Ok, my question is more of a “how do patents really work?” sort of thing.
I was told that a fella has the patent to a general concept that would affect our industry. Not a technology, or an invention per se, just a concept “Publishing on Demand”. Allegedly he has held this patent for a while, maybe 5 years, and is suing anyone who purports to do on demand publishing. If true, this would seem to open up all kinds of nasty pots (including Blogs, maybe?) Is it possible?
I feel like maybe they’ve conflated this with a copyright or trademark or a specific phrase, although I really don’t know what can and cannot be patented, so general elucidation would be just fine.
IANAL, but I know one, and I have asked his advice on occasion about how it works with a view to possibly applying for patent on some of my ideas; I’m almost certain that ‘publishing on demand’ is far too vague a concept to be patented; you patent implementations, mechanisms and methods, not vaguely-described actions; so you could patent an automatic coffee stirring machine (assuming it was original/novel), but you can’t patent ‘stirring coffee’
This is what I learnt in last semester’s course on Intellectual Property Law: it will depend very much on the “invention” and the statement of claims that accompanies it. Obviously Australian patent law and US patent law are not the same, but there are probably some basic similarities between the two.
In Australia the *Patents Act * 1990 (Cth) sets out the requirements for a successful patent application. Key among these requirements are that the invention:
be a *manner of manufacture * within the meaning of the Statute of Monopolies (1623);
be *novel * and involve an *inventive step * when compared with the prior art base existing before the priority date of the claimed patent.
Various case law has defined what this all means, with the key decision being that in the NRDC case. In essence you can show that your invention is a manner of manufacture if it creates an artificial state of affairs that results in a process “that offers some advantage which is material in the sense that the process belongs to a useful art as distinct from a fine art - that its value to the country is in the field of economic endeavour”: National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252. Similar case law has established the meaning of *novel * and inventive step.
So if the inventor can get over all of these legal hurdles then he has a chance that his patent application will be granted.
Clearly the laws in the US are a little different. Let me summarize them:
“You can patent any idea you can come up with, no matter how trivial, asinine or obvious. Please send in your patent ideas, we will accept all comers. No idea is too ridiculous.”
If you haven’t been following software patents in the US then you may think the above statement is not very accurate, but I assure you, it is far closer to reality than you may realize.
Remember when reading patents you have to read the actual claims that come at the end not just the introduction paragraphs. It is the claims at the end that matter.
I thought someone like Xerox had a stab at publishing on demand around 15 years ago. The concept’s far from new, certainly.
The idea is a “publisher” stocks blank paper and generic covers, and when someone wants a copy of something, they just shoot it out on a laser printer and bind it. Great scheme for obscure works, college texts and that sort of thing - no need to front a minimum press and bindery run of say, 1000 copies, when the expected demand for a textbook might be only 50 copies.
No cite, but a few years back there was a company with deep enough pockets to afford a high-powered legal team, who claimed to own the patent on all types of streaming video. They sued and/or threatened to sue tons of smaller porn sites who either couldn’t afford the legal fees or didn’t want to deal with it. The result (at the time) was that most settled out of court and relinquished a 1% ownership stake to the nefarious company.
You would be surprised. Here is a guy (USPTO link, takes a while to open) who holds patents, among others, on talking video games and linked video games. Mind you, he has never manufactured any of these devices, he simply patents the concepts, then threatens to sue whomever he thinks he can shake down. I know of at least one company that paid him over six figures just to avoid the aggravation of a lawsuit.
It’s possible to get patents on all kinds of things that to many people seem wrong. The whole area of “business method patents” is very controversial. Software patents are also controversial. Perhaps the prime example of a valid patent that has been much criticised is Amazon’s “one-click ordering” patent.
One of the major problems with the U.S. patent system is that patent examiners are overworked and are under tremendous pressure to issue patents without looking at them very closely (the default is to issue a patent rather than deny a patent) and much of the patent law bar likes this situation. Once a bad patent is issued, it’s very expensive to try to get it invalidated.
From my point of view, the U.S. patent system is broken and in many cases acts as more of a hindrance to innovation and competition than as a boon. The software industry, in fact, is starting to come to the conclusion that they’d be better off if you couldn’t patent software.
They’re still out there; I don’t recall their name, but they moved to more legitimate targets like colleges using distance learning.
The patent office in the 90s evidently didn’t have enough computer-savvy inspectors, and would sometimes grant patents for ideas that were obvious. They eventually get overturned once someone is willing to fight, but until then, squatters would shake down people who used basic computer systems that they claimed patent rights on.
It sounds very possible the one I’m thinking of falls into the category posited by the last few posters. I’ll see if I can get an actual patent number or name or such for reference.
The products we work with are all similar to the ones Gotpasswords refers to.
These were the exact three things I had in mind when I saw the thread title. I would disagree and say that Software Patents aren’t as ridiculous (though in general they are) or as absurd as “business method patents.” One can probably think of one case (Amazon) where it might be useful, but in general, I believe they are largely detestable.
Software Patents, imo, aren’t too bad because it forces disclosure and it gives a lot of insight into the logorithims and basic design behind the software code that a decompiler wouldn’t. However, the major complain is that the USPTO often mistakes most claims that are obvious, and some of these claims I’ve seen can be a pain to work around. As a lawyer, I would comfortably say that a lot of these patents would be fought, correctly, if it weren’t for lawyer fees. (I know, I know, blasphemy…)
A couple of years ago, I attended a conference on patent law where one of the subjects was business-method patents. Pretty much all the speakers were in agreement that they were a good and fine thing and people who objected to them were being hysterical and illogical. One of them also posited that the first airline to use a frequent-flyer programme should have been able to patent the idea (if it had wanted to) and that it would have been a boon to the airline industry, because, then, well, they’d all have to be more creative in coming up ways to attract customers. Allowing competitors to offer similar benefits, in these guys’ minds, was a hindrance to innovation.