Nice red herring arguement on the australian wheel patent. The fact is that the wheel "patent" that was issued was not a real patent and gave the filer no real rights other than to say, "look what I think I invented". The only examination that took place was to make sure that the all the papers where filed correctly. This is fairly close to the provisional patent system in the US. Neither type of patent grants any legal rights other than to refile as a real patent application later on while preserving the original filing date (This may not be true in AU, not sure) and neither type gets any real examination as to the merits of the invention and claims, only to formal matters.
Jeez... everyone knows that cheese and sugar have no business going together. Put a piece of sausage up there and you might have something worth looking at.
or c) the patent in question has nothing to do with the trade secrets that were argued about in the previous lawsuit.
The fact remains that we don't know exactly what the DVDCCA is claiming infringment on. Your assumption that the previous trade secret law suit and the current patent law suit are based upon the same piece of technology is unfounded. Until we know more details we can't say for sure if DVDCCA has a valid case or not.
Also, just because a big company is suing a small company about DRM does not necessary lead to the conclusion that the big company is wrong.
IANAL, but as far as I know you would be fine if the company does not have a patent in your country, or does not have an application pending in your country which covers the same thing.
There currently aren't any laws which recognize patents from other countries as being valid in any other country (at least to my knowledge). However, there is such a thing as a world patent filing through WIPO that files patents under the Patent Cooperation Treaty. The WIPO does not grant any rights to a filer of the patent other than the right to re-file the patent as a national stage application in each of the countries that are selected during the filing of the PCT application while retaining the original filing date of the PCT application as a priority date. Basically this just allows for an easier way to file a patent application in multiple countries at the same time.
Assuming there is a patent for CSS and 321 Studios is not licensing it, I say fuck em, its their own damn fault.
Although, as usual, there is no information as to what patent DVDCCA is claiming infringment on, or what components of DVD Copy and DVD X COPY DVDCCA claims infringe upon that patent. So, until we get more information about this case I suspect the large portion of discussion here will be needless bitching and moaning about patents, lawyers and law in general, with the occasional bad joke about someone patenting suing people and how they are going to sue DVDCCA.
Wait until more facts come in before you assume that DVDCCA is wrong in this case.
Wow, you wasted a lot of time analyzing one of the least important parts of a patent. Please remember that abstracts, titles and descriptions from the specification don't carry any legal weight, and are just there to satisfy requirements for the filing of patents. The only part of a patent which matters is the claims.
I do not know all of the various accounting tricks used by the government, nor do I really care. The patent office generates a certain amount of funds in fees each year which in theory is supposed to be their budget for the next year. However, Congress, who has to approve the office's budget for each year, is continually taking a portion of that budget for other uses. Supposedly Bush's plans on ending this fee diversion by 2005 or 2006, not sure which, and the patent office is raising their fees to generate more funds.
You can define this as tax payer funded agency if you wish depending on whatever accounting tricks you decide to use, but I do not.
And your premise was?
I don't believe I had a premise since I was not making any type of argument, just stating fact.
Seriously, this, if it weren't for the USTPO being paid for by taxpayer dollars in the first place
The USPTO is a self funded agency that uses no tax payer money at all. It's budget is made up of from fees collected from the filing of patent applications.
does an infringing work have to have ALL of the features listed in the claims? Likewise, for something to be prior art, does it have to posess all of those features as well?
No, to be infringing it does not have to read on every claim in the patent. However, to be infringing a product would have to read on (at least) ALL of the features in a single claim.
It is also important to note that dependent claims (for example, a claim that starts like "The apparatus of claim 1") contain every limitation of the claims that they depend on.
Techincally, for something to be prior art, the only requirement is that it have existed prior to the filing of the application. For something to be considered good prior art, then it will have to read on the claims in some way.
Good prior art can read on all, or some of the features of a single claim depending on which statute it is being used under. For prior art under 35 USC 102, the prior art must have (at least) every feature of the claims. For prior art under 35 USC 103 a single prior art reference does not have to have every feature of the claims, however it must be combined with additional references which have the missing features and give motivation to add the missing features into the first reference to acheive the system (method, apparatus, etc..) of a single claim.
This is nothing unique and any idiot trained in the arts would have seen it as a trivial invention (SMP, variable clock, and large caches have all existed for quite some time) and therefore not worthy of a patent.
Triviality is not considered in the tests for whether a patent is valid or not. Neither is whether all of the components in the invention separately existed. The two mains tests are whether the invention itself previously existed (in the form specified in the claims), or whether the invention would have been obvious in view of the existing prior art at the time the application was filed (or at the time of the earliest priority date).
Note that the obvious requirement (as interpretted by the courts) has nothing to do with whether one thinks that the invention would have been obvious, but rather whether the prior art of record shows that it would have been obvious.
no patent numbers were given. Here is a list of microprocessor related patents assigned to Patriot Scientific:
6,598,148 High performance microprocessor having variable speed system clock 5,809,336 High performance microprocessor having variable speed system clock 5,784,584 High performance microprocessor using instructions that operate within instruction groups 5,659,703 Microprocessor system with hierarchical stack and method of operation
All of these patents appear to be divisional patents of another patent: 5,440,749 High performance, low cost microprocessor architecture which was filed in August of 1989 (for the most part, this date should be taken to be the effective priority date of all the above applications) and assigned to Nanotronics Corporation.
Please remember that titles, abstracts, and descriptions from the patent mean nothing legally. The only section which has any legal weight is the claims, so please don't start complaining about old microprocessors as "prior art" unless they actually do the same thing as is stated in the claims.
A few weeks back the Green Bay Press Gazette had an article about a small music store (The Exclusive Company) in Green Bay (and a few other locations throughout Wisconsin) that are still doing fairly well and have no plans of stopping now. Small music stores can survive, they just have to find their market and stick with it.
Mom and Pop stores are never going to beat Walmart and Bestbuy trying to sell the latest Britney Spears and Outkast CDs because there is no way they will be able to compete with the volume discounts those stores receive, and on the "loss leader" practice of business. However, if they can make a name for themselves in certain areas like The Exclusive Company has, then they will do just fine.
I have moved out of the hell that is Green Bay to the east coast, but I still do 80% of my music shopping there, because I know that there is a very good chance they will have what I want in stock, and I know I can ask Tom for reccomendations on new bands which I may not know and walk out of the store with a damn fine CD I have never heard of. Small record shops will live and die on the people who run them and what they stock, not by trying to beat the giants on price.
Actually I am currently a patent examiner. So far I have not gone to law school, although I am considering doing so. I only have a BS in electrical engineering and no real legal training other than what I learned on the job.
As far as books I don't know of any off hand, although I am sure there are loads of them out there. The MPEP is basically the bible of patent examining and describes a lot of the nuances of the various laws, it is very very boring to read though.
If you scroll down on the text versin of the patent you will see a section (right before the claims section) that is labeled "Priority", "Parent Case" or something to that effect (if you look at the actual patent image there will be a priority section on the front page). Under that section the priority data will be listed. For example, in this case we have:
This is a Continuation application of prior application Ser. No. 08/759,895 filed Dec. 3, 1996 (now U.S. Pat. No. 5,823,879) which claims the benefit of U.S. Provisional Application No. 60/010,361 filed Jan. 19, 1996, and U.S. Provisional Application Ser. No. 60/010,703 filed Jan. 26, 1996. The entire disclosure of the prior application 08/759,895, from which a copy of the oath or declaration is supplied, is considered to be part of the disclosure of the accompanying application and is hereby incorporated by reference.
which contains a reference back to application number 08/759,895 and gives the filing date of that application (December 3, 1996). This is a continuation and basically means that everything in the current application was disclosed in the previous application, except that they are now claiming a different invention that was previously disclosed. You can also have continuation-in-parts and divisionals which I'll describe later.
Lookaing at the next sentance we see that the 08/759,895 case has a priority date going back to a provisional application 60/010,703. A provisional application is basically a holding place for a real application that reserves a filing date. It is automatically accepted by the patent office and no examination is done on it. It also grants the applicant absolutely no rights other than to reserve that filing date. After a provisional application is filed the applicant has 1 year to file a real application which can claim priority back to the provisional application. If the real application is filed after that one year, the filing date of the provisional application is lost.
Continuation-in-part (CIP) applications take a section of a previous application and add onto it. The section that was described in the previous application gets an effective filing date of the previous application and the new part gets the filing date that the application itself was filed. I believe the term for a CIP patent is 20 years from the filing date of the previous application instead of from the new application. This is set up to prevent people from continually filing CIPs while only adding minor changes to prolong the protection of the patents.
Divisionals take only a section of a previous application and file it as a new application. This is usually done when a previously filed application is restricted by an examiner (basically only 1 invention is allowed per patent, and when multiple inventions are claimed in a single patent the examiner orders a restriction). The new application gets an effective filing date back to the previous application.
I think CIP, divisional and continuation cases can only be filed while the previous application is still in prosecution (i.e. being examined). If the previous case is issued no new CIP, divisonal or continuation cases can be filed. Someone may know the rules of this better than I so there may be exceptions.
There is also foreign priority in which a patent is filed for in another country. If a US patent application is filed before 1 year after the filing of the foreign application, foreign priority can be claimed to get an effective filing date of the foreign application.
And lastly, is PCT applications. PCT applications are filed with the WIPO (World Information Propertry Organization I think). When a PCT is filed the applicant can check off a number of boxes for the countries which they want to file in, and the application date is reserved for the new application. The real application is then filed (no later than 20 or 30 months after the filing of the PCT depending on how the PCT is filed) in the US as a "371"
Think of a unique way of implementing it and you could get one. However, you can not get a patent on the idea of shuffling cards on a computer, only the implementation.
I sincerely doubt this could be considered a "win" for anything. The article does not say who initiated this reexamination request. Chances are someone just filed a request for reexamination (see the Manual of Patent Examining Procedure, Chapter 2200) which the USPTO accepted (See Smith & Hoppen, P.A. for a decent non-legal explanation of how this works).
Anyone can file such a request if they have the proper forms and $2520 (See 37 CFR s1.20). This option has been in place for awhile now, and I'm surprised it isn't brought up a lot more on slashdot.
Well if the patent office followed their own rules about not being "obvious to an ordinary practioner of the art" and about "being new and original" I'm not sure there WOULD be a problem with patents.
There seems to be a lot of confusion about the laws here, specifically 35 USC 103(a), the obviouness requirement. 35 USC 103(a) states:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The key point here is "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious". The courts have ruled that for the patent office to to reject a claim as being obvious, they must provide evidence of similar prior art, and a second reference which the missing features of the prior art and some sort of teaching or motivation to include those missing features in the prior art system.
For example, if a claim stated that a hand held calculator is provided with a clock on the display screen, in order for that claim to be rejected (assuming this is before the time when calculators with clocks on their display screens existed) the examiner would have to produce a prior art reference with a hand held calculator and then find a reference which says something like "providing clocks on consumer electronics is a simple way to distinguish your products from the competitions". The base reference of a calculator plus the reference teaching the addition of clocks to consumer electronics would then be a rejection of the claim under 35 USC 103(a).
At one point the courst allowed the patent office to simply state that a feature or invention was obvious, but this practice has since been disallowed. To reject something as obvious there must be documented proof of the type that I described above, which is sometimes much harder to find than you may think, try it out sometime.
The patent laws themselves are fairly well written, but the courts interpretation of them has made it much harder for the patent office to deny patents now than it was in the past.
Why not try your hand at biomedical engineering. It would may work well you your existing experience in medicine, and there is probably a software side to it if you insist on working with computers.
The first thing I would do would be to learn as much as you can about the current system, find out exactly what the requirments are for filing, allowing and rejecting patents. Also read the PTO's 21st Centruy Strategic Plan to see what they are already planning on changing. It would also be good to find out if any bills are before Congress that would improve the situation.
After that, write (on real paper, sent through the old fashioned mail system) a letter to your Senators and Representavies explaining the current problems with the system and how they should be fixed, if you do find current legislation before either house that you agree with, tell them that you would like to see them vote (yes/no) on that bill.
It is important to know exactly how the current system operates before you attempt to change it. Once you know what is currently in place, you will have a much better idea of what needs to be changed, and be able to write a much more conving letter to your members of Congress.
Note that this method, with a little modification, may work for other problems that you see with US government and laws.
To summarize in a way any slashdotter can understand:
1) Learn as much as you can about the current system 2) Identify problems in current system 3) Write Congress concerning those problems 4) ??? 5) Profit!!!
Slashdot Mirror
Nice red herring arguement on the australian wheel patent. The fact is that the wheel "patent" that was issued was not a real patent and gave the filer no real rights other than to say, "look what I think I invented". The only examination that took place was to make sure that the all the papers where filed correctly. This is fairly close to the provisional patent system in the US. Neither type of patent grants any legal rights other than to refile as a real patent application later on while preserving the original filing date (This may not be true in AU, not sure) and neither type gets any real examination as to the merits of the invention and claims, only to formal matters.
See the following for more details: Austrailian Innovation Patent and US Provisoinal Patent Applications.
Jeez... everyone knows that cheese and sugar have no business going together. Put a piece of sausage up there and you might have something worth looking at.
or c) the patent in question has nothing to do with the trade secrets that were argued about in the previous lawsuit.
The fact remains that we don't know exactly what the DVDCCA is claiming infringment on. Your assumption that the previous trade secret law suit and the current patent law suit are based upon the same piece of technology is unfounded. Until we know more details we can't say for sure if DVDCCA has a valid case or not.
Also, just because a big company is suing a small company about DRM does not necessary lead to the conclusion that the big company is wrong.
I strongly suggest that you read up on the utility requirement of patent law (specifically 35 USC 101). Some other very helpful information can be found in the Manual of Patent Examining Procedure, sections 2107 and 2107.01.
That is their choice. If you don't like it then you don't have to purchase or watch any material associated with the DVDCCA.
IANAL, but as far as I know you would be fine if the company does not have a patent in your country, or does not have an application pending in your country which covers the same thing.
There currently aren't any laws which recognize patents from other countries as being valid in any other country (at least to my knowledge). However, there is such a thing as a world patent filing through WIPO that files patents under the Patent Cooperation Treaty. The WIPO does not grant any rights to a filer of the patent other than the right to re-file the patent as a national stage application in each of the countries that are selected during the filing of the PCT application while retaining the original filing date of the PCT application as a priority date. Basically this just allows for an easier way to file a patent application in multiple countries at the same time.
Assuming there is a patent for CSS and 321 Studios is not licensing it, I say fuck em, its their own damn fault.
Although, as usual, there is no information as to what patent DVDCCA is claiming infringment on, or what components of DVD Copy and DVD X COPY DVDCCA claims infringe upon that patent. So, until we get more information about this case I suspect the large portion of discussion here will be needless bitching and moaning about patents, lawyers and law in general, with the occasional bad joke about someone patenting suing people and how they are going to sue DVDCCA.
Wait until more facts come in before you assume that DVDCCA is wrong in this case.
Wow, you wasted a lot of time analyzing one of the least important parts of a patent. Please remember that abstracts, titles and descriptions from the specification don't carry any legal weight, and are just there to satisfy requirements for the filing of patents. The only part of a patent which matters is the claims.
The USPTO only spends money they generate, I don't know how that mystically becomes "taxpayer dollars" in your mind, but apparently it does.
You can define this as tax payer funded agency if you wish depending on whatever accounting tricks you decide to use, but I do not.I don't believe I had a premise since I was not making any type of argument, just stating fact.
The patent has a (divisional) priority date back to 1995 and 1989.
It is also important to note that dependent claims (for example, a claim that starts like "The apparatus of claim 1") contain every limitation of the claims that they depend on.
Techincally, for something to be prior art, the only requirement is that it have existed prior to the filing of the application. For something to be considered good prior art, then it will have to read on the claims in some way.
Good prior art can read on all, or some of the features of a single claim depending on which statute it is being used under. For prior art under 35 USC 102, the prior art must have (at least) every feature of the claims. For prior art under 35 USC 103 a single prior art reference does not have to have every feature of the claims, however it must be combined with additional references which have the missing features and give motivation to add the missing features into the first reference to acheive the system (method, apparatus, etc..) of a single claim.
Note that the obvious requirement (as interpretted by the courts) has nothing to do with whether one thinks that the invention would have been obvious, but rather whether the prior art of record shows that it would have been obvious.
no patent numbers were given. Here is a list of microprocessor related patents assigned to Patriot Scientific:
6,598,148 High performance microprocessor having variable speed system clock
5,809,336 High performance microprocessor having variable speed system clock
5,784,584 High performance microprocessor using instructions that operate within instruction groups
5,659,703 Microprocessor system with hierarchical stack and method of operation
All of these patents appear to be divisional patents of another patent:
5,440,749 High performance, low cost microprocessor architecture
which was filed in August of 1989 (for the most part, this date should be taken to be the effective priority date of all the above applications) and assigned to Nanotronics Corporation.
Please remember that titles, abstracts, and descriptions from the patent mean nothing legally. The only section which has any legal weight is the claims, so please don't start complaining about old microprocessors as "prior art" unless they actually do the same thing as is stated in the claims.
A few weeks back the Green Bay Press Gazette had an article about a small music store (The Exclusive Company) in Green Bay (and a few other locations throughout Wisconsin) that are still doing fairly well and have no plans of stopping now. Small music stores can survive, they just have to find their market and stick with it.
Mom and Pop stores are never going to beat Walmart and Bestbuy trying to sell the latest Britney Spears and Outkast CDs because there is no way they will be able to compete with the volume discounts those stores receive, and on the "loss leader" practice of business. However, if they can make a name for themselves in certain areas like The Exclusive Company has, then they will do just fine.
I have moved out of the hell that is Green Bay to the east coast, but I still do 80% of my music shopping there, because I know that there is a very good chance they will have what I want in stock, and I know I can ask Tom for reccomendations on new bands which I may not know and walk out of the store with a damn fine CD I have never heard of. Small record shops will live and die on the people who run them and what they stock, not by trying to beat the giants on price.
Actually I am currently a patent examiner. So far I have not gone to law school, although I am considering doing so. I only have a BS in electrical engineering and no real legal training other than what I learned on the job.
As far as books I don't know of any off hand, although I am sure there are loads of them out there. The MPEP is basically the bible of patent examining and describes a lot of the nuances of the various laws, it is very very boring to read though.
which contains a reference back to application number 08/759,895 and gives the filing date of that application (December 3, 1996). This is a continuation and basically means that everything in the current application was disclosed in the previous application, except that they are now claiming a different invention that was previously disclosed. You can also have continuation-in-parts and divisionals which I'll describe later.
Lookaing at the next sentance we see that the 08/759,895 case has a priority date going back to a provisional application 60/010,703. A provisional application is basically a holding place for a real application that reserves a filing date. It is automatically accepted by the patent office and no examination is done on it. It also grants the applicant absolutely no rights other than to reserve that filing date. After a provisional application is filed the applicant has 1 year to file a real application which can claim priority back to the provisional application. If the real application is filed after that one year, the filing date of the provisional application is lost.
Continuation-in-part (CIP) applications take a section of a previous application and add onto it. The section that was described in the previous application gets an effective filing date of the previous application and the new part gets the filing date that the application itself was filed. I believe the term for a CIP patent is 20 years from the filing date of the previous application instead of from the new application. This is set up to prevent people from continually filing CIPs while only adding minor changes to prolong the protection of the patents.
Divisionals take only a section of a previous application and file it as a new application. This is usually done when a previously filed application is restricted by an examiner (basically only 1 invention is allowed per patent, and when multiple inventions are claimed in a single patent the examiner orders a restriction). The new application gets an effective filing date back to the previous application.
I think CIP, divisional and continuation cases can only be filed while the previous application is still in prosecution (i.e. being examined). If the previous case is issued no new CIP, divisonal or continuation cases can be filed. Someone may know the rules of this better than I so there may be exceptions.
There is also foreign priority in which a patent is filed for in another country. If a US patent application is filed before 1 year after the filing of the foreign application, foreign priority can be claimed to get an effective filing date of the foreign application.
And lastly, is PCT applications. PCT applications are filed with the WIPO (World Information Propertry Organization I think). When a PCT is filed the applicant can check off a number of boxes for the countries which they want to file in, and the application date is reserved for the new application. The real application is then filed (no later than 20 or 30 months after the filing of the PCT depending on how the PCT is filed) in the US as a "371"
I seem to remember prior art in any ad-sponsored web page published before June 1998.
Prior art from June 1998 doesn't change anything because the application has a domestic priority date back to Jan. 26, 1996.
Think of a unique way of implementing it and you could get one. However, you can not get a patent on the idea of shuffling cards on a computer, only the implementation.
I sincerely doubt this could be considered a "win" for anything. The article does not say who initiated this reexamination request. Chances are someone just filed a request for reexamination (see the Manual of Patent Examining Procedure, Chapter 2200) which the USPTO accepted (See Smith & Hoppen, P.A. for a decent non-legal explanation of how this works).
Anyone can file such a request if they have the proper forms and $2520 (See 37 CFR s1.20). This option has been in place for awhile now, and I'm surprised it isn't brought up a lot more on slashdot.
There seems to be a lot of confusion about the laws here, specifically 35 USC 103(a), the obviouness requirement. 35 USC 103(a) states:The key point here is "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious". The courts have ruled that for the patent office to to reject a claim as being obvious, they must provide evidence of similar prior art, and a second reference which the missing features of the prior art and some sort of teaching or motivation to include those missing features in the prior art system.
For example, if a claim stated that a hand held calculator is provided with a clock on the display screen, in order for that claim to be rejected (assuming this is before the time when calculators with clocks on their display screens existed) the examiner would have to produce a prior art reference with a hand held calculator and then find a reference which says something like "providing clocks on consumer electronics is a simple way to distinguish your products from the competitions". The base reference of a calculator plus the reference teaching the addition of clocks to consumer electronics would then be a rejection of the claim under 35 USC 103(a).
At one point the courst allowed the patent office to simply state that a feature or invention was obvious, but this practice has since been disallowed. To reject something as obvious there must be documented proof of the type that I described above, which is sometimes much harder to find than you may think, try it out sometime.
The patent laws themselves are fairly well written, but the courts interpretation of them has made it much harder for the patent office to deny patents now than it was in the past.
Why not try your hand at biomedical engineering. It would may work well you your existing experience in medicine, and there is probably a software side to it if you insist on working with computers.
Slashdot is not the most objective of news sources out there.
The first thing I would do would be to learn as much as you can about the current system, find out exactly what the requirments are for filing, allowing and rejecting patents. Also read the PTO's 21st Centruy Strategic Plan to see what they are already planning on changing. It would also be good to find out if any bills are before Congress that would improve the situation.
After that, write (on real paper, sent through the old fashioned mail system) a letter to your Senators and Representavies explaining the current problems with the system and how they should be fixed, if you do find current legislation before either house that you agree with, tell them that you would like to see them vote (yes/no) on that bill.
It is important to know exactly how the current system operates before you attempt to change it. Once you know what is currently in place, you will have a much better idea of what needs to be changed, and be able to write a much more conving letter to your members of Congress.
Note that this method, with a little modification, may work for other problems that you see with US government and laws.
To summarize in a way any slashdotter can understand:
1) Learn as much as you can about the current system
2) Identify problems in current system
3) Write Congress concerning those problems
4) ???
5) Profit!!!