Walker added: "The burden of proof is not for the people who defend property rights, but those who want to take them away."
Another problem here is that Walker sees patent rights as property rights at all.
The authors of the constitution saw physical property as a natural right. A natural right is one that is inherent in people; it is not granted by the government. It may be enforced (or infringed) by the goverment, but it does not come from the government. (Disclaimer: certainly, not everyone agrees with this theory of rights. I'm just saying what the founders believed.) A natural right is not a means to some larger end--although it may have other benefits to society, that is incidental--a natural right is an end unto itself.
There are two clues in the Constitution that the founders did not see patent rights as natural rights, but rather artifical rights granted by the government. 1) The Constitution states that patents (and copyrights) are to secure the progress of science and the useful arts. A means to an end, not an end unto itself. If the patent law does not advance that end, it should be modified so that it does. 2) The Constitution states that patents (and copyrights) are to be issued for a limited term. If patent rights were natural rights, government would have no moral authority to revoke them after a specified period of time.
Thus, one must be careful to make the distinction (at least as it existed in the founders' minds) between natural rights (such as physical property) and government-granted rights (such as patents). What applies to one does not necessarily apply to the other.
Thanks for the comments on the legal definition of obviousness, Werdna.
To add another example: consider PCR, (polymerase chain reaction). It is quite commonly used in molecular biology. Although it is best known among the general public for its use in forensics, its applications are much much wider; nearly every molecular biology lab uses PCR. It is an efficient (in a matter of a few hours) procedure for making a large amount of a specific DNA sequence from a small sample.
Thought experiment: suppose you had a bachelor's degree in biochemistry or molecular biology, but somehow had never heard about PCR. If someone described the procedure for PCR to you, you would say, "Oh, of course that would work." It's so elegant and simple that it's pretty obvious that it would work--after it's been described to you.
However, suppose you were a Ph.D. in molecular biology, but again had somehow never heard of PCR. If someone asked you to come up with an efficient method of producing a large amount of DNA from a small sample, you likely would not come up with PCR.
On this very argument, a patent on PCR was upheld against a claim of obviousness.
I won't try to apply this to the one-click patent or other specific patents that have been discussed on/., because computers are not my field of specialty. But it does illustrate the point of what is considered "obvious."
If you won't accept the word of someone who claims to be a patent attorney on their website, why would you accept the word of someone who claims to be a patent attorney on/.?
I'd much rather see good patents rejected arbitrarily. The worst thing that happens in that case is that the idea isn't exploited by the originators. But unless the idea itself is so non-obvious that nobody else could come up with it, someone else will think of it and exploit it.
No, the worst thing that happens is that the inventor, knowing that patent protection is sketchy, decides to keep it as a trade secret rather than patenting it. Then it's never revealed to the public, whereas with a patent, it is, and passes into the public domain in 20 years.
A patent may not be used to prevent the patented idea from being implemented. That is, the patentholder must license the patent.
Interestingly, many countries already have this. In legal circles, it's called "mandatory licensing."
A patent should not be granted unless the idea in the patent can be concretely demonstrated by the patent applicant. If that means transporting the patent examiner to the patent applicant's site, so be it.
This concept still exists in principle in US patent law, but in practice is never required.
A patent lawyer should not be necessary for the submission of a patent to take place:
It's not. Many people submit applications without an attorney. Here's a book about doing exactly that. (Before you flame me, it's a link to Amazon for information. I'm not suggesting you buy it from Amazon.)
Arthur C. Clark applied to the U.S. Patent Office for a patent on geostationary orbit. The patent office rejected the application on the basis of infeasibility(or was it impracticality?).
I have to admit I'm a bit skeptical on this one. Can you provide a source?
The reason I'm skeptical is that it generally is not the purview of the patent office to determine whether/how well an invention will work. This is why there's lots of patents on perpetual motion machines. (You can't get a patent on perpetual motion machines any more, but only because there is now a specific exception against granting patents on perpetual motion machines. The general principle still holds.)
Require the head of the US Patent Office to personally review and critique any patent application before it is granted. Disallow any and all deligation of this task.
And where do you propose we find someone who is an expert in computer software, and electronics, and electrical systems, and mechanics, and biotech, and chemistry, and materials science, etc., etc.?
You're right that currently, U.S. patent applications aren't published. But...
The sad thing is that the US thinks this is such a Good Idea(tm) that it's trying to force this absurd concept on the rest of the world.
On the contrary, the U.S. is set to begin publishing patent applications next year. They're not "trying to force this absurd concept on the rest of the world."
There is an exception that if the inventor signs a disclaimer that he's going to file for a patent only in the U.S., he can prevent publication of the application. But if he later changes his mind and files in a foreign country, the application will then be published.
If so, then 2.5E8 Americans could each individually develop the same solution, use it only in the privacy of their own homes, then get sued when the last guy patents it...
This was true until a recent change in the U.S. patent law. (How about that, government does something right for a change.) With the change, well, they can still get sued (anyone can sue anyone for anything) but the patent holder won't win.
However, that applies only to people who came up with it before the patent. If two people independently come up with the same invention, and the latter inventor patents it, then the first inventor can keep doing it, but the patent holder can still stop anyone else from doing it.
But, sadly, if you don't vote for him, it's as good as voting for Bush. There will be several opportunities for the next president to appoint Supreme Court justices.
For decades, the Republicrats have been trying to scare the voters into not voting for third parties with this "wasted vote" argument. Look where it's gotten us. Allegedly liberal Democrats have no interest in preserving the First Amendment. Allegedly conservative Republicans no longer bother even pretending to want to reduce the size of government.
The American people aren't buying this "wasted vote" argument, and the Demopublicans know it, and it scares them. They're trying to revive this tired old argument with the variant "OK, we have no differences on 99% of the issues, but a vote for a third party is still a wasted voted because the winner will get to appoint Supreme Court Justices!"
Poppycock. None of the justices are so infirm that they'll have to retire in the next four years. And no justice wants to be replaced by someone ideologically opposed to them. So if Gore wins, a few liberal justices may resign, but none of the conservatives will. Vice versa if Bush wins. The overall ideological makeup of the court will not change as a result of this election.
Remember, voting for the lesser of two evils is still voting for evil.
You don't have a right to return a book you've purchased for a refund at all. Most bookstores/publishers will let you do this, as a service. But it's not a right.
Now, I'm not defending OnWord press. I think it's a very customer-unfriendly and stupid thing to do. If it's an issue (and it would be for me), by all means don't buy it. Check out return policies before you buy anything.
Example: I was recently having problems with my computer, and I thought--but I wasn't sure--it was the video card. The computer was no longer under warranty, and I decided to try to fix it myself. Now, I'm nowhere near as computer-saavy as most/.ers, and I had never so much as opened a computer before. Since I wasn't sure the problem was the video card, you can be sure I checked out the store's return policy before buying a card.
Good thing I did, too: Even though it turns out the problem was with the video card, I couldn't get the driver to install on the first card I bought. I went and bought a different brand of video card, which I got installed just fine, and returned the first one.
Well, first of all, a comment on the term "prior art." Anything related to an invention that came before it is prior art. It doesn't necessarily mean the patent is invalid. Simple example: if you have invented the push-button telephone, the rotary-dial telephone is prior art, but that does not invalidate your patent on the push-button telephone.
If what is claimed in the patent has been invented previously, then this is what is known to patent attorneys as "novelty-destroying prior art," i.e., something that shows the invention was not novel, one of the requirements for a valid patent. What most/.ers mean when they say "prior art" is actually "novelty-destroying prior art."
I've long since given up trying to get/.ers to use this terminology correctly, but I will still do so.
So Bush's 1940s paper is certainly "prior art" in the legal sense I mention above. The real question, then is whether it is novelty-destroying prior art.
The first claim of the patent reads:
1. A digital information storage, retrieval and display system comprising:
a central computer means in which plural blocks of information are stored at respectively corresponding locations, each of which locations is designated by a predetermined address therein by means of which a block can be selected, each of said blocks comprising a first portion containing information for display and a second portion containing information not for display but including the complete address for each of plural other blocks of information;
plural remote terminal means, each including
(a) modem means for effecting input/output digital data communication with said central computer means via the telephone lines of a telephone network, (b) local memory for locally storing digital data representing at least the first portion of the selected block of information received via said modem means from the central computer, (c) display means for visually displaying such a locally stored first portion of a block of information and (d) key pad means connected to communicate data to at least said modem means for manual entry of keyed digital data; and
further memory means being provided as a part of said central computer means for receiving and storing said second portion of the block of information selected by a particular terminal means in response to the selection of the block and when its respective first portion is transmitted to that terminal means for display, said central computer means utilizing keyed digital data from that particular terminal means of less extent than any one of said complete addresses for another block of information but nevertheless uniquely indicative of one of the complete addresses contained in said portion of the block of information which contains the first portion then being displayed by that particular terminal means for selectively accessing the part of said further memory means associated with that particular terminal means and for supplying the complete address of the next block of information which is to be retrieved for that particular terminal means and utilized for display purposes at that terminal means.
In order to be novelty-destroying prior art, Bush's paper has to describe an invention with all of the elements listed above. A general description of the concepts of hyperlinking isn't enough--it has to describe something which exactly matches what's described above.
Now, for a full analysis, you have to look at each of the seven claims in the patent. In determining the validity of a patent, each claim stands or falls on its own--think of each claim as a mini-patent in its own right. While we speak of invalidating a patent--which does happen in toto on occasion--it's more common in patent challenges for some claims in a patent to be struck down while others are upheld. But for any claim to be invalidated on the basis of lack of novelty, you must have a description of an invention which has all the elements described in that particular claim.
No, this is just the problem. A few years ago Congress changed the way the patent office is funded. Instead of being granted a certain amount based on how many applications are reviewed, the system was supposed to become self-funding. But since more money is taken in from accepted patents, patent examiners were trained to view applicants as "customers" and operated under the idea that their job was to help their customers get patents.
But these are two orthogonal issues. It would be easy to return to a system whereby patent fees were the same whether your application was granted or rejected, and still privatize the USPTO. You make the point yourself: having a system where people pay more for granted applications than for rejected ones causes problems regardless of whether the office is quasi-privatized or not. And the rhetoric that the USPTO is currently supposed to be self-funding is no more than political hot air, since Congress regularly takes money from patent fees away from USPTO.
What would be better is automatic rejection of the patent if the examiner doesn't have time to examine it properly. So the default should be rejection, not acceptance. A patent grants a monopoly. It should be difficult to get.
I agree with the last part of your statement above. However, it is grossly unfair to the applicant--especially after paying thousands of dollars in patent application fees and attorney fees--to reject it simply because the patent examiner doesn't have time to examine the patent.
If you're going to have a patent system at all, it needs to be done properly. Arbitrarily rejecting potentially good patents is just as bad as arbitrarily granting bad ones.
The problem (as i see it) now with the patent office is that the examiners have a financial imperative to approve as many patents as they can. Remove that imperative, you remove the desire to approve every patent flying across their desk, which appears to be part of the problem now.
But you still have the problem that they don't have adequate time and resources to examine the applications. Would arbitrarily accepting some applications and rejecting others be any better than the current system?
Actually the best they hope for is that all patents are upheld going both ways. If this happens, then they can just exchange, and they have the results of previous court cases to cite in suits brought against others.
Nope, they wouldn't do that, because they risk a terrible loss if one company's patents are upheld and the other's are not.
I'd bet dollars to donuts that they'll settle out of court with a cross-licensing agreement. (Contrary to the ignorance of many/.ers, licensing agreements do not strengthen a patent's validity.)
Are these tactics becoming standard practice in business ethics? This is funny and pathetic at the same time: "They sued us for WHAT?!?! Well, then, you file lawsuits against them over infringing patents X, Y, and Z!!!"
Yes, exactly. Then they come to an out-of-court settlement where they cross-license the patents to each other, which is much cheaper than pursuing the lawsuit.
If you were working for Adobe or Macromedia, would you do anything differently?
Slashdot Mirror
Another problem here is that Walker sees patent rights as property rights at all.
The authors of the constitution saw physical property as a natural right. A natural right is one that is inherent in people; it is not granted by the government. It may be enforced (or infringed) by the goverment, but it does not come from the government. (Disclaimer: certainly, not everyone agrees with this theory of rights. I'm just saying what the founders believed.) A natural right is not a means to some larger end--although it may have other benefits to society, that is incidental--a natural right is an end unto itself.
There are two clues in the Constitution that the founders did not see patent rights as natural rights, but rather artifical rights granted by the government. 1) The Constitution states that patents (and copyrights) are to secure the progress of science and the useful arts. A means to an end, not an end unto itself. If the patent law does not advance that end, it should be modified so that it does. 2) The Constitution states that patents (and copyrights) are to be issued for a limited term. If patent rights were natural rights, government would have no moral authority to revoke them after a specified period of time.
Thus, one must be careful to make the distinction (at least as it existed in the founders' minds) between natural rights (such as physical property) and government-granted rights (such as patents). What applies to one does not necessarily apply to the other.
To add another example: consider PCR, (polymerase chain reaction). It is quite commonly used in molecular biology. Although it is best known among the general public for its use in forensics, its applications are much much wider; nearly every molecular biology lab uses PCR. It is an efficient (in a matter of a few hours) procedure for making a large amount of a specific DNA sequence from a small sample.
Thought experiment: suppose you had a bachelor's degree in biochemistry or molecular biology, but somehow had never heard about PCR. If someone described the procedure for PCR to you, you would say, "Oh, of course that would work." It's so elegant and simple that it's pretty obvious that it would work--after it's been described to you.
However, suppose you were a Ph.D. in molecular biology, but again had somehow never heard of PCR. If someone asked you to come up with an efficient method of producing a large amount of DNA from a small sample, you likely would not come up with PCR.
On this very argument, a patent on PCR was upheld against a claim of obviousness.
I won't try to apply this to the one-click patent or other specific patents that have been discussed on /., because computers are not my field of specialty. But it does illustrate the point of what is considered "obvious."
I suggest you educate yourself a bit more before spreading misinformation like this. The Libertarian Party supports an end to corporate welfare.
"Following publication, submission of a limited number of printed patents or publications [as prior art] is proposed for a two-month period."
Implementing the American Inventor's Protection Act of 1999 (Page 6, third paragraph)
If you won't accept the word of someone who claims to be a patent attorney on their website, why would you accept the word of someone who claims to be a patent attorney on /.?
Yes, and I'm sure every other fscking country in the world that has patents (which is about 90% of them) does it just as a publicity gimmick.
No, the worst thing that happens is that the inventor, knowing that patent protection is sketchy, decides to keep it as a trade secret rather than patenting it. Then it's never revealed to the public, whereas with a patent, it is, and passes into the public domain in 20 years.
Interestingly, many countries already have this. In legal circles, it's called "mandatory licensing."
A patent should not be granted unless the idea in the patent can be concretely demonstrated by the patent applicant. If that means transporting the patent examiner to the patent applicant's site, so be it.
This concept still exists in principle in US patent law, but in practice is never required.
A patent lawyer should not be necessary for the submission of a patent to take place:
It's not. Many people submit applications without an attorney. Here's a book about doing exactly that. (Before you flame me, it's a link to Amazon for information. I'm not suggesting you buy it from Amazon.)
I have to admit I'm a bit skeptical on this one. Can you provide a source?
The reason I'm skeptical is that it generally is not the purview of the patent office to determine whether/how well an invention will work. This is why there's lots of patents on perpetual motion machines. (You can't get a patent on perpetual motion machines any more, but only because there is now a specific exception against granting patents on perpetual motion machines. The general principle still holds.)
Already done. USPTO will publish applications starting next year.
Not currently for US applications. This is set to change next year, however.
And where do you propose we find someone who is an expert in computer software, and electronics, and electrical systems, and mechanics, and biotech, and chemistry, and materials science, etc., etc.?
Currently, U.S. patent applications are not published (unlike the rest of the world). This is set to change next year.
Starting next year, the USPTO will publish applications. As the rest of the world already does.
The sad thing is that the US thinks this is such a Good Idea(tm) that it's trying to force this absurd concept on the rest of the world.
On the contrary, the U.S. is set to begin publishing patent applications next year. They're not "trying to force this absurd concept on the rest of the world."
There is an exception that if the inventor signs a disclaimer that he's going to file for a patent only in the U.S., he can prevent publication of the application. But if he later changes his mind and files in a foreign country, the application will then be published.
Sheesh, where the fsck did you get that idea? It's just plain wrong. And what idiot moderators modded this up as informative?
Don't take my word for it; look it up here.
Does it have to be?
Yes, as a matter of fact it does.
If so, then 2.5E8 Americans could each individually develop the same solution, use it only in the privacy of their own homes, then get sued when the last guy patents it...
This was true until a recent change in the U.S. patent law. (How about that, government does something right for a change.) With the change, well, they can still get sued (anyone can sue anyone for anything) but the patent holder won't win.
However, that applies only to people who came up with it before the patent. If two people independently come up with the same invention, and the latter inventor patents it, then the first inventor can keep doing it, but the patent holder can still stop anyone else from doing it.
For decades, the Republicrats have been trying to scare the voters into not voting for third parties with this "wasted vote" argument. Look where it's gotten us. Allegedly liberal Democrats have no interest in preserving the First Amendment. Allegedly conservative Republicans no longer bother even pretending to want to reduce the size of government.
The American people aren't buying this "wasted vote" argument, and the Demopublicans know it, and it scares them. They're trying to revive this tired old argument with the variant "OK, we have no differences on 99% of the issues, but a vote for a third party is still a wasted voted because the winner will get to appoint Supreme Court Justices!"
Poppycock. None of the justices are so infirm that they'll have to retire in the next four years. And no justice wants to be replaced by someone ideologically opposed to them. So if Gore wins, a few liberal justices may resign, but none of the conservatives will. Vice versa if Bush wins. The overall ideological makeup of the court will not change as a result of this election.
Remember, voting for the lesser of two evils is still voting for evil.
Now, I'm not defending OnWord press. I think it's a very customer-unfriendly and stupid thing to do. If it's an issue (and it would be for me), by all means don't buy it. Check out return policies before you buy anything.
Example: I was recently having problems with my computer, and I thought--but I wasn't sure--it was the video card. The computer was no longer under warranty, and I decided to try to fix it myself. Now, I'm nowhere near as computer-saavy as most /.ers, and I had never so much as opened a computer before. Since I wasn't sure the problem was the video card, you can be sure I checked out the store's return policy before buying a card.
Good thing I did, too: Even though it turns out the problem was with the video card, I couldn't get the driver to install on the first card I bought. I went and bought a different brand of video card, which I got installed just fine, and returned the first one.
If what is claimed in the patent has been invented previously, then this is what is known to patent attorneys as "novelty-destroying prior art," i.e., something that shows the invention was not novel, one of the requirements for a valid patent. What most /.ers mean when they say "prior art" is actually "novelty-destroying prior art."
I've long since given up trying to get /.ers to use this terminology correctly, but I will still do so.
So Bush's 1940s paper is certainly "prior art" in the legal sense I mention above. The real question, then is whether it is novelty-destroying prior art.
The first claim of the patent reads:
In order to be novelty-destroying prior art, Bush's paper has to describe an invention with all of the elements listed above. A general description of the concepts of hyperlinking isn't enough--it has to describe something which exactly matches what's described above.
Now, for a full analysis, you have to look at each of the seven claims in the patent. In determining the validity of a patent, each claim stands or falls on its own--think of each claim as a mini-patent in its own right. While we speak of invalidating a patent--which does happen in toto on occasion--it's more common in patent challenges for some claims in a patent to be struck down while others are upheld. But for any claim to be invalidated on the basis of lack of novelty, you must have a description of an invention which has all the elements described in that particular claim.
But these are two orthogonal issues. It would be easy to return to a system whereby patent fees were the same whether your application was granted or rejected, and still privatize the USPTO. You make the point yourself: having a system where people pay more for granted applications than for rejected ones causes problems regardless of whether the office is quasi-privatized or not. And the rhetoric that the USPTO is currently supposed to be self-funding is no more than political hot air, since Congress regularly takes money from patent fees away from USPTO.
I agree with the last part of your statement above. However, it is grossly unfair to the applicant--especially after paying thousands of dollars in patent application fees and attorney fees--to reject it simply because the patent examiner doesn't have time to examine the patent.
If you're going to have a patent system at all, it needs to be done properly. Arbitrarily rejecting potentially good patents is just as bad as arbitrarily granting bad ones.
But you still have the problem that they don't have adequate time and resources to examine the applications. Would arbitrarily accepting some applications and rejecting others be any better than the current system?
Nope, they wouldn't do that, because they risk a terrible loss if one company's patents are upheld and the other's are not.
I'd bet dollars to donuts that they'll settle out of court with a cross-licensing agreement. (Contrary to the ignorance of many /.ers, licensing agreements do not strengthen a patent's validity.)
Yes, exactly. Then they come to an out-of-court settlement where they cross-license the patents to each other, which is much cheaper than pursuing the lawsuit.
If you were working for Adobe or Macromedia, would you do anything differently?