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Justices Question Microsoft's Vision of Patent Law
angry tapir writes "US Supreme Court justices on Monday questioned whether they should side with Microsoft and weaken the legal standard needed to invalidate a patent, with some justices suggesting there are alternatives to changing established law. The issue arose as part of the case involving Redmond and i4i."
I think the idea is "they released it without protection and after it had been on the market available for copying and/or reverse-engineering then they screwed us by seeking a patent".
Caveat Utilitor
Any subject matter that's close enough to infringe a patent AFTER it's been filed should be likewise close enough to count as prior art BEFORE it's filed.
The two standards for each point, whatsoever they may be, have to match, or you'll have predatory patents pulling the rug out from under established projects.
Again, if it's bad enough to infringe, it's also good enough to invalidate.
I guess that, in Microsoft's world, you can't patent something after releasing it. i4i isn't so impressed by that idea:
Microsoft's assertions that i4i included the XML editor in a product before applying for the patent and that it destroyed source code are "utter nonsense," Owen added.
Still, this is all just a bucket of dren. No one should be able to patent anything involving XML, and the reasoning is simple: the kind of cruft that accumulates in XML files (and, by extension, application-specific XML parsers) is analogous to biological evolution, and therefore XML is a phenomenon outside of human control. It would be like patenting natural genes or something! And we all know that would never be legalized.
Bio questions? Ask me to start a Q&A journal. Computer analogies available for most topics!
patents have to be filed within 1 year of the invention being made public
While M$ may prevail in this case, the case itself ironically can be used to invalid many of M$'s own patents.
Don't cry foul when what you wish for come back to take a big bite at your ass, Micro$oft !
Muchas Gracias, Señor Edward Snowden !
Yup. You don't get to release a product to the public and then 20 years later try and go patent it. You've got one year from the release of the product to file for a patent. If not, you are out of luck.
software patents. Insanity and greed at their best.
Never say never. Ah!! I did it again!
Mi©®o$oft can't lose this case regardless of the court's ruling. If they prevail, Congress will step in and hand them the strong patent protection that they really want. If they lose, the courts hand it to them. They prefer the former since that allows them to get the specific language they want in the new law, and they get the win on this case.
The US government have made it clear that we have no inalienable rights; any we do not defend vigorously will be taken.
In the USA, the only country with such stupidity.. in the rest of the world patents are seen as a way to assure people they need not keep trade secrets.. if someone has already released the secret (by putting it in a product that can be reverse engineered) why would you then give them a patent?
How we know is more important than what we know.
And if you don't file the provisional patent, but instead do release the product, then you still get a year to apply for a patent.
A provisional patent is NOT required, that's the issue.
Pot, meet Kettle...
Actually, you pretty much describe the system as it exists. The 1 year period the GP refers to is for a provisional patent. You file the provisional patent saying "I'm about to release a cool new invention that does X" and then you have one year to release it and file for a non-provisional patent, which lasts for 20 (or 14 if it's a design patent covering the form rather than the function).
No. It's only considered prior art if it's offered for sale in the U.S. more than 1 year before the filing date. See 35 USC 102(b). This has nothing to do with a provisional application.
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
A person shall be entitled to a patent unless - ...
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ...
Full transcript here.
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-290.pdf
If they push patent examination further up into the Supreme Court, they will ensure that only the richest corporations can benefit from the patent system. Which is more important to the richest corporations than any other aspect of the patent system.
It's already set up so that practically any assertion can be documented enough to be patented through a patent "examiner". The patent system now requires that any serious question be tried in a patent defense appeals court, the first time that a judge with any real experience in patents and inventions makes the decision. Which already favors richer corporations, rather than mere inventors. Microsoft and other corporations that trade their equity in stock markets based on government issued monopolies ("patents") want an expensive legal process, that only they can afford, to protect their entire patent business from surprising new entrants.
They want complex and lengthy legal processes to protect their patents. They've got it. And as only lawyers and their sponsoring corporations get to argue about how much more wrangling is part of the process, they'll get ever more of it.
Because actual inventors are the enemy of these incumbent monopolists.
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make install -not war
The only plausible reason why Microsoft would go out of its way to reduce patent protections is because the existing "clear and convincing evidence" protection is not in its interest. Given Microsoft's huge patent portfolio, that can only mean that it has greater concern for weakening other patents than it has for protecting its own. Why would that be?
Now we get into speculation. I can imagine two complementary reasons why Microsoft would initiate this course - and remember, Microsoft is not defending itself in court here, it's bringing this action on its own initiative. One reason could be that Microsoft is not producing its own inventions as fast as it could raid others. That's the motive. The other reason is that patents would be more expensive to defend if the law were more ambiguous. Microsoft is big enough to wear out most of its opponents in patent court. That's the means.
Stay classy, Microsoft.
Parity: What to do when the weekend comes.