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Lawyer Sues To Get a Patent On Marketing 116

Posted by kdawson
from the series-of-gears dept.
I Don't Believe in Imaginary Property writes "Lawyer Scott Harris, one of the inventors of the concept of a 'marketing company devoted to selling/marketing products produced by other companies in return for a share of their profits,' is appealing the USPTO's rejection of US Patent Application No. 09/387,823 which was intended to patent that 'invention.' This court action is important because it directly challenges the In Re Bilski ruling, which tightened the rules to get rid of most so-called 'business method' patents. One of Mr. Harris's legal theories is that a 'company is a physical thing, and as such analogous to a machine.' If the name seems familiar, it's because Mr. Harris has a long history of inventive legal maneuverings. I'm honestly surprised that SCO never tried to hire or sue him."
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Lawyer Sues To Get a Patent On Marketing

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  • by dsginter (104154) on Tuesday March 10, 2009 @08:11AM (#27132915)

    I can see a point where the United States becomes a lawsuit-based economy: instead of producing actual stuff, we'll all just patent stuff like email on a cell phone (who would have thought of that otherwise?).

    The lawyers will obviously need to eat and get haircuts, so the money will eventually trickle down into the hands of the middle class.

    I'm a genius - off to the patent office to patent this idea! I can't wait for my first royalty check.

    • becomes? (Score:5, Insightful)

      by wjh31 (1372867) on Tuesday March 10, 2009 @08:15AM (#27132939) Homepage
      sorry, prior art, no dice
      • <disclaimer>I have not read TFA, only the title.</disclaimer>

        <humor>

        Think of the implications if marketing is patented... LESS MARKETING, at least for a while. I, for one, like it.

        </humor>

        • Re: (Score:3, Insightful)

          by RobBebop (947356)

          One of Mr. Harris's legal theories is that a 'company is a physical thing, and as such analogous to a machine.'

          I thought the legal representation of a company was as a legal entity comparable to an individual for tax and other purposes. Then, his argument breaks down because he'd be implying that individuals are analogous to machines...

          • by julesh (229690)

            Then, his argument breaks down because he'd be implying that individuals are analogous to machines...

            People are machines, and the only reason they can't be patented at the moment is because there's too much prior art.

            Wait until genetic modifications to people become a reality, then you'll start seeing patented people (tm). The human rights consequences are... interesting.

        • Ohhhh! I'll patent sending unsolicited emails! I'll make millions! Or I'll end Spamming. Either way, it's win-win!

      • That hasn't stopped people in the past

      • by Ghubi (1102775)
        Haven't you heard of first to file?
      • by rtb61 (674572)
        This guy is basically attempting to patenting Amazon, now this should be interesting. So I gather that his patent goes beyond 'single click' purchasing, hmm Amazon in a box.
    • by Skrynesaver (994435) on Tuesday March 10, 2009 @08:19AM (#27132965) Homepage
      You jest, but we currently have US lobbyists acting for US companies in the EU attempting to remove the concept of independent open standards from Europe's ICT policy framework, so that all attempts at interoperation will result in a payment to someone. Any notion of a commons is clearly anathema to some companies and cultures.

      Take a look at this article in the Linux Journal [linuxjournal.com]

    • Re: (Score:2, Funny)

      I'm a genius - off to the patent office to patent this idea! I can't wait for my first royalty check.

      In related news, Boies, Schiller, LLP, have filed a lawsuit on behalf of The SCO Group against dsginter, who is the assignee listed on a recent patent application for a lawsuit-based business.

    • by Caue (909322)

      I can see a point where the United States becomes a lawsuit-based economy

      I think you are already there. And it's not only Patent-related. The "industry" of lawsuits must be one of the pillars of american economy nowadays.. when people start filling suits because they burned their mouth with coffee or are too damn stupid to keep dangerous cleasing products from their three years old son you just know something went real bad. (really, how stupid you must be to be outsmarted by an infant)

      I defend the right to bare arms and resolve conflicts like this in duels. Easy, clean and per

      • by Tx (96709) on Tuesday March 10, 2009 @08:36AM (#27133051) Journal

        I defend the right to bare arms and resolve conflicts like this in duels.

        Easy there, I am also a fan of short sleeved shirts, but I'm not sure this is appropriate or traditional attire for a duel.

        • by Caue (909322)
          I'm brazilian.. excuse me for my poor english skills. If slashdot goes portuguese someday, I'll crush all with my suberb portuguese knowledge. >D
        • by vgerdj (742840)

          I defend the right to bare arms ...

          Michelle reads slashdot!

      • by pmarini (989354)
        you mean that the parents didn't pay their kid to provide evidence on how to get hurt with those terrorist bottles, like SafeNet/RIAA is doing in court ? :-)
      • Re: (Score:1, Offtopic)

        by Thiez (1281866)

        > I defend the right to bare arms and resolve conflicts like this in duels. Easy, clean and permanent. Lawsuit my ass, duels are the new problem solver. If it worked for guys like eastwood, bronson or ledger (solving matters the painfull way), should work now.

        You're an idiot. What does being the better duelist have to do with being right or wrong? "This little girl claims she was raped by this police officer, let's give them both a gun and let Odin decide who is right"? Going from a system where the guy

        • by Caue (909322)
          I hate when sarcasm goes unnoticed, but it happens. Sorry. I'll write [sarcasm intended] next time, I swear
        • by hairyfeet (841228)

          That's easy to fix, that is where the concept of champions came in. This little girl claims to have been raped by this officer. As is her right she has chosen a champion for her cause, in this case Joey the gangbanger. Let the dueling commence and may The geat Spirit choose to show mercy to the loser's soul. And without further ado-"LET'S GET READY TO RUMMMMMBLE!"

          See how easy that was to fix? And we will make a ton of money in PPV, ringside tickets, AND medical and training services. Why? Don't YOU want t

      • I can see a point where the United States becomes a lawsuit-based economy

        Easy, clean and permanent. Lawsuit my ass, duels are the new problem solver. If it worked for guys like eastwood, bronson or ledger

        Couldn't have picked some real duels, could you? You know, like Hamilton vs Burr, Jackson vs Dickinson, or Lincoln vs Shields.

        • Lincoln vs Booth was another classic.

          Too bad Lincoln brought a knife to a gun fight.
          • Lincoln vs Booth was another classic. Too bad Lincoln brought a knife to a gun fight.

            Not much of a duel. Lincoln didn't bring anything to that "fight".

            I think this would be more akin to the screaming fan-girl getting a backstage pass to Hannah Montana, and Miley unexpectedly shoots her #1 fan.

    • by DevConcepts (1194347) on Tuesday March 10, 2009 @08:38AM (#27133063)

      The lawyers will obviously need to eat and get haircuts....

      Lawyers don't eat food, they consume the souls of their clients and their hair doesn't grow because their dead.

      • Re: (Score:1, Funny)

        by Anonymous Coward

        doesn't grow because their dead.

        they're

        When will people get this right?

        • by Anonymous Coward on Tuesday March 10, 2009 @09:29AM (#27133527)

          Never. Their too busy trying to make there mark here and they're.

          Sorry, just couldn't resist. Do you realise how difficult that was to type for someone with a traditional education (get it right or say hello to my friend Mr. Board Rubber)? I had to erect a fort first, just in case of flying educational supplies ;o)

          • by Kagura (843695)

            Sorry, just couldn't resist.

            You don't have to apologize, you're a dry cleaner, and it's 3am. It would be ridiculous for me to expect you to be open.

            • You don't have to apologize, you're a dry cleaner, and it's 3am. It would be ridiculous for me to expect you to be open.

              Unless, of course, you are a DC judge. Then, you would sue him for millions of dollars.

        • When will people get this right?

          When speel chek is prefected.

      • by bgray54 (1207256)
        Wow, slashdotters must have a REALLY low opinion of lawyers to have modded this insightful instead of funny.
    • Re: (Score:3, Interesting)

      by furby076 (1461805)

      I can see a point where the United States becomes a lawsuit-based economy: instead of producing actual stuff, we'll all just patent stuff like email on a cell phone (who would have thought of that otherwise?).

      The tv show Sliders was a flop, let's not rehash one of their episode starters.

      • I can see a point where the United States becomes a lawsuit-based economy: instead of producing actual stuff, we'll all just patent stuff like email on a cell phone (who would have thought of that otherwise?).

        The tv show Sliders was a flop, let's not rehash one of their episode starters.

        Sliders a flop? I have to disagree. Flops don't last five seasons, and in fact Sliders was one of the best alternate-Universe series ever created. If it hadn't been for that bitch Bonnie what's-her-face who in some drug-induced haze thought that Second Wave (gagh!) was a guaranteed hit to replace Sliders, it would have gone on for a lot longer. Sci-Fi put all their marbles into Second Wave (which was an actual flop) and had to cancel Sliders, which in spite of the depredations of producer David Peckinpah wa

    • I can see a point where the United States becomes a lawsuit-based economy

      Me too. I think it was around the 1992-95 area.

    • I am applying for a patent "A company (which is like a machine apparently) that patents things that everyone already does and sues people to force them to pay licensing fees" From now on anyone like Mr Harris would need my permission to be an asshole.
  • by aaribaud (585182) on Tuesday March 10, 2009 @08:20AM (#27132967)
    Misleading title and summary. The main point is not that the lawyer sued and challenges in Re Bilski, but that he lost on Appeal and that in Re Bilski was ruled dispositive...
    ... as Groklaw's link mentions right from their own title. Now, that Slashdot readers don't RTFA is usual, but submitters? Sheesh. :)
    • by morgan_greywolf (835522) on Tuesday March 10, 2009 @08:27AM (#27132997) Homepage Journal

      IOW, since the court upheld in Re Bilski, this is another nail in the coffin for business patents.

      What I'm waiting on is: What does this mean for software patents? I guess we're about to find out in the Microsoft v. TomTom case. I'm sure we all wait with bated breath.

      • Re: (Score:3, Funny)

        by Anonymous Coward

        I'm sure we all wait with bated breath.

        I'm waiting with baited breath; currently standing on the Redmond campus front lawn, wiggling a minnow between my teeth.

      • Thanks for spelling "bated" correctly. I automatically wince when I see that word, just because I assume that it will be misspelled by someone who does not know what the word means and is only repeating something that he heard someone say on TV. Now, if we can get nerds to understand the difference between a horde of monsters and a hoard of gold, I can die happy.
    • by Rogerborg (306625) on Tuesday March 10, 2009 @08:41AM (#27133081) Homepage

      Now, that Slashdot readers don't RTFA is usual, but submitters? Sheesh. :)

      I'm telling you, the Take a Shot Every Time kdawson Posts Bullshit Drinking Game is the #1 contributor to cirrhosis of the liver.

    • Re: (Score:3, Funny)

      by Fred_A (10934)

      This sucks. I was hoping we were finally going to get rid of marketing.

  • by MrKaos (858439) on Tuesday March 10, 2009 @08:33AM (#27133029) Journal
    advertisers can't lie without paying a royalty? Maybe I should patent lying.
  • Wait... (Score:5, Funny)

    by Tokerat (150341) on Tuesday March 10, 2009 @08:38AM (#27133067) Journal

    Marketing company devoted to selling/marketing products produced by other companies in return for a share of their profits.

    ...Stores?!?

    • Re:Wait... (Score:4, Insightful)

      by JasterBobaMereel (1102861) on Tuesday March 10, 2009 @09:13AM (#27133359)

      He appears to be trying to patent the concept of a marketing company or more specifically a software marketing company .... I suspect these already exist and have done for some time ....

      Prior art is every software marketing company in existence ...forget if it can be patented due to it being a process, it has been around so long and is so obvious it cannot be patented

      • Re: (Score:3, Informative)

        by Theaetetus (590071)

        He appears to be trying to patent the concept of a marketing company or more specifically a software marketing company .... I suspect these already exist and have done for some time ....

        Prior art is every software marketing company in existence ...forget if it can be patented due to it being a process, it has been around so long and is so obvious it cannot be patented

        Irrelevant. Section 101 rejections come before 102 or 103 considerations.

    • by volpe (58112)

      Marketing company devoted to selling/marketing products produced by other companies in return for a share of their profits.

      ...Stores?!?

      Real-estate agents?

  • not a machine (Score:5, Interesting)

    by tverbeek (457094) on Tuesday March 10, 2009 @08:42AM (#27133087) Homepage
    His argument that a company is a physical thing analogous to a machine is flawed. In our legal system, a company is a "non-natural person", so what he's trying to do is to patent a person, and that's a definite no-no.
    • by furby076 (1461805)

      His argument that a company is a physical thing analogous to a machine is flawed. In our legal system, a company is a "non-natural person", so what he's trying to do is to patent a person, and that's a definite no-no.

      Your argument is flawed (so is the mod points you were given).
      If you are saying you can't patent a company because you can't patent a person you are then saying you can't own a company because you can't own a person. That is the same argument.

      Companies are considered non-natural person's for the purposes of taxations. You tax a company like a person is taxed (thought at a different rate). Companies have their own SS# (known as an EIN number ##-#######). After that the similarities between a company

      • by Forbman (794277)

        You can show the world you, as can I. Show me the "Microsoft" or any other corporation, and your arguments will hold water. No, BillG or SteveB don't count, nor do the things a corporation might actually produce, nor do the employees that work for the corporation, or any assets that are owned by the corporation. The Microsoft Campus is not "Microsoft", nor is the shipping center they had in the Canyon Park Business Center, or any other place like that. A corporation is a virtual entity. Ownership of a corpo

      • by mishehu (712452)

        I beg to differ. You can own intangible representation of value in a company (shares). The value (usually in monetary units and/or voting rights) are really worth no more than the paper they are written on. You also cannot say "see, my 200 shares represents these physical components of the company (akin to an arm or a leg)".

        You do not own a company like you own a person, but a company itself is still not a tangible entity. Perhaps you are mistakenly thinking about tangible assets owned by a company.

      • by GuyverDH (232921)

        so is the mod points you were given

        I cringed and nearly cried when I read that...

      • by tverbeek (457094)
        Your sense of humor are as good as your grammar. :)

        Actually, you've just touched upon an argument I plan to take to the Supreme Court as a class action on behalf of all corporations, that their inalienable rights under the Equal Protection clause are being violated. Corporations are denied the right to vote, to attend the school of their choice, to enlist in the armed services, to hold elective office, to adopt children, to marry the person (natural or otherwise) of their choice, etc.
      • by julesh (229690)

        Companies are considered non-natural person's for the purposes of taxations. You tax a company like a person is taxed (thought at a different rate). Companies have their own SS# (known as an EIN number ##-#######). After that the similarities between a company and a person stop.

        Companies are also considered people in most other areas of the law, for instance you can commit theft from a company, despite most definitions of theft being described in terms of people, e.g. "[a] person is guilty of theft, if he d

      • by hkmwbz (531650)

        If you are saying you can't patent a company because you can't patent a person you are then saying you can't own a company because you can't own a person.

        You can't. And besides, you can own something without it being patentable. I can create a new car and not patent it, and I own it. Or I can buy something from someone else. It's mine. I own it. But I can't patent it.

    • Actually, it's even worse than that. A company is not even a "physical person" or physical-anything like the patent applicant wants to argue. A company is simply a legally-recognized *relationship* between physical things and people, not a physical object itself, which are what patents are intended to cover configurations of.

      Incidentally, this is the source of another confusion. While the stuff you own might be physical, the legal rights you have in that stuff are not physical; just like a company, they

    • by sharkey (16670)
      "A company is like an enormous clock. It only works if all the little cogs mesh together. A clock must be clean, well lubricated, and wound tight."
      --Gilbert Huph
  • Where do these guys get their money? I was under the impression that sending in a patent, defending it, and the rest of the stuff is an incredibly expensive endeavor. This obviously was denied so he goes off and challenges the decision in court. Does this man really have the time and money to waste on something pointless like this?
    • by codegen (103601) on Tuesday March 10, 2009 @08:47AM (#27133127) Journal

      Does this man really have the time and money to waste on something pointless like this?

      He's a lawyer. You do the math.

    • Marketing stunt. (Score:3, Interesting)

      by Samschnooks (1415697)
      I have a hunch: I don't think he really wants the patent to use it. I think he wants to get this patent to prove that he's a god among patent attorneys and all those firm that want patents or to sue for patents will hire him and his firm.

      Then again, he may actually want the patent so he can hire other lawyers to sue on his behalf so that then, he can sit home, watch his DVD collection of Boston Legal, sip Scotch, and wish that he was hooked up with such hot women as Alan Shore has.

      • Re: (Score:1, Insightful)

        by Anonymous Coward

        Or he might just be trying to prove how ridiculous the patent system is.

    • by WNight (23683)

      It's easier for the attacker than the victim. The attacker can, largely, break off at any time to limit their spending.

  • by Speare (84249) on Tuesday March 10, 2009 @08:45AM (#27133109) Homepage Journal
    If a company is a physical thing, an apparatus, then it is constructed in large part by the people who staff it. All people are unique, and any permutation of a group of people forms a unique subculture. The team either gels or it doesn't, in a unique pattern of ways. Real patents document how to reproduce the results, and anyone is free to try, once the sanctioned monopoly rights have expired. Therefore, a company does not need patent protection, as it will be impossible to reproduce the same mechanism.
    • Re: (Score:3, Funny)

      by pmarini (989354)
      you mean that a company never makes the same mistake twice ? :-)

      any reference to Microsoft in this post is purely coincidental...
  • Bullshit (Score:4, Insightful)

    by MikeRT (947531) on Tuesday March 10, 2009 @08:54AM (#27133159) Homepage

    'company is a physical thing, and as such analogous to a machine.'

    "A machine is any device that uses energy to perform some activity. In common usage, the meaning is that of a device having parts that perform or assist in performing any type of work." Neither a technical nor a vernacular understanding of machinery supports his argument. Only in the twisted logic common to LawyerLandtm could this ever be considered a machine. Lawyers ought to be disbarred for this behavior, as only someone who has an incredibly dishonest character could torture a definition like this.

    • by mishehu (712452)

      LawyerLandtm... That must be one of those amusement parks for lawyers where they get to ride around all sorts of rides and roller coasters based on trials and precedents, but in a fun surrealistic way like with a mouse, a duck, and a dog. I'd rather guys like Harris go to LawyerLandtm more often and stay away from our Reality.

      I wonder what the Lawyers of the Caribbean ride is like...

      • I wonder what the Lawyers of the Caribbean ride is like...

        The parts of Johnny Depp, Kiera Knightley and Orlando Bloom are all played by Jack Thompson.

  • by Anonymous Coward

    As long as it's possible to be "inventive" with the law, we will all suffer.

  • by Mirar (264502) on Tuesday March 10, 2009 @09:12AM (#27133341) Homepage

    "Marketing company devoted to selling/marketing products produced by other companies in return for a share of their profits" sounds like what record companies have been doing for almost a century?

    • Who needs to fish for examples.. marketing companies have existed for a long time.

    • "Marketing company devoted to selling/marketing products produced by other companies in return for a share of their profits" sounds like what record companies have been doing for almost a century?

      Record Companies? Hell, you can go back at least to ancient Rome for something like this. Perhaps even in ancient Egypt there was a town crier paid to shout "Come to Imhotep's Medical Emporium! Buy one brain surgery, get the second one absolutely free! Imhotep! His prices are insane!"

      • "Come to Imhotep's Medical Emporium! Buy one brain surgery, get the second one absolutely free! Imhotep! His customers are insane!"

        They call it "truth in advertisements".

  • Doesn't every single retail store sell products produced by other companies in return for their profits?! The fact that anyone could even think this nonsense could be patented shows how screwed up our patent system is.

  • ... should sue him for violating their patent of suing people for violating their patents.

  • I'm patenting funk.

  • by rocketPack (1255456) on Tuesday March 10, 2009 @10:23AM (#27134259)

    A Process for Obtaining Legal Ownership of Certain Intellectual Property

    ABSTRACT
    An application is submitted to a government run office which oversees the process of granting and protecting intellectual property rights. Applications contain explanations of methods, design, and applications for said creations, and are often accompanied by diagrams and figures representing the proposed creation for which the applicant ("the Owner") will seek to obtain exclusive rights to create or sell. Once such rights are granted, any facsimile or copy produced by anyone other than the Owner, without express permission of the Owner, will been deemed a forgery and they will be prosecuted pursuant to U.S. intellectual property laws. The following rules shall be applied to any application under consideration:

    1. Prior Art will never be acknowledged. It is irrelevant to the money-making scheme.
    2. The most obscure, ridiculous patents will be approved first.
    3. The process shall never be permitted to be explained, documented, made public, or revised.
    4. All complaints and obvious ill effects on society and technology shall be disregarded.
    5. No actual usable device must ever be produced so that rights may be granted for things one could never actually reasonably expect to produce in any quantity.
    6. Regardless of whether or not the Owner intends to use the granted rights for anything meaningful, or any purpose other than to hinder progress and make money off of the hard work of others, the application shall always be considered valid.

    BACKGROUND OF THE INVENTION
    None. I thought of it first and no one else had ever even conceived of such an invention. Take my word for it, no research necessary. Don't even bother Google'ing it.

    DESCRIPTION OF PRIOR ART
    Not that this is at all relevant, but see the previous section.

    SUMMARY OF THE INVENTION
    Uselessly over-abused process of rewarding those who deserve it the least and providing consistent unfair advantages to those who will hinder progress where progress is often needed the most.

    FOR OFFICE USE ONLY-
    Patent Application No. 7,512,440
    GRANTED 3/10/2009

  • by notaspy (457709) <imnotaspy@NOSPaM.yahoo.com> on Tuesday March 10, 2009 @11:29AM (#27135231)

    Typical. kdawson hasn't a clue about Intellectual Property issues, yet posts constantly and inaccurately about them.

    Firstly, the lawyer did not "sue" to get a patent. The application was (appropriately) rejected by the patent examiner. The applicant appealed the rejection to the PTO Board of Appeals and the rejection was upheld. The applicant then appealed that rejection to the Court of Appeals for the Federal Circuit (CAFC), which applied Bilski to uphold the rejection again. Despite the fact that a court was involved, this was not a "lawsuit."

    Rather than appealling to the CAFC, the applicant could have filed a civil action against the Commissioner of Patents in the DC Circuit Court. This would be considered a lawsuit.

    The only story here should be that the Patent system worked.

    And please, please, STOP posting articles with headlines announcing that somebody "won" a patent. Patents are issued or allowed.

  • My patent (Score:3, Funny)

    by MillionthMonkey (240664) on Tuesday March 10, 2009 @11:53AM (#27135739)

    I have been granted a patent on staying home from work and hitting the bong.

    To the office with all of you!

  • Namely, just about every lawyer in existence...

  • The problem with re: Bilksi is that all the patents that are being rejected this way should have been rejected because they are "obvious to one of ordinary skill in the art". Bilksi is a copout by the courts that couldn't be bothered to do the right thing by invalidating for obviousness.

    The boundary between hardware, software, and processes is not clean cut, and makes a poor basis for rejecting patents.

    • by russotto (537200)

      The problem with re: Bilksi is that all the patents that are being rejected this way should have been rejected because they are "obvious to one of ordinary skill in the art". Bilksi is a copout by the courts that couldn't be bothered to do the right thing by invalidating for obviousness.

      As another poster pointed out, you have the order wrong. As a procedural rule, the PTO doesn't even consider the issue of whether or not the patent is novel or non-obvious until it has considered whether the subject matter

      • Nonetheless, I feel that the Bilski decision is wrong. The court shouldn't have created a new reason to kill patents when the old reasons were better.

        If someone ever came up with a nonobvious and useful business method patent, I would have supported its patentability.

        The patent office is doing the right thing. Bilski gives a reason to kill the patent. But the courts should have killed it based on obviousness.

  • If this patent means it's illegal for me to market myself in a job interview, I'm all for it!

  • Now, this is why doing business in the US is getting to be more and more expensive, and is stifling innovation. If this legal quagmire continues the US will lose its competitive edge as it did in manufacturing and is currently doing so in finance. The law is not only going to kill technical innovation but business innovation as well.

    Luckily its still the easiest country to start a company in, as well as has pretty decent tax and labor laws (beneficial to companies).

    Downside to labor... ya'll are expen
  • I should patent the concept of giving remuneration for work provided by employees. This way, whenever anyone in the world gets a paycheck, I'd get a cut of that action!
  • and the U.S. Court of Appeals for the Federal Circuit upheld the USPTO's decision to give this asinine application the smackdown.

    Read all about it on Groklaw [groklaw.net].

    The level of legal illiteracy on /. never ceases to amaze me . . .

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