But now when I purchase a CD, I'm breaking the law by putting it on my MP3 player,
This is not illegal. This is a perfectly legal act, see RIAA v. Diamond Multimedia Systems, 180 F.3d 1072 (9th Cir. 1999)("In fact, the Rio's operation is entirely consistent with the Act's main purpose - the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings," H.R. Rep. 102-873(I), at *59. The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.").
Even if you could rehabilitate the shitbags, why should we?
I agree. For a first-time offender, I have no problem with attempting to rehabilitate. Maybe even a second offender. But at some point, society has just got to accept that some people just are unwilling to live within the rules of society -- at that point, if they don't want to live by the rules, they can live somewhere else, be it jail or whatever.
You saying "I can forge those logs" is insufficient to prove that the logs were, in fact, forged. If the RIAA can prove, more likely than not, that the logs are authentic, then the burden shifts to YOU to prove, more likely than not, that the RIAA did forge the logs.
The fact that the logs might be easily forged might work in your favor, but is more than likely insufficient standing alone to prove that the logs are not authentic. It's like fighting a speeding ticket -- it's not enough to show that the officer could easily have pointed his radar gun at a different car, you need to prove that he did point it at another car to prevail.
Incidentally, this is why the government is trying so hard to bully the rest of the world into adopting our insane laws.
You do realize that our "insane laws" are generally pretty well harmonized with the laws of the rest of the developed world, don't you? The Sonny Bono copyright extension was done to make our shorter copyright terms match up with the longer terms of the rest of the Berne countries. Same with removing the requirement for copyright notice.
And out patent laws are generally -- although not competely -- harmonized with everyone else's as a result of the 1995 Uruguay rounds, that's when we changed our patent terms from 17 years from issue to 20 years from earliest filing date, amongst other changes (like requiring publication of applications after 18 months for patents seeking foreign protection under the PCT, etc.).
Our laws may seem a lot worse than other countries, and often times are different than other countries, but many (not all) of the things that people here really complaing about are pretty much the same the world over -- and, especially when considering copyright law, the U.S. had to play catch-up with the rest of the world.
The main thing is that most of the companies and groups (like the RIAA and MPAA) are based here, so a lot of the litigation goes on here (the U.S., I mean), so you really get to see the laws in action -- but in reality, most (again, not all) of the laws are pretty similar in most Western countries.
The U.S. is trying to get a lot of non-Western countries to adopt Western-style IP laws, but that will benefit ALL of the Western countries, not just the U.S.
You know, your suggestions are actually pretty close to the Graham factors that are "secondary indicia" of non-obviousness:
-- long felt need in the industry; -- acclaim from others in the industry; -- success in the marketplace; -- evidence of copying; -- unexpected results; -- offers to license the technology.
None of these prove that a particular invention is non-obvious, but they can be used to help establish non-obviousness.
Artists are not always rebels. You, as an artist, have a choice:
Sign on the dotted line and be promoted and sold, become famous. Do not sign, and have your career either self-destruct (usually for better of us all) or have its knees broken by the hired critics and privately owned media networks. You still can become famous, but you'd better be very good at what you do, and know it. Most artists, however, are unsure in their own skills (some - with a good reason) and for them it makes plenty of sense to hire a promoter (the RIAA) - it costs some, but also brings some cash in, and makes the musicians better known - the fame is what many of them want the most. RIAA lets the musicians to work fast, and to live fast by plugging them into the existing entertainment conveyor. If you and me decide to perform a musical piece, how many phone calls do you think it will take to arrange even for a lowliest venue, which nobody will ever learn about? RIAA is a convenient tool for many.
I agree 100%.
It's fashionable for people here to say "the record labels are a dying breed, the artists don't need them anymore" -- what people fail to realize is that the artists want to work with the record labels...
An example one leading drug company quoted is the cervical cancer vaccine - more expensive in the USA due to having to get R&D money back in their opinion. However it was developed in Australia and the R&D was paid for by the Australia taxpayer - the US public is just getting ripped off in that case and undoubtedly many others.
"R&D" costs encompasses more than just the actual "research and development" -- even if a drug is developed in Australia (where the "R&D" dollars are spent) -- the drug still has to undergo clinical trials in the U.S., which still cost many tens of millions of dollars (if not more) before the drug can be approved to be sold in the states.
Even drugs proven safe in other countries typically have to do some rounds of clinical trials in the U.S., which is why it is not correct to say "no" R&D dollars need to be recouped.
If they can afford to sell many thousands of these books at the Indian price, the pricing obviously has nothing to do with the cost of publishing the book.
Why should the publisher price books according to the marginal cost? Why shouldn't the publisher price his books at the price which maximizes profits (which will be a function of sales volume and price)?
Textbooks are kind of a bad example. In the U.S., if you dropped the price from the "regular" U.S. price down to the Indian price, you are still not going to sell many more textbooks, since the number of people buying textbooks is limited to those people who actually need them -- and they are going to buy pretty much at whatever price you offer, because they need them. Sure, at some price sales will drop, but lowering the price will not significantly increase sales.
Unlike a novel, where changes in price probably would have a significant impact on the number of units sold -- and in which case you probably have prices that ARE more in line with costs of production, because there is a real competitive market, unlike textbooks.
Articulate an argument for why this should be true in all cases.
Why does this have to be true "in all cases?"
The argument gets made here often that there are certain types of "natural" property that are better than "government-created" property, like intellectual property. The reality is, ALL property is "government-created." Don't believe it? Try not paying your property taxes, or have the unfortunate luck to live in a house where the government wants to build a new highway (or new shopping mall). The fact is, ALL property rights are at the pleasure of the government, and what the government giveth, the government can taketh away.
That's why it's such a weak argument to say "but IP isn't real property, because the government made it up!" Sure, maybe once upon a time, property was whatever you could keep and defend -- but those days are long gone, nowadays property is whatever the government gives you the right to have.
Put simply the middle man is no longer as necessary as he used to be, but instead of accepting that he's had a good run and rolling with it, he's trying to make you legally obligated to go through him anyway.
As it has been said over and over again in threads like these, if the artists could make more money ditching "the middle man," don't you think they would do that? Why do the majority of artists still look to "get signed" if life is so much rosier without the record labels?
...and yet you use it to make comparisons in the previous century.
I wasn't making the comparison, it was someone else.
All I said was that the sizes of the two places were similar, but you could only make that comparison if you ignored the fact that, at the time, it was a bunch of people killing people in other countries -- and they were all killing each other.
Let's see - the 20th century hmmmm..... who killed the most people ? The Europeans.
It's ridiculous to compare a continent with a country. One is a geographical region, one is a political entity.
I agree, but doesn't the formation of the European Union (which includes most of the countries on the European continent) kind of blur that distinction, at least going forward? I know that "Europe" has only been a unified being for only a relatively short time (beinging in the 1950's), but certainly today it would be fair to compare "Europe" with a country.
But to the specific point, the population of Western Europe throughout most of the last Century was close enough in size to the U.S. to make such comparisons reasonable -- if you ignore the fact that the Europeans were mostly killing other Europeans!
1. Copyrights and patents can only be granted for personal creative work, and are not transferable or inheritable.
2. Copyrights and patents are owned by the sole inventor, not the corporation they work for.
3. Copyrights and patents may be licensed to manufacturers and distributers, but only in narrow form for specific products.
4. Copyrights and patents that are broadly licensed OR where the copyright or patent holder dies, fall into the public domain.
Why are you conflating patents and copyrights? They are two very different monopolies. Patents are far more limiting (are far more of a monopoly) than are copyrights -- so that's why they are far harder to obtain, and only last 20 years. Copyrights are easy to get, but relatively hard to enforce, and only worth enforcing in certain circumstances.
But beyond that, how would not being able to transfer ownership help the patent or copyright owner? If they couldn't transfer the rights, and only have limited means for licensing the rights, then the rights aren't very valuable. Why would anyone bother? The corporations would just keep everything secret, would stop publishing papers, would tightly control access to all sorts of information. It's hard to see how such a system would promote science and the useful arts in such a case.
Also, when you come up with an invention while being PAID by a company to work on the invention, using resources the company paid for, why SHOULDN'T the company own the rights to the invention? If you work on an assembly line, should you own every widget you assemble?
That's the best definition I've seen on these forums in awhile. Patents should have the same definition. A limited period of time is the key. After that...public domain!;-)
Patents already do have essentially the "same" definition -- patents are only good for 20 years from the day they were filed (or, more correctly, from the earliest date that they claim priority, and it can be lengthened in certain circumstances if the application gets held up in prosecution, and can get shorten in some instanced, but why be picky!).
Would you deny that the recordings of Elvis Presley, the Beatles, and their contemporaries are traded often on peer-to-peer file sharing networks?
Define "often." I couldn't find any stats on what songs are most downloaded illegally, but from a legal download perspective, it ain't Elvis, or anything else more than a few months (or years) old.
This case should've been stayed until the USPTO could complete re-examinations and until key SCOTUS rulings could be made.
That may well be true, but the law is that the district courts do not have to wait for the USPTO. Now, maybe in the NTP case it would have been good to wait for the USPTO -- but a blanket rule telling the district court to stay a case while a reexam is going on is just as open to abuse on the other side, where a party could initiate reexam of any patent that they are sued under in order to keep the case from going forward to trial.
Reexam can be a valuable tool, but, like any tool, it can also be abused.
But can the automatic door discriminate between customers and people who have been told (either by the proprieter or the courts) that they are not welcome?
It's only not trespassing if you have permission. the fact that the door opens for you does not imply permission.
What happens if the proprietor forgets to lock the doors after hours? Does the fact that the door opens for you imply that you have permission to be in the store when it is closed?
Well, the due diligence in question wouldn't be any more difficult than what companies normally have to do to challenge a patent in the Patent Office or the courts, so I don't think it would be any big deal for the usual companies with patents who have deep pockets. If they can't find an easy reason to kill a potential patent, then they can be reasonably sure that someone else won't either, which would make that potential patent more valuable. There's always the risk that they're wrong, but that's just part of business.
I guess the main problem is that this just concentrates patents into the companies with deep pockets. You are right, this probably wouldn't be any more expensive than challenging a patent is now anyway -- but now, you only have to spend that kind of cash challenging patents when a lawsuit arises. With your proposal, you would need to spend that kind of cash any time that you wanted to patent a technology you developed. Right now, you can obtain a patent for $10,000 (or less), but companies will spend a million dollars or more to challenge a patent in a lawsuit -- there is just no parity between those two numbers.
And a number that high to obtain a patent just means that only companies with that kind of money can obtain patents.
We've already a got a massive database like that - the database of patents itself - and it has already been demonstrated numerous times that the availability of such a system does very little to prevent the granting of bad patents.
Well, yes and no. Sure, if you are patenting a new type of gear, or new type of fastener, the current patent database is more than sufficient to check for relevant prior art.
But in very fast-moving technologies, where a lot of technical papers are written, the use of the patent office database can create a "lag" where lnwon technologies are not reflected (yet) in the database at a time an application is moving through the process, which can result in patents being issued on "obvious" improvements, which is one of the biggest gripes around here. Having a database which is more current and "cutting edge" might reduce that problem.
Especially if we move to a first-to-file system instead of the current first-to-invent system.
This issue is particularly relevant with respect to software patents. Part of the reason (a big part) that a lot of "obvious" ideas in the software field were patented (and are being patented) is because software patents are a relatively recent idea, and there isn't a huge database of software patents to check for prior art. The patent examiners would use their database, find no art, and issue -- even though such an idea was well known in the field. Once the software part of the patent database is fully populated (like it is for other fields, particularly mechanical inventions), then you will see few outlier patents that appear, on their face, "obvious." But until the time comes, we need a better database to pull art from.
Just about _any_ kind of business investment has risk associated with it, but businesspeople keep on investing anyway. I think you might be overestimating the risk involved with valuing a patent, and underestimating the amount the effort that some people will put forth to have a chance at getting a good business opportunity.
I agree -- but not all risk is equally risky, or equally expensive.
You are right, for "commodity" patents, it's really not a big deal to value them. But for a true "pioneer" patent, and for a lot of drug patents, it can be very difficult to value them. For a pioneer patent, you may not know when, or even if, a market will develop for the technology. For drug patents, like a alluded to earlier, just getting the drug created and patented is just one hurdle -- you still have to go through years of clinical trials to get a drug approved, and the approval (or even efficacy) of a drug is never guaranteed.
Does that mean nobody invests in these things? No, of course not. But spending a
Given enough participants with enough information, auctions are pretty good at assigning financial values.
I don't disagree. The problem is, the market for each particular patent is probably pretty narrow, so it's not clear to me, at least, that any particular patent will have enough interested parties willing to do enough due dilligence to make such an effort worthwhile.
That's all part of the due diligence that each bidder has to apply to choosing their bid amounts. Somebody who wants ownership of the patent has to be darn sure that they'll get their money's worth after the auction is over & they've got ownership of the patent. Figuring out the narrowness of a claim, or whether a patent will be overturned due to prior art or obviousness is part of that valuation process - and with the auction, you get that due diligence performed without having to depend on overworked patent examiners.
How? Prior art is only one facet of patentability -- there's also the whole disclosure issue, whether the "best mode" is disclosed, whether the claims are fully enabled by the specification, etc. Obviousness of a patent, or whether or not it is anticipated, is only part of the question -- and it just doesn't seem likely that the marketplace is really in the position to do that level of due diligence.
Further, determine whether or not a particular claim has prior art requires not just finding art, but construing the claim language to get the proper scope of the claim -- only then is the prior art really relevant. Maybe I am naive, but I just can't see a lot of people really getting into this enough to make it worthwhile.
Probably a better way to keep "obvious" inventions from being patented would be to start building a database of prior art that is readily searchable, and has a way to access (either directly, or at least tells you a location to look) the original documents. Or original knowledge, even. Combine that with the soon-to-be-in-some-form (assuming the patent reform act passes) public review period, and that should solve the worst of the abuses in the system.
I just can't see enough people willing to spend enough time and energy to do the due dilligence to make the auction system work. It's a clever idea, but I just don't think it usually possible to know with any level of confidence what the scope, or value, of any particular patent might be -- and this would be a real problem for drub patents and a lot of biotech patents, which rely on clinical trials and FDA approval before you can make a dime on a patent -- I'm not sure any amount of due diligence can determine with ANY level of confidence the value of a drug or biotech patent before the clinical trials are underway.
Proving fraud on the patent office to the point where you can get a patent declared unenforceable requires a showing of "clear and convincing" evidence, which is a higher standard than preponderance of the evidence, but a lower standard than "beyond a reasonable doubt."
Also, to show "inequitable conduct," you have to show two things. First, that the art is both "material to patentability" and "not cumulative." In other words, if the "prior art" in this case is either less pertinent than the art that was cited, or is merely cumulative (think "me too!"), then the art is not material prior art for the purposes of inequitable conduct.
Second, it's not enough to show that they knew about the art -- you have to prove that they deliberately failed to disclose the art with the intent to deceive the patent office. Now, this doesn't have to be an admission from the witness -- you can prove this through circumstantial evidence -- but if the patent applicant can prove that the resonably believed that they didn't need to disclose the art -- because they had a good faith and reasonable belief that the art was not material, or merely cumulative -- then that can defeat any claims of inequitable conduct.
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In patents, novelty rejections mean "super obvious".
Not really. 102 (novelty) rejections mean "someone else invented it before you." Something can be non-obvious and also not novel.
Just FYI,
But now when I purchase a CD, I'm breaking the law by putting it on my MP3 player,
This is not illegal. This is a perfectly legal act, see RIAA v. Diamond Multimedia Systems, 180 F.3d 1072 (9th Cir. 1999)("In fact, the Rio's operation is entirely consistent with the Act's main purpose - the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings," H.R. Rep. 102-873(I), at *59. The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.").
The giving away for free may or may not have been part of the law.
It's part of the law. Copyright controls distribution, without any liitations on "free" distribution.
Even if you could rehabilitate the shitbags, why should we?
I agree. For a first-time offender, I have no problem with attempting to rehabilitate. Maybe even a second offender. But at some point, society has just got to accept that some people just are unwilling to live within the rules of society -- at that point, if they don't want to live by the rules, they can live somewhere else, be it jail or whatever.
You saying "I can forge those logs" is insufficient to prove that the logs were, in fact, forged. If the RIAA can prove, more likely than not, that the logs are authentic, then the burden shifts to YOU to prove, more likely than not, that the RIAA did forge the logs.
The fact that the logs might be easily forged might work in your favor, but is more than likely insufficient standing alone to prove that the logs are not authentic. It's like fighting a speeding ticket -- it's not enough to show that the officer could easily have pointed his radar gun at a different car, you need to prove that he did point it at another car to prevail.
Incidentally, this is why the government is trying so hard to bully the rest of the world into adopting our insane laws.
You do realize that our "insane laws" are generally pretty well harmonized with the laws of the rest of the developed world, don't you? The Sonny Bono copyright extension was done to make our shorter copyright terms match up with the longer terms of the rest of the Berne countries. Same with removing the requirement for copyright notice.
And out patent laws are generally -- although not competely -- harmonized with everyone else's as a result of the 1995 Uruguay rounds, that's when we changed our patent terms from 17 years from issue to 20 years from earliest filing date, amongst other changes (like requiring publication of applications after 18 months for patents seeking foreign protection under the PCT, etc.).
Our laws may seem a lot worse than other countries, and often times are different than other countries, but many (not all) of the things that people here really complaing about are pretty much the same the world over -- and, especially when considering copyright law, the U.S. had to play catch-up with the rest of the world.
The main thing is that most of the companies and groups (like the RIAA and MPAA) are based here, so a lot of the litigation goes on here (the U.S., I mean), so you really get to see the laws in action -- but in reality, most (again, not all) of the laws are pretty similar in most Western countries.
The U.S. is trying to get a lot of non-Western countries to adopt Western-style IP laws, but that will benefit ALL of the Western countries, not just the U.S.
You know, your suggestions are actually pretty close to the Graham factors that are "secondary indicia" of non-obviousness:
-- long felt need in the industry;
-- acclaim from others in the industry;
-- success in the marketplace;
-- evidence of copying;
-- unexpected results;
-- offers to license the technology.
None of these prove that a particular invention is non-obvious, but they can be used to help establish non-obviousness.
Artists are not always rebels. You, as an artist, have a choice:
Sign on the dotted line and be promoted and sold, become famous.
Do not sign, and have your career either self-destruct (usually for better of us all) or have its knees broken by the hired critics and privately owned media networks.
You still can become famous, but you'd better be very good at what you do, and know it. Most artists, however, are unsure in their own skills (some - with a good reason) and for them it makes plenty of sense to hire a promoter (the RIAA) - it costs some, but also brings some cash in, and makes the musicians better known - the fame is what many of them want the most. RIAA lets the musicians to work fast, and to live fast by plugging them into the existing entertainment conveyor. If you and me decide to perform a musical piece, how many phone calls do you think it will take to arrange even for a lowliest venue, which nobody will ever learn about? RIAA is a convenient tool for many.
I agree 100%.
It's fashionable for people here to say "the record labels are a dying breed, the artists don't need them anymore" -- what people fail to realize is that the artists want to work with the record labels...
An example one leading drug company quoted is the cervical cancer vaccine - more expensive in the USA due to having to get R&D money back in their opinion. However it was developed in Australia and the R&D was paid for by the Australia taxpayer - the US public is just getting ripped off in that case and undoubtedly many others.
"R&D" costs encompasses more than just the actual "research and development" -- even if a drug is developed in Australia (where the "R&D" dollars are spent) -- the drug still has to undergo clinical trials in the U.S., which still cost many tens of millions of dollars (if not more) before the drug can be approved to be sold in the states.
Even drugs proven safe in other countries typically have to do some rounds of clinical trials in the U.S., which is why it is not correct to say "no" R&D dollars need to be recouped.
If they can afford to sell many thousands of these books at the Indian price, the pricing obviously has nothing to do with the cost of publishing the book.
Why should the publisher price books according to the marginal cost? Why shouldn't the publisher price his books at the price which maximizes profits (which will be a function of sales volume and price)?
Textbooks are kind of a bad example. In the U.S., if you dropped the price from the "regular" U.S. price down to the Indian price, you are still not going to sell many more textbooks, since the number of people buying textbooks is limited to those people who actually need them -- and they are going to buy pretty much at whatever price you offer, because they need them. Sure, at some price sales will drop, but lowering the price will not significantly increase sales.
Unlike a novel, where changes in price probably would have a significant impact on the number of units sold -- and in which case you probably have prices that ARE more in line with costs of production, because there is a real competitive market, unlike textbooks.
Articulate an argument for why this should be true in all cases.
Why does this have to be true "in all cases?"
The argument gets made here often that there are certain types of "natural" property that are better than "government-created" property, like intellectual property. The reality is, ALL property is "government-created." Don't believe it? Try not paying your property taxes, or have the unfortunate luck to live in a house where the government wants to build a new highway (or new shopping mall). The fact is, ALL property rights are at the pleasure of the government, and what the government giveth, the government can taketh away.
That's why it's such a weak argument to say "but IP isn't real property, because the government made it up!" Sure, maybe once upon a time, property was whatever you could keep and defend -- but those days are long gone, nowadays property is whatever the government gives you the right to have.
The first thing that'll help you with this argument is the realization that "Intellectual Property" is not property.
Well, except for the uncomfortable fact that, from a legal perspective, it is property.
Put simply the middle man is no longer as necessary as he used to be, but instead of accepting that he's had a good run and rolling with it, he's trying to make you legally obligated to go through him anyway.
As it has been said over and over again in threads like these, if the artists could make more money ditching "the middle man," don't you think they would do that? Why do the majority of artists still look to "get signed" if life is so much rosier without the record labels?
No problem, just clearing up the record!
...and yet you use it to make comparisons in the previous century.
I wasn't making the comparison, it was someone else.
All I said was that the sizes of the two places were similar, but you could only make that comparison if you ignored the fact that, at the time, it was a bunch of people killing people in other countries -- and they were all killing each other.
Let's see - the 20th century hmmmm..... who killed the most people ? The Europeans.
It's ridiculous to compare a continent with a country. One is a geographical region, one is a political entity.
I agree, but doesn't the formation of the European Union (which includes most of the countries on the European continent) kind of blur that distinction, at least going forward? I know that "Europe" has only been a unified being for only a relatively short time (beinging in the 1950's), but certainly today it would be fair to compare "Europe" with a country.
But to the specific point, the population of Western Europe throughout most of the last Century was close enough in size to the U.S. to make such comparisons reasonable -- if you ignore the fact that the Europeans were mostly killing other Europeans!
1. Copyrights and patents can only be granted for personal creative work, and are not transferable or inheritable.
2. Copyrights and patents are owned by the sole inventor, not the corporation they work for.
3. Copyrights and patents may be licensed to manufacturers and distributers, but only in narrow form for specific products.
4. Copyrights and patents that are broadly licensed OR where the copyright or patent holder dies, fall into the public domain.
Why are you conflating patents and copyrights? They are two very different monopolies. Patents are far more limiting (are far more of a monopoly) than are copyrights -- so that's why they are far harder to obtain, and only last 20 years. Copyrights are easy to get, but relatively hard to enforce, and only worth enforcing in certain circumstances.
But beyond that, how would not being able to transfer ownership help the patent or copyright owner? If they couldn't transfer the rights, and only have limited means for licensing the rights, then the rights aren't very valuable. Why would anyone bother? The corporations would just keep everything secret, would stop publishing papers, would tightly control access to all sorts of information. It's hard to see how such a system would promote science and the useful arts in such a case.
Also, when you come up with an invention while being PAID by a company to work on the invention, using resources the company paid for, why SHOULDN'T the company own the rights to the invention? If you work on an assembly line, should you own every widget you assemble?
That's the best definition I've seen on these forums in awhile. Patents should have the same definition. A limited period of time is the key. After that...public domain! ;-)
Patents already do have essentially the "same" definition -- patents are only good for 20 years from the day they were filed (or, more correctly, from the earliest date that they claim priority, and it can be lengthened in certain circumstances if the application gets held up in prosecution, and can get shorten in some instanced, but why be picky!).
Would you deny that the recordings of Elvis Presley, the Beatles, and their contemporaries are traded often on peer-to-peer file sharing networks?
Define "often." I couldn't find any stats on what songs are most downloaded illegally, but from a legal download perspective, it ain't Elvis, or anything else more than a few months (or years) old.
http://www.bbc.co.uk/radio1/chart/downloads.shtml
I doubt that Elvis tunes being free to download would have any significant impact on the number of songs illegally downloaded.
This case should've been stayed until the USPTO could complete re-examinations and until key SCOTUS rulings could be made.
That may well be true, but the law is that the district courts do not have to wait for the USPTO. Now, maybe in the NTP case it would have been good to wait for the USPTO -- but a blanket rule telling the district court to stay a case while a reexam is going on is just as open to abuse on the other side, where a party could initiate reexam of any patent that they are sued under in order to keep the case from going forward to trial.
Reexam can be a valuable tool, but, like any tool, it can also be abused.
But can the automatic door discriminate between customers and people who have been told (either by the proprieter or the courts) that they are not welcome?
It's only not trespassing if you have permission. the fact that the door opens for you does not imply permission.
What happens if the proprietor forgets to lock the doors after hours? Does the fact that the door opens for you imply that you have permission to be in the store when it is closed?
Well, the due diligence in question wouldn't be any more difficult than what companies normally have to do to challenge a patent in the Patent Office or the courts, so I don't think it would be any big deal for the usual companies with patents who have deep pockets. If they can't find an easy reason to kill a potential patent, then they can be reasonably sure that someone else won't either, which would make that potential patent more valuable. There's always the risk that they're wrong, but that's just part of business.
I guess the main problem is that this just concentrates patents into the companies with deep pockets. You are right, this probably wouldn't be any more expensive than challenging a patent is now anyway -- but now, you only have to spend that kind of cash challenging patents when a lawsuit arises. With your proposal, you would need to spend that kind of cash any time that you wanted to patent a technology you developed. Right now, you can obtain a patent for $10,000 (or less), but companies will spend a million dollars or more to challenge a patent in a lawsuit -- there is just no parity between those two numbers.
And a number that high to obtain a patent just means that only companies with that kind of money can obtain patents.
We've already a got a massive database like that - the database of patents itself - and it has already been demonstrated numerous times that the availability of such a system does very little to prevent the granting of bad patents.
Well, yes and no. Sure, if you are patenting a new type of gear, or new type of fastener, the current patent database is more than sufficient to check for relevant prior art.
But in very fast-moving technologies, where a lot of technical papers are written, the use of the patent office database can create a "lag" where lnwon technologies are not reflected (yet) in the database at a time an application is moving through the process, which can result in patents being issued on "obvious" improvements, which is one of the biggest gripes around here. Having a database which is more current and "cutting edge" might reduce that problem.
Especially if we move to a first-to-file system instead of the current first-to-invent system.
This issue is particularly relevant with respect to software patents. Part of the reason (a big part) that a lot of "obvious" ideas in the software field were patented (and are being patented) is because software patents are a relatively recent idea, and there isn't a huge database of software patents to check for prior art. The patent examiners would use their database, find no art, and issue -- even though such an idea was well known in the field. Once the software part of the patent database is fully populated (like it is for other fields, particularly mechanical inventions), then you will see few outlier patents that appear, on their face, "obvious." But until the time comes, we need a better database to pull art from.
Just about _any_ kind of business investment has risk associated with it, but businesspeople keep on investing anyway. I think you might be overestimating the risk involved with valuing a patent, and underestimating the amount the effort that some people will put forth to have a chance at getting a good business opportunity.
I agree -- but not all risk is equally risky, or equally expensive.
You are right, for "commodity" patents, it's really not a big deal to value them. But for a true "pioneer" patent, and for a lot of drug patents, it can be very difficult to value them. For a pioneer patent, you may not know when, or even if, a market will develop for the technology. For drug patents, like a alluded to earlier, just getting the drug created and patented is just one hurdle -- you still have to go through years of clinical trials to get a drug approved, and the approval (or even efficacy) of a drug is never guaranteed.
Does that mean nobody invests in these things? No, of course not. But spending a
Given enough participants with enough information, auctions are pretty good at assigning financial values.
I don't disagree. The problem is, the market for each particular patent is probably pretty narrow, so it's not clear to me, at least, that any particular patent will have enough interested parties willing to do enough due dilligence to make such an effort worthwhile.
That's all part of the due diligence that each bidder has to apply to choosing their bid amounts. Somebody who wants ownership of the patent has to be darn sure that they'll get their money's worth after the auction is over & they've got ownership of the patent. Figuring out the narrowness of a claim, or whether a patent will be overturned due to prior art or obviousness is part of that valuation process - and with the auction, you get that due diligence performed without having to depend on overworked patent examiners.
How? Prior art is only one facet of patentability -- there's also the whole disclosure issue, whether the "best mode" is disclosed, whether the claims are fully enabled by the specification, etc. Obviousness of a patent, or whether or not it is anticipated, is only part of the question -- and it just doesn't seem likely that the marketplace is really in the position to do that level of due diligence.
Further, determine whether or not a particular claim has prior art requires not just finding art, but construing the claim language to get the proper scope of the claim -- only then is the prior art really relevant. Maybe I am naive, but I just can't see a lot of people really getting into this enough to make it worthwhile.
Probably a better way to keep "obvious" inventions from being patented would be to start building a database of prior art that is readily searchable, and has a way to access (either directly, or at least tells you a location to look) the original documents. Or original knowledge, even. Combine that with the soon-to-be-in-some-form (assuming the patent reform act passes) public review period, and that should solve the worst of the abuses in the system.
I just can't see enough people willing to spend enough time and energy to do the due dilligence to make the auction system work. It's a clever idea, but I just don't think it usually possible to know with any level of confidence what the scope, or value, of any particular patent might be -- and this would be a real problem for drub patents and a lot of biotech patents, which rely on clinical trials and FDA approval before you can make a dime on a patent -- I'm not sure any amount of due diligence can determine with ANY level of confidence the value of a drug or biotech patent before the clinical trials are underway.
This is a better explaination than mine:
r eshold=0&commentsort=0&mode=thread&pid=19184649#19 185733
http://yro.slashdot.org/comments.pl?sid=235267&th
Proving fraud on the patent office to the point where you can get a patent declared unenforceable requires a showing of "clear and convincing" evidence, which is a higher standard than preponderance of the evidence, but a lower standard than "beyond a reasonable doubt."
Also, to show "inequitable conduct," you have to show two things. First, that the art is both "material to patentability" and "not cumulative." In other words, if the "prior art" in this case is either less pertinent than the art that was cited, or is merely cumulative (think "me too!"), then the art is not material prior art for the purposes of inequitable conduct.
Second, it's not enough to show that they knew about the art -- you have to prove that they deliberately failed to disclose the art with the intent to deceive the patent office. Now, this doesn't have to be an admission from the witness -- you can prove this through circumstantial evidence -- but if the patent applicant can prove that the resonably believed that they didn't need to disclose the art -- because they had a good faith and reasonable belief that the art was not material, or merely cumulative -- then that can defeat any claims of inequitable conduct.