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Bob Foster wrote:
> They will also consider whether the invention can be derived
> from an existing invention by simply substituting one "material"
> for another. Bob Wyman thinks this should stop patents like the
> one in question, but I don't see it. If the "material" substituted
> brings any measurable improvement to an existing process, then
> use of the material is patentable (or DuPont would have gone
> out of business long ago). An equivalent, I'm afraid, means almost
> exactly equivalent, like the substitution of one inert ingredient
> for another.
I think you overstate my position. (Or, perhaps, I've
overstated it...) I'm particularly concerned about substitutions in
the cases where the "measurable improvement" provided was the
motivation for inventing the substituted material.
For example, if:
1. "Inventor A" does "foobar" with ASN.1 binary encodings
2. "Inventor B" creates XML as a text based method of doing
all those things that ASN.1 can and has been used for (amoung other
things)
3. "Inventor C" should not be able to get a patent on doing
"foobar" with XML.
Inventor C should be blocked since the general concept of what
he is doing was covered by the prior art of Inventor A and the
"measurable improvement" of the application of XML to the problem of
"foobar" was anticipated in the invention/creation of XML.
In the case of the Microsoft patent we're discussing here, the
specification repeatedly says that they are claiming the general idea.
i.e. they say: "While the present invention is described in terms of
XML, it is understood that other schemas, formats and file types can
be used..." Well this is true and "other formats" have often been used
to produce this form of compound document in the past. As far as XML
is concerned, the "measurable improvements" that Microsoft claims are
things like: "XML is usable over the Internet and supports a wide
variety of different applications. XML is easy to write and the file
can be easily edited to either remove or add scripts. Also, XML files
are concise and relatively simple to create..."
If this patent could claim that there was something
particularly unique, insightful, or innovative about the application
of XML to this particular problem, I would be much more sympathetic to
their claims. However, it is clear that the "improvements" that come
from the use of XML are simply those that were anticipated in the
"invention" of XML itself and thus Microsoft deserves no credit nor
patent for recognizing what was taught by someone else's work. There
is no innovation here. It is simply a case of XML being used for what
it was intended to be used for.
If this sort of substitution is permitted, we get the current
situation. i.e. for every new encoding format, method, etc. there is a
land-rush of patent applications filed on every conceivable
application of the new application. The result is that innovation is
severely compromised and that the right to exploit a general invention
in specific contexts is essentially being sold for cash by the Patent
Office. (i.e. those who can afford to file often and early are the
ones who get the monopoly rights -- not the inventors of the more
general methods or those who can't afford to buy many claims.)
bob wyman
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