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."
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).
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.
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.
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.
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-
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
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.