The Patent Examiner side
Hello,
I'll just add my grain of salt to the discussion...
I appreciated the comments of psxndc on the subject, because he seemed to be the only one to have a clue about the subject.
My own little summary:
- as psxndc mentioned, the only relevant part of a patent for licensing and litigation is the one of the patented claims, and all the rest is a support for them; the description is mostly of use before the issueing of a patent, to adjust the claims to an allowable patent with regard to what exists already;
- the two most important rules are novelty and inventive step , i.e. "does that already exist" and "based on what already exists, would I have had any reason to propose the same solution"; novelty is quite easy to assess, but assessing the inventive step is more subjective: there are some "tools" for the examiners, to help build up a proper reasoning which is fair to the applicant and to the public, but some cases are hard to decide upon;
- like in any other fields, you do have some (very few) bad patents once in a while, because some parts were overlooked; they are mistakes, and there are several structures to avoid that and several procedures to correct that, such a opposing an unfair patent; there should not be any mistake, but this is not humanly possible (unless you tell me you never, ever make any mistake in your work);
- the patenting system has (really) been built up to promote development: if you make your invention public, you receive an exclusive right for a limited amount of time on it. The other way is to keep your invention secret (with the risk that it gets discovered anyway) but then everyone else has to discover all the steps; it'd be like proposing to stop the publication of researches: you could forget about rapid development;
- there is no international patent, but there is the Patent Cooperation Treaty (PCT, check the WIPO website), under which a first international search and a first international opinion are provided together before individual national phases of examination, and there is also the European Patent Convention (EPC, check epo.org) under which applications are searched, examined and brought to national patents (for Europe); there is also the project of a (European) Community Patent, but that's not done yet.
- in PCT and EPC, there is no period of grace, i.e. the filing date of the application is the important date, and any document made public before the prior date should be considered;
- you cannot get a patent on anything; try to get a patent on a fork, or a vague method to close a toilet seat, or a software for doing something with something, and you will not make it through the novelty issue, as all this is already known;
- btw, there are patents on methods indeed;
- seeing the patent from Courtois, I tried to remember what was the state of computer music jukeboxes in 1995 (and even in 1999), and there was nothing so close that I knew - only usual 1-list mp3 players or CD-players. I must say that the 1st claim is exactly what I like from iTunes: this double data window, and what I always thought inventive, definitely different. But maybe I was wrong, and if a company made the effort to put their thoughts together to conceive such a concept, paid the fees for a patent and got it, it should get the benefits of its work; a willingful infrigement from Apple or a greedy activity from Courtois are another (humane) side of the problem;
- I don't think Apple would do anything different if the cards were in different hands ? Their legal department is quite active to avoid any reproduction of their own developments.
When I read comments from the supporters of a "no-patent" world, I really wonder what they'd expect the world to do. Who would make the most profit, the developper and producer, or the copier and producer? Who would disappear first, the meritful developper or the shameful copier? Maybe nobody would develop anymore.
Arnaud,
patent examiner somewhere in Europe.
Hello,
I'll just add my grain of salt to the discussion...
I appreciated the comments of psxndc on the subject, because he seemed to be the only one to have a clue about the subject.
My own little summary:
- as psxndc mentioned, the only relevant part of a patent for licensing and litigation is the one of the patented claims, and all the rest is a support for them; the description is mostly of use before the issueing of a patent, to adjust the claims to an allowable patent with regard to what exists already;
- the two most important rules are novelty and inventive step , i.e. "does that already exist" and "based on what already exists, would I have had any reason to propose the same solution"; novelty is quite easy to assess, but assessing the inventive step is more subjective: there are some "tools" for the examiners, to help build up a proper reasoning which is fair to the applicant and to the public, but some cases are hard to decide upon;
- like in any other fields, you do have some (very few) bad patents once in a while, because some parts were overlooked; they are mistakes, and there are several structures to avoid that and several procedures to correct that, such a opposing an unfair patent; there should not be any mistake, but this is not humanly possible (unless you tell me you never, ever make any mistake in your work);
- the patenting system has (really) been built up to promote development: if you make your invention public, you receive an exclusive right for a limited amount of time on it. The other way is to keep your invention secret (with the risk that it gets discovered anyway) but then everyone else has to discover all the steps; it'd be like proposing to stop the publication of researches: you could forget about rapid development;
- there is no international patent, but there is the Patent Cooperation Treaty (PCT, check the WIPO website), under which a first international search and a first international opinion are provided together before individual national phases of examination, and there is also the European Patent Convention (EPC, check epo.org) under which applications are searched, examined and brought to national patents (for Europe); there is also the project of a (European) Community Patent, but that's not done yet.
- in PCT and EPC, there is no period of grace, i.e. the filing date of the application is the important date, and any document made public before the prior date should be considered;
- you cannot get a patent on anything; try to get a patent on a fork, or a vague method to close a toilet seat, or a software for doing something with something, and you will not make it through the novelty issue, as all this is already known;
- btw, there are patents on methods indeed;
- seeing the patent from Courtois, I tried to remember what was the state of computer music jukeboxes in 1995 (and even in 1999), and there was nothing so close that I knew - only usual 1-list mp3 players or CD-players. I must say that the 1st claim is exactly what I like from iTunes: this double data window, and what I always thought inventive, definitely different. But maybe I was wrong, and if a company made the effort to put their thoughts together to conceive such a concept, paid the fees for a patent and got it, it should get the benefits of its work; a willingful infrigement from Apple or a greedy activity from Courtois are another (humane) side of the problem;
- I don't think Apple would do anything different if the cards were in different hands ? Their legal department is quite active to avoid any reproduction of their own developments.
When I read comments from the supporters of a "no-patent" world, I really wonder what they'd expect the world to do. Who would make the most profit, the developper and producer, or the copier and producer? Who would disappear first, the meritful developper or the shameful copier? Maybe nobody would develop anymore.
Arnaud,
patent examiner somewhere in Europe.
