Issues with your account? Bug us in the Discord!
American Patent Laws up for possible drastic change
croxis
I am the walrus
in Zocalo v2.0
Needed change too I may add:
[url]http://news.yahoo.com/s/ap/20060320/ap_on_go_su_co/scotus_patent_law;_ylt=Ag1p9sP.p3hyosLyEaBviuRZ24cA;_ylu=X3oDMTA5aHJvMDdwBHNlYwN5bmNhdA--[/url]
[url]http://news.yahoo.com/s/ap/20060320/ap_on_go_su_co/scotus_patent_law;_ylt=Ag1p9sP.p3hyosLyEaBviuRZ24cA;_ylu=X3oDMTA5aHJvMDdwBHNlYwN5bmNhdA--[/url]
Comments
my apologies to those with short attention spans ~~~>
shadow boxer: IRC server shitting itself ??
Biggles: yeah looks like it
shadow boxer: wheres Tyvar when you need him, I'd like him to read this article Corx has dug up about patent law
Biggles: tyvar cant access irc at the moment.
shadow boxer: bugger
Biggles: yeah
Biggles: he's trying to sort it out, but not getting far due to the WoW hog :)
shadow boxer: heh.. he competiton for bandwidth ?
Biggles: probably :) plus competition for the router since tyvar needs to shut it down and update the bios :)
shadow boxer: if Im reading this article right.. I agree with the gist of it, that you cant really patent a process
shadow boxer: patent a device FOR that process, yes.. .but not a process
shadow boxer: thats bollocks... to break it down to simplistic terms ~~>
Biggles: that's not the best article. there have been quite a few in the past year in IEEE Spectrum about it that have explained exactly what's gone wrong in "land of the free" and how to fix it
Biggles: basically, you cant patent an abstract idea, a natural process, or a mathematical formula.
shadow boxer: if I discovered I could drive nails in better with the side of a hammer.... IM not going to expect to get a royalty from every nail driven..:~)
shadow boxer: design a sexy new hammer that drives nails better... and yes... you pay me bitch
Biggles: a software design counts as a mathematical formula. medical stuff counts as natural processes. a business model is an abstract idea. seeing a trend here?
shadow boxer: yup
shadow boxer: patents are about physical devices, or atleast they should be
Biggles: yes.
shadow boxer: software is a bitch tho... cos you can almost argue that its a device... but...
Biggles: software code can be copyrighted. it cant be patented.
Biggles: it's like trying to patent the outline of a story
shadow boxer: lets face it.. you can arrive at the same soloution with a computer in umpteen different ways
shadow boxer: indeed...
Biggles: patenting things like genes just because you discovered them is absurd as patenting the discovery that the earth is round.
shadow boxer: indeed
Biggles: and dont even get me started on business models
shadow boxer: Ive got another little dissertation on patent laws you might find interesting
Biggles: imagine if someone had patented "exchanging abstract government-sanctioned currency for merchandise"
shadow boxer: patent law revolves around one key thing
shadow boxer: 'prior art'
shadow boxer: one must having drawings or a working version of the object in question to back up your claim
shadow boxer: there was a famous case involving windsurfers...
shadow boxer: company A made a windsurfer design
shadow boxer: company B 'borrowed' it
shadow boxer: company A naturally decided to sue company B for infringement
shadow boxer: company A did some research and came up with a Popular Mechanics magazine, circa 1930
shadow boxer: in said magazine is picture of windsurfer
shadow boxer: patent declared invalid
shadow boxer: everyone goes home
Biggles: :D
Biggles: there's so much prior art for almost every software patent granted in the US that it's absurd
shadow boxer: exactly
Biggles: but the overworked, understaffed patent office that must grant patents to make money to stay alive never finds it or ignroes it
Biggles: and the little guy cant afford to defend against the big guy with the patent
shadow boxer: first bitch with enough well publicised prior art wins....
shadow boxer: you can pitch for invalidation....
shadow boxer: that makes big boys suddenly very apologetic and wanting to stuff your noisy mouth with 1000 dollar bills
shadow boxer: anyways....
shadow boxer: this got me tah thinkin'....
shadow boxer: teh myghty intarhnet is a very good publishing tool...
shadow boxer: lets say I have 'invention X'', in this case 'Uber Wind Turbine of Doom'...
shadow boxer: I send drawings of 'patentable' quality to every man jack and journal I can find EVERYWHERE simultaneously, perhaps even go to the extent of turning it into a chain-spam
Biggles: irc server appears to be back up
shadow boxer: suddenly.... NO fucking bottom feeding lawyer has any possibility of challenging me
Biggles: you dont even need to do that. just get it indexed by google and it'll be in their archive forever :D
shadow boxer: whatever... the point is that its 'prior art'
shadow boxer: (server is still fugged)
Biggles: try irc.flyingtemple.com
shadow boxer: I should be able to sue any mofo whom borrows my design, after the published date...
Biggles: sue them for what?
shadow boxer: stealing my IP
Biggles: if you havent patented it, you have no case
shadow boxer: horseshit
Biggles: that's the whole point of patents
shadow boxer: just because I havent prescribed to the allmighty system, it does not mean that I do not have a case
Biggles: yes it does :) it's called "laws" and judges are going to go by laws, not your ideals
shadow boxer: a patent is just a very formal publication of the invention
shadow boxer: I wouldnt use classical patent law...
Biggles: yes. it's saying "i'm putting this in public view, but it's my idea." otherwise if you put it in public view it's immediatly considered public domain. which is why you cant patent something that you've already put into public
shadow boxer: I'd just flat out accuse the defendant of stealing...
Biggles: and have to keep inventions completely secret until you patent them
Biggles: you could accuse them all you want, but you wouldnt win
shadow boxer: in essence I need to find a sympathetic judge
Biggles: if you dont try to protect your IP, no judge will be sympathetic
shadow boxer: the patent system is busted
Biggles: currently, yes. but how it used to work and how it's intended to work, it isnt.
shadow boxer: I cant sue the patent system for inadequately protecting my IP
Biggles: if you patent your invention, you sue people who violate the patent
shadow boxer: indeed
Biggles: if you don't, you have no excuse if someone else copies it because you never tried to protect it
shadow boxer: and a patent infringement is the theft of IP
Biggles: yes, and as i said if you dont try and secure your IP before presenting it to the public, then it's public domain.
shadow boxer: thats also horseshit
shadow boxer: the whole concept of 'public domain' in patent terms is 'those people whom dont have a patent', not 'IP that belongs to no single person'
shadow boxer: I know I'm rejecting some fundamental concepts here but the current system is fucked... it needs to be totally revamped
shadow boxer: patents should be no different from currrent ideas of copyright law basically
Biggles: a patent is just a license. without a patent, how do you determine who has put their IP in public domain and who hasnt? you'd not be able to use anything without having to sign complex agreements to avoid being sued in 10 years' time.
shadow boxer: a patent is not bulletproof, as I have previously shown you...
Biggles: i never said it was
Biggles: because if you werent the original inventor, then you have no claim to the IP
shadow boxer: in the end... "PRIOR ART BABY, PRIOR ART"
shadow boxer: person with the oldest public prior art.. wins
shadow boxer: end of story, period, bucks stop with me :~)
Biggles: yes, but unless they have an actual patent on that they dont get exclusive claim to the IP
shadow boxer: HORSEshit
shadow boxer: you use my shit, you pay for it.
Biggles: only if you make efforts to protect it rather than jsut put it out there for the public to see. this is the essence of the patent system.
shadow boxer: once again.. this is a test case in the making
Biggles: you're clearly set on one of your utopian ideals again and not actually interested in debating properly so i'm just going to ignore you now :)
shadow boxer: indeed !
shadow boxer: I am protecting my ART by making every fucking man jack aware that ME the UBER LORD OF INVENTAGEMENTATIONALS made this UBER THING OF COOLNESS, on this day in the year of the lord (of your choice) 2006
shadow boxer: its my design
shadow boxer: its my device
shadow boxer: you can buy the design from me
Biggles: but if you dont file a patent, then people have no central way to find out if something has been decalrd as someone else's invention. thus your plan is inherently flawed and would only lead to even more court cases than we currently have. that is the point of the patent system, and that is the point you're completely missing.
shadow boxer: the reason patent law came into being is that 'big boys' kept stealing little guys ideas
Biggles: now go rant at someone who cares about your unworkable idea :)
shadow boxer: they had nowhere to publisize thier work to prove that it was thiers before they took it to a manufacturer
shadow boxer: they couldnt prove the idea was thiers to the satifaction of a judge
shadow boxer: if my invention is splattered across cyberspace like a fungus... there is no denying its mine...
Biggles: you've completely missed my point. or, more likely, ignored it. there's no way to guarentee if i come up with an idea and do a search that i havent missed some little corner where someone has already claimed it. the result? people too afraid to do anything for fear of a court case out of nowhere, plus lots of court cases against the people who tried. it'd be even worse than the current state in the US. your system is fundamentally flawed because it lacks the rigidity and guarentee required by the judicial system.
shadow boxer: dude...
shadow boxer: there IS NO GUARANTEE
shadow boxer: a patent simply gives you a slightly better chance
Biggles: if the patent system is working, then it gives you a virtual guarentee
shadow boxer: the current paralysis due to fear of being sued for infringement wont go away with either of the models discussed herein
Biggles: dont equate the current status with how it's meant to work
shadow boxer: and Im saying its NOT working.. and so are you arent you ?
shadow boxer: the impasse for the little guy has to be fixed somehow before innovation is totally choked to death
Biggles: yes, because the current implementation is flawed. not the idea!
shadow boxer: indeed.. so you change the implementation at a BASE level
Biggles: but you're not. you're changing the idea.
shadow boxer: a centralised registry of patents is bordering on a waste of time in this age of digital info
Biggles: you're removing the regulation from it, which is what is needed to make it work
shadow boxer: no.. Im removing the regualation which ties it up and strangles it better than japanese bondage gone bad....
~~~~~~~
conversation clipped off at this point
turns into philosophical tennis :~)
Restrictive patents, those that patent science (natural processes) and art (abstract ideas) directly harm the drive of the human race. We are seeing this again and again.
At the same time copyright law is being abused by both sides. Copyright law protects and individual work of art: a book, a play, a movie, a song. It doesn't protect the idea of that work of art, only the implementation. The trial going on in England over the DiVinci Code is an excellent example of this, though it might be more complex becuase there may be plagurism involved on the author's admission. However, the trial itself was brought over the duplication of an idea, something that is expressly not protected via copyright law.
A name isn't protected, but a character that acts a certain way, has a certain background, and is associated with a certain name, once written or acted in some "media," is copyrightable. People have sued over the use of a name that they used. This fails always.
Then we have the restrictive RIAA and MPAA trying to tell the world what copyright law is at the same time we have pirates trying to destroy copyright law. In both cases, they infringe upon the rights of someone. RIAA and MPAA infringe upon the copyrights of software writers: an encryption method is a mathematical formula and not patentable. Since breaking it never copies original code, it is also not copyrightable. Code itself is copyrightable, but copyright law specifies that if two people develop the same exact work independently, than the works are both valid. Writing a deencryption algorithm from the results is an independent work.
Similarly RIAA and MPAA restrict patents by refusing to allow people to make royalties off of inventions that circumvent RIAA and MPAA copy protection. This is equally as bad as the attacks on copyright law, if not worse. And it isn't as if pirates are a new thing: there have always been people that have refused to adhere to copyright law, and they have always been prosecuted.
Never has defense of one's own copyright rights ever had the athority to infringe upon other's equal rights. Organizations that believe that they have a "right" to be superior to another organization's copyrights and patents directly attack the human spirit of creativity and curiosity.
The entire human drive is under attack by the out-of-control patent and copyright system. Our creativity and curiosity are being stifled in the name of greed.
The trial over the Blackberrys is a good example, RIM, under pressure from the judge in the case, was finally forced to sign an agreement with NTP, even though it is likely that NTP patents will be ruled invalid themselves...
Jake
Jake
[quote]shadow boxer: if Im reading this article right.. I agree with the gist of it, that you cant really patent a process
shadow boxer: patent a device FOR that process, yes.. .but not a process[/quote]
You [b]can[/b] patent a process and indeed you should be able to. This is extremely important in chemistry. Designing a new process to synthesize a pharmaceutical, a useful chemical substance, a material, is intellectual property.
[quote]shadow boxer: patents are about physical devices, or atleast they should be
Biggles: yes.[/quote] To remark: patenting a process that allows to create a new chemical substance (be it a chemical intermediate, drug, or material) or improve the existing synthesis methods is extremely important.
Say you design a new way to synthesize Viagra, if you can't patent the process all your effort was for naught. You can't patent the chemical formula. You would use equipment commonly used for industrial synthesis, so the physical device can't be patented (or if it is, all your competitors/imitators need to do is design a different device that serves the same function). Then the process is all you can protect effectively.
Now, I'm not siding with pharmaceutical companies, there's much to criticize about the patents for drugs, and that's a whole complex topic all by itself.
I agree that patenting genes is ridiculous.
[quote]Biggles: and have to keep inventions completely secret until you patent them
Biggles: you could accuse them all you want, but you wouldnt win
shadow boxer: in essence I need to find a sympathetic judge
Biggles: if you dont try to protect your IP, no judge will be sympathetic[/quote] Indeed published prior art denies a patent, however you can patent even after you publish. The USA and many other countries allows a one year grace period between "first disclosure" and patent application. This provision is important for patents deriving from science and technology research, if you gave a talk or published a paper and only later you realized that you could patent the idea you can still do it.
Related to the problem that Freejack mentions, some companies have a business model of accumulating intellectual property, a "patent portfolio" and then suing for any infringement, perceived or real, intended or not. There's a nanotech "company" doing that currently but the name eludes my memory, IIRC some biotech companies did the same. I think that's reprehensible, and a patent lawa overhaul should include provisions to restrict such abuses.
On the other hand, I have no problem when a patent portfolio is built with an eye to licensing, several USA universities have entered that game, and I owe having my name in two patents (pending) to that attitude.
BTW, I'm not bound to see a cent out of those. As a grad student (and even if I had been a professor) I was doing work for hire, my IP belongs to my employer, the University. As is customary I signed my rights for "one dollar or its equivalent"... That's why I sometimes joke that my Ph.D. diploma is worth 1 dollar.
Also, given the current state of overworked USPTO staff those patents might not be granted for years.
Another thing to remember: patents expire.
Patenting something that won't give you profits before your 20 years of protection end is a waste of time and money.
And now, about that patent in dispute, [url=http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=4,940,658.WKU.&OS=PN/4,940,658&RS=PN/4,940,658] 4,940,658, Assay for sulfhydryl amino acids and methods for detecting and distinguishing cobalamin and folic acid deficency[/url] (link to patent at USPTO.gov, read the claims if you love legalese and chemicalese, skip to Summary of the Invention for more normal language, but still heavy on medical and chemical terms). I read it quickly and somewhat superficially.
The patent has claims for several specific methods to analyse aminoacid levels, the correlation is not necessarily what was patented. I get the idea that the patent does cover the discovery of such correlation, but focuses on how to apply that discovery for a clinical test. In that I think that the defendants are correct in saying that it wasn't the correlation that was patented, as the plaintiff claims.
But from my reading of the patent I guess that if LabCorp did use other assay methods they effectively circumvented what the patent protects, so they are right in not paying royalties.
I think I'll just leave it for the lawyers to sort it out.
I doubt this case will really be a landmark in changing the US patent law. In any event, I don't think the system should be changed via litigation.