when it comes to software patents, there's no (business) incentive to write narrow independent claims. your average patent attorney seems to tell you, "write the claims as broadly as you possibly can, making sure that your actual invention (the thing you really understand to be your idea) is described in a dependent claim somewhere." so if you think you're patenting a novel method of toasting bread, you may wind up effectively patenting the concept of toasting bread.
if the USPTO lets it slide (which they often do not, but sometimes they do), you totally win. the fact that there's prior art only helps someone who's really willing to fight in court instead of (1) settling or (2) licensing or (3) entering into a cross-licensing agreement.
if they do catch you in the application process, you just rejig the application or file a continuation in a way that preserves the original filing date - no harm, no foul.
While that used to work, it will no longer. I cannot emphasize enough how enormously, incredibly, utterly huge the Festo case is in this regard. Any strategy that began with a few broad claims that were amended to make hay is destined to yield a meaningless patent -- the doctrine of equivalents now has absolutely no application to any element that was the subject of an amendment related to patentability.
Having actually tried a number of these cases, I can tell you that when literal infringement is all that is on the table, patents are easily --often trivially-- engineered around; you simply substitute any known equivalent for something in the claim and you are out of court on Summary Judgment.
And, the neatest thing is this: Festo applies retroactively!!! All those cruddy patents with six-year prosecution histories are suddenly toothless.
when it comes to software patents, there's no (business) incentive to write narrow independent claims. your average patent attorney seems to tell you, "write the claims as broadly as you possibly can, making sure that your actual invention (the thing you really understand to be your idea) is described in a dependent claim somewhere." so if you think you're patenting a novel method of toasting bread, you may wind up effectively patenting the concept of toasting bread.
if the USPTO lets it slide (which they often do not, but sometimes they do), you totally win. the fact that there's prior art only helps someone who's really willing to fight in court instead of (1) settling or (2) licensing or (3) entering into a cross-licensing agreement.
if they do catch you in the application process, you just rejig the application or file a continuation in a way that preserves the original filing date - no harm, no foul.
While that used to work, it will no longer. I cannot emphasize enough how enormously, incredibly, utterly huge the Festo case is in this regard. Any strategy that began with a few broad claims that were amended to make hay is destined to yield a meaningless patent -- the doctrine of equivalents now has absolutely no application to any element that was the subject of an amendment related to patentability.
Having actually tried a number of these cases, I can tell you that when literal infringement is all that is on the table, patents are easily --often trivially-- engineered around; you simply substitute any known equivalent for something in the claim and you are out of court on Summary Judgment.
And, the neatest thing is this: Festo applies retroactively!!! All those cruddy patents with six-year prosecution histories are suddenly toothless.
. . . the fundamental problem of what is wrong with DMCA, and why strong-IP guys like myself are opposed to it, is that it doesn't protect the plaintiff's intellectual property. In fact, the upshot is that it provides patent-like protection for anti-circumvention "technologies" (an overly generous term in many cases) with unlimited term and virtually unlimited scope.
The irony of the DeCSS case is that the subject matter that was labelled contraband was not written or conceived by the plaintiffs, but rather by the defendants! It was the original intellectual property of the defendants that was restrained. This is why the First Amendment is so clearly implicated in this case.
DMCA comes quite close to saying that. The anti-circumvention provisions are not subject to a traditional fair use defense, although there are some defenses for some conduct which would be characterized as fair use. Other fair use, however, does not provide a defense to a cause for unlawful circumvention.
That, of course, is the problem with DMCA -- it makes unlawful conduct that used to be officially sanctioned to support IP policy.
That is the entire point of the Festo case cited in my posting earlier this week. Now, if you ask for too much, and amend a claim *AT ALL* to narrow it for reasons related to patentability, you lose ALL RIGHTS to equivalents for that element.
Festo is huge in this regard, and the former strategy of starting by claiming the world and negotiating downwards is now a quick ticket to a malpractice claim.
Bountyquest only pays for prior art upon which the patent claims read completely. Earlier art which is read on by only some of the elements is ineligible.
Discussions on Slashdot about patent validity are mainly policy discussions by engineers. I view the constant harping on technicalities of specific legal challenges by some people merely as an attempt to sabotage such rational discussions of policy.
That's a shame. By ignoring seminal information and keeping yourself willfully ignorant of what you claim to be technicalities, you remain unable to discern what is relevant to the questions of policy and what is not. If the "technicalities" provide against that which you are criticizing, you will appear foolish when you try to make a change, and if the "technicalities" provide for loopholes, you will miss an opportunity to make real and useful change.
The actual parameters of the patent system are essential to these questions. If you don't understand them, you are out of the ball game, and will quickly find yourself marginalized and discounted.
Of course it isn't useful for purposes of demagoguery to confuse the issues with the facts -- its much easier just to wave your hands and whine. If I am being accused of calling irrelevant arguments irrelevant, I am guilty as charged. But there are good, strong arguments to be made, and the technical community (of which I am also a member) is best positioned to make them.
It would be a shame if those arguments were ignored because a few of us found it more politically expedient for us to remain in bliss.
f prior art is A+B+C and the Patent is A+B+C+D, then the patent is invalid in my opinion (to a certain degree I must admit.
Were this true, most patents would be invalid. They are not. There are zillions of cases where patents meeting the criteria for "your opinion" have been held to be valid. In short, you don't seem to understand Section 103's requirements concerning unobviousness.
When you already have lots of people using A+B+C and then D comes along, then A+B+C+D is unworthy for a patent because it is obvious to practitioners in the field.
Of course not. There are zillions of cases to the contrary.
All depends upon A, B, C and D. The devil is in the details. Several patents issued on paper clip designs in the past few years, all of which dealt with what you would consider minutia, and all of which included the same basic elements. I have little doubt that they are valid and not rendered obvious on that analysis alone (although they may ultimately be invalid for more particular reasons.).
It isn't that the prior art itself directly makes the patent invalid. It's that the Archie prior art makes idea obvious (and thereby indirectly invalid).
These words, I do not think that they mean what you think they mean.:-)
The legal requirement of unobviousness in Section 103 of the patent act requires a substantially different analysis than what you are suggesting. It is never enough to say: Behold A, B is obvious.
So, what gives here? Several of the components in the "Preferred Embodiments" strike me as potentially worthy of patent protection, but the actual claims are pretty weak. Does the introductory material that comes before the claims have any weight?
Absolutely it does, but only in particular and limited ways. The specification defines the terms, and to the extent there is any question as to what the claims mean, the specification is the primary device for understanding it. The specification must also provide a written description of the claimed invention sufficient to enable a person of ordinary skill to practice it.
Finally, if the claims uses language in means+function or step+function form, then the claims are deemed to be limited to include the corresponding language to that function as set forth in the specifciation.
If you'd like to get more specific, let's take a particular claim.
Exchange protocol A for protocol B and derived work C for derived work D based on those respective protocols, and the *algorythm* is the same. To a decent computer scientist/programmer, that's basically "obvious". It "obviously" isn't to the USPTO, which I still believe to be the problem.
I'd like to consider myself a prety decent computer scientist and programmer (as well as a fairly hot patent lawyer). In my view, much depends upon what are A, B, C and D. The change in a single line might be seminal or trivial. As I keep saying , the devil is in the details.
Who is talking in the abstract? I have a good idea about what Archie and Veronica are, as well as what the CMGI patents cover. Mr. Emtage does as well. And so do many other people.
You do, do you? Name the patent and the claim. Identify each element claimed in Veronica, and there your are.
If you can't, you don't.
Legal validity is a completely different questions.
If you say so. To me, it is difficult to read the article as suggesting anything other than the legal invalidity of the patent.
Once again, let me emphasize that it is simply pointless to speak about patents in the abstract. The abstract and general subject matter of the patent simply does not inform the question whether a patent is infringed or invalid. The bottom line is the specifics of the patent claims asserted and a particular apparatus or method usage alleged to infringe. Until you get to the details, you aren't saying anything interesting at all.
With respect to the article:
"Though I'm not a lawyer, the patents being 'defended' by CMGI/AltaVista include basic concepts that were incorporated into the Archie system years before the World Wide Web even existed," said Emtage.
It is clear that Mr. Emtage is not a lawyer. His statement has almost nothing to do with whether or not a particular patent is infringed or invalid. A patent that includes "basic concepts" incorporated into the prior art is not invalid therefor as a matter of law. If the prior art includes "basic concepts" elements A+B+"a blue C", and a later patent claims A+B+C+D, or even A+B+"a green C", the patent claim might well be valid. The devil is in the details, and the article offers none.
"Archie was crawling and indexed FTP sites with fairly sophisticated algorithms even as I was sitting at Internet Engineering Task Force (IETF) meetings with Tim Berners-Lee while he created the World Wide Web," Emtage continued.
For all we know, the patents in question may have already cited, directly or indirectly, to this very prior art. The issue is not whether the patents relate to pre-existing technology -- this is true of virtually EVERY PATENT EVER EVER. The question is whether the prior art was patentably distinguished in a particular claim. Note that the more significantly the prior art is distinguished (read limited), the less "dangerous" is that patent -- the less signficantly the prior art is distinguished, the more likely the patent would be invalid. And this analysis must be performed claim by claim. The broadest claims of a patent might be invalid, and the narrowest not infringed, while one remains that is both valid and infringed. As noted, the devil is in the details.
Talking about this stuff in the abstract is meaningless -- its just whining. Let's get to particulars. Name the patent and the prior art in question, then we can start talking. Until then, we are all spitting in the wind.
How about another line of reasoning? Say that the IP rights are suspended (which sounded perfectly legal in view of the emergency). Say research does suffer a bit in the future. Hell, say entire corporations fall apart, and the vaulted "progress" is stiffled for decades. How is that worse than people suffering and dieing? Corporations are not alive nor is the second derivitive of human understanding. Why value abstractions over one's genetic kin?
This is an age-old argument, and a difficult one that should not be made qualitatively -- because this cuts both ways. Health care costs money, and some people can't afford it. So nationalize it, what the heck? But if we nationalize health care, perhaps folks will go to law school instead of medical school, and health care will suffer. Will more people or fewer people die because of the change? Would more people benefit from the advances in health care in the former scenario, or more people benefit from the advances in availability in health care in the latter? Will there, in fact be advances in the former case, and increased availability in the latter.
These are all hard questions, and ones we shouldn't screw around about with back of the envelope guesses. If that Pharms go belly-up because we took away their property without compensation, would more people die for the lack of the drugs yet to come? I don't know the answer to this question -- I do agree, however, that it is an important one to ask.
Further, the behavior of spending so much more on marketing and admin does not cohere well with saying that R&D will suffer if they are not allowed to make ample profits.
Repeating the argument in different words doesn't improve it. This is still a non-sequitur. There is simply no linkage between the two.
So what if it costs $1B to perform R&D for product A, and it costs $2B to manufacture and sell it. Does this mean that the incentive of a patent monopoly was diminished therefor? Would it cost any less to manufacture and sell it if there were no monopoly? Would the R&D funds still be there because it were so expensive to make?
Does the fact that $1B is less than $2B sufficient to assure that the $1B would be there anyway to support the research if no one could "own it?" If no one could own it, would the economics for the $2B manufacture and sale be unaffected?
Come on. One thing has nothing to do with the other.
Interestingly enough, the claim of patents being needed to finance new research is rebutted with the statistic that two-thirds of the drug companies costs are in marketing and administration; the bulk of their costs aren't in R&D.
However good this may sound, this "argument" is a non-sequitur. What has one (cost of R&D/marketing) thing to do with the other (benefits of the patent system)? Who has ever claimed that a monopoly on the use, sale or marketing of a product would somehow impact upon the costs of manufacturing, advertising and distribution of the same? Still further, the study hardly segregated marketing of patent-related goods against costs of marketing of non-patent-related goods, so the result is itself unuseful.
But for the R&D, there would be no drugs. But for the drugs, there would be nothing to market. No incentive to R&D, no drugs.
If there were drugs, by luck or otherwise, the lack of a monopoly would not justify the investment in marketing, for a generic free-rider would simply sell and distribute their goods at much reduced costs and therefore, for greater margins. No sales, no incentive to R&D or marketing, no drugs.
Unsurprisingly, margins on patented products *ARE* higher than margins on unpatented products. Valuations of pharmaceudical companies and price/equity *ARE* higher for those holding patent technologies than for those who are not.
There may well be argument to be made to support the conclusion, but this one certainly is not. The relative expenses of a company's marketing verses R&D hardly neither supports nor defeats arguments about the virtue of the patent system.
This is not to say unconcionable things have not happened in this business -- only that the argument singled out here isn't part of the best case against either the patent system or that business.
First note: Of course a government monopoly is, in some senses, anti-market. This is true of all monopolies, including the right to exclusively possess real and personal property, by the way. In other senses, these rules, however non-laissez-faire they seem at first blush, can likewise be argued to be pro-market as well.
By providing for a police force to defend my property rights, I no longer need to do so myself. This makes easier the process of buying and selling real estate, and gives me greater incentive to invest in developing my property, which is less vulnerable to abuse by others.
Likewise the argument goes -- a copyright provides incentives to authors to create their works. Indeed, some authors have been screwed over the years by cabals of publishers, who have created a different kind of anti-market force, one that works quite powerfully against invention and creation -- and there are authors who have become powerful enough to buck that trend, such as Stephen King and Formerly-known-as.
However, neither SK or the iconic symbol who wants his old name back now have abandoned copyright, as the article suggests. (Prince, at least, continues to have demand letters written in his name for new songs when they are played in restaurants and by radio stations without his consent) -- they have just found an alternative means of distribution.
And good for them. Their "tipping"-based model is, IMHO, ultimately the new wave. But it is hardly an abandonment of copyright -- just an abandonment of the practices of the old breed of publishers.
And, by the way, Napster is **NOT** about copyright infringement -- it is about the SCOPE of a Copyright. There is no allegation of direct infringement in any of the complaints or briefs of that case -- there cannot be. Napster hasn't engaged in direct infringement. The question there is solely whether they have "contributed" under Copyright law to the infringement of others. And that, is another story altogether.
While there are those who would be pleased to make that claim, that "the current state of intellectual property law is so egregious that intelligent people might actually believe," that's hokum -- sheer demagoguery. No well-educated and intelligent person could buy this story on its face.
While it is "politically correct" in this forum to be anti-IP, and to make things laughable, it is critical to recall that hysteria is one of the traits most effectively used by the pro-strong-IP forces to marginalize and discredit critics of overreaching.
Simply put, it is not really a great idea to try to fight an intellectual war where you are weakest. There are strong anti-IP arguments. This isn't one of them.
Anyone who pretends otherwise is selling something.
While it is nice to be cynical about things, the falsehood (that is, the satirical nature) of the report was apparent on its face. Do the editors truly think that this story was on the level?
No it is not. Getting a patent costs next to nothing (more time than money). Having several patents looks good to investors.
Domestic software patents cost between $15K to $25K apiece. I'm glad that is "nothing" to you.
The main use of patents is not to get royalties, but to shut down competitors via injunction and protect a monopoly. Injunctive relief can be obtained before a trial begins, then delay tactics further bleed the defendent.
Temporary injunctions in patent cases are extraordinarily rare, except in the clearest of cases entailing literal infringement, and then only when there exists no plausible case against validity at the time of the hearing. Statistically, the number of injunctions issued each year are insignificant.
Defending against even the sillliest patent claim takes a lot of lawyer time. You may also lose customers who are concerned about your business' future.
Granted, this is true about most any lawsuit. It is particularly true about patent cases. The other side of the poker table however -- it costs a fortune to wage a lawsuit as well.
How much money was spent litigating the Festo case? Maybe Yahoo can afford it, but can you?
No. Festo was litigated from District Court through Summary Judgment and trial, then to the Federal Circuit and the Supreme Court. It was then remanded back to the Federal Circuit for an opinion before a three-judge panel, and then once more the entire Circuit en banc. The legal fees would be ruinous in virtually any scanario.
Such is the virtue of Stare Decisis. Now that the case has been decided, you don't have to fight that battle any more -- you simply cite it to your District Court judge, who will cower and apply it routinely.
One finds interesting legalese about IP law when searching Google for "Federal Circuit opinion Festo".
Hey, if you're that good at finding things, why not go one click deeper? One finds interesting substance when actually reading the opinion.
Seriously, of course the patent system (the legal system as a whole, in fact; but also the government, media and just about anything else) can be abused by an entity that cares not about the expenditure of arbitrary funds in an unrighteous cause. The point is that this is not unique to the patent system or to software patents, and that mere repetition of statements about an undifferentiated fear that an unnamed patent will be asserted against a non-profitable competitor, is just engaging in demagoguery.
You anticipate, without even seeing a single patent claim, that Google will be temporarily enjoined by the end of the first quarter and unable to raise a defense. Even without seeing a single patent claim, I doubt it, particularly in view of recent changes in the patent letter. Indeed, for precisely the reasons you raise -- the extraordinary expense of prosecuting a patent lawsuit -- I tend to doubt that the case would even be brought until Festo is addressed by the Supreme Court.
Of course, I would be interested in seeing the patent before I came to a considered, informed opinion.
So, write me again on the last day of March, and we shall see who was correct.
Altavista figures it owns some useful technology and wants to assert it across the world. Fine. Glorious. Let them try.
But before we start marching, let's just remember that what they say they own isn't the same as what they own. Until you see the patent asserted, and consider deeply its claims, you simply don't know how bad (or how silly) all this is. Particularly in the case of web portals, where there are fierce competitors, I wouldn't be too troubled -- these guys can (and will) take care of themselves. They have portfolios too, BTW, and will be quite content to assert those as counterclaims.
The turn of the millenium has had a few sea changes for patent owners, not terribly well-covered in the media. In late December, the Federal Circuit's opinion in Festo virtually turned upside-down the strength of patents where any claim was amended, directly or indirectly. Virtually every existing patent, but particularly every existing software patent, has involved some substantial prosecution history changes. This change in the scope of the so-called "Doctrine of Equivalents" will dramatically impact upon the already narrow scope given to patent claims by the Federal Courts.
Moreover, don't forget that the more nuts the claim, the more likely it is invalid. The less nuts the claim, the less likely it has been infringed. Its a difficult process to drive the patent truck through that tunnel between enforceability and validity, and in so doing, you will discover that the patent system is fairly effectively self-healing.
The combination of Festo and these other factors suggests to me that it isn't time to take up arms. Let's wait and see what patents they wish to assert, and against whom.
My guess, no one anywhere is filing any patent claims that aren't slam-dunks in the first quarter 2001, we're all waiting to see if the Supreme Court takes up Festo again.
Slashdot Mirror
when it comes to software patents, there's no (business) incentive to write narrow independent claims. your average patent attorney seems to tell you, "write the claims as broadly as you possibly can, making sure that your actual invention (the thing you really understand to be your idea) is described in a dependent claim somewhere." so if you think you're patenting a novel method of toasting bread, you may wind up effectively patenting the concept of toasting bread.
if the USPTO lets it slide (which they often do not, but sometimes they do), you totally win. the fact that there's prior art only helps someone who's really willing to fight in court instead of (1) settling or (2) licensing or (3) entering into a cross-licensing agreement.
if they do catch you in the application process, you just rejig the application or file a continuation in a way that preserves the original filing date - no harm, no foul.
While that used to work, it will no longer. I cannot emphasize enough how enormously, incredibly, utterly huge the Festo case is in this regard. Any strategy that began with a few broad claims that were amended to make hay is destined to yield a meaningless patent -- the doctrine of equivalents now has absolutely no application to any element that was the subject of an amendment related to patentability.
Having actually tried a number of these cases, I can tell you that when literal infringement is all that is on the table, patents are easily --often trivially-- engineered around; you simply substitute any known equivalent for something in the claim and you are out of court on Summary Judgment.
And, the neatest thing is this: Festo applies retroactively!!! All those cruddy patents with six-year prosecution histories are suddenly toothless.
Read the case. It will make you smile.
when it comes to software patents, there's no (business) incentive to write narrow independent claims. your average patent attorney seems to tell you, "write the claims as broadly as you possibly can, making sure that your actual invention (the thing you really understand to be your idea) is described in a dependent claim somewhere." so if you think you're patenting a novel method of toasting bread, you may wind up effectively patenting the concept of toasting bread.
if the USPTO lets it slide (which they often do not, but sometimes they do), you totally win. the fact that there's prior art only helps someone who's really willing to fight in court instead of (1) settling or (2) licensing or (3) entering into a cross-licensing agreement.
if they do catch you in the application process, you just rejig the application or file a continuation in a way that preserves the original filing date - no harm, no foul.
While that used to work, it will no longer. I cannot emphasize enough how enormously, incredibly, utterly huge the Festo case is in this regard. Any strategy that began with a few broad claims that were amended to make hay is destined to yield a meaningless patent -- the doctrine of equivalents now has absolutely no application to any element that was the subject of an amendment related to patentability.
Having actually tried a number of these cases, I can tell you that when literal infringement is all that is on the table, patents are easily --often trivially-- engineered around; you simply substitute any known equivalent for something in the claim and you are out of court on Summary Judgment.
And, the neatest thing is this: Festo applies retroactively!!! All those cruddy patents with six-year prosecution histories are suddenly toothless.
Read the case. It will make you smile.
Buy something else instead?
Businesses that rip off their customers by delivering broken product and not accepting returns quickly go out of business.
. . . the fundamental problem of what is wrong with DMCA, and why strong-IP guys like myself are opposed to it, is that it doesn't protect the plaintiff's intellectual property. In fact, the upshot is that it provides patent-like protection for anti-circumvention "technologies" (an overly generous term in many cases) with unlimited term and virtually unlimited scope.
The irony of the DeCSS case is that the subject matter that was labelled contraband was not written or conceived by the plaintiffs, but rather by the defendants! It was the original intellectual property of the defendants that was restrained. This is why the First Amendment is so clearly implicated in this case.
DMCA comes quite close to saying that. The anti-circumvention provisions are not subject to a traditional fair use defense, although there are some defenses for some conduct which would be characterized as fair use. Other fair use, however, does not provide a defense to a cause for unlawful circumvention.
That, of course, is the problem with DMCA -- it makes unlawful conduct that used to be officially sanctioned to support IP policy.
The prior art appears to satisfy the requirements of the bounty, and appears to be covered element-for-element by the broad claims of the patent.
That is the entire point of the Festo case cited in my posting earlier this week. Now, if you ask for too much, and amend a claim *AT ALL* to narrow it for reasons related to patentability, you lose ALL RIGHTS to equivalents for that element.
Festo is huge in this regard, and the former strategy of starting by claiming the world and negotiating downwards is now a quick ticket to a malpractice claim.
Bountyquest only pays for prior art upon which the patent claims read completely. Earlier art which is read on by only some of the elements is ineligible.
Discussions on Slashdot about patent validity are mainly policy discussions by engineers. I view the constant harping on technicalities of specific legal challenges by some people merely as an attempt to sabotage such rational discussions of policy.
That's a shame. By ignoring seminal information and keeping yourself willfully ignorant of what you claim to be technicalities, you remain unable to discern what is relevant to the questions of policy and what is not. If the "technicalities" provide against that which you are criticizing, you will appear foolish when you try to make a change, and if the "technicalities" provide for loopholes, you will miss an opportunity to make real and useful change.
The actual parameters of the patent system are essential to these questions. If you don't understand them, you are out of the ball game, and will quickly find yourself marginalized and discounted.
Of course it isn't useful for purposes of demagoguery to confuse the issues with the facts -- its much easier just to wave your hands and whine. If I am being accused of calling irrelevant arguments irrelevant, I am guilty as charged. But there are good, strong arguments to be made, and the technical community (of which I am also a member) is best positioned to make them.
It would be a shame if those arguments were ignored because a few of us found it more politically expedient for us to remain in bliss.
This is true. Clearly bountyquest thinks so. All the prizewinners' prior art satisfied PRECISELY that criteria.
See http://www.bountyquest.com/arttutorial/arttutoria
f prior art is A+B+C and the Patent is A+B+C+D, then the patent is invalid in my opinion (to a certain degree I must admit.
Were this true, most patents would be invalid. They are not. There are zillions of cases where patents meeting the criteria for "your opinion" have been held to be valid. In short, you don't seem to understand Section 103's requirements concerning unobviousness.
When you already have lots of people using A+B+C and then D comes along, then A+B+C+D is unworthy for a patent because it is obvious to practitioners in the field.
Of course not. There are zillions of cases to the contrary.
All depends upon A, B, C and D. The devil is in the details. Several patents issued on paper clip designs in the past few years, all of which dealt with what you would consider minutia, and all of which included the same basic elements. I have little doubt that they are valid and not rendered obvious on that analysis alone (although they may ultimately be invalid for more particular reasons.).
It isn't that the prior art itself directly makes the patent invalid. It's that the Archie prior art makes idea obvious (and thereby indirectly invalid).
:-)
These words, I do not think that they mean what you think they mean.
The legal requirement of unobviousness in Section 103 of the patent act requires a substantially different analysis than what you are suggesting. It is never enough to say: Behold A, B is obvious.
So, what gives here? Several of the components in the "Preferred Embodiments" strike me as potentially worthy of patent protection, but the actual claims are pretty weak. Does the introductory material that comes before the claims have any weight?
Absolutely it does, but only in particular and limited ways. The specification defines the terms, and to the extent there is any question as to what the claims mean, the specification is the primary device for understanding it. The specification must also provide a written description of the claimed invention sufficient to enable a person of ordinary skill to practice it.
Finally, if the claims uses language in means+function or step+function form, then the claims are deemed to be limited to include the corresponding language to that function as set forth in the specifciation.
If you'd like to get more specific, let's take a particular claim.
Thanks.
Exchange protocol A for protocol B and derived work C for derived work D based on those respective protocols, and the *algorythm* is the same. To a decent computer scientist/programmer, that's basically "obvious". It "obviously" isn't to the USPTO, which I still believe to be the problem.
I'd like to consider myself a prety decent computer scientist and programmer (as well as a fairly hot patent lawyer). In my view, much depends upon what are A, B, C and D. The change in a single line might be seminal or trivial. As I keep saying , the devil is in the details.
Who is talking in the abstract? I have a good idea about what Archie and Veronica are, as well as what the CMGI patents cover. Mr. Emtage does as well. And so do many other people.
You do, do you? Name the patent and the claim. Identify each element claimed in Veronica, and there your are.
If you can't, you don't.
Legal validity is a completely different questions.
If you say so. To me, it is difficult to read the article as suggesting anything other than the legal invalidity of the patent.
Fair enough. Now pick a patent claim which you claim to read on the prior art, and we're in business.
Once again, let me emphasize that it is simply pointless to speak about patents in the abstract. The abstract and general subject matter of the patent simply does not inform the question whether a patent is infringed or invalid. The bottom line is the specifics of the patent claims asserted and a particular apparatus or method usage alleged to infringe. Until you get to the details, you aren't saying anything interesting at all.
With respect to the article:
"Though I'm not a lawyer, the patents being 'defended' by CMGI/AltaVista include basic concepts that were incorporated into the Archie system years before the World Wide Web even existed," said Emtage.
It is clear that Mr. Emtage is not a lawyer. His statement has almost nothing to do with whether or not a particular patent is infringed or invalid. A patent that includes "basic concepts" incorporated into the prior art is not invalid therefor as a matter of law. If the prior art includes "basic concepts" elements A+B+"a blue C", and a later patent claims A+B+C+D, or even A+B+"a green C", the patent claim might well be valid. The devil is in the details, and the article offers none.
"Archie was crawling and indexed FTP sites with fairly sophisticated algorithms even as I was sitting at Internet Engineering Task Force (IETF) meetings with Tim Berners-Lee while he created the World Wide Web," Emtage continued.
For all we know, the patents in question may have already cited, directly or indirectly, to this very prior art. The issue is not whether the patents relate to pre-existing technology -- this is true of virtually EVERY PATENT EVER EVER. The question is whether the prior art was patentably distinguished in a particular claim. Note that the more significantly the prior art is distinguished (read limited), the less "dangerous" is that patent -- the less signficantly the prior art is distinguished, the more likely the patent would be invalid. And this analysis must be performed claim by claim. The broadest claims of a patent might be invalid, and the narrowest not infringed, while one remains that is both valid and infringed. As noted, the devil is in the details.
Talking about this stuff in the abstract is meaningless -- its just whining. Let's get to particulars. Name the patent and the prior art in question, then we can start talking. Until then, we are all spitting in the wind.
How about another line of reasoning? Say that the IP rights are suspended (which sounded perfectly legal in view of the emergency). Say research does suffer a bit in the future. Hell, say entire corporations fall apart, and the vaulted "progress" is stiffled for decades. How is that worse than people suffering and dieing? Corporations are not alive nor is the second derivitive of human understanding. Why value abstractions over one's genetic kin?
This is an age-old argument, and a difficult one that should not be made qualitatively -- because this cuts both ways. Health care costs money, and some people can't afford it. So nationalize it, what the heck? But if we nationalize health care, perhaps folks will go to law school instead of medical school, and health care will suffer. Will more people or fewer people die because of the change? Would more people benefit from the advances in health care in the former scenario, or more people benefit from the advances in availability in health care in the latter? Will there, in fact be advances in the former case, and increased availability in the latter.
These are all hard questions, and ones we shouldn't screw around about with back of the envelope guesses. If that Pharms go belly-up because we took away their property without compensation, would more people die for the lack of the drugs yet to come? I don't know the answer to this question -- I do agree, however, that it is an important one to ask.
Further, the behavior of spending so much more on marketing and admin does not cohere well with saying that R&D will suffer if they are not allowed to make ample profits.
Repeating the argument in different words doesn't improve it. This is still a non-sequitur. There is simply no linkage between the two.
So what if it costs $1B to perform R&D for product A, and it costs $2B to manufacture and sell it. Does this mean that the incentive of a patent monopoly was diminished therefor? Would it cost any less to manufacture and sell it if there were no monopoly? Would the R&D funds still be there because it were so expensive to make?
Does the fact that $1B is less than $2B sufficient to assure that the $1B would be there anyway to support the research if no one could "own it?" If no one could own it, would the economics for the $2B manufacture and sale be unaffected?
Come on. One thing has nothing to do with the other.
Interestingly enough, the claim of patents being needed to finance new research is rebutted with the statistic that two-thirds of the drug companies costs are in marketing and administration; the bulk of their costs aren't in R&D.
However good this may sound, this "argument" is a non-sequitur. What has one (cost of R&D/marketing) thing to do with the other (benefits of the patent system)? Who has ever claimed that a monopoly on the use, sale or marketing of a product would somehow impact upon the costs of manufacturing, advertising and distribution of the same? Still further, the study hardly segregated marketing of patent-related goods against costs of marketing of non-patent-related goods, so the result is itself unuseful.
But for the R&D, there would be no drugs. But for the drugs, there would be nothing to market. No incentive to R&D, no drugs.
If there were drugs, by luck or otherwise, the lack of a monopoly would not justify the investment in marketing, for a generic free-rider would simply sell and distribute their goods at much reduced costs and therefore, for greater margins. No sales, no incentive to R&D or marketing, no drugs.
Unsurprisingly, margins on patented products *ARE* higher than margins on unpatented products. Valuations of pharmaceudical companies and price/equity *ARE* higher for those holding patent technologies than for those who are not.
There may well be argument to be made to support the conclusion, but this one certainly is not. The relative expenses of a company's marketing verses R&D hardly neither supports nor defeats arguments about the virtue of the patent system.
This is not to say unconcionable things have not happened in this business -- only that the argument singled out here isn't part of the best case against either the patent system or that business.
First note: Of course a government monopoly is, in some senses, anti-market. This is true of all monopolies, including the right to exclusively possess real and personal property, by the way. In other senses, these rules, however non-laissez-faire they seem at first blush, can likewise be argued to be pro-market as well.
By providing for a police force to defend my property rights, I no longer need to do so myself. This makes easier the process of buying and selling real estate, and gives me greater incentive to invest in developing my property, which is less vulnerable to abuse by others.
Likewise the argument goes -- a copyright provides incentives to authors to create their works. Indeed, some authors have been screwed over the years by cabals of publishers, who have created a different kind of anti-market force, one that works quite powerfully against invention and creation -- and there are authors who have become powerful enough to buck that trend, such as Stephen King and Formerly-known-as.
However, neither SK or the iconic symbol who wants his old name back now have abandoned copyright, as the article suggests. (Prince, at least, continues to have demand letters written in his name for new songs when they are played in restaurants and by radio stations without his consent) -- they have just found an alternative means of distribution.
And good for them. Their "tipping"-based model is, IMHO, ultimately the new wave. But it is hardly an abandonment of copyright -- just an abandonment of the practices of the old breed of publishers.
And, by the way, Napster is **NOT** about copyright infringement -- it is about the SCOPE of a Copyright. There is no allegation of direct infringement in any of the complaints or briefs of that case -- there cannot be. Napster hasn't engaged in direct infringement. The question there is solely whether they have "contributed" under Copyright law to the infringement of others. And that, is another story altogether.
While there are those who would be pleased to make that claim, that "the current state of intellectual property law is so egregious that intelligent people might actually believe," that's hokum -- sheer demagoguery. No well-educated and intelligent person could buy this story on its face.
While it is "politically correct" in this forum to be anti-IP, and to make things laughable, it is critical to recall that hysteria is one of the traits most effectively used by the pro-strong-IP forces to marginalize and discredit critics of overreaching.
Simply put, it is not really a great idea to try to fight an intellectual war where you are weakest. There are strong anti-IP arguments. This isn't one of them.
Anyone who pretends otherwise is selling something.
While it is nice to be cynical about things, the falsehood (that is, the satirical nature) of the report was apparent on its face. Do the editors truly think that this story was on the level?
Be real.
No it is not. Getting a patent costs next to nothing (more time than money). Having several patents looks good to investors.
Domestic software patents cost between $15K to $25K apiece. I'm glad that is "nothing" to you.
The main use of patents is not to get royalties, but to shut down competitors via injunction and protect a monopoly. Injunctive relief can be obtained before a trial begins, then delay tactics further bleed the defendent.
Temporary injunctions in patent cases are extraordinarily rare, except in the clearest of cases entailing literal infringement, and then only when there exists no plausible case against validity at the time of the hearing. Statistically, the number of injunctions issued each year are insignificant.
Defending against even the sillliest patent claim takes a lot of lawyer time. You may also lose customers who are concerned about your business' future.
Granted, this is true about most any lawsuit. It is particularly true about patent cases. The other side of the poker table however -- it costs a fortune to wage a lawsuit as well.
How much money was spent litigating the Festo case? Maybe Yahoo can afford it, but can you?
No. Festo was litigated from District Court through Summary Judgment and trial, then to the Federal Circuit and the Supreme Court. It was then remanded back to the Federal Circuit for an opinion before a three-judge panel, and then once more the entire Circuit en banc. The legal fees would be ruinous in virtually any scanario.
Such is the virtue of Stare Decisis. Now that the case has been decided, you don't have to fight that battle any more -- you simply cite it to your District Court judge, who will cower and apply it routinely.
One finds interesting legalese about IP law when searching Google for "Federal Circuit opinion Festo".
Hey, if you're that good at finding things, why not go one click deeper? One finds interesting substance when actually reading the opinion.
Seriously, of course the patent system (the legal system as a whole, in fact; but also the government, media and just about anything else) can be abused by an entity that cares not about the expenditure of arbitrary funds in an unrighteous cause. The point is that this is not unique to the patent system or to software patents, and that mere repetition of statements about an undifferentiated fear that an unnamed patent will be asserted against a non-profitable competitor, is just engaging in demagoguery.
You anticipate, without even seeing a single patent claim, that Google will be temporarily enjoined by the end of the first quarter and unable to raise a defense. Even without seeing a single patent claim, I doubt it, particularly in view of recent changes in the patent letter. Indeed, for precisely the reasons you raise -- the extraordinary expense of prosecuting a patent lawsuit -- I tend to doubt that the case would even be brought until Festo is addressed by the Supreme Court.
Of course, I would be interested in seeing the patent before I came to a considered, informed opinion.
So, write me again on the last day of March, and we shall see who was correct.
Altavista figures it owns some useful technology and wants to assert it across the world. Fine. Glorious. Let them try.
But before we start marching, let's just remember that what they say they own isn't the same as what they own. Until you see the patent asserted, and consider deeply its claims, you simply don't know how bad (or how silly) all this is. Particularly in the case of web portals, where there are fierce competitors, I wouldn't be too troubled -- these guys can (and will) take care of themselves. They have portfolios too, BTW, and will be quite content to assert those as counterclaims.
The turn of the millenium has had a few sea changes for patent owners, not terribly well-covered in the media. In late December, the Federal Circuit's opinion in Festo virtually turned upside-down the strength of patents where any claim was amended, directly or indirectly. Virtually every existing patent, but particularly every existing software patent, has involved some substantial prosecution history changes. This change in the scope of the so-called "Doctrine of Equivalents" will dramatically impact upon the already narrow scope given to patent claims by the Federal Courts.
Moreover, don't forget that the more nuts the claim, the more likely it is invalid. The less nuts the claim, the less likely it has been infringed. Its a difficult process to drive the patent truck through that tunnel between enforceability and validity, and in so doing, you will discover that the patent system is fairly effectively self-healing.
The combination of Festo and these other factors suggests to me that it isn't time to take up arms. Let's wait and see what patents they wish to assert, and against whom.
My guess, no one anywhere is filing any patent claims that aren't slam-dunks in the first quarter 2001, we're all waiting to see if the Supreme Court takes up Festo again.