MSFT is American. IBM is American. Oracle is American. Americans have had years of experience developing patented SW technology. The only pieces of SW that I can think of that is European is SAP and MP3.
True.
However, you forget all the embedded software that companies like Infineon, Philips and ST Microelectronics put in their ICs. A lot of this is patented as well and might even work against e.g. MZFT.
Furthermore, a European Software Patent Directive is nice, but for most countries, patents are issued via the European Patent Office (EPO). This Office grants some software stuff, but has more than once made very clear they definitely will refuse anything that does not have any tech stuff in it. This kind of applications doesn't even get searched. It happens, I have seen it more than once.
And when an examiner makes a mistake, you can always file an opposition, in which you can actively fight the patent before the EPO (instead of the passive re-examination before the USPTO).
Furthermore, the EPO is not bound by EU legislation. I do remember a previous discussion that this was wrong, but in this case, it might be a good thing to free software. (ok, there are some 'buts')
As a sidestep, please think about the following question: why should something that is patentable when you implement it with hardware, not be patentable/ protected when implemented in software?
That is correct. It is a common policy when only half of your claims is granted after two official communications of the USPTO: you file a continuation with the rejected claims and let a patent witht the granted claims issue.
This had an additional advantage that the protection of your invention could be extended, since protection used to be granted untill 17 years after the issue of the patent (commonly used for submarine patents like the Lemelson heritage).
With the amendments of USC 35 (US patent law), however, this was 20 years from filing, when filed later than July 1995 (I do not know the exact date). For patents filed before July 1995 and issued after that date, the protection was 17 years after grant or 20 year after filing, whichever was longer.
HOWEVER, for this kind of stuff (continuations), filed after July 1995, the protection is 20 years after the FIRST filing. So the US will be 'freed' from this patent by December 2014.
To a certain extend, this kind of stuff is also possible with the European Patent Office (EPO), filing a divisional. However, as I have understood from US colleagues (I am a European Patent Attorney trainee), it is in the US possible to extend your subject matter and with that, the protection of your patent, pretty far from what you have filed originally. With the EPO, you would go flat on your face; the EPO is very precise with respect to addition of subject matter: strictly prohibited and the rule is applied very strict. And when the EPO makes a mistake, you just file an opposition which you will probably win.
EUR 20 copyright levy on an inkjet printer and EUR 38 for multipurpose stuff? That doubles the price of a CD burner.
Let's see wheter there's a little sanity left in the German House of Lords. If not, this might be an ugly precedent for the implementation of the EU directive in the rest of Europe.
the issue is that the mod chips circumvent copy protection on the x-box, which is illegal.
In US of A, that is. Just one country at the other side of the pond (viewed from European and/or Asian point of view) that does a lot of things a little different than the rest of the world.
Unfortunately, Europe seems more and more likely to follow.
Even if you try to do a proper search, it might be a patent that is in the process and not yet public. This is part of why software patents are so bad.
As soon as a European patent (application) is being asserted to you and you can prove it, the file is open for inspection to you.
With respect to the University stuff:
Funding of universities (at least in NL) is getting less and less, so they need another type of funding. Most of the times, this funding comes from all kinds of companies. This may not be as bad as it seems; I think it is very important that as a master/PhD student you get familiar with corporate research and business. On the other hand, fundamental research should still be possible on universities as well. However, this is getting more and more difficult. I think that is a bad trend indeed.
Yes, sometimes the little guy wins, but more often he doesn't even start because of the risks.
This depends on the costs of litigation. With US litigation cost and procedure (discovery), you can prevent a non-funded individual from winning a case by dragging it for a good year.
In mainland Europe, you can get your case at EUR 50.000 all expenses paid. UK is more expensive, but still about 10% of costs in the US.
Yes, inventors need to be paid, but the way they are paid should not limit follow on innovation.
I agree. That's why I am so happy that there is a research exception in the patent law of my country (research is not infringing), as well as probably a lot of other European countries. For US, I do not know.
The differences between US of A and Europe go a lot further than merely the quarrel about Iraq.
They seem to think they are the masters of this turf, and that nobody can tell them what to do.
You may be right on this. At the latest diplomatic conference, a lot of Articles of the EPC have been amended as referring to Rules. The Articles can only be amended by the diplomatic conference and have to be ratified by national governments. The Rules, however, can be amended by the administrative counsel, without consent of the Contracting States.
Then again, there may be more backdoor diplomacy than you can imagine. Open source has won quite some lobby battles in Europe.
The press release is quite chilling about the way even the patent examiners themselves can be told to just shut up and keep approving patents whether or not you have the proper resources to critically evaluate them.
As it is not an EPO press release, I question it. This does not mean I think it is untrue.
What examiners also have to take into account, it that European Patents can be opposed in an inter partes procedure. Unlike with the USPTO, a party can challenge the validity of a granted European patent, provide evidence and be a party in an invalidation procedure before the EPO. At merely a fraction of the cost of a litigation before a US court.
You're being criptic about exactly what work you do and are preparing for.
I have finished the educational part of my course for national patent attorney and I if everything goes well, I can be sworn in at about 9 months from now. Besides that, I am studying for the European Qualifying Exam. When I pass the Exam, I am a European Patent Attorney.
If you haven't already, read this entire paper (the firstmonday one, not just the link I supplied) and let the critical points sink in.
The article emphasises the effects for SME's. Correct, since the represent a very large part (majority) of the economy. According to the article, they suffer from the current system. But you may be surprised on how many SME's can make things very annoying for large companies and collect quite some amounts of money. You may read the other aricle here on/. on how Sony got sued.
The press release is in my opinion not fully correct on the EPO.
Yes, the EPO is not bound by the EU.
However, the EU can nevertheless issue directives (guidelines to amend national law) and regulations (binding law) relating to patents. This can be extended towards the EPO, by letting EU member states have it put in the EPC (European Patent Convention). For example, this happened with the biotech directive.
Besides that, it is still possible to invalidate patents in front of a national court and in the future in front of a European court. With this, bear in mind that litigation costs in Mainland Europe are about 1% of costs in US (For UK, take 10%).
With respect to the remark in the posting: The truth is (as explained in this very good paper) that the patent authorities in both the US and Europe have bent over backwards to extend the scope of patents.
That is not fully true for the EPO. The software patent policy goes quite far, but the EPO has mentioned several times that it will not do anything with busines method patent applications; they will not even be searched, say bye bye to your search fee. And this is not likely to change in the near future.
The paper lays out how patent professionals keep pushing this,
That's what I get paid for. The examiner gets paid for not allowing patents that do not meet the requirments of the EPC.
Although I am not in favour of this, it might have helped development in certain ways.
Gauss was generally known as a prick, keeping all his algorithm for himself. When someone came up to Gauss showing him a just developped algorithm, Gauss would just brag that he had developped the same over ten years ago. He just kept everything to himself.
This is just an example, similar cases are known for other famous mathematicians.
Imagine what would have happened when Maxwell wouldn't have had Gauss' theorems at his disposal, because Gauss had died without making his theorems public?
Adequate registry, with the possibility of a limited lifetime monopoly might have had motivated Gauss to publish early.
However, IMO this is not applicable in this era, unless we want to thwart technological progress.
During my professional education, a teacher (head of IP department multinational industry firm) taught me that in 67% of the invalidity cases without jury, the patent would stand and that with a jury, in 75% of the cases, the patent would hold (in US that is, you cannot imagine how happy I am with a legal system without juries but with professional judges).
Is it safe to draw a preliminary conclusion here that these patents of Stambler are really crappy?
At least in Netherlands, invalidation of a patent has no retro-active effect on license agreements. Sounds reasonable to me: if I would take a license (or a more practical case: negotiate a license for a client of mine), I would check validity of the patent first. When the companies signing the license agreement have not done so: sue your attorney. He should have giving you that advice. And when the attorney has given that advice, but the companies thought the search would be too expensive, so they skipped it: quite stupid.
Perhaps 35 USC or 37 CFR has a similar clause. I am no US legal expert, so I don't know.
Article: Norway is currently evaluating the implementation of the European Union Copyright Directive (EUCD) regulating distribution of films over the Internet.
AFAIK, Norway is not a member of the EU. Why would the implement this directive?
Just imagine that the public prosecutor made a mistake with the evidence and a psychopath murderer would be acquitted because of just a little mistake.
I am glad to live in a country where 'double jeopardy' is possible.
colleague of mine just informed me that the European Commission (governmental body of the EU) has prohibited sale of ink cartridges that cannot be recycled because of a nasty chip inside, that makes your cartidge reject by your printer after refill.
Reason for this is that printer manufacturers were trying to shield of the market for refill or cartridges and refilled cartridges by their monopoly, which is not allowed under European law.
Here is a link on the investigation, I am not able to locate any news on the final decision on the net. Super Mario strikes again or at least will strike again.
Any human can play Go. But if you come up with an algorhythm to let a computer play Go by itself, then that's a patentable invention.
I beg to differ, at least for the European patent system. For the European patent system, "schemes, rules and methods for performing metal acts, playing games" (...) "as such" are excluded from patentability. We're talking a computer programme here, which can in most cases be patented, provided it has a further technical effect. This would be absent in learning a computer to play Go.
In Japan, you'd probably fail to get it patented as well.
For the US, you're probably right, as we all know.
I do not agree with you; Edison patented virtually anything that came up in his mind. I guess you still use candles to light your room?
Yes, I agree that in some cases patenting can stiffle innovation. But I do not see that as a reason to block patents alltogether, since this would prevent companies/people from earning back innovation costs.
IMO, it would be better to prevent competition stiffling monopolies created by means of patents and provide legislation for this. This still leaves on on hand a fair chance of earning back research and development cost and earning some extra as a reward for a good idea and on the other hand promote competition, resulting in a fair price for consumers.
International treaties like the TRIPs agreement provide possibilities for compulsory licenses, altough not every government has adopted this kind of provisions in their legislations. The relevant subject matter can be found in Art. 31 (follow the link above to patents).
AFAIK, the US government has not implemented anything on compusory licenses for economic purposes.
Prior art does not invalidate a patent or make an invention unpatentable unless the prior art covers every single part of the new patent down to the tiniest details.
That is incorrect. The prior art has to cover every detail of the claims to invalidate the claims, which determine the protection. No more, no less.
In the Netherlands, it's best to have licenses (publically) registred at the office for industrial property (species of intellectual property). In that way, they work towards third parties as well (important in case of sale of patent right and the like).
You might have something like that in the US as well. When NCR is wise, they have registered their licenses and you an look them up.
Seriously, it needs to be redone. We need some sort of bill/legislation/executive order on these stupid patents.
I absolutely do not agree with you.
You Americans already have 35 USC and I think that's good enough to stop most bogus stuff. With this legislation, you can have patents revoked when they lack novelty, isn't it?
IMHO, your problem is that your patent office has appointed silly examiners. From US colleagues I've heard that most of them stay there for only a couple of years and then leave the place. There goes your quality...
Why doesn't this happen in Europe, where requirements for novelty and inventive step (or non-obviousness) apply to a very large extent in the same way? Because European examiners (at the European Patent Office, that is) get paid muchos much a lot. And don't pay taxes.
In that way, you keep your good people and quality of the patents you grant.
Why not ask for re-examination? With additional prior art?
Protection is provided by what is laid down in the claims, not the abstract.
A good examiner searches for the terms of the claims. And finds the proper prior art when available.
A lot patent stories posted here on 'they are patenting the world' are plain BS, since in the end, most claims are rather very specific.
In my opinion, this is, however, not the case here. It seems to me the examiner has been sleeping. And his assistant as well.
However, in the rest of the world, things are somewhat different. For example, for other countries than US, the US assignee is the applicant and is printed on the publication of the patent application. This cannot be hidden (you can only hide the names of the inventors, when they agree).
So, instead of using the USPTO database, you use the search engine of the EPO, Esp@cenet. For Japan, there's the JPO.
You just search for microsoft as the applicant. Europe 288, Japan 293. Then, you search for Horvitz in Europe as applicant: no result. Same for JPO.
Next, I have searched for Horvitz in the EPO database and checked the applications with inventor Horvitz, without a criterion for applicant. All Eric Horvitz are with Microsoft.
My conclusion is therefore, that Microsoft does not file stealth stuff in Europe.
The number of applications in the US might be more, since some European patent applications claim priority of multiple US & PCT applications.
Just as well, I recommend the Esp@cenet search engine anyway; it cover the world instead of just the US.
Than the US, and perhaps Australia. With 99.99% certainty, I can tell you that this one will not be granted by the European and Japanese patent authorities, since the only thing real new is that you have to pay for your test.
And at least the European Patent Office keeps repeating that they will never ever grant patents for this kind of stuff (pure business methods, with only the new feature being that you can earn money with it), so the solution for others is quite simple: put your server in Europe and chances of winning an infringement case will surely rise.
Slashdot Mirror
Well, that's a good basis for a discussion.
NOT!
True.
However, you forget all the embedded software that companies like Infineon, Philips and ST Microelectronics put in their ICs. A lot of this is patented as well and might even work against e.g. MZFT.
Furthermore, a European Software Patent Directive is nice, but for most countries, patents are issued via the European Patent Office (EPO). This Office grants some software stuff, but has more than once made very clear they definitely will refuse anything that does not have any tech stuff in it. This kind of applications doesn't even get searched. It happens, I have seen it more than once.
And when an examiner makes a mistake, you can always file an opposition, in which you can actively fight the patent before the EPO (instead of the passive re-examination before the USPTO).
Furthermore, the EPO is not bound by EU legislation. I do remember a previous discussion that this was wrong, but in this case, it might be a good thing to free software. (ok, there are some 'buts')
As a sidestep, please think about the following question: why should something that is patentable when you implement it with hardware, not be patentable/ protected when implemented in software?
This had an additional advantage that the protection of your invention could be extended, since protection used to be granted untill 17 years after the issue of the patent (commonly used for submarine patents like the Lemelson heritage).
With the amendments of USC 35 (US patent law), however, this was 20 years from filing, when filed later than July 1995 (I do not know the exact date). For patents filed before July 1995 and issued after that date, the protection was 17 years after grant or 20 year after filing, whichever was longer.
HOWEVER, for this kind of stuff (continuations), filed after July 1995, the protection is 20 years after the FIRST filing. So the US will be 'freed' from this patent by December 2014.
To a certain extend, this kind of stuff is also possible with the European Patent Office (EPO), filing a divisional. However, as I have understood from US colleagues (I am a European Patent Attorney trainee), it is in the US possible to extend your subject matter and with that, the protection of your patent, pretty far from what you have filed originally. With the EPO, you would go flat on your face; the EPO is very precise with respect to addition of subject matter: strictly prohibited and the rule is applied very strict. And when the EPO makes a mistake, you just file an opposition which you will probably win.
Let's see wheter there's a little sanity left in the German House of Lords. If not, this might be an ugly precedent for the implementation of the EU directive in the rest of Europe.
I didn't think that. You might have read more in my posting than I actually meant.
in part because I very dissatisfied with what is available in the corporate America.
Well, I can't judge corporate America and the way research & education are funded, since I do not know too much about it.
In US of A, that is. Just one country at the other side of the pond (viewed from European and/or Asian point of view) that does a lot of things a little different than the rest of the world.
Unfortunately, Europe seems more and more likely to follow.
As soon as a European patent (application) is being asserted to you and you can prove it, the file is open for inspection to you.
With respect to the University stuff:
Funding of universities (at least in NL) is getting less and less, so they need another type of funding. Most of the times, this funding comes from all kinds of companies. This may not be as bad as it seems; I think it is very important that as a master/PhD student you get familiar with corporate research and business.
On the other hand, fundamental research should still be possible on universities as well. However, this is getting more and more difficult. I think that is a bad trend indeed.
yes
Yes, sometimes the little guy wins, but more often he doesn't even start because of the risks.
This depends on the costs of litigation. With US litigation cost and procedure (discovery), you can prevent a non-funded individual from winning a case by dragging it for a good year.
In mainland Europe, you can get your case at EUR 50.000 all expenses paid. UK is more expensive, but still about 10% of costs in the US.
Yes, inventors need to be paid, but the way they are paid should not limit follow on innovation.
I agree. That's why I am so happy that there is a research exception in the patent law of my country (research is not infringing), as well as probably a lot of other European countries. For US, I do not know.
The differences between US of A and Europe go a lot further than merely the quarrel about Iraq.
You may be right on this. At the latest diplomatic conference, a lot of Articles of the EPC have been amended as referring to Rules. The Articles can only be amended by the diplomatic conference and have to be ratified by national governments. The Rules, however, can be amended by the administrative counsel, without consent of the Contracting States.
Then again, there may be more backdoor diplomacy than you can imagine. Open source has won quite some lobby battles in Europe.
The press release is quite chilling about the way even the patent examiners themselves can be told to just shut up and keep approving patents whether or not you have the proper resources to critically evaluate them.
As it is not an EPO press release, I question it. This does not mean I think it is untrue.
What examiners also have to take into account, it that European Patents can be opposed in an inter partes procedure. Unlike with the USPTO, a party can challenge the validity of a granted European patent, provide evidence and be a party in an invalidation procedure before the EPO. At merely a fraction of the cost of a litigation before a US court.
You're being criptic about exactly what work you do and are preparing for.
I have finished the educational part of my course for national patent attorney and I if everything goes well, I can be sworn in at about 9 months from now. Besides that, I am studying for the European Qualifying Exam. When I pass the Exam, I am a European Patent Attorney.
If you haven't already, read this entire paper (the firstmonday one, not just the link I supplied) and let the critical points sink in.
The article emphasises the effects for SME's. Correct, since the represent a very large part (majority) of the economy. According to the article, they suffer from the current system. But you may be surprised on how many SME's can make things very annoying for large companies and collect quite some amounts of money. You may read the other aricle here on /. on how Sony got sued.
Yes, the EPO is not bound by the EU.
However, the EU can nevertheless issue directives (guidelines to amend national law) and regulations (binding law) relating to patents. This can be extended towards the EPO, by letting EU member states have it put in the EPC (European Patent Convention). For example, this happened with the biotech directive.
Besides that, it is still possible to invalidate patents in front of a national court and in the future in front of a European court. With this, bear in mind that litigation costs in Mainland Europe are about 1% of costs in US (For UK, take 10%).
With respect to the remark in the posting:
The truth is (as explained in this very good paper) that the patent authorities in both the US and Europe have bent over backwards to extend the scope of patents.
That is not fully true for the EPO. The software patent policy goes quite far, but the EPO has mentioned several times that it will not do anything with busines method patent applications; they will not even be searched, say bye bye to your search fee. And this is not likely to change in the near future.
The paper lays out how patent professionals keep pushing this,
That's what I get paid for. The examiner gets paid for not allowing patents that do not meet the requirments of the EPC.
IANAL (still 9 months to go)
Gauss was generally known as a prick, keeping all his algorithm for himself. When someone came up to Gauss showing him a just developped algorithm, Gauss would just brag that he had developped the same over ten years ago. He just kept everything to himself.
This is just an example, similar cases are known for other famous mathematicians.
Imagine what would have happened when Maxwell wouldn't have had Gauss' theorems at his disposal, because Gauss had died without making his theorems public?
Adequate registry, with the possibility of a limited lifetime monopoly might have had motivated Gauss to publish early.
However, IMO this is not applicable in this era, unless we want to thwart technological progress.
Is it safe to draw a preliminary conclusion here that these patents of Stambler are really crappy?
Do I have to take this thread serious? Watch out, or I'll sue you. ;-)
Perhaps 35 USC or 37 CFR has a similar clause. I am no US legal expert, so I don't know.
Norway is currently evaluating the implementation of the European Union Copyright Directive (EUCD) regulating distribution of films over the Internet.
AFAIK, Norway is not a member of the EU. Why would the implement this directive?
I am glad to live in a country where 'double jeopardy' is possible.
colleague of mine just informed me that the European Commission (governmental body of the EU) has prohibited sale of ink cartridges that cannot be recycled because of a nasty chip inside, that makes your cartidge reject by your printer after refill.
Reason for this is that printer manufacturers were trying to shield of the market for refill or cartridges and refilled cartridges by their monopoly, which is not allowed under European law.
Here is a link on the investigation, I am not able to locate any news on the final decision on the net. Super Mario strikes again or at least will strike again.
I beg to differ, at least for the European patent system. For the European patent system, "schemes, rules and methods for performing metal acts, playing games" (...) "as such" are excluded from patentability. We're talking a computer programme here, which can in most cases be patented, provided it has a further technical effect. This would be absent in learning a computer to play Go.
In Japan, you'd probably fail to get it patented as well.
For the US, you're probably right, as we all know.
Yes, I agree that in some cases patenting can stiffle innovation. But I do not see that as a reason to block patents alltogether, since this would prevent companies/people from earning back innovation costs.
IMO, it would be better to prevent competition stiffling monopolies created by means of patents and provide legislation for this. This still leaves on on hand a fair chance of earning back research and development cost and earning some extra as a reward for a good idea and on the other hand promote competition, resulting in a fair price for consumers.
International treaties like the TRIPs agreement provide possibilities for compulsory licenses, altough not every government has adopted this kind of provisions in their legislations. The relevant subject matter can be found in Art. 31 (follow the link above to patents).
AFAIK, the US government has not implemented anything on compusory licenses for economic purposes.
That is incorrect. The prior art has to cover every detail of the claims to invalidate the claims, which determine the protection. No more, no less.
You might have something like that in the US as well. When NCR is wise, they have registered their licenses and you an look them up.
I absolutely do not agree with you.
You Americans already have 35 USC and I think that's good enough to stop most bogus stuff. With this legislation, you can have patents revoked when they lack novelty, isn't it?
IMHO, your problem is that your patent office has appointed silly examiners. From US colleagues I've heard that most of them stay there for only a couple of years and then leave the place. There goes your quality...
Why doesn't this happen in Europe, where requirements for novelty and inventive step (or non-obviousness) apply to a very large extent in the same way? Because European examiners (at the European Patent Office, that is) get paid muchos much a lot. And don't pay taxes.
In that way, you keep your good people and quality of the patents you grant.
Why not ask for re-examination? With additional prior art?
A good examiner searches for the terms of the claims. And finds the proper prior art when available.
A lot patent stories posted here on 'they are patenting the world' are plain BS, since in the end, most claims are rather very specific.
In my opinion, this is, however, not the case here. It seems to me the examiner has been sleeping. And his assistant as well.
However, in the rest of the world, things are somewhat different. For example, for other countries than US, the US assignee is the applicant and is printed on the publication of the patent application. This cannot be hidden (you can only hide the names of the inventors, when they agree).
So, instead of using the USPTO database, you use the search engine of the EPO, Esp@cenet. For Japan, there's the JPO.
You just search for microsoft as the applicant. Europe 288, Japan 293. Then, you search for Horvitz in Europe as applicant: no result. Same for JPO.
Next, I have searched for Horvitz in the EPO database and checked the applications with inventor Horvitz, without a criterion for applicant. All Eric Horvitz are with Microsoft.
My conclusion is therefore, that Microsoft does not file stealth stuff in Europe.
The number of applications in the US might be more, since some European patent applications claim priority of multiple US & PCT applications.
Just as well, I recommend the Esp@cenet search engine anyway; it cover the world instead of just the US.
And at least the European Patent Office keeps repeating that they will never ever grant patents for this kind of stuff (pure business methods, with only the new feature being that you can earn money with it), so the solution for others is quite simple: put your server in Europe and chances of winning an infringement case will surely rise.