Constraints on the FLOW of Ideas
Constraints on the FLOW of Ideas
Learning Outcomes: Participants will gain greater precision in their knowledge about government-granted authority to persons ( corporations or individuals) to levy private taxes, by declaring artificial monopolies over ideas. Such declarations are commonly referred to as "patents". Participants will develop a basis for making their own assessments about the appropriate versus inappropriate issuance and idea taxation powers. Participants will also learn how many developers and organizations are currently attempting to protect themselves, their communities, and their Free/Libre/Open Works from a global proliferation of idea taxes, which stifling competition, innovation and productivity.
Concepts, definitions, boundary of application
- What are "Patents"? Why were they created?
- A temporary statutory artificial monopoly over the use of a novel, useful, non-obvious, documented idea
— Patent Law in Diverse Countries http://www.patentlens.net/daisy/patentlens/ip/around-the-world.html - Mayo Collaborative Services v. Prometheus Laboratories, Inc. http://opensource.com/law/12/3/prometheus-bound-important-precedent-next-software-patent-case
— Initial thoughts on Mayo v. Prometheus and software patents http://www.ifosslr.org/ifosslr/article/view/68 - Patent Act (Canada) http://laws-lois.justice.gc.ca/eng/acts/P-4/FullText.html (New, Useful, Non-Obvious)
— 2. ...“invention” means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter;
— 28.3 The subject-matter defined by a claim in an application for a patent in Canada must be subject-matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains - Patents and Open Standards http://xml.coverpages.org/patents.html
- The Standard of Non–Obviousness in Canada http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip00154.html
- Taking the Utilitarian Basis for Patent Law Seriously: The Case for Restricting Patentable Subject Matter (See: Abstract on pg 1-2; Flowchart on pg 24) http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1277&context=lsfp
- Historical Introduction of the British Patent System (pgs 14-16) http://books.google.ca/books?id=wfs8AAAAIAAJ&lpg=PP1&pg=PA14#v=onepage&q&f=false
- Significant Differences Between Canadian and American Patent Law (slightly dated, but helpful) http://www.mcmillan.ca/Significant-Differences-Between-Canadian-and-American-Patent-Law
- From “first-to-invent” to “first-to-file”: How the first-to-file and novelty requirements under the new America Invents Act compare to Canadian patent law http://www.patentable.com/from-first-to-invent-to-first-to-file/
- A temporary statutory artificial monopoly over the use of a novel, useful, non-obvious, documented idea
- What Does "Software Is Mathematics" Mean?
- Part 1: Software Is Manipulation of Symbols http://www.groklaw.net/article.php?story=20121013192858600
- Part 2: A Semiotics Approach to the Patent Eligibility of Software http://www.groklaw.net/article.php?story=20121129053154687
Plutarch (c. 46 – 120 AD), on Archimedes and the special character of subject-matter that would not have been obvious: "Some attribute this success to his natural endowments; others think it due to excessive labour that everything he did seemed to have been performed without labour and with ease. For no one could by his own efforts discover the proof, and yet as soon as he learns it from him, he thinks he might have discovered it himself; so smooth and rapid is the path by which he leads one to the desired conclusion."
Plutarch, "Parallel Lives of Greeks and Romans" http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Plutarch/Lives/Marcellus*.html (pg 481 in the 1917 Loeb Classical Library Edition, from the original book dated approximately 100 AD)
The Inappropriate Delegation of Authority to Levy Taxes on Ideas
- Watch: http://patentabsurdity.com/watch.html (30 min)
- So Small a Town, So Many Patent Suits http://www.nytimes.com/2006/09/24/business/24ward.html?_r=3&adxnnl=1&oref=slogin&ref=technology&pagewanted=1&adxnnlx=1369562545-AHtQ8DfI1aPth2MrhG1sYQ
- Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Chpt 9: Abstract Patents and Software) http://books.google.ca/books?id=kTeDYjpqfQwC&lpg=PA79&ots=D1b4W0zhK9&dq=%22net%20benefit%22%20patents&pg=PA187#v=onepage&q=%22abstract%20patents%20and%20software%22&f=false
Current Developments and Trends (defensive patents; license clauses)
- Community agreements
- Apache Foundation http://www.apache.org/foundation/license-faq.html#PatentScope
- Patents and GPLv3 http://fsfe.org/campaigns/gplv3/patents-and-gplv3.en.html
- Santa Clara University Conference: Solutions to the Software Patent Problem (16 Nov 2012)
- Keynote Panel #1: What is the Problem? https://scu.box.com/s/m5v07i1fydmb4ylwzkn6/1/528505974/5097755034/1 (webm open video format http://www.webmproject.org )
— Richard Stallman, Founding President, Free Software Foundation [Video 8:00-to-11:30 and 12:05-to-15:47]
— Kent Walker, Senior VP and General Counsel, Google Inc. [Video 22:50-to-27:07] - A Report on the Santa Clara Conference on Software Patents http://www.groklaw.net/article.php?story=20121124032902769
- Santa Clara Conference on Software Patents Recap http://writtendescription.blogspot.ca/2012/11/scu-software-patent-conference-recap.html
- Keynote Panel #1: What is the Problem? https://scu.box.com/s/m5v07i1fydmb4ylwzkn6/1/528505974/5097755034/1 (webm open video format http://www.webmproject.org )
- Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them (R. Stallman) http://www.wired.com/opinion/2012/11/richard-stallman-software-patents/
- Proposed amendments to the European Commission's proposal for a regulation on the creation of unitary patent protection https://www.unitary-patent.eu/node/5?comment_id_key=lbmuRzWAq8b
- Sequential Innovation, Patents and Imitation www.researchoninnovation.org/patent.pdf
- Patently Absurd http://www.forbes.com/asap/2002/0624/044.html (and update http://www.forbes.com/sites/timothylee/2011/07/07/microsofts-android-shakedown/ )
- Shield software from litigation http://en.swpat.org/wiki/Shield_software_from_litigation
☏ Audio File (pending): Listen to a Discussion with an Invited Authority on 20-Year Artificial Monopolization of Computational Ideas ("Software Patents"): What do we learn from the CLS Bank v. Alice Corporation case?
- Dan Ravicher is Executive Director of the Public Patent Foundation and a Lecturer in Law at Benjamin N. Cardozo School of Law. He received his law degree from the University of Virginia School of Law, and is admitted to the United States Supreme Court, the Courts of Appeals for the Federal, 2nd and 11th Circuits, the District Courts for the Southern and Eastern Districts of New York, the State of New York, and the United States Patent and Trademark Office. He is also a registered patent attorney. He writes and speaks frequently on patent law and policy, including twice testifying as an invited witness before Congress on the topic of patent reform, and he was named to both Managing Intellectual Property magazine's '50 Most Influential People in IP' list and IP Law & Business magazine's 'Top 50 Under 45' list. http://www.pubpat.org/Board.htm
Real World Patent Court Cases (what went wrong; reasons for decision)
- Case 1: CLS Bank International v. Alice Corporation_
- Rob Tiller of Red Hat has written and submitted an amicus curiae brief to the U.S. Supreme Court in the case of Alice Corp. v. CLS Bank. The case involves a patent relating to financial intermediation using computers, but the Court's decision may have implications for many patents on software-related inventions. Oral argument is scheduled for March 31 2014, and a decision is expected before the end of the Court's term in June, 2014.
— A copy of the brief (PDF) is available via this link: http://red.ht/1frxQC7 - United States Court of Appeals for the Federal Circuit, CLS BANK INTERNATIONAL, Plaintiff-Appellee, AND CLS SERVICES LTD., Counterclaim Defendant-Appellee, v. ALICE CORPORATION PTY. LTD., Defendant-Appellant. Decided: May 10, 2013 http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1301.Opinion.5-8-2013.1.PDF
- CLS Bank panel decision (http://scholar.google.com/scholar_case?case=13846668729587624571)
— Read the panel decision, and discuss Linn's opinion for the court, and the dissent by Prost - En banc order http://www.cafc.uscourts.gov/images/stories/opinions-orders/2011-1301%20order.pdf
— Read en banc order, and discuss the questions in section (3)
- Rob Tiller of Red Hat has written and submitted an amicus curiae brief to the U.S. Supreme Court in the case of Alice Corp. v. CLS Bank. The case involves a patent relating to financial intermediation using computers, but the Court's decision may have implications for many patents on software-related inventions. Oral argument is scheduled for March 31 2014, and a decision is expected before the end of the Court's term in June, 2014.
- Case 2: Bilski v. Kappos - Supreme Court of the United States "www.supremecourt.gov/opinions/09pdf/08-964.pdf":http://www.supremecourt.gov/opinions/09pdf/08-964.pdf
— Bilski's growing up, and smacking down some bad software patents http://opensource.com/law/11/7/bilskis-growing-and-smacking-down-some-bad-software-patents
☏ Audio File (pending): Listen to a Discussion with an Invited Authority on 20-Year Artificial Monopolization of Computational Ideas ("Software Patents"): The Open Invention Network (OIN) and The Future of Patent Non-Aggression Pacts
- Keith Bergelt is the chief executive officer of Open Invention Network (OIN), a company that acquires patents and licenses them royalty free to entities which, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications. Mr. Bergelt holds an Artium Baccalaureus degree from Duke University, a Jurist Doctorate degree from Southern Methodist University School of Law and a Masters of Business Administration degree from Theseus Institute in France. He has previously served as president and CEO of two Hedge Funds focused on the asset value of patents, trademarks and copyrights. And earlier in his career he established and served as General Manager of the Strategic Intellectual Asset Management business unit at Motorola Corporation and served as Motorola's director of Technology Strategy. Mr. Bergelt was a co-founder of the Intellectual Property Advisory Practice within the Electronics and Telecommunications Industry group at SRI Consulting in Menlo Park, California. http://www.openinventionnetwork.com/press_management.php
Brainstorming a Worst Case Scenario Business Survival Guide on Computational Idea Patents. Risk-Minimization and Value-Maximization in the Organization's Context
- Current Practices
- Concerns and Challenges
- Interests and Opportunities
- Defensive Publications
- DefensivePublications.org http://www.defensivepublications.org/
- Defensive patent publications establish the existence of prior art in any field http://opensource.com/education/13/2/software-defensive-patents
- IP.com http://ip.com/