I don't think patents are even the right way to do that. To be compensated for his invention, a patent holder must stop inventing and start running a business.
Of course. That's why companies hire some people to create technology, and other people to commercialize technology.
A better way to compensate patent holders may be to allow EVERYONE to use a patent, but they must always pay some percentage of revenue on sales of the invention the patent holder.
"Must?" Who polices the market? The adventures of the (odious) RIAA illustrate the failure of that notion.
Or are consumers asked to police themselves? The failure of that concept is illustrated by the existence of The Pirate Bay.
Ads on IM, email, ftp and p2p? Or will they limit their "service" to web only, in a "insert ads right before content" way?
Interesting comment. Let's consider each:
Email: Many companies already add their spamvertisements to your email. It's only done for sent mail, not received mail (as far as I've seen.)
IM: I think that it would be difficult for a company to "insert" anything via IM. Don't all IM services encrypt their traffic? - Perhaps it's not end-to-end encryption (I'm sure that AOL and MSN want the capability to spy on your conversations), but it's likely encrypted between you and the IM service provider. So the advertiser would have to decrypt and re-encrypt messages in order to insert advertisements - but this would cause an uproar (and undoubtedly would violate the TOS of the IM service provider.) Alternatively, the advertiser could host an IM bot that spams you with ads - but its bots would very quickly get blacklisted.
FTP: I can't imagine how this would occur. First, the FTP user base is dwindling, except for very mundane tasks. Second, very many FTP users use clients that either automate file transfer, present the interface as an Explorer window, etc. Very few people are still reading the text communication portion of FTP, so there's no opportunity for ad insertion.
P2P: Same as FTP - there's little opportunity to insert human-readable text. The only thing that P2P users see is a list of filenames.
Other mechanisms:
MMOGs: Same as with IM - the WiFi ISP could advertise in-game, but would probably have its bots banned; otherwise, it's impossible to tap into the communications stream between the user and the game server.
IRC: Probably impossible, based on the same analysis as for IM: the traffic is likely encrypted, and ad bots who sign on to the user's channels would get banz0red.
Of course, these are merely PUBLISHED patents and are NOT enforceable patents unless they are ALLOWED and ISSUED.
Minor correction: These are published patent applications. Patents have numbers like "6,123,456." Patent applications have numbers like "20060000001."
In fact, given the current length of pendency of software-related patent applications (nifty chart here), it's unlikely that the patent examiner for these patent applications has even read them yet, let alone responded with a rejection. The USPTO is just swamped (in large part, because Congress keeps diverting its funds, such that it can't hire enough patent examiners.)
Creating patents on an idea that doesn't have technical merit is not "good".
"Technical merit" has never been the standard of patentability - not throughout the entire history of the patent system (the U.S.'s or anyone else's.) In fact, recent court decisions have disavowed that ideas even need to be "technical" in order to qualify for patents. Even better, "technical" inventions without a business aspect are rejected: they are merely scientific concepts.
Patents are about novel business concepts - always have been. The goal is to promote public disclosure of novel business concepts: machines that can be sold; compositions that can be made into products; industrial and chemical manufacturing processes. Patents are also enforced in business, and hence are largely irrelevant to non-business environments - e.g., academic research.
The problem with this patent application (and I agree with everyone here, by the way) is not that the invention is not "technical." It's that the invention is not novel, which is a prerequisite to patenting. Hopefully the patent examiner will pick up on this and reject the application accordingly.
"Under the patent, the browser's appearance would be modified to reflect the brand associated with the wireless access-point provider.."
Defensive patenting or not, this kind of crap has really got to stop.
I completely agree - but what makes this odious is not the patenting, but the fact that any business wants to implement this.
My tolerance of pointless branding has been exhausted. I take the logos off of my clothes, and I pour my Starbucks coffee into a plain mug. I tore the Intel and Microsoft Windows stickers off of my notebook the moment I got it. In the digital realm, I replaced the Windows boot screen with something non-corporate; and I've spent hours - hours - researching ways to yank the do-nothing corporate-logo icons out of my system tray.
I think we're living in a post-consumerism era. We're still consumers, but many of us reject the cornerstone of consumerism: we don't attribute value based on the logos plastered all over our stuff. If I buy something, then I can and will tear your corporate advertisements off of it. I am not a billboard for your company.
Modern marketeering long ago crossed the threshold between "reasonable" and "pervasive." It's simply an irritation now - one that I actively struggle to eradicate from my life. If a company wants to get an edge with me over its competitors, then it should offer me its products without logos.
So, to Google's WiFi advertising model, I say - no thanks. I won't let Google "brand" my browser in exchange for free WiFi access. This is 2006 - someone else will sell or give me WiFi access without commandeering my notebook LCD in order to advertise to someone else. Keep your ads off my stuff.
The original intent for granting patents was to encourage people to invent things. This has nothing to do with protection of investments.
Tell that to all of the companies with R&D budgets in excess of $1 million per year.
Invention generally arises from one of two circumstances:
Professional, for-profit research to find a targeted solution to a particular problem, and to create new products and services based on it; and
Hobbyist or academic research that explores the details of a problem or phenomenon, and that yields new knowledge that might be useful in a product or service.
I call the former "innovation" and the latter "research." Patents are intended to promote innovation by offering the capacity for financial reward. Patents do not really pertain to research, and do not affect its operation.
The reason I made the ridiculous example is that one of the major reasons people use to justify software patents is that hardware patents are ok (which I agree with) and that software and hardware are interchangeable so therefore software patents are ok and should be treated the same as hardware under patent law.
I understand and appreciate the purpose of your analogy. We don't usually see such reasoned discussion here at Slashdot, so I appreciate it.
And now, let me destroy it.;)
Your analogy is unworkable because it unsuccessfully tries to differentiate functional hardware from functional software. What it actually does is differentiate functional hardware from the nonfunctional product of that hardware. For many types of inventions that produce something, the invention is patentable but the product is not. (In fact, in your analogy, product isn't even "software" - it's just sound. Software isn't present in any form. So I don't see how your analogy applies to this discussion. In fact, the kind of sound that you suggest - music - is very clearly not patentable, even today.)
Now, getting to the core of your argument:
but code=data and hardware and software implementations of process don't do things in the same way...
But any logical process that can be implemented as a circuit can also be implemented as a software algorithm. This is a well-established theory of computer science, deriving in part from Turing. It's also evident in the incredible degree of success achieved by the emulation community - virtually every computer-related machine on the planet has been modeled wholly in software. (I recommend checking out a "Foundations of Computing" text that describes what kinds of problems can be solved by different classes of machines - it's really interesting stuff, although quite abstract and not very practically useful.)
Consider this: When you patent a circuit, what is the exact thing for which you are getting a patent? Most such patents claim the invention in two basic ways: first as a novel arrangement of components, and second as the stepwise, abstract process that the circuit performs. For the latter claim type, the patent does not cover the precise arrangement of semiconductor components. In fact, the component layout is often a very ordinary, straightforward implementation of the novel process that the inventor has disclosed. (And in many cases, the inventors might not even know anything about that circuit - it may have been auto-generated by a CAD program, in response to the inventor's specified requirements.) Rather, the latter claim describes the process that the circuit embodies. So even if a competitor makes a trivial change to create a different circuit that carries out the same process, it is covered. That's the strength of the patent grant.
In other words: Patents can validly protect a process, regardless of the implementation details. For infringement purposes, all that matteris is whether or not someone is using the process. It could be carried out by a replica of the patentee's suggested circuit, or by some other kind of circuit... or by software running on a general-purpose machine. And this is the exact reason why "software patents" are now allowed by the federal courts. In fact, such patents often don't even mention software - they focus exclusively on the details of the process. Because, in the end, the implementation is irrelevant.
Well, if you're looking at the "big picture" of patents in history - patents were not invented specifically to spur "invention," either. The Venetian and English patent systems were designed to promote the rate of industrial development in a home country, but those new technologies could be claimed for a patent even if the patentee had only imported his observations of technologies in other countries. Realistically, however, they were used (1) to protect the guild system that comprised the economic structure of England, and (2) as a system of political rewards. Going back even further, the Greeks used to grant patent-like rights for recipes.
Clearly, the goals of the monopoly right known as a "patent" have substantially changed over the years. So your characterization of why patents were "invented" is not really substantiated, since the motivation has been dynamic. More particularly, nowhere is there evidence that the U.S. patent system - or any other - was limited to "stuff" and processes for making "stuff."
I invite you to find and cite any kind of academic reference that supports that assertion. You may want to look at the works of Edward Walterscheid or Bruce Bugbee, two prominent scholars of the history of patent law. Having read their works in detail a few years ago, I would warn you that this might be a fruitless effort - though you would come away with a much more accurate understanding of the patent system than you now appear to have.
A model is not the device, it is an analog of the device.
Hey, you're the one who demanded that the models must be "working." I'm just holding you to your own proffered requirements.
You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical. Cancer drugs are not, and never have been, trade secret territory.
So now you're suggesting that the cancer drug would and should be well-known, but that the "method of using it" is better protected by trade secret than by patent?
Seriously, think about what you write before clicking "submit." The "method of using" a cancer drug involves (1) manufacturing it in a safe dose, and (2) having the patient swallow it. How, exactly, do you foresee trade secret being useful in this context? Curiouser and curiouser...
Patents were invented to create a temporary monopoly on making "stuff."
Wrong. Take a look at the first clause of our patent law, circa 1952:
35 USC 101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Why did the drafters of our current patent law very pointedly include the term "process" as a distinct class of patentable inventions? They already had machines, manufactures, and compositions of matter. That pretty well covers the bases for "stuff," and by your logic, this should have been sufficient. So why did the legislators very specifically and separately include "processes"?
For 54 years and counting, our patent legislators have very explicitly authorized the patenting of "processes." This is not limited to "processes of making stuff," or "processes of using stuff." This means all novel processes. You can go ahead and argue that this isn't optimal, that it needs to change - but you cannot argue the plain meaning of what the law permits today.
Copyrights for protection of desemination of knowledge, patents for the protection of making things.
You couldn't be more absolutely wrong. I've already covered why you're wrong about patents. Now I'll address why you're hopelessly wrong about copyrights.
Copyright law does not protect "knowledge." Never has; never will. That proposition is completely unsupported by the entire body and history of copyright law. As a rule, the knowledge that may be embedded in a copyrighted work can be extracted and freely used (unless it's protected as another kind of IP... e.g., a patent.)
Rather, Copyright covers original artistic expression. It covers the aesthetic qualities in music, prose, poetry, sculpture, architecture, industrial design, etc. You cannot copyright facts or ideas - you can only copyright your particular expression of them as a work of art.
Seriously, your utter ignorance of IP law is shining through your posts in this discussion. Please do some research before responding.
If someone patents a music box and I place a microphone next to it and record the output and sell CD's on Ebay, have I violated the patent on the music box?
You're leaving out some key details about the music box. Did you make it, or buy it from someone who didn't have the right to make it? Is it being operated by you, or by someone who's not authorized to operate it, or by the patentee or one of his licensees? Are you complicit with an unauthorized manufacturer/operator in the operation of the music box? These are the key questions.
All of these questions relate to the machine and the method of making or using it. For the purpose of this hypothetical, I'm going to look past all of that, and presume that the patentee is the one operating it - that you're only recording it.
In this case, you are not violating the patentee's patent. You are not making or using the invention (a machine and perhaps the process of using it to create music.) It's very, very difficult to imagine how your audio tape would fit the music box invention as claimed in the patent.
As a completely separate question, you may well have violated the patentee's copyrights over the music issuing from the music box. But you don't seem interested in that wing of IP (and it's not a thought-provoking issue), so I won't elaborate.
Question: If someone invents a machine that produces a new sound by carrying out some process with its internal components and I come along and record the machine and then sell copies of the recording on the Ebay, would you say that I am infringing the patent?
You're mixing up patent law and copyright law.
"Sound" generally isn't patentable. It's not a machine, a manufacture, a composition of matter, or a process. I can think of hypotheticals where it might be - e.g., a "signal" claim, where the sound is a modem bitstream containing computer instructions that embody a patented process. But that's really a stretch. Except in strange cases like this, "sound" is not patentable, so if you detect and record it, you have not violated a patent for the machine. (Now if you built the machine without the owner's consent - or if the patent also claimed the process of producing a useful sound by using the machine, and you used it while recording the sound - then you have violated the patent on the machine.)
"Sound" is clearly copyrightable - if (1) it contains an artistic expression, and (2) it is fixed in a tangible medium at some point. (Let's presume that #1 is true, and that your machine includes a memory chip that contains the "sound" data, and that your machine is reading from the memory, which would satisfy #2.) If #1 and #2 are both true, then your recording of it constitutes either a "copying" or a "derivation," so you would need the owner's permission. If either or both of #1 and #2 aren't true, then the sound isn't copyrighted and you can do what you like.
That one's pretty easy. I think, perhaps, you are confusing model with identity.
But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.
Exactly, because they are all (excluding the nuclear weapon) logical contructs, not physical constructs. Traditionally trade secret territory, not patent territory.
Cancer drugs are not, and never have been, trade secret territory. The FDA would never approve a cancer drug (or the process of using it to treat cancer) unless it knew the exact contents.
Likewise, complex chemical engineering techniques are very often the subject of academic publications. You must not have heard of the Chemical Abstracts Service, which lists 24 million abstracts for chemistry-related inventions. How badly would the field of chemistry be damaged if chemical engineers had to lock away their inventions as trade secrets, instead of just publishing and patenting them?
The true test is whether the research can be transmitted by speech/print.
What an odd concept. Virtually all chemical research is described by "speech/print." You don't document a chemical engineering technique with pictograms or multimedia; you show it by describing, in words and letters, the steps.
In fact, your distinction would relegate every single patented invention exclusively to the land of copyright. You see, since 1952, patentees have been required to describe their invention in claim language - a single sentence of plain words that summarizes the invention. Even the most complex machines that are best explained through a drawing must still be claimed in plain words. Claims like "I claim the invention shown in Figure 1" are per se invalid, and are rejected out of hand by the patent office. You have to say, "I claim: A machine comprising: a sprocket, a flange connected to the sprocket, a winch connected to the flange,..."
By your logic, every one of these claims is a summary of the invention in "print," and so every one of these inventions is only protectible by copyright. Do you see now why your test is nonsensical?
At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.
Oh, dear. I guess it's time for the biweekly Slashdot Intellectual Property 101 lecture once again...
Many objects, including your hypothetical piece of furniture, have both patentable and copyrightable aspects. Copyright protects original expression; patents protect functional novelty. A chair may have both a distinctive artistic quality that constitutes "artistic expression," and also a patentable support structure. In fact, the same physical element can easily serve both purposes, and so be covered by both kinds of intellectual property law.
In the case of your chair, the "implementation" of the plans is called derivatization. You are taking the artistic work described in the blueprint, and you are creating a derivative - i.e., a physical chair embodying the same artistic expression. It's exactly the same as making a movie version of someone else's novel - what you're doing is "adaptation," which is the novelist's exclusive copyright over his novel.
For which a working physical model can be submitted.
What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug? Or for a complex chemical engineering technique, or a process (and composition!) of uranium enrichment, or a nuclear weapon, or a process of identifying particularly useful genes... All patentable - yet all incompatible (hopefully) with the idea of a "working physical model."
Nope. What you patent is "a device implementing this idea"...
35 USC 101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
In case you missed it, "process" is the first one.
This has been the wording of the statute since 1952. And process patents long predate 1952: in this change, the patent law only affirmed the long-standing USPTO and court practice of allowing patents on processes.
In other words, your arguments that patents should only adhere to "things" are over 54 years too late.
I seem to recall a lot of non-physical research in computers before software patents were allowed.
You seem to have misread the post to which you're responding. That post didn't argue that physical research would stop - only that it would be discouraged. Conversely, patents were never envisioned as an essential requirement of invention - only as an incentive. So the question is not whether or not software was developed prior to software patents - only whether or not its pace was quicker or slower.
The question of infringement on a patent usually boils down to the similarity between the two devices.
That's completely wrong. The question of infringement boils down to a comparison of the claims - of the bare, essential, conceptual elements of the patented invention - and the embodiment accused of infringing.
The Court of Appeals for the Federal Circuit has had to correct this misconception dozens of times. Many accused infringers want to point to some feature of the patentee's product in order to make some argument about the proper interpretation (construction) of the claim language. This evidence is irrelevant. The patentee's products are irrelevant. All that matters is the text of the patent.
Now, why is this? It's because the patent covers an inventive concept - the feature that makes the invention novel and useful. Now, it doesn't broadly cover any "idea"; in the words of the USPTO, the idea must be "useful, tangible*, and concrete," rather than an "abstract idea" or a "scientific principle" without a specific use. But it nevertheless covers the class of "ideas" that constitute inventions.
(* Neither "tangible" nor "concrete" here means "physical." "Tangible" means that the invention has some interaction with the real world - e.g., the reallocation of money. But this money need not be physical; it can be virtual, i.e., data - what matters is that the shuffling of this data conveys a result with real-world consequences, i.e., money changes hands. And "concrete" must means "repeatable.")
That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept. A physical object may incorporate that concept, but even then it is not the invention - it is the "embodiment" of the invention. It is a manifestiation of the inventive concept that the patent actually addresses.
This is evident in the fact that every patent has a difficult-to-ascertain quality called "breadth" - i.e., how broadly does the inventive concept stretch? A patent might claim the concept so narrowly that it only covers a single implementation - this is what we call a "picture claim," where you've essentially taken a snapshot of one embodiment, and gained protection of only exactly that object (and exact replicas.) At the other end of the spectrum, a "frontier patent" may claim a novel concept with an incredible range of embodiments - any implementation that incorporates that concept is covered.
Note: Even aside from software patents, "embodiment" is not limited to physical objects. The patent system has long protected "processes," i.e., sets of actions with novel results. The novelty here is completely in the abstract, functional steps of the process - it does not have to involve any particular object or composition. Of course, this fact is exactly why the argument against software patents is untenable: what is protected is not the actual software - not the code, compiled binary (or script), or the process in execution - but the abstract method that the software embodies... and such inventions have been patentable for over a hundred years.
That's hardly the only problem with this Slashdot posting. It swallows wholesale one of the core problems with the original article: that NTP v. Blackberry is somehow a "software patent" case. On the contrary, the patents at issue in this case involve both software and hardware claims. Consider, e.g., U.S. Pat. No. 5,734,961, which contains 12 method claims and 17 apparatus claims.
If the patent had been exclusively hardware-based, the dispute would not change one whit. In fact, the only noticeable difference would be that Slashdot submitters would stop using it as a sloppy segue into the software patent issue.
t doesn't look like they're planning on passing any of the savings on to the real distributors/consumers, that was my point.
Exactly.
I presume that Warner believes they've conditioned consumers into believing that $15-$20 is a fair price for a movie; that would be a good reason to charge the same for an electronic version. However, they're dead wrong in this presumption. Rather, they have conditioned consumers into paying that price for a DVD that contains the movie.
The physicality of the DVD is important to the consumer: the disc has nice silkscreen imaging; the packaging looks good and protects the disc; it looks great on a shelf; etc. There are practical implications, too: except for a few specific illegalities (bootleg copying, exctracting the content without the copy protection, etc.), the consumer can do what he wants with the disc - view it at a friend's house, sell it, etc.
In other words, the physicality is a very serious "value-add" for the DVD consumer. Warner can't strip all of that away, sell just the contents of the disc, and expect the same profit. A file on a hard drive is not as appealing as a DVD slipcover in a media stack. And consumers are savvy enough to fear the restrictions that will inevitably accompany this file: it will be locked to a specific computer, no resale value, etc.
In short: Warner is crazy if it believes that consumers equate a DVD with the bare file contained on the DVD. It's fundamentally mistaking the elements of a DVD that represent worth to the consumer.
Unless they make an argument that what they did was illegal, in which case some sort of estoppel might apply if they're prosecuting someone.
:shrug: Estoppel wouldn't even apply in that scenario. If you tresspass on someone's property, do you irrevocably lose the right to sue anyone for trespass to your property?
(The kind of estoppel you're suggesting is like trying to sue someone for theft of your illegal narcotics stash. It's an "unclean hands" scenario: if you're engaged in criminal behavior, you can't sue someone else over their conduct in the same action.)
it depends on whether or not they defeated CSS, or just copied the DVD with CSS intact.
I'm not sure about that.
Some copyright-enforcement mechanisms for CD-ROMs, like SecuROM and SafeDisc, look for particular quirks in the format of data storage on the CD that indicates that it's authentic. Of course, utilities like DAEMON Tools now provide access to ISOs in a manner that emulates the quirks in the original media, for the purpose of fooling the copyright enforcement mechanism into thinking that the ISO is the authentic media. Now, good luck presenting an argument in court that this isn't "circumvention" of the copyright mechanism.
Similarly, the purpose of CSS is to prevent the content from being playable on any copied DVD. Are you sure that "circumvention" is limited to extracting the content without the CSS wrapper - and excludes making a copy of the DVD that looks authentic to the CSS protection?
Fifth, the FBI and Department of Justice have discretion in choosing what crimes to investigate and who to prosecute, as they have limited resources.
That's true. But much more importantly, criminal prosecution has always been an extremely political decision. I really can't see the State of California filing suit against one of its major businesses for a fairly minor and technical criminal violation; the political cost would be too high.
the MPAA may have here a good claim to fair use...
Not sure about this.
The Court of Appeals for the Federal Circuit has construed the crime of DMCA circumvention as inherently requiring some kind of underlying copyright violation - i.e., if there's no actual copyright violation, then there's no DMCA liability. Unfortunately, that statutory construction is suspect for a number of reasons. (The CAFC's reasoning is large based on the positioning of the DMCA within 17 USC, the copyright laws... which seems, at best, alarmingly squishy logic.) This is problematic because the DMCA liability clause is very clear, and very clearly doesn't mention "underlying copyright violation" or anything remotely similar. The Supreme Court of the United States has not yet weighed in, so the future of the DMCA might be interesting.
In other words: The DMCA may or may not require proof of some kind of copyright violation in connection with the act of circumvention. If it does, then fair use is a valid defense to the underlying copyright violation, and can be used to fend off DMCA liability. If it does not, then fair use is no defense whatsoever to DMCA liability.
Don't help stop them, encourage them! Because if the EU has software patents and your country doesn't, you can still make the software and sell it, but Europe can't. You can even sell it across the Internet to European companies and the EU can't stop you!
Yeah, because that's exactly what happened in the U.S.: the entire software industry folded in the wake of State Street Bank & Trust in 1998. The entire software community just immediately collapsed, and there was no tech boom in the late 1990's. So we're down to two software companies here; there is no innovation of any kind.
Oh - wait - sorry, my bad. Eight years after State Street, software innovation here in the U.S. is exuberant and growing, despite the doomsday predictions of naysayers. But I'm sure it's due to collapse any day now...
A copyright license is different legal entity than a contract...
No, it's not. You grant a license to a copyrighted work - or a patented work, or a trade secret, or any other kind of IP - by means of a contract.
See this link for a typical license - this one is in common use by the University of Texas. Note the title - "SAMPLE COPYRIGHT LICENSE AGREEMENT" - and that the terms of the instrument are purely contractual in nature.
If you're so certain that a license is a distinct legal instrument from a contract, then go find an example of it. Or find a statement on a law-related website indicating this. Or find a court opinion, or a comment in the Restatement and Uniform Commercial Code, differentiating "license" from "contract." In other words, put up or shut up - don't just keep repeating your misconception.
Your vitriol must be clouding your reading comprehension skills.
I didn't write that copyright covers "use." I wrote that you no longer have permission over the software. Violation of the license negates the license, and also negates the licensor's consent to your possession of a copy. Hence, the copy in your possession becomes unauthorized, and you are in violation of the licensor's copyright.
Slashdot Mirror
Of course. That's why companies hire some people to create technology, and other people to commercialize technology.
A better way to compensate patent holders may be to allow EVERYONE to use a patent, but they must always pay some percentage of revenue on sales of the invention the patent holder.
"Must?" Who polices the market? The adventures of the (odious) RIAA illustrate the failure of that notion.
Or are consumers asked to police themselves? The failure of that concept is illustrated by the existence of The Pirate Bay.
- David Stein
Interesting comment. Let's consider each:
Other mechanisms:
- David Stein
I completely agree. But there are already so many misconceptions about patents amongst Slashdotters that I felt compelled to clarify this one point.
- David Stein
Minor correction: These are published patent applications. Patents have numbers like "6,123,456." Patent applications have numbers like "20060000001."
In fact, given the current length of pendency of software-related patent applications (nifty chart here), it's unlikely that the patent examiner for these patent applications has even read them yet, let alone responded with a rejection. The USPTO is just swamped (in large part, because Congress keeps diverting its funds, such that it can't hire enough patent examiners.)
- David Stein
"Technical merit" has never been the standard of patentability - not throughout the entire history of the patent system (the U.S.'s or anyone else's.) In fact, recent court decisions have disavowed that ideas even need to be "technical" in order to qualify for patents. Even better, "technical" inventions without a business aspect are rejected: they are merely scientific concepts.
Patents are about novel business concepts - always have been. The goal is to promote public disclosure of novel business concepts: machines that can be sold; compositions that can be made into products; industrial and chemical manufacturing processes. Patents are also enforced in business, and hence are largely irrelevant to non-business environments - e.g., academic research.
The problem with this patent application (and I agree with everyone here, by the way) is not that the invention is not "technical." It's that the invention is not novel, which is a prerequisite to patenting. Hopefully the patent examiner will pick up on this and reject the application accordingly.
- David Stein
Defensive patenting or not, this kind of crap has really got to stop.
I completely agree - but what makes this odious is not the patenting, but the fact that any business wants to implement this.
My tolerance of pointless branding has been exhausted. I take the logos off of my clothes, and I pour my Starbucks coffee into a plain mug. I tore the Intel and Microsoft Windows stickers off of my notebook the moment I got it. In the digital realm, I replaced the Windows boot screen with something non-corporate; and I've spent hours - hours - researching ways to yank the do-nothing corporate-logo icons out of my system tray.
I think we're living in a post-consumerism era. We're still consumers, but many of us reject the cornerstone of consumerism: we don't attribute value based on the logos plastered all over our stuff. If I buy something, then I can and will tear your corporate advertisements off of it. I am not a billboard for your company.
Modern marketeering long ago crossed the threshold between "reasonable" and "pervasive." It's simply an irritation now - one that I actively struggle to eradicate from my life. If a company wants to get an edge with me over its competitors, then it should offer me its products without logos.
So, to Google's WiFi advertising model, I say - no thanks. I won't let Google "brand" my browser in exchange for free WiFi access. This is 2006 - someone else will sell or give me WiFi access without commandeering my notebook LCD in order to advertise to someone else. Keep your ads off my stuff.
- David Stein
Tell that to all of the companies with R&D budgets in excess of $1 million per year.
Invention generally arises from one of two circumstances:
I call the former "innovation" and the latter "research." Patents are intended to promote innovation by offering the capacity for financial reward. Patents do not really pertain to research, and do not affect its operation.
- David Stein
I understand and appreciate the purpose of your analogy. We don't usually see such reasoned discussion here at Slashdot, so I appreciate it.
And now, let me destroy it. ;)
Your analogy is unworkable because it unsuccessfully tries to differentiate functional hardware from functional software. What it actually does is differentiate functional hardware from the nonfunctional product of that hardware. For many types of inventions that produce something, the invention is patentable but the product is not. (In fact, in your analogy, product isn't even "software" - it's just sound. Software isn't present in any form. So I don't see how your analogy applies to this discussion. In fact, the kind of sound that you suggest - music - is very clearly not patentable, even today.)
Now, getting to the core of your argument:
but code=data and hardware and software implementations of process don't do things in the same way...
But any logical process that can be implemented as a circuit can also be implemented as a software algorithm. This is a well-established theory of computer science, deriving in part from Turing. It's also evident in the incredible degree of success achieved by the emulation community - virtually every computer-related machine on the planet has been modeled wholly in software. (I recommend checking out a "Foundations of Computing" text that describes what kinds of problems can be solved by different classes of machines - it's really interesting stuff, although quite abstract and not very practically useful.)
Consider this: When you patent a circuit, what is the exact thing for which you are getting a patent? Most such patents claim the invention in two basic ways: first as a novel arrangement of components, and second as the stepwise, abstract process that the circuit performs. For the latter claim type, the patent does not cover the precise arrangement of semiconductor components. In fact, the component layout is often a very ordinary, straightforward implementation of the novel process that the inventor has disclosed. (And in many cases, the inventors might not even know anything about that circuit - it may have been auto-generated by a CAD program, in response to the inventor's specified requirements.) Rather, the latter claim describes the process that the circuit embodies. So even if a competitor makes a trivial change to create a different circuit that carries out the same process, it is covered. That's the strength of the patent grant.
In other words: Patents can validly protect a process, regardless of the implementation details. For infringement purposes, all that matteris is whether or not someone is using the process. It could be carried out by a replica of the patentee's suggested circuit, or by some other kind of circuit... or by software running on a general-purpose machine. And this is the exact reason why "software patents" are now allowed by the federal courts. In fact, such patents often don't even mention software - they focus exclusively on the details of the process. Because, in the end, the implementation is irrelevant.
- David Stein
Well, if you're looking at the "big picture" of patents in history - patents were not invented specifically to spur "invention," either. The Venetian and English patent systems were designed to promote the rate of industrial development in a home country, but those new technologies could be claimed for a patent even if the patentee had only imported his observations of technologies in other countries. Realistically, however, they were used (1) to protect the guild system that comprised the economic structure of England, and (2) as a system of political rewards. Going back even further, the Greeks used to grant patent-like rights for recipes.
Clearly, the goals of the monopoly right known as a "patent" have substantially changed over the years. So your characterization of why patents were "invented" is not really substantiated, since the motivation has been dynamic. More particularly, nowhere is there evidence that the U.S. patent system - or any other - was limited to "stuff" and processes for making "stuff."
I invite you to find and cite any kind of academic reference that supports that assertion. You may want to look at the works of Edward Walterscheid or Bruce Bugbee, two prominent scholars of the history of patent law. Having read their works in detail a few years ago, I would warn you that this might be a fruitless effort - though you would come away with a much more accurate understanding of the patent system than you now appear to have.
- David Stein
Hey, you're the one who demanded that the models must be "working." I'm just holding you to your own proffered requirements.
You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical. Cancer drugs are not, and never have been, trade secret territory.
So now you're suggesting that the cancer drug would and should be well-known, but that the "method of using it" is better protected by trade secret than by patent?
Seriously, think about what you write before clicking "submit." The "method of using" a cancer drug involves (1) manufacturing it in a safe dose, and (2) having the patient swallow it. How, exactly, do you foresee trade secret being useful in this context? Curiouser and curiouser...
Patents were invented to create a temporary monopoly on making "stuff."
Wrong. Take a look at the first clause of our patent law, circa 1952:
35 USC 101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Why did the drafters of our current patent law very pointedly include the term "process" as a distinct class of patentable inventions? They already had machines, manufactures, and compositions of matter. That pretty well covers the bases for "stuff," and by your logic, this should have been sufficient. So why did the legislators very specifically and separately include "processes"?
For 54 years and counting, our patent legislators have very explicitly authorized the patenting of "processes." This is not limited to "processes of making stuff," or "processes of using stuff." This means all novel processes. You can go ahead and argue that this isn't optimal, that it needs to change - but you cannot argue the plain meaning of what the law permits today.
Copyrights for protection of desemination of knowledge, patents for the protection of making things.
You couldn't be more absolutely wrong. I've already covered why you're wrong about patents. Now I'll address why you're hopelessly wrong about copyrights.
Copyright law does not protect "knowledge." Never has; never will. That proposition is completely unsupported by the entire body and history of copyright law. As a rule, the knowledge that may be embedded in a copyrighted work can be extracted and freely used (unless it's protected as another kind of IP... e.g., a patent.)
Rather, Copyright covers original artistic expression. It covers the aesthetic qualities in music, prose, poetry, sculpture, architecture, industrial design, etc. You cannot copyright facts or ideas - you can only copyright your particular expression of them as a work of art.
Seriously, your utter ignorance of IP law is shining through your posts in this discussion. Please do some research before responding.
- David Stein
You're leaving out some key details about the music box. Did you make it, or buy it from someone who didn't have the right to make it? Is it being operated by you, or by someone who's not authorized to operate it, or by the patentee or one of his licensees? Are you complicit with an unauthorized manufacturer/operator in the operation of the music box? These are the key questions.
All of these questions relate to the machine and the method of making or using it. For the purpose of this hypothetical, I'm going to look past all of that, and presume that the patentee is the one operating it - that you're only recording it.
In this case, you are not violating the patentee's patent. You are not making or using the invention (a machine and perhaps the process of using it to create music.) It's very, very difficult to imagine how your audio tape would fit the music box invention as claimed in the patent.
As a completely separate question, you may well have violated the patentee's copyrights over the music issuing from the music box. But you don't seem interested in that wing of IP (and it's not a thought-provoking issue), so I won't elaborate.
- David Stein
You're mixing up patent law and copyright law.
"Sound" generally isn't patentable. It's not a machine, a manufacture, a composition of matter, or a process. I can think of hypotheticals where it might be - e.g., a "signal" claim, where the sound is a modem bitstream containing computer instructions that embody a patented process. But that's really a stretch. Except in strange cases like this, "sound" is not patentable, so if you detect and record it, you have not violated a patent for the machine. (Now if you built the machine without the owner's consent - or if the patent also claimed the process of producing a useful sound by using the machine, and you used it while recording the sound - then you have violated the patent on the machine.)
"Sound" is clearly copyrightable - if (1) it contains an artistic expression, and (2) it is fixed in a tangible medium at some point. (Let's presume that #1 is true, and that your machine includes a memory chip that contains the "sound" data, and that your machine is reading from the memory, which would satisfy #2.) If #1 and #2 are both true, then your recording of it constitutes either a "copying" or a "derivation," so you would need the owner's permission. If either or both of #1 and #2 aren't true, then the sound isn't copyrighted and you can do what you like.
- David Stein
But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.
Exactly, because they are all (excluding the nuclear weapon) logical contructs, not physical constructs. Traditionally trade secret territory, not patent territory.
Cancer drugs are not, and never have been, trade secret territory. The FDA would never approve a cancer drug (or the process of using it to treat cancer) unless it knew the exact contents.
Likewise, complex chemical engineering techniques are very often the subject of academic publications. You must not have heard of the Chemical Abstracts Service, which lists 24 million abstracts for chemistry-related inventions. How badly would the field of chemistry be damaged if chemical engineers had to lock away their inventions as trade secrets, instead of just publishing and patenting them?
- David Stein
What an odd concept. Virtually all chemical research is described by "speech/print." You don't document a chemical engineering technique with pictograms or multimedia; you show it by describing, in words and letters, the steps.
In fact, your distinction would relegate every single patented invention exclusively to the land of copyright. You see, since 1952, patentees have been required to describe their invention in claim language - a single sentence of plain words that summarizes the invention. Even the most complex machines that are best explained through a drawing must still be claimed in plain words. Claims like "I claim the invention shown in Figure 1" are per se invalid, and are rejected out of hand by the patent office. You have to say, "I claim: A machine comprising: a sprocket, a flange connected to the sprocket, a winch connected to the flange,..." By your logic, every one of these claims is a summary of the invention in "print," and so every one of these inventions is only protectible by copyright. Do you see now why your test is nonsensical?
At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.
Oh, dear. I guess it's time for the biweekly Slashdot Intellectual Property 101 lecture once again...
Many objects, including your hypothetical piece of furniture, have both patentable and copyrightable aspects. Copyright protects original expression; patents protect functional novelty. A chair may have both a distinctive artistic quality that constitutes "artistic expression," and also a patentable support structure. In fact, the same physical element can easily serve both purposes, and so be covered by both kinds of intellectual property law.
In the case of your chair, the "implementation" of the plans is called derivatization. You are taking the artistic work described in the blueprint, and you are creating a derivative - i.e., a physical chair embodying the same artistic expression. It's exactly the same as making a movie version of someone else's novel - what you're doing is "adaptation," which is the novelist's exclusive copyright over his novel.
- David Stein
What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug? Or for a complex chemical engineering technique, or a process (and composition!) of uranium enrichment, or a nuclear weapon, or a process of identifying particularly useful genes... All patentable - yet all incompatible (hopefully) with the idea of a "working physical model."
- David Stein
35 USC 101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
In case you missed it, "process" is the first one.
This has been the wording of the statute since 1952. And process patents long predate 1952: in this change, the patent law only affirmed the long-standing USPTO and court practice of allowing patents on processes.
In other words, your arguments that patents should only adhere to "things" are over 54 years too late.
- David Stein
You seem to have misread the post to which you're responding. That post didn't argue that physical research would stop - only that it would be discouraged. Conversely, patents were never envisioned as an essential requirement of invention - only as an incentive. So the question is not whether or not software was developed prior to software patents - only whether or not its pace was quicker or slower.
- David Stein
That's completely wrong. The question of infringement boils down to a comparison of the claims - of the bare, essential, conceptual elements of the patented invention - and the embodiment accused of infringing.
The Court of Appeals for the Federal Circuit has had to correct this misconception dozens of times. Many accused infringers want to point to some feature of the patentee's product in order to make some argument about the proper interpretation (construction) of the claim language. This evidence is irrelevant. The patentee's products are irrelevant. All that matters is the text of the patent.
Now, why is this? It's because the patent covers an inventive concept - the feature that makes the invention novel and useful. Now, it doesn't broadly cover any "idea"; in the words of the USPTO, the idea must be "useful, tangible*, and concrete," rather than an "abstract idea" or a "scientific principle" without a specific use. But it nevertheless covers the class of "ideas" that constitute inventions.
(* Neither "tangible" nor "concrete" here means "physical." "Tangible" means that the invention has some interaction with the real world - e.g., the reallocation of money. But this money need not be physical; it can be virtual, i.e., data - what matters is that the shuffling of this data conveys a result with real-world consequences, i.e., money changes hands. And "concrete" must means "repeatable.")
- David Stein
That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept. A physical object may incorporate that concept, but even then it is not the invention - it is the "embodiment" of the invention. It is a manifestiation of the inventive concept that the patent actually addresses.
This is evident in the fact that every patent has a difficult-to-ascertain quality called "breadth" - i.e., how broadly does the inventive concept stretch? A patent might claim the concept so narrowly that it only covers a single implementation - this is what we call a "picture claim," where you've essentially taken a snapshot of one embodiment, and gained protection of only exactly that object (and exact replicas.) At the other end of the spectrum, a "frontier patent" may claim a novel concept with an incredible range of embodiments - any implementation that incorporates that concept is covered.
Note: Even aside from software patents, "embodiment" is not limited to physical objects. The patent system has long protected "processes," i.e., sets of actions with novel results. The novelty here is completely in the abstract, functional steps of the process - it does not have to involve any particular object or composition. Of course, this fact is exactly why the argument against software patents is untenable: what is protected is not the actual software - not the code, compiled binary (or script), or the process in execution - but the abstract method that the software embodies... and such inventions have been patentable for over a hundred years.
- David Stein
That's hardly the only problem with this Slashdot posting. It swallows wholesale one of the core problems with the original article: that NTP v. Blackberry is somehow a "software patent" case. On the contrary, the patents at issue in this case involve both software and hardware claims. Consider, e.g., U.S. Pat. No. 5,734,961, which contains 12 method claims and 17 apparatus claims.
If the patent had been exclusively hardware-based, the dispute would not change one whit. In fact, the only noticeable difference would be that Slashdot submitters would stop using it as a sloppy segue into the software patent issue.
- David Stein
Exactly.
I presume that Warner believes they've conditioned consumers into believing that $15-$20 is a fair price for a movie; that would be a good reason to charge the same for an electronic version. However, they're dead wrong in this presumption. Rather, they have conditioned consumers into paying that price for a DVD that contains the movie.
The physicality of the DVD is important to the consumer: the disc has nice silkscreen imaging; the packaging looks good and protects the disc; it looks great on a shelf; etc. There are practical implications, too: except for a few specific illegalities (bootleg copying, exctracting the content without the copy protection, etc.), the consumer can do what he wants with the disc - view it at a friend's house, sell it, etc.
In other words, the physicality is a very serious "value-add" for the DVD consumer. Warner can't strip all of that away, sell just the contents of the disc, and expect the same profit. A file on a hard drive is not as appealing as a DVD slipcover in a media stack. And consumers are savvy enough to fear the restrictions that will inevitably accompany this file: it will be locked to a specific computer, no resale value, etc.
In short: Warner is crazy if it believes that consumers equate a DVD with the bare file contained on the DVD. It's fundamentally mistaking the elements of a DVD that represent worth to the consumer.
- David Stein
(The kind of estoppel you're suggesting is like trying to sue someone for theft of your illegal narcotics stash. It's an "unclean hands" scenario: if you're engaged in criminal behavior, you can't sue someone else over their conduct in the same action.)
- David Stein
I'm not sure about that.
Some copyright-enforcement mechanisms for CD-ROMs, like SecuROM and SafeDisc, look for particular quirks in the format of data storage on the CD that indicates that it's authentic. Of course, utilities like DAEMON Tools now provide access to ISOs in a manner that emulates the quirks in the original media, for the purpose of fooling the copyright enforcement mechanism into thinking that the ISO is the authentic media. Now, good luck presenting an argument in court that this isn't "circumvention" of the copyright mechanism.
Similarly, the purpose of CSS is to prevent the content from being playable on any copied DVD. Are you sure that "circumvention" is limited to extracting the content without the CSS wrapper - and excludes making a copy of the DVD that looks authentic to the CSS protection?
Fifth, the FBI and Department of Justice have discretion in choosing what crimes to investigate and who to prosecute, as they have limited resources.
That's true. But much more importantly, criminal prosecution has always been an extremely political decision. I really can't see the State of California filing suit against one of its major businesses for a fairly minor and technical criminal violation; the political cost would be too high.
the MPAA may have here a good claim to fair use...
Not sure about this.
The Court of Appeals for the Federal Circuit has construed the crime of DMCA circumvention as inherently requiring some kind of underlying copyright violation - i.e., if there's no actual copyright violation, then there's no DMCA liability. Unfortunately, that statutory construction is suspect for a number of reasons. (The CAFC's reasoning is large based on the positioning of the DMCA within 17 USC, the copyright laws... which seems, at best, alarmingly squishy logic.) This is problematic because the DMCA liability clause is very clear, and very clearly doesn't mention "underlying copyright violation" or anything remotely similar. The Supreme Court of the United States has not yet weighed in, so the future of the DMCA might be interesting.
In other words: The DMCA may or may not require proof of some kind of copyright violation in connection with the act of circumvention. If it does, then fair use is a valid defense to the underlying copyright violation, and can be used to fend off DMCA liability. If it does not, then fair use is no defense whatsoever to DMCA liability.
- David Stein
Yeah, because that's exactly what happened in the U.S.: the entire software industry folded in the wake of State Street Bank & Trust in 1998. The entire software community just immediately collapsed, and there was no tech boom in the late 1990's. So we're down to two software companies here; there is no innovation of any kind.
Oh - wait - sorry, my bad. Eight years after State Street, software innovation here in the U.S. is exuberant and growing, despite the doomsday predictions of naysayers. But I'm sure it's due to collapse any day now...
- David Stein
No, it's not. You grant a license to a copyrighted work - or a patented work, or a trade secret, or any other kind of IP - by means of a contract.
See this link for a typical license - this one is in common use by the University of Texas. Note the title - "SAMPLE COPYRIGHT LICENSE AGREEMENT" - and that the terms of the instrument are purely contractual in nature.
If you're so certain that a license is a distinct legal instrument from a contract, then go find an example of it. Or find a statement on a law-related website indicating this. Or find a court opinion, or a comment in the Restatement and Uniform Commercial Code, differentiating "license" from "contract." In other words, put up or shut up - don't just keep repeating your misconception.
Blah blah blah, copyright doesn't cover use, blah blah blah.
Your vitriol must be clouding your reading comprehension skills.
I didn't write that copyright covers "use." I wrote that you no longer have permission over the software. Violation of the license negates the license, and also negates the licensor's consent to your possession of a copy. Hence, the copy in your possession becomes unauthorized, and you are in violation of the licensor's copyright.
- David Stein