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Patents with source codePatents with source codePosted Aug 28, 2012 22:05 UTC (Tue) by wookey (subscriber, #5501)In reply to: Patents with source code by giraffedata Parent article: Mobile patent wars: Google goes on the attack
This is very logical, but it's an engineers view of the world, not a lawyer's. I am not aware of anything in the patent system that requires things to actually work. An invention is an invention in the sense of patent law whether it has any useful effect or not, so long as it's new, 'not obvious' and 'capable of industrial application' (although this requirement is essentially null in practice). I realise that you are talking about validity, not granting, but I'm not aware of any granted patents being challenged on the grounds of 'not working'. Especially not software patents which are generally such obvious ideas that they are obviously implementable, and not having actually implemented them is no problem at all for the inventor, because the invention is the idea itself, not any particular implementation of the idea.
Note that I have taken a lot more notice of European and UK patent law than US, and they do differ in various ways, possibly including this detail of 'needs to actually work', but I doubt it.
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Patents with source code Posted Aug 29, 2012 2:10 UTC (Wed) by giraffedata (subscriber, #1954) [Link] I am not aware of anything in the patent system that requires things to actually work. Well do you believe that patent law requires more of an invention than just having an idea? Can you patent an idea?
Patents with source code Posted Aug 29, 2012 7:36 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
> Can you patent an idea?
that's basically what you are doing.
It would be really nice if patents required some demonstration that they work, but that's not the case
Patents with source code Posted Aug 29, 2012 10:26 UTC (Wed) by wookey (subscriber, #5501) [Link]
Most software patents are nothing more than an idea. A reasonably detailed idea in most cases, but it's just a specification of a process. Have you read many? Sometimes you get a flowchart but often not even that. The 'inventor' may well have made an actual implementation but it's almost never included in the patent (see the above discussion about including the source in patents). Also remember that it usually consists of a basic idea modified/built-on in many separate claims, and the validity of each claim must be challenged separately. You have to show that _all_ of them are invalid to fully invalidate the patent.
But still, whether it 'works' (how exactly would you define that?), really isn't part of the legal definition, and thus isn't something you can usefully challenge on, SFAIK.
We do have an actual (european) patent agent on LWN these days who might be able to give chapter and verse on this point.
Patents with source code Posted Aug 29, 2012 18:10 UTC (Wed) by giraffedata (subscriber, #1954) [Link] Most software patents are nothing more than an idea As someone pointed out earlier, those patents aren't really a test of whether you can patent a mere idea, because it's usually obvious from the idea alone that it works. Of course, it also means that the maxim "you can't patent an idea" can be construed as false, because you might say there exist cases where the idea is indistinguishable from the invention. But still, whether it 'works' (how exactly would you define that?), really isn't part of the legal definition, I still don't know whether you believe the legal definition distinguishes between idea and invention, which is what's really relevant to this thread. Whether that difference consists of "proving that it works" is a fuzzier question.
Patents with source code Posted Sep 1, 2012 22:17 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Can you patent an idea?
No. The idea must be "reduced to practice" in US terminology. The distinction might seem fine but it is important.
http://www.uspto.gov/web/offices/pac/mpep/documents/2100_...
Patents with source code Posted Sep 1, 2012 22:55 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> I'm not aware of any granted patents being challenged on the grounds of 'not working'.
Not working implies that "the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art" to quote Art 100 (b) EPC.
http://www.epo.org/law-practice/legal-texts/html/epc/2010...
In real life oppositions you always try to use this line of attack. And it works as shown for instance here:
Patents with source code Posted Sep 1, 2012 23:21 UTC (Sat) by anselm (subscriber, #2796) [Link] Not working implies that "the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art" to quote Art 100 (b) EPC. Would it be possible to obtain a European patent on a method to mine precious metals on Pluto if that method is very clearly and completely described and the only problem is that it is not feasible (now) to go there and do it? In other words, will a patent be granted if the patent application causes »a person skilled in the art« to say »Hmm, yes, that would work once we get to Pluto«, or must it actually be possible to do whatever the patent application claims in front of the patent examiner before a patent will be granted?
Patents with source code Posted Sep 2, 2012 3:40 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]
Sure. There are lots of such patents. It's actually not a bad idea at all, even LASER had been patented before it was 100% clear that it is actually possible.
Patents with source code Posted Sep 2, 2012 4:52 UTC (Sun) by dlang (✭ supporter ✭, #313) [Link]
and how does giving one person a monopoly on something like a LASER encourage the needed experimentation to get it to actually work, after all, whoever gets it to work will still have to pay the person with the patent for the privilege of using the thing that they did all the experimentation to actually make work
Patents with source code Posted Sep 2, 2012 6:40 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]
Well, maybe because even the initial development might cost quite a bit and require a lot of original inventions?
Patents with source code Posted Sep 2, 2012 11:17 UTC (Sun) by SecretEuroPatentAgentMan (guest, #66656) [Link]
I am surprised how many take the fatalistic approach when something is patented and in some case unquestioningly accept statements from the patent proprietor that there are no ways around. That is in my experience very rarely the case in reality. The perfect patent application has not yet been drafted.
First of all the initial milestone patents tend to be narrower in scope than first expected by the inventor thus opening up for patenting or publishing of alternative embodiments that bring about the same effect. The first lasers were like the ruby laser but it has been shown that with dye lasers even flowing liquids can be used. Chemical gas reaction lasers are even more different.
Secondly the practical embodiments can turn out to be patentable in which case a cross license agreement with the patent proprietor of the first patent is the normal approach.
Also patents do not last for ever, future embodiments can reuse features from the first patent and still come up with something patentable without the need for licences from others.
It should also be remembered that in some jurisdictions around the world you are allowed to work a patented invention if it is for research and not for commercial or operative purposes.
Patents with source code Posted Sep 4, 2012 9:54 UTC (Tue) by Wol (guest, #4433) [Link]
Actually, from my understanding reading Groklaw, if the inventor has said "Bwahahaha there are no ways round my patent" he has just handed you a sure-fire kill switch!
Not that the courts will actually throw the switch, but if there's only one way to do it, then that way is not patent-eligible subject matter!
Cheers,
Patents with source code Posted Sep 7, 2012 20:15 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Actually, from my understanding reading Groklaw, if the inventor has said "Bwahahaha there are no ways round my patent" he has just handed you a sure-fire kill switch!
Can you provide a reference for this?
Patents with source code Posted Sep 2, 2012 18:28 UTC (Sun) by giraffedata (subscriber, #1954) [Link] and how does giving one person a monopoly on something like a LASER encourage the needed experimentation to get it to actually work, I don't know anything about this patent, but I highly doubt it gave someone a monopoly on something that still required experimentation to get it to work. Though the patent holder might not have got it to work himself, he described in detail how to do so without extensive additional experimentation, and if those instructions don't result in a working, useful laser, that patent didn't give him a monopoly on anything. I suspect it's an issue of a patent on a simple laser that was fully invented and useful, but then covered all the far more useful kinds of lasers that were invented later as extensions of it. In those cases, the inventor of the extension also gets a patent, and one needs both patents in order to use it. In my one patent law class, we studied the patent for the electron tube diode. An electron tube diode is a very useful thing, and the holder of that patent had it fully working before applying for the patent. That inventor did no work on an the electron tube triode, but ended up controlling the manufacture of those anyway, because you can't make a triode without practicing the technologies claimed for the diode. (We studied that because apparently the diode inventor wouldn't let the triode inventor sell triodes and the triode inventor wouldn't let the diode inventor sell triodes either and triodes were thus withheld from the world -- a classic breakdown of the free market economics that are supposed to make the patent system work).
Patents with source code Posted Sep 2, 2012 11:02 UTC (Sun) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Would it be possible to obtain a European patent on a method to mine precious metals on Pluto if that method is very clearly and completely described and the only problem is that it is not feasible (now) to go there and do it?
If you solve the problem of going there in a non-obvious way you can get a patent, however putting the mining feature into claim 1 would be unwise. Claim 1 is normally the most important claim since it defines the invention in the broadest scope.
So claim 1 would be for a non obvious method for space travel.
Claim 1 is an independent claim and claims 2 and 3 are dependent claims, depending on previous claims. In prosecuting the application you start with a wide claim 1 and then you bring in features from dependent claims to overcome objections from the Examiner.
These wide claims in a patent *application* is a frequent source of objections from the software community. The final patent tends to be much narrower in scope. The reason for this approach is twofold:
> In other words, will a patent be granted if the patent application causes »a person skilled in the art« to say »Hmm, yes, that would work once we get to Pluto«,
Correct. The amount of further practical engineering work required varies around the world. In Europe the person skilled in the art should not have to undertake "undue experimentations".
In the US it appears that a fair bit of experimentation is allowed if the story of Richard Feynman's patent for nuclear space propulsion is to be believed
> or must it actually be possible to do whatever the patent application claims in front of the patent examiner before a patent will be granted?
That is not a requirement since it would be impractical. For instance devices for oil platforms are unlikely to even fit into the Examiner's office. It is also unlikely that an Examiner would even want to see a component for a nuclear reactor core in operation (at this point I am tastefully avoiding commenting on specific Examiners...).
In the old days it was a requirement to demonstrate a working model before the USPTO but this was abandoned.
Supposedly there is one example: if you make a perpetual motion machine the Examiner will want to see it. So does any patent attorney/agent who cares about his reputation.
Patents with source code Posted Sep 2, 2012 0:02 UTC (Sun) by wookey (subscriber, #5501) [Link]
Interesting to know that 'not described well enough to implement' is valid grounds for challenge. Thaks for clarifying that. However, in the example you cite it says that "the Board reaches the conclusion that the invention claimed in claim 1 of the main request is disclosed in a manner sufficiently clear...", so the challenge did not succeed on those grounds. The challenge in fact succeeded on 'lack of inventive step' (unless I am misreading that post).
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