Which gives you...absolutely no rights whatsoever. Nothing. In fact, keeping a patentable invention a secret leaves you vulnerable to someone else who subsequently patents the invention. If you want to make something prior art, you have to publish it. This puts it in the public domain, and prevents others from patenting it. Actually, it gives you one year to patent it yourself, otherwise you lose that right also.
Actually, it's trademarks that work that way. You can sit on a patent or copyright all the live long day. You don't have to practice it, you are allowed to suppress it.
OK, you named several categories that supposedly would help your position to do away with software patents:
1. Triviality of some patents
Fix the process, don't get rid of it.
2. Patents as anti-competitive instrument
Well known as one of the purposes of patent law in general. This will not help you.
3. Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
Law firms take patent infringement suits on a contingent fee basis all the time, and win.
4. Costs of patent searches, and their impact on the creative flow of software development
That's a price of doing business. And they're not that expensive anyway.
5. Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
Smaller players have just as much access to the patent system as the big boys.
6. Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
If true, symptomatic of a flaw in executing the system, not a flaw in the system itself.
7. Clear evidence and examples of patent law being abused and having a net anti-innovation effect
Again, if it truly is abuse, the abuse should be stopped; sacking the system isn't the solution. A certain saying involving babies and bathwater comes to mind.
8. Anything else you have bookmarked, or can google upon, which can help build the most solid case.
I have a feeling that if you do come up with something to help your cause, this is where you'll find it, because 1-7 are irrelevant.
No. they probably knew of the patent, decided, as you did, that it most likely was only vaguely claiming technology that they were using, and made a business decision to move forward. These companies did not get where they are today by disregarding the existence of patents belonging to other companies. Soemtimes they're right, sometimes they're wrong (see Polaroid v. Kodak).
Yes. The goal of due diligence is to avoid exposure to litigation. I'm not saying that all patents are valid, or that all infringement suits have merit. I'm saying that it's foolish business practice to put yourself in harm's way without assessing the likelihood of litigation ahead of time. Steps taken early on save money later. I'm not playing devil's advocate (and I'm not trolling, although I've been modded down in this thread, supposedly for doing so). I'm not saying that the patent is valid, or that BT, Amazon, etc. are in the right in previous frivolous lawsuits. I'm merely saying that anyone in business today has to know what the environment is, and has to proceed cautiously. They can't claim that they were caught unaware of the potential liability of moving forward blindly, particularly when the tools to assess their risk are so easily and cheaply available to everyone.
That's the price of doing business. Search firms at the patent office can do a pretty thorough search for $500-$1000. Any tech company that doesn't have IP counsel to evaluate search result and keep them out of trouble is foolish. The cost of knowing what you're getting into ahead of time is minimal compared to the cost of getting yourself out of trouble later. As far as wilfully infringing is concerned, better to avoid infringing in the first place. You can't design around a blocking patent unless you have it in front of you.
No, but you should have to check prior patents if you ever develop anything with any industrial utility and you plan to market it. Spending money on development and marketing, and exposing yourself to liability, without determining your exposure up front is foolhardy. It's called due diligence. It's your burden, and it's a good idea.
This is a good idea, but it's not the law (at least not in the US). Patent owners can selectively enforce their rights and freely choose when to do so. The same goes for copyrights, BTW. It's trademark rights that must be enforced (and used) to avoid losing the exclusive right.
Why should a company have to publicly announce the existence of their patents? Patent data is public information, available free of charge. Any company that develops and markets any technology without first doing due diligence to determine if they're infringing an issued patent is acting recklessly and deserves what they get.
The patent statute gives a patent owner the right to exclude others from making, using, or selling the patented invention. Therefore, infringement does not depend on commercial activity, and you are infringing even if you make it for private use, or make it and give it away.
Restraint of trade!? A patent is a legal form of restraint of trade, provided by and backed by the government. If you sue them for restraint of trade, all they have to say in their defense is "Yup." And you'd lose.
It's called re-examination. The filing fee is $2520.00, and there's work involved, including providing the prior art that you want to use to prove that the patent is invalid. The PTO will not do this for you.
You can't just write to the PTO and hope that they invalidate a patent. You have to request a re-examination proceeding (filing fee = $2520.00), based on prior art that was not already considered by the patent examiner. You also have to provide the initial argument as to why the prior art that you are providing invalidates the patent claims.
Re:Stealing other countrys ideas
on
Patent Nonsense
·
· Score: 1
Countries have signed bi-lateral and multi-lateral treaties to harmonize laws for filing patent applications. The U.S. and Japan are both parties to the largest treaty, the Patent Cooperation Treaty, which is administered by WIPO and has over 100 signatory nations and regions. However, this is not a pact to enorce each other's patents. The U.S., for example, will not enforce a Japanese patent, which is why so many Japanese companies file U.S. patent applications and obtain U. S. patent rights for their inventions. BTW, PRC and ROC are both signatories, as are Korea, Indonesia, and other Eastern countries.
Re:Stealing other countrys ideas
on
Patent Nonsense
·
· Score: 1
WIPO has no say in how U.S. patents are enforced. WIPO is a harminizing body that makes it easier for patent applicants to apply for patent rights in member countries and regions.
Re:Stealing other countrys ideas
on
Patent Nonsense
·
· Score: 1
If you mean getting a U.S. patent on an idea that is known in Japan, yes. U.S. patent law, specifically 35 USC section 102, will deny you a patent for an invention if it was described by someone else in a printed publication (such as a patent or a published patent application) in a foreign country before you "invented" it. In other words, the fact that it is known in the other country makes it prior art against you.
Exactly. This guy has a store, and he's running a business. Legal expenses are part of the cost of doing business. I'm a lawyer; that's my business, and I should get paid for my time. While I agree that I should devote some of my time to pro bono matters (everyone is entitled to legal help, some people can't afford it, I make a good living and should give something back, blah blah), businessmen are not the usual or intended recipients of pro bono legal advice. Does he get pro bono accounting work also? How about sales clerks, do they work for free? Cripes, if you want business favors, do what everyone else does and suck up to your local Republican politicians.
In the past, I've offered to work toward inavlidating bogus patents, for free, if provided with the prior art that the poster was going on about. So far, no takers. In the context of this thread, I'd be willing to at least do a first consultation, for free, regarding a problem like this. I won't spout legal advice in this forum, however, so whoever wants this advice will have to contact me directly.
You've got a more basic problem if you ever give code to someone for evaluation without getting him/her to sign an agreement 1) acknowledging your ownership of the IP in the beta version provided and 2) agreeing to assign all IP rights in any fixes provided to you.
Also, the "you might want to try this" answer might be enough. If that solution can be conveyed in block diagram form that is detailed enough for an average programmer to reduce to code that works, the PTO considers this to be a "software invention". Coding is not required to patent a software invention.
It depends what kind of IP you're talking about. As we all know, you don't have to have a coded implementation of a software concept in order to get a patent on it. As long as you can describe it to the level of detail required by a coder of ordinary skill to pick it up and make it real, you've "enabled" the invention in the eyes of the PTO. Any actual code conforming to your software spec is considered to be merely an embodiment of your invention, and not the invention itself. Coders do not win the pissing contest at the PTO.
It's true that you don't own the patentable invention unless you file it at the PTO, but the company to whom you provided the fix can't (legally) claim it in a patent, because you're the inventor in the eyes of the PTO. Of course, if you agreed to assign your rights to any IP before doing the beta test, that's a whole nother story.
Slashdot Mirror
You don't get trademark protection on creation of the mark, you get it when you first use it in commerce.
Which gives you...absolutely no rights whatsoever. Nothing. In fact, keeping a patentable invention a secret leaves you vulnerable to someone else who subsequently patents the invention. If you want to make something prior art, you have to publish it. This puts it in the public domain, and prevents others from patenting it. Actually, it gives you one year to patent it yourself, otherwise you lose that right also.
Actually, it's trademarks that work that way. You can sit on a patent or copyright all the live long day. You don't have to practice it, you are allowed to suppress it.
OK, you named several categories that supposedly would help your position to do away with software patents:
1. Triviality of some patents
Fix the process, don't get rid of it.
2. Patents as anti-competitive instrument
Well known as one of the purposes of patent law in general. This will not help you.
3. Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
Law firms take patent infringement suits on a contingent fee basis all the time, and win.
4. Costs of patent searches, and their impact on the creative flow of software development
That's a price of doing business. And they're not that expensive anyway.
5. Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
Smaller players have just as much access to the patent system as the big boys.
6. Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
If true, symptomatic of a flaw in executing the system, not a flaw in the system itself.
7. Clear evidence and examples of patent law being abused and having a net anti-innovation effect
Again, if it truly is abuse, the abuse should be stopped; sacking the system isn't the solution. A certain saying involving babies and bathwater comes to mind.
8. Anything else you have bookmarked, or can google upon, which can help build the most solid case.
I have a feeling that if you do come up with something to help your cause, this is where you'll find it, because 1-7 are irrelevant.
That's nice, but a EULA is not "the law", it's an agreement between parties.
No. they probably knew of the patent, decided, as you did, that it most likely was only vaguely claiming technology that they were using, and made a business decision to move forward. These companies did not get where they are today by disregarding the existence of patents belonging to other companies. Soemtimes they're right, sometimes they're wrong (see Polaroid v. Kodak).
Yes. The goal of due diligence is to avoid exposure to litigation. I'm not saying that all patents are valid, or that all infringement suits have merit. I'm saying that it's foolish business practice to put yourself in harm's way without assessing the likelihood of litigation ahead of time. Steps taken early on save money later. I'm not playing devil's advocate (and I'm not trolling, although I've been modded down in this thread, supposedly for doing so). I'm not saying that the patent is valid, or that BT, Amazon, etc. are in the right in previous frivolous lawsuits. I'm merely saying that anyone in business today has to know what the environment is, and has to proceed cautiously. They can't claim that they were caught unaware of the potential liability of moving forward blindly, particularly when the tools to assess their risk are so easily and cheaply available to everyone.
That's the price of doing business. Search firms at the patent office can do a pretty thorough search for $500-$1000. Any tech company that doesn't have IP counsel to evaluate search result and keep them out of trouble is foolish. The cost of knowing what you're getting into ahead of time is minimal compared to the cost of getting yourself out of trouble later. As far as wilfully infringing is concerned, better to avoid infringing in the first place. You can't design around a blocking patent unless you have it in front of you.
No, but you should have to check prior patents if you ever develop anything with any industrial utility and you plan to market it. Spending money on development and marketing, and exposing yourself to liability, without determining your exposure up front is foolhardy. It's called due diligence. It's your burden, and it's a good idea.
This is a good idea, but it's not the law (at least not in the US). Patent owners can selectively enforce their rights and freely choose when to do so. The same goes for copyrights, BTW. It's trademark rights that must be enforced (and used) to avoid losing the exclusive right.
Wrong, it issued before patent terms were change to be measured from the filing date. The term is 17 years from the issue date.
Why should a company have to publicly announce the existence of their patents? Patent data is public information, available free of charge. Any company that develops and markets any technology without first doing due diligence to determine if they're infringing an issued patent is acting recklessly and deserves what they get.
The patent statute gives a patent owner the right to exclude others from making, using, or selling the patented invention. Therefore, infringement does not depend on commercial activity, and you are infringing even if you make it for private use, or make it and give it away.
Restraint of trade!? A patent is a legal form of restraint of trade, provided by and backed by the government. If you sue them for restraint of trade, all they have to say in their defense is "Yup." And you'd lose.
It's called re-examination. The filing fee is $2520.00, and there's work involved, including providing the prior art that you want to use to prove that the patent is invalid. The PTO will not do this for you.
You can't just write to the PTO and hope that they invalidate a patent. You have to request a re-examination proceeding (filing fee = $2520.00), based on prior art that was not already considered by the patent examiner. You also have to provide the initial argument as to why the prior art that you are providing invalidates the patent claims.
Countries have signed bi-lateral and multi-lateral treaties to harmonize laws for filing patent applications. The U.S. and Japan are both parties to the largest treaty, the Patent Cooperation Treaty, which is administered by WIPO and has over 100 signatory nations and regions. However, this is not a pact to enorce each other's patents. The U.S., for example, will not enforce a Japanese patent, which is why so many Japanese companies file U.S. patent applications and obtain U. S. patent rights for their inventions. BTW, PRC and ROC are both signatories, as are Korea, Indonesia, and other Eastern countries.
WIPO has no say in how U.S. patents are enforced. WIPO is a harminizing body that makes it easier for patent applicants to apply for patent rights in member countries and regions.
If you mean getting a U.S. patent on an idea that is known in Japan, yes. U.S. patent law, specifically 35 USC section 102, will deny you a patent for an invention if it was described by someone else in a printed publication (such as a patent or a published patent application) in a foreign country before you "invented" it. In other words, the fact that it is known in the other country makes it prior art against you.
Exactly. This guy has a store, and he's running a business. Legal expenses are part of the cost of doing business. I'm a lawyer; that's my business, and I should get paid for my time. While I agree that I should devote some of my time to pro bono matters (everyone is entitled to legal help, some people can't afford it, I make a good living and should give something back, blah blah), businessmen are not the usual or intended recipients of pro bono legal advice. Does he get pro bono accounting work also? How about sales clerks, do they work for free? Cripes, if you want business favors, do what everyone else does and suck up to your local Republican politicians.
Babeee
In the past, I've offered to work toward inavlidating bogus patents, for free, if provided with the prior art that the poster was going on about. So far, no takers. In the context of this thread, I'd be willing to at least do a first consultation, for free, regarding a problem like this. I won't spout legal advice in this forum, however, so whoever wants this advice will have to contact me directly.
You've got a more basic problem if you ever give code to someone for evaluation without getting him/her to sign an agreement 1) acknowledging your ownership of the IP in the beta version provided and 2) agreeing to assign all IP rights in any fixes provided to you.
Also, the "you might want to try this" answer might be enough. If that solution can be conveyed in block diagram form that is detailed enough for an average programmer to reduce to code that works, the PTO considers this to be a "software invention". Coding is not required to patent a software invention.
...which is why the suggester doesn't "own" any part of the IP of the final product just for pointing out a problem.
It depends what kind of IP you're talking about. As we all know, you don't have to have a coded implementation of a software concept in order to get a patent on it. As long as you can describe it to the level of detail required by a coder of ordinary skill to pick it up and make it real, you've "enabled" the invention in the eyes of the PTO. Any actual code conforming to your software spec is considered to be merely an embodiment of your invention, and not the invention itself. Coders do not win the pissing contest at the PTO.
It's true that you don't own the patentable invention unless you file it at the PTO, but the company to whom you provided the fix can't (legally) claim it in a patent, because you're the inventor in the eyes of the PTO. Of course, if you agreed to assign your rights to any IP before doing the beta test, that's a whole nother story.