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raisch
Premium
join:2006-11-30
West Newton, MA
| reply to vpoko
Re: Anyone else think patents are given too freely?
Indeed vpoko, but I find intellectual property law to be extremely complex and almost universally misunderstood...especially by us geeks.
Apologies to the previous poster but the response immediately below your first comment seems a clear example.
(Please note that although I have written a few patents and given expert testimony regarding others, I-Am-Not-A-Lawyer. Also apologies to all for the following lecture, but old habits die extremely hard and never without a fight.  )
Just because the constituent elements used in a patent "w(ere) made by someone else" certainly doesn't make the patent invalid. Patents always describe something that-once realized-can be composed of parts manufactured by others. (I'm pretty sure Thomas Edison didn't smelt his own copper...although I'm led to believe he did shave his own wire.)
It is very important to appreciate that patents only describe processes and not any specific realization or instantiation of them. In other words, it is not possible to patent a "thing", only the information required to make a thing or to cause a thing to happen.
While I have not read either the Microsoft or AOL patents, I am quite sure they do not specifically claim to protect double-clicking a mouse button or the delivery of an "instant message" as both are specific concrete realizations of some defined process.
Rather, I'd imagine these patents contain (lots of) language similar to:
Microsoft claims..."the use of any selection device which when actuated once selects one of a number of possible selectable items, and when actuated again within a predetermined time, initiates a predetermined activity using or related to the selected item." or
AOL claims..."a process whereby data created by one or more agents are sent over one or more communications media to a centralized routing process which determines to which of one or more agents those data will be delivered over one or more communications media." (In my experience, the bulk of any challenge to patent claims like these will be how the court chooses to define terms like "selection device", "selectable item", "data", "agent", "routing process", etc. in the context of the patent. Patents litigation is mostly about language.)
In general, issuing a patent requires expert consideration to determine if the described process•contains an "inventive step"•is novel and•is not obvious. Assuming my interpretation of the content of these patents is correct, I think the "inventive step" (an act of unique insight) is clear as both of these processes did not previously exist in the natural world before someone at some time invented them.
Novelty and Obviousness are difficult concepts and ones which patent law attempts to define as precisely as it can. In short,•a process is novel if no "prior art" (previous example) containing all parts claimed in the patent existed at the time of invention and•a process is not obvious as long as it is novel and the addition any new part required a unique inventive step. In other words, if you create a new way of making something or causing something to happen, you should be granted a patent. Your new process can be based on a some existing process as long as your refinement of it required your specific insight and hadn't been thought of before.
So it seems to me that both of these described processes were novel at some point, and are not, by themselves, obvious. We all had to learn to click twice to open a file or to type a message into a little screen window and press a button so it could be delivered to a friend as neither are components of the natural world.
How then can these patents be successfully challenged?
I'm sure the real question that Microsoft and AOL will need to answer is:Did the process already exist as "prior art" at the time it was claimed to have been invented? And on that topic, I should think either Douglas Engelbart »en.wikipedia.org/wiki/Douglas_Engelbart or Jeff Kell »en.wikipedia.org/wiki/Bitnet_Relay_Chat could provide marvelous expert testimony for anyone wishing to invalidate one or the other.
/rr
(I leave the rationale for patenting genes to someone smarter than I.) | |
jig
join:2001-01-05
Hacienda Heights, CA
 ·Verizon west (ex G..
| said by raisch  :It is very important to appreciate that patents only describe processes and not any specific realization or instantiation of them. In other words, it is not possible to patent a "thing", only the information required to make a thing or to cause a thing to happen. that's misleading. one of the prerequisites of patenting something is that you have to provide a reasonable real "thing" in which to embody the claims. for instance, you can't patent a mathematical algorithm, but you can capture the algorithm in a patent on the use of the algorithm in a defined process. but the use of the algorithm is tied to that "thing" that uses it in the way described in the patent. if someone else can use the algorithm to control or as a part of some other unrelated "thing" (though this is usually covered by a broadly written patent), then they can use it without paying a royalty.
that's not written very well, but the point is that the process has to be embodied in a realizable "thing" (has to be able to be built), and that "thing" has to be described in the patent, and the description of the "thing" limits (though not much in some cases) the market of the various claims in the patent.
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A man compounded of law and gospel is able to cheat a whole country with his religion and then destroy them under color of law. -Ben Franklin | |
raisch
Premium
join:2006-11-30
West Newton, MA
| Of course that's right but it's important to consider that the patent doesn't protect the thing; the thing is simply proof that the process described in the process can be realized, which is why it's damned difficult to patent any process related to perpetual motion.
And not to quibble but you wrote:"for instance, you can't patent a mathematical algorithm" I believe RSA would be very surprised to hear that.
/rr | |
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