Re: arc in a closed tube loop

On Sat, 04 Mar 2006 20:44:45 -0500 Victor Roberts <xxx@xxxxxxxxxxxxxxxxxxxxx> wrote:

| 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.

Much of this is a language problem.

But what I meant by "law is complex because of the way lawyers
make is so" is that it didn't just fall into place that way on
it's own, and it isn't a foundation like physics is.


|>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.

Patent lawyers, more than most, do need more technical savvy.
But in general they are not the in-depth guys. My mother's
cousin was patent lawyer. I think I exceeded his understanding
of electrical engineering when I was 10 (and I could barely make
a radio circuit then). But he sure had a solid grasp of law
that was beyond me.


| Patent examiners most definitely do consider obviousness.

If they do, then I think they are flawed at it.


| 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.

Then need to separate obviousness from prior art. If they
depend on prior art, especially what has been patented,
then they miss a broader understanding. There is still a
lot of the art in any field that isn't something which has
been patented. And they would need less resource in terms
of time if the patent base to be searched is smaller.


|>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.

As they should. And when it comes to a court case, they do
where needed. I just wish business executives would do so.


|>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.

The test would not be based on whether an actual 2nd invention
really happens. It would be based on whether, in the judgement
of a significant number of competent engineers, whether such a
thing is likely to happen or not. It's like a social investment.
The government is "investing" its power to take and grant property
for the socioeconomic good.


| 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.

Interesting.


|>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.

But the end results are lousy. It isn't working very well at all
they way they are doing it. Society is losing, not gaining.


|>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.

There are ways to streamline this, too.


|>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?

I don't think they are over funded at all. Instead, I think
they are driving funds by being a patent mill. What funds they
do get, though, would be better spent if not so many patents
were issued. As it stands, they way they are funded encourages
being a patent mill.


|>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?

I'm wanting there to be a change in law to recognize the difference.
If you say the law does not recognize such a difference now, then
we are certainly in agreement on that point. But we certainly do
disagree on prior art being the way to understand obviousness.
Something new can still be obvious as the "next step" in technology.
There may have been no prior motive to look at a problem to find a
solution. Someone looks at a problem first. The solution may be
obvious or not. But there is always a first solution to any problem
and it is not only possible, but quite common, for solutions to be
so obvious that any number of people who, when looking at the problem,
can come up with that solution. What the patent system effectively
rewards is whoever is first to examine a problem. And I see no
social value in that since a problem that really is a problem will
end up being widely examined as its needs expand. A solution will
readily come about if it is obvious (but not all are).


|>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?

In the reality of any patent system, of course once a patent is
issued and the invention made public, the ability to really test
if someone else could have invented it becomes difficult. The
test I propose isn't about that. It's about whether an invention
would come about eventually regardless. Those that are obvious
generally will soon enough. Those that are not-obvious may not
ever come along, or may do so exceedingly late for reasonable
social benefit. We want to encourage the non-obvious inventions.
We don't need to encourage the obvious ones. IMHO, we should
not be taking away the rights of others to an obvious invention
and hand them all over to whoever just happens to be first.



|>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.

I'm proposing deciding it on a matter of technology, not law.
Whether a given technological invention is obvious or not is
beyond the scope of lawyers to decide (except a tiny few who
really do have in depth technical knowledge, but these few
could just as well succeed as engineers).

Of course we will never really know what "would have been"
when we have to make decisions about which path to take that
dictates the course to the future. But we don't hand all
those decisions over to lawyers. Its the people who understand
how those decisions are likely to work, the effects they will
have, and the technology a given invention is based on, that
should be making the decisions.


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

Many were granted, anyway, in the guise of algorthms. No big
difference.

Recently there was celebration of the patent for LZW expiring.
The GIF image file format was based on LZW. IMHO, LZW was
borderline, leaning to non-obvious. If I had been an examiner
I would have issued it.

There was also a patent issued, supposedly, for being able to
create a cursor on a video screen by means of doing an XOR
operation on the memory bits being displayed. I'd call that
one very obvious. If we didn't invent it, we didn't need it.
It was in fact "invented" many thousands of times. Truly
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.

To manufacture something based on B which is based on A, you
would need a license for both A and B. If B can only be done
with A, then that will be the case for all uses of B.

The problem comes about if A was obvious. The inventor of B
might not have realized A was even patentable and proceed to
work towards B, and happened to infringe on A. His rights
get taken away. If A was obvious, those taking of rights are
quite unfortunate for society. And if he did realize about A
being patented, he might not have even pursued B.


|>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?

There will always be some complex level of procedures to ensure
fairness and perceived correctness.


|>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 :-)

We can to a certain degree of confidence do that now. Given a look
at a particular invention application, I do believe quite many, if
not most, engineers in the appropriate field could reliably predict
whether that invention would still benefit society w/o being issued
a patent (the application which is not issued a patent would stay
confidential as is done today). It should not be the say of one
single examiner, but rather, a group. If that group does not reach
a solid concensus (near unanimous) the first time, then it would be
expanded by going to a 2nd group. This repeats until either there
is a solid concensus, or the size of all groups is large enough to
reach a high level of confidence to insure the randomness of any one
individual is out of the equation.


|>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.

So much of the world works on predicting the future in some way.


|>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.

If two people invent the same thing, should they not both be allowed
to make money from theur intellectual property? Why is it any less
owned by the 2nd person who invents the same thing?

I think the _exclusivity_ is NOT inherint in human rights, but granted
by society when it is to society's benefit to do so. Such exclusivity
does mean taking away the rights of others, and that is why it should
be a well reserved action, not done lightly. If the invention is one
that is judged to be non-obvious, then it is justified to take such an
action since in the overall of such cases, society gains more than it
loses (it encourages inventors to proceed with their inventions, and to
also not lock them into secrecy). Where the invention is obvious, then
no such taking of property and rights should be done (e.g. the patent
not issued), which leaves each inventor with their own rights on the
same invention.

--
-----------------------------------------------------------------------------
| Phil Howard KA9WGN | http://linuxhomepage.com/ http://ham.org/ |
| (first name) at ipal.net | http://phil.ipal.org/ http://ka9wgn.ham.org/ |
-----------------------------------------------------------------------------
.

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