For reasons I don't understand a court in Seattle is preventing Motorola enforcing the ban. Is Germany now US jurisdiction?

 It did get me thinking though - what would happen if Germany's supply of new Windows licences was cut off? Individuals and organisations would be stuck unable to upgrade/replace equipment and face huge migration costs to other platforms if it continued for an extended period of time.

 What really scares me about this kind of thing, though, is cases in the past where companies have faced a potential outcome of having to remotely disable customers products (example here). Can you imagine the havoc that would ensue if these type of cases crossed Microsoft were forced to send out a Windows Update disabling all Windows computers in Germany?

"For you Microsoft, Zee vorr is over ..."

57 minutes ago, GoddersUK wrote

It did get me thinking though - what would happen if Germany's supply of new Windows licences was cut off?

The US government would take retaliatory action against big German companies, that's what would happen. And that's why the ban hasn't taken place.

Microsoft were forced to send out a Windows Update disabling all Windows computers in Germany?

It wouldn't happen. Microsoft would refuse to do business in Germany before it took that kind of action.

45 minutes ago, evildictaitor wrote

*snip*

It wouldn't happen. Microsoft would refuse to do business in Germany before it took that kind of action.

And, in any case, any such update would merely remove the contested h.264 decoders, not completely disable Windows.

Welcome to the enviable conclusion of the software patent wars. All software becomes illegal.

32 minutes ago, Bass wrote

Motorola initially offered Microsoft a license for their patents but Microsoft refused. I can't say I'm surprised by this.

Welcome to the enviable conclusion of the software patent wars. All software becomes illegal.

But, but, how can you not see that Microsoft is the victim here!

[Sadly I understand that in this game you cannot easily fend off Microsoft. Micosoft heart lawyers, who would have guessed]  

1 hour ago, Bass wrote

Motorola initially offered Microsoft a license for their patents but Microsoft refused. I can't say I'm surprised by this.

Welcome to the enviable conclusion of the software patent wars. All software becomes illegal.

The fees for the licensing that they offered to Microsoft were not fair, reasonable, and non-discriminatory.

3 hours ago, AndyC wrote

*snip*

And, in any case, any such update would merely remove the contested h.264 decoders, not completely disable Windows.

In this case. My intention was to refer to a hypothetical situation similar to the DVRs linked to. If they could be required to remove the h.264 codecs then, for some other, more fundamental, violation they could be made to shut the whole thing down.

 And I don't it's right for them to de-feature something already sold just because it's possible. It wouldn't (couldn't) be done for any no software (or software powered) product.

2 hours ago, GoddersUK wrote

then, for some other, more fundamental, violation they could be made to shut the whole thing down.

No they can't. Microsoft is in the US, and only the US government can force Microsoft to do anything.

If Germany wanted to, they could stop Microsoft from selling stuff or employing staff in Germany, but that's the worst they can do - and in fact Microsoft have moved most (all?) of their staff from Germany to the Netherlands because of Germany's posturing on precisely this issue.

Microsoft would never ship an update to remotely disable their products, because doing so would hurt their business even more than losing all Microsoft business in Germany. And since Microsoft are a big US company and that kind of sanction would hurt the US, the US state department would take retaliatory action against German companies in the US, and that would hurt Germany, so Germany wouldn't allow it.

So all in all, it's not going to happen.

You do realize, the plaintiff is also a US company. How about Motorola's own intellectual property interests? Using the trade system to benefit one US company IP interests to the determinant of anothers would be thinly veiled cronyism in this case, so not likely to occur.

Motorola really has Microsoft by the balls at this point. Probably a big reason why Google is buying them out. They've been looking for a way to retaliate against Microsoft's Android patent trolling.

http://flowingdata.com/2011/08/22/mobile-patent-lawsuits-2/

Welcome to the technology industry. Enjoy your lawsuits.

36 minutes ago, Bass wrote

@evildictaitor:

You do realize, the plaintiff is also a US company. 

It doesn't matter. What matters is that the German legal system can't compel Microsoft to do anything like remotely disable Windows installations and that the US state department would take retaliatory action against German companies if the German courts took unfair legal action to stop Microsoft doing business in Germany.

If Motorola want to compel Microsoft to do something, they need to take Microsoft to court in the US. It doesn't matter what nationality the plaintiff is.

What this will create is a trade war, and with the current state of the economy, not very helpfull.

-Josh

-Josh

13 hours ago, Bass wrote

Motorola initially offered Microsoft a license for their patents but Microsoft refused. I can't say I'm surprised by this.

Welcome to the enviable conclusion of the software patent wars. All software becomes illegal.

Motorola's "offer" was a 4 billion dollar per year license fee for their 50 H.264 patents, which is roughly 1.2 million times more than what Microsoft pays for each of the other 2300 H.264 patents.  Motorola's "offer" was bull.

And it seems that can continue signing SA contract with Microsoft. Renewing service contract is not the same as selling goods so isn't affected by such law.

Btw, since almost every application that have certain size of audience can be found to be infringing in one way or another, see when they'll wake up and realize they no longer have new software to use, and thus how lame this law is.

Patents block innovation and should come with an expiration date, same with copyrights. After X years it should be released to the public domain.

Current culture is all cultures that have been plus a bit we've added. To prevent us from building a new culture based on the old, you are blocking the progress of the human species. Therefore patents are a crime against humanity.

35 minutes ago, Maddus Mattus wrote

@Blue Ink: I altered an existing PullToRefreshPanel control for WP7 and was promptly alerted that I voilated some patent from Twitter.

Patents block innovation and should come with an expiration date, same with copyrights. After X years it should be released to the public domain.

Current culture is all cultures that have been plus a bit we've added. To prevent us from building a new culture based on the old, you are blocking the progress of the human species. Therefore patents are a crime against humanity.

 Which is pretty poor form, given that the original intention of patents was to foster innovation. Patents do come with an expiry date but while a patent that lasts, say, 20 years may have been reasonable 50 years ago in the modern world that's a very, very long time. Particularly in fields like computing.

So everytime someone airs or sings the song at your table, someone is getting payed.

How rediculous is that!

What I am not saying is that you should be able to copy your Windows DVD and sell it on the market. That's copying an entire product. If you want, you could write down how Windows works, give it to same other team and let them build it and name it Linux, I really dont see the harm in that. 

But to put a patent on something as rudementairy as the idea of mouse click or even the ide of a mouse, just seems silly.

Only the actual technique (e.g. a specific algorithm) should be patentable (and obviously any actual code has protection under copyright law). Not general nonsense like "a flash player embedded in a web browser can play without user interaction" leading to the "click to activate and use control" nonsense (that said there could be security benefits to that example...).

I think perhaps there should be a legal test applied, along the lines of "is it so blinding obvious a chimpanzee could come up with it?", before a patent is issued.

Otherwise I would claim copyright on;

LDA #$00
INC

11 hours ago, Maddus Mattus wrote

@evildictaitor: there is no unfair in law, it's binary, either something is legal or illegal.

Germany has no juristiction over a company operating outside of its borders. And if Germany took action to stop a US company doing business inside their borders, and the US state department thinks that's unfair, it'll take retaliatory action against German businesses operating in the US.

International law is one part law to two parts politics, and in politics there is a lot of tit-for-tat.

4 hours ago, GoddersUK wrote

Only the actual technique (e.g. a specific algorithm) should be patentable

That is already the case.

I think perhaps there should be a legal test applied, along the lines of "is it so blinding obvious a chimpanzee could come up with it?", before a patent is issued.

That is already the case.

You can only patent something that is novel, domain-specific, covers a specific invention that the author intends to build and which is non-obvious to an expert in the field.

One thing lots of people forget is that getting a patent granted does not mean the patent is valid. It just means the patent office didn't see anything obviously wrong with the application. Granted patents are overturned all the time in court because the patent office aren't experts in every field, and don't always know what's obvious and what's not.

I think it's kind of up to the patent owner to decide what they want to change for licensing their patents (or if they want to license it at all).

Both Germany and USA are part of the WTO so USA can't act unilaterally. They'd have to go through the WTO, and somehow argue that Germany is somehow abusing their laws to give domestic companies an unfair advantage. Motorola isn't a domestic company, so I doubt there is any trade violation.

It's not going to happen. Not just because there is no merit to the idea that Germany is the wrong, Microsoft does not have a good enough relationship with the US Government that they'd give enough of a crap to defend them in the WTO.

And as I mentioned before, its a dispute between two US companies. One of which really another giant multinational corporation called Google. Who spends tons of $$$ lobbying the government and I'm part of it will be convince the government to force Microsoft to pay Google licensing fees or do some kind of patent deal, if anything.

4 minutes ago, Bass wrote

@evildictaitor:

Both Germany and USA are part of the WTO so USA can't act unilaterally. They'd have to go through the WTO, and somehow argue that Motorola's patents are invalid.

Which for the same reason means that the US would lodge an appeal with the WTO to prevent Germany from preventing Microsoft from doing business in Germany.

And it's not going to happen. Microsoft does not have a good enough relationship with the US Government that they'd give enough of a crap.

Microsoft employs 90k people and pays $6bn in tax a year (not including the amount of income tax it's 90k staff pay). It also funds presidential campaigns and spends a truck-load of cash on lobbying.

Microsoft doesn't have a great relationship with some bits of the US government, but the state department likes it, since Microsoft brings in a lot of foreign cash to the US (and a whole lot more than Motorola and Google).

Germany has intellectual property laws that must be followed, and Microsoft violated them. If they want to commit IP theft they have no business doing business in Germany. And using the property of Motorola without a license is IP theft. The only way to get a license is to agree to Motorola's terms. Microsoft has not done this, and yet continue to use Motorola's IP without permission (for profit even!).

I can't decide to buy Windows for $5 because I think it is a fair price, I can only buy it at what Microsoft sells it for. Likewise, Microsoft must pay whatever Motorola wants, or cease violating their patents. They also have to pay for damages they caused while they were in violation of Motorola's IPR.

YouTube is already hopelessly gimped in Germany because of GEMA. Not going to be a huge problem.

56 minutes ago, cbae wrote

@Bass: I'm sure it would be pretty easy to remove the codec from the German version of Windows. Then Google will have to decide if they're going to offer the codec themselves for German people that want to watch YouTube videos. Cut off your nose to spite your face.

 

Reminds me of the JavaVM hoo ha. 

That is already the case.

You can only patent something that is novel, domain-specific, covers a specific invention that the author intends to build and which is non-obvious to an expert in the field.

One thing lots of people forget is that getting a patent granted does not mean the patent is valid. It just means the patent office didn't see anything obviously wrong with the application. Granted patents are overturned all the time in court because the patent office aren't experts in every field, and don't always know what's obvious and what's not.

 I don't think intends to build is good enough. It wouldn't be good enough in any other field. If it is (legally) good enough then the lawmaker responsible was numpty. They (should) have to actually be able to demonstrate that they've actually successfully implemented whatever they've patented. 

Embedded  browser plugins that don't need clicking before use, for example, is surely obvious to anyone who's ever used a computer. And judging by the fact that web browsers require one to "click to activate and use this control" all the time I think it's safe to say the patent is valid.

 EDIT: My point is (sort of what you said) that most patents don't meet those standards. (and I don't think intends to build is a good enough standard anyhow) 

1 hour ago, Bass wrote

I highly doubt the US will get involved. Firstly there is no unfair trade going on, intellectual property is a very respected idea internationally, and on the contrary there is no such thing as "too much" of it, only too little (in regards to trade agreements). If Germany is selectively applying their IP laws to benefit domestic industry, thats different. But having strict IP laws is fine.

Germany has intellectual property laws that must be followed, and Microsoft violated them. If they want to commit IP theft they have no business doing business in Germany. And using the property of Motorola without a license is IP theft. The only way to get a license is to agree to Motorola's terms. Microsoft has not done this, and yet continue to use Motorola's IP without permission (for profit even!).

I can't decide to buy Windows for $5 because I think it is a fair price, I can only buy it at what Microsoft sells it for. Likewise, Microsoft must pay whatever Motorola wants, or cease violating their patents. They also have to pay for damages they caused while they were in violation of Motorola's IPR.

My point was in response to GoddersUK who suggested that Germany would try and require Microsoft to remotely disable machines in Germany, or would prevent Microsoft from selling its software in Germany, and trying to show why this would not happen because if Germany prevented MS from doing business in Germany unfairly, then the US would unfairly prevent German companies from doing business in the US. That's how international trade agreements work, and why Microsoft even at the height of the anti-trust in the EU was never seriously asked to stop trading in anyone's country.

Germany's final (realistic) option would be to put fines on Microsoft. Microsoft aren't in any danger of being prevented from doing business anywhere in the civilised world

2 hours ago, evildictaitor wrote

*snip*

Germany has no juristiction over a company operating outside of its borders. And if Germany took action to stop a US company doing business inside their borders, and the US state department thinks that's unfair, it'll take retaliatory action against German businesses operating in the US.

International law is one part law to two parts politics, and in politics there is a lot of tit-for-tat.

Microsoft is selling products in Germany, therefore subject to German law.

Only the Microsoft HQ is is in the US, Microsoft Gmbh is a German company under the Microsoft holding, like Microsoft B.V. is a Dutch company under the holding and I'm sure there is a Microsoft Ltd. in England.

These companies are subject to the law of the country. That's why Microsoft had to place the browser picker in the EU countries.

So, law is binairy, it's either legal or it isnt. The interpretation of the law, is subject for debate by the courts.

32 minutes ago, GoddersUK wrote

*snip*

 I don't think intends to build is good enough. It wouldn't be good enough in any other field. If it is (legally) good enough then the lawmaker responsible was numpty. They (should) have to actually be able to demonstrate that they've actually successfully implemented whatever they've patented.

Think that through to it's logical conclusion.

Suppose I invent a gold machine that extracts gold bars from thin air. It's gonna cost me $1m to make, and will make $bns in the first year. Unfortunately I don't have $1 to hand, so I go to my venture-capitalist / bank etc to try and get funding. They won't give me $1 unless I tell then what I've invented, and which point they throw me out, steal my idea and make tons of cash. I'm completely unprotected because although I intended to make the machine, I didn't have the cash to actually build it.

That's why in patent law you need to be intending to make the invention, not have already built the invention.

Embedded  browser plugins that don't need clicking before use, for example, is surely obvious to anyone who's ever used a computer.

It might not have been obvious when the patent was granted. And even if it was, it might not have been obvious to the patent office man who signed it off. Despite all of this, the patent might not actually be valid at all, since the only way to test a patent's validity is to challenge it in court.

And judging by the fact that web browsers require one to "click to activate and use this control" all the time I think it's safe to say the patent is valid.

No, it just means nobody wants to go to court to challenge it.

1 minute ago, Maddus Mattus wrote

*snip*

So, law is binairy...

Is that like the Twofairy?

1 minute ago, Maddus Mattus wrote

*snip*

Microsoft is selling products in Germany, therefore subject to German law.

Only the Microsoft HQ is is in the US, Microsoft Gmbh is a German company under the Microsoft holding, like Microsoft B.V. is a Dutch company under the holding and I'm sure there is a Microsoft Ltd. in England.

These companies are subject to the law of the country. That's why Microsoft had to place the browser picker in the EU countries.

So, law is binairy, it's either legal or it isnt. The interpretation of the law, is subject for debate by the courts.

Windows Updates come from Microsoft Corporation, registered in the USA. If a German court orders Microsoft Corporation to do something, Microsoft Corporation can just say "no". The German court can then say "fine, I'm going to stop you employing people or selling stuff in Germany", but it can't do anything more than that.

Additionally, they can't close or fine Microsoft Gmbh, because Microsoft Gmbh is a seperate legal entity to Microsoft Corporation, and hence Microsoft Gmbh can't be punished for the failings of Microsoft Corporation (or vice-versa).

So the simple matter is that a German court has no authority over Microsoft Corporation. End of.

2 minutes ago, Bass wrote

Why do you say that? Samsung successfully got injunctions put on their Android tablets in several countries. Just because you are a big company doesn't make you immune from the law. They can easily just remove H.264 codec from their product and suddenly Motorola couldn't stop them from selling it. The only parts of Windows that would be illegal to distribute are the ones that directly violate patents.

*sigh*. Microsoft can choose to remove the H.264 codec from Windows. A german court cannot make them remove it, because a German court has no authority over a US company.

Sure they do. They have authority over anyone that wants to do business in their country. That's why the EU can fine Microsoft. Hell, even individual US states can fine/sue Microsoft, and have.

This is also one of the biggest economic superpowers on top of it, arguably more "powerful" than some random US state. Yet another reason US wouldn't mess with Germany. We only tend to mess with third world countries.

10 seconds ago, Bass wrote

@evildictaitor:

Sure they do. They have authority over anyone that wants to do business in their country.

No they don't. They just have penalties that extend to preventing them from doing business in the country.

If the german government said "remotely disable all computers in germany", Microsoft could say "no, screw you", and all germany could do is say "fine, close all of your businesses in germany".

If the US government said "remotely disable all computers in the US", Microsoft can't say no, because the US government could just seize all of the US Windows Update servers.

2 minutes ago, Bass wrote

@evildictaitor:

Yet another reason US wouldn't mess with Germany. We only tend to mess with third world countries.

http://www.salon.com/2010/11/29/wikileaks_germany_el_masri/

I mean putting economic sanctions, or trying to publically shame Germany. Last time that happened, the German response was called "World War II", I think.

1 minute ago, cbae wrote

@evildictaitor: Does Microsoft even qualify as "doing business in" Germany? Microsoft doesn't sell anything directly. They sell to OEMs who import their PCs into German to sell. If a German retailer wants to sell a boxed, retail version of Windows, then the retailer buys the units from Microsoft and imports it themselves. If the shipment of Windows retail boxes is FOB Redmond, WA, then the retailer takes ownership the instant the shipment is loaded onto a plane.

Germany could prevent OEMs from selling stuff with Windows on it in Germany, so to all intents-and-purposes, yes, it does business in Germany (and lots of it).

1 minute ago, evildictaitor wrote

*snip*

Germany could prevent OEMs from selling stuff with Windows on it in Germany, so to all intents-and-purposes, yes, it does business in Germany (and lots of it).

That's the thing. This ruling should be against OEMs that sell Windows computers, not Microsoft. It's ridiculous that Google Motorola is asking Microsoft to pay these license fees according to what type of device Windows ends up on. It's not like Microsoft has much control over that.

9 hours ago, evildictaitor wrote

*snip*

*sigh*. Microsoft can choose to remove the H.264 codec from Windows. A german court cannot make them remove it, because a German court has no authority over a US company.

So the browser selection screen was illegal?

Because the EU could not make them do it?

Why did they comply then?

20 hours ago, evildictaitor wrote

*snip*

My point was in response to GoddersUK who suggested that Germany would try and require Microsoft to remotely disable machines in Germany, or would prevent Microsoft from selling its software in Germany,

One last time: I was not suggesting this issue would lead to disabling; rather some other, future issue could and I provided an example where it has happened in the past.

I was suggesting Germany would (and can) stop MS selling its software - that's effectively what the court has just done. What I (still don't really understand) is what it's got to do with this other court in the US that's stopping Motorola enforcing the injunction..

20 hours ago, evildictaitor wrote

*snip*

Think that through to it's logical conclusion.

Suppose I invent a gold machine that extracts gold bars from thin air. It's gonna cost me $1m to make, and will make $bns in the first year. Unfortunately I don't have $1 to hand, so I go to my venture-capitalist / bank etc to try and get funding. They won't give me $1 unless I tell then what I've invented, and which point they throw me out, steal my idea and make tons of cash. I'm completely unprotected because although I intended to make the machine, I didn't have the cash to actually build it.

That's why in patent law you need to be intending to make the invention, not have already built the invention.

"it must be thoroughly explained and documented so that someone else would be able to make it."

It's hard to see how that could be achieved without actually making it. The purpose of patents (which seems to have been forgotten in certain sectors...) is to foster innovation by encouraging people to disclose their work. A culture of pre-emptive patenting would undermine that. I'm no lawyer but I've fairly sure the various legal bits of paper signed in the seeking-funding situation would allow someone to heavily sue in a case of misused IP that had been disclosed.

As someone who has spent time working in research I've never heard anyone say "let's invent this thing we've patented" - it's usually "let's not publish this thing we've invented until we've got the patent". It's a different field, but I suspect patent law is much the same ( or unless UK, Germany and US patent law is hugely different...).

 Finally think your own idea through to its logical conclusions. What is likely to be a major technological development in the next few years? I'm off to patent electric cars that can go along way without being recharged, a whole of of internet-enabled-[insert appliance here]s and a voice controlled calculator.

(Some of the above may already exist/be patented. Point is pre-emptive patenting would just lead to prospecting and people trying to get rich quick by second guessing the future.) 

11 hours ago, Maddus Mattus wrote

So the browser selection screen was illegal?

Because the EU could not make them do it?

Why did they comply then?

The EU didn't make Microsoft do the browser selection screen. Microsoft chose to do it to avoid EU fines (the penalty for failing to pay those fines is that Microsoft wouldn't be able to do business in the EU, and Microsoft didn't want to lose that business over fighting about a browser selection screen).

43 minutes ago, GoddersUK wrote

As someone who has spent time working in research I've never heard anyone say "let's invent this thing we've patented" - it's usually "let's not publish this thing we've invented until we've got the patent".

Suppose I'm a researcher in mechanical engineering and I invent a brilliant way to make an engine that is twice as fuel efficient as any other engine.

I have three options:

a) I hide the invention, and the world is worse off for not knowing my idea

b) I tell a big company about my invention and they make a truck load of cash and I'm left in the cold

c) I found my own engine company, but engine companies are HUGE and now I need to spend my time employing people and buying buildings and doing logistics and so on, but I'm not good at running a business, I'm just good at inventing engines.

d) I can join an engine company as an employee, but that won't reward me for revolutionizing the industry

e) I can PATENT the invention, and sell it to someone who actually knows how to make and sell engines for the value of the idea, and I can get back to work inventing the generation of engines after that.

I'm off to patent electric cars that can go along way without being recharged, a whole of of internet-enabled-[insert appliance here]s and a voice controlled calculator.

You can only patent it if it is a specific invention. So yes, you can patent an engine that is electric that goes a long way without recharging, but you can't patent "being able to go a long way without recharging".

3 minutes ago, evildictaitor wrote

*snip*

Suppose I'm a researcher in mechanical engineering

Then you almost certainly work for a large company or organisation (e.g. university). And your invention is probably either related to your job so theirs or theirs anyway under your employment contract.

 But assuming you're 1/1000

 

and I invent a brilliant way to make an engine that is twice as fuel efficient as any other engine.

I have three options:

a) I hide the invention, and the world is worse off for not knowing my idea

b) I tell a big company about my invention and they make a truck load of cash and I'm left in the cold

c) I found my own engine company, but engine companies are HUGE and now I need to spend my time employing people and buying buildings and doing logistics and so on, but I'm not good at running a business, I'm just good at inventing engines.

d) I can join an engine company as an employee, but that won't reward me for revolutionizing the industry

e) I can PATENT the invention, and sell it to someone who actually knows how to make and sell engines for the value of the idea, and I can get back to work inventing the generation of engines after that.

Or: You enter discussions for funding/partnership to pursue it further with appropriate legal protections in the contract to stop them abusing your IP.

 

You can only patent it if it is a specific invention. So yes, you can patent an engine that is electric that goes a long way without recharging, but you can't patent "being able to go a long way without recharging".

I still say you can't (or at least shouldn't be able to) patent something without showing it works first and you can do it. Even on a small/model scale. Because ideas don't just work. To make an idea work huge resources have to be poured in. And at what point do you transfer from a concept e.g. "going a long way without recharging" to the actual invention? At what point is your design/idea detailed enough? That's why I think you should have to be able to demonstrate it. And a LOT of software patents look to either be concepts, stuff that would be better considered a copyright issue  or utter nonsense.

9 minutes ago, GoddersUK wrote

Then you almost certainly work for a large company or organisation (e.g. university). And your invention is probably either related to your job so theirs or theirs anyway under your employment contract.

So you're saying that you should only be able to protect your invention if you work for a big company? That's basically shafting all of the small businesses and inventors. We might as well go back to the guild system where you need to know the secret handshake in order to find out the secrets of the trade if we go down that route.

Or: You enter discussions for funding/partnership to pursue it further with appropriate legal protections in the contract to stop them abusing your IP.

How do you enter discussions for "a five wheeled vehicle" without telling them that it's got five wheels, or "bread made out of carrots" without telling them that it's made out of carrots?

Because ideas don't just work. To make an idea work huge resources have to be poured in. And at what point do you transfer from a concept e.g. "going a long way without recharging" to the actual invention? At what point is your design/idea detailed enough? That's why I think you should have to be able to demonstrate it. And a LOT of software patents look to either be concepts, stuff that would be better considered a copyright issue  or utter nonsense.

Sometimes ideas do just work, and sometimes building ideas takes time. You think Apple would have wanted to invest five years on building a prototype iPhone knowing that until they actually have it on the shelves there's nothing to stop Samsung or Motorola building a copy? You think Microsoft could possibly tell you anything at all about Windows8 if they couldn't patent it until it's market ready?

The patents which are just concepts, airy-fairy, or utter-nonsense tend to get overturned by the patent courts, and although there are clearly problems in patent-law, I think throwing the baby out with the bathwater would do more harm than good.

Ironically the complexity of filing patents is one reason patents are often filed by lawyers. And the cost of properly filing a patent is prohibitive to anyone who doesn't have a lot of money up front. It's mostly a tool of corporations, usually big ones to do things like what the OP is about. The most useful patents are the ones that are most trivial and obvious, because they are easier to infringe. The patent system isn't working at all.

19 minutes ago, Bass wrote

Patents don't cover ideas, they cover inventions. A competent person armed with nothing but the text of the patent should be able to perfectly create the patent. If you can't describe how to build your invention (without missing any important details) completely in your patent application, your patent is not valid.

Ironically the complexity of filing patents is one reason patents are often filed by lawyers. And the cost of properly filing a patent is prohibitive to anyone who doesn't have a lot of money up front. It's mostly a tool of corporations, usually big ones to do things like what the OP is about. The most useful patents are the ones that are most trivial and obvious, because they are easier to infringe. The patent system isn't working at all.

Inventions can be at an idea stage when patented. There is no requirement that an invention be fabricated or implemented when awarded a patent.

Here's a patent awarded to a person who had no technical capability to implement her own invention.

http://www.google.com/patents?vid=USPAT2292387

38 minutes ago, cbae wrote

Inventions can be at an idea stage when patented. 

But they still need to be inventions. You can't patent "a device that turns pigs into giraffes" just because you thought of it. You need to be able to describe how the device works to get a patent - that's what a patent is.

7 hours ago, evildictaitor wrote

*snip*

But they still need to be inventions. You can't patent "a device that turns pigs into giraffes" just because you thought of it. You need to be able to describe how the device works to get a patent - that's what a patent is.

Of course the patent has to for an invention. I'm not arguing that. My point is that "inventions" can be in varying stages of implementation and still be awarded a patent. Hedy Lamarr's "invention" using a piano roll was no closer to its ultimate first implementation in modern spread-spectrum communication than if the invention involved using pigs. In that sense, her invention was still just an "idea". I consider anything that hasn't been implemented to the point of a working prototype (i.e. establishing a proof of efficacy) just an "idea".

13 hours ago, evildictaitor wrote

*snip*

The EU didn't make Microsoft do the browser selection screen. Microsoft chose to do it to avoid EU fines (the penalty for failing to pay those fines is that Microsoft wouldn't be able to do business in the EU, and Microsoft didn't want to lose that business over fighting about a browser selection screen).

A fine, because they broke the law.

1 day ago, evildictaitor wrote

*snip*

So you're saying that you should only be able to protect your invention if you work for a big company? That's basically shafting all of the small businesses and inventors. We might as well go back to the guild system where you need to know the secret handshake in order to find out the secrets of the trade if we go down that route.

No, but I am suggesting that in 99% of cases that's who files patents.

 

How do you enter discussions for "a five wheeled vehicle" without telling them that it's got five wheels, or "bread made out of carrots" without telling them that it's made out of carrots?

Don't ask me, I'm not a lawyer. I'm just stating my observations. I think (to use an example from my field) that it would be more along the lines of "we've done some preliminary work investigating a new catalyst for reaction y. Here are the results from our initial experiments/computer models. Would you be interested in collaborating? Yes. *both parties hand over to respective legal departments*.

(in this field you're not going to have done work independently of an organisation but, presumably, if you're seeking VC funding or similar then presumably what will be disclosed and what the other party will be able to do with the disclosed information (regardless as to the outcome of the funding) would be agreed before any disclosures).

 

Sometimes ideas do just work, and sometimes building ideas takes time. You think Apple would have wanted to invest five years on building a prototype iPhone knowing that until they actually have it on the shelves there's nothing to stop Samsung or Motorola building a copy? You think Microsoft could possibly tell you anything at all about Windows8 if they couldn't patent it until it's market ready?

Microsoft cannot patent "Windows 8". Copyright, yes. And that needs no application - they just right (c) Microsoft on the bottom. Again, Apple cannot patent "the iPhone". They can (apparently) patent the concept of swiping your finger to unlock, which they did (that's a poor example though as I'm assuming the challenge there lay in the (visual) design, not the implementation. I'm no cs student but I guess any moderately competent programmer could have implemented that?). But yes. That's why if you go and work in R&D at a company you may find they actually prohibit taking work to do on the train home, or whatever (different companies have different rules, but they do this). If it gets lost that is the companies assets that have been lost, potentially to their competitors. That's why there's industrial espionage.

6 minutes ago, GoddersUK wrote

*snip*

...I'm no cs student but I guess any moderately competent programmer could have implemented that...

I keep hearing this said about all sorts of patents issues. It really doesn't matter. If you've done it first, and have not patented it, your only recourse is to show proff of prior art. Otherwise it doesn't really matter.

Although if you really look at the intent of patent law and the intent of copyright law, really software should not be copyrightable but patentable instead. Copyright was never designed to protect things that have utility, it's protection for artistic expression. Even stuff that can be artistic (arguably more so than software), like fashionable clothing, can not be copyrighted because they have utility. Facts can't be copyrighted either. For some reason in the late 1970s countries started to make a legal exception for software to be copyrighted.

Patent law is probably one of the messiest laws on the books in sheer level of difficulty to litigate and subjectivity involved with litigation. It's one of the legal fields where good lawyering can truly shine more than the concept of justice. It is a lawyer's paradise.

31 minutes ago, PaoloM wrote

*snip*

I keep hearing this said about all sorts of patents issues. It really doesn't matter. If you've done it first, and have not patented it, your only recourse is to show proff of prior art. Otherwise it doesn't really matter.

My point here not being that someone else had done it, but that innovation isn't about the programming, it's about the design. And hence requires a different approach to actual inventions. (Not that it shouldn't be protected in some way but, unless there's a very good reason (e.g. you've come up with a whole new UI concept (and given that a good UI is intuitive I think it would be hard to claim it was completely new)) patenting in the same way as, say, a new drug or engine isn't really appropriate. 

12 minutes ago, Bass wrote.

Patent law is probably one of the messiest laws on the books in sheer level of difficulty to litigate and subjectivity involved with litigation. It's one of the legal fields where good lawyering can truly shine more than the concept of justice. It is a lawyer's paradise.

 A lot of patent attorneys, in the UK at least, are actually subject specialists who undertake further training to become a patent attorney. e.g. a patent attorney in the pharmaceutical industry will likely have an undergraduate degree in chemistry/biology/similar because someone who's only received legal training wouldn't be able to understand the cases. They also bring in expert witnesses... some of my lecturers earn grotesque sums of money doing that (which I case makes up for having a job in academia...).

The differences between what is copyright and and what is a patent has started to become meaningless over time. So I think in the future lobbyists can just "shop" for what ever IP law works better for them. Maybe even "trademark" the formula of a drug. Before you know it, we will be talking about "orphaned drugs". Sorry Billy, that the ownership status of that cancer drug can not be determined, so you can't have it.

The whole "IP system" really needs to be rethought of and reworked for the 21st century, in a way that doesn't encourage these endless legal wars and repeated attempts to censor and monitor behavior on the Internet. It's never going to stop until something is done.

10 hours ago, GoddersUK wrote

*snip*

(in this field you're not going to have done work independently of an organisation but, presumably, if you're seeking VC funding or similar then presumably what will be disclosed and what the other party will be able to do with the disclosed information (regardless as to the outcome of the funding) would be agreed before any disclosures).

But the entire purpose of a patent in the first place is that when you have such a meeting with any organisation, they can't listen carefully to your idea, tell you it won't work then launch their own version a few months later. The patent is there to protect your "intellectual investment" so that you have a bargaining chip which is as strong as their financial investment.

I honestly think that, rather than trying to bend patent law (which works fine 99% of the time) to protect software, it would just be easier to define a new and entirely separate form of IP protection specifically for software.

11 hours ago, Bass wrote

Imagine if drugs could be copyrighted. That means penicillin could still be extremely expensive drug. I would not be surprised if big pharma lobbys for this in the future. 95 year protection is just too good. If the entertainment industry managed to extend copyright from 14 years to 95 years with lobbying I'm sure big pharma wouldn't have much trouble with this.

I think you couldn't copyright a drug because you can't really claim to have "created" a new molecule. You can have discovered a way to produce it or use it - which is where patents come in. Thankfully. I don't think the chemistry community would take very kindly to someone copyrighting a molecule so anyone thinking of doing so would be wise to remember we can make explosives, poisons and other fun things [6].

1 hour ago, AndyC wrote

*snip*

But the entire purpose of a patent in the first place is that when you have such a meeting with any organisation, they can't listen carefully to your idea, tell you it won't work then launch their own version a few months later. The patent is there to protect your "intellectual investment" so that you have a bargaining chip which is as strong as their financial investment.

Other legal paperwork (e.g. NDAs) can achieve the same thing. I don't know about the software industry, but I'm telling you that IS how it works in chemistry. (Obviously when a company has the capability to do the necessary further development in house they're unlikely to disclose the info to anyone before they have a patent, but that doesn't mean the legal frameworks don't work).

Patents exist to encourage organisations and individuals to invest in researching and developing their ideas and, importantly, disclose them. Quite frankly most ideas don't just work until you try them, come across unexpected difficulties and iron out the kinks. Ergo you can't describe it in such a way that someone else could build it without first building it.

How things like this get patented is beyond me. 

Wipo wrote:

What is the main purpose of a patent?

The purpose of a patent is to provide protection for technological advances (inventions). It provides an award for the disclosure of the creation of something new as well as for the further development, or refinement, of existing technologies.

The aim of a patent system is to encourage economic and technological development by rewarding intellectual creativity.

More in depth (from wikipedia): (the original source isn't hyperlinked so I can't check it myself, granted it is scattered with citiation neededs):

Wikipedia wrote:

 Rationale

There are four primary incentives embodied in the patent system: to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to design around and improve upon earlier patents.[29]
Patents provide incentives for economically efficient research and development (R&D). A study conducted annually by the IPTS shows that the 2,000 largest global companies invested more than 430 billion euros in 2008[30] in their R&D departments. If the investments can be considered as inputs of R&D, real products and patents are the outputs. Based on these groups, a project named Corporate Invention Board, had measured and analyzed the patent portfolios to produce an original picture[31] of their technological profiles. Supporters of patents argue that without patent protection, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs.[citation needed]Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic ideas underlying traditional property rights.[29][specify]
In accordance with the original definition of the term "patent," patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they would prefer or tend to keep their inventions secret[citation needed]. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to humanity.[29][specify]
In many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering costs — computer processors, and pharmaceuticals for example), once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (For example, the internal "rule of thumb" at several computer companies in the 1980s was that post-R&D costs were 7-to-1). Unless there is some way to prevent copies from competing at the marginal cost of production, companies will not make that productization investment.[29][not in citation given]

They don't protect the idea, they protect the investment in developing the idea. 

Wipo wrote: 

What is the patentable invention?

In general, to be patentable, an invention must fulfill three criteria: novelty, inventive step (or non-obviousness) and industrial applicability. This means that the invention must be new compared to the state of the art on the filing date of the application, that it should not be obvious to a person skilled in the art, in other words, it must represent a sufficient advance in relation to the sate of art, and that it should be applicable in the context of some commercial production. The question whether a particular invention is patentable or not is a matter of national law. Patents may only issue to man-made inventions. In most patent systems, the mere discovery of materials or substances already existing in nature is not considered to be an invention. A plant discovered existing in nature, for example, would not be regarded as an invention. Many patent systems also require that an invention have a technical nature, i.e. that it relates to the physical world. In this respect, pure mathematical or physical formulae, or pure software algorithms would not be regarded as inventions.

Can you protect an idea?

An idea that does not materialize in an invention (i.e. a product or a process) cannot be protected by patent. Ideas may, of course, be kept secret. But secrets can only be protected against their illegal or unauthorized access, use or communication to third parties. If an idea is kept secret and the same idea is developed independently by another person, the fact that the first idea was kept secret will be of no avail to prevent the other person from using his idea. A secret idea is not an industrial property right; it is merely protected against its illegal appropriation or use.

 

Patents must result in an invention and they must have application. You can't show that it would result in an invention without actually inventing said invention.

If I buy a box of pills, I can't duplicate them and resell them unless I know how to make them (and knowing the ingredients isn't enough). But if I buy a book, I can duplicate it using a photocopier. If I buy a piece of software, I can duplicate it using very simple tools that anyone has and can use. I think that's how software ended up being copyrightable.