"The patent system is supposed to be setup so that if a skilled practitioner looks at patented invention he'll say "damn, how did they implement that?"."
This is subtly incorrect, though. Most inventive step tests are based around the idea of asking if the ordinary skilled person would arrive at the solution provided by the patented invention *without* knowledge of it. That is, to look at the prior art, look at the problem to be solved, and then determining if the ordinary skilled person armed with common general knowledge and knowledge of the prior art would (would, not could) arrive at the patented solution.
I have no opinion on whether or not the patents in the article do or do not satisfy that criteria, and I appreciate that your third paragraph is more in line with this approach, but I think it's an important distinction to make.
This is another of those hugely common misconceptions on Slashdot around how patents work (right up there with what the term "prior art" actually means).
The only difference between a "first to file" and "first to invent" system is what happens when two (or more) parties come up with the same invention (near-)simultaneously. Under "first to invent", you would enter into costly interference proceedings and the rights would be awarded to the person who demonstrated that they were the first to conceive of an invention and reduce it to practice. This is not straightforward to do, and can be complicated by issues of due dilligence in reducing the idea to conception.
Under "first to file", you ignore that question and simply refer to who was the first person to file an application. Interference proceedings are gone.
It has ABSOLUTELY NO EFFECT on prior art; an invention must be new, involve an inventive step, not be excluded subject matter (although this is narrow in the US) and be capable of industrial applicability (very low threshold test, but mentioned for completeness' sake) to be patentable.
I have to start with a disclaimer: it depends from jurisdiction to jurisdiction, and I'm much more familiar with European and UK standards of obviousness.
The brief answer is that there has been precedent to suggest that identifying a technical problem to solved can itself be inventive. Put very broadly, something like "I want to make product X be better" isn't an objective technical problem to be solved, it's a desired outcome. But identifying a way in which to make product X better, followed by a means to implement it, may be non-obvious. The larger contribution in that case might well have been the identification of the problem, but that itself could have been inventive ("inventive" and "non-obvious" are used more or less interchangeably).
My favourite example is the Anywayup Cup (Google it - also a great example of how patents can be enormously beneficial to the little guy). Anyone who's had a child (I'm told!) knows that kids spilling juice is a problem. The Anywayup Cup is a sippy-cup which, essentially, has a valve flush with the sipping portion. If you framed that problem as "I want a way to stop liquid from leaking out of the apperture in a sippy-cup" then that's an obvious solution. But that wasn't the objective technical problem to be solved; the problem to be solved was "I want a way to stop kids making a mess when drinking juice", and identifying the technical means to do so was the lion's part of the inventive step there.
(there was more to this particular case than that - for example, there's the "long-felt want" argument here, because kids making an unholy mess with juice isn't exactly a new problem, so why hadn't a solution been presented before? This is not enough to demonstrate inventiveness, but it may contribute depending on the circumstances.)
Both the UK and the European Patent Offices have pseudo-objective tests for assessing obviousness - the Pozzoli/Windsurfing test and the Problem and Solution approach, respectively. Common to both is ensuring that the problem to be solved is identified, the relevant skilled person is identified, and - arguably most importantly of all - the avoidance of hindsight. Nearly everything's obvious in hindsight.
A performance lacks fixation and would therefore not qualify for copyright protection in its own right. If it's scripted, then a performance of the scripted work would infringe the copyright of the script, not the performance.
You may have to provide a copy of copyrighted material as part of a patent application, if there is a copyright work which contains information which is relevant to your application. For example, a journal article.
Because it is rarely immediately obvious whether or not a given piece of prior art entirely encompasses the present application. Or whether or not the present invention is non-obvious (i.e. inventive) over a combination of several pieces of art from the same field.
The Examiner makes arguments on the basis of such prior art, and that's why they require that copies of relevant prior art are submitted to them during the examination process.
The USPTO require that you submit full copies of non-patent prior art to them; a simple reference isn't enough for those purposes.
The process is effectively backwards from how you describe it, anyway: the Examiner goes through the cited art (and any they've searched for themselves) and raises any objections (novelty, inventive step, etc.) from such art. The onus is then on the applicant to explain why those objections are moot.
I can't speak for Chinese (or even US, for that matter) trade mark law, but in the UK the manufacturers of those gas stoves would probably be caught by s10(3) of the TM Act, i.e. identical mark applied to dissimilar goods, where the mark "has a reputation" and such use either i) takes unfair advantage of; or ii) is detrimental to the distinctive character of the mark.
That is, you don't have to demonstrate that the consumer would be confused about the source of origin of the goods to which the mark is affixed. Both of those conditions above would probably apply here: the manufacturers are using Apple's marks to add value to their goods and in doing so dilute the impact of Apple's mark.
I think in other European countries this type of behaviour would fall under the quite broad "unfair competition"-type laws.
Chinese IP laws are a bit of a mystery to me, though.
1) The post to which I was referring asked to name "one product", and so I did just that.
2) I've read (and continue to read) a lot of patent literature. I appreciate that the reality is that a patent proprietor (or their attorney) will necessarily draft the description to contain the minimum possible amount of information required to meet the requirement of sufficiency of disclosure. However, the "central idea" must necessarily be elucidated in sufficient detail for the ordinary skilled person to work the invention (so "if you really know the science behind it" is exactly the point; they're not written to be understandable by the lay person). It only gets more obscure around the periphery, and as patents are legal documents there is a certain art to reading them to extract the information you require.
Anyway, this isn't a purely hypothetical argument. I referred to the patent literature more than once when working towards my doctorate in organic chemistry, and obtained very useful information from such sources more than once. Information which wasn't available elsewhere. A patent would never have been my first choice of reference material, because journal articles don't have that disclosure/trade secret tension which is inherent in a patent, but the patent literature was far from uselessly obfuscated.
Pharmaceutical compounds still suffer from exactly that situation: discovering a molecule X for the treatment of condition Y takes a huge amount of R&D, but when the structure is known it's near-trivial to reproduce.
There's a lot of good information in process patents for the manufacture of pharmaceutical compounds which will ultimately see wider use in other products. Process chemists and engineers put an enormous amount of labour into devising the best way to carry out a particular chemical reaction, and those reaction conditions are described in the patent for the production of a given drug molecule. Such information is then incredibly useful for others working towards making similar molecules (or completely different molecules, but using the same transformation), be they other companies, academics, or students.
I'm don't know the specifics of French competition law, but if it's harmonised with EU competition law (like the UK is) then the point of law under which Google will have been caught out is on *abuse* of a dominant position. It's absolutely correct to say that having a large market share isn't illegal in its own right, but your behaviour once you're in a dominant position (for whatever reason) can be. Yes, this does mean that (for example) the same behaviour that you've been doing for years is perfectly legal one day and then anti-competitive the next through no fault of your own.
Using profits gained in one market to force out competition in another definitely is illegal under EU competition law (which, as said above, I'm applying by analogy, which may be incorrect). Using it to enter a market is fine - more undertakings in a given market should ultimately be pro-competitive, to the benefit of consumers - but continuing to cross-subsidise to force out competitors can very much be illegal.
It should also be noted that the test(s) used for establishing predatory pricing isn't set in stone as "below cost", but crudely speaking being very close to that point will create the rebuttable presumption of abuse of dominance.
The Google translation (so no accuracy guaranteed) suggests that the Court didn't find that Samsung infringed Apple's Community Design Right at all; the finding was under German laws of unfair competition. So it's Germany only, and the finding wasn't even strictly on the grounds of IP use.
First off, patents don't protect "products" per se. They protect inventive concepts, of which a given product is but one embodiment (usually). In any case, a patent can comfortably take 5 years from filing to grant, and if you want to decrease that you're going to have to accept a lower standard of examination. Secondly, most jurisdictions have a mechanism wherein the renewal fees on patents (because you have to keep paying every year to keep it in place) rise quite sharply for the latter half of the term of protection. The effect of this is that the average length of patent terms for the majority of cases is actually quite a bit less than the 20 years maximum possible term, because it becomes uneconomical for the proprietor to keep up the renewal fees when the patent's subject matter has ceased to be profitable for them. Also, 5 years might be plenty for technology products, but consider other fields; pharmaceutical products - for whom the "incentive to invent" justification for patents is perhaps strongest - will still be undergoing the regulatory approval process by the end of 5 years.
The "obvious" test isn't really there because of competitors, it's to stop trivial inventions being patentable. Your solution would remove that barrier, and also ignores the fact that there are many possible reasons why a good, solid patent idea may not yet have been filed. With your system, you could end up with trivial patents being granted due to no-one else wanting to work in that field, or extremely solid patents being refused simply because there were multiple people pouring huge amounts of effort and inventiveness into the same field.
Finally, your final criterion already exists. It's called "sufficiency of disclosure", and in most jurisdictions (patents being national rights and hence requirements varying from place to place), if the ordinary skilled person cannot work the invention described to the full extent of protection sought by the claims, then that is grounds for refusal or revocation of the patent.
I was referring to the first line of your post - sorry if that was unclear.
My point was that it doesn't matter that the claimant wasn't the first person to create such an image, because that's not what "original" means in UK copyright law; it means, roughly, "originating from the author" rather than "novel". It's only an infringement because the defendant set out to replicate the claimant's work, *not* purely that similar works have existed before.
The causative links you've demonstrated aren't equivalent to the relevant causation in this case.
And the criteria which define "originality" with respect to photographs have been mentioned elsewhere here. If a "substantial part" of those criteria have been taken (along with the causative link), then an infringing act has certainly occurred within the meaning of the CDPA1988.
The key word is "independently". This was *not* an independent work within the meaning of (UK) copyright law and the legal precedent. The motivation to create the image was to take a "substantial part" of the infringed work; "substantial part" does not have a purely literal meaning in this content. See the obiter in the Infopaq cases for why this is the case - under a more European/civil law interpretation of the role of copyright, the "substantial part" is in reference to whether the extension of the author's personality which the work represents has been conveyed by the allegedly infringing work. It doesn't mean "he dun cut out a big chunk of dat image"; it's a more subtle argument than that. The "part" that is taken isn't a physical part, it's the - if you will - steps taken to produce that image, with the intention of recreating the infringed work.
The allegation infringement isn't because he happened to use similar techniques to construct a similar image. That, indeed, would fall outside the purvue of copyright law as both written and practised. The issue at hand is that the infringing work was *specifically created* to obviate the need to pay the claimant for use of their work. Thus there is an extremely clear causative link between the infringing work and the infringed work.
Any picture of Westminster and Big Ben with a bus on it would not necessarily infringe the claimant's work here because there would be *no evidence that the person who took that photograph was intending to "copy" the claimaint's work*. That is the entire point.
Your university notes are probably already copyright works. The reason you couldn't bring copyright infringement actions against your classmates is because there is no direct causative link between *your* notes and *their* notes - they did not copy your work, your work and their work were created from a common source.
Do you see how that's different from the original case? If not, you don't appear to be the only one.
Slashdot Mirror
http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-483.867&format=PDF&language=EN&secondRef=01
"The Committee adopted the amended Commission proposal and the draft legislative resolution by 22 votes in favour and 1 abstention"
"The patent system is supposed to be setup so that if a skilled practitioner looks at patented invention he'll say "damn, how did they implement that?"."
This is subtly incorrect, though. Most inventive step tests are based around the idea of asking if the ordinary skilled person would arrive at the solution provided by the patented invention *without* knowledge of it. That is, to look at the prior art, look at the problem to be solved, and then determining if the ordinary skilled person armed with common general knowledge and knowledge of the prior art would (would, not could) arrive at the patented solution.
I have no opinion on whether or not the patents in the article do or do not satisfy that criteria, and I appreciate that your third paragraph is more in line with this approach, but I think it's an important distinction to make.
Modded +4 Informative for reciting the titles of a bunch of patents without any insight on their actual content. Sheesh.
NO!
This is another of those hugely common misconceptions on Slashdot around how patents work (right up there with what the term "prior art" actually means).
The only difference between a "first to file" and "first to invent" system is what happens when two (or more) parties come up with the same invention (near-)simultaneously. Under "first to invent", you would enter into costly interference proceedings and the rights would be awarded to the person who demonstrated that they were the first to conceive of an invention and reduce it to practice. This is not straightforward to do, and can be complicated by issues of due dilligence in reducing the idea to conception.
Under "first to file", you ignore that question and simply refer to who was the first person to file an application. Interference proceedings are gone.
It has ABSOLUTELY NO EFFECT on prior art; an invention must be new, involve an inventive step, not be excluded subject matter (although this is narrow in the US) and be capable of industrial applicability (very low threshold test, but mentioned for completeness' sake) to be patentable.
I have to start with a disclaimer: it depends from jurisdiction to jurisdiction, and I'm much more familiar with European and UK standards of obviousness.
The brief answer is that there has been precedent to suggest that identifying a technical problem to solved can itself be inventive. Put very broadly, something like "I want to make product X be better" isn't an objective technical problem to be solved, it's a desired outcome. But identifying a way in which to make product X better, followed by a means to implement it, may be non-obvious. The larger contribution in that case might well have been the identification of the problem, but that itself could have been inventive ("inventive" and "non-obvious" are used more or less interchangeably).
My favourite example is the Anywayup Cup (Google it - also a great example of how patents can be enormously beneficial to the little guy). Anyone who's had a child (I'm told!) knows that kids spilling juice is a problem. The Anywayup Cup is a sippy-cup which, essentially, has a valve flush with the sipping portion. If you framed that problem as "I want a way to stop liquid from leaking out of the apperture in a sippy-cup" then that's an obvious solution. But that wasn't the objective technical problem to be solved; the problem to be solved was "I want a way to stop kids making a mess when drinking juice", and identifying the technical means to do so was the lion's part of the inventive step there.
(there was more to this particular case than that - for example, there's the "long-felt want" argument here, because kids making an unholy mess with juice isn't exactly a new problem, so why hadn't a solution been presented before? This is not enough to demonstrate inventiveness, but it may contribute depending on the circumstances.)
Both the UK and the European Patent Offices have pseudo-objective tests for assessing obviousness - the Pozzoli/Windsurfing test and the Problem and Solution approach, respectively. Common to both is ensuring that the problem to be solved is identified, the relevant skilled person is identified, and - arguably most importantly of all - the avoidance of hindsight. Nearly everything's obvious in hindsight.
The change from first to invent to first to file doesn't have anything to do with the consideration of prior art.
A performance lacks fixation and would therefore not qualify for copyright protection in its own right. If it's scripted, then a performance of the scripted work would infringe the copyright of the script, not the performance.
I think you've missed out a really fundamental part of how copyright works here.
Are people who read a book infringing the author's copyright in the work?
You may have to provide a copy of copyrighted material as part of a patent application, if there is a copyright work which contains information which is relevant to your application. For example, a journal article.
Unable to mod up, but very much this!
Because it is rarely immediately obvious whether or not a given piece of prior art entirely encompasses the present application. Or whether or not the present invention is non-obvious (i.e. inventive) over a combination of several pieces of art from the same field.
The Examiner makes arguments on the basis of such prior art, and that's why they require that copies of relevant prior art are submitted to them during the examination process.
The USPTO require that you submit full copies of non-patent prior art to them; a simple reference isn't enough for those purposes.
The process is effectively backwards from how you describe it, anyway: the Examiner goes through the cited art (and any they've searched for themselves) and raises any objections (novelty, inventive step, etc.) from such art. The onus is then on the applicant to explain why those objections are moot.
I can't speak for Chinese (or even US, for that matter) trade mark law, but in the UK the manufacturers of those gas stoves would probably be caught by s10(3) of the TM Act, i.e. identical mark applied to dissimilar goods, where the mark "has a reputation" and such use either i) takes unfair advantage of; or ii) is detrimental to the distinctive character of the mark.
That is, you don't have to demonstrate that the consumer would be confused about the source of origin of the goods to which the mark is affixed. Both of those conditions above would probably apply here: the manufacturers are using Apple's marks to add value to their goods and in doing so dilute the impact of Apple's mark.
I think in other European countries this type of behaviour would fall under the quite broad "unfair competition"-type laws.
Chinese IP laws are a bit of a mystery to me, though.
1) The post to which I was referring asked to name "one product", and so I did just that.
2) I've read (and continue to read) a lot of patent literature. I appreciate that the reality is that a patent proprietor (or their attorney) will necessarily draft the description to contain the minimum possible amount of information required to meet the requirement of sufficiency of disclosure. However, the "central idea" must necessarily be elucidated in sufficient detail for the ordinary skilled person to work the invention (so "if you really know the science behind it" is exactly the point; they're not written to be understandable by the lay person). It only gets more obscure around the periphery, and as patents are legal documents there is a certain art to reading them to extract the information you require.
Anyway, this isn't a purely hypothetical argument. I referred to the patent literature more than once when working towards my doctorate in organic chemistry, and obtained very useful information from such sources more than once. Information which wasn't available elsewhere. A patent would never have been my first choice of reference material, because journal articles don't have that disclosure/trade secret tension which is inherent in a patent, but the patent literature was far from uselessly obfuscated.
Drugs, again :)
Pharmaceutical compounds still suffer from exactly that situation: discovering a molecule X for the treatment of condition Y takes a huge amount of R&D, but when the structure is known it's near-trivial to reproduce.
Drugs.
There's a lot of good information in process patents for the manufacture of pharmaceutical compounds which will ultimately see wider use in other products. Process chemists and engineers put an enormous amount of labour into devising the best way to carry out a particular chemical reaction, and those reaction conditions are described in the patent for the production of a given drug molecule. Such information is then incredibly useful for others working towards making similar molecules (or completely different molecules, but using the same transformation), be they other companies, academics, or students.
Only if your bicycle is a "rectangular handheld digital mobile electronic device" too.
The list there is cumulative, it doesn't cover the individual elements in isolation.
I'm don't know the specifics of French competition law, but if it's harmonised with EU competition law (like the UK is) then the point of law under which Google will have been caught out is on *abuse* of a dominant position. It's absolutely correct to say that having a large market share isn't illegal in its own right, but your behaviour once you're in a dominant position (for whatever reason) can be. Yes, this does mean that (for example) the same behaviour that you've been doing for years is perfectly legal one day and then anti-competitive the next through no fault of your own.
Using profits gained in one market to force out competition in another definitely is illegal under EU competition law (which, as said above, I'm applying by analogy, which may be incorrect). Using it to enter a market is fine - more undertakings in a given market should ultimately be pro-competitive, to the benefit of consumers - but continuing to cross-subsidise to force out competitors can very much be illegal.
It should also be noted that the test(s) used for establishing predatory pricing isn't set in stone as "below cost", but crudely speaking being very close to that point will create the rebuttable presumption of abuse of dominance.
Confirmed here: http://fosspatents.blogspot.com/2012/01/german-appeals-court-upholds-galaxy-tab.html
The Google translation (so no accuracy guaranteed) suggests that the Court didn't find that Samsung infringed Apple's Community Design Right at all; the finding was under German laws of unfair competition. So it's Germany only, and the finding wasn't even strictly on the grounds of IP use.
First off, patents don't protect "products" per se. They protect inventive concepts, of which a given product is but one embodiment (usually). In any case, a patent can comfortably take 5 years from filing to grant, and if you want to decrease that you're going to have to accept a lower standard of examination. Secondly, most jurisdictions have a mechanism wherein the renewal fees on patents (because you have to keep paying every year to keep it in place) rise quite sharply for the latter half of the term of protection. The effect of this is that the average length of patent terms for the majority of cases is actually quite a bit less than the 20 years maximum possible term, because it becomes uneconomical for the proprietor to keep up the renewal fees when the patent's subject matter has ceased to be profitable for them. Also, 5 years might be plenty for technology products, but consider other fields; pharmaceutical products - for whom the "incentive to invent" justification for patents is perhaps strongest - will still be undergoing the regulatory approval process by the end of 5 years.
The "obvious" test isn't really there because of competitors, it's to stop trivial inventions being patentable. Your solution would remove that barrier, and also ignores the fact that there are many possible reasons why a good, solid patent idea may not yet have been filed. With your system, you could end up with trivial patents being granted due to no-one else wanting to work in that field, or extremely solid patents being refused simply because there were multiple people pouring huge amounts of effort and inventiveness into the same field.
Finally, your final criterion already exists. It's called "sufficiency of disclosure", and in most jurisdictions (patents being national rights and hence requirements varying from place to place), if the ordinary skilled person cannot work the invention described to the full extent of protection sought by the claims, then that is grounds for refusal or revocation of the patent.
I was referring to the first line of your post - sorry if that was unclear.
My point was that it doesn't matter that the claimant wasn't the first person to create such an image, because that's not what "original" means in UK copyright law; it means, roughly, "originating from the author" rather than "novel". It's only an infringement because the defendant set out to replicate the claimant's work, *not* purely that similar works have existed before.
The causative links you've demonstrated aren't equivalent to the relevant causation in this case.
And the criteria which define "originality" with respect to photographs have been mentioned elsewhere here. If a "substantial part" of those criteria have been taken (along with the causative link), then an infringing act has certainly occurred within the meaning of the CDPA1988.
The key word is "independently". This was *not* an independent work within the meaning of (UK) copyright law and the legal precedent. The motivation to create the image was to take a "substantial part" of the infringed work; "substantial part" does not have a purely literal meaning in this content. See the obiter in the Infopaq cases for why this is the case - under a more European/civil law interpretation of the role of copyright, the "substantial part" is in reference to whether the extension of the author's personality which the work represents has been conveyed by the allegedly infringing work. It doesn't mean "he dun cut out a big chunk of dat image"; it's a more subtle argument than that. The "part" that is taken isn't a physical part, it's the - if you will - steps taken to produce that image, with the intention of recreating the infringed work.
The allegation infringement isn't because he happened to use similar techniques to construct a similar image. That, indeed, would fall outside the purvue of copyright law as both written and practised. The issue at hand is that the infringing work was *specifically created* to obviate the need to pay the claimant for use of their work. Thus there is an extremely clear causative link between the infringing work and the infringed work.
Any picture of Westminster and Big Ben with a bus on it would not necessarily infringe the claimant's work here because there would be *no evidence that the person who took that photograph was intending to "copy" the claimaint's work*. That is the entire point.
Your university notes are probably already copyright works. The reason you couldn't bring copyright infringement actions against your classmates is because there is no direct causative link between *your* notes and *their* notes - they did not copy your work, your work and their work were created from a common source.
Do you see how that's different from the original case? If not, you don't appear to be the only one.