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"Our main focus is the IP [intellectual property]


http://www.internetnews.com/infra/article.php/3309531

unbelievable.

how can companies dedicated to the idea of suing other companies for IP infringement _possibly_ be seen as a good thing?

and yet this is what the american legal system is positively encouraging.

FullNameRequired
Sunday, February 08, 2004

I think the whole patenting system as it stands today is flawed since very obvious things can apparently be patented. You can even patent things that don't exist yet, but could be made.  I don't know how companies can patent these things when they clearly break the rules... Sweet sound of money perhaps?

The whole thing is about to blow up in our faces. With all the cameras installed everywhere, the big brother, and the little brother, and the sista's, and the uncles watching over our every action, we'll soon start getting bills/fines in the mail claiming that we infringed on some stupid, silly, obvious patent by squeezing our toothpaste a certain way on our toothbrushes, or waving our hand to a friend as a "hello" gesture.

At that point, I'll volunteer to fly to Mars to repair the crippled rovers and stay there for future missions.  :)

Patent Victim
Sunday, February 08, 2004

------"You can even patent things that don't exist yet, but could be made"-------

You've always been able to do so. The protection given by the patent was to compensate for the time and money in making something. You would however lose the patent rights if you did not attempt to make the thing within a reasonable time frame.

Stephen Jones
Sunday, February 08, 2004

Current statutory law says that a patent gives one "the right to exclude others from making, using, or selling" the invention for twenty years from the filing of the patent application (35 USC 154).  Therefore, the owner of the patent never needs to even attempt to build or market the invention.  He can simply sit around and wait for someone else to build a market in his invention, and then sue the other party for patent infringement. 

Federal Trademark law does require the registrant of a trademark to use the mark in commerce.  Current law allows a registrant five years after registration to build a market in products using the trademark. 

The theory behind the 20-year term in patent law is that it provides an incentive for inventors to make their new inventions public.  The inventor gets a monopoly on the invention for twenty years and the public gets the invention once the patent expires. 

The problem with software patents and business method patents (as I see it) is that the PTO is allowing patents that cover broad concepts in these areas.  For instance, the PTO might allow a patent that covers the following:

1.  A web site that allows users to list items for sale
2.  The web site then displays the items to the public
3.  The web site accepts bids from users for a certain amount of time
4.  When the time period expires, the lister sells the item to the winning bidder

Of course, this is just the centuries old concept of an auction, with the only twist being that it is done on the Internet.  The value here is not in the concept, but in the implementation.  So, what happens is someone gets a patent on this in 1994 (with the patent probably being examined by someone with a biology degree) and then waits for a company like Ebay to do the hard work of implementation and marketing.  Once Ebay becomes successful, the patent owner sues and receives a mega-judgement for essentially contributing nothing at all to society.

Unfortunately, not many people with software backgrounds become judges or patent examiners, so it's tough to envision the situation changing any time soon.  Most companies probably just look at it as another tax on doing business (the patent tax) and just accept that they can't be as profitable or as efficient as they could be without the patent system.

Fat Albert
Sunday, February 08, 2004

Or they leave the United States, rather than putting up with nonsense like software patents, the DMCA, and encryption legislation.

A couple years ago I read about a guy who actually renounced his US citizenship to move to Antigua to set up a software company because of the legal crap he would otherwise have to put up with.  Rivals may be able to use the legal system to keep his products of out the US, but they can't enforce a judgement against him or stop him from doing business.

T. Norman
Sunday, February 08, 2004

Albert, using your reasoning the airplane should not have been patentable since its just the age old concept of a bird in flight. Or the automobile the age old concept of the carriage. Or the calculator the age old concept of the abacus.

In other words, updating an old idea to use modern technology has always been patentable.

Tony Chang
Sunday, February 08, 2004

>> In other words, updating an old idea to use modern technology has always been patentable

The problem being..

1. who gets to judge whether an idea is new or not?

2. are the people at the PTO (and its equivalent in other countries) technically competent in the software business?

3. are the _judges_ who are called to settle disputes competent

4. Considering how fast the software industry moves, should we apply the same rule as in slower areas, eg. what about 5 years or protection instead of 20?

5. what about the risk of slowing the advancement of science, if researchers in universities and software developers in the private sector can no longer share ideas freely, waste time making sure that any idea they hit upon could not already be covered by a patent, and risk losing billions in case a totally incompetent judge rules that yes, this idea turns out to be covered by said patent?

6. I can't think of a sixth point, so I'm going to fetch a cold beer in the fridge. Anybody wants one?

FredF
Sunday, February 08, 2004

>>In other words, updating an old idea to use modern technology has always been patentable.

But why should it?  Usually the underlying technology itself which predates the alleged invention is the only innovative aspect, not the act of "doing Y with technology X."  The transistor radio was a great and useful invention; the act of "transmitting music to transistor radios" is not.

T. Norman
Sunday, February 08, 2004

What people at the Patent Office in the US do is search for prior art. The question of whether the subject of the patent is obvious or not is something that will only come up in a court of law. It is not something that concerns the initial granting of a patent. The searches are thorough, but the fact that many techniques in software are no better documented than the average piece of code means that plenty of things get through.

Philo can no doubt provide more accurate information, and I think there are a couple of other ex-lawyers on the forum.

Incidentally patent law can vary immensely from country to country, though since IP became part of the WTO there has been pressure from the
States for harmonization, normally in the sense of a closer approximation to the US model.

Stephen Jones
Sunday, February 08, 2004

"States for harmonization, normally in the sense of a closer approximation to the US model."

Ive always suspected that what happened was someone in the US government realised that potentially the US economy could have a real advantage if business, software and hardware patents were seriously strengthened, and also were reflected internationally.

IMO something along those lines has led to the relatively recent softening of patent requirements, and the concurrent push by the US government to encourage other countries to formalize the automatic acceptance of patents granted in the US.

Whether this is a good idea or not long term probably depends on your POV, but in the short term its led to the interesting situation where the only real targets for US companies to make money from their IP are in the US, so effectively we are eating our own tail.

Long term I guess we can count on IP being a national export, similar to...ummm....whatever else we export internationally....GE corn perhaps?

:) personally I believe that software patents in particular are pure evil, and I have a limited patience for many hardware patents as well.

FullNameRequired
Sunday, February 08, 2004

Stephen,

Unfortunately, the employees of the USPTO do not search for prior art - they search for prior patents. That's what is mostly to blame - if the USPTO people did as much research as some companies do (companies that don't want to invest thousands in filing a patent that will do them no good), we'd be much better off.

  
Sunday, February 08, 2004

Stephen,

U.S. Patent Examiners reject patents based on obviousness all the time.  The rejection is issued under 35 U.S.C. 103.

However, please don't let your utter lack of knowledge about U.S. Patent Law keep you from spouting off about it.  An Internet message board is the appropriate place for such misinformation and if you keep posting on this topic long enough, something you write is bound to be correct.  Good luck.

Fat 

Fat Albert
Sunday, February 08, 2004

"However, please don't let your utter lack of knowledge about U.S. Patent Law keep you from spouting off about it. "

hey fat albert, its rare to have such a pleasant, knowledgable, affable chap partake of the joys of this forum.

Ive often wondered why there was no _expert_ on the various topics (law, computer programming, whinging about work mates etc) that we could use to gently point out the occasional inaccuracy that creeps into the dialog we enjoy on this forum in a pleasant and helpful manner.


nice to see  youve decided to fulfill that need :)  welcome to the JOS forum, I look forward to reading more of your gentle rebuttals on various points of law and other areas where you have expertise in the future.

FullNameRequired
Sunday, February 08, 2004

Fat Albert,

Then how to you explain U.S. Patent No. 5,707,114, issued under the title "Vehicle Wheel," claiming exclusive rights to the wheel, including "an annular rim, a central hub and a plurality of spoke portions running between the rim and hub."

Or U.S. Patent No. 5,401,504 issued for the use of turmeric in healing wounds—a part of Indian medicine that probably predates Hippocrates.

Almost Anonymous
Monday, February 09, 2004

"U.S. Patent Examiners reject patents based on obviousness all the time."

Of course they do. But not *all* those that it should.

My large company just applied for a patent in my name for what amounts to "transferring files over TCP/IP" with a few application specific qualifiers. I don't agree with it, but companies have to patent before a competitor does.

When I started my career I thought getting a patent someday would be a milestone. The way the system is now I don't even want it.

IMHO the US patent system is horribly broken.

Name withheld out of shame
Monday, February 09, 2004

FredF - yeah I'll have a beer. Just as soon as I patent a method for you to email it to me. :)

sgf
Monday, February 09, 2004

> how can companies dedicated to the idea of suing
> other companies for IP infringement _possibly_ be
> seen as a good thing?

That's not what they're saying. They're saying that instead of inventing a product so they can manufacture and market it, they invent a technology and then license it to someone else who will manufacture and market a product. They're an idea shop, in other words, rather than a product shop.

The biggest problem I've always seen with intellectual property is that anything truly brilliant generally appears obvious as soon as someone explains it.

Caliban Tiresias Darklock
Monday, February 09, 2004

No, the biggest problem is that it sounds obvious as soon as you hear 5 words about it, before it is even explained per se. All you have to do is say "One click shopping" or "Browser plug-ins", and a good programmer can give you an implementation by tomorrow.

T. Norman
Monday, February 09, 2004

Tony wrote

" Albert, using your reasoning the airplane should not have been patentable since its just the age old concept of a bird in flight"


The Airplane wasn't patentable...until it demonstrated that it could fly.

The Wright brother's initial applications were rejected out of hand until they could PROVE they could fly.

The real Entrepreneur
Monday, February 09, 2004

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