27 posts • joined Friday 3rd July 2009 13:52 GMT
Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater
Re. pharma patents - any of you conversant with SPCs?
Big pharma get extensions of term on their patents in most countries.
Stands to reason perfectly well, after it takes them routinely over a decade to bring the subject-matter to market due to regulatory approval processes.
Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater
In pretty much most of the world, you *cannot* patent discoveries, phenomenons/materials/substances occurring/existing naturally, any aspect of the human or animal body *and* methods of treating them (curative/treatment only, cosmetic is fair game as not purely medical), mathematical/organisational/business methods, etc.
Don't take my word for it, point your browaer towards the UK Patents Act (1977 as amended), the European Patent Convention (2000, as amended), the Code de la Propriété Industrielle, etc.
Every country has a way of dealing with these *statutory* (Google the meaning) exclusions to patentability, sometimes the same, sometimes different - by and large it's mostly been harmonized via TRIPS, and the US is slowly but surely toeing the line (lastly with their AIA late last year).
These exclusions have long existed, companies have long tried to get around them, and been consistently unsuccessful - if not immediately, then in later invalidation (or other) proceedings. In other words, they are not just words slapped into an Act or 10 for the sake of a long-established and -accepted collection of ethical and humanist principles (fairly elementary ones, at that), they have teeth and are ferociously enforced by Patent Offices around the world, and make the subject of encyclopaedic volumes of case law (net result for applicants is always the same, to the back of the class they go...but you can't blame them for trying: it's economics, st00pid!)
The amount of rubbish and ignorance transpiring in comments on here whenever an article mentions patents never ceases to amaze me.
Re: Prior use rights don't help much
Prior user rights arise when the prior use was secret (undisclosed).
If the prior use was disclosed, it is of course novelty (and/or inventive step) - destroying. Always has been (at least in UK, Europe, and pretty much everytwhere else...except maybe in the US, depending on the specific circumstances)
If it was not disclosed, you cannot objectively expect the earlier inventor to be provided with a monopoly (you only get a monopoly -a patent- if you tell the world and it's neighbours what the invention is...which is where the publication (at 18 months from filing or earlier) comes in).
Do you undertand what novelty means?
"<...>given we were using (not called "WiFi") wireless networking at "Live '95" for Demon Internet's stand network <...> I recall the technology developing very quickly, so I'm not 100% sure why any of the CSIRO stuff was new."
Because CSIRO developed their tech at least 3 years earlier? (most probably earlier still, until they had enough material to support their first patent application, AU1992PL06069, filed 27 November 1992)
Try and tell that to Motorola (who was recently bitch-slapped by Huawei asserting their US patent rights).
Considering current UK case law and practice (where 'ICT' patents are concerned), I for one can't wait to see how this one is going to turn out.
Mine's the one with the Macrossan/Aerotel test in the backpocket
I wondered the same, but he has a CBS (boxed), follow the link and see under '2ª GENERACION'.
One which he doesn't seem to have, and which took me months and months of eBay scouting to get hold of (back in my retrogaming days, long since sold on) is a GameBoy Pocket Light. See http://www.studio42.info/GameBoy/light.shtml.
Disappointed to see lack of Vectrex and original (white) PC-E. No collection, however extensive, can be said to be even 'near complete' without these.
A valiant effort, all the same. Boy am I glad I shook off the compulsive obsessive disorder a long time ago :D
There is no such thing as an 'International Patent'.
There is an 'International Patent Application' (PCT), but that never becomes international or supra-national granted patent rights.
Even a European Patent is not a supra-national granted patent right: when it is eventually granted, it becomes one or more national patent(s) in selected Member State(s) of the European Patent Convention.
With ref to the article, I certainly wouldn't go as far as to call this a 'win', even in a 'legal PR' context (whatever that may be). It will only be a win if, as and when IP Australia (the Australian patent office) rejects proposed amendments to the claims and the patent is finally revoked.
<i>You generally have to register patents in every economic region you wish to enforce the patent in, not just the Land of the Free. And generally you challenge each version of the patent in its respective juristiction</i> Correct.
Put simply, an online e-tailer based wherever (except countries where Amazon owns a national 1-click patent) can sell whatever to whomever wherever (except countries where Amazon owns a national 1-click patent) with a 1-click ordering system.
There is also the question of validity of these patents, of course: it's one thing to have gotten them granted when the going was...erm...'smoother' for software patents, but quite another to enforce them nowadays when their validity would be challenged under the 'new regime' (and, in all likelihood, terminally so).
The SMEIA could do worse than consider the recent £50k costs cap introduced in the PCC (Patents County Court). Basically, do their homework before spouting.
This cap was recently introduced, specifically for facilitating SME's access to IP (Patent/TM/Design) litigation. Its net effect is that the max costs to be incurred (respectively by the claimant and the defendant) in that particular forum is £50k, end of (because a PCC costs award cannot exceed it).
After that, it's the claiming SME's choice to go PCC (with cap, £50k) or High Court (without cap, £m).
And after all that, patent litigation is like any other litigation: no point going through with it, unless the claimant stands to land a net benefit out of it.
Article correction required
"the patents were granted in China, but are valid worldwide"
That situation, as (too-) summarily described, does not exist in Law:
* EITHER correspondings patents were granted in all jurisdictions the world over (so, for each Chinese patent, a corresponding US, European, Australian, etc. patent - you get the gist);
* OR patents were only granted in China, and therefore are not 'valid worldwide' (they are only valid in China).
Moreover, a "valid" patent supposes that its subject-matter is provably demonstrated as new and inventive. It's a big call to claim a patent to be "valid", without it being battle-tested (by a Court, rather than a Patent Examiner).
(that's not taking anything from the Chinese Patent Office, though: in my experience, Chinese Examiners are tough, much more so than US and GB Examiners).
I would welcome further clarification, or a suitable rectification by The Reg.
An informed commentary
"We have a new application, developed purely for internal use. It is innovative and unusual, but its not for sale. It will make money for my company by its internal use. (...) By chance we found out that a US company has a patent application for this technology we have already developed and deployed internally. We definitely have and can prove prior art."
If you have NOT published this new internal application (and were expecting to rely instead upon trade secrets/confidential information-type law/precedents), it is NOT prior art, it is a prior SECRET use.
It cannot be used to invalidate the patent/kill the application (so the US company will get their patent), but it COULD be used to excuse/remove your infringement liability (so the US company will not get your pound of flesh). It also means, however, that should you wish to change your mind and sell your new internal application...well, you won't be able to (because you cannot license the subject-matter equivalent to that of the patent), unless you sell the whole business with it (and the onew owners still won't be able to sell it on either, only use it internally)..
Put simply, that's the risk you take by not telling the world about it (which is the way the patent system works: you don't get the monopoly if you don't tell the world what the invention is)
Note that if it's a US patent application and you're not in the US and/or using your new internal application in the US (and there are no equivalent patent application in your jurisdiction/that in which your new internal application is used), there is no infringement anyway (US patents can only be enforced in the US)
US patent law and practice differ from GB/European patent law and practice, so the above is to be seen for contrast only, and is mere commentary, not legal advice. Go talk to a patent attorney. And good luck.
(@ MinionZero as well)
The Holy See has obviously never bothered to read the Berne Convention and understand it, despite duly signing it 'some time ago' (12 September 1935, for the curious).
For shame, since it would have saved itself a bit of (further) embarassment.
Holy Hand Grenade, because there's no rolleyes icon.
Whether the function is called from the controller (a bit irrelevant TBH, since it's still the console that processes the instruction), and whether the Wii has a pause function or not, is irrelevant.
The gist of the decision is that what is onscreen at any given moment in time represents a substantial part. This 'pause' analogy is there to simplify comprehension of the approach adopted by the CA.
For the 'pause' analogy, substitute 'a frame' (out of a sequence of frames per second).
Mine's the one with the CDPA 1988 as amended in the backpocket
In the US,
a verdict of liability for unknowingly infringing a patent = award of damages
a verdict of liability for knowingly infringing a patent = award of triple ("punitive") damages
Suddenly, the SEC phrasing makes sense.
Having faced Nokia and tested the validity of some of its patents at the European Patent Office on behalf of a very-very-very well-known mobile technology innovator, and since Apple appears to have constructive notice of the patents (via past licensing offers)... I'd put quite a wad on Nokia, but I can't find a bookie to give me some odds. Meh.
Mine's the one with USC 35 in the backpocket.
Nothing new under the Sun
Renault and Peugeot have been using this commercial model (buy the shell, lease the batteries) for a long time with their private and industrial e-vehicle, starting in the early '90s with the Clio, 106 and Traffic van.
@ Grease Monkey
"However far too many patents that are granted these days seem to be invalid. It seems that the system now works on the principal of granting patents and then reviewing them later. More money for the patent lawyers I suppose."
Half-correct on the factual observation, incorrect about the deduction: standards of many Patent Offices have tended to slip slipped because of overwork/application overload, and are now being addressed (now that Patent Offices can breathe again, since everybody and their dog has run out of cash to file applications).
'More dubious' applications are being routinely dismissed (especially in the software/IT field) in the shortest-possible sumary manner (US/EP/UK), and have been for a while.
'Less dubious' applications are granted quick to let the applicant and his competitor(s) sort out validity in pre- or post-grant review/opposition proceedings.
All in the name of "clearing the backlog".
The Patent Offices are driving the facts behind your observation, not IP professionals, who are caught in the cross-fire as it happens: how do you advise clients reliably about procedures measured in years, when these days Patent Offices change the proverbial yardstick (examination guidelines based on case law) every other month?
Mine's the one with the Article 56 rejection, because the business person told the programmer how to implement everything.
Paul4 got it in one
Rep @ Paul 4 for correctly noting that it is not up to the USPTO to 'judge' the subject or merit of patent applications, only the novelty and obviousness (and industrial applicability) of what they disclose.
Epic Fail (as usual) at the rest of the USPTO/patent system-bashers, who would do well to read up about it some more, rather than regurgitating the same old uninformed rants (yawn).
For that one by IBM, I'll raise you with 6,293,874 by Joe W. Armstrong (the likes of which cause far more of a 'volume' problem for the USPTO than the IBMs of this world). Or US2009195392 by Sony, if you prefer corporate targets.
I can dig up another 50,000+ like it if need be... But you'd do well to factor in that the USPTO (like any other Patent Office) must consider and prosecute each application on an equal basis (regardless of whether the tech is to kick your own arse or split the atom), lest they be accused of procedural violations and add that unnecessary headache to the pile of unexamined applications.
So, I'm awaiting news of ire directed at Mr Armstrong for wasting the USPTO's time (just as much as IBM, in fact I daresay more so) with baited breath :-p
Hey, it's Friday! 1st beer.
Once again for the IP-illitera... -sceptics:
Copyright - applies to anything in your head which you express (and only if you express it, and protection is only for that expression, not the idea behind it)
Trademark - applies to a mark used in the course of trade, to indicate the origin of the goods/services to which it is applied
Design - applies to the appearance/features/ornamentation of a tangible product (including 2D GUI, e.g.)
Patent - applies to the idea behind the expression (re. copyright above) *if* technical (and new, not obvious, etc, etc.)
Assuming from earlier comments that the Luxo lamp is decades old, it doesn't appear any patent or registered/unregistered designs can be enforced (in respect of what the lamp *looks like*), nor can copyright be enforced (not an infringement to make 3D things out of 2D copyright-protected plans/drawings, and/or once more than 50 identical widgets are made - at least in the UK, that's the case).
That leaves trademarks, i.e. the brand 'Luxo', which last forever (provided they are regularly renewed, if registered). Disney is marking its product 'Luxo Jr', which includes at least the trademark 'Luxo'. The fact that it is affixed to substantially similar articles is what makes this pretty much the proverbial slam-dunk.
(of course, there's always the possibility of an obscure get-out clause in any earlier Pixar-Luxo deal which permits this, as rightly pointed out by Gordon 10 above).
Could do better...
(assuming applicable timescales can accomodate, don't know how old that design is...maybe too old and/or US Design Patent would have already expired)
If only they'd filed a US Design Patent and/or it still applied, they'd have been able to add that one as well, for good measure.
I wonder if they've still got a Community Design Right and a UK Design Right running on this, for infringing versions in UK/EU Disney shops. Oh well, there's always passing-off I suppose.
Clear cut cases like this, one should always be throrough and make sure everything and the kitchen sink is throwable...
Pirates @ Disney :evil twisted smiley:
Until Macrossan/Aerotel, I will gladly conced that software patents were a grey area in the UK. Not so since: the UK IPO actually comes down *much* harder than the EPO on software applications. Nearly as hard as the Chinese and Polish patent offices, as a matter of fact.
UK test Q2 "Is the invention implemented in software only?" Yes = application automatically refused. Short, sweet, to the point. And final. Nothing remotely grey about it any more (appeals notwithstanding - but then have a look at UK IPO Comptroller decisions and related Appeals since M/A came in... Don't know about others, but I wouldn't advise a client to have a go, unless his software made some networked robot or spindryer do something new and inventive)
None of this "further technical effect" malarkey still in use at the EPO (although, to be fair to the EPO, their "notional unskilled but inventive business person" has pretty much killed all of that anyway, and factually results in just as much refusals at the EPO as at the UK IPO).
Note that the Macrossan/Aerotel test applies just the same to pending applications, as to patents granted X years ago if they were to undergo a validity challenge in litigation today: there might have been a fair few UK software patents granted in the last 10 years (dot com boom and follow-on), but I'd gladly wager 99% of them wouldn't survive the firsty hurdle of litigation (validity check) and are virtually unenforceable today.
Note at Oliver Jones while I'm back: "I would have thought the European Patent Office offers you everything the UK one does, plus more - protection of your idea(s) across the whole of Europe, not just one country. For one fee, no less"
Once granted, an EP patent becomes a bundle of national granted patents (according to which EPC countries the patentee designates and validates at grant. Not necessarily all EPC countries at all, could be just one or two). Put simply: one place to prosecute, many patents to enforce in respective jurisdictions (with EPO and then validations fees vastly more expensive than the UK alone, btw - by orders of magnitude).
I work for a small provincial private practice, and can vouch that we have a good number of "little guys" who are doing very well out of their unique or small number of patents. Personally, I always describe patents as a "corporate swiss army knife": it's just a tool to facilitate a lot of corporate procedures, actions and opportunities in all kinds of predictable and unpredictable ways, but should never be taken as the be-all-and-end-all of a company. Business circumstances alone should always dictate whether to try and get one or not, never the prestige or perceived merit of an invention, or the textbook 'thou shall not steal my idea' principle, or some other non-Real World bullshit reason.
Third pint. Guess I'll get a cab tonight.
And a few more...
"However, I do believe that patents should be invalidated if the inventor (or owner of the patent) has no intention of putting it to use, as this goes against the fundamental reasons for patents existing in the first place. If this condition was in the patent (if challenged you must prove you are not just sitting on the patent) then trolls would be out of business, and technology would advance, just as patents were designed for."
Licenses of rights can be obtained from the UK IPO Comptroller, when the market demand (for the patented technology) is not being met by the patentee. Has been in the UK Patents Act since 1949 (at least, if not earlier), and Patent Law of most jurisdictions 'that matter' have similar provisions, if not worse (your Turkish patent -national or as a result of a granted European patent- will be revoked if you do not supply evidence of use of the invention in Turkey within 3 years of the date of publication of the Turkish grant).
"What we really need is a way for the small business or individual to be able to take on a big corp who has infringed his patent without incurring crippling legal fees, and enduring lengthy proceedings."
The introduction of UK Patents Court has already substantially reduced litigation costs, but there is currently a proposal to cap the costs of UK patent infringement proceedings at £50k, with the blessing of the Chartered Institute of Patent Attorneys (because we just happen to know which side of our bread's butterred, would you believe).
"That's bollocks. In 99% of cases it's pretty much identical. Most patent infringing products are mass produced in the far east and sold by people who know full well the goods are dodgy."
Most patent infringing products are actually #patented products# manufactured on behalf of the patentee, but consist of 'excess production runs' sold by the manufacturer to parallel importers (in breach of contract with the patentee). For that type of product/situation, Registered Design (UK or EU) is much easier and cheaper to obtain and enforce (and for IP-savvy businesses, is usually sought at the same time as patents).
"But of course a patent lawyer would say that wouldn't he. If patent infringement does become a criminal case people like him will lose income."
Not likely, it just means we'll have less hassle chasing bad debtors, since we'll be invoicing the tax payers instead :-D
"The problem for Trev is that a change like this will only protect him in the UK. It's not going to protect him against somebody selling knock off Taiwanese gear in Mexico City."
So get a Mexican patent and/or a Taiwanese patent.
Patents are jurisdictional animals, always have been, why should your UK patent (which only exists because UK Statutes say it can and does) have any effect in Mexico or Taiwan (which are legally independent from the UK juridicition)? It's enough that it can be used to stop UK imports of the Taiwanese knock off and leave you with the full UK market.
Second pint, because I'm having a liquid lunch.
Just to clear a few myths
Software as such is non-patentable in the UK, hasn't been for quite a while. Even the old 'EPO tricks' (technical effect) don't work any more. Google up the Macrossan/Aerotel test applied by UK IPO Patent Examiners.
Software has recently become non-patentable in the US (and business methods definitely so). Google up the new Examination Guidelines (August 09) by new USPTO boss David Kappos (note that they are not legally binding, but will be rigidly followed by US Examiners -who value their career progression- as a matter of course).
Patents, at their core, are a time-limited monopoly granted to an inventor (or successor in title) in exchange for telling the world and its dog what the invention is and, more importantly, how it works. The time limit expires, then the world and its dog can work and sell the invention. Always has been, and still is, the case.
Because no Inventor, Patent Attorney or Patent Examiner is omniscient, patents have been, are and always will be granted despite the existence of relevant prior art, across which noone of these 3 entities has run into. That is why most jurisdictions (the UK included) offer unconnected third parties a right to submit comments and prior arts against grant of a patent (usually free of charge), and some form or other of pre- or post-grant opposition proceedings (once a Patent Office has decided to grant).
In the course of developing a new piece of technology (regardless of the field), running into a granted patent is intended to prompt the engineer to think around it and develop a new solution, which may itself be patentable (or not). Whether the engineer patents or not is a business/commercial opportunity, but he can't blame others for taking up the opportunity when he chooses not to. Sometimes (true story), the choice boild down to something as simple as getting a raft of new Beemers in the car park or preparing and filing a series of patent applications - you makes your choices, you lives with them.
Ah, yes, one more: there are no patent trolls in the UK or, for that matter, in the EU. For patent owners, it's just too dangerous. The cost/benefit is totally out of whack compared to the US, because US market = 1 patent for a single market of 300m people, whereas 1 EU patent = 30 patents for 30 markets of wildly varying sizes, with potential for wildly fluctuating results (Google up the Epilady cases).
Beer icon, 'cos we love free beer claims.
Calm down, it's only a publication FFS!
I wish critics of the USPTO would calm down a bit, and (for once) do a little bit of research into the application procedure (pre-grant), to avoid continually making the same idiotic remarks.
The USPTO can of course refuse the patent application during prosecution in view of existing prior art .
This part of the procedure most often takes place *AFTER* publication (publication being entirely automatic at 18 months from the earliest priority date of the application).
You want to rant at someone, rant at Apple for filing it in the first place, not at the USPTO who (I'm 99.99% certain) hasn't *YET* started looking at the 'merit' (novelty, obviousness) of the inventive concept.
Fail icon, in default of a :rolleyes: icon
@ Greg J Preece
Indeed, the UK doesn't do "pure" software patents at all. If the invention is implemented in software only (as in: capable of running on bog standard hardware, with no effect outside the bog standard hardware), then it's, to all intents and purposes, garanteed curtains. Any practitionner would tell a client to not bother throwing £s at trying to patent it in the UK or Europe.
For that matter, neither does anywhere else, except the US. And even there, after the KSR case, it's certainly not the free ride everybody makes it out to be anymore, what with the USPTO taking baby steps towards a proper assessment of inventive step (obviousness), by arguing that everything and their dog is obvious.
I don't know where some of the above posters get this idea that patents are awarded as a matter of course (if anything, the article illustrates the point perfectly). It's harder to obtain grant than it's ever been.
Mine's the one with Title 35 USC in the back pocket.
[This: "Under the Patents Act 1977, a patent can be granted only if the invention is not obvious to a person skilled in the art, having regard to the state of the art" has naff all to do with prior art.]
state of the art = prior art up to the date of filing
The question of obviousness is a subjective test based upon the state of the art: what did the state of the art teach the unimaginative skilled person to do up to the date of filing?
I'd have thought the UKIPO would would kill this application as a matter of routine under the Macrossan/Aerotel test (software-only invention), and the EPO would kill this application as a matter of routine under their standard 'the business person thought of it' (lack of inventive step) rejection.
Admittedly, this development about admissibility of evidence at the UKIPO is worrying, though. I've certainly seen a lot of opponents/infringers being rather 'liberal' with the authenticity and/or provenance of electronic evidence (web pages, emails, word/powerpoint/etc.). Demonstrably so, particularly when it's so easy to fiddle file metadata/stats.
Mine's the one with the EPC 2000 in the back pocket.
@ Oliver 7
"It's only another reflection of the tyranny imposed by copyright holders generally, in what amounts essentially to a monopoly position."
Copyright IS a monopoly right. It is its only function and reason for being.
There is nothing inherently wrong with copyright as a legal principle, regardless of technological progress.
The issue at hand is more how the right is exercised and, importantly, by whom (is the US claimant an exclusive licensee or assignee? Do they have cause of of action at all? If so, for *which* song titles?), than the right itself: for the right to be exercised (enforced), it must be infringed in the first place.
Circumstances will always dictate whether there is infringement or not and, as with any other legal principle (with/without a technological angle), case law will be consulted -and made- for the case to be decided on its facts.
Don't know about you, but I wouldn't want my works to be copied willy-nilly by all and sundry for whatever purpose, without at least an opportunity to decide what type of copying, by whom and on what terms (infringement exceptions, e.g. the US Fair Use principle etc , accepted of course). Couldn't do that without copyright, because there wouldn't be any rights in the works in the first place.
I can see the legal merit of the argument (just!), but the lawsuit appears ill-addressed to me: in the context of "public performance", the infringer appears to be the mobile phone owner (and/or the venue in which the ringtone is played, as joint tortfeasor with the mobile phone owner), not the Telco.
Mine's the one with the annotated Copyright, Designs and Patent Act 1988 in the pocket.
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