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Patents

FTC Investigates Submarine Patents 119

Posted by michael from the depth-charge dept.
Schnake writes: "An article on USAToday talks about how the FTC is investigating Sun Microsystems, Unocal, and Rambus to determine whether they illegally kept patents secret while helping set industry standards! And a quote from the ZDNet article: "It noted that all three companies had filed patent infringement lawsuits against firms they say owed them royalties. But the litigation backfired when those firms countersued, charging them with concealing their patents, and complained to the FTC.""
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FTC Investigates Submarine Patents More

FTC Investigates Submarine Patents

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  • submarine patents... (Score:1, Interesting)

    by Anonymous Coward
    ...piss off *everyone* (excpet corporate america)

    Japan espically... about a year ago, Japanese television had an hour long program about how some patents for robotic assembly and inspection had been granted over 20 years after the patent had been accepted. If I recall correctly, there were some very devistating consequences for Japanese industral conplex.

    If Japan had a military, it was the kind of issue that might start a ware.

    The point that seemed to fall on deaf Japanese ears was that the paten office is inherently a political tool of the unitied states government and corporate america. This particular patent had been "submarined" for the direct purpose of secrewing the patent filer out of roalties.

    So, just remember, patents don't protect the inventer. Patents exist to the benefit of corporate america and the us government... and in a country where the patent generators a systematically screwed as a routine, generic part of the culture, it seems a little disingenuious and completely unnecessary to submarine a patent.
    • So, just remember, patents don't protect the inventer. Patents exist to the benefit of corporate america and the us government...

      Actually I would slightly disagree with you on this matter.

      Patents do a great deal to keep control of an idea/concept/plan/what-have-you for even single people. It is like all things that have come from the US so far, it started off as an excellant idea, but from there we grew as a nation and as a planet, however the systems we put in place have not. And that is the problem with not only the patent system but many other aspects of our life.

      • Patents do a great deal to keep control of an idea/concept/plan/what-have-you for even single people. It is like all things that have come from the US so far, it started off as an excellant idea

        Did you study advanced ignorance in school or something? Patent law existed long before the US.

        The principle defect of the US PTO, the lack of public review before a patent is issued is unique to the US.

        • Patent law existed long before the US.

          Wrong. "Royal patents" existed long before the US -- but these were gained by political pull rather than set procedures, and were more likely to grant a monopoly on well-known processes than to protect innovations. Most people simply didn't recognize that inventions were valuable until the industrial revolution was well underway, that is, the latter half of the 18th century. (One exception might be military technology -- see for example Leonardo da Vinci's notebooks -- but no country has ever forgone useful weapons in war time just because they don't own the patents.)

          It's possible that some other countries enacted patent laws before the Constitution allowing American patent laws took effect in the US (1793?), but we certainly weren't far behind anyone. We were way ahead of most European aristocrats, who in 1793 still thought that true wealth lay in vast tracts of farmland worked by downtrodden peasants...
          • Wrong. "Royal patents" existed long before the US -- but these were gained by political pull rather than set procedures, and were more likely to grant a monopoly on well-known processes than to protect innovations.

            The industrial revolution began a century before the US Constitution was written. The idea of awarding patents to inventors was already well established in the UK. Adam Smith came up with the definitive rationale, although by the time he wrote wealth of nations the sale of state monopolies was known as the continental system because that is where it was used.

            The US did not in any case become an industrial power for another 75 years just before the civil war. And it only became a technology leader with Ford and Edison.

            Even then Ford's main claim to fame was not the idea of a cheap car. It was taking on the patent baron who had obtained a fraudulent patent on the internal combustion engine.

            The framers of the constitution were not making it up as they went along. They were attempting to codify what they saw as the best political traditions of the old world. The innovation was the idea of a federal political structure, but even that was a fact that had to be accounted for rather than a deliberate choice.

    • If Japan had a military, it was the kind of issue that might start a ware.

      I thought that wares were the result of outrageous prices or consumers who are too cheap...

      Oh, you mean "war"...

  • Patents not secret (Score:5, Interesting)

    by Ed Avis ( 5917 ) <ed@membled.com> on Thursday September 13, 2001 @05:24AM (#2291243) Homepage
    The whole point of the patent system is openness. You only get a patent monopoly in exchange for full disclosure. So it should be easy (in principle) to find out what patents cover something you are working on. But in practice the sheer volume of patents out there is too large.

    I think that a legally binding 'patent challenge' might be the answer. You should be able to send a letter to Rambus or whoever saying 'I am developing the following... please disclose whether you have any patents or patent applications which cover this area'. The company receiving the letter then has to disclose what they have patented. If they lie or keep quiet, they lose the right to sue you later on. Obviously you couldn't do this for internal R&D, but for standards bodies (where the process is open anyway) this could be a useful tool to reduce threats from submarine patents. The only question is whether it places an unreasonable burden on the patentholding company.

    • Re:Patents not secret (Score:5, Insightful)

      by Asic Eng ( 193332 ) on Thursday September 13, 2001 @05:43AM (#2291275)
      Is a law necessary, though? As I understand it the rules of these standards bodies require the companies participating in a standard to reveal their patents anyway. That seems to be the basis for these countersuits.

      As far as volume goes - maybe there should just be a cap on patents. Something like "x patents a year can be awarded". The patent office would then be charged to award the patents with the most merit, each year. If a patent application doesn't make it in one year, it may make it in the next. If it never makes it... well then it probably shouldn't. :)

      • Re:Patents not secret (Score:3, Interesting)

        by pne ( 93383 )

        The patent office would then be charged to award the patents with the most merit

        Er, I'm sure you've seen examples of some pretty weird patents having been awarded, despite the fact that some people think the thing was obvious to an expert or covered by prior art *cough*One-Click*cough*. Obviously, patent offices are already out of their depth in evaluating the merits of a patent application. What makes you think they will be able to copy with this additional level of scrutiny and evaluation that you're asking for?

        • Re:Patents not secret (Score:2, Interesting)

          by Asic Eng ( 193332 )
          What makes you think they will be able to copy with this additional level of scrutiny and evaluation that you're asking for?

          Fair point, but it may actually be easier this way. When you're checking a patent which seems to have low merit (e.g. one-click) you could just say "ok I give this 50 points" (of 1000 possible). It might be easier to compare it with other patents, than to make an absolute check. If you'd compare it with e.g. FM modulation it would be an easy choice to say "this one makes it, that one doesn't".

          Another hope is, that companies might focus on their important stuff, and throw out the crap, because:

          • the crap doesn't make it, and is therefore a waste of money
          • if it makes it, it might delay their important patents

          The important point for me is, that the patent office would be forced to do some quality assessment, whereas now they seem to take the easy way out, and award anything... In the worst case we'd just have less bad patents. :)

      • Re:Patents not secret (Score:2, Interesting)

        by mce ( 509 )
        As far as volume goes - maybe there should just be a cap on patents. Something like "x patents a year can be awarded".

        You've got to be kidding. Such a system could mean that a company cannot patent anything between, say, July and December, only because its competitors filled up the cap with "bogus" patents during the first half of the year. How long before the latter becomes a generally applied strategy? Smells like a preprogrammed denial of service attack to me.

        • Re:Patents not secret (Score:2, Interesting)

          by Asic Eng ( 193332 )
          Hmmm, I see you point, but that's not quite the implementation I was thinking of.

          Using some unrealistic numbers for an example, let's say 1000 patents would be granted per year. Than at the end of the year the 1000 highest valued patents come into effect, the rest remains in the queue. Bogus patents wouldn't be rated high and never make it to the top. (Well, if they are rated correctly, that is.)

          Say the scale was 0-1000 points. A patent reviewer assigns a value to a patent. A good application rates in the 900s, a bad one in the 50s. In one year the threshold might be 910 (because 1000 patents were in the queue which were rated 910 or higher) in the next it might be 850. Which means the patent you submitted last year which rated 905 was now approved, too. (It would stay in the queue with the same value.)

          Submitting lots of 50s applications would just create more work for the reviewers. Probably not a big deal, since there is a fee attached.

    • Re:Patents not secret (Score:1, Interesting)

      by Anonymous Coward
      Patents are obfuscated; computer science is at least one field in which the typical practitioner can't read them. Volume wouldn't be a problem if patents applied to problems in narrow categories, but when executable content can be patented any searcher has to be exceedingly paranoid and waste thousands of dollars in highly-skilled mind-numbing labor just to be allowed to innovate.
      • Software patents are notoriously bad, and for software the best answer is just not to grant patent monopolies at all (they should be restricted to physical objects, not abstract ideas). But in areas where the patent system is considered to be economically useful but still has problems with submarines, having some kind of mandatory disclosure would help the system work better. That's what I was referring to; the patents on hardware held by Rambus and the like.
    • so DoS your competitors by sending them a flood of letters

      or

      put the wind up them by send speculative letters - "we're developing a water powered car, do you have any patents that cover this area?"

    • It should simply be required that you operate in a full-disclosure mode about patents you have or are seeking that are related to the issues in a working group you participate in. This should be part of the requirements of participating in the working group at all. In fact, I'm not sure that its not.

      • Re:Patents not secret (Score:1, Informative)

        by Anonymous Coward
        The people attending, for example, IETF or IEEE standardization committees, are not representing their company, but themselves. In a big company people attending these meetings do not necessarily know about all the patents company is holding. It is even worse regarding patent applications: patents are public, but the patent applications are confidential even within the company filing the application. At best, a company can offer to license all standardized technology to everyone at reasonable and non-discrinatory terms (whatever that is). For more information, read the IPR policy of IETF [ietf.org] and the section 10 of RFC 2026 [ietf.org].

    • Re:Patents not secret (Score:5, Informative)

      by Speare ( 84249 ) on Thursday September 13, 2001 @09:05AM (#2291746) Homepage Journal

      [stock rant on the subject]

      Patents are not about who is right, or who is first; patents are about who will sue.

      The US PTO is a money-making service for the government, and this fact is why it operates as it does.

      There is a misconception that it is the central duty of the PTO to form a blockade against granting patents. The PTO can and will block applications where there's heavy similarity with prior art or existing patents, but that's really just a guideline to using the service, not the core function.

      The PTO's purpose is to grant patents for a fee, and it's wholly suited to do so.

      The application vetting process of the PTO is a cost center for the operation of the PTO. This is akin to saying that customer service is a cost center for the operation of AT&T. It is required, but they'll cut costs as much as they can get away with.

      To fix the patent application vetting process, two things must happen:

      • Congress must stop using the PTO's filing fees as a revenue source for other pet interests instead of the PTO's own budget, and
      • The PTO needs to allow third parties to aid the vetting process by challenging potential patents before they're granted.

      As of 15 March 2001, the USPTO has changed their policies to solve that second problem. They can now publish patent applications before the patent itself is awarded to the applicant. Previously, the patent was hidden while pending, and patent seekers were not required to disclose this unless they had already signed contracts, say, as part of a standards-body. Third parties may now submit "helpful" arguments against controversial applications. The USPTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.

      Breaking patents by finding simple prior art is not enough for most cases. Patents already granted are almost never cracked, certainly not by someone using an independent third party's prior art. In the famous Heinlein/Waterbed case [vt.edu], the patent was denied before it was ever granted by the Patent Office. Once a patent has been granted, the Patent Office rarely will get involved in disputes; that is a matter for the courts. (And in this case, the FTC aids the investigation for a countersuit.)

      [end of stock rant]

    • Re:Patents not secret (Score:4, Informative)

      by Thalia ( 42305 ) on Thursday September 13, 2001 @09:35AM (#2291889)
      Reality is that a patent takes two or three years to issue. Most of the time, these companies would file a patent application at the same time, or slightly before, joining the standards committee. While the standards were being set, the patent was in the PTO, being kept secret.

      In fact, since the DEC case most standards committees have a specific disclosure requirement, for example the IEEE standard [ieee802.org] requires such disclosure. In order to participate, each company must provide the list of patents they hold in this area, as well as guarantee a "reasonable licensing arragement."

      Do note that if you want to find patents, because you're writing a standard or for any other reason, go to the USPTO's database search [uspto.gov], and go for it. It's easy, it's cheap, and you can get PDF's for $3.

      Thalia
      • That's part of what I meant - you should be required to disclose *pending* patents, not just those already issued. In fact, it would probably be a good thing if all patent applications were out in the open from when they're filed, as part of the patent bargain.

      • Re:Patents not secret (Score:4, Informative)

        by markmoss ( 301064 ) on Thursday September 13, 2001 @11:44AM (#2292761)
        While the standards were being set, the patent [application] was in the PTO, being kept secret.

        Patents aren't secret. Patent applications are secret (for a limited time in Europe, or until a patent was granted under the old American system), because it's unreasonable to ask a company to expose it's new technology a year or two before the patent office grants it legal protection. But it's certainly abusive to join a standards committee without disclosing any pending patents covering items under discussion. Usually it's also a breach of contract.

        According to news reports about the Rambus lawsuits, the abuse went far further than that. They would come back from a standards committee meeting and call their patent attorney to amend the claims in applications at the patent office to cover the technology that had just been discussed.
    • is that these companies had *applied* for patents, but not received them, so they had nothing to declare, or so they said.

      This was the case with Rambus... they participated in standards writing.. and then *afterwards* were granted the patent.
      New precedent is required to prevent this in the future.

      The letter you ask for sounds great, but the problem is, who do you send the letter TO?

      Rather.. companies involved in standards negotiations should be forced to sign declarations that they are not holding or attempting ot hold IP rights over the standards in question.
      • The only question is whether it places an unreasonable burden on the patentholding company.

      I don't think so; if they get swamped, all they have to do is to not answer and hope for the best, rather than the other way around.

      Neat idea, by the way, and probably worth doing anyway by concerned entrepeneurs.

    • I think that a legally binding 'patent challenge' might be the answer. You should be able to send a letter to Rambus or whoever saying 'I am developing the following... please disclose whether you have any patents or patent applications which cover this area'.

      Strong disagreement here, at least within the low-capital-investment realm of software patents. If I had to poll everyone who might have worked on the same stuff that I'm working on, I would be sending out millions of letters per week. This is totally impractical for stuff like software patents.

    • I think that a legally binding 'patent challenge' might be the answer.

      Any solution that adds more procedures and needs more money and time spent on it just makes the problem worse, I hope you realize. Please only consider solutions that actually make the situation better for those with few financial resources.

      Think it through a bit, you'll realize this boils down to one conclusion: time to tear the old creaking structure down, because it's infested with rats and is a health hazard.

  • Some others worth investigating perhaps ? (Score:3, Informative)

    by emmavl ( 202243 ) on Thursday September 13, 2001 @05:33AM (#2291255)
    What about all the patents related to jpeg2000 and mpeg4 ?
    It seems most (or at least some) of them were requested and granted just when the relevant technology/algorithms got accepted into the standard. (See also this article [advogato.org])
    As the article on advogato mentions : why can't ISO/ANSI/whatever enforce policy stating that no patented work should be included in standards released by it ?
    • That's not the problem. The problem is that people like Rambus can sit on a standards commitee, steer it the way they want, and then file patents. Which get granted. And cause untold harm to the entire industry.

      • Re:Some others worth investigating perhaps ? (Score:5, Interesting)

        by troc ( 3606 ) <[troc] [at] [mac.com]> on Thursday September 13, 2001 @06:48AM (#2291364) Homepage Journal
        That's fairly difficult as by steering things in certain directions you run the risk of revealing your ideas before they have been patented, thus increasing the prior art out there and reducing patentability.

        Patents were designed to do two things. One was to foster innovation by FORCING disclosure of invention (or runing the risk of having secrets stolen) and thus adding to the sum of knowledge. The other was to protect the inventor so they could profit from their invention. This is why patenting is relatively cheap (here in europe the initial patent fees are substantially below the cost to the office of dealing with them) but the recurrent annual maintainence fees increase almost exponentially towars the last few years the patent can be valid - to dissuade the patentee from holding the patent too long, especially if it turns out to be a pointless patent they aren't making money out of.

        Hohum

        Troc

        PS Yes I am apatent examiner ;)
        PPS Here in europe you can't patent software or business methods.....
        • I don't know about in Europe, but in the US patents are not "to protect the inventor so they could profit from their invention". The limited monopoly is a sacrifice we make to satisfy the real goal. From the US Constitution: "To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

          Here in the US, people seem to lose sight of the real goal (to promote the progress of science and useful arts) and think that the purpose of patent law is to let them make more money. Any time patent law gives a company or individual a monopoly that hinders rather than advancing the state of the art, then the law has failed to meet its goals. This can happen because the length of the patent was longer than the usefulness of the technique patented, because the technique patented was already common knowledge or obvious to anyone trying to solve the problem, or for any number of other reasons.

          And I'm not a patent examiner, or a lawyer.


    • What about all the patents related to jpeg2000 and mpeg4?


      ISO/IEC JTC1 SC29 Working Group 1 [jpeg.org], better known as the Joint Photographic Experts Group, developed the JPEG bitstream standard (part of IS 10918-1), the SPIFF (.jpg) file format [jpeg.org] (IS 10918-3), and a new "JPEG 2000" wavelet coding system [jpeg.org]. JPEG has a policy of requiring all members to license patents royalty-free if the patent is essential for implementing the standard.


      On the other hand, MPEG has more lenient standards, requiring members to pool and license their patents on a "reasonable and non-discriminatory basis," but not recognizing that a "non-discriminatory" policy toward Free Software [gnu.org] implies royalty-free redistribution.

  • Submarine Screendoor patents (Score:4, Funny)

    by Anonymous Coward on Thursday September 13, 2001 @07:00AM (#2291388)
    United States Patent 6,270,404
    Sines , et al. August 7, 2001

    Submarine chamber door allowing partitionment of exterior from interior while still allowing a beautiful, roomy feel with plenty of fresh air and sunshine.

    Abstract
    System consisting of wooden frame and screening material used as replacement for airlocks on submarines. After sitting here long enough, we decided that submarines just don't get enough fresh air or sunlight, and that the main problem is that their door is either open or shut. The solution: screen doors for submarines.

    Inventors: Sines; Randy D. (Spokane, WA); Kuhn; Michael J. (Spokane, WA); Gregory; Randy A. (Spokane, WA)
    Assignee: Digideal Corporation (Spokane, WA)
    Appl. No.: 749046
    Filed: December 26, 2000
    • Bogus unfortunately.

      United States Patent 6,270,404 Sines , et al. August 7, 2001

      Automated system for playing live casino table games having tabletop changeable playing card displays and play monitoring security features

      Abstract Systems and methods for playing live casino-type card games, in particular blackjack. The systems include a presentation unit which has video displays which portray virtual playing cards and other information at gaming tables attended by live participants. Shuffling, cutting, dealing and return of playing cards are accomplished using data processing functions within an electronic game processor or processors which enable these functions to be performed quickly and without manual manipulation of playing cards. The invention allows casinos to speed play and reduce the risk of cheating while maintaining the attractive ambiance of a live table game.

      Inventors: Sines; Randy D. (Spokane, WA); Kuhn; Michael J. (Spokane, WA); Gregory; Randy A. (Spokane, WA) Assignee: Digideal Corporation (Spokane, WA) Appl. No.: 749046 Filed: December 26, 2000

  • Wonder if they'll check out others (Score:5, Insightful)

    by weslocke ( 240386 ) on Thursday September 13, 2001 @07:07AM (#2291402)
    For example, Unisys's patent for the LZW compression in the GIF format leaps to mind. They didn't exactly keep it a 'secret', but they did wait ten years before trying to enforce it. By that time the vast majority of the developers out there had forgotten about it.
    • Your example is totally different. Unisys never hid their patent. Patents, unlike trademarks, do not have to be continually defended.

      Unisys had up until the day before the patent expired before they had to do anything. It's up to the people creating potentially infringing technology to do patent searches and make sure they are not stepping on any toes. The excuse of, "people forgot about it" doesn't work.
      • Unisys had up until the day before the patent expired before they had to do anything.


        I'm sorry. I should've put that in the present tense. "Unisys has up until the day before their patent expires before they have to do anything."

        IIRC their patent on LZW compression has not expired yet.

    • Re:Wonder if they'll check out others (Score:1, Informative)

      by Anonymous Coward
      It should be noted that Unisys was making noise about CompuServe GIF long before the WWW came around.

      At anytime after 1989, someone could have stopped and revised the format to get around the LZW patent. But instead people kept mindlessly grabbing the format and building it into new software (such as Mosaic and Netscape), and adding support for new features (transparency, animation) thus cementing it as a standard. PNG came onto the scene so late, that by the time it 'catches up' (meaning version 6 browsers become the minimum standard), the LZW patent will have expired.
    • Patent holders have the right to selectively enforce their patents. It is not trademark. The only thing 'allowing' people to use their patent limits is the amount of damages they can claim, because they chose to do nothing.

      What is investigated here is different; this is about companies entering negotiations and striking deals/standards/etc, while keeping it a secret that they have filed for patents covering parts of the deal/standard/etc, and then later trying to profit from that. The premise is that if the other parties involved knew about the patent, they would have done something else.

  • How can a patent be secret? (Score:3, Interesting)

    by dpbsmith ( 263124 ) on Thursday September 13, 2001 @07:10AM (#2291409) Homepage
    How is it possible to keep a patent "secret?" Aren't all patents part of the public record?
    • To paraphase a wise man...

      They are on display in the display department. In the basement of the courthouse. The lights are out. So are the stairs. In a locked filing cabinet with a sign that says "Beware of the Leopard".

      Just because something is a public record doesn't mean that you necessarily are going to find it...

    • Re:How can a patent be secret? (Score:1, Interesting)

      by Anonymous Coward
      Patents are secret from the moment they are filed until the moment they are issued. It usually takes a relatively short time to get them issued (within a couple of years). With legal quibbles, though, you can deliberately make the process take many, many more years. During the time the patent is pending, you can still sue for patent infringement, while still not being required to make the patent public. I am surprised the articles don't mention Apple, as their superiority is undisputed when it comes to submarine patents.
    • How is it possible to keep a patent "secret?" The secrets here weren't patents, but patent applications. It's reasonable to keep applications secret for a limited time, since it takes two or three years for the USPTO to grant a patent, and meanwhile there is little legal protection for the technology.
      However, if you want to sit on a standards committee, you probably have to sign a contract stating that you will disclose any pending applications concerning the area under discussion.

      Aren't all patents part of the public record? Pretty much, although there must be an exception for military secrets. The problem is finding the patents actually related to what you are doing among tens of thousands of badly written patents with over-inflated claims.

  • Microsoft .NET submarine patents (Score:2, Informative)

    by Anonymous Coward
    Will they also investigate Microsoft's submarine software patent on procedure invocation which make it impossible for anyone else to legally make a ECMA standard .NET runtime.

    • Re:Microsoft .NET submarine patents (Score:4, Informative)

      by SteveX ( 5640 ) on Thursday September 13, 2001 @08:18AM (#2291557) Homepage
      The ECMA standards body rules section 1.4 [www.ecma.ch] say that if a company shows up with a patent and doesn't license it with "reasonable, non-discriminatory" license practices, then the standard will be cancelled.
      • The ECMA standards body rules section 1.4 [www.ecma.ch] say that if a company shows up with a patent and doesn't license it with "reasonable, non-discriminatory" license practices, then the standard will be cancelled.

        Yes, sure, after Microsoft has already brayed about their standard for years and gotten all the marketing value out of it. By that time you will have become dependent on some system that relies on it and Microsoft can extort whatever they want from you, with impunity.

  • If only... (Score:3, Informative)

    by A_Non_Moose ( 413034 ) on Thursday September 13, 2001 @07:33AM (#2291459) Homepage Journal
    we could get the patents *revoked* on the human genome.

    complete BS, If you ask me, consider one case reported by 20/20 (IIRC) where a guy's blood (hence genes) were resistant to the AIDS virus.

    Essentially this comes down to theft and fraud. His Blood, His Genes and a Corp. says they own it? MYHAPPYASS they do.
    By that logic, I could let Kingston/Rambus/(whoever) make memory, figure out the tech for it (do all the work)...and go buy a stick of memory (or steal it/whatever) and say "this is my memory company now".

    And the courts are *believing* this piffle?

    Riiiiigggghhhttt.

    Moose.

    Losing Karma not to my own stupidity, but bugs in /.'s datab...(mysql error processing this directive)
    • >>Essentially this comes down to theft and fraud. >>His Blood, His Genes and a Corp. says they own >>it? MYHAPPYASS they do.
      >>By that logic, I could let Kingston/Rambus/(whoever) make memory, figure out the tech for it (do all the work)...and go buy a stick of memory (or steal it/whatever) and say "this is my memory company now".

      That is horseshit. Whomever designed the memory would have registered a patent. Anyone else copying that desing would have to pay royalty's.

      People who want to register parts of the human genome need to be able to patent stuff they work out as otherwise some nobhead like you can come alogn and walk off with the research. If there's no profit in it, the research won't get done.
    • it's not that black and white.

      A better analogy is if you took some Rambus memory, and discovered that it actually acted as a high-gain subspace antennae. You COULD patent that, even though someone else built the ram, and held patents on it, because it's a new discovery.
  • Well, there goes Junkyard Wars...
  • is the only one to accept patents after there is public communication.
    In all other system I know of, once there is no longere secret, there is no longer patentability.
    On a side note, monopolies are legel, abused monopolies are not. Patents grant legal monopolies, abuse of patent should be prosecutable (think of Brazil against pharmaceutical laboratories, selling remedies 10 times their costs. If it's not an abuse of monopoly, what is?).
    • On a side note, monopolies are legel, abused monopolies are not. Patents grant legal monopolies, abuse of patent should be prosecutable (think of
      Brazil against pharmaceutical laboratories, selling remedies 10 times their costs. If it's not an abuse of monopoly, what is?).

      Sure, 10 times the cost of making that one little pill, but it costs a lot to develop the drug and then you have the interest on those costs piling up for years before any revenue comes in, and you have the other failed drugs that they try to make but that never work or kill people or whatever happens.

      BUT...I do agree with you, and personally I would do something like this: Make licensing fees proportional to the average incomes of the nation the drugs are being licensed to. That way, rich nations pay a boatload, and poor nations pay very little, and it is based on their "average" ability to pay. and if the costs aren't being covered, then raise the prices on everyone so that the rich nations have to pay much more proportionally.

  • NOT a Submarine Patent (Score:5, Informative)

    by Compulawyer ( 318018 ) on Thursday September 13, 2001 @08:42AM (#2291616)
    The term "submarine patent" applies to a patent whose application was filed and then allowed to lie dormant in processing at the PTO for an extended period of time (many years) and then is reactivated by the inventor and finally issues from the PTO. This is a problem because other inventors later come up with the same concept and may even file patent applications themselves. When the submarine patent finally issues, there are infringers already up and running with products in the marketplace. Due to changes in the Patent laws, these types of patents are no longer possible. (Do a search for Jerome Lemelson - the King of the Submarine Patent if you want to know more - his is a facinating story).

    What is being alleged here is a type of fraud/unfair competition. The crux of the claim is that it is unfair for a company to propose its technology be adopted as an industry standard without discloising that it has patents or patent applications on file. If adopted as the standard, the others in the industry will automatically infringe. Options at that point: concede the market to the patent holder, redesign the product so it deviates from the standard set by the industry, or pay a royalty to the patent holder.

    To the extent that patents have already issued they are public record, as noted in another post. But currently the law is in flux. The general rule is that until a patent issues, the application and all materials submitted to the PTO is confidential. (The confidentiality allows companies who cannot get patents to still protect the way they do business under trade secret law.) There is a group of applications that fall into this category. However, since the passage of the AIPA (American Inventors Protection Act) and some other tweaks to the law, there is now a publication requirement - applications are published 18 months after filing.

    So - in my humble legal opinion, it is unfair for a company participating in standards-setting not to disclose that it has patent applications pending, but as for issued patents, companies should be aware of what their competitors are doing. Especially if it is a public record.

  • Wrong words (Score:3, Informative)

    by markmoss ( 301064 ) on Thursday September 13, 2001 @01:12PM (#2293458)
    The USA Today article keeps saying "patent" where it means "patent application." Patents are on public record. Patent applications are not, for the first 18 months (formerly forever in the US), because it would be idiotic to let the gov't publish your hot new technology, and then take a year or two to process the application and give you some protection against imitators.

    "Submarine patent" refers to patent applications that were kept in limbo at the USPTO for a very long time by a stream of amendments and other maneuvers, then finally emerged with apparent claims to whole broad areas of technology. For instance, someone filed a patent application about 1960 for several transistors grown on one block of silicon, interconnected by wires soldered between transistors, instead of the then-usual procedure of sawing up the silicon into individual transistors. After 20-some years of amendments, this finally became a patent which claimed to cover _all_ integrated circuits, never mind that there is as much resemblance between the original invention and a modern IC as between a high-wheel bicycle and a modern automobile. But the "inventor" hoped to collect royalties from companies that felt it was cheaper to pay than to fight.

    The things talked about in this article aren't submarine patents, but rather are patent applications that became patents in the normal time, but belonged to companies sitting on the committees writing standards concerning the technology in the applications. That's clearly a conflict of interest, and so standards committees usually require members to sign contracts to disclose related patents and patent applications, and to license them at set rates. The three companies are accused of breaching those contracts. Rambus (at least) is also accused of using the standards committee discussions to target technology to add to their patent claims.

    The feds seem to be claiming that this breach of contract voids the patents. That might be too far of a stretch under the laws as written by Congress, but it's certainly justice, and the Constitutional clause authorizing Congress to pass patent laws ("To encourage the progress of science and the useful arts...", or something like that) would seem to require voiding a patent like Rambus's that was deliberately written to _impede_ the adoption of new technology.

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