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Its further worth pointing out that it's essentially impossible to get a biotech startup funded without some IP. VCs know the big firms won't enter an untested market on their own, but if a startup without IP protection becomes successful genentech will just come in a crush it. So, without IP protection a lot of the Bayh-Dole act derived medical treatments would never reach market. One could, of course, argue for public funding all the way through the pipeline until it reaches patients essentially nationalizing some pharma, but that's really not the way healthcare works in the US and, if the ACA fight is anything to base opinions on, that's not going to change anytime soon.
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Dec 9, 2013 20:52
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Kalman posted:That's the meaning of the prohibition on patenting an abstract idea, with the reason that when you allow that patent, you've foreclosed the field entirely as opposed to foreclosing a method of converting a digit from binary to decimal (e.g using log conversion to change bases as opposed to other methods such as dividing by ten, taking remainder, dividing by 100, taking remainder, etc.). I thought that was the principle complaint -- that patents are granted on problems rather than specific solutions to problems. Essentially this is done by patenting any potential solution. How do you determine if a particular actor has permission to access a particular resource? Well, you check if the actor has permission to access the resource.
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Dec 9, 2013 22:02
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Buffer posted:It's public domain if it's funded with public moneys. There, solved. The problem is, public domain ideas don't get turned into products. If it's an idea and not a product, it's not going to help patients. The argument therefore goes that enriching the inventors (whether justified or not) even if the initial research was publicly funded serves public purpose by getting good ideas turned into real treatments.
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Dec 9, 2013 23:01
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DOCTOR ZIMBARDO posted:Her diagnosis of the cats as having HIV-style symptoms, her notes on those symptoms, were not substantive contributions to the pieces by which that disease is diagnosed?? I'm not on the patent bar so I don't know if that was properly decided - but her contribution was both necessary to the patent being established as well as consisting of substantive work towards the result. Maybe, seeing as we are already discussing changing the patent law, we can take these basic feminist critiques into account? After all we are making decisions about which forms of work to privilege with unique economic power and status. Why not broaden that power and status to previously ignored classes of work (or IP)? What does any of that have to do with her being a woman? Is there some argument in there that patent law is discriminatory because I can't find it? Since you seem to get the article's point more than some of us, could you explain please? All I saw was some  about women preferring boy bands and "unoriginal" novels that might, someday, perhaps, hypothetically (but not really) no longer be covered by copyright.
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Dec 9, 2013 23:48
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Vladimir Putin posted:Everything in this post is wrong. Your concept of what happens in government sponsored research is totally off base. Not to mention that what constitutes "profit" is completely different for a government than it is for a private business. Whenever I hear about government profit I want to stab someone in the mouth. I'm going to stop though so as to not further derail this derail.
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Dec 10, 2013 03:40
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NJ Deac posted:And, as so often happens in these discussions, an initial discussion of the merits of section 101 patentability of software has turned into a discussion of whether or not the claims of a particular application are obvious and enabled. The problem isn't with whether or not a particular invention is directed to an abstract idea, it's whether or not the invention would have been obvious based on what's known in the prior art. The answer isn't to have special rules for software inventions (because, as previously noted, if you draw a line between software and other inventions, every patent attorney is going to figure out a way to draft their claims so they aren't "software"), but rather we need better examination and more strict disclosure requirements. These claims should be getting rejected based on section 103 and 112, rather than section 101. I agree with all of this, but would add that the PTO doesn't seem to punish the practice of deliberately wording applications so as to obfuscate what's covered. This practice is part of the problem with software patents, which as you point out should often be rejected on obviousness grounds. A strengthening of usefulness requirements could be helpful too, particularly by requiring novelty in the usefulness of a combination. Rounded corners on tables are useful because the sharp corner doesn't jab your hip. Rounded corners on a phone are useful because they don't jab your hip. There's no novelty in the application on an existing solution to a new problem. I think part of the objection to software patents in particular is that programmers tend to all solve a given problem the same way. Unsurprisingly they would consider this solution obvious. What happens though is, the first company to realize there's a problem will patent the obvious solution to it, and such a patent then grants domain control over the problem -- not any one particular solution to it, the solution to it. The problem then is, how does one prove the solution was obvious, when nobody had tried to solve that problem before?
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Dec 10, 2013 18:29
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Fine, perhaps not a great example, but the second paragraph was my main point.
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Dec 10, 2013 21:03
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Kalman posted:I'd take issue with that paragraph as well. Programmers certainly seem to come up with plenty of different ways to do things like sorting, searching, cryptography, creating pseudorandom numbers, and all sorts of other things. There doesn't have to be a One True Way, there just has to be an obvious way. Let's say you want to synchronize a bunch of programs simultaneously, how would you do that? Maybe you keep a list of all the programs you want synchronized and then synchronize each one in the list. The inventors on that patent didn't solve any hard problem, they just identified something people might one day want to do and patented the perfectly obvious way of doing it. I'm not anti-software patent per se. I have no problem with RSA. for example. That was a hard problem with a non-obvious solution. What I have a problem with is if they had claimed "an encrypted communication system that consists of a first terminal that receives a token from a second terminal which receives a token from the first terminal allowing it to decrypt the message." The standard should be, if you asked some random programmer how to solve problem X, with no knowledge of how the patent applicant solved problem X, would they come up with the same answer? If so, the answer is obvious.
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Dec 10, 2013 21:48
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I think our views are not quite as far apart as I once did. Kalman posted:But that assumes the problem was already known and just hadn't been solved because no one had gotten around to it. Sometimes that's true, but your standard doesn't differentiate between obvious solutions to obvious problems and obvious solutions to non-obvious problems. If we assume that we also want to incentivize people whose invention consists of seeing the problem no one else had thought of before but that was easy to solve once thought of. A couple of examples from the PTO include the use of a sub coating to reduce degradation of omeprazole pills when no one realized that the uncoated version degraded, or reversing the sweep of a turbofan blade (easy for an ordinary turbofan designer to do) when there was no recognition that reversing sweep would improve a particular performance characteristic. The discovery that omenprazole pills degrade is (by which I really mean "should be") an unpatentable law of nature. Once that fact was discovered (which isn't patentable) the solution is obvious. I don't know the turbofan reference, but I see no immediate problem with that. It's the reversing the blade that's the patentable invention not the obvious means by which to do it, and it's useful because it improves performance. This situation is different than, for example, guessing that there will be driverless cars someday and so patenting driverless taxis: pre:1. A method and process of controlling a driverless taxi consisting of:
a) a driverless car capable of navigating to a specified destination,
b) a sequencing system capable of delivering specified destinations to the car
2. The method of claim one where the sequencing system
a) first supplies a passenger's pickup location as a destination
b) then supplies a passenger's destination location as a destination
Kalman posted:There's also a huge issue in defining X for your standard. For example, if the "problem to be solved" is "create a public key crypto system" without the RSA patent, that seems hard. If the problem to be solved is "create a system where prime numbers define a key that can be provided to the public in order to encrypt something and define a second key that can be kept private for decryption", well, competent programmer might figure it out. Granted. I was trying to articulate what I believe the goal of the policy should be, not write the actual regulations. I could have been more clear on that point, and I don't know exactly how I would word the standard. I think your RSA comments support what I was arguing, though. The invention was that multiplying prime numbers a certain way will implement public key cryptography, not the specific code used. How to implement public key cryptography is a hard problem, how to do several things in a row is not. Kalman posted:Similarly, for the other patent, if the problem to be solved is "synchronize a group of different programs between two computers", you probably wind up with at least a couple of similar results to the patents management program which calls libraries corresponding to individual known programs to sync the data associated with those known programs (although some people will do it via offline file sync, some might do it by integrating libraries from the programs, some might do it by mirroring file writes, etc.). On the other hand, if the problem is "synchronize two computers" then you'll wind up with a bunch of different solutions, some of which might look like the patent, some of which won't. I think offline file sync and integrating libraries from the programs would be infringing. Mirroring file writes wouldn't work because we were talking about intermittent connections between the two computers.
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Dec 11, 2013 03:20
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Kalman posted:What? No, I get billed out at around 500 an hour, but I work for a law firm, not the PTO. Examiners get paid reasonably well but they're definitely not getting paid anywhere near as much as you seem to think. How is "about three feet" not vague? Is 3'6" infringing? What about 2'10" or 3' 0.03"?
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Dec 12, 2013 23:28
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Mr. Wynand posted:Are we? I know I wasn't. I was talking about an upfront grant system, very similar to the existing government research grants around now (just larger). That's even worse. Not that there's no role for public grants (I rely on them for my salary), but abolishing all private sector R&D seems a bit extreme. A grant system requires a centralized institution (presumably some arm of the government) to administer it and pick which ideas should get funded. If my experience with the current grant system is any indication, moving all R&D to public funding is going to end in tears.
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Dec 13, 2013 03:24
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OneEightHundred posted:Like I said, this isn't even true because of the enormous reverse-engineering effort required to "take" an algorithm from software that's been compiled into machine code or exists as a black box at the other end of a network connection. Small companies license out proprietary, unpatented software to larger players all the time. That is just because the development costs are higher than the license costs. The small company in your example, profits by having more than one licensee. I don't think anyone's arguing that eliminating software patents would kill the software industry, but rather that there are some innovations deserving of patents that are easily copied. Moreover, I haven't seen any compelling argument for domain exclusion of software generally, just a lot of terrible software patents. Reform should be addressed at the core problem: how do we stop the really bad patents (which aren't limited to software by any means) while permitting the good ones? Do we even agree on which are which?
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Dec 16, 2013 16:25
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Munkeymon posted:Anything that's easier/cheaper to copy than license is going to be too obvious or trivial to (deserve a) patent, at least for the foreseeable future. Maybe this only becomes clear when you've been developing software for a few years, but it's the state of the industry and until it changes, copyright is sufficient protection. Right, the patent isn't there to protect you from your customers; it's there to protect you from your competition. If you have a truly innovative piece of software the patent prevents some other software company from piggybacking off your development costs and licensing its version of your product to your customers. If that were permitted, it would be nearly impossible to recoup development costs -- particularly if the hard part isn't writing the code, it's figuring out what application to write.
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Dec 16, 2013 21:05
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Coffee shops cluster because that's the Nash equilibrium for their locations (see: Hotelling's law. Your examples don't really make sense. Computer aided translation is not itself a patentable idea -- it's been described in science fiction for quite a long time. How one does it is the hard part and there are probably algorithms that would be patentable. Of course, if you do figure it out, the other option is to keep the algorithm secret rather than patent it, but I'm not sure how that serves the public interest more than disclosure and legal protection. The problem with a patent on play a FPS with a Kinect is obviousness and specificity, not subject matter. It's actually quite similar to the "patent the problem" patents I was object to earlier. You still haven't given a reason that software should be treated specially, rather than obvious patents being bad in any industry.
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Dec 16, 2013 22:29
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Munkeymon posted:I'm not sure how that's different than my explanation but with a game theory reference. The game theory explanation is very different than stealing someone's marketing research. That explanation suggests that if the first chain to open a coffee shop gets their marketing research wrong and puts it in the wrong place, the second company (even if it knows the marketing research is incorrect) should still place its store next door. I'd agree with what Kalman said about selection bias, but I don't think I accused you of not knowing how your industry works. What about process patents generally? How do you feel about the PCR patent or transgenic organism patents? Corn can be replicated almost as easily as code.
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Dec 17, 2013 02:34
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WhiskeyJuvenile posted:Related, holy poo poo is CyberSource Corp. v. Retail Decisions, Inc. good on 101. Why is that holy poo poo? That seems a pretty good ruling unless I missed the point completely (I read it kind of fast). If you can do the computation in your head, saying do that on a computer isn't patentable.
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Dec 19, 2013 07:50
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WhiskeyJuvenile posted:also joke's on you, examiners aren't supposed to use caselaw Wait, what? How can that possibly be a good idea?
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Dec 19, 2013 18:00
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Kalman posted:I think it's more that examiners mostly are not lawyers and applying case law to a factual situation is practice of law, and the PTO doesn't want to ask examiners to risk unauthorized practice of law. We have a statute, written by lawyers, that you need to be a lawyer to interpret. So, we then get caselaw, written by lawyers interpreting the statutes, that you need to be a lawyer to interpret. So then we get the MPEP, written by lawyers interpreting the caselaw, which I guess you don't need to be a lawyer to interpret, but you sure need to know a lot about patent law. Somehow this is all supposed to make the system function better. I really don't understand the argument that applying the law to a factual situation is practice of law per se. I think there are lots of situations, especially involving government employees, where that's precisely what they do. Building inspectors and administrative hearing officers come to mind, or for that matter anyone in the legislature trying to figure out what the statute he or she is voting on means.
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Dec 19, 2013 20:30
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Kalman posted:Hey, I think examiners should be allowed to seek out case law, I was just offering a possible explanation of why they aren't supposed to. After thinking more about it, it's probably not why - maybe an attempt to ensure more consistency of outcome across the examiner corps? Yeah, that was kind of my point. I would think they would use the same standard as other professions when determining what is practice of law. Looking at a rash and saying it's poison ivy isn't practicing medicine without a license, but charging for that service or purporting to write a prescription for anti-histamines is. Anyway, speaking of 112, do we know yet how the AIA is going to affect the "best mode" requirement in practice? It seems the act has made that requirement effectively toothless. Presumably the enablement requirement is still in force. Does that ever get patents invalidated in practice?
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Dec 19, 2013 21:46
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Zo posted:Really the only people you have to blame for bad _______ is bad _______. Fire the least competent [x]% and reduce the burden on the ones who are left. Increase hiring and training standards. Edited slightly you have just fixed every problem with all levels of government. The same could be said for the education system, or police brutality, or for that matter Congress.
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Dec 20, 2013 16:20
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I'm sure it's been discussed somewhere, but the google hits I get are a bit academic. What are the implications of 3d printing and contributory infringement on a practical level? Is it possible that we'll see patent holders going after the printer companies, part file uploaders, hosting sites, or end users? I assume there's some patent version of the Sony standard in copyright law that protects the printer manufacturer, but trying to send cease-and-diciest letters to hosing sites seems like it's not going to get you very far.
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Jan 6, 2014 04:35
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hobbesmaster posted:3d printers are nothing new fundamentally and have been around for decades now. CNC mills have been around for decades further, they're merely ways to build stuff. Perhaps I should have been more clear and said "cheap, widely available 3d printers" rather than "3d printers". CD writers were around for two decades before they became cheap enough that someone could copy one in their home, and it was cost that made home-grown piracy (as opposed to professional bootleggers) a challenge for existing copyright law. x-post edit: Install Windows posted:If you're selling bootleg 3d models you're definitely engaging in copyright infringement. If you sell bootleg stuff you made with 3d printing, same thing. And if you're running a site that does either, going to be the same. I'm not talking about the copyright of the 3d model itself. What I mean is let's say person A makes a model of a dohicky that infringes on company X's patent and uploads it to website run by person B. Person C downloads the model (with permission from person A) and makes prints it. Who's infringing? KernelSlanders fucked around with this message at 04:48 on Jan 6, 2014 |
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Jan 6, 2014 04:44
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Regarding 35 USC 271(c) liability, would a design file be considered " a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process"? It's not really a component, composition, material, or apparatus.
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Jan 7, 2014 20:15
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Is there some authority on what "about" means in reference to ISO settings and f-stops, or in these super precise version of a common thing patents generally?
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May 9, 2014 07:07
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