Posted on 11/27/2006 6:53:13 AM PST by mathprof
Software and hardware makers have long complained that a glut of so-called junk patents threatens to disrupt the way they do business.
One key gripe about the patent process is expected to take center stage before the U.S. Supreme Court on Tuesday morning. In their third major patent case this year, the justices are scheduled to hear arguments about what courts should consider when deciding whether an invention is too "obvious" to warrant protection.[snip]
The case has its roots in an obscure patent spat about vehicle gas pedal designs[snip]
But the facts of the case are far less important than the potential ripple effects of the high court's eventual ruling.
High-tech companies say there's much at stake for them in the court's ruling. For example, when a tiny start-up called Eolas Technologies said that Microsoft's Internet Explorer infringed on a patent claimed to cover browser plug-ins and applets, one of the arguments lodged by the software giant and Web technologists was that the existence of old technology showed the Eolas idea was a no-brainer to anyone knowledgeable in the field. Seven years later, the saga continues to wend its way through the courts.
Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly "obvious" combinations of pre-existing inventions.
If the tech outfits get what they want, "you will have more real investment in our research and development, you will have more confident innovators, and you won't have companies worrying about potentially infringing a patent they know is bogus in the first place," argued Will Rodger, director of public policy for the Computer and Communications Industry Association.
(Excerpt) Read more at nytimes.com ...
I am a chemist who worked in the chemical manufacturing industry for a dozen years. We patented synthesized molecules, we did not patent the synthetic process used to make them.
Secrecy works just fine in keeping chemical processes private. Patenting a process provides a roadmap to your competitors.
LOL - You have no idea who I am or how many patents I hold or have filed yet you resort to name calling. What is the first rule of debate? He who resorts to name calling has already lost.
Anyway, to answer your point... I am VERY much aware of the record keeping and the associated COST to file a patent because of the record keeping required.
What you tend for forget in your rant is the PRIOR WORKS are not patentable. Prior works invalidate the ability to patent an idea. Can you imagine the state science would be in had it not be possible to PROFIT from a novel invention? Companies would have their ideas ripped off and would not be able to gain an advantage in the market place.
The very fact that you are able to read this message shows the success of both ends of the system. Openness and prior works create a space where entire operating systems can survive because the ideas contained in those systems are NOT novel and are not patentable or their patents have expired. Likewise, the packets transmitting this text run are likely to run over Ethernet or some other WAN protocol like PPP or HDLC... again, protocols that are now available to all because their patents have expired.
On the other end, you have the high speed switching equipment that moves the backbone of the internet. These devices are manufactured by, most likely, Cisco Systems... a company with a very strong patent portfolio. Would you want Chinese companies to be able to reverse engineer Cisco's works and provide cheap knock off products... and destroy Cisco's product line? What about the next guy who would be considering developing a like product. Would you be more or less likely to invest the time effort and energy to create something new or just say .... skip it, I'll never be able to make any money at it 'cause someone will come in and make the same product.
Not any more. Patent/copyright-lottery advocates also advocate extending the period every time their patents/copyrights are about to expire. Disney's copyright on Mickey Mouse proved that.
Why create what you can steal?
I have that going an at present.A hobby page of mine gives away a plan. It has been incorporated by a manufacturer.
So what? I gave it away. I practiced it and published it more than a year before it was appropriated, thereby giving up any patent rights I may have had. Now, it exists as prior art and can (SHOULD) never result in a valid patent for anyone..Me, the thief, some stranger. There ARE theft by conversion argments, though.
If something in common use for ages, like a claw hammer, were to be patented, the patent should not be valid because it was prior art. However, there are plenty of such stupid patents in existance, because the patent office has a doctrine of "Presumed validity"-If it was issued, it is supposedly valid. That is, someone paid a lawyer a lot of money, and the patent office gets issue and maintenance fees annually. If you want to challenge it, all you have to do is start writing endless checks to lawyers.
I doubt anyone is going to upset this virtual money machine.
In the case of the laser cat toy in an above post, those of us who had He/Ne lasers in the 70's have commonly used them for our cats. Solid state lasers make a PRACTICAL cat toy.
The writers specify a battery-operated laser. This addresses the "Doctrine of Commercial Success", and despite the patents silliness and frivolity, it is probably quite valid, and millions of "Laser Mice" have been sold. He/Ne lasers would have been too expensive, unweildy, and required a line cord, and thus would not have been adapted commercially for cat toys.
Patents are supposed to spur commerce. A famous and early example is Edison vs. North American Electric Light. North American's light bulb last five hours. Edison's lasted hundreds. No one would buy a five-hour bulb, so its commercial future was doomed. Therefore the PTO ruled that Edison's was the one worth protecting.
Actually, the first rule of debate is that the first one to resort to lies is already lost, which you did with your statement.
There is a difference between legitimate patents and illegitimate ones. There are all sorts of patents granted these days of which there is plenty of prior art. The problem is that the federal bureaucrats at the USPTO, like all federal bureaucrats, are chosen on the basis of affirmative action instead of actual qualifications. The result has been that you can patent a ham sandwich if you like. The USPTO's attitude is let the courts sort it out, which is great for patent-barratry attorneys on either side of the issue.
Well, that's pretty much the way it is eveywhere EXCEPT the US, which is the only country that even bothers with the obviousness argument.
The REAL problem is that the Patent Office's agents aren't doing a good enough job knowing or searching the prior art (or maybe understanding it well enough to decide what is or is not "obviousness".
"Software/algorithms should not be patentable, period."
Agreed! A while back it was decided that an electronic circuit could not be patented. I also recall a dispute over a Sears Craftsman tool of some kind with the ruling being 'someone would have eventually come up with this idea.'
If, say, UPS develops an algorithm resulting in 1/2 day increase in package shipping efficiency, why shouldn't they be permitted to patent it?
I challenge you to identify once where I have lied.
Second, you have lost the historical perspective on this. The REASON that "obvious" was added to the criteria for rejection was an attempt by Congress to rectify the system. Prior approval criteria was simply a novel idea (no prior art).
As for laziness and lack of skill at the USPTO, there we can agree. But the solution to that problem should not be to penalize the inventor. The solution should be an incentive to gather experts in the field to review patents... not some HS graduate clerk who has very little discipline in the field.
Nobody will know what that algorithm is unless they patent it, which requires disclosure.
Patent-barratry by patent attorneys penalizes everybody, including the inventor.
The last thing on earth patent attorneys want is to fix the patent system because attorneys for the plaintiff and defense make so much money fighting over spurious patents.
For this reason alone it will NEVER be fixed.
Consumers win. Progress becomes compulsory to survive in the markets. We thin the herd on the number of lawyers required to run a business.
But that's the criteria, that it should be non-obvious to a "person having ordinary skill in the art." The patent system wasn't allowed by our constitution so that people could just patent obvious things, but rather to give incentive to advance technology, i.e., make non-obvious things.
"Intellectual Property" is a fiction and the term shouldn't be used. It helps perpetuate the confusion we see these days, where people don't know the difference between patent, copyright and trademark. The big difference here is that copyright doesn't require that the work be non-obvious, just original, so of course any original software can be copyrighted.
You should. The purpose of patents and copyrights is "to promote the Progress of Science and useful Arts." Allowing patents of obvious ideas will hinder developments.
But what if the map is so complicated that the route is virtually impossible to find?
Sorry if our patent and copyright system isn't absolutely based on capitalism. These limited monopolies were given to inventors and authors in order to provide incentive, but the end goal is the advancement of science and the arts for the benefit of the public at large. Short-term capitalism is only the means to this end.
In order to support my view, I refer you to Benjamin Franklin, inventor of the lightning rod and bifocal glasses among other things. He never patented any of his inventions, instead wanting the public to cheaply benefit from them. But he was responsible for the patent/copyright clause in the Constitution, along with the now-ignored (in the case of copyright) "limited" constraint.
Not true. Patents have costs as well as benefits. When trivial extensions of current art can be patented, innovation slows.
That is because it only seemed obvious after the fact!
Not true. Someone versed in the relevant art can tell the difference.
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