It’s been over two months since I last posted. I’m sorry about that. There’s no time to tell you what we’ve been up to. For that, you’ll need to check out law.musicmanumit.com. Also, if you want to follow the progress of my copyright class, I’ll be posting that on the other site. I may cross-post software-specific stuff here, but don’t count on it.
My patent professor is Kevin Carroll. He didn’t seem hostile when I told him one of my goals was to get rid of software patents. His reaction seemed like a light-hearted “kids these days” chuckle. Of course, you (probably!) aren’t reading this for whimsical tidbits of student-professor interaction, so let’s jump into the law of patents!
The reading for the day was
1) Merges & Duffy: 1-13 (Historical Overview of Patent Law), 48-66 (Overview of Patent System / Globalization and Patent Rights)
2) Armitage, pp. 1-10
3) looking at U.S. Patent Nos. 4,940,658; 6,237,565; RE 32,580; 5,807,715; and 5,845,265. You can find the patents at www.google.com/patents.
Before I get started in talking about the substance of the class, I should probably mention that “prosecution” in patents has nothing to do with a criminal prosecutor. If I mention patent prosecution, I just mean filing for a patent. This is to be contrasted with patent litigation. The two aren’t completely separate. If you are to be a good patent prosecutor, it is good to know how the patent will eventually be litigated.
Another thing I want to point out at the beginning is why we have patents in the United States. The Constitutional authority comes from:
“To promote the progress of…useful arts, by securing for limited times to…inventors the exclusive right to their…discoveries”
While the Constitution is old by human standards, having been adopted in 1789 (with the Patent Act following in 1790), patents are actually older. Discussions of patent-like systems go back to Aristotle. Essentially, Aristotle was anti-patent, and Hippodamus was pro-patent. Now, for whatever reason, humans didn’t actually get around to following up on Hippodamus’ plans until the Venetians in the 15th century. The English thought it was a good idea. Eventually, as Aristotle predicted, the proverbial monkey poo hit the fan and in 1623 the English rolled back their crazy patent system to something more modern-looking (which plenty of people still think is crazy, but it’s certainly not *as* crazy).
As in all good stories, then a lot of people die. *moment of silence*
That brings us back from our little flashback to 1790. USA! USA!
In 1793, Thomas Jefferson and company got tired of reading patents, so we went to a registration system (like we had in copyright before we let the Europeans take over our copyright system *shakes fist*). In 1836, we went back to having patents examined, but this time we didn’t bother people like Thomas Jefferson with the task. 1836 is when the US started having full time patent examiners.
Other important dates include 1851 when “non-obviousness” was first recognized by SCOTUS, the 1920s when people thought patents and big business were getting out of hand (kinda like now), 1952 when the “current” Patent Act was enacted, 1982 when the Federal Circuit was created as an expert court and of course the AIA which passed last year, which Professor Carroll called the biggest change since 1836.
Of course, our patent story started in Greece and then moved to Italy (~2000 years later) and eventually got to England. Today, with planes and the Internet, globalization has an even more important role in patents.
In 1883 the Paris Convention (1883) provided for right filing priority between countries. These days, basically everybody is a party to the Paris Convention, except a few east African countries, Kuwait, Taiwan, Afghanistan and Burma. Then there was the Patent Cooperation Treaty (PCT) which unified application filing procedure. Next there was TRIPS with more substantive harmonization. Lastly, the globalization part of the story ends of the AIA as well, which removed geographic limitations on prior art.
If you take one thing from my first patent post, remember this:
“THE NAME OF THE GAME IS THE CLAIM” In re Hiniker, 47 USPQ.2d 1523 (Fed. Cir. 1998).