Slashdot Mirror
Salon Magazine on Hi-Tech Patents
James Green writes "Salon Magazine have published this article on the subject of patents. It discusses the legal issues fairly extensively, talking of what "obvious" can mean, and interviews the owner of the patent for pay-per-view over telecommunications lines. An interesting read, if not earth-shattering stuff.
"
I forgot to add the story submission the following question: What is the legality of US Patents outside the US? Answers on a postcard...
James Green
Whats the sotry with international patents?
If someone holds a a US software patent, isn't it a simple matter to set up a companya overseas, transfer the source code and market it from there?
Or is this patent business more complex than that?
Whats involved in obtaining an international patent?
Are there countries where patent law simply doesn't exist?
what happens when those companies connect to the internet?
Patent a method by which one tightens the muscles of the lower abdomen in such a way as to constrict the space contained within it and thereby expelling any pent up gasses. This, when combined with a slight tightening of the rectal sphincter can produce a musical note that I shall call a fart.
Unintentional farts may be reproduced free of charge but any attempt to produce them using the above methods will result in a royalty due. License fees for such farts will vary depending on context and purpose.
relief: 0.05
relief in church: 25.00
relief in an elevator or other confined space: 100.00
For fun: 15.00
For laughs: 25.00
For expressing ones opinion on a subject: 2.50
For a show of utter contempt: 5.00
For musical composition: I will pay you to hear it.
Now, can we discuss something that matters. These patent stupidities only exist because the people approving them appear to be lawyers and not engineers. The important thing to them is that the paperwork is in proper order. The people issuing the patents obiously have not an iota of sense when it comes to the technology in question. Otherwise they probably would not be working for the patent office.
Taiwan is pretty lean on copyright laws. Piracy is certainly legal their.
OK, so if i, as a Thai citizen, was to go out and write a piece of software that blatantly violates a US patent, say i used the LZW and MP3 compression algorithms, without paying Compuserve or the Fraunhoefer institute or whoever the hell they are any royalties whatsoever, and put my product up on the internet for unrestricted downloading into the US and elsewhere, does that make me liable for anything? Is the person who downloads the software then responsible for violating US patent law?
US patents differ from much of the rest of the world in that you have one year from publishing to file. In most other countries, once the information is public, you can no longer file for a patent. You must be carefull to file at each country you intend to enforce the patent in accordance to their rules.
However, some countries don't recognize patents. I don't recal which ones.
There might be an Einstein in the Swiss patent office ... but I doubt there is one in the US patent office. There are a bazillion ways to extract money from Uncle Sam, working for it probably means you are not very creative.
Salon just gets better and better. IMHO it's the only online mag worth daily reading.
Their "21st" technology column is always on the mark; not to mention that they've got Tom Tomorrow in their comix section every Monday!
Salon has all the elitist, leftist, pro-Clintonista bias that I loathe in the regular print media; however it is a great zine nonetheless. The tech articles are well written and well informed, plus they have columnists like renegade feminist/left libertarian Camille Paglia and ex-leftist turned conservative David Horowitz to provide some "balance" as it were. And yes, Tom Tomorrow can be pretty funny even when he is being a liberal bonehead. And no, I do not want to use this forum to get into an argument about what words like "left", "right", "conservative", "libertarian" or "liberal", REALLY mean. If you know what I mean.
But patents aren't just for unique, non-obvious inventions. They are also for protecting "better mousetraps" - i.e., improvements or modifications to prior designs. I would expect that many of IBM's patents would fall in the better mousetrap category.
Yeah, that's about the only thing that bugged me about this article. They didn't refute
when in fact patents each cost something like US$10,000.00 or more to get, and more to maintain. Little guys can't afford this! We need some readily-accessible registry of prior art we can contribute to, to at least keep big rich organizations from "inventing" our old ideas and excluding us from them.
Patent law exists in Finland, but it seems it doesn't apply to computer programs.
;)
It is not possible to patent for example scientific theories, mathemathical methods and computer programs... which rules out algorithm patents (I think). I'd say streaming video and audio definitely falls under those definitions.
Also, patenting artistic creations isn't possible which might apply to programs as well
I agree entirely. The Salon article made me re-visit mp3.com's news on Sightsound, and I thought, what a load of crap. First, Sightsound did not *invent* any of the technology used to transfer music on the net. They weren't the first to do such transactions, either. The technology was in place and people were transfering audio files already, whether for free or not. What does Sightsound profess to own? The IDEA of selling music on the net, just because no one else had the patent. Preposterous.
This is analogous to a situation where people are making hamburgers and giving them away, and then some people decide to charge for their hamburgers, and then some wanker thinks, "hey, I will patent the IDEA of selling those burgers and everyone who sells them owes me money!" What a leech, hasn't contributed a thing, just wants to suck money from you and me.
In fact someone ought to suggest to IBM to augment their with some sort neural net technology to capture the additional information from people using it for patent searchs. The group of patents that I look at during a search session are probably all related, some more so than others proportional to the linger time. Subsequent searchs would be more efficient when this info is factored in as a weighting factor.
There's at least one search engine out there already using similiar concepts, I believe
js
Guess what folks, there are a lot of treaties involving patents. I'm probably a little out of date, but basically you preserve the important "first to file" date as of filing with the US patent office. Then they examine it for 6 months for things like military implications--e.g., if you try to patent a gee whiz crypto algorithm, you might very well get a top secret patent that you can license to only the US government, except the US government won't have to pay any royalties if they use it (as opposed to a contractor for them using it). After 1 year, if the government hasn't stepped in, you are free to file foreign patents. This gets into big bucks fast, so rather than patenting in every European country you might patent only in Germany, for instance, since their patent laws are probably the most liberal. By treaty, you date of invention relates back to what ever you put in your US patent application. Some major countries have kickers in their patent law--e.g., in Japan your patent is valid *only* if it is in use in Japan, meaning you have to set up a factory in Japan or license it to some manufacturer in Japan. (Japan also has a lot of peculiarities in their patent law that make it very easy for big fish to eat little fish--I've heard it explained that you might patent putting paint in a can, but then some Japanese mega-business would come along and file a hundred patents that in essence amount to patenting the idea of painting the can or putting a colored label on it, etc. Nobody can use your patent without licensing their patents as well) There are also some (usually third world) countries which are not signatory to any patent protocols, and in which it is a pure race to the local patent office (after your year is up), and this usually works to the benefit of their indigineous idle rich (who make a nice living by filing everything they can, and taking a very modest royalty on every TV set, camcorder, portable radio, etc. sold in their homeland).
There are well known instances of "process patents" going abroad, e.g., if you develop a process for designing or manufacturing something (e.g., designing computer chips), unless you think it is sufficiently valuable to be worth your while to spend several million dollars patenting in GLOBALLY, you are better off keeping it internally as a company secret, because otherwise your competitors will set up a plant in Ujibujiland to exploit your valuable patent without paying you a dime. Taiwan got launched into the industrial age this way, as did Singapore, Malaysia and most of the now developed Pacific Rim.
A final thought: the patent office is slow (and there are ways of slowing it down even further), and what it trivially obvious today may have taken a futuristic visionary to foresee in 1988. People in the computer field are in an explosive growth phase that really has no counterpart in history in terms of the speed at which horizons advance, and there are simply going to be surprises. Live with it or go into something more sedate.
I've heard it claimed that just challenging a patent costs big money too, though I don't know the details. And journals or magazines only work if we know which ones the demonstratably ignorant software examiners at the PTO bother to read, and I don't think they could handle the put-in-everything-just-in-case kind of load I envision.
I have also read that if you make your invention known, a company could patent it by claiming they thought of it up to 1 year ago. I think that at the very least, they would take you to court. If you can't afford that, then they win. If you do go to court, I think they should have to conclusively prove that they thought of it first. I don't know if they actually have to do that in practice or not though. If they couldn't prove it, then they should be made to pay your legal fees. Don't know if that would ever happen either.
Actually, many of those patents that IBM gets are probably defensive in nature, just so that when they distribute the code, others don't run right out and patent it. Since someone could claim that they thought of it up to a year ago, they could conceivably get a patent on something that IBM wrote. Sad that the system is so screwed up.
The purpose of patents is to encourage innovation. The flipside is that patents discourage implementation by restricting competition and increasing bureaucracy.
In software industry, the rate of implementation is lacking far behind the rate of innovation. The problem is not the lack of ideas but the lack of good implementations. In just about all other fields, there is more need for new innovations than new implementations. This is the main reason why software patents are bad while the patent system in general is a good thing.
the 8hz-mp3 MP3 encoder authors were threatened by Frauenhofer. They stopped the encoder, even though they were probably not affected since they were in europe.
James Green - eh?
My initial musings on a (not necessarily complete) list of criteria for online process patents:
1. Does the patent claim a novel form of hardware that is required to perform the process (i.e., storage device, web appliance, etc.) or does it depend on the use of currently existing devices?
2. Does the patent claim some novel form of data storage, compression, transmission, etc., or does it depend on currently existing techniques? For example, if the process involves delivery of audio over network, does the filing make claims for a novel form of audio compression?
3. If there are no novel claims under 1 or 2, the patent applicant should held to a very high standard of non-obviousness. For the abstraction of a non-patentable process (standard everyday business transactions) to the online world to be patentable, it must be very original indeed.
4. If there are novel claims under 1 or 2, then a patent may be allowable, and any process involved can only be infringed when the novel claims under 1 or 2 are infringed.
So the approach to evaluating a patent application for the process of selling audio over data/telephone networks would go roughly as follows:
Your patent application involves: use of a hardware device with data storage capability by one party (buyer) to select compressed audio data files stored on a data storage device on a remote device belonging to a second party (vendor); the transfer of payment information over data/telecom networks from the buyer to the vendor; and the transfer of compressed audio data files from the vendor to the buyer.
Did you invent a new form of hardware/data storage device to be used by the buyer or the vendor? No?
Did you invent a new form of compressing audio data? No?
Did you invent a method for transferring payment data from one device to another over data/telephone networks? No?
Did you invent a means for transferring data from one device to another over data/telephone networks? No?
Then just what the hell did you invent?
The answer's simple: a new way to separate fools from their money.
Am I really supposed to believe that IBM has assembled groups of people so brilliant that they can conceive and implement (ideas alone are not patentable) ideas that noone has ever thought of before on a sustained, daily basis? I think there is just the slightest strain on credibility here.
It's interesting to read some of the patents that get mentioned here on Slashdot and then go to the USPTO page and see what they have to say. Most of the ones that have been mentioned so far are, at least in part, explicitly in violation of patent law as described by the patent office.
I really do think this is an area where a class action suit could do a world of good; sue the USPTO on behalf of all the entrepreneurs and businesses that have been hurt by the granting of bogus patents. I would bet they'd put some serious thought into what they do and don't grant in the future.
I've no doubt that IBM (as well as many other companies that are granted several hundred patents per year) has many bright people working for them. I find it very difficult to believe that they are sufficiently removed from those with "ordinary skill" that they are able to create "better mousetraps" that meet the above requirement several times per week on an ongoing basis. Not saying that they never do; but not every day.
A program can't both be GPLed and require zero-cost distribution. A program that you can't sell isn't really free.
But for the purposes of the discussion, we'll assume you do this. It's definitely not clear-cut and you'll probably have a hard time in court with that argument. It's really not a form of research, and the intent really would be to undermine the patent. The plaintiff would have to demonstrate this, of course, but you'd not be in a good position.
This is true now, with actually free software. Is there any known case of free software being attacked by patent owners?
During the period that Japan was allowing foreign companies to set up shop, the companies could only do so after licensing some Japanese company ALL their patents.
And I think Thailand may not have any copyright law whatsoever. Can anyone verify?
--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.
"Reactionaries must be deprived of the right to voice their opinions; only the people have that right." - Mao
True. I have a whole drawer full of $2 copied tapes I bought at the local record stores in Zhong Li.
--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.
"Reactionaries must be deprived of the right to voice their opinions; only the people have that right." - Mao
OK, so if i, as a Thai citizen, was to go out and write a piece of software that blatantly
violates a US patent, say i used the LZW and MP3 compression algorithms, without
paying Compuserve or the Fraunhoefer institute or whoever the hell they are any
royalties whatsoever, and put my product up on the internet for unrestricted
downloading into the US and elsewhere, does that make me liable for anything? Is
the person who downloads the software then responsible for violating US patent
law?
Yes. I believe that is correct.
--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.
"Reactionaries must be deprived of the right to voice their opinions; only the people have that right." - Mao
Medical & biotech fields don't have so much patent nonsense for three reasons.
One, that you have to be a big player in order to discover anything new anyway; the barrier to entry is high.
Two, that being SCIENTIFIC fields, *everything* is published. After the patent application has been filed, of course.
Three, patent examiners know how to research medical claims.
Contrast this with software. All you need to come up with 'new' inventions is a brain. Therefore there are LOTS of players, and not necessarily tied to large corporations.
Secondly, very little computing innovation is published. Sure, CS professors publish all the time, but commercial developers, or open source developers? Rarely. People only tend to publish in academic journals etc. if they're in academia or a *major* research lab and the discovery is on the main line of their research interests -- stuff created on the side doesn't get published. So it's very hard to research prior art.
Thirdly, patent examiners seem to be woefully under-skilled at evaluating software claims. They are, in effect, passing off the evaluation requirement onto the courts.
Stick to law, dipshit. Life favors the more
adaptive entity. Business, on the other
hand, favors the entity with the most or best
scumsucking lawyers like you.
How prescient of you to compare the issue of
patent claims with the Cold War. Last I checked,
the legacy of the Cold War was massive debt,
human misery, and a lingering mistrust between
nations.
---------------------------------
"The Internet interprets censorship as damage,
..was working for the Swiss patent office for a long period. Maybe because it give him time to think of some other things...
Mundus Vult Decipi
There is a "research exemption" in the United States to patent law ... Courts have ruled that it is permissible to construct a patented device under certain limited circumstances, without permission of the patent holder.
n al/98/parker.html
Quoting from:
Biotechnology Research & Patent Infringement: Should Research Be Exempt from Charges of Patent Infringement? by David L. Parker and
Nicole Stafford
available online at:
http://www.crpc.rice.edu/autm/publications/jour
In 21 F. Cas. 554 (C.C.D. Mass. 1813) (No. 12,391), Supreme Court Justice Story ruled that:
[The infringement] . . . must be the making with an intent to use for profit and not for the mere purpose of philosophical experiment, or to ascertain the verity and exactness of the specification . . . . In other words, the making must be with an intent to infringe the patent-right, and deprive the owner of the lawful rewards of his discovery.
The analysis continues:
Sawin has often been cited for establishing a two-part test for the experimental use exemption: (1) the activity must be for philosophical experiment or for ascertaining the adequacy of the disclosed invention; and (2) the activity must not be carried out with an intent to use for profit.34 This is a broad reading of Sawin on its facts. Another justifiable interpretation is that any use that is not itself a use for profit is not an infringement, with "philosophical experiment" and "determining the adequacy of the disclosure" being merely two examples of uses that are not considered "for profit." After all, the sale by the deputy sheriff was neither philosophical nor an investigation into the patent disclosure.
The question I pose is: Does a GPLed program containing a patented process constitute a patent violation under these criteria, so long as it is distributed gratis, and/or should it?
- jms
So define Research GPL ;-). All it takes is just to add one clause and not include RGPL software in commercial distributions.
And let the "patent chaicers" chace their victims. They will have at least the hard time Feds are having chacing encryption stuff. Actually much harder.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
You can profit from something in ways that are not always monetary in nature.
Just read any mainstream press story on Linux where the reporter struggles to come up with an explanation as to why you have thousands of people hacking the kernel without getting paid for it. The inevitable conclusion is that people do it to make a name for themselves. Which is generalyl true.
I haven't gotten a cent from the five GPLed programs I wrote (plus assorted hacks), yet I most certainly profited from them.
To register your idea as 'prior art' just write about it and get it published (heck, you might even get PAID for the letter about the idea!). Even the letters page would be OK. Then if you think your idea is being wrongly exploited you can point to the publication and say 'its prior art'.
You only need to pay for a patent if you want to restrain people from competing with you while you develop a product.
Personally, I feel you should be able to challenge a patent if it is clear that the holder is making no effort to exploit the patent other than trying to make money by sueing infringers. I don't think it is in the spirit of the patent system to allow people to squat on good ideas just because they thought of them first (or bought them from someone who did) if they are making no attempt to bring them to market. That is no better than racketeering.
*--BigMan--- Time flies like an arrow.. but personally I prefer a nice glass of wine!
I had a physics teacher at school who used to keep saying that "nothing's obvious". Maybe he taught the patent office people.
Couldn't resist that title. Seriously, though, any patent that seems even halfway obvious shouldn't go through, and if it does, is should last only for a coulple years. It is SO frustrating to have to abandon work on something because the idea is patented, especially when it is not exactly a unique, brilliant flash of genius to begin with.
Vidi, Vici, Veni
Patent law was designed for a different time in our history. I agree that it is important to protect legitimate Intelectual property, but I feel that our patent office's are woefully undereducated, and are making bad choices in awarding patents. Any, that's my 2 cents worth
-Master Switch, one more element in the machine
If somebody holds a US patent, that gives them rights in the US only. If they go overseas and sell the code, no problem. IF THEY TRY TO IMPORT THAT PRODUCT INTO THE US, they are infringing. Most companies that do patents get the patents in the US, Europe (there is a central Euro patent agency) and Japan at least. It runs into money, which is good because it discourages frivilous patents.
There are countries where patent law doesn't exist. However they have no economy either.
The internet question depends on the nature of the patent.
And there are treaties which coordinate the whole she-bang. For example, why should Japan let a US company get a patent in Japan???
Important thing to remember, people: patent!=copyright. A patent is on a product, a physical product, or a scientific innovation. When whoever the hell it was came up with fractal compression, they patented the specific algorithm they were using. However, when you want to protect your piece of software, you have to copyright it. So if I make a game or a word processor or a really cool ping util, and I use all existing technology (like I build on the Quake engine, or whatever) then I have to visit the copyright people. Of course, copyrights are easier to declare. F'rinstance:
This post Copyright (C) 1999 Zagmar. All Rights Reserved.
There. Now that post is copyrighted. Easy.
--The geek formerly known as Zagmar
I think you've got it spot-on, although I would state #2 more generally as "an algorithm".
This would actually be a neat way to patent algorithms (such as an audio codec) yet let them remain in the public domain: A claim on the actual _algorithm_ would be rejected (since it might be a no-brainer derivation of current techniques, e.g. 3dfx and single-pass multitexturing), but a claim on a method of business that DEPENDS on the algorithm would be accepted.
The really key insight in that article was a depressingly simple filter that the USPTO could be using RIGHT NOW: if a claim is merely the application of an established method-of-business in a networked environment, it should be thrown out. Of course, the model you've offered is much more useful, but it may be a little too complex for the poor mouth-breathers at the USPTO.
IBM is just the company to do it, too. They have more patents than anybody. Do you realize that they have a patent on the idea of a "web" of interconnected computers with distributed information accessible on each? Somebody should have told that to Berners-Lee. The application even has some gratuitous plugs for OS/2 in it.
:)
I forgot the patent number though. Do a search!!!
Very interesting -- you are too informed to be a lay-person like me- are you a patent lawyer?
OK...what about a European High-Tech Company with a patent on a technology that licenses that technology to a US firm for Sale & distribution in North America. Is the European co. protected at all by their patent, in North America? Or can the licensee or anyone else for that matter, apply for a patent in North America and get it without the consent of the originator in Europe.
Also, in BALL PARK figures, what does registering and applying for a patent cost in total including legals and fees? Look forward to your reply