general talk about patents

[Mug Funky]

for anyone confused at the abruptness that this post has, bear in mind that it was split from another thread so the context is lost a little.

adam: good point on the speed laws (i'm a road nutter, actually, but my car is slow enough that i can't actually break speed laws too badly).

i think software patents are a bad idea, but there is conceivably a situation where they'd be beneficial.

however, there are far more "dodgy" patents than good ones, and therein lies the problem.

perhaps some kind of industry regulation could be used. like a patent application could be scrutinised not just by lawyers who know dick-all about maths or programming, but also perhaps a panel of industry-specific peers. rather like what happens in academic circles when a paper is published - the patent is discussed heavily, but until agreement over whether the technology is patentable or not is reached, the inventor keeps regular IP protection on their idea.

perhaps if the people at MS or wherever who file these patents were also made to participate in rigourous discussion over "patentability", it would discourage the filing of stupid, mean and greedy software patents.

of course, right now such a structure doesn't exist. it'd be interesting to see if this kind of thing could work. i don't see why not, as a similar thing exists already with things like scientific papers (which are strikingly similar to patent documents).

also, software patents should expire much sooner - perhaps on a case-by-case basis, depending on how long would best encourage competition.

[adam]

Mug Funky, patent applications are not approved by lawyers. Patent reviewers typically have some engineering background at the very least and most have advanced training in the particular areas of science that pertains to the patents they are reviewing (ie: give this patent application to our chemical expert, etc...) By law, a patent reviewer is not qualified to approve a patent unless they have the skills and knowledge to take the information contained in the application and reduce the invention to physical form.

By the way, there is no regular IP protection for a potentially patentable invention except the patent. Until that patent is approved it can be stolen by anyone who can gain access to that knowledge. You also can't begin to make use of your invention or publish information about it until you apply for the patent or else you risk being barred from application. By definition, if it qualifies for patent protection then it cannot quality for a trademark or copyright, so its all or nothing.

[Joe Fenton]

Originally posted by adam
By the way, there is no regular IP protection for a potentially patentable invention except the patent. Until that patent is approved it can be stolen by anyone who can gain access to that knowledge. You also can't begin to make use of your invention or publish information about it until you apply for the patent or else you risk being barred from application. By definition, if it qualifies for patent protection then it cannot quality for a trademark or copyright, so its all or nothing.

But therein lies the rub! Software is automatically covered by copyright the moment it is written, even if you don't file for copyright protection. That is part of why many people don't want software patents - now you have something which is covered by TWO forms of IP protection. Filing for or being granted a patent on software in NO WAY invalidates the copyright of said code.

Also, you are wrong about not being able to make any use of your invention until you apply for the patent. You have one year to apply for a patent from the moment of introduction.

[adam]

Not exactly. Software cannot be patented, period. The element of software which is patentable is the process itself. So if you develop a program you do receive copyright protection in the source code and no one can copy it. But they can take the underlying processes such as some algorithm and do anything they want with it. Copyright protection only protects from having that very copyrighted thing copied. It does not protect the underlying technology. So if you develop a new machine for manufacturing a product all you could copyright would be your drawings and specifications, and all that would do is prevent someone from running those through a copy machine. It would not prevent someone from stealing those documents and building the machine themself. Only a patent could do that.

Patents protect ideas. Copyrights only protect expressions of ideas.

I did not say you could not use your invention before filing for patent. I said if you do so you risk being barred from filing. I am well aware of the 1 year disclosure or "on sale" bar, as well as the 1 year grace period for filing foreign patents based on an existing domestic one, but I could also cite about 100 cases where the inventor thought they were within the 1 year period but found out that their filing was defective and so they had to refile and thus were barred by their own disclosure. It happens all the time which is why you have to be careful how and when you disclose your invention. My point was just that patentable inventions can only be protected by a patent, and you are largely precluded from using your invention until you have that patent, unless you are willing to risk inadvertantly putting your invention into the public domain.

[Joe Fenton]

Originally posted by adam
Patents protect ideas.

No they don't... or rather, they aren't supposed to. Patents protect a SPECIFIC IMPLEMENTATION of an idea, not the idea itself. Ideas are explicitly forbidden from being patented in patent law, but the USPTO seems to have forgotten this. It USED to be that you had to bring in the actual invention itself to the patent office. None of this nonsense about patenting vague block diagrams with circularly reasoned claims.

You patent INVENTIONS, not ideas. You've been watching too many ads during the dead-beat hours of TV. :p

[adam]

I am sorry but that is incorrect. A specific implementation or rather expression of an idea is protected by a copyright. You are correct that patents are intended to protect an invention, but one element of the legal definition of "invention" is an idea which can be reduced to practice.

Look, its impossible to define a patent without getting into a huge semantic interpretation, and I was not trying to give an all inclusive definition but rather a description of how patents differ from other forms of IP protection, in their most basic forms. One of the general rules that I was taught during my IP courses in law school was that:

trademarks protect source identifiers.
copyrights protect expressions of ideas.
patents protect ideas.

Obviously there are many more differences and qualifiers, but I was just making a point.

Patent laws protect process of method performed by computer in accordance with program, whereas copyright protects expression of process or method. MiTek Holdings v Arce Eng'g Co. (1996, CA11 Fla) 89 F3d 1548, 39 USPQ2d 1609, 10 FLW Fed C 248.

In regards to software, the source code is by definition only an expression of an idea, that idea being the underlying process or method, and can only be protected by copyright. Any underlying processes or methods which otherwise qualify for patent protection (utilitarian, novel, and non-obvious)are not protected by a copyright and thus can be freely used by your competitors until a patent issues

[Joe Fenton]

Boy, you can't be more wrong. Patents do NOT cover ideas. Period.

Try the Cornell Law site (among others).

http://www.law.cornell.edu/topics/patent.html

Patents grant an inventor the right to exclude others from producing or using the inventor's discovery or invention for a limited period of time. U.S. patent laws were enacted by Congress under its Constitutional grant of authority to protect the discoveries of inventors. See U.S. Constitution, Article I, Section 8. The main body of law concerning patents is found in Title 35 of the United States Code. In order to be patented an invention must be novel, useful, and not of an obvious nature. See §§ 101 - 103 of Title 35. Such "utility" patents are issued for four general types of inventions/discoveries: machines, human made products, compositions of matter, and processing methods. See § 101 of Title 35. Changing technology has led to an ever expanding understanding of what constitutes a human made product.

Funny... I don't see "ideas" in there anywhere. It says "inventions" and "discoveries"... VERY specific things, not general ideas.

Your misunderstandings about patents are part of why the patent system is totally fscked up - people actually think they can patent ideas and that no else is is allowed to even think about those ideas without paying them money. At this point, the ENTIRE patent system is totally wonked and needs to be tossed out and redone from scratch.

From US Code Title 35 Part II Chapter 10:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

If ideas were patentable, "improvements" wouldn't be patentable as they are still implementing the same idea. Check into it - you won't find anywhere that ideas are patentable. You should read Groklaw more often. Groklaw doesn't just cover the SCO / IBM case, it also covers many matters of law, including all the recent software patent issues. You find many fine articles and comment on the law that help dispell a lot of the myth perpetuated in the public concerning many areas of law.

[adam]

Originally posted by Joe Fenton
[B]Boy, you can't be more wrong. Patents do NOT cover ideas. Period.

Try the Cornell Law site (among others).

http://www.law.cornell.edu/topics/patent.html



Funny... I don't see "ideas" in there anywhere. It says "inventions" and "discoveries"... VERY specific things, not general ideas.

As I already explained, falling within the definition of "invention" (which you agree qualifies for Patent protection), is "an idea which can be reduced to practice." Naturally after confirming that Patents protect inventions, the next step is to determine what an invention is, and that's where ideas can come into play. I see nothing in your cited definition which conflicts with anything that I have posted.

If you will kindly look up 35 USCS section 101 and find the Interpretive Notes and Decisions you will find a section titled III. Patentable Subject Matter. Subheading A. 38 is titled, "Idea as basis for patent." There you can find several cases interpreting "invention" as including an "idea" that can be reduced to practice.

Again, I'm only trying to explain the fine line between a patent and a copyright. If it makes things any less problematic, let me just state it this way. If a patent protects X then a copyright protects the expression of X. I only used the term "idea" because it is the common denominator.

I really think you read more into my statement then was there. I was not attempting to necessarily define what a patent IS but rather what it ISN'T. My point is just that there is virtually no overlap between a patent and a copyright or trademark, so you cannot rely on the latter forms of protection to safeguard anything which may qualify for a patent. If you read up, you can see that this was just a general comment in response to something that Mug Funky posted.

[dragongodz]

list guys i started this thread for posting bizarre patents etc. more of a "what the ?" type thing. :)

so if you really want to debate what is and is not patentable please start another thread for it and not totally derail this one. thanks.

[Wilbert]

I splitted them for you :)

This thread is a continuation from the following thread

http://forum..doom9.org/showthread.php?s=&postid=572631#post572631

[adam]

Sorry dragongodz.

[dragongodz]

thanks. :)

[Joe Fenton]

Yeah, sorry about getting off the topic so far.

Well, with it split, it's now ON TOPIC! :D