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| Authored by: Anonymous on Wednesday, October 10 2012 @ 05:18 AM EDT |
I'm not convinced on the other historical stuff either.
There have to be better ways to indicate the fact that
software goes out of date fast (which I think is one of many
possibly good attacks on usefulness of patentability in its
case)[ Reply to This | Parent | # ]
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| Authored by: soronlin on Wednesday, October 10 2012 @ 08:14 AM EDT |
Firstly this is not an argument to put before a court; it's an argument for
government.
Secondly, OSs are not particularly slow-moving, and even then technologies in
Win95 are probably still used in Win8. Nobody patents operating systems; they
patent the bits and pieces of technology inside it.
There are plenty of counter-examples. For example, the GIF file format was
patented and it caused problems in the OSS community for a decade before the
patent lapsed, but it is still used. The concept of compiling high-level
languages could probably have been patented if the current situation held in
1950, and it is still indispensable 60 years later.
I agree that the current term is too long, and I think your argument needs to be
made in the right quarters, but it will require detailed argument and market
analysis to back it up.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Wednesday, October 10 2012 @ 11:32 AM EDT |
While I applaud (and agree with) the concept stated, the chronological and
technical accuracy of the previous post is almost non-existent.[ Reply to This | Parent | # ]
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| Authored by: dio gratia on Wednesday, October 10 2012 @ 07:21 PM EDT |
"...time limited monopoly to an inventor so that he can profit
(earn a living) from their invention before that invention is gifted to socitey
for others to build upon their work"
Not quite, Article 1,
Section 8, Clause 8:
To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries;
Discoveries means new, useful means capable of being
reduced to practice and of benefit (patentable), Inventors are those who make
discoveries.
Discoveries are disclosed by patent application publication the
timing of which is mandate by law implementing Congress's power to promote the
Sciences and useful Arts ("Congress shall have Power", Article I - The
Legislative Branch Section 8 Powers of Congress, Clause 8 (above). That
says any contribution to the useful arts is made at publication when also under
the law the specification is required to be sufficient for a person having
ordinary skill in the arts or arts closest to implement the invention.
It's
a patent rights maximalist's position to focus on the boon end of the deal.
There is no guarantee of profit mentioned in the Constitution and the founding
fathers didn't care if you make a living because of a patent. They were
interested in promoting (advancing) Progress of Science and useful Arts by
offering a monopoly for a limited time in exchange for disclosure.
You could
note that after a patent application is published there is nothing stopping a
practitioner of the arts or nearest arts from going beyond the claimed
boundaries[1] of the discoverer's patent, creating an invention outside the Doctrine of
Equivalents[2]. In effect building on the contribution the patent recipient
has made.
From the Supreme Court's Festo decision you might consider with
the Doctrine of Equivalents that it can be not at all clear to practitioners of
the arts the extent of the claimed invention. See U.S. Supreme
Court vacates the Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. decision
of the Court of Appeals
The Supreme Court acknowledged that
the doctrine of equivalents introduces uncertainty into the issue of claim
interpretation, however, the Court disagreed with the complete bar rule set out
by Federal Circuit, preferring instead a flexible approach to the doctrine of
equivalents. While the Court agreed that any narrowing amendment made for a
reason related to patentability could give rise to prosecution history estoppel,
the Court stated that the Federal Circuit ignored the instruction in
Warner-Jenkinson "that courts must be cautious before adopting changes that
disrupt the settled expectations of the inventing community. Inventors who
amended their claims under the previous case law had no reason to believe that
they were conceding all equivalents" of amended elements when responding to a
rejection. Had they known, the Court stated, they might have appealed the
rejection. The Court stated that, where claims are amended, "the inventor is
deemed to concede that the patent does not extend as far as the original claim"
and the patentee has the burden of showing that the amendment does not surrender
the particular equivalent. The patentee must establish that the equivalent was
unforeseeable at the time the claim was drafted, the amendment did not surrender
the particular equivalent in question or there was some reason why the patentee
could not have recited the equivalent in the claim.
The burden of
proof on Doctrine of Equivalents can be shifted to the patentee, and might for
instance effectively limit NPEs ability to expand claims beyond the original
invention based on prosecution history. The sticky bit is that prosecution
history isn't available to practitioners of the arts or nearest arts when
reading a patent. Patents are still more restrictive unless resolved by court
action or adversarial compromise contrary to § 112 (b) - see footnote
[1].
The implication being you might need a patent lawyer's opinion to
determine what the claimed invention is to use it or build upon it before the
patent expires. We can guess which side of the scales of justice we'd find the
thumb of the Court of Appeals for the First Circuit should a dispute reach
appeal.
How does that promote progress of the Sciences and useful Arts? It
only doesn't matter when poor quality patents aren't litigated, hardly the case
in today's smart phone industry for instance where software patents abound. It
would seem patent models served a useful purpose in the past limiting patent
claim scope. Can there be an equivalent for process or combination patent
claims?
[1] § 112 (b) "The specification shall conclude with one or
more claims particularly pointing out and distinctly claiming the subject matter
which the applicant regards as his invention."
[2] The Doctrine of
Equivalents can be limited. See The
Doctrine of Equivalents Lives—U.S. Supreme Court Reverses Federal
Court
"A patent application is required by Section 112 of the
statute to have claims that particularly point out and distinctly claim the
subject matter of the invention. Under the Festo case, the Supreme Court made it
clear that a response to a rejection, based upon indefiniteness in the context
of such Section 112 requirements, may lead to a narrowing of the claim to
satisfy Section 112 and thereby also restrict the availability of the doctrine
of equivalents. The focus is whether the amendments were made for a substantial
reason related to patentability."
The gist of which is that the
Doctrine of Equivalents is not absolute and relates directly to patent quality.
See also The Supreme Court's Decision in Festo
Corp.: An Important New Development Regarding the Scope of Patent
Protection:
On May 28, a unanimous Supreme Court addressed the
conditions under which prosecution-history estoppel bars a patent owner from
using the doctrine of equivalents where the patent applicant, during
prosecution, narrowed a claim limitation to obtain the patent. Festo Corp. v.
Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. __ (May 28, 2002), vacating 234
F.3d 558 (Fed. Cir. 2000) (en banc)
and The
Supreme Court’s Festo Decision: IMPLICATIONS FOR PATENT CLAIM SCOPE
AND OTHER
ISSUES , Donald S. Chisum, Chisum on Patents Case Reporter June 2002. (PDF,
340 KB).
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