Re: arc in a closed tube loop

On 4 Mar 2006 23:03:18 GMT, phil-news-nospam@xxxxxxxx wrote:

On Sat, 04 Mar 2006 10:15:36 -0500 Victor Roberts <xxx@xxxxxxxxxxxxxxxxxxxxx> wrote:

| I am not a lawyer and don't even play one on TV, so what
| follows is not legal opinion, but the opinion of an engineer
| who is the inventor or co-inventor of 30 US Patents. Also,
| in the 6 or so years I have been a consultant, I have worked
| with lawyers on a number patent-related cases, including
| patent infringement cases. What I have learned is that my
| knowledge of patent law is still incomplete even after all
| these years "inventing".

You're an engineer, or so it seems. Law is a complex field, too.
Though it is complex because of the way lawyers make it so.

This discussion has become far too unwildy and is probably
out of place in a lightng group. I will try to answer just
what I consider the most important issues and snip the rest.

To say the "law is complex because of the way lawyers make
it so" is what I meant by your conspiracy theory. I have
gained great respect for the U.S. civil law and also lawyers
during my past six years working as a consultant, expert and
expert witness. I worked on a lighting-related contract case
where the outcome partially hinged on the meaning of the
phrase "light a lamp" when referring to a ballast. Are the
terms of the contract to deliver a ballast met if the lamp
stays lit for 1 second, 2 seconds, 1 minute, 10 minutes, 1
hour, 5000 hours? That case taught me the value of clear and
compete contracts, and by extension clear and complete laws.
Laws are often, but not always complex because they are
written to anticipate a variety of conditions in such a way
that the terms of the law are not ambiguous.

[snip]

It takes people with the technical mind of inventing to know if
something is obvious. Lawyers, per se, cannot figure that out
for the most part. With some exceptions, lawyers are not really
inventors. In much the same way that you don't know all there
is to know about law, lawyers don't know all there is to know
about technology, science, and engineering.

Many, if not most, patent attorneys have technical
backgrounds. But the real answer is that is why lawyers
retain technical experts when they are involved in cases
that involve technical matters. The lawyers and the experts
work as a team. I was involved in one case a couple of years
ago that had more experts, all in different fields, than
lawyers.

|>Prior art
|>would apply to anything being patented, even if it is the most
|>phenomenal invention of the decade. But I'm not talking about
|>those. I'm talking about what is obvious to someone who could
|>readily design it.
|
| Which someone? You, me, Don, Clive, Jeff, Ionnis, Daniel,
| Terry? Who decides who will decide?

Of course law has to establish some parameters about what is
obvious. But it needs to take those from technical people who
can do the inventing. Currently what is law does not even try
to do that. All my posting is about my opinion that the law
needs to be changed because it does not take obviousness into
account at all, even though it is a fundamental part of the
purpose of patents.

Patent examiners most definitely do consider obviousness.
The problem seems to be that they mostly search prior
patents and do not have enough resources to search other
types of literature. Also, in their defense, I know that
some prior art is so obscure that it may only be known to
people who have worked in a field for 30 or 40 years. Older
journals and conference proceedings are not as available in
on-line technical databases as newer journals.


|>So I am saying, the engineer doesn't need to know anything about
|>the law. He just needs to understand whether a given "invention"
|>would be considered obvious.
|
| How would we have a consistent standard if every engineer
| made his or her own decision based on his or her gut feel.

There would have to be a standardized form of test. But such a
standard would have to reference whether or not the people who
can create inventions are able to do so in an obvious way.

If you pose a technical problem to a group of 1000 lawyers and
get no quick solution, that doesn't mean much.

Lawyers rely on technical experts, as I mentioned above.

If you pose the
same technical problem to a group of 1000 engineers who are
educated and experienced in the field related to the problem,
and get no quick solution, then that means a lot. It means,
within certain statistical levels of confidence, that the problem
does not have an obvious solution. If just one engineer solves
it, the statistical confidence is still not very good. But if
100 engineers can solve it, then I think it's level of obviousness
meets the fundamental test:

Once an invention has been made and published you cannot
insure that people who solve the same problem later did not
know about the invention. I see no way to implement what you
suggest above. I also do not agree with your opinion about
what is and is not obvious. But, you are, of course,
entitled to your opinion.

[snip]

|>But if a sufficient number of engineers agree that a given invention
|>is indeed obvious (or programmers for stuff done in software), then
|>it's a patent that should not be granted, and should be voided by
|>the courts if it gets there.
|
| How many? Who chooses them? Do the two sides have a chance
| to present facts that support their side of the case? What
| rules are used by the group making the determination? Sounds
| like you agree with patent infringement trials :-)

These are details to be decided, but to be decided without all the
cost of having issued a patent and going to trial later. Whether
and invention is _technically_ obvious is something that should be
decided by _technical_ people. And the focus should be on making
this decision prior to the issuance of a patent. Of course there
should be an appeals process in such decision making for it to be
fair. If you submit a patent application you believe to be a
genuine invention, and the group of technical examiners in your
very same field mostly say "this is too obvious", then you should
have a right of appeal, the first step of which would be to make
a case directly to the examiners (which might not be the very same
set originally chosen, but would be a set that could be chosen to
do examinations in general). This could be done as simply as an
amendment to the application based on written details provided by
the original examination. It would be kind of like re-running
the process one more time, or a rebuttal in a debate. If it fails
again and you are still convinced, then it can still go further.

Many, if not most patent applications ARE rejected the first
time and must be resubmitted. Many are rejected numerous
times and resubmitted numerous times before they are granted
in some modified form of the original application. I
recently read one patent where NONE of the claims of the
issued patent matched the title. I can just imagine how that
application was changed between the original submission and
the eventual approval.

But once it is well known that patents are no longer issued for
what is obvious, then _most_ of these trivial applications would
never be followed up to the 2nd level at all.

See above - we already have a multi-step process.

The idea is to avoid it getting to court after the fact.

Only the inventor and the USPTO are involved until the
patent is issued. If, at that time, one or more third
parties believe the patent is invalid, their final, but not
only recourse is to challenge the patent in court. Prior to
going to court, any party can petition the USPTO to
"reexamine" a patent. When this is done, often some of the
original claims are rejected, while others are confirmed,
and the inventor also gets the opportunity to add new
claims.

[snip

Certainly they should have sufficient funds to do the job right.
But they also need the proper direction on what job to perform.
They do not include an obviousness test at all. Instead, they
are running a patent mill to justify a higher level of funds.

I disagree completely. It certainly sounds like you think
the USPTO is over funded right now. If so, how do you
propose to give them the resources they need to do a better
job?

[snip]

It is obvious to me that you have not picked up on the difference
between obviousness, and prior art.

Again, I disagree. You are trying to create a difference
where the law does not recognize one. A patent can only be
obvious in light of the prior art. If an idea is so
"obvious" as you define it, then why was it not described
earlier in some form?

[snip]

To understand the taking of rights, suppose you are working on a
product, and during the course of design, you solve a number of
small trivial problems, which are quickly and easily solved, and
are of a nature that any other competent engineer in your field
could also solve them. Then you bring your product to market and
someone points at one of thise trivial solutions and claims it
infringes on his patent, issued just days before the day you did
that trivial solution. Now just about any engineer could have
solved it. You'll have to pay this guy a royalty of his demand,
which might be quite high, simply because the guy happened to get
a patent on it. YOUR rights have been taken away by the patent
system ... in theory for the purpose of ensuring that society
gets maximal benefit of invention. But in this case, because the
problem could have been solved by any competent engineer, society
would have the benefit of this "invention" even without a paten.

If someone has patented a device, then his solution has been
published and is known. Are you so sure that people who
"solve" the same problem later were not aided by exposure to
the original solution, even if they do not remember that
exposure?

[snip]

The ultimate test, which is a test that cannot reaidly be done,
is whether or not it would have been invented, and society have
benefited from it, without a patent system ... or with a patent
system that sees it as obvious.

This is a completely unworkable solution, as you have
implied. We cannot have a system that decides a matter of
law based on what MIGHT have happened. We will never know
what might have happened.

[snip]

If we could (we can't ... but this is a factor in creating a way
to judge patent applications) defer every patent for a number of
years and see if a like application comes in later, then that is
a way to see if an invention is _possibly_ obvious. This could
be one of the "means test" that examiners of a better patent system
would be asked to evaluate. One question (of many) they could be
asked with regard to a given invention being evaluated would be if
they believe it is likely that someone else (isolated from any work
of this invention or its application) could invent this in the near
future.

Ditto.

Based on seeing a lot of patents in _my_ field (software engineering)
that I firmly believe we would have the benefit of even without a
patent system, I can say that somewhere around 90% of patents are
ones the system I would like to see would never have issued in the
first place. I've seen a few in other fields that also look that
way to me.

I assume you know that software patents were not allowed at
all until rather recently. Perhaps that field should be
reexamined.

|>But that is exactly what a patent is about when it is
|>applied to someone else who happens to invent the very same thing a
|>couple days later separately from whom the patent is issued to.
|
| If the patent has to go to A or B, how would you decide?
| Would you toss a coin? How would you know that the second
| invention as made independently? Would you propose joint
| inventorship if the inventions were made within 1 day of
| each other" One week? One month? One hour?

If the invention is one that is genuinely new, innovative, and not
obvious, then it is worthy of a patent. If the two applications
are identical (which on the face of it is suspicious and warrants
investigation) then whoever is first should actually get it. To
the extent they differ, then application B can be amended to exclude
what is in patent A and still may be able to get a patent (if what
remains is still non-obvious).

That is exactly what happens now. The issue is that when B
is an improvement on A, then B cannot be made if it includes
any of part of A.

But the fact that TWO applications came in for the same thing does
suggest an increased possibility that the invention is obvious.
But if there is a very good method of evaluating obviousness in
the examination prcoess, then in all likelihood, it should come to
that same conclusion for both applications, anwyay. Where things
would get a bit complicated is where the say both are non-obvious.
Then somewhere it has to be determined that there is a conflict
and in the end, the first applicant should prevail.

It would get far more complicated if one application is judged
obvious and the other is judged non-obvious. In such a case I
would then place both applications into a joint set of examiners
who now examine both applications together to see if obviousness
remains consistent. Such a scenario can get messy. And it may
end up being resolvable by the applicants who might be willing
merge their applications under joint ownership to move it along.

This suggestion is from someone who wants to simplify the
law?

The real test should be based on the principle question of whether
or not this would still be invented, and thus society gain from it,
even if no patent is issued (not counting the fact that it has been
invented per the application in question).

Perhaps, once we can predict the future :-)

[snip]

When evaluating an application, if the answer to the question
"without a patent system, would this invention still be invented
within N years, by someone" is YES, for various values of N, then
society is not really gaining in any significant way by a patent
system that patents this invention. What we choose for N would
also be tied to how long patents are issued, though certainly not
the same period as for the patent lifetime. For example for patents
that would be valid for 12 years, the question might be relevant to
ask with regard to 4 years to see such an invention. Whatever the
ratio between the "would invent anyway" time frame and the life of
a patent, it is something for discussion (I've not decided what is
appropriate in my mind for this ... I just toss out 1:4 for example).

Your 're back to predicting the future again.

[snip]

| Some of the above sounds like you do not agree with the
| basic principles of our free enterprise system. That
| discussion should be taken to a more appropriate group :-)
| However, I do agree that there are ways to improve the
| patent system and that perhaps the length of the patent term
| is part of that discussion. The question of patents and the
| length of their terms is not 1/1000 as serious in the area
| of lighting as it is with regard to life-saving drugs.

I believe a free enterprise system is entirely orthogonal to what
kind of patent system we choose to have. I believe I have made no
remarks one way or the other about having or not having a free
enterprise system.

I made that comment because one aspect of the free
enterprise system is the right to make money from your
property, and property includes intellectual property. It
sounded like you were opposed to the fact that owners of
patents use them to make money, and sometimes a lot of
money, by having exclusive rights to their intellectual
property.

--
Vic Roberts
http://www.RobertsResearchInc.com
To reply via e-mail:
replace xxx with vdr in the Reply to: address
or use e-mail address listed at the Web site.

This information is provided for educational purposes only.
It may not be used in any publication or posted on any Web
site without written permission.

.