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[News] USPTO Loses Direction, Abolishment Urged

  • Subject: [News] USPTO Loses Direction, Abolishment Urged
  • From: Roy Schestowitz <newsgroups@xxxxxxxxxxxxxxx>
  • Date: Sun, 22 Nov 2009 23:29:29 +0000
  • Followup-to: comp.os.linux.advocacy
  • Newsgroups: comp.os.linux.advocacy
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The Supreme Court v. Patent Absurdity 

,----[ Quote ]
| One direct consequence is that "patent 
| trolls" buy up patents so they can sue 
| innovators. Big technology companies pool 
| their patents to reduce lawsuits. For 
| information technology, the costs of 
| litigating patents may be greater than the 
| economic benefits of patents. Real money is 
| involved: The largest patent-case judgment 
| is for $1.67 billion, being appealed by 
| Abbott Labs in a case brought in the 
| plaintiff-happy federal court in eastern 
| Texas.


Book Review Monday: Intellectual Property Rights and the Life Science Industries

,----[ Quote ]
| The book ends with the perennial question of 
| âwould we have got where we are today 
| without patents?â Dutfield points out that 
| it almost goes without saying both that the 
| pharmaceutical industry is crucially 
| important for human welfare since it 
| produces cures (among other things), and 
| that it is considered to be the most 
| dependent of all industries on patents.
|     This should remind us of two things that 
|     a new institutionalist approach leads us 
|     to expect.  First, changes in property 
|     rights structures can never make winners 
|     out of everybody.  Second, the 
|     differences between the gains for some 
|     and the losses for others are bound to 
|     be great when the biggest right holders 
|     have, as they often do, such a firm grip 
|     on the regulatory system to the partial 
|     or total exclusion of other holders, 
|     users and those representing consumer 
|     interests.


Patent That: Reporter Invents Way to Reach PTO Director

,----[ Quote ]
| Journalists who cover Washington know the 
| drill: top bureaucrats can be very hard to 
| get through to, especially when you need to 
| reach them the most.
| So when ABA Journal senior writer Terry 
| Carter got nowhere in his recent effort to 
| reach Patent and Trademark Office director 
| David Kappos through spokesman Peter Pappas 
| for a story he was writing, he decided on a 
| characteristically novel approach: on 
| Tuesday he drafted and posted a humorous 
| patent application for a "method to get an 
| interview with USPTO Director David Kappos."  
| Edward Adams, editor and publisher of the 
| ABA Journal, wrote in this story at the 
| Journal Web site, "We figured the problem 
| was that Carter was not speaking the 
| agency's language."  


Nil: The Value of Patents in a Major Crisis Such as an Influenza Pandemic


Internet-hosted prior art and proof of publication: UK not bound by EPO level of proof 

,----[ Quote ]
| In a recent hearing concerning a UK patent 
| application, Ranger Services Ltd's 
| application, BL O/362/09, 17 November 2009, 
| Hearing Officer Lawrence Cullen was faced 
| with a question relating to the status of 
| cited prior art which had been obtained from 
| an internet archive. Rejecting the 
| application before him, which was for a 
| system of using an automatic number plate 
| recognition system to detect cloned vehicle 
| number plates, he considered that the 
| current European Patent Office guidelines 
| [see earlier IPKat post here] would suggest 
| that the cited prior art should be taken 
| into account.


Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense

,----[ Quote ]
| Defenders of patents commonly say they are 
| against innovators' ideas being "stolen" or 
| "plagiarized." This implies that patents 
| simply permit an innovator to sue those who 
| copy his idea. This position betrays either 
| disingenuity or ignorance about patent law. 
| Let me explain.
| Under copyright law, someone who 
| independently creates an original work 
| similar to another author's original work is 
| not liable for copyright infringement, since 
| the independent creation is not a 
| reproduction of the other author's work. 
| Thus, for example, a copyright defendant can 
| try to show he never had access to the 
| other's work, as a defense. The reason for 
| this is that the fundamental copyright is, 
| well, a right to copy one's original 
| creative work. By the nature of creative 
| works that are subject to copyright, it is 
| very unlikely someone would independently 
| create the same novel, say, or painting, as 
| another author. (And if copyright only 
| protected literal copying, it would be much 
| less a problem; but unfortunately it 
| protects a bundle of rights including also 
| the right to make "derivative works".) But, 
| in the rare case where author 2 
| independently creates a work very similar to 
| that of author 1, it is not an infringement 
| of author 1's copyright, since author 2 did 
| not copy anything.
| Patent law is different. Very different. 
| Most defenders of IP do not seem to be aware 
| of this difference--one reason they should 
| not be opining in favor of legal regimes 
| they know little about. When patent 
| defenders say that patent abolitionists are 
| in favor of plagiarism and idea theft, they 
| imply that patent law is like copyright 
| law--that it simply prevents people from 
| copying others' ideas. 


A Modest Proposal: "How to Fix Capitalism"

,----[ Quote ]
| "How to Fix Capitalism" is an insanely 
| ambitious post that ranges over, well, just 
| about everything concerned with business and 
| all it touches. The following proposals give 
| some hint of its deep wisdom:
|     # Abolish patents. They have not been 
|     proven to speed progress: the evidence 
|     seems to be to the contrary. They 
|     definitely increase costs, are an 
|     inefficient way of funding R & D and 
|     allow oligopolists to block competition.



Letters Patent: Bilski Begins

,----[ Quote ]
| Remember, the patent system is supposed to
| encourage innovation of just this kind â
| not to snuff it out.


In Re Bilski - Transcript of Today's Oral Argument at the US Supreme Court - Updated 3Xs


Bilskiâs hearing and software patents

,----[ Quote ]
| At Mondayâs hearing (court transcript),
| neither party had the objective of
| abolishing software patents. The Bilski
| case is about a business method patent, so
| there was Mr. Jakes arguing that business
| methods should be patentable, and Mr.
| Stewart arguing that they shouldnât. For
| software to be excluded, weâre relying on
| the judges (to whom we wrote an amicus
| brief, as did many others). Thereâre a few
| worrying statements, but thereâs also a lot
| of hope.
| On the issue of business methods, the
| judges were very sceptical but mentioned
| many times that they donât see an obvious
| place to draw the line. Indeed, they seemed
| to find Jakesâ position comical at times,
| and also found Stewart not going far enough
| and said that with his proposed
| interpretation, a computer could be added
| to any idea to make a patentable âmachineâ,
| thus also failing to exclude business
| method patents. There are also some
| worrying statements in there, like Justice
| Sotomayor calling the 2008 CAFC in re
| Bilski ruling âextremeâ.


Software patent case arrives at Supreme Court

,----[ Quote ]
| With the tech industry looking on, the
| Supreme Court today will explore what types
| of inventions should be eligible for a
| patent in a pivotal case that could
| undermine such legal protections for
| software.


Business Method Patents: Technological Change, Not Judicial Activism

,----[ Quote ]
| The judicial activism thesis may have a
| superficial appeal. State Street was a
| highly visible and prominent pronouncement
| by the federal court having nationwide
| jurisdiction over patent cases. It may seem
| reasonable to attribute tremendous
| implications to such a famous judicial
| opinion. Yet the judicial activism thesis
| suffers from multiple glaring problems and
| plainly cannot account for the timing of
| the rise in business method patenting,
| which plainly began well before State
| Street.


Patent law must not stifle innovation

,----[ Quote ]
| In a world of constantly accelerating
| technological change, economic prosperity
| depends on innovation. To support such
| innovation, it is vital that our patent
| system be well-calibrated, so that overly
| broad patent monopolies do not choke
| innovation. In the last several years,
| patent standards have been relaxed by the
| courts, which has created a patent system
| that hinders innovation in the software
| industry.
| [...]
| Such lawsuits can be ruinously expensive -
| including, for an average-size case,
| millions of dollars in attorneys' fees.
| Large software companies have developed
| defenses against some patent threats,
| including obtaining their own patents that
| they may use to bring countersuits if
| attacked. This strategy is only available
| to well-financed companies. Even large
| companies face increased litigation risks
| from businesses with no purpose other than
| exploiting patents. These businesses -
| called non-practicing entities, or, less
| politely, patent trolls - buy patents not
| with a view of producing products, but
| rather so that they can demand ransom from
| operating companies.


High Court Must Lower Bar For Patents

,----[ Quote ]
| Due to an important federal circuit court
| of appeals decision last year, this type of
| powerful innovation may no longer be
| patentable. In upholding a lower court
| ruling, the federal circuit wrote that a
| business process (like online banking) must
| be "tied to a machine" or transform "a
| substance into a different state or thing"
| in order to qualify for patent protection.
| This "machine or transformation" test, as
| it is called, is too rigid to incite
| innovation.


An Important Patent Law Precedent Approaches

,----[ Quote ]
| So now, shorn of all the technicalities,
| the Supreme Court gets a chance to say
| whether it means what it's always said, or
| whether it wants to endorse the fast and
| flashy round-heeled patent system we were
| running during the boom times. Of course,
| it can always do nothing at all, or make a
| new alternative that wasn't there before;
| that's what being the Supreme Court means,
| as any Legal Realist will tell you. But one
| thing is certain, that if they wind up
| saying anything at all, what the Justices
| say in this case will determine the course
| of patent law for a long time to come.


A Math Geek's Ride to the High Court in Landmark Patent Fight

,----[ Quote ]
| The company is marketing the product even
| without the patent, so Warsaw was asked:
| Why keep fighting for it? "Our revenues are
| down millions of dollars because we don't
| have the patent" and the royalty stream
| that would have resulted, he said. "We have
| no market power. That's the essence of it.
| You can't protect your interests."


Bilski Supreme Court Preview: Finnegan Lawyer Challenging 'Machine or
Transformation' Patent Test Says He's Ready

,----[ Quote ]
| The appellate court ruled that in order for
| a business method to receive patent
| protection, it would need to either
| "transform [an] article to a different
| state or thing," or be "tied to a
| particular machine." The opinion sent the
| patent bar into an uproar, with businesses
| asserting that the new standard jeopardized
| patents on all kinds of highly valuable
| intellectual property, including software.


Supreme Court to decide: What kind of innovations get a patent?

,----[ Quote ]
| At issue is whether US patent protection
| must be limited to inventions involving
| machines and transformative processes, or
| whether patent law also embraces
| nonphysical inventions like improved
| business methods and software innovations.
| The case, Bilski v. Kappos, is viewed as a
| potential landmark in patent law. It has
| attracted 67 friend-of-the-court briefs
| from lawyers, scholars, and businesses,
| including Microsoft, the Biotechnology
| Industry Organization, Bank of America,
| Google, Yahoo, and L.L. Bean.

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