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Patents: Two For The Road (To Hell)
from the shoot-them-shoot-them-both dept.
Jim Lochowitz writes "A friend of mine just sent me this ( posted with permission) :
I just looked at Judge Zagel's ruling from yesterday in Eolas Technologies, Inc. v. Microsoft Corporation, 99 C 0626, which is currently pending in federal court in the Northern District of Illinois. Eolas alleges that Microsoft has infringed its patent, #5,838,906, issued November 18, 1998. If memory serves, the gist of the suit is that both Windows and Internet Explorer infringe the patent.
If you want to look at the text of the patent again, it can be found on the PTO's website [here]. (Or search for the patent #5,838,906 from [this] page.)
At this point in the case, the court is trying to resolve exactly *what* the patent covers before it can consider whether or not whatever Microsoft did infringed it. Yesterday's ruling had to do with what was meant by the following key language in the patent (found in Claim 1 and Claim 6):
"wherein said object has type information associated with it utilized by said browser to identify and locate an executable application".
As Judge Zagel put it,
"What is an executable application? What is
type information that must be associated with
the object? What does it mean for the type
information to be utilized by said browser
to identify and locate the executable application?"
Experts testified as to the answers to these questions. Eolas' expert was Edward Felten, who is an Associate Professor of Computer Science at Princeton. Microsoft's experts were H.E. Dunsmore, Associate Professor of Computer Science at Purdue University, and Michael Wallent, Product Unit Manager for Internet Explorer.
Judge Zagel found that (as used in the patent language), an "executable application" is computer program code which is launched to enable an end-user to directly interact with data, and one which is not an operating system or utility. He found that "type information" "may include the name of an application associated with the object." Finally, he found that "utilized by said browser to identify and locate" meant that those functions are performed by the browser.
Now that Judge Zagel has determined what this key language in the patent means, the court is now in a position to determine whether Microsoft has, in fact, infringed the patent. Trial could be the next step. It will be interesting to see what happens! I suspect that no matter who wins at the trial court level, there is likely to be an appeal. It will be a while yet before we learn what the resolution will be.
If you want to read the text of the opinion yourself, you can find it on CourtWeb as [this] pdf file.
Many of the rulings thus far in the case are available online. Put in "Northern District of Illinois," hit the "proceed to CourtWeb" button, and then enter the case number on the next screen. (The case # is 99cv0626.) Put in the date range you want- note that the case was filed in February 1999.
"
knee-jerk reactions (Score:3)
First, the color-blindness thing. Remember, patents exist to encourage innovation, not retard it. Millions of people have been wastefully failing to see the red-green portion of the spectrum for thousands of years, for no marketable purpose whatsoever! Think about that for a minute-- it's not innovation, it's imitation. Here we have a good corporate citizen finally taking that trend and making it marketable. That's the whole point of capitalism! To all those people claiming "prior art", I say to Russia with all of you, you godammed communists-- get off the not seeing the red-green portion of the spectrum bandwagon, and wake up to the new economy.
As far as the software patent goes, it's hardly a patent at all-- it's a well-written patent of the sort of idea that has been patented for generations. Why, just look at the text of it: "wherein said embed text format is parsed by said browser to automatically invoke said executable application to execute on said client workstation in order to display said object and enable interactive processing of said object within a display area created at said first location within the portion of said first distributed hypermedia document being displayed in said first browser-controlled window." Genius. Sheer genius. Overly broad? Nay, I say. Here are the limiting statements: "A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object." If that's not narrow, I'm not sure what is. Ambigious? Hardly. If you understand what I quoted above, you understand most of the patent-- and what could be simpler?
I know it's also popular to blame all this misunderstanding on lawyerese. I admit that even I couldn't understand this line: "running an application program in a computer". But most of the patent is easy to follow, and I encourage you to read it before these knee-jerk reactions. I really think it's all a big misunderstanding about these patents, and once people understand that their rights and thoughts don't count unless they have millions of dollars, it'll all go much more smoothly.
Re:Gene patents (Score:3)
How different should it be from existing DNA to be patentable though?
Re:Gene patents (Score:3)
You mean how Linux wasn't developed because it couldn't be patented? How about gnome? El Gamal? IP? Vorbis? The Browser? HTML? C? C++? Python? PERL?
Oh wait, all those things, and more, were developed and released without one single patent. Your argument assumes that the only economic model is to sell patented technology, and that simply is not the case. Lots of things are invented and not patented. Clearly the patent process does not need to exist to foster innovation.
Python
Re:Patently ridiculous RTFA (Score:3)
So a company with one solution to the problem claims to have patent protection on the genes and one genetic test. So you can only get that test from a facility affiliated with this company with a treatment. This should raise a red flag (take my word for it, it's red).
Gene patents (Score:4)
To all of you who are giving knee-jerk "why should genes be patented?" reaction, remember why patents exist in the first place. It's to foster innovation, not to retard it. The point is to allow people to spend a lot of money developing something, without the danger of having it immediately stolen.
Think about it. Why would a drug company spend hundreds of millions of dollars, if not billions, identifying a gene for a disease, developing a cure, and then the day after they ship the drug, it's immediately mass produced by every other drug company? Hey, that'd be a great business -- simply wait for drug companies to develop cures, and then mass produce their labor.
You have to give companies the ability to recoup their expenses in developing these things, or they are simply not going to spend the money to develop them.
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Re:Discover vs. Invent (Score:3)
I believe patent application fees are somewhere around the $3000 level (it's on the USPTO site, but I'm too lazy to look it up) so we're already within an order of magnitude of what you want. Individual inventors do get a discount, around 50% off IIRC.
Right now I believe the patent office ONLY gets paid if they accept a patent.
Not so. Application fees must be paid whether the patent is accepted or rejected. There is a separate type of fee, known as a maintenance fee, which must be paid occasionally during the lifetime of a granted patent to keep it active, however.
Re:Change the laws (Score:3)
As I ranted in [a previous post,] [slashdot.org] in the Digital TV copy restrictions article, Corporations are systematically creating an environment where people don't count.
Overly broad patents are one way of accomplishing this. It stifles what the public is independently allowed to do, let alone what other companies may do.
The entire point is to replace individual human rights with Corporate Rights.
As an example of this movement, consider air pollution. A law was passed in Canada banning the use of MBTA as a fuel additive. (MBTA is a replacement for lead, and has been found to be even less healthy than lead.) A US manufacturer of MBTA sued and won, claiming damage to business.
My right to breathe clean air is being challenged by that Corporation. If the penalty had been stiff enough, there's every chance my government would have folded like a house of cards and re-allowed use of MBTA in gasoline.
What a fucking joy *that* would be: I get to have cancer, because some bastard business in *another country* doesn't like *my* country's clean-air laws.
Gene patents are just an extension of this Corporate-First attitude. The patents reduce competition, by discouraging research into the claimed field. The result: drug prices remain high, Corporations make big bucks, and people suffer as fewer therapies, tests or cures are discovered, due to the reduced research for the patented gene.
And you know what? This whole Corporate Government/Corporate Rights/Corporate First trend is a helluva juggernaut, and not a one of us is in any position to stop it.
Somewhere in the Declaration of Independence is a line about "The public will endure suffering passively, until the suffering becomes insuffering, and they rise up in revolution."
Well, it ain't insufferable yet. Won't be for a good long time...
...and maybe by then, the 1984/Brave New World mindset will be so entrenched, that people won't even realize that it's insufferable. They'll continue to endure what we'd take up arms against, because they know no better.
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Re:Hmm.. (Score:3)
Oh? Would you care to show me where you published your genetic sequence?
Prior art must be published. As in available to the general public. For genes, that generally means the genetic sequence.
I'm not defending the system, just explaining it.
Slashdot: maelstrom of misinformation (Score:4)
- rozzin presents (and timothy does not correct) as a direct quote text which does not even appear in the linked press release. The press release claims that ColorMax licensed the patent rights from the Medical College of Wisconsin, not that ColorMax had a patent granted to them.
- Yes, the press release says that the genes were patented. I'm not buying it. Company press releases aren't exactly unbiased sources of information. The only patent I could find remotely resembling what is described in the press release is US 5,837,461 [delphion.com]. (And I search patents for a living, so I know what I'm doing.) Know what? It doesn't claim the gene. That patent claims:
- If the gene were patented (and the people who are saying you can't patent genes and those who say you can are both right, in a way; technically, you can't patent the gene itself, but you can patent use of the gene to do X, Y, or Z, where X, Y, and Z are so broad as to cover virtually any use of the gene), you would not be prior art just because you were color-blind. Prior art must be published. That thing you've made in the basement for 50 years but never told anyone about is not prior art. For genes, generally the genetic sequence must be included. So unless you've sequenced your gene for color-blindness and published it, it's not prior art.
Here's my general guidelines for determining what a patent really claims:Re:Gene patents (Score:5)
-Vercingetorix
Gimme your wallet (Score:3)
Can I sue these guys for my condition? Do they realize what misery is being created by their 'invention'? Drawing on the 'Racism at Microsoft' example, I think 5 billion (each) might cover it.
Prior Art? (Score:3)
-Vercingetorix
Patently ridiculous (Score:3)
Maybe the US Patent Office should take the year off and go back into the real world. Maybe they'll find their common sense they lost so many years ago. Of course, you can say that about anybody in government service (especially congressmen).
If anybody should receive the patent on genes, it should be God. He created them.
In Defence of Software Patents (Score:3)
sure I'll defendt them. Not all software patents are defensable however.
Although it causes us pain, LZW and RSA are both defenseable patents. They are useful, and they were discovered. Someone went through effort to discover those algorythms, and that should be rewarded. Copyright works, but copyright protects a specific implimentation. Patents are broader but don't last as long.
An arguement can (should) be made that because comptuers are new we should not yet allow patents because there are so many easy and obvious algoryithms that have not been found yet. Patents should reward significant effort to create something invative, not something that wasn't needed before but is now. Before the invention of gears (Or maybe it was something else but lets use gears) there was no need for patents because there was so little that could be done. Once we had gears there were many obvious things to build. AFter a few years someone working for years on end devolps something complex, only to have someone else copy it. The first person did all the work, he is the one who should be rewarded for the work, not any latter person who is smart enough to make a copy but not create to begin with. Once the point is reached that complex algorithms are all that we patent, then we need that protection, until then we don't.
Unfortunatly the patent system doesn't differentiate important. If the machine above also contained the discovery of oval gears, that would be worth more protection then the machine, because the gears are useful in many more ways. (Oval gears have existed for years, they are difficult to get right, but they do have advantages in some situations.
The color-blindness patent (Score:3)
2) According to the press release, the patent involved covers both "the human genes responsible for common, hereditary, red-green colorblindnes," and "a revolutionary test for color blindness based on a simple analysis of the actual genes that cause the problem."
So it's still a dumb patent, but be sure to include institutions of higher learning within range of your flamethrowers for stupid shit like this. I can see patenting the test...but the genes? Hell, probably 1/4 of our species is prior art. It's not as if they artificially created the gene (like in some biotech industry patents); they just found it.
I'm sure if Newton discovered gravity today, he'd just be a doctor at Cambridge, and the school would immediately patent it. What a fscked-up world this is.
Re:Prior Art? (Score:4)
What is claimed is:
1. A method for reproduction and elimination of fluid waste comprising: a cylindrical biological appendage enclosing a plurality of fluid-bearing tubes; said tubes bearing said fluids from the interior of a male human body to its exterior; said fluids comprising two unrelated functionalities, the first being the removal of excess water and water-soluble biological waste products from said male human body, the second being to provide a medium of suspension for the transportation of male genetic material for purposes of propogation of the human species, as well as general recreation; associated means to ensure rigidity of the appendage required during conduct of the reproductive act; generous endowment of the appendage's outer surface with nerve endings to provide a pleasuarable experience during the reproductive act, thereby encouraging the user's propogation of the human species; coordination with hands and eyes to direct the flow of said waste fluid during the process of liquid waste elimination toward a suitable and designated receptacle for same.
2. The method of claim 1, wherein said appendage is longer than average.
3. The method of claim 1, wherein said appendage is shorter than average.
4. The method of claim 1, wherein said appendage is wider than average.
5. The method of claim 1, wherein said appendage is narrower than average.
All persons finding themselves in possession of an appendage as described above, however they may have acquired said appendage in the past, are henceforth determined to be infringing this patent. This condition can easily be corrected by the payment of licensing fees amounting to one U. S. dollar per day of said possession. I am authorized to collect said payment on behalf of the patent holder.