Salon Magazine on Hi-Tech Patents

James Green writes "Salon Magazine have published this article on the subject of patents. It discusses the legal issues fairly extensively, talking of what "obvious" can mean, and interviews the owner of the patent for pay-per-view over telecommunications lines. An interesting read, if not earth-shattering stuff. "

Test for online process patents

[Anonymous Coward]

My initial musings on a (not necessarily complete) list of criteria for online process patents:

1. Does the patent claim a novel form of hardware that is required to perform the process (i.e., storage device, web appliance, etc.) or does it depend on the use of currently existing devices?

2. Does the patent claim some novel form of data storage, compression, transmission, etc., or does it depend on currently existing techniques? For example, if the process involves delivery of audio over network, does the filing make claims for a novel form of audio compression?

3. If there are no novel claims under 1 or 2, the patent applicant should held to a very high standard of non-obviousness. For the abstraction of a non-patentable process (standard everyday business transactions) to the online world to be patentable, it must be very original indeed.

4. If there are novel claims under 1 or 2, then a patent may be allowable, and any process involved can only be infringed when the novel claims under 1 or 2 are infringed.

So the approach to evaluating a patent application for the process of selling audio over data/telephone networks would go roughly as follows:

Your patent application involves: use of a hardware device with data storage capability by one party (buyer) to select compressed audio data files stored on a data storage device on a remote device belonging to a second party (vendor); the transfer of payment information over data/telecom networks from the buyer to the vendor; and the transfer of compressed audio data files from the vendor to the buyer.

Did you invent a new form of hardware/data storage device to be used by the buyer or the vendor? No?

Did you invent a new form of compressing audio data? No?

Did you invent a method for transferring payment data from one device to another over data/telephone networks? No?

Did you invent a means for transferring data from one device to another over data/telephone networks? No?

Then just what the hell did you invent?

The answer's simple: a new way to separate fools from their money.

Is 'obvious' obvious?

[Analog]

Take this a step further. Patents are supposed to be granted for unique, non-obvious inventions. Companies like IBM are awarded several patents every week.

Am I really supposed to believe that IBM has assembled groups of people so brilliant that they can conceive and implement (ideas alone are not patentable) ideas that noone has ever thought of before on a sustained, daily basis? I think there is just the slightest strain on credibility here.

It's interesting to read some of the patents that get mentioned here on Slashdot and then go to the USPTO page and see what they have to say. Most of the ones that have been mentioned so far are, at least in part, explicitly in violation of patent law as described by the patent office.

I really do think this is an area where a class action suit could do a world of good; sue the USPTO on behalf of all the entrepreneurs and businesses that have been hurt by the granting of bogus patents. I would bet they'd put some serious thought into what they do and don't grant in the future.

Is 'obvious' obvious?

[Analog]

From the USPTO website -

... a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention.

I've no doubt that IBM (as well as many other companies that are granted several hundred patents per year) has many bright people working for them. I find it very difficult to believe that they are sufficiently removed from those with "ordinary skill" that they are able to create "better mousetraps" that meet the above requirement several times per week on an ongoing basis. Not saying that they never do; but not every day.

Non-profit use of patented devices

[Tim Moore]

The question I pose is: Does a GPLed program containing a patented process constitute a patent violation under these criteria, so long as it is distributed gratis, and/or should it?

A program can't both be GPLed and require zero-cost distribution. A program that you can't sell isn't really free.

But for the purposes of the discussion, we'll assume you do this. It's definitely not clear-cut and you'll probably have a hard time in court with that argument. It's really not a form of research, and the intent really would be to undermine the patent. The plaintiff would have to demonstrate this, of course, but you'd not be in a good position.

So define RGPL

[Tim Moore]

And let the "patent chaicers" chace their victims. They will have at least the hard time Feds are having chacing encryption stuff. Actually much harder.

This is true now, with actually free software. Is there any known case of free software being attacked by patent owners?

International Patents

[Squeeze Truck]

During the period that Japan was allowing foreign companies to set up shop, the companies could only do so after licensing some Japanese company ALL their patents.

And I think Thailand may not have any copyright law whatsoever. Can anyone verify?


--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.

International Patents

[Squeeze Truck]

True. I have a whole drawer full of $2 copied tapes I bought at the local record stores in Zhong Li.


--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.

International Patents

[Squeeze Truck]

OK, so if i, as a Thai citizen, was to go out and write a piece of software that blatantly
violates a US patent, say i used the LZW and MP3 compression algorithms, without
paying Compuserve or the Fraunhoefer institute or whoever the hell they are any
royalties whatsoever, and put my product up on the internet for unrestricted
downloading into the US and elsewhere, does that make me liable for anything? Is
the person who downloads the software then responsible for violating US patent
law?

Yes. I believe that is correct.


--
As long as each individual is facing the TV tube alone, formal freedom poses no threat to privilege.

Comparing medical patents with software patents ..

[morven2]

Medical & biotech fields don't have so much patent nonsense for three reasons.

One, that you have to be a big player in order to discover anything new anyway; the barrier to entry is high.

Two, that being SCIENTIFIC fields, *everything* is published. After the patent application has been filed, of course.

Three, patent examiners know how to research medical claims.


Contrast this with software. All you need to come up with 'new' inventions is a brain. Therefore there are LOTS of players, and not necessarily tied to large corporations.

Secondly, very little computing innovation is published. Sure, CS professors publish all the time, but commercial developers, or open source developers? Rarely. People only tend to publish in academic journals etc. if they're in academia or a *major* research lab and the discovery is on the main line of their research interests -- stuff created on the side doesn't get published. So it's very hard to research prior art.

Thirdly, patent examiners seem to be woefully under-skilled at evaluating software claims. They are, in effect, passing off the evaluation requirement onto the courts.

Former IBM counsel's statement most telling.

[thinker]

Anthony Clapes, IBM's former assistant general
counsel and author of the book "Softwars,"
downplays the sinister aspect of this
trading. "They're not doing it to be unfair or
conspire," he says. "In the Cold War, there was a
certain amount of making available information
about what was going on on either side. They had
the red phones. There was a certain amount of
pressure being released by providing information
through back channels. That's what this is like.
I'll cross-license, you'll cross-license, and
we'll get enough freedom of operation.

He also downplays the disadvantage to smaller
inventors. "In theory and in philosophy, I don't
think there is anything that favors the larger,"
he says, but adds, "It's just that life favors
the larger entity."

Stick to law, dipshit. Life favors the more
adaptive entity. Business, on the other
hand, favors the entity with the most or best
scumsucking lawyers like you.

How prescient of you to compare the issue of
patent claims with the Cold War. Last I checked,
the legacy of the Cold War was massive debt,
human misery, and a lingering mistrust between
nations.
---------------------------------
"The Internet interprets censorship as damage,

Albert Einstein ...

[i]

..was working for the Swiss patent office for a long period. Maybe because it give him time to think of some other things...

Non-profit use of patented devices

[jms]

There is a "research exemption" in the United States to patent law ... Courts have ruled that it is permissible to construct a patented device under certain limited circumstances, without permission of the patent holder.

Quoting from:

Biotechnology Research & Patent Infringement: Should Research Be Exempt from Charges of Patent Infringement? by David L. Parker and
Nicole Stafford

available online at:

http://www.crpc.rice.edu/autm/publications/journ al/98/parker.html

In 21 F. Cas. 554 (C.C.D. Mass. 1813) (No. 12,391), Supreme Court Justice Story ruled that:

[The infringement] . . . must be the making with an intent to use for profit and not for the mere purpose of philosophical experiment, or to ascertain the verity and exactness of the specification . . . . In other words, the making must be with an intent to infringe the patent-right, and deprive the owner of the lawful rewards of his discovery.

The analysis continues:

Sawin has often been cited for establishing a two-part test for the experimental use exemption: (1) the activity must be for philosophical experiment or for ascertaining the adequacy of the disclosed invention; and (2) the activity must not be carried out with an intent to use for profit.34 This is a broad reading of Sawin on its facts. Another justifiable interpretation is that any use that is not itself a use for profit is not an infringement, with "philosophical experiment" and "determining the adequacy of the disclosure" being merely two examples of uses that are not considered "for profit." After all, the sale by the deputy sheriff was neither philosophical nor an investigation into the patent disclosure.

The question I pose is: Does a GPLed program containing a patented process constitute a patent violation under these criteria, so long as it is distributed gratis, and/or should it?

- jms

So define RGPL

[arivanov]

So define Research GPL ;-). All it takes is just to add one clause and not include RGPL software in commercial distributions.

And let the "patent chaicers" chace their victims. They will have at least the hard time Feds are having chacing encryption stuff. Actually much harder.

There's more than one kind of profit.

[mrsam]

You can profit from something in ways that are not always monetary in nature.

Just read any mainstream press story on Linux where the reporter struggles to come up with an explanation as to why you have thousands of people hacking the kernel without getting paid for it. The inevitable conclusion is that people do it to make a name for themselves. Which is generalyl true.

I haven't gotten a cent from the five GPLed programs I wrote (plus assorted hacks), yet I most certainly profited from them.

Comparing medical patents with software patents ..

[Bigman]

To register your idea as 'prior art' just write about it and get it published (heck, you might even get PAID for the letter about the idea!). Even the letters page would be OK. Then if you think your idea is being wrongly exploited you can point to the publication and say 'its prior art'.
You only need to pay for a patent if you want to restrain people from competing with you while you develop a product.
Personally, I feel you should be able to challenge a patent if it is clear that the holder is making no effort to exploit the patent other than trying to make money by sueing infringers. I don't think it is in the spirit of the patent system to allow people to squat on good ideas just because they thought of them first (or bought them from someone who did) if they are making no attempt to bring them to market. That is no better than racketeering.

Obviously it is vvvvvvvvr

[CopiceC]

I had a physics teacher at school who used to keep saying that "nothing's obvious". Maybe he taught the patent office people.

Is 'obvious' obvious?

[grappler]

Couldn't resist that title. Seriously, though, any patent that seems even halfway obvious shouldn't go through, and if it does, is should last only for a coulple years. It is SO frustrating to have to abandon work on something because the idea is patented, especially when it is not exactly a unique, brilliant flash of genius to begin with.

It's getting out of hand

[Master Switch]

Patent law was designed for a different time in our history. I agree that it is important to protect legitimate Intelectual property, but I feel that our patent office's are woefully undereducated, and are making bad choices in awarding patents. Any, that's my 2 cents worth

International Patents

[the eric conspiracy]

If somebody holds a US patent, that gives them rights in the US only. If they go overseas and sell the code, no problem. IF THEY TRY TO IMPORT THAT PRODUCT INTO THE US, they are infringing. Most companies that do patents get the patents in the US, Europe (there is a central Euro patent agency) and Japan at least. It runs into money, which is good because it discourages frivilous patents.

There are countries where patent law doesn't exist. However they have no economy either.

The internet question depends on the nature of the patent.

And there are treaties which coordinate the whole she-bang. For example, why should Japan let a US company get a patent in Japan???

International Patents

[zagmar]

Important thing to remember, people: patent!=copyright. A patent is on a product, a physical product, or a scientific innovation. When whoever the hell it was came up with fractal compression, they patented the specific algorithm they were using. However, when you want to protect your piece of software, you have to copyright it. So if I make a game or a word processor or a really cool ping util, and I use all existing technology (like I build on the Quake engine, or whatever) then I have to visit the copyright people. Of course, copyrights are easier to declare. F'rinstance:
This post Copyright (C) 1999 Zagmar. All Rights Reserved.

There. Now that post is copyrighted. Easy.

--The geek formerly known as Zagmar

Test for online process patents

[Xthlc]

I think you've got it spot-on, although I would state #2 more generally as "an algorithm".
This would actually be a neat way to patent algorithms (such as an audio codec) yet let them remain in the public domain: A claim on the actual _algorithm_ would be rejected (since it might be a no-brainer derivation of current techniques, e.g. 3dfx and single-pass multitexturing), but a claim on a method of business that DEPENDS on the algorithm would be accepted.

The really key insight in that article was a depressingly simple filter that the USPTO could be using RIGHT NOW: if a claim is merely the application of an established method-of-business in a networked environment, it should be thrown out. Of course, the model you've offered is much more useful, but it may be a little too complex for the poor mouth-breathers at the USPTO.

The private patent database is a good idea

[bitwize]

IBM is just the company to do it, too. They have more patents than anybody. Do you realize that they have a patent on the idea of a "web" of interconnected computers with distributed information accessible on each? Somebody should have told that to Berners-Lee. The application even has some gratuitous plugs for OS/2 in it.

I forgot the patent number though. Do a search!!! :)

International Patent Treaties

[postman]

Very interesting -- you are too informed to be a lay-person like me- are you a patent lawyer?
OK...what about a European High-Tech Company with a patent on a technology that licenses that technology to a US firm for Sale & distribution in North America. Is the European co. protected at all by their patent, in North America? Or can the licensee or anyone else for that matter, apply for a patent in North America and get it without the consent of the originator in Europe.
Also, in BALL PARK figures, what does registering and applying for a patent cost in total including legals and fees? Look forward to your reply