Re: [xml-dev] Suggestion test - WAS: Patents on XML software, fileformat

[sterling <sstouden@thelinks.com>]

I would love to hear some discussion on this because it will affect 
everyone on this list someday.  Don't jump all over me. I just want to
get some thoughts going on this important problem before it is too late 
for us to have a say.  So i wrote what I thought were important points to 
ponder.  I am no lawyer and no advise is given here, just questions 
raised.  thanks. read on if you wish! 

I wonder if that "Prior idea test" actual meets the constitutional 
standard or intention?  

Constitution Article 1, Section 8, says, in relevant part: the Congress 
shall have the legislative power to:
"To promote the progress of science and useful arts, by securing for a  
limited time to authors and inventors, the exclusive right to their  
respective writings and discoveries".  

My reading finds the words of the constitution does not say ideas are 
protected.  The words of Section 8 secure exclusive right to the writings 
and discoveries of the respective authors and inventors.  Sec 8 does not 
say that it prevents other authors or inventors from do whatever writing 
or inventing they desire?  The courts and the congress have tried to 
change it to mean a 2nd inventor cannot invent the same thing as the 
first?

What the author wrote or the inventor created is protected because 
   it is a creation, the expression of mind, reduced to tangible media. 
The media containing the human expression impressed on it by the author 
   or inventor is protected, but not the idea used to formulate and 
   express the invention or writing.
The exclusive right applies to the created tangible expression created by 
    the inventor or author, not to the idea that can be used to create a 
    similiar one. Though the courts and congress have made it to appear 
    that excluive right was intended to mean no other inventor can invent 
    the same thing.  It was not a monopoly Section 8 had in mind, instead
    it was exclusive private ownership to the invention or the writing. 

My opinion, in fact, Sec 8. does not address ideas.  Ideas are not 
protected by the above clause, not even art, just writings, and discoveries.  

By the way a discovery is not an idea.  So more than one person can make 
the same discovery.   What Joe discovered belongs to Joe what jack discovered 
belongs to Jack and both are entitled to exclusive right to their 
discovery [they and only they can use it even if each has the same 
inventor].  If I discover the same thing Joe did, I get protection too?   
Where does it say I don't?  The courts and congress want to say that 
because someone else has already invented a particular object, that I 
cannot invent even a similiar one, but I cannot agree with them after 
reading the words in Sec 8. 

All of the other stuff that has made the intangible property law has been 
added by courts and a heavily lobbied congress attempting to rewrite the 
constitution by rule of law to extend the word exclusive to mean monopoly 
and to extend the coverage to the ideas that were used to create the art  
or to make the discovery. Now these same lobbiest and re drafters want to 
add software in the definition of discovery. 

My reading says the constitution intended only to protect the writings 
and inventions that an author or inventor personally created.  You 
created a writing, no one can constittionally claim the ordered words on 
the tangible medium you used were not yours, but your claim last only 
for a limited time.

I cannot find that the framers of the constitution contemplated  
preventing another from inventing the same or a similar thing.    Do not 
see where the words of the section 8 prevent a second inventor the same 
protection the first inventor was granted, it just prevents the 
second inventor from using someone else's discovery to create his 
own invention or to use the other inventors protected invention to perform 
a task which the invention will do.  In other words, I think Section 8 
words say, the second inventor must discover and invent for him(her)self 
to be granted exclusive protection on his or her invention.  Once again 
law and court have amended that.

Ideas are not protected.  If one gets the same idea and creates an
invention similar to or even exactly like the one that someone else 
already invented, I do not see where the original words in the 
constitution protect the first invention from the second.  But the 
subsequent law and court rulings have almost done that.

I cannot find in the words of the constitution any prohibition on the use  
of ideas by anyone, at any time, as long as the a subsequent inventor, 
discovers the facts he uses to construct his convention without 
reference to the first.
 
Nor can I agree that a second writer or inventor could not independent 
of the first develop the same invention or even create the same writing  
as long as the 2nd inventor never saw the writing or the physical 
invention or the 1st writer or inventor. 

The congress and the courts have tried to craft those words to say the 
words of the constitution provide a monopoly of the invention, but I read 
it to say the first inventor has a monopoly on his invention[like a deed 
on a piece of property] and he is the exclusive owner of his invention [a 
deed], but he is not the exclusive owner of, any idea, or all other 
similar property [of the type that is of the first inventor's 
invention, even if, the second invention bh the second inventor 
created exactly an exact duplicate of first invention as created by 
the first inventor.

In other words, my deed to five acres does not entitle me to prevent 
anyone else from owning a like kind of five acres somewhere else. 

If you sit by and let the big guys do it, they will craft the law to suit 
themselves, and make favorable outcomes for themselves, enforceable in 
courts against the little guys.  It  takes a will on the part of those 
affected to challenge the law, the lawmakers and the courts and the 
motives of those who crafted its outcome.  It takes a lot to understand 
the issues because they are buried deep in court decisions and words with 
hidden meanings in the written laws and minds of the judges who interpret 
them.

I would not challenge the constitution, but I will never accept the laws 
and rulings as within the bounds set by the constitution, without fully 
understanding the intentions of the drafters, the true meanings of the 
words in the law, and the impacts of the law on the intentions of the 
words clearly expressed in the constitition. 
 
sterling


On Thu, 24 Aug 2006, Ken North wrote:

> Michael Kay wrote:
> > (a) there is no practical way when writing software of ensuring that it does
> > not infringe patents
> 
 > The Electronic Freedom Foundation sent out a press release a about a 
development in US law that might further complicate the problem of 
avoiding infringing on patents. It has to do with the prior knowledge test 
for something to be patentable. 
A US court has applied a "suggestion test" in deciding whether something 
is patentable.
> 
> For the full amicus brief:
> http://www.eff.org/legal/cases/KSR_v_Teleflex/ksr_amicus.pdf
> 
> 
> >From the press release
> 
> In a recent decision, the Federal Circuit Court of Appeals
> affirmed its own "suggestion test" as the main method for
> determining when a patent should be found obvious over
> knowledge in the public domain.  Under this test, even the
> most obvious incremental advances and add-ons can be
> patented unless the Patent Office or a defendant in court
> produces a document that shows someone else suggested it
> prior to the patent being filed.
> 
> "The Federal Circuit's suggestion test forces litigants to
> search through reams of technical papers for a document in
> which someone, somewhere, bothers to state the obvious,"
> said EFF Staff Attorney Corynne McSherry, who co-authored
> the amicus brief.  "This is inefficient and burdensome, and
> contrary to the principles, policies, and standards the
> Supreme Court has upheld."
> 
> In its amicus brief filed Tuesday, EFF shows how this
> "suggestion test" has led to a massive surge in bogus
> patenting, especially in software.  These bad patents then
> become weapons against legitimate innovators -- especially
> those working on Free and Open Source Software projects.
> 
> Press release:
> http://www.eff.org/news/archives/2006_08.php#004881
> 
> 
> ======== Ken North ===========
> www.WebServicesSummit.com
> www.SQLSummit.com
> www.GridSummit.com
> 
> 
> 
> >
> > Michael Kay
> > http://www.saxonica.com/
> >
> >
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