No you can't. The US government enjoys sovereign immunity. That means it cannot be sued unless there is a specific law allowing it. There is a law, the Federal Tort Claims Act ("FTCA"), that provides blanket authorization to sue the government. However, the FTCA only allows suits based on "operational" aspects of government duties. "Discretionary" decisions are not actionable. Deciding that something is patentable is clearly "discretionary".
Kinda makes sense, otherwise the gov't would be sued all the time for every decision that is made.
I'm a lawyer and I resent that. I know you said it with a smilie but lots of people take what you said literally. People forget that these jerks (ActivBuddy) actually went out and hired the lawyers to secure a patent and will hire more to sue or threaten to sue. If you don't like the actions of the patent holder, blame the patent holder. If you don't like what the law allows the patent holder to do, blame the laws and those who write them. I don't see why there is always a lawyer-bashing post in this type of thread. I guess it makes people feel good to say it.
If the inventor has a patent, he has already proven to the PTO that it is valid. What is the point of making her do it again?
An inventor walks into court with only a presumption of validity. It is up to the challenger of such validity to prove otherwise. If you are going to remove the presumption, you may as well just go to a registration system where patent applications are never examined before they issue. That way, you will only sue on apatent if you are convinced that it is valid but you don't have to prove it twice.
As one of the articles you cite clearly states, the "Wheel" inventor did not get a patent in the sense we are discussing it here. He got an "Innovation Patent" which is not examined before it is granted. It is just a piece of paper which does not truly confer any rights on the inventor.
The owner of an "Innovation Patent" cannot enforce the patent until after it is examined. This type of patent should really be called a registration. IMHO it is useless and nothing but a moneymaker for the Australian patent office
Actually, there are a few types of inventions where the patent office requires some proof that they work (although an explanation as to why they work is never required) The inventions in these categories are there because too many crackpots have tried to patent non-working inventions.
The categories include: anything that violates the rules of physics (i.e., perpetual motion, faster thatn light of speed travel, etc.); cures for aids; cures for cancer; etc.
Only an idiot (or someone who does not want to commercialize his invention) would set such a high royalty. Your analogy makes an assumption that the owner of the "pin patent" would not be driven by the same capitalistic rules as the inventor who wishes to pay the royalties.
Somerthing else which has not been mentioned is that the guy with the invention for the implant can still get his patent even if it specifies need for the exotic material. If his invention is so great, a huge market will develop for the material. However, the owner of the material's patent cannot sell his material for use as described in the implant patent. Therefore, a symbiotic relationship will be formed where both parties have an incentive to cross-license their patents. This is the basic principle behing "improvement" patents.
You keep calling it inducement. The cause of action is interference with, not necessarily inducement to break the contract. If someone takes an action which tortiously prevents me from fulfilling a contractual obligation (i.e., it forces a party to breach, rather that inducing a party to breach) then the cause of action is properly pled.
I have seen your views on US law in other posts. Lets just say that I completely deisagree with you. I think it was Churchill who said that democracy is the worst form of government ever devised by man, that is, unless you compare it to every other form of government. I feel the same about the US legal system. It is not perfect but, boy, has it served our country well. I think the proof is in the pudding!
Your point is well taken on the UTP argument I raised. You are prolly right.
The contract or "commercial relationship" is between the Spammer and its clients. He can argue that the ISP and the blackilst provider is tortiously interfering with that contract or commercial relationship. I don't think it is a great case but I can see it surviving a motion to dismiss for facial insufficency of pleadings (at least under US law).
Another claim one could make in the US would be for unfair trade practices, but that is statutory so I am not sure they have something similar in Australia.
Again, I have not carefully looked at the facts of this case (and prolly won't) so my analysis may not be applicable. Just thought I would add to the discussion.
The cause of action may be for tortious interference witha commercial relationship (or the Australian equivalent thereof). But I haven't really looked into it
Your first point is excellent. I have no good answer.
I disagree with your second point. As you state, copyright is a right. It is not granted, it is created with the work. When the copyright expires, the author looses the right to sue, and we gain the right to copy. But the author need not make it easy to copy. If not, where do we draw the line? Should book authors be rqured to privide photocopiers to enable those of us who cannot afford the to exercise our right to make copies? I know my example is ridiculous but it serves to illustrate the extermes to which this can be taken and the fact that the problem is not limited to digital works.
As an aside, remeber that an artist must provide a copy of any registered work to the copyright office which should be reproducible by the public upon expiration of the copyright. Therefore, the problem you are concerned with is likely not to have a serious impact.
I am not sure which statement you are referring to (a) that copyrights attach upon creation; or (b) that the intent of the author to release or publish the work is irrelevant to the stength of the copyright. Let me know and I'll be glad to look up some cases.
To address your comments, I think we have to make a distinction between copyrights and patents. I don't think they can be mixed together in this discussion. You have the "bargain" between the individual and the governmen with regard to patents wrong. The quid-pro-quo is that in exchange for disclosing his invention (or making it "patent" or obvious in old English, hence the name), the inventor gets a monopoly which is limited in time. It really has nothing to do with enforcement.
An inventor has a choice, get a patent by which you disclose your invention to the world and in exchange you get an absolute monopoly. This means that nobody can practice your invention, even if they develop it independently of you. The catch is that the monopoly is limited in duration and after expiration the invention belongs to everyone. Alternativelly, the inventor can choose to maintain his invention secret forever as a trade secret. However, he risks someone elese developing the invention independently in which case he would have no recourse. Note that a trade secret is still somewhat protected. That is, if it is stolen or obtain through illegal means, you can sue and get damages.
Which choice is made by the inventor will depend on how fasible it is to maintain the invention a secret. Use the Coca Cola example. Lets assume that recipes were patentable, if Coca Cola had obtained a patent, it would have lost its exclusivity long ago. They wisely chose to go the trade secret way because they know that it is nearly impossible for anyone to "reverse engineer" their recipes. Other types of inventions (software, for example), are much more easilly reverse engineered and therefore trade secrets are really not feasible.
Copyrights, are a completely different beast. They arise from the simple fact that the founding fathers believed that an individual should be entitled to control his/her own expressions for a limited time. No bargain is really implied. Therefore, the fact that some people choose to make it more difficult for others to copy their works, is not really treated as a waiver of copyright. Although you can tell an author that his/her "limited time" has expired, you can't require them to make it easier for others to copy their works. If you did (as I wrote somewhere else in this thread) then an author who has a copyright on an unpublished work would be compelled to publish it at the expiration of the copyright. To use another example, lets say I was a painter and I created a beautiful painting which became copyrighted upon creation. Lets say that 100 years later the painting ends up in the collection of a private collector who bought it legally. Now, lets say the copyright on the painting expires while it is owned by the collector. Should the collector now be forced to exibit the painting in order to "live up to his end of the bargain"? I think you see the absurdity in that.
To address your conclusion, there is no quid-pro-quo in copyright. The public does not have a "constitutional right" to a work whose copyright has expired. All the expiration means is that the author has lost his/her right to sue if the work is copied.
I apologize if I didn't make myself clear. I was really addressing the statement that the intent of the author to release (or not release) a work into the public could osmehow curtail his/her copyrights.
To address the point you make, which is well taken, the DMCA states: No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The "title" here is title 17 of the US Code which covers copyright. Therefore, "works protected under this title" are, inherently, works which are still under copyright protection. Removing copyright technology of a work whose copyright has expired, therefore, would not violate the DMCA.
The author of the work, however, is not required to make his work easier to copy just because the copyright has expired. The law presumes that a work whose copyright has expired has been sufficiently exposed so that it will be "copyable". If the opposite was true, then the owner of a copyright over an unpublished work would be essentially compelled to publish it when the copyright expires. However, I am not minimizing your concern. This is a very valid concern which I had not thought about. It probably should have been addressed by the DMCA but wasn't.
I see the technology progressing to the point where the only available medium where a work whose copyright has expired is a protected digital file which cannot be copied. On the same token, it is the author's work and she is free to buplish it in whatever medium she wants. Bottom line is, you cannot force an author to publish a work in a a medium which is easy to copy.
This is not really a consideration as copyright laws do not care whether the author intended works to be released to the public domain. Copyright attaches to a work from the moment of creation, regardles of the intentions of the author. This is self evident from the fact that non-published works are justa s copyrightable as published ones. Of course, an author is alway free to renounce to a copyright and "donate" her work to the public domain
You have never had to send your work to the LoC (i.e., register the work) to get a copyright. You only need to register if you intend to file suit and/or to recover damages in the case of infringement. Ther reason for having a copy at the LoC is not really so that a copy exists when the work goes into the public domain (although that is certainly a "side effect"). The reason for the LoC retaining a copy is so that tyhe author has proof at alater time that he indeed created the work on a date ate least as early as when the LoC received it.
As for software copyrights, in order to register them you must attach the source code and have had to for a long time. The only exception is if the source code is more than 100 pages long in which case you ahve to include only the first and last 50 pages. Unless the author redacts the code and swears that it is a trade secret, the entire source code is freely viewable by the public from the time it is registered.
Re:"Original" Copyright law and Patent law
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That is a valid point. By its nature, the patent term which was originally granted is arbitrary. They just picked a number that they thought was a fair compromise. In essence, you want to make the term as short as possible while still providing enough incentive to innovate. In fields other than software, we are bound by international treaty to the current term (20 years from the date of the APPLICATION, which translates to approximately 17 years of effective term). But since most of the world does not recognize software patents, I don't see why we cannot set a shorter term for those.
Re:"Original" Copyright law and Patent law
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The framers of the constitution specifically discussed and rejected the notion of "exclusive" rights over mathematical formulae or scientific truths, because they believed it would not work, etc. As I'm sure you know, any program can be represented as a mathematical formula and so was not considered patentable.
Actually, although I believe it is not really discussed in the Constitution, what is prohibited is patenting of a "law of nature" which a formula or algorithm is considered. Pure algorithms are still not patentable. But a process which embodies an algorithm and produces tangible results is. If you think such a process should not be patentable, them most patents should never have been issued. The very first patent issued in the US was for a process of making potash (a kind of fertilizer, I think) Certainly, that process can be distilled into an algorithm at its most basic level.
Because of the over-reaching of a bunch of lawyers and greedy companies, software is the only "writing" that can also be patented... This is overkill because copyright alone is sufficient to give a software developer "exclusive rights" to his/her writing
Writings are not what is patented, concepts are. That is why patents are the only real way to protect software. If you just copyright them, it is very easy to go around the laws. If you copyright the object code, all a copier has to do is recompile the software with a different compiler and you end up with a different "writing". If you copyright the source code, all they have to do is port the software to a different language and, again, you've gone around the copyright.
Patents are being granted for techniques that have been in use for many years. Patents are being granted for using old techniques in trivial new applications which patents are then being abused by lawyers and companies who build up portfolios of these non-innovative "patents" and then use them to extort money out of legitimate companies and developers who are in fact using the same techniques that have been around for decades.
I fully agree with you. As I have posted before, the problem is not software patents but bad software patents. Patents on software which is not novel, or which is obvious should not have been granted in the first place, and this is where alot of work has to be done. Not by passing new laws or repealing old ones but by enforcing the ones we have.
Re:You misrepresent the phrase.
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A few points in response to this:
If you disagree with the notion that granting a monopoly to an inventor (of software or anything else) does not promote progress, then your disagreement is not with me. You disagree with the framers of the Constitition and have a problem with the concept of patents in general. No real need to continue arguing the point
You are flat-out WRONG in saying that patents are granted to the first to disclose, not the frst to invent. In fact, the complete opposite is true. In the US, unlike the rest of the world, only the person who first invented is entitled to a patent, regardless of who disclosed it first or who filed a patent application first
I disagree with your statement that preventing an invention from dying with its inverntor is a primary goal of patents. The goal is to make the information freely available, as soon as possible, to provide a framework for improving the invention and for the technology to be available as soon as the patent expires (which can be as early as 4 years from the date it issues) Therefore, the fact that software can be backed up (which, BTW, is also true for any type of invention, just write it down) is a complete non-sequitor
Finally, I think the problem is not software patents in general but rather bad software patents. That is patents which are issued despite the fact that what they claim is not novel or is obvious or both. This happens because of a combination of ineptnes by the USPTO in examining applications and the lack of resources given to the USPTO by Congress. You may not know this but the USPTO is one of the few gov't agencies which receive less funds than they collect in fees. I agree that far too many bad patents are issued and something must be done about it. If the USPTO doesn't, the Courts will (by invalidating the bad patents)
Actually, if you look at the patent application found here, you will note that they cite NO prior art (patent or non-patent) which is a dead giveaway that they know they have prior art problems. This thing will never issue and anyone who pays a royalty -- read blackmail -- will be throwing away their money.
Re:Author Obviously Doesn't Know Much About Patent
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I did some research. I think I found a non-provisional application filed by these bozos. The link to the application is here
Of course, there still remains the issue of this POS ever issuing!
Author Obviously Doesn't Know Much About Patents
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Exit Exchange filed a provisional patent application in May 2000 and doesn't expect a ruling from the U.S. Patent and Trademark Office for at least another year
Uhm... provisional applications are NEVER examined and therefore the Patent Office never "rules" on them. They are just placeholders for the "real" (non-provisional) application. They have to file a non-provisional application which is then queued for examination. The Patent Office will probably not act on the non-provisional application for 3+ years after it is filed
But the company founders are not going to just sit back and wait for federal bureaucracy to take its course
Its nice to hear how proactive they are but they really don't have much of a choice. The law is clear that they cannot sue for patent infringement until after they have an issued patent.
Exit Exchange is taking advantage of a recent change to patent law that enables it to seek royalties from companies for using its technology even before its patent is granted.
The "new law" allows the applicant of a non-provisional application to recover damages from the time he makes his application public ONLY IF AND WHEN the application issues into a patent. AFAIK, there is no non-provisional application, the application has not been made public, and no patent has issued. It may be quite some time, if ever, before these guys collect one red nickel.
"Because of the new law, we're now free to put anyone on notice and let them know that damages are accruing,"
Again, putting anyone "on notice" is not sufficient, you must have a non-provisional application on file, it must be published, and you can only get damages if you actually get the patent. These guys are blowing smoke!
Re:"Original" Copyright law and Patent law
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What exactly renders a patent "soft" in your proposed framework? Is a patent "soft" if it somehow affects you? I just don't follow why you think that someone who happens to develop a novel, useful and nonobvious method of solving an existing need in the software field should deserve any less protection than someone who invents a better mousetrap.
In fact, I would argue that since software is one of the most "useful scineces" today, software is deserving of even more protection than most mechanical inventions.
It is very nice that you can quote the constitution but why don't you try to actually understand what it says. How does software programming not "promote the progress of science and useful arts"? How is a programmer not an "author and inventor"? How is novel, useful and nonobvious software not a "writing and discovery"? and, why should software programmers be treated differently and not be entitled to "exclusife rights"?
Your quote from the constitution eviscerates your own argument.
practically speaking, very few patents will actually be commented on, and when they are it should just point examiners in the direction of some prior art to aid in their searches
I disagree. And I think a seasoned examiner (if you can find one, that is) would too. If we had a pre-grant publication for comment, people who do not want a patent to issue for specious reasons will abuse the system to bog down the application.
But I don't want to really dwell on this point. The real heart of the problem is not the system being used. In fact the Patent office has set up an entire new layer of examination for business method patents (software patents in patenteese) which is supposed to improve the quality of the patents.
The problem is that the Patent Office is not properly funded by congress. This requires examiners, who have a quota of applications to get through, to spend a ridiculously low amount of time on each application. Combine this with the fact that examiners are paid very little and as soon as they get a little experience (or their foreign work permit goes through) they leave the Patent Office. This results in a very demoralized, overworked and inexperienced core of examiners.
The result of this is bad patents. If there weren't so many bad patents out there there would not be such an outcry right now and we would not be seing these kinds of abuses.
1. Actually, patent prosecution (the process of applying and obtaining a patent) is an ex parte proceeding, meaning it is conducted only between the applicant and the examinner. There is really no set mechanism for the public at large to comment on published applications.
2. Patent applications began to be published only recently (i.e., only applications filed after Nov. 29, 1999) and is only mandatory if you intend to seek international patent protection. If you do not intend to seek international protection, you can opt out of publication in which case your application is never published and it will only see the light of day after the patent issues.
3. The concept of publication of applications for public comment before issuance is great. In reality, however, it is not practicable. The Patent Office is exteemely backlogged. In certain fields (e.g., software, TV, telecommunications), applications do not get an innitial examination until 4 years after they are filed. From that point forward, if everything goes well, an application will probably take about 1 year to issue. Becuase of the backlog, examiners only get to spend between 8-16 hours per application, soup-to-nuts. If you require them to review comments from thousands of people after an application is published. the time needed for a patent to issue is likely to double. Imagine the inventor waiting 10 years for a patenbt to issue!
Slashdot Mirror
No you can't. The US government enjoys sovereign immunity. That means it cannot be sued unless there is a specific law allowing it. There is a law, the Federal Tort Claims Act ("FTCA"), that provides blanket authorization to sue the government. However, the FTCA only allows suits based on "operational" aspects of government duties. "Discretionary" decisions are not actionable. Deciding that something is patentable is clearly "discretionary". Kinda makes sense, otherwise the gov't would be sued all the time for every decision that is made.
I'm a lawyer and I resent that. I know you said it with a smilie but lots of people take what you said literally. People forget that these jerks (ActivBuddy) actually went out and hired the lawyers to secure a patent and will hire more to sue or threaten to sue. If you don't like the actions of the patent holder, blame the patent holder. If you don't like what the law allows the patent holder to do, blame the laws and those who write them. I don't see why there is always a lawyer-bashing post in this type of thread. I guess it makes people feel good to say it.An inventor walks into court with only a presumption of validity. It is up to the challenger of such validity to prove otherwise. If you are going to remove the presumption, you may as well just go to a registration system where patent applications are never examined before they issue. That way, you will only sue on apatent if you are convinced that it is valid but you don't have to prove it twice.
The owner of an "Innovation Patent" cannot enforce the patent until after it is examined. This type of patent should really be called a registration. IMHO it is useless and nothing but a moneymaker for the Australian patent office
The categories include: anything that violates the rules of physics (i.e., perpetual motion, faster thatn light of speed travel, etc.); cures for aids; cures for cancer; etc.
Somerthing else which has not been mentioned is that the guy with the invention for the implant can still get his patent even if it specifies need for the exotic material. If his invention is so great, a huge market will develop for the material. However, the owner of the material's patent cannot sell his material for use as described in the implant patent. Therefore, a symbiotic relationship will be formed where both parties have an incentive to cross-license their patents. This is the basic principle behing "improvement" patents.
You keep calling it inducement. The cause of action is interference with, not necessarily inducement to break the contract. If someone takes an action which tortiously prevents me from fulfilling a contractual obligation (i.e., it forces a party to breach, rather that inducing a party to breach) then the cause of action is properly pled.
:)
I have seen your views on US law in other posts. Lets just say that I completely deisagree with you. I think it was Churchill who said that democracy is the worst form of government ever devised by man, that is, unless you compare it to every other form of government. I feel the same about the US legal system. It is not perfect but, boy, has it served our country well. I think the proof is in the pudding!
Your point is well taken on the UTP argument I raised. You are prolly right.
Topic is getting stale. lets move on
The contract or "commercial relationship" is between the Spammer and its clients. He can argue that the ISP and the blackilst provider is tortiously interfering with that contract or commercial relationship. I don't think it is a great case but I can see it surviving a motion to dismiss for facial insufficency of pleadings (at least under US law). Another claim one could make in the US would be for unfair trade practices, but that is statutory so I am not sure they have something similar in Australia. Again, I have not carefully looked at the facts of this case (and prolly won't) so my analysis may not be applicable. Just thought I would add to the discussion.
The cause of action may be for tortious interference witha commercial relationship (or the Australian equivalent thereof). But I haven't really looked into it
Your first point is excellent. I have no good answer.
I disagree with your second point. As you state, copyright is a right. It is not granted, it is created with the work. When the copyright expires, the author looses the right to sue, and we gain the right to copy. But the author need not make it easy to copy. If not, where do we draw the line? Should book authors be rqured to privide photocopiers to enable those of us who cannot afford the to exercise our right to make copies? I know my example is ridiculous but it serves to illustrate the extermes to which this can be taken and the fact that the problem is not limited to digital works.
As an aside, remeber that an artist must provide a copy of any registered work to the copyright office which should be reproducible by the public upon expiration of the copyright. Therefore, the problem you are concerned with is likely not to have a serious impact.
I am not sure which statement you are referring to (a) that copyrights attach upon creation; or (b) that the intent of the author to release or publish the work is irrelevant to the stength of the copyright. Let me know and I'll be glad to look up some cases.
To address your comments, I think we have to make a distinction between copyrights and patents. I don't think they can be mixed together in this discussion. You have the "bargain" between the individual and the governmen with regard to patents wrong. The quid-pro-quo is that in exchange for disclosing his invention (or making it "patent" or obvious in old English, hence the name), the inventor gets a monopoly which is limited in time. It really has nothing to do with enforcement.
An inventor has a choice, get a patent by which you disclose your invention to the world and in exchange you get an absolute monopoly. This means that nobody can practice your invention, even if they develop it independently of you. The catch is that the monopoly is limited in duration and after expiration the invention belongs to everyone. Alternativelly, the inventor can choose to maintain his invention secret forever as a trade secret. However, he risks someone elese developing the invention independently in which case he would have no recourse. Note that a trade secret is still somewhat protected. That is, if it is stolen or obtain through illegal means, you can sue and get damages.
Which choice is made by the inventor will depend on how fasible it is to maintain the invention a secret. Use the Coca Cola example. Lets assume that recipes were patentable, if Coca Cola had obtained a patent, it would have lost its exclusivity long ago. They wisely chose to go the trade secret way because they know that it is nearly impossible for anyone to "reverse engineer" their recipes. Other types of inventions (software, for example), are much more easilly reverse engineered and therefore trade secrets are really not feasible.
Copyrights, are a completely different beast. They arise from the simple fact that the founding fathers believed that an individual should be entitled to control his/her own expressions for a limited time. No bargain is really implied. Therefore, the fact that some people choose to make it more difficult for others to copy their works, is not really treated as a waiver of copyright. Although you can tell an author that his/her "limited time" has expired, you can't require them to make it easier for others to copy their works. If you did (as I wrote somewhere else in this thread) then an author who has a copyright on an unpublished work would be compelled to publish it at the expiration of the copyright. To use another example, lets say I was a painter and I created a beautiful painting which became copyrighted upon creation. Lets say that 100 years later the painting ends up in the collection of a private collector who bought it legally. Now, lets say the copyright on the painting expires while it is owned by the collector. Should the collector now be forced to exibit the painting in order to "live up to his end of the bargain"? I think you see the absurdity in that.
To address your conclusion, there is no quid-pro-quo in copyright. The public does not have a "constitutional right" to a work whose copyright has expired. All the expiration means is that the author has lost his/her right to sue if the work is copied.
Whew!
I apologize if I didn't make myself clear. I was really addressing the statement that the intent of the author to release (or not release) a work into the public could osmehow curtail his/her copyrights.
To address the point you make, which is well taken, the DMCA states: No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The "title" here is title 17 of the US Code which covers copyright. Therefore, "works protected under this title" are, inherently, works which are still under copyright protection. Removing copyright technology of a work whose copyright has expired, therefore, would not violate the DMCA.
The author of the work, however, is not required to make his work easier to copy just because the copyright has expired. The law presumes that a work whose copyright has expired has been sufficiently exposed so that it will be "copyable". If the opposite was true, then the owner of a copyright over an unpublished work would be essentially compelled to publish it when the copyright expires. However, I am not minimizing your concern. This is a very valid concern which I had not thought about. It probably should have been addressed by the DMCA but wasn't.
I see the technology progressing to the point where the only available medium where a work whose copyright has expired is a protected digital file which cannot be copied. On the same token, it is the author's work and she is free to buplish it in whatever medium she wants. Bottom line is, you cannot force an author to publish a work in a a medium which is easy to copy.
I hope I've made my views on this clear
This is not really a consideration as copyright laws do not care whether the author intended works to be released to the public domain. Copyright attaches to a work from the moment of creation, regardles of the intentions of the author. This is self evident from the fact that non-published works are justa s copyrightable as published ones. Of course, an author is alway free to renounce to a copyright and "donate" her work to the public domain
Oh, and BTW, I am a lawyer.
You have never had to send your work to the LoC (i.e., register the work) to get a copyright. You only need to register if you intend to file suit and/or to recover damages in the case of infringement. Ther reason for having a copy at the LoC is not really so that a copy exists when the work goes into the public domain (although that is certainly a "side effect"). The reason for the LoC retaining a copy is so that tyhe author has proof at alater time that he indeed created the work on a date ate least as early as when the LoC received it.
As for software copyrights, in order to register them you must attach the source code and have had to for a long time. The only exception is if the source code is more than 100 pages long in which case you ahve to include only the first and last 50 pages. Unless the author redacts the code and swears that it is a trade secret, the entire source code is freely viewable by the public from the time it is registered.
That is a valid point. By its nature, the patent term which was originally granted is arbitrary. They just picked a number that they thought was a fair compromise. In essence, you want to make the term as short as possible while still providing enough incentive to innovate. In fields other than software, we are bound by international treaty to the current term (20 years from the date of the APPLICATION, which translates to approximately 17 years of effective term). But since most of the world does not recognize software patents, I don't see why we cannot set a shorter term for those.
The framers of the constitution specifically discussed and rejected the notion of "exclusive" rights over mathematical formulae or scientific truths, because they believed it would not work, etc. As I'm sure you know, any program can be represented as a mathematical formula and so was not considered patentable.
... This is overkill because copyright alone is sufficient to give a software developer "exclusive rights" to his/her writing
Actually, although I believe it is not really discussed in the Constitution, what is prohibited is patenting of a "law of nature" which a formula or algorithm is considered. Pure algorithms are still not patentable. But a process which embodies an algorithm and produces tangible results is. If you think such a process should not be patentable, them most patents should never have been issued. The very first patent issued in the US was for a process of making potash (a kind of fertilizer, I think) Certainly, that process can be distilled into an algorithm at its most basic level.
Because of the over-reaching of a bunch of lawyers and greedy companies, software is the only "writing" that can also be patented
Writings are not what is patented, concepts are. That is why patents are the only real way to protect software. If you just copyright them, it is very easy to go around the laws. If you copyright the object code, all a copier has to do is recompile the software with a different compiler and you end up with a different "writing". If you copyright the source code, all they have to do is port the software to a different language and, again, you've gone around the copyright.
Patents are being granted for techniques that have been in use for many years. Patents are being granted for using old techniques in trivial new applications which patents are then being abused by lawyers and companies who build up portfolios of these non-innovative "patents" and then use them to extort money out of legitimate companies and developers who are in fact using the same techniques that have been around for decades.
I fully agree with you. As I have posted before, the problem is not software patents but bad software patents. Patents on software which is not novel, or which is obvious should not have been granted in the first place, and this is where alot of work has to be done. Not by passing new laws or repealing old ones but by enforcing the ones we have.
A few points in response to this:
If you disagree with the notion that granting a monopoly to an inventor (of software or anything else) does not promote progress, then your disagreement is not with me. You disagree with the framers of the Constitition and have a problem with the concept of patents in general. No real need to continue arguing the point
You are flat-out WRONG in saying that patents are granted to the first to disclose, not the frst to invent. In fact, the complete opposite is true. In the US, unlike the rest of the world, only the person who first invented is entitled to a patent, regardless of who disclosed it first or who filed a patent application first
I disagree with your statement that preventing an invention from dying with its inverntor is a primary goal of patents. The goal is to make the information freely available, as soon as possible, to provide a framework for improving the invention and for the technology to be available as soon as the patent expires (which can be as early as 4 years from the date it issues) Therefore, the fact that software can be backed up (which, BTW, is also true for any type of invention, just write it down) is a complete non-sequitor
Finally, I think the problem is not software patents in general but rather bad software patents. That is patents which are issued despite the fact that what they claim is not novel or is obvious or both. This happens because of a combination of ineptnes by the USPTO in examining applications and the lack of resources given to the USPTO by Congress. You may not know this but the USPTO is one of the few gov't agencies which receive less funds than they collect in fees. I agree that far too many bad patents are issued and something must be done about it. If the USPTO doesn't, the Courts will (by invalidating the bad patents)
Actually, if you look at the patent application found here, you will note that they cite NO prior art (patent or non-patent) which is a dead giveaway that they know they have prior art problems. This thing will never issue and anyone who pays a royalty -- read blackmail -- will be throwing away their money.
I did some research. I think I found a non-provisional application filed by these bozos. The link to the application is here
Of course, there still remains the issue of this POS ever issuing!
Exit Exchange filed a provisional patent application in May 2000 and doesn't expect a ruling from the U.S. Patent and Trademark Office for at least another year
... provisional applications are NEVER examined and therefore the Patent Office never "rules" on them. They are just placeholders for the "real" (non-provisional) application. They have to file a non-provisional application which is then queued for examination. The Patent Office will probably not act on the non-provisional application for 3+ years after it is filed
Uhm
But the company founders are not going to just sit back and wait for federal bureaucracy to take its course
Its nice to hear how proactive they are but they really don't have much of a choice. The law is clear that they cannot sue for patent infringement until after they have an issued patent.
Exit Exchange is taking advantage of a recent change to patent law that enables it to seek royalties from companies for using its technology even before its patent is granted.
The "new law" allows the applicant of a non-provisional application to recover damages from the time he makes his application public ONLY IF AND WHEN the application issues into a patent. AFAIK, there is no non-provisional application, the application has not been made public, and no patent has issued. It may be quite some time, if ever, before these guys collect one red nickel.
"Because of the new law, we're now free to put anyone on notice and let them know that damages are accruing,"
Again, putting anyone "on notice" is not sufficient, you must have a non-provisional application on file, it must be published, and you can only get damages if you actually get the patent. These guys are blowing smoke!
What exactly renders a patent "soft" in your proposed framework? Is a patent "soft" if it somehow affects you? I just don't follow why you think that someone who happens to develop a novel, useful and nonobvious method of solving an existing need in the software field should deserve any less protection than someone who invents a better mousetrap.
In fact, I would argue that since software is one of the most "useful scineces" today, software is deserving of even more protection than most mechanical inventions.
It is very nice that you can quote the constitution but why don't you try to actually understand what it says. How does software programming not "promote the progress of science and useful arts"? How is a programmer not an "author and inventor"? How is novel, useful and nonobvious software not a "writing and discovery"? and, why should software programmers be treated differently and not be entitled to "exclusife rights"?
Your quote from the constitution eviscerates your own argument.
practically speaking, very few patents will actually be commented on, and when they are it should just point examiners in the direction of some prior art to aid in their searches
I disagree. And I think a seasoned examiner (if you can find one, that is) would too. If we had a pre-grant publication for comment, people who do not want a patent to issue for specious reasons will abuse the system to bog down the application.
But I don't want to really dwell on this point. The real heart of the problem is not the system being used. In fact the Patent office has set up an entire new layer of examination for business method patents (software patents in patenteese) which is supposed to improve the quality of the patents.
The problem is that the Patent Office is not properly funded by congress. This requires examiners, who have a quota of applications to get through, to spend a ridiculously low amount of time on each application. Combine this with the fact that examiners are paid very little and as soon as they get a little experience (or their foreign work permit goes through) they leave the Patent Office. This results in a very demoralized, overworked and inexperienced core of examiners.
The result of this is bad patents. If there weren't so many bad patents out there there would not be such an outcry right now and we would not be seing these kinds of abuses.
1. Actually, patent prosecution (the process of applying and obtaining a patent) is an ex parte proceeding, meaning it is conducted only between the applicant and the examinner. There is really no set mechanism for the public at large to comment on published applications.
2. Patent applications began to be published only recently (i.e., only applications filed after Nov. 29, 1999) and is only mandatory if you intend to seek international patent protection. If you do not intend to seek international protection, you can opt out of publication in which case your application is never published and it will only see the light of day after the patent issues.
3. The concept of publication of applications for public comment before issuance is great. In reality, however, it is not practicable. The Patent Office is exteemely backlogged. In certain fields (e.g., software, TV, telecommunications), applications do not get an innitial examination until 4 years after they are filed. From that point forward, if everything goes well, an application will probably take about 1 year to issue. Becuase of the backlog, examiners only get to spend between 8-16 hours per application, soup-to-nuts. If you require them to review comments from thousands of people after an application is published. the time needed for a patent to issue is likely to double. Imagine the inventor waiting 10 years for a patenbt to issue!