11.05.08

Ideas Are Not a Property, Devices May Be

Posted in Intellectual Monopoly, Law, Patents at 9:00 am by Dr. Roy Schestowitz

“IP is often compared to physical property rights but knowledge is fundamentally different.”

Professor Joseph Stiglitz

ONE of the best writers on the issue of intellectual monopolies, among others like Mike Masnick, is Glyn Moody. He has no mercy when he sees an unjust system and yesterday he published this post in IDG about patents and the notion of “property”.

As long-suffering readers of this blog will have noticed, one of my favourite hobby-horses is that the whole idea of “intellectual property” is a trick, designed to plug into the warm and fuzzy feeling most people have about the idea of property, and aiming to cover up the fact that what we are really dealing with here are intellectual monopolies – of which few people are fans.

Also from Glyn, a prelude to another financial collapse caused by paper-thin monopolies? It seems possible. As pointed out in the comments, however, not patents are involved, but something a little more reasonable in this case.

The fact remains that the system was corrupted to the point where simple abstract ideas can be considered ownership, but this era appears to be ending, eliminating along with it billions of dollars in imaginary assets.

Your Business Method Patent Has Just Been Invalidated

[...]

This ruling raises a ton of questions like that across literally thousands of patents. And it is a good thing too because business-method patents tend to be overly broad and abused.

Dana Blankenhorn puts forth the assessment of Bruce Wieder, who comments on the impact of the Bilski ruling [1, 2, 3, 4, 5, 6, 7].

“Because there’s no categorical exclusion of these things they probably ought to look at those individual patents to see if they have any value. But you have to look at it patent by patent.”

That’s the word from Bruce Wieder, who heads the patent practice over at Dow Lohnes PLLC in Washington. As always this new legal decision is really great for lawyers.

So what will they be looking for? According to Wieder the court set a simple test. “Business method patents must be tied to a machine,” one that does real transformations of something. You can’t just patent the idea.

For software it’s the same thing. “You have to look at what the software does.” The court gives the example of a machine that cures rubber. You can patent the machine, but not the software timing the process.

The world is at least moving in the right direction. It has been a long time since that last happened.

WIPO
WIPO (World Intellectual Monopolies
Organisation), Geneva, Switzerland

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

2 Comments

  1. Jose_X said,

    November 5, 2008 at 9:58 pm

    Gravatar

    Some patent machine madness and a possible way forward:

    I was going to mention earlier that if general purpose computers with attached peripherals end up being ruled as legit machines depending on the patent, then would it be acceptable to put the thing together on your own if you own the various components already using them for legal uses? Note that the software itself would not be patentable. [See example here http://boycottnovell.com/2008/10/30/bilski-decision/#comment-32129 ]

    One argument is that it would be illegal, ie, the combination would be a patent violation, but then that would seem to mock the idea of a patent since a patent would be granting a monopoly to something whose components would be fairly well understood/unprotected “inventions”.

    One ruling recently said you couldn’t put together two obvious items in combination and get something patentable, but what about 3 or 4? If 1 and 1 obvious leads to obvious, then 1 and 1 and 1 is obvious by induction. Ie, 1 and 1 was shown to be obvious, so now that same 1 and 1 together with another obvious 1 would also be obvious, at least it would once the first two were put together.

    This argument might point to how courts might ultimately rule. A combination of 3 obvious items might be non-obvious if no one could find an intermediate obvious use for 2 of these or if such use would have the addition of the 3rd item be non-obvious.

    The value here is that perhaps existing patents can be shown to be “obvious” if we can break down the invention components into a series of steps, all such steps shown to be obvious constructions from the 2 component parts. This would apply to all patents.

    Patent laws are horrible. They kill growth and cleverness in people for the sake of giving the first person to put that combo together (and file for a patent) a monopoly for 17+ years. Imagine if every person coming up with a mathematical theorem patented it so that no one could leverage that theorem in their own future proofs for 17 years. That would kill mathematics and science and much more as we know it. But why not allow it for mathematical algorithms yet then allow “inventors” to gain that huge anit-social power grant when they make some aspect of the invention physical/machine? Why kill technological advancements? Frequently, it’s actually the abstract ideas/algorithms the ones that require the greatest craftiness. So we don’t allow patenting of the truly difficult for the sake of social advancement in math etc, yet we then allow the patenting of the frequently more obvious physical device inventions [though maybe this won't be allowed in the future if we can show a clear "proof" to the courts as indicated in the earlier paragraphs above].

    Presumably a just reason for granting patent monopolies would be that further advancement along those lines would not be likely in the short term (17 years) and we would want to help subsidize the investments that led to such a discovery/invention. I think this would make some sense for some of the inventions that have been patented over the years. But then this fails horribly for sw patents for the most part (if not in all cases) because the sw industry has shown that basic inventions and inventions supported by past inventions happen frequently — lead to better products for end users frequently. Meanwhile, FOSS has shown these inventions have real value to users/society and to businesses (eg, Red Hat) at *nominal costs* to those contributing to the development.

    A basis for granting any patents should be that it could not be used to restrict products if those products could be shown to be derivable and mass produced at a low investment by those (eg, inventors) taking part. For example, if they came up with the invention pretty much on their own (and can show clear progression of evolution of ideas) and at an affordable cost and could then get it into the hands of users also affordably.

    I think future arguments before the courts (and before Congress, if laws need to be adjusted) should focus on the unaffordability condition and on the lack of a clear recipe understandable by many practitioners as two prerequisites for granting a patent and for validating a granted patent. Perhaps, based on the recipe and cost functions, if a threshold was met and the patent was granted/upheld, a suitable monopoly period and potential royalty conditions would be determined by the PTO/courts ..or perhaps these limits and allowance would only be determined by the courts (not the PTO), once a challenge was filed, in order to help relive the PTO of such burden for each patent granted.

  2. Jose_X said,

    November 5, 2008 at 10:37 pm

    Gravatar

    I added a bit more explanation within a comment titled “Affordability or having been broken into clear recipes should trump patent rights” here http://www.groklaw.net/article.php?story=20081105132651542#comments

What Else is New


  1. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part V: How FSF Secrecy Ended Up Insulting People, Alienating Trans Developers

    Having just uploaded this introductory video, we delve into the backstory or the real reason the FSF sank into somewhat of a crisis with the trans community almost half a decade ago



  2. InteLeaks – Part XXII: Bubbles and Buzzwords, No Substance at Intel's Internet of Things (IoT) Group (IOTG)

    The video above is continuation of the previous part about a document full of superficial buzzwords (not technical jargon anywhere), in effect recommending to managers that they blindly follow trends and cargo cults (such as Clown Computing) and not what’s most suitable for technical excellence



  3. IRC Proceedings: Tuesday, January 19, 2021

    IRC logs for Tuesday, January 19, 2021



  4. Links 20/1/2021: WireGuard for pfSense and New US President

    Links for the day



  5. Links 19/1/2021: Krita 4.4.2 Released and JingOS Hype

    Links for the day



  6. Team UPC Keeps Pretending That UPCA Can Still be Resurrected (Even Without the UK, Which is Strictly a Requirement)

    The latest distortion of facts regarding the Unified Patent Court (UPC) Agreement (UPCA) as seen from the lens of people who seek to profit from such distortion



  7. 'Ethical Source' is Not Ethical and Not a Movement But a Misguided Self-Serving PR Stunt

    Something which is neither enforceable nor ethical is being promoted by profoundly unethical media in the pockets of large corporations



  8. InteLeaks – Part XXI: Intel Seeking Advice From a Bunch of Clowns (Harbor 'Research')

    A firm called Harbor 'Research' is making dubious recommendations to Intel; as shown in the above video, there's also an obsession with buzzwords (typically suggestive of a lack of technical grasp/understanding)



  9. IRC Proceedings: Monday, January 18, 2021

    IRC logs for Monday, January 18, 2021



  10. The US Election Was Not Rigged, But the Nomination Process Was (Undermined to Maintain Control by Oligarchy)

    Cheating/driving the left out of the Democratic Party seems like a longstanding tradition and we know who stands to gain from it; moreover, problems remain in the voting process because it's controlled by secret code of companies like Microsoft (in spite of the openwashing)



  11. InteLeaks – Part XX: Redacted (for Names Only) Release of Intel File About Developer eXperience (DX) Meddling in GNU/Linux

    Today (or tonight) we release the first 'phase' of InteLeaks in a sensibly redacted form; coming up next is a surprise from Team Microsoft



  12. Sites in Bed With the EPO and UPC 'Covering' the 'News' Without Mentioning Any of the Overt Abuses

    It is rather sad that blogs like IP Kat have turned into proponents of abusive EPO management and Team UPC increasingly resorts to lying using pseudonyms (to avert criticism and accountability); much of the rebuttal or response that’s hinged on reality/facts can only be found in comments, which are still subjected to a face-saving moderation process (conducted by Team UPC)



  13. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part IV: Stories From the Depths of the Free Software Foundation (FSF)

    To reduce or alleviate suspicions and a potential of mistrust the FSF needs to become more transparent and liberate information (such as the real reason Bradley Kuhn left, as noted in the previous part)



  14. Links 18/1/2021: GNU Radio 3.9, Wikipedia at 20

    Links for the day



  15. InteLeaks – Part XIX: Intel's Web 'Experts' Seen as Microsoft Champions Dealing With the Platform Microsoft is Looking to Destroy

    Things aren't rosy at Intel because the hires aren't suitable for the job of documenting and/or presenting GNU/Linux-centric products (whose target audience is Free software developers)



  16. Adding Images as Characters to the Daily Bulletins of Techrights

    Our daily bulletins now have inside them coarse graphics, depicted using characters alone, and the tool used to generate them announced a new release earlier today; we showcase some of its features (in a new video)



  17. Links 18/1/2021: Weekly Summaries and Linux 5.11 RC4

    Links for the day



  18. IRC Proceedings: Sunday, January 17, 2021

    IRC logs for Sunday, January 17, 2021



  19. The Oligarchs' Parties Will Never Choose the Side of Software Freedom Because Free Software Cannot Bribe Officials

    The tough reality is that next week's (or this coming week's, depending on what Sunday counts as) inauguration ceremony is partly symbolic as all the same and important issues remain largely untouched, for corporations control almost everything of significance



  20. COVID-19 Has Actually Helped Software Freedom Due to Financial and 'Spare Time' Factors

    Developers and users are increasingly exploring what the Free software world has to offer; this is actually measurable and it contradicts claims to the contrary



  21. Future Plans and Using Videos to Complement Text

    Remarks on recent and impending site changes; We are not replacing text with video, we're just trying to enhance the presentation a bit, especially where visuals help make a point or where browsing through Web sites (or leaks) is more suitable than static, linear presentation



  22. InteLeaks – Part XVIII: Intel Does Not Know How to Properly Do Research and It Seems Apparent Unscientific Methods Are Used to Justify Poor Documentation

    There appears to be a severe crisis at Intel; they cannot recruit scientists (or those whom they recruited are walking away) and as a result the company produces bad products with poor documentation (or highly defective chipsets that top-notch marketing cannot compensate for); in this video we walk through some examples of how studies are being conducted (as already noted in Part XVII)



  23. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part III: The Free Software Foundation (FSF) Seems More Like a Victim of Destabilisation Campaigns

    The Free Software Foundation (FSF), which turns 36 later this year, is looking to raise money that helps support the GNU Project, soon 38 years old and likely the most important Free software project to exist (ever)



  24. Links 17/1/2021: EasyOS on Raspberry Pi and GNU libsigsegv 2.13

    Links for the day



  25. InteLeaks – Part XVII: The High Cost of Microsoft Windows Users in GNU/Linux Development Teams

    A look inside Intel explains what holds back the technical team, which bemoans the lesser technical people getting in the way and not even using the product that they are writing about



  26. IRC Proceedings: Saturday, January 16, 2021

    IRC logs for Saturday, January 16, 2021



  27. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part II: Why Bradley Kuhn Left the Free Software Foundation (FSF)

    The founder of the FSF is still at the FSF (albeit not publicly) and the person who lobbied to oust him has basically been 'banished' by the founder



  28. Links 16/1/2021: LibreOffice 7.1 Release Candidate, Zeroshell 3.9.5, FreeBSD Report, and GhostBSD 21.01.15

    Links for the day



  29. Free Speech on the Web Not Respected by Companies That Used to Support Software Freedom

    Mozilla does not have to make its Web browser about politics; it can just make an excellent piece of software that is neutral about the Web pages that it renders, based on the user's personal preferences



  30. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part I: We Are Under Attack by Corporations and Their Salaried Facilitators

    The corporate takeover (taking over the Commons, produced by volunteers who are motivated by altruism) is a subject we must speak about and somehow tackle; this series will highlight uncomfortable or difficult truths


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts