SENG4921 – Lec 06 – Intellectual Property and software patents

Patents

Patents are a business tool.

I think that is the most important thing I gathered from this lecture by two Freehills attorneys (Stuart Irvine & Ronelle Geldenhuys) about IP and software patents. Lecture slides here.

Monopoly vs. Secrecy. In order to get the monopoly you must give up the secrecy.

Patents protect functionality.

Patents can be used as a sword (legal action to get royalties or force the infringer to stop), shield (dissuade others from infringing), war chest (trade and negotiation).

A patent gives the patent owner an exclusive right to exclude others from exploiting (manufacturing or importing a patented product or using or importing a product made by a patented process) an invention in a particular country.

To enforce a patent, the patent owner must take the infringer to court.

Tests for patentability,

• Patentable subject matter
• Industrially applicable
• newness (any prior art?)
• obviousness

With regards to patenting mathematical algorithms,

“A method of calculating a value c, where c = e^x x sin(t)” is not patentable however this is,

“A method of determining the length of a road (L) in metres by applying the formula where is the gradient of the road, N is the number of litres of fuel used by a car travelling on the road, and g is the acceleration due to gravity”, According to APO, Manual of Practice and Procedure, Volume 2. Sounds a bit silly to me.

An example,

US Pat. 5356330 (via google) – Apparatus for simulating a “high five”

Self publication prior to filing does class as prior art, meaning you cannot get the patent.

To invalidate a patent you just need to find prior art. That is, find the idea published prior to the filing date of the patent. Lesson here, if you know you don’t want to get a patent for something and you want it to remain free to the world publish your idea/concept. Remember you don’t need something working in order to patent it. Just detail how it would work (that’s easier than getting it to work right?).

US patent 5490216 (or via google) is interesting. Filed in 1993, its a System for software registration. Basically there is a demo mode and a full mode. To get the full mode you need a registration key. Thats the general gitz. I didn’t read the whole thing.

There are other examples,

• IBM holds patent #4,965,765 which covers the use of different colours to distinguish the nesting level of nested expressions. (Filed: 1986)
• Patent #5,249,290 covers assignment of client requests to the server process having the least load. (Filed: 1991)
• Patent #4,941,125 covers using a digital camera in conjunction with character recognition software to store and index documents on a CD ROM. (Filed: 1984)

I don’t know what to think. They seem trivial, simple and obvious, but they weren’t published today. As most people would say, you need to ensure that trivial patents are not granted (problem here is how do you define trivial?), and that the term is not too long (20 years is too long in my opinion).

Patenting of illegal methods in not allowed, though you may patent a things which may be used illegally such as gun (heh, otherwise nothing would be patentable).

Interesting example. A safe design was patented and then a thief used the patents to work out how to break it.

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Copyright

In terms of software, copyrighting software only stops others from using the same implementation as you. They are free to use an alternate implementation to do the exact same thing.

You can copyright compiled machine code.

I have a lot to say about this (creative/computational universe, and the clouds that span derivative works). So much that I’ll have to leave it till later.

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Registered Designs

Registered designs are interesting. There is a nice brochure from an Australian Law firm here.

A registered design provides a monopoly of a limited duration (max 10 years in Australia) granted by the government to an entity of a “concept” which determines the appearance of a product. I’m a little confused here as I though (its such a shame that the audio recoding from that lecture is corrupt) Geldenhuys said that registered designs are for a specific device. So if you register a design for an electronic device, anyone can use that design for say a paperweight. However in their lecture slides it says that registered designs protect appearance not functionality.

You will all probably recognise AU Registered Design 307210. Currently owned by Apple Inc. and must expire by Nov 23, 2015.

AU Registered Design 307210 (http://pericles.ipaustralia.gov.au/adds2/adds.adds_reps_details.paint_large_rep?p_application_details=200515157,307210,1,BB,tmprod,NORMAL)

All registered designs must have a “Statement of Newness and Distinctiveness”. AU RD 307210 says, “Newness and distinctiveness is claimed in the visual features shown in solid lines in the representations.”

Registered designs must be renewed to stay protected. Though they have a max of 10 years, renewal fees get larger near the end of the designs protected life, either Irvine or Geldenhuys then added to this “governments don’t like monopolies”. Sorry but I strongly disagree with you there. If governments didn’t like monopolies they would abolish crown copyright.

Trademarks

I won’t say too much here. But here is a sample trade mark “thing”(?).

Trade Mark 1111537 (http://pericles.ipaustralia.gov.au/atmoss/Falcon_Details.Print_TM_Details?p_tm_number=1111537&p_ExtDisp=D&p_Detail=DETAILED&p_Search_No=2&p_Lastrecord=FALSE&p_Is_Internal=F)

Trade Secrets

You don’t publish, you just swear everyone to secrecy (contracts). Does not protect against reverse engineering or independent formulation.

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Patent Talk

I went to a Talk by a Patent Attorney (Stephen Fung) the other day (3rd April 2009) about Patents. It was quite interesting. Here are some notes I made.

• Patent examiners work for the government.
• Patent attorneys are not lawyers, they have a science or engineering qualification

A provisional patent can be rubbish, and you can still amend it before you try to get it turned into a full patent. Its used as documentation of the invention at a specific time so that you have evidence and proof that it existed at a specific time.

Patents are a commercial instrument.

Often the venture capitalist will tell the person or company they invest in to file some patents. These people then go to the patent attorney, tell them this is what I’ve done, just file anything.

An interesting thing about patentable material, using the example of say a compression algorithm, the mathematical foundations are not patentable, but if you incorporate that into say a chip, you can patent that and prevent others from implementing the algorithm into chips of their own.

If you have some new invention that you want to try to patent. You may speak with a patent attorney, go through Technology Transfer (eg. New South Innovations), do the patent yourself, do not disclose until you have filed something.

If you copyright your source code it only protects that “creative expression” of the code. So if someone wrote the exact same program in another programming language then you cannot hinder their distribution of that.

If you patent the underlying algorithm then no one can use of implement that algorithm.

“Patent It Yourself” is apparently a good book.

Patents in the Digital Age

I was just reading this (which coincidently seems much better written in terms of style and content than what I write here on my blog),

“In my opinion, copyright and patent laws are entirely suboptimal, especially with regard to the digital side of things. The concept of a patent is a noble one — that is, it allows the inventor of some concept to be protected by the law for a certain amount of time in the production or implementation of that concept. Before patents, inventors would hold their ideas very close to their chests, so nobody could steal them. They’d make a killing selling whatever it was they invented, then take their secret to the grave. Obviously the loss of knowledge is regrettable, but there was no way to let future generations benefit from the invention without giving away its secrets (and thus, your rights). Enter patents. The concept behind patents is that they provide protection for the patent holder for a time, given that he describes it in enough detail for his idea to be replicated. This solves the problem at hand quite neatly: the inventor keeps a grip on his invention, and is given ample time to monopolise upon it. If the inventor were to pass away, the knowledge is retained and can be referred to in the future.

The period during which the patent can be enforced is, in most cases, 20 years. But, wait — if we’re to apply such a law to computer programs… when was the last time you used a 20-year-old piece of software? When was the last time you used even a 7-year-old piece of software? Probably about six years ago. Patents are still a good idea in software, but the patent term needs to be drastically reduced for it to apply sanely. 18 months, at a maximum.”
—http://nornagon.livejournal.com/27709.html

It got me thinking, patent law was really designed for a different age where you invented things such as the telephone and the Rubik’s Cube. Patents documented the inner workings of the invention and how to build it. Thus after the patent owner has made some money from their invention and it falls into the patent equivalent of the public domain anyone else can make it and build upon it. Enter the digital age where generally copyright is used to protect computer software rather than patents (I’ve heard of software patents, but they don’t require submission of source code). Copyright was intended to protect creative works where there are no “inner workings” or “instructions” needed in order to build it. Given the fact that most (maybe not most, but lots of) software is written in programming languages that get compiled into machine code, computer software needs these “inner workings” and “instructions” i.e. the source code in order to build upon it once the original creators have made some money.

There are two problems here with the fact that software falls under copyright rather than patents.

1. When the protection expires there is no method to ensure that the source is published, and
2. secondly copyright laws currently last life + 70 years. In some cases this could be 160 years it takes for the copyright to expire. By then the technologies would have most certainly changed and the software would be of no use (even if the physical storage medium has survived that long (though I think laws now allow copying for backup)). As suggested in the quoted article above a reasonable protection length would need to be less. I think 2-3 years, but really an experienced team of worldwide economists would be able to come up with this figure much better than I could. This would, I think, push innovation forward as software creators would need to come up with new things in order to continue the income stream.

But what if the government’s were to introduce some new patent laws that tried to put computer software under patent laws rather than copyright (yes I know that’s a semantics issue, but I’m referring to the current laws). Well lets say that the law said that you will only have protection for your computer program if you give us the source which we will lock up and then release after a few years. Despite the fact that you would need to employ a lot of patent officers, I don’t think this will work because,

1. its hard to tell if the source that was provided really was everything for the program (i.e. manual checking would be needed.)
2. you could argue that machine code is the source (i.e. say you wrote the program in machine code when you really used C++)
3. that creators will just say “okay we don’t need protection from the law, we won’t use patents, we’ll just implement our own DRM and skip your patent laws”. This is even worse as it locks up the program for as long as it takes to crack the DRM.

Another key thing is that even in the time of patents if you bought a product that was protected under patent law, you were still allowed to make changes to it. For example if you bought a Rubik’s Cube and if it was protected by a patent, the law could not stop you for example pulling it apart to see what it looks like on the inside, or writing some numbers on the outside squares. However now in the digital age and particularly with the DMCA you cannot even do this (though I don’t think Australia has any law that is equivalent to the DMCA that restricts you circumventing DRM). In these time it is apparently illegal for you to open up and change your own products that you have purchased and own.