual who finds the cure to cancer, he doesn't need to pull a patent on it. He would be very well taken care of, voluntarily by many people if for no other reason than to say "thanks", from across the world. So much, that there would be no roo
From the same Supreme Court that in Eldred vs. Ashcroft ruled, in essence, that a copyright term remains "limited" and thus is in keeping with the Constitution as long as it has a stated limit, even if the limit increases over time at the same rate that time passes? You must be on some other planet if you think that same Supreme Court will make any improvements (from the point of view of actual practitioners in the various fields, as opposed to the patent attorneys) to "intellectual property" (gad, how I hate that phrase) law.
I think it's at least as likely that they'll decide that "obvious" really means "obvious to even the greatest of morons in the field", and thus that pretty much anything you care to name is patentable.
Of course, that assumes that they'll issue any sort of meaningful ruling whatsoever. It's entirely possible that they'll simply say that it's up to Congress to define in greater detail what it means, and until then leave things as they are. Just like they did in Eldred.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
The USPTO has shied away from a formal approach to investigating Inventive Step. The European Patent Office more or less requires the Problem-Solution approach, which takes away some (but not all) of the subjective nature. The USPTO will be hard pressed to adopt something from Europe. From Europe? Horror! The revision after grant procedure couldn't be named an opposition procedure. That is a European term. Horror! The USPTO also has problems with logic. Logic is Greek logic. That is from Europe. Horror!
A problem with obviousness is that because inventions rely on the laws of nature, in hindsight they are always logic. The reward should be for recognizing something that not the ordinary person skilled in the art would recognize. Now, try to make that objective! So, a gray area is bound to remain.
While the EPO is arguably the best patent office in the world, unfortunately they know it and too frequently behave arrogantly like a very beautiful girl turned bitch. It is not beyond them to ignore the law, like, for example, yes, illegally grant patents on software.
This is about vested interests, corporations, not individuals, trying to maintain a system that so far has been to their advantage. Most of them got to where they are by being good at the present set of rules and they're not about to radically change those rules and lose that advantage.
The only chance you have of radically changing it would be to force it to break completely. You'd need to help the patent trolls get patents good enough to seriously threaten the present entrenched players, the big corporations. In theory the patent trolls could see through this scheme and realize that parasites that kill all of their hosts don't have long lifespans either. But trolls are greedy and they won't be able to help themselves.
"Obviousness" can be decided in a trial if the jury is made up of peers of the inventor -- those skilled in the art by some reasonable criteria.
Seastead this.
The leading article in the current issue of OUP's International Journal of Law and Information Technology features quite a remarkable discussion of these issues in the context of software.
It may just be that we have to re-think just how rich you're supposed to get for a given good idea or bit of creativity.
Perhaps patents should only be allowed to be held for an individual, and for his lifetime (or maybe just 5 or 10 years), same with copyrights. Where does it say that just because somebody has a good idea that his grandchildren should get rich?
And, I've said this before, NO corporate holdings of copyright or patent. Period. Let them pay license fees for those few years to the inventor, or composer, or not. Let them make good products and sell them in a reasonable way.
If you think that intellectual property laws are the only thing keeping artists creative and inventors inventing, you've got too low of an opinion of your fellow human beings.
You are welcome on my lawn.
Talking about the founding fathers wanted with patents is a bit misleading though. Modern patents were invented (sic) in Venice in 1474
The actual lessons of history are often forgotten.
Current concerns about patent abuse, especially abuse of overbroad patent claims, somewhat reflect concerns that lay behind the 1623 English statute of monopolies. That was an attempt to prevent future abuse, and it specifically said that, in future, patents should not be granted or valid where they would be "contrary to the law or mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient."
Wikipedia is rather misleading about patent law history, I'm afraid. Agreed, it has now become a commonplace to cite the 1474 Venetian ordinance about inventions as the 'progenitor' and so on of modern patent law, and chronologically it was the first. But it is only anachronistic hindsight reconstruction to say that it was also influential on the later developments -- because the Venetian history was only (re)discovered by scholars interested in origins of modern patent law within about the last century and a half. Way back before then, at the time and place of the founding fathers in the 1780s, nobody had heard of the Venetian history. What the founding fathers knew much more about then was English law. Many of them were lawyers trained in English law. The question they asked themselves was effectively whether they wanted patents on an English model. And in effect they said yes. The early US patent lawyers and judges looked to English legal practice for details of patent law or practice left open by the US statute. Fessenden's early US patent law textbook of about 1811, as well as Justice Story's Notes on Patent Law, make that very clear. (Even now, when the two systems have thoroughly diverged, it still occasionally has happened that senior courts in US, including the Federal Circuit and the Supreme Court, have referred back to old English 18th-century and 19th-century patent law reports, as in the 'Markman v Westview' and 'Warner Jenkinson v Hilton Davis' cases.)
But in the US (as in England), the safeguards mentioned in the 1623 statute of monopolies became forgotten in law and in practice, and nowadays some patents do seem to operate as "mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient".
-wb-
"Upending nearly a quarter-century of jurisprudence at this point would throw into question the validity of millions of issued patents
Good, that's the point: there are millions of bad patents, and they must be invalidated. The longer we wait, the more painful it gets.
Somehow, these companies are using the same kind of arguments little children would use: at first "aw, it's not that bad yet, let's just see what develops" and then later "aw, but we have been doing it so long, we can't change now".
cause the reassessment of patent licenses worth billions of dollars
As well it should: those billions of dollars have been forced out of companies for obvious inventions, and they should be restored to the victims.
make patent litigation more difficult to settle, and inevitably create more litigation for the courts," the brief said.
Well, I expect it will create more litigation to clean up the patent mess. But that argument is kind of like saying "well, we know the guy is innocent, but let's execute him anyway because it's so much cheaper and simpler".
And who gets to patent the other solutions? Anything solvable in a day by a small team is not deserving of a 20 year monopoly. The only use for these type of patents is to threaten, exclude or extort money from competitors, some way removed from promoting or encouraging innovation.
Many combinatory software patents would fail an obviousness test if the problem was set for a 12 year old. US programmers should organize an amicus brief, reminding the court that with software, the USPTO has failed to apply the obviousness test in any meaningful way.
Currently the burden of proof is on the USPTO to show that something is obvious, rather than being on the applicant to show that it is nonobvious. Shift the burden to the applicant, and that will go a long way to solving the patent mess.
When a patent is being applied for, the applicant is claiming that they invented something that others would be unlikely to figure out independently. Making such an assertion should require strong evidence and persuasive arguments to go with it.
Obviousness will always be a grey area, but for everything to be considered nonobvious by default is ridiculous.
I would go as far as saying that patents should be restricted to those things that are obviously nonobvious. If there is doubt as to its obviousness, don't grant the patent. It is better for 10 well-deserving patent applications to get rejected than for one undeserving one to get approved. Those with rejected patents can still produce whatever they developed without the patent; but when an undeserving patent is granted it prevents everybody else from producing the covered items, without requiring the grantee to produce it themselves.
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There is inferior bacteria on the interior of your posterior.
Seriously. If E=mC^2 cannot be patented why should anything else be allowed to be patented? If it wasn't for patents we'd have two different types of telephones, hence revolutionizing telecommunications altogether. Maybe we'd have arrived where we wanted to earlier that way.
Natural Law (laws that govern above the level of mans ability to enforce any law he may make against it)
Physical Phenomenon (also something beyond mans reasonable control and ability to enforce)
Abstract Ideas (that which has no physical property, though it may be expessed/communicated thru physical media).
Mathmatical algorithyms are a fourth but in essence math is an association, not a thing, between abstraction and accounting of the concrete.
Also that which is obvious to anyone skilled in the art of which the product is used.
Patents also require inventorship and originality. You can't patent something someone else did.
Same with copyright, if you are not the author, you can't copyright it, though originality is a little more flexiable with copyrights
(not its only because you can get a copyright on something not so original, but prior art can later overcome your copyrights - the copyright office does notr require you to submit prior art and leves originality up to anyone interested in challenging it - of course in court)
Exception to these is if the person of creation is employed to do so, for you. Still their name is attached.
You cannot patent what has been made public for a given time before a patent application is applied for.
Prior art issue apply in defence against originality.
Now there is also the need to be novel and useful, though useful today may mean using it's to earn you an income from an infringment lawsuit (which should be grounds to dismiss such a claim as it does not contribute to the founding fathers heart intent.)
Patents do not give you the right to produce the object of patent, as you can invent a bomb and it can meet all the requirement of patentability and you can even eran royalities off of it (perhaps selling a license to the government if they don't just take it from you), but you are not given teh right to produce it by being granted a patent. hat a patent does is give you the right to say "NO, you canno use" to others.
Its this grant of saying "NO" that is also the basis of the above things that cannot be patented. If you cannot reasonable enforce "NO" then what is the point of applying for a patent (regardless of those who think getting a patent to protect an idea, that it stay open and free.... well there are easier and less expencive ways to do such as mentioned above.)
The manifestation of the concept of granting a right to say "NO, you cannot use" has reached its apex of being more a tool to extract value, from others, then it is to earn directly off the product and sale of the product of the patent. Leave it to man to abuse others through the distortion and manipulation and interpretation of his own creation of laws, laws that other before him probably created.
About that which is not patentable.
Software!
It is by the natural laws of human capabilities to create and use abstractions. It is also by the human rights of men to communicate with each other via such abstractions and that it is through the use of abstract communication that man is enabled to create a great deal, from building physical things such as homes, roads, vehicles, cloths, medicine and treatment of illnesses, even laws that dictate how a traffic light is to work, etc.. These all are examples of physical phenomenon. Not the traffice light, cloths, homes, etc. but the physical phenomenon of abstraction application, the conversion from abstract communication to physical movement. It is a human characteristic, to some degree found in other animals but only of a lower level of abstraction ability.
Software is often argued to be pure mathmatical algorithyms and that this is reason enough for it to not be patentable. Though many might not grasp so easy the ideas that words can somehow be numbers too. But no-matter math and all other abstractions fall into the scope of what is abstraction.
Natural law, physical phenomenon, abstract ideas, mathmatic......All of these non-patentable facets and more apply to software, so wh
First, since we're never going to get it quite right, we need to decide whether we want to err on the side of sometimes giving out invalid patents, or whether we want to err on the side of sometimes not giving out patents that perhaps ought to be valid.
I think it's pretty clear that we want to err on the side of sometimes not giving out patents that perhaps ought to be valid. After that, it follows fairly simply that the standard for unobviousness should be pretty high, and that demonstrating obviousness should be fairly easy.
The last thing we need is new ideas put through some bureaucratic nightmare to determine if it they are obvious. If a product were that obvious why haven't the millions or perhaps billions of people constantly coming up with new ideas applied for a patent or even placed it in the public domain? Let the normal prior art and legal procedures handle any new patents. I have a patent pending that one could say was obvious to an electrical engineer and uses modifications of previous ideas but there is no prior art or patents. Let's worry about obvious patents that are currently being used or have twenty-five years of prior art as in most of the rediculous patents currently being filed by computer companies.
The problem, IMO, is that the grant of rights is often extreme relative to the cost of developing the "invention". If I puzzle out how to do something in my spare time in 5 days, it seems outrageous to grant a 17-20 year monopoly. On the other hand, if I'm a drug company and I spend 10 years and billions of dollars developing a drug does deserve a chance to recoup those costs and reap some profit.
Bad patents is only half the problem.
What is required for patent cases is Judges that are trained technologists in various fields instead of lawyers. So your patent case would be heard by a Judge that was knowlageable in the field in question instead of just the intricicies of the law.
Undetectable Steganography? Yep, there's an app fo
Patent lawyers are strongly opposed to code in software patent applications. Firstly because it then becomes obvious the work should be protected under copyright, secondly because grey areas are what keep them employed.
The need for combinatory patents was best explained by George Carlin: "If you nail together two things that have never been nailed together before, some schmuck will buy it from you".
I'd rather be lucky than good.
The patent system ties up many resources for US companies, and blocks progress in fields for years. China however can have companies come in and use patented designs without penalty. In fact the US will allow imports of such goods. I remember the idea behind patents, but now patents need to be more realistic with their time frames and perhaps a 'will to implement' or just go away completely.
One of the frequent objections to patent reform seems to come from the drug companies which (if you reconfigure your brain to enable "feeling sorry for poor impoverished multinational companies mode") is sort-of understandable, given the amount of work needed to establish what might be an easy-to-replicate chemical as a drug. Its also a field where disclosure of information is likely to advance science.
Couldn't some of the protection currently offered by patents be made part of FDA and similar approval processes instead? I.e. make the investment needed to get a drug FDA approved: get an N-year monopoly on its sale?
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
In my opinion the problem is with the way the patent system as a whole has been warped over the years into something it was not intended to be. The patent system is not something that has to exist, it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[Aside: When I worked for a large s/w company we were incented to regulary trawl through our developed code for potential patentable algorithms, this is clearly a case of (2) not (1)]
Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that is protectable by other laws (copyright?), not a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)
So, this is the tricky part...if the company has a trade secret that they feel they could make money off the way this works today is to patent the trade secret and then license it. This is behaviour that should be incented but not using the same system as incents investment in innovation.
Patents should be reserved as a way to protect investment that will otherwise be rendered valueless (thus disincenting the original investment).
A separate system that allows companies to profit from trade secrets as commodities not monopolies is what is needed and far more in keeping with a truly capitalist approach to this, i.e. let the market decide if the innovation is valuable. It would avoid the negative effect of a making these trade secrets patentable, which actually makes innovation in related areas harder to achieve. After all, projects which have a decent return on investment without patents will continue to get investment without patents. Why would we as a society give free profits (effectively simply raising the price for all of us) for work that would be done anyway.
This proposal would drastically reduce the number of innovations that qualify for patents, but continue to encourage the licensing of incidental innovations as commodities, exposing them to market forces that would determine how obvious they were (i.e. if they truly have value people will pay for them, if they are obvious or exist elsewhere then they won't pay for them...simple.)
I actually RTFA'd to me it's pretty damn obvious combining the two features together. They both improve the experience independently. It's standard practice in the auto industry to combine features. For example, seatbelts and airbags. Anti lock brakes and traction control. For example, does the first car company that puts together anti lock brakes and traction control REALLY deserve a patent on the idea? The patent that was issued in this case is for putting adjustable height pedals with a "brake by wire" system. I'm sorry, but an 8 year old kid can come up with the idea of getting an adjustable height pedal and "brake by wire" in the same car (once they are told both ideas separately).
.. you are super tall and your wife is super short. So you are told about this car with adjustable height pedals .. so you buy a car with adjustable height pedals. It works out great.
..you go to the dealer saying "that last car you gave me was crap .. the braking sucks" ..the dealer says "oh I have just the perfect car for you", and he lets you test drive a car .. although the new car you are test driving has not got the adjustable height pedals it drives much better since it has "drive by wire brake technology" however you feel uncomfortable because you cant adjust the brake height like you are used to doing in your previous car.
.. yet never thinking "man, I wish this thing had adjustable brake pedals like my old car!"
Think about it this way
Then, one day you get in a minor accident in this car because you couldn't brake in time.. you are all upset
Are you REALLY not going to ask the dealer if they have a car that has both adjustable height pedals and drive by wire brakes because it's non obvious?? Or, are you going to buy this new car with the brake by wire and forever suffer in discomfort
Now I am willing to concede that in some cases combining features may not be obvious. But in THIS particular case, combining the two seem obvious.
Are we now going to have patents issued for methods of combinatory invention?
If So I claim patent rights on + (plus), - (minus) concepts and any complexicated use of them up to but not excluding any advanced combinatory method parralleling our most advanced methods of mathmatics or symbolic calculation equivilance. I license them to anyone under the same terms of which they either license their patents or in the event of a user, then the terms of the license of applied to their use of the patent that usinsh mine. Including all the licensing fees, consumer costs typically imposed or incurred thru such license.
So make me rich financially or make us all rich in the values we are able to experience in our life or stop thinking.
The point is: The article seems to be about the decussion of simple combinatory patents. But don't we all exist upon the inventions and discoveries of centuries of man before us?
This sounds to me like an article based on poor understanding of the subject. Patents are something different than copyright infringement. Patents do cover an invention, that has to be documented publicly in order to receive patent protection. This means that a patent is not covering a particular source code implementation, like a copyright does. It rather covers a way of doing things. For software only so called business process patents are relevant. It also means who ever implements something in violation of a patent had the chance to examine the patent first. To clarify, you can't patent a mathematical formula or a specific piece of source code. However you can patent a chemical compound and the way to produce it or you can patent a protocol of computer communication. Amazon even patented the "one click purchase" as a given business process. So IBM's grant of licenses to 500 of its patents did not bring any new discovery if Linux violated any patent that IBM held or not. The same way no one needs to look at the MS source code in order to determine if one of MS's patents is violated. However, if MS has patented the way their NTFS file system can be accessed remotely (the protocol), or any particular aspect of it, and if an open source project uses these series of messages then it could violate the patent. Just my understanding of patents and I'm not a lawyer.
Busy helping non technical users of OpenOffice.org - http://plan-b-for-openoffice.org/
Let's say even then the idea escapes him and he buys the new car without the adjustable pedals .. he takes it home .. explains to his wife all about the fancy shmancy new "drive by wire" brakes the 1970 model (which is when the first patent dates to) old car did not have ... What's the FIRST thing his wife will ask when she sits in the car going to test drive it?
A century ago that may have been true, but the patent on acetylsalicylic acid expired in 1917 and the trademark "Aspirin" was ruled to be a generic name a few years later. The history of aspirin, from Hippocrates' use of willow bark, through its chemical synthesis in the late 19th century, to the competing claims for that invention, shows that problems with prior art and and originality are nothing new!
he basic issue here is, given that no one "piece" of the prior art shows the invention (which would render the claim unpatentable for lack of novelty), would the invention be obvious to one of ordinary skill in the art at the time the invention was made. The problem is, how does one determine what such a hypothetical person would think? This, then, is a construct that must be made by whomever is interested in it, including patent examiners, judges, juries, competitors, etc. The prior art has to be determined by finding concrete evidence, namely, public disclosures (printed publications, prior use, certain activities of others, etc.).
The key question is how far the one evaluating obviousness can draw inferences from the explicit teachings of each piece of prior art. In court cases it's possible to have "expert testimony" given which can help (but of course their credibility has to be evaluated, particularly if both parties use experts with opposing opinions), but the PTO must rely strictly on things like printed publications. In this circumstance the evaluator has to draw inferences: a "low" standard permits the evaluator to make many implicit inferences; a "high" standard requires that the prior art, itself, must have explicit explanations of disclosed features and how and/or why they could be used. It is believed by many that traditionally, the courts, including the SCOTUS (as the final arbiters of each controversy) used a relatively low standard, but the Court of Appeals for the Federal Circuit (CAFC), now the sole patent court below the Supreme Court, has evolved a standard which is relatively high.
The problem with the PTO, which for decades has been obsessed with cranking out work first over stressing the thorough gathering and assessing of prior art, is that the higher burden to prove obviousness means more and broader claims get issued. The references not only have to literally describe the subject matter, but need to have need to have some discussion of why something is done. Where previously one might find a couple of references showing, among them, all the claimed features and then make a sustainable rejection one must now get references that, while literally showing nothing more, have explanations to support "combining" the features to meet the patent applicant's claims. Now given enough time perhaps better prior art could be developed, but this time is not provided, so it ends up being that the search get cut off, the art is applied as found, then it's off to the next application so that production and timeliness quotas are not missed. The same burden, of course, applies in an infringement case, but most accused infringers will have access to loads more time to find better prior art, secure expert testimony, etc.
Like many visitors from outside the U.S. I had absolutely no idea what 'SCOTUS' was until I googled it.
I only clicked in because it sounded naughty.
I find it extremely regrettable that the courts are defining ambiguous economic federal laws which the USA Congress has failed to write correctly over the past two (1986-2006) decades.
...) . I suspect, from the aggressive protectionist tactics used by corporatist, that part of the Global-GDP will be lost to corporatist-governments market-share protectionism opposing Open-Competition. Governments-for-hire presently have a strangle hold on the socio-economics of the public/citizens (Mockery-Democracy in the USA, EU ... does look a great deal like Chinese Faux-Communism.
..., but the fact remains a Legitimate DeMockery nation of servile death-fearing fools. Death before dishonor is no longer as option, patriotic-death is now the road to redemption.
... citizens still have the right and duty to vote all politicians out of office. There are no Politician psychological profile (sanity and mental aptitude) tests and/or careers (BA, MFS, or PhD). There are only Leaders (I wish, eight years max and only common-public retirement benefits) or varying presentable crooks in politics (Local, State, National) for a maybe didn't get caught career. Vote them out, Vote them out, Vote them all out forever and always. PLEASE, This is a peaceful civilized citizen revolution, why remain a fool for any politician, use the Internet for organizing peaceful protest until real change (Education, Health-care, Politics/religion/dogma ...) happens!
... over the last 40 years. This is why the USA continues to slip down all the international socio-economic list (Education, Telecommunications, Health-care, Representative and Responsible Government ...). "We The People" are becoming the biggest loser culture/nation in history. From our Top-Global-Leadership position too international insignificance in less than 100 1945-2045) years, what a pitiful nation we are becoming. The "Rise and Fall of US, 1945-2045" history book is being authored by US Citizens believing and listening to political, corporatist, and religious dogma as truth today and doing nothing/wrong. We have only ourselves/politicians to blame for our failures in Vietnam, Iraq, Enron, S&L Debacle, 2000-2006 political scandals, Religious/political pedophiles and deceivers ..., failing education, health-care ..., dilapidated electrical, water ... utilities, telecommunications, transport
The impact has been that EU, Japan, and many other nations have been coerced and/or followed the USA down an economic dead-end road of corporatist Luddite-oppression (DRM, DMCA, software patents, stem-cell research, opt-out-privacy, vapor-process patents
Governments that are not elected by the public, do not represent the citizens, and/or predicate value on religious/political dogma are fiat-plutocracies [AKA: Legitimate DeMockery].
Democracy will never fail humanity; However, historically citizens have failed democracy. Democracy Citizens' are always responsible for their own welfare, because democratically elected representatives may serve personal/self-interest, and should suffer sever repercussions (not death, just prison) for their evil actions, but if the PUBLIC-/-CITIZENS do not enforce their defense of democracy and freedom, then they devolve to a totalitarian "Legitimate DeMockery" nation. You can make a "Legitimate DeMockery" look good in books, news, TV, radio, media
When politicians refuse to revolt (make real changes in government) and address the needs of citizens, then in the USA, EU, Japan, Australia, Israel
Whoops, due to my AADD I am always getting side-tracked to slightly off-topic.
Referring back to the first line; to many politicians believe themselves experts in technology or believe corporatist are the experts for writing (special-interest) technology legislation for any USA Congress of the last 20 years; also, eduction, health-care, economics, telecommunication, IPR
Unaccountable leaders are masters, and unrepresented people are slaves. How do US and EU fare?
The very premise that patents foster innovation has never been proven. The only way to solve it IMHO is to shoot all patent lawyers.
The first part of any patent reform should be to stop the flow of money from the PTO back to the rest of the government. The PTO has been a revenue source for some time now. Rather than sending the money off to other things, it should be used to fund better examinations and such. Or they could just lower the cost of a patent so I can play games too.
A particularly incidious use of patents is found in cross licensing.
Say you have three companies, called A B and C. The account for 99% of the widget market and all file assloads of useless patents. Normally you'd expect that if company A files a patent saying widgets are black, then the other giants in the field would fight it and have it struck down as obvious. Instead they can agree to cross license their portfolio and each pay the others a trillion dollars.
The end result is that it's impossible for a new-comer to break into the market because the are unable to pony up the licensing fee or pay for enough legal consul to fight the massive portfolios of useless patents that can be used against them.
"better concept" of intellectual property because IP is a "non-concept", flawed at its root.
The only "IP" is a SECRET I know and you don't. As soon as I tell it or sell it to you, it's no longer "IP". That simple.
Anything else is trying to use contract law to control someone's behavior for someone else's benefit.
The proper response to that "someone else" is: fuck you.
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!
Small companies suing larger ones for mere profit? Nooo! Say it aint so! Not like Research In Motion and their blackberry (crackberry) vs. NTP, essentially a company entirely consisting of about a dozen lawyers, suing for billions because of a perceived patent (or not), and after they win, and get billions will they use it to advance their product? What product? NTP doesn't make anything, as stated, they are only a bunch of lawyers! RIM actually makes stuff, has engineers, designers. NTP are lawyers. They do nothing but sue! How perverted the US patent system is! How utterly perverted it is! If I recall correctly, RIM also has prior art showing that they did create all of their ideas first. So how is the patent process helping them? And how about software. Mixing and matching is as easy as cut and paste (literally). Its not far from mathematical algorithms, but the big software companies will argue otherwise, and bribe anyone with any brain that works that its otherwise. They will also argue that patents (all patents) must be extended to three millenia past the death of the great great great grandchild of the authors 6th generation (or another millenia past that if Disney had its way).
How about making patent review take the place of jury duty? A group of peers could decide by vote if a patent is worth granting or keeping based on obviousness.