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Using the USPTO Against Itself 178

Posted by timothy from the wife-beating-machine dept.
fidget42 writes: "This article in the LA Times tells of how a scientist went about using the patent office as a mechanism for trying to force a change in that office's rules. To quote from the article: 'Nearly 10 years ago, a friend called Stuart Newman with an intriguing challenge: Could he think up a new form of life that would be scientifically useful and possible to patent--yet so disturbing that the public would recoil?' Could the same be done with the US Patent and Trademark Office (USPTO) concerning software patents? I know some companies have used the rules of the USPTO to 'spoof' it, most notably Despair, Inc.'s trademarking of the frowney."
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Using the USPTO Against Itself More

Using the USPTO Against Itself

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  • Despair Inc. :-) (Score:5, Insightful)

    by irony nazi ( 197301 ) on Sunday May 12, 2002 @04:43PM (#3507321)
    ;-(

    ;-)

    In NO way does Despair's trademark spoof the USPTO. It is a valid trademark for a valid company.

    The fact that they applied for it and were granted it was SOP (Standard Operating Procedure). They then went on to joke about *patenting* the emoticon and charging people for every time it is used. This might have been the *spoof* part, but not the trademark itself. I wish that people would get this straight.

  • Humouse (Score:1, Funny)

    by Anonymous Coward
    The real thing to ask, is can this be reverse engineered so that we can make the obese american public start running in whells all day?

    • Re:Humouse (Score:2, Funny)

      by imr ( 106517 )
      Unfortunatly, the whole thing had to be taken down as they released a cease and decist letter from disney claiming they we're infringing their intellectual property of a human/mouse entity designed to increase his owner's wealth, currently named the mickey mouse project.
      disney has no humour about humouse.
  • Despair thought it would be funny to apply for a trademark of the :( smiley. Proving the utter stupidity of the system, it was granted. They had a gag page set up offering to sell one-use licenses for $5 a pop, but they got actual flame mail from *cough* certain high-caliber individuals *cough* who believed it to be true...

  • Should this concept be patented? (Score:5, Interesting)

    by mangu ( 126918 ) on Sunday May 12, 2002 @04:44PM (#3507326)
    "A Method to Force the USPTO to Behave in a Dignified Manner" perhaps?
  • Would this "humouse" be an anthropomorphistic creature, like those featured here [ctrl-c.liu.se]? Some people get off on furry humanoids...

  • Patenting Life! (Score:2, Insightful)

    by murat ( 262137 )
    For the biotechnology industry, the humouse case is serious business. Without strong patent protections, the industry says, investors will not risk money to develop new products. And Rifkin and Newman aim to narrow the scope of what elements of life can be patented.

    I think with strong patent protections science can't develop well. Same in software development. If patent holders do not develop the product, no one can.


    • > I think with strong patent protections science can't develop well. Same in software development. If patent holders do not develop the product, no one can.

      And therein lies the problem. The rich and powerful in the developed nations aren't interested in the advancement of science and software; they're interested in the next quarterly report.

      It's the Tragedy of the Commons, writ large.

    • It seems to me that Industry can develop incremental innovations faster without any patent or copyright protection. The more minds that are free to design a better mousetrap without having to pay licensing fees for the basic idea of a mousetrap (if the holder agrees to even license to you at all), the faster and cheaper that better mousetraps will come to market.

      However, for pure Science and Technology where brand new ideas and processes must be developed it seems that there needs to be some way to allow the trailblazers to recoup their sometimes substantial investment. These conflicting principles create a gray area and need to be carefully balanced if the aim is to achieve the most rapid progress.

      But it seems that the USPTO has gone way overboard in the last couple decades granting patents for even trivial and obvious innovations. Is the court system the only way to achieve that balance? What guidelines can a patent examiner use that would allow her to 'strike for the mean'?
    • I think with strong patent protections science can't develop well. Same in software development.

      Empirical evidence seems to refute your hypothesis. We have had patents since the 18th century, and by far the bulk of scientific progress has occured during over this period of time. Software development has become stronger as patent protections for software have become more widely practiced.

      If patent holders do not develop the product, no one can.

      Ah, but you see if the product is not at least invented no patent can exist, and if the product is not developed, no profit can be made from owning the patent. The fact of the matter is that it is very common for one company to bring an invention to patentability, and through licensing to another company profit from it's development. In fact that is one of the main mechanisms for commercialization of biotechnology.

  • Now now, calm down (Score:2, Interesting)

    by wuzoe ( 28694 )
    I'll go out on an unpopular limb and defend the frowny.

    Although it is a very common emoticon, it was completely neutral commercially. Despair claims the :( (tm) as their trademark. Unlike naming a game SimSuburbia*, there's no chance that anyone seeing a :( will mentally link it to another company or product. They may not know of Despair.com, but please - how many unheard-of trademarks are out there? For most people, the vast majority of them.

    (SimAnything is tm Maxis., IIRC.)

    Look at their site. :( (tm) is a very distinct and very well fitting mark for the company.

    ... Now, those cease-and-desist letters are good satirical entertainment, but please realize that is a completely different issue. 8-]

  • But You're Missing The Main Objective (Score:1, Funny)

    by Anonymous Coward
    The site www.uspto.gov is running Netscape-Enterprise/6.0 on HP-UX.

    The US Patent Office doesn't run Leenux!!!

    To arms, comrades! We must do our duty!
    • You're right, even though you posted a pitiful attempt at parody. Why are my tax dollars being wasted on proprietary stuff like HP-UX when they could be running BSD or Linux for free?
      • Why are my tax dollars being wasted on proprietary stuff like HP-UX when they could be running BSD or Linux for free?

        One has to pay for the hardware in any case, so I presume you are refering to the cost of the OS? I got my copy of HPUX 10.20 without charge... Remember the Y2K unpleasantness? At that time, HP was offering HPUX 10.20 upgrades free to anyone with a 700-series workstation. Maybe they are charging for HPUX now, but it was free at one point.

        Now whether you or I actually _like_ HPUX is another matter :-) Personally, I despise their "depot" package system. It sucks the snot out of a dead dog's nose...
        • Fair enough . . . and when those HP boxes were bought, there probably was no Linux yet.
        • The license is still free, you can get one for HPUX 11i right here:

          http://www.software.hp.com/cgi-bin/swdepot_parse r. cgi/cgi/displayProductInfo.pl?productNumber=B9088A C

          Getting the media is a little harder, but I'm sure you could find one on Ebay if you can't make a copy from one at the office.
          • The license is still free, you can get one for HPUX 11i right here:

            http://www.software.hp.com/cgi-bin/swdepot_parse r. cgi/cgi/displayProductInfo.pl?productNumber=B9088A C

            I think your link lost something in the translation - it didn't work for me. But it's good to know that it is still free to use. I never saw any need to go for 11, because all my 735 systems are all 32 bit, but this could be helpful for those with 64 bit machines.
            • Sorry about that, looks like it might be cookie dependent or something, even after fixing the errneous space before the trailing 'C' in the part number.

              Try this one, only one item is $0 so it should be obvious:

              http://www.software.hp.com/OE_products_list.html

              Meanwhile, 11 is not just for 64-bit. There is all kinds of other stuff, including better 32-bit performance. The 'i' in 11i represents lots of internet-relevant tweaks. If you have solaris boxes, 11 is closer to solaris than 10.20 was too.

              It is more of a ram hog, so if you are running with something like only 64MB and X11 it probably is a net loss. But 64MB and no X server, or 128MB+ and an X server and it is probably worth the upgrade.

  • Patches on patches on patches (Score:4, Insightful)

    by Drishmung ( 458368 ) on Sunday May 12, 2002 @04:57PM (#3507361)
    While the idea that patenting the humouse is so morally repugnant that congress would be forced to act is good in theory, I'm not so sure that relying on moral repugnance is a good idea, based on current trends.

    I would have been tempted to patent a non-human on the basis that "being non-human, it would be unprotected as a human under law and thus able to be exploited as a beast of burden or slave". And even then it might not be morally repugnant enough!

    (Hmm, I think my anti-cynic meds are wearing off...)

    It seems to me that what is needed is a new declaration on human rights vs technology. The current laws on patents, copyright etc. are being bent past their ability to cope with the new technologies. There are interpretations of judgments, taking into account opinions of what was originally intended by people for whom the current situation was unthinkable. Patches on patches on patches. It's a mess.

    We need something new to work from.

    Maybe we need to clone some of the thinkers from the Age of Enlightenment and have them draft something for us (that would probably make their cloning illegal).

    • Howabout we patent the idea of growing clones of people in tanks. We pith them early (you know, when you hit a frog on the head with what is essentially an awl to kill them quickly in case they come out from under anesthetic while you're operating on them in science class?) and then just feed them nutrients. When they're old enough, we can start harvesting the organs out of them, giving them to the source of the clone as organ 'upgrades' (replace them before failure). This will enhance the lifespan of the clonee.

      This post can count as art (as in prior) now, right?
    • This trend satisfies what comes to mind. First, patent something with a little human in it. Then patent something with more human in it. Then patent something with pretty much all human DNA, except for one or two inactive genomes replaced or removed. It looks like a human, it smells like a human, but I own it!
    • "...is so morally repugnant that congress would be forced to act..."

      When that's the goal, then why not patent the concept of 'congress'? That should get some attention.

      Or 'television', or 'newspaper', or 'record company', or 'movie studio'.

      Want attention? Use big fish. Forget about emoticons.
    • Maybe we need to clone some of the thinkers from the Age of Enlightenment and have them draft something for us (that would probably make their cloning illegal).

      I like your dose of irony, but beyond that, why ban cloning? Cloning is simply a new reproductive method, nothing more. One that is currently fraught with risk, quite probably unacceptable risks at this point in time, much as test-tube reproduction was 40 years ago. Making it illegal, and banning other bioengineering techniques that could be used to create non-human species as smart as ourselves, completely skirts the underlying issue which needs to be clarified: namely the rights of all beings, not merely those who happen to be defined as human, based on some reasonable metric (such as perhaps intelligence, or some broader definition of sapience that factors in degrees of self-awareness and thought, not an easy task I grant you).

      Such a regime would require:

      1) a definition of sapience, probably one that (a) recognizes sapience and intelligence as a spectrum, and not a binary, condition, (b) uses the human norm as a starting reference, (c) explicitly states that any member of a species with average intelligence comparable to that of a human being or greater, enjoys full 'sapient rights' (what we now call human rights) even if their intelligence is significantly below the norm (e.g. retarded people have, and should have, all the rights of a normal person, even if the average chawowow can outthink them on a good day, but chawowows should not necessarily be considered equal to human), and (d) any unusually intelligent member of a species not normally expected to have human level intelligence or greater would enjoy full sapient rights if their unusually high intelligence is found to be such that, were they they norm, the species would be considered sapient.

      2) The definition of species that enjoy full sapient rights (vs. those that do not, i.e. what we typically consider 'animals' or 'dumb machines') must be inclusive of any being demonstrating said level of sapients, regardless of whether they are human or nonhuman, bioengineered or naturally occuring, mineral (machine, crystaline, whatever), animal, or vegitable, or other.

      We need a recognition of sapient rights that transcends humanity, not merely to deal with the inevitable results that bioengineering, and quite likley software engineering, is likely to create in the next century, but also to cover contingencies such as meeting alien life in our exploration of space, etc.

      It is important, as life evolves and more intelligences arise (artificial or otherwise), that we have a foundation for interacting with that life in an ethical and kindly manner. Banning technologies and cowering behind our outdated religious myths does nothing to prepare us for these eventuality, and indeed increases the liklihood greatly that, if and when we meet intelligences that are other than ourselves, we will react in exactly the wrong way, with prejudice and ethno- or speciecentrism ('intelligent computers have no soul' claim theologens, for example, or 'we created the creature, we are its god, it can never be our equal', both of which are appallingly unethical and quite probably false assumptions to be making, but appear to be our default stance on such things).
      • I'm not so sure that relying on moral repugnance is a good idea, based on current trends. I would have been tempted to patent a non-human on the basis that "being non-human, it would be unprotected as a human under law and thus able to be exploited as a beast of burden or slave".

      Not bad, but a lot of people might like a little mouse-man to use as a servant (think Kevin in South Park). There's no downside for them. We really need to play to people's fears and prejudices.

      I'm thinking that we come up with a picture of a mouse-man and run an ad campaign with the theme: "Do you want your daughter dating this guy [air0day.com]?"

      Yes, good old racist paranoia: it worked for banning opiates, it worked for banning cocaine, it works for self-perpetuating stop-and-search racial profiling, it could work for this too.

  • The article is discussing what can be patented.
    Can the USPTO give a patent on a human embryo? (whatever that entains).
    Certainly they have allowed patents on:
    - genes
    - DNA (a person's DNA)

    Is a person patentable?
    Can someone's be "owned" by private hands?
    And then an extention on that -- can life be patentable?

    They were not until GE took a case to the supreme court on an oil eating bacterium (and won).
    • The DNA sequence cannot be patented but drug targets can be though.
    • Step 1: Place legal control over basic components of everyday life in the hands of one organization, granting it a monopoly.

      Step 2: Monopoly levies usage fees over basic components of everyday life.

      Step 3: People complain to monopoly. Monopoly doesn't listen, because it doesn't have to: it alone has what people want.

      Sound familiar? No, I'm not thinking of Microsoft, I'm thinking of the Stamp Tax and the acts leading to the American rebellion. When someone finally patents cloning or reproductive rights, that someone will have a stranglehold on a key industry thanks to the patent. At some point, no one's going to put up with it anymore -- Congress will be forced to act.

      But the requisite surge of emotion won't develop until conditions become intolerable, and Americans are too self-centered not to tolerate the acts of coporations until those entities intrude on their everyday lives. Americans had been living without representation for some time; it wasn't until they were taxed, stinging their pockets and their pride, that they cared.

      A prank pulled on the USPTO will raise media furor for a day or two, but it won't impact upon or intrude into anyone's life. Americans have grown used to being appalled -- jaded by spectacle. Only when a company actually gains a monopoly and openly exerts power though hubris (violent arrogance - think Microsoft here) will it be brought to account for its actions.

  • Morally repugnant humouse? (Score:4, Insightful)

    by yardgnome ( 190624 ) on Sunday May 12, 2002 @05:07PM (#3507393) Homepage
    Let's think this through for a second. To a non-scientist, making an organism that's part mouse, part human probably sounds like something out of a science-fiction nightmare. So they react with violent emotions, imagining something with a human head, intellect, and feelings, but a mouse body. "How *dare* they suggest something could be used for medical experimentation! The patent office *must* be changed!"

    In reality, if they could even get it to work (human/mouse hybrid is a *far* cry from sheep/goat hybrid), a humouse would probably look and behave like a normal mouse. The only difference would be that some of its cells would be human cells. So before you get up in arms, think about the people that have had pig heart translants. They are humans that are not partially made of animal cells. But they don't make your heart leap in fear, do they?

    I definitely agree that there should be limits on what can and can't be patented (as well as what should and shouldn't be attempted). But I don't think the humouse falls into this category. To make such a creature would take YEARS and YEARS of careful research and testing. Why shouldn't someone that figures out how to do it receive a patent? Remember, we're not talking about patenting a slave-person, here. We're talking about patenting a mouse who might have half of its cells of human origin.

    The guy has a great point...that there are problems in the system. But seeing someone that *knows* how these things really work purposefully leading the public astray through incredible exaggeration just gets my goat.
    • I think you're missing something. The point is to find where is the limit. A mouse with human cells probably could still be classified as a mouse. But what if we merged a few genes from a different specie into the human genome? Do you really think we should be able to patent 95% humans that are normal but with enhacements? Think of a human who can sense heat like a snake. Or maybe it might be possible to get a human to regenerate lost body parts? I don't think that should be patented.

      So, where does it stop? 49% human is OK but 51% is not?
      • So what should be done? Remember, we're talking about lifetimes poured into research. And not everyone can make these discoveries...it takes a certain kind of genius to see this sort of thing. Let's say that someone finally *does* figure out how to get a human to regenerate lost body parts. Why should that person not be awarded a patent, but the person that figures out how to make a safer airbag should? Just because it's your body, doesn't mean that you should own any and all improvements on it. I know that sounds horrifying, but consider what it actually means.

        Let's say you're part of a study to design a way for a human to regenerate body parts. You've donated tissue samples, undergone countless tests, and had the therapy performed upon you. Would you think, "My body is human, so it's wrong to patent this improvement upon it." Or would you think, "Well, it's *my* body, so why should someone else get the patent?" Where does the scientist come into this? Why is their hard work and dedication unworth of reward, just because they chose to work with the human body?

        Patenting the human body is just a buzzword. When someone patents a gene, they're not even thinking about making profit off your body. They're thinking of making profit off the therapies (drugs, etc.), that are wholly based on their discovery. Just to press the point home, I'll repeat it again: Why is the product of a biologist's lifetime of hard work undeserving of a patent, but discoveries in other professions are worthy?
        • so because someone worked hard on something they should be able to patent it. thats what your arguement boils down to.

          I worked hard on making a perfume. but i cant patent that. so dna related i can, smells i cant
          • No, tha'ts not what my argument boils down to.

            Gosh, you can't patent your perfume? That's because people have already figured out how to make perfumes. You can register your new kind of perfume so that everyone knows that you made it. But you didn't invent perfume. You can sell your perfume, though, so you end up having some sort of monetar compensation for your work.

            Now how about if you spent your whole life working, and finally discovered protein or gene X. You're just supposed to register that you discovered it? I'm sure biotech companies will gladly tip their hat to you on their way to sell the new drugs they developed based on your discovery.

            Some genes (note the qualifier there) should be patentable because they're useful and novel. I'm against patenting large segments of the genome when even the researchers don't know what those segments do. But if someone puts in the bench-time, characterizes a gene, figures out what that gene does, and has some ideas about how that gene can be useful, then I'm all for that gene being patentable.

            Science is a long, hard road with very little payoff. Now that some people have started to license their discoveries, everyone harps about how scientists have no right to patent the human body. As far as I remember, the patent system is around so that the little guy that had the idea can still make money when the big companies come in and industrialize the idea. To me, that sounds *exactly* like a researcher making a discovery, then licensing the discovery to a biotech company, who makes a multi-million-dollar drug out of it.
    • They are humans that are not partially made of animal cells. But they don't make your heart leap in fear, do they? In fear? No. In anticipation of bacon? Yes.

  • Suing USPTO (Score:2, Interesting)

    by arjennienhuis ( 159927 )
    It might be possible to get a patent on some silly peace of software (hyperlinks, databases), and then sue the USPTO for violating your patent.

  • I want a Humouse! (Score:2, Funny)

    by pivo ( 11957 )
    Especially if they can make one with a mouse body and a tiny human head, preferably resembling Don Knots.
  • Don't they realize that they can't patent the Humouse? The creators of Stuart Little have prior works...
  • From the story:
    But the patent office was forced to change its policy in 1980 after it turned down a patent application from General Electric for a bacterium that had been genetically engineered to "eat" oil spills.


    General Electric appealed to the Supreme Court, in a case called Diamond vs. Chakrabarty. Only one "friend of the court" brief was filed arguing that life should not be patented. It was written by Jeremy Rifkin and his colleagues.

    The Supreme Court, however, said in a 5-4 ruling that Congress had authorized patents on "anything under the sun that is made by man." And because the GE microorganism was man-made and not naturally occurring, the court ruled that it qualified for a patent.
    What about human beings that are produced as a result of in vitor fertilization? They are "man-made" and not "naturally occuring." By the Supreme Court's definition, these people could be patented.

    Governments (not just the U.S.) need to step up and ban patents on all DNA.

    • Re:What about in vitro fertilization? (Score:5, Interesting)

      by Hektor_Troy ( 262592 ) on Sunday May 12, 2002 @05:36PM (#3507490)
      And afterwards the lawyers took over, and issued patent-applications (and getting them approved) for everything under the sun, even if it's not man made.

      Witness patents on DNA. No - they won't charge you for running around with one of their genes, but they will charge you, if you get the idea that you want to know, if it's inside your body, because they have patented any process linked to checking for that specific gene; witness the 2,000 odd dollars it costs in royalties to a specific company, if you want to see if you are carrying the breast cancer gene. No, it doesn't matter what process you use - you want to know if it's there, you have to pay.

      Some patents are good, some are bad, and some should be taken out side and shot!

      I wholehartedly agree with a poster on Slashdot who once said something to the effect of:

      Change the standard procedure, and reject all patent applications by default. If the applicant can't make a good enough case as to why the patent should be granted, then the invention isn't worth patenting.
      • Change the standard procedure, and reject all patent applications by default. If the applicant can't make a good enough case as to why the patent should be granted, then the invention isn't worth patenting.

        That is the standard proceedure.

        And btw, why shouldn't the company that discovered the importance of the BRAC2 gene be rewarded for their work? What are the alternatives?

        Two that I can see - either not funding the research becasue there is no way to recover the costs, or keeping the results as a trade secret and building a sealed box to run the test.

        Do you think these outcomes are better than a patent that publishes the sequence?

        • And btw, why shouldn't the company that discovered the importance of the BRAC2 gene be rewarded for their work? What are the alternatives? (emphasis added).

          I think you have answered your own question here - these are not inventions by any reasonable description, but discoveries. Just as in the same way you cannot patent a gold mine you cannot patent something that already exists (we'll, you can, but that is the bone of contention).

          Patents aren't a reward for doing something socially useful, and should not be used as such. After all, Madame Wu did not get a patent on non-conservation of parity after performing the experiment on Co60, which is a much a discovery as the existence of the BRCA2 gene.

          What are the alternatives?

          You neglected to mention public funded and publically owned research, and private endowments to research institutions. I think either of these are better than the illegimate patents.
          • I think you have answered your own question here - these are not inventions by any reasonable description

            The gene itself is not an invention, but testing for it certainly is. And it is this testing that is what is the commercially important aspect of the patent. The side effect of this is publication of some very important R&D.

            What are the alternatives?

            You neglected to mention public funded and publically owned research, and private endowments to research institutions. I think either of these are better than the illegimate patents.

            Elimination of patents and reliance on publically funded R&D for technology development is perhaps THE WORST idea I have ever heard of for dealing with patent issues. This would result in essentially a centrally planned economy, something the we know from past experience is FAR less efficient than a free market economy. The result of this would be an flat out economic disaster.

            Perhaps patents on genetic sequences are not legitimate because of the discovery vs. invention issue. But that can and should be fixed by far less radical means than your proposal. And in fact recent patentability guidelines from the USPTO have already put an end to patents on genetic sequences per se.

            • The gene itself is not an invention, but testing for it certainly is.

              Ah - but what is being patented is the gene, and as a consequence all possible tests for it. If they want to patent a test - using enzyme A and reagent B then that is fine. A blanket patent covering all possible test is not.

              Elimination of patents

              was not what I was suggesting. The thesis I was replying to was what possible reason other than for profit could a body have to pursue research. Consequent to this was the requirement to provide some mechanism for realising profit, which is this case happens to be an abuse of the patent system. The conclusion we were being invited to draw was the such abuse of the patent system was a worthwhile price to pay for the advancement in knowledge, partially because there was no other way that this advancement would come about.

              Perhaps patents on genetic sequences are not legitimate because of the discovery vs. invention issue. But that can and should be fixed by far less radical means than your proposal.

              My proposal was to stop issuing illegitimate patents, not that all patents are illegitimate - as a patent holder maintaining that all patents were illegitimate would be a slightly odd position to take.

      • "Change the standard procedure, and reject all patent applications by default. If the applicant can't make a good enough case as to why the patent should be granted, then the invention isn't worth patenting."

        Actually, this wouldn't make any difference. Close to 98% of patent applications ARE rejected in the first Office Action, including those that eventually do issue as crappy patents. The problems are numerous, but the primary one is funding. Examiners are denied the time and resources to properly search the art and write the opinions, particularly with regard to non-patent prior art. They don't have these resources because the crooks in congress steal money from the Patent Office to put into the general fund. This is technically illegal, but it's done anyway.

        Here's some (slightly dated but still valid) info from IPO (admittedly a large-company lobbying group in Washington, but they are occasionally concerned about patent quality):

        THURSDAY, JUNE 8, 2000, 11:00 a.m.

        HOUSE SUBCOMMITTEE DRASTICALLY INCREASES PROPOSED USPTO FEE WITHHOLDING
        On Tuesday evening the House Commerce-Justice-State Appropriations Subcommittee chaired by Rep. Harold Rogers (R-KY) drastically increased the amount of USPTO fees proposed to be withheld and diverted to unrelated government programs. The amount the subcommittee is now proposing to withhold in 2001 is around $295 million, which is about 25 percent of estimated 2001 income.

        Although complete information on the impact is not yet available, the impact of withholding $295 million will be catastrophic. The largest amount ever withheld before in one year is the $116 million being withheld in 2000. IPO President Ronald Myrick testified in Congress on March 9 that fee withholding in the range of $113 to 116 million a year already is threatening the quality of patent examining and causing pendency times for patent and trademark applications to rise toward unacceptable levels. Withholding at the $295 million level at a time when workloads are rising rapidly will be far worse.

        The Rogers subcommittee and the House and Senate Appropriations Committees are caught in the cross currents of election year spending demands. Republicans and the Clinton Administration are calling for increases of more than $1.5 billion in popular crime-fighting, drug enforcement, and immigration programs of the Department of Justice.

        Congress and the Administration are advocating overall federal spending billions of dollars above existing deficit-control spending caps. The USPTO, a user fee-funded agency, has become a cash cow for other federal programs.
      • it's not useful to say "they shouldn't have been allowed to patent the breast cancer gene". You are not providing a counter argument to the very idea of patenting itself. In this case, that claim would be "if no one was allowed to patent the gene, then no one would fund the work to identify it, because they couldn't profit from it."

        What's better--no $2000 fee, and no knowledge of the gene? Or $2000 fee, and knowledge of the gene? If you think there is a way to get the knowledge without private sector investment, please propose it.

        In the Grand Scheme of Things the patent is trivial--it will expire after a period of time, and go into the public domain. So, ok, you can't use it for free right now. But an arbitrarily lartge number of people after you are going to be able to. AND this example contributes to other people investing to find other similar things that, yes, they will patent, but then those things will come into the public domain, too.

        It's not self-evident that a patent on the breast cancer gene is bad. You _must_ show that the information would get into the public domain sooner by your alternative method of spurring research.

        • > You are not providing a counter argument to the
          > very idea of patenting itself. In this case,
          > that claim would be "if no one was allowed to
          > patent the gene, then no one would fund the
          > work to identify it, because they couldn't
          > profit from it."

          What they do is to make money by selling the CURE. If they don't have the cure yet, then, sorry Johnny, you don't get your prize until after you've won the race.

          I would say that patenting a disease gene is broken as a) the disease has no useful or advancing application, and b) they didn't invent it. Also, if they are claiming rights to breast cancer, can anyone who has it sue them?

          • What they do is to make money by selling the CURE. If they don't have the cure yet, then, sorry Johnny, you don't get your prize until after you've won the race.

            Since we were discussing the foundational idea of patenting, this is largely just going to move the discussion to arguments about patenting the cure. However, you go on to be more specific:

            I would say that patenting a disease gene is broken as a) the disease has no useful or advancing application, and b) they didn't invent it. Also, if they are claiming rights to breast cancer, can anyone who has it sue them?

            I don't know the details of what gets patented when "a gene gets patented". But I think it is useful simply to know whether you have the gene or not--it is useful in deciding whether to get a preemptive mastectomy, for example.

            (I don't think that they are claiming rights to the disease, but a gene which indicates your susceptibility to it. In any case, diseases have uses, too, as weapons, for example, or as tools for producing cures in a laboratory.)

            As for "they didn't invent it"--well, let's suppose that this is a correct reason to disallow a gene patent. If so, it might be that we should close this loophole and explicitly allow the patenting of difficult-to-obtain information. We still are not addressing the question I proposed--"Is the patent system the best solution available for getting this kind of knowledge into the public domain?"

            Maybe it needs tuning (more or fewer things patentable/longer or shorter time periods/another means of public comment/better guidelines on what makes something patent-worthy), or maybe it needs abolition.

            With any course of action we consider, we must understand the good that the current system is doing now, ask how we would replace that good with something else if we remove the current system, or ask, in general, how tweaking the inputs will tweak the results.

            Patent law is pragmatic. It creates a purely human construct (legally enforced monopoly on information or technology) at the public's expense in order to gain something for the public good. If you can show that something fundamental has changed about society (or what society applies it to or whatever) and that therefore the system is not producing the results for the public that it was designed to produce, then let's figure out how to get it changed. I'm with you all the way.

            What I think is counterproductive is when we look at knowledge/technology that was produced under the understanding that there would be a time-limited monopoly, notice that that will mean some people won't be able to use it, and then complain that something is horribly wrong with the system.

            The whole system is a compromise in its very essence. There are downsides to every compromise. The point in having made the compromise was to get some public benefit. If you want to eliminate the down sides, then also explain how you are going to replace the good side, or why you think it is no longer necessary to have what was once viewed as good.

            Whether the discovery of a gene fits the current definition of a patent is not as important as asking whether the public is better served by having the private investment attracted to the field of gene discovery or not, or how it might be better served if we change the rules by which it plays its part. Maybe there should be "third world" designations for countries that allow them import-only use, or world-wide definitions of income caps below which a person can not be charged for use. If you find a way to implement this that doesn't stop the flow of investment money, great! Let's use it. I just think we need to elevate the debate, get past the barrels and barrels of red herring, and get on with coming up with pragmatic solutions that positively impact the public good.

    • What about human beings that are produced as a result of in vitor fertilization? They are "man-made" and not "naturally occuring." By the Supreme Court's definition, these people could be patented.

      Patentability has more requirements than just being man-made. They have to show novelty and utility. The invention has to be 'non obvious to anyone with ordinary skill in the art". Presumably an ordinary test-tube baby would fail those criterea.

  • There are a few things I could think of that would make the absolute stupidity and danger of software patents obvious to the USPTO. But, I don't have the money to get them yet. Oh well. :P Maybe someday.
  • A patent for a patent office.
    Have the patent office approve it and then sue the patent office into oblivion for infringement.
  • Just visited Dispair.com and low and behold the Classic Frowny is free to license, for a limited time. No pushing, no shoving, there are plenty to go a round.

    • Re:Frowny License is Free for a Limited time.... (Score:5, Funny)

      by horza ( 87255 ) on Sunday May 12, 2002 @05:48PM (#3507537) Homepage
      " Just visited Dispair.com and low and behold the Classic Frowny is free to license, for a limited time. No pushing, no shoving, there are plenty to go a round."

      Classic example of submarine patents. Tell everyone it's free to use, get it established as a de facto standard, and then POW. They'll probably try and use some kind of viral marketing, for example getting people to embed them in emails (what happened to the days when emails where plain grammar?).

      Don't give in. Stick to Open Source emoticons, even if it does involve a length process of installing and configuring a chinese character set.

      Phillip.

  • Butt-kicking, sideways swinging... (Score:4, Interesting)

    by dpbsmith ( 263124 ) on Sunday May 12, 2002 @05:36PM (#3507492) Homepage
    Patents such as #6,293,874 ("User-operated amusement apparatus for kicking the user's buttocks...a user-operated and controlled apparatus for self-infliction of repetitive blows to the user's buttocks by a plurality of elongated arms bearing flexible extensions that rotate under the user's control.") and #6,368,227 ("Method of swinging on a swing," discussed recently in Slashdot) certainly sound as if SOMEONE is trying to prove SOMETHING.

    I'm strongly tempted to mail copies of these patents to my congressman with a letter saying, simply, "The patent office is broken. Fix it."
    • Has anyone else noticed a spate of ads (TV) for Tropicana orange juice lately? I tend to think that they're embarking on a a massive PR campaign, since it was recently brought to light in a recent news story that Tropicana holds a patent on (if I remember correctly), the METHOD that a certain type of orange can be used (as in squeezing, to make juice). This is an issue with other OJ producers because (I think) there are only one or two varieties available on the off-season. Their hands are tied because of the patent. Who would have thought that squeezing oranges would be a patentable idea?

      I have to confess - I've purchased Tropicana orange juice, but one thing is for certain - I never WILL.
      • Has anyone else noticed a spate of ads (TV) for Tropicana orange juice lately? I tend to think that they're embarking on a massive PR campaign, since it was recently brought to light in a recent news story that Tropicana holds a patent on (if I remember correctly), the METHOD by which a certain type of orange can be used (as in squeezing, to make juice). This is an issue with other OJ producers because there are only one or two varieties available in the off-season. Their hands are tied because of the patent. Who would have thought that squeezing oranges would be a patentable idea?

        I have to confess - I've [never] purchased Tropicana orange juice, and now, one thing is certain - I never will.
  • Somebody should patent the "Patent Office!"

    This would be even better than the Humouse.
    • I always wanted to try and patent "A method of representing a large group of people in which the people choose a select few people to make choices for them"

      Thereby patenting Congress itself.. That'd make congress wake up and fix the USPTO.
      • A fine idea. What about this one: file for a "meta-patent" on the idea of patenting patently unpatentable ideas so you can get rich harrassing and blackmailing productive members of society into ponying-up cash just to make your "infringement" suits go away.
  • A mouse with one human gene to produce cheap insulin might be quite acceptable to the public. Frankly a goat that makes spider silk in its milk seems more twisted. But granting an application for a human with one mouse gene would be patently ridiculous. pun intended
    • A mouse with one human gene to produce cheap insulin might be quite acceptable to the public. Frankly a goat that makes spider silk in its milk seems more twisted. But granting an application for a human with one mouse gene would be patently ridiculous. pun intended

      Exactly. What people don't want is a "Bladerunner" world of patented quasi-people. But really, I don't see how mice with a few human genes or even as the article's "humouse" has -- a few human cells -- could be objectionable to anyone, except perhaps to the religious right.
  • From the article:

    Finally, the patent dispute is part of a political struggle to define the legal and moral status of the human embryo

    In fact, he and his patent partner, technology critic Jeremy Rifkin, have deep moral objections to manipulating human life and oppose patenting any living organisms. They believe that federal law does not sufficiently limit scientific work with human embryos and human life, and their humouse is intended to change just that.

    I know we all have different political/social philosophies, but being a 'liberal', I find this part most disturbing. What if this stupid humouse thing brings about more restrictions on stem-cell research and abortion? I figured a place like /. would be a bit more left-wing on these sort of issues.

    • Yeah, it could be used as an argument for the anti-abortion side, but the main goal of this exercise seems to be to limit what can be patented. Do you think people's DNA should be patented? I don't.

      What about genetic enhancements for people? Let's say some company engineers and patents a genetic modification that makes people more resistant to disease. Then a couple pays the company to implant these genes into their children during the invitro fertilization. The kids grow up and find out that they will have to pay patent fees to the company should they reproduce--up until the patent expires.

      This may sound silly now, however it probably won't be in the future. I could just see the "Patent Enforcement Alliance" (sister company to the BSA) showing up at the hospital to collect patent fees when a baby is born.

      I don't have any problem with abortion, but I do have a problem with patenting DNA. Maybe geneticly engineered stuff could fall under copyright, but I am concered how far that could go and what kinds of control it could give to various organizations/people...

      BTW, I think the designations left/right wing are silly. It's not accurate to limit all the possible political views on a one dimensional graph. Only a small subset of the normal popluation happen to fall upon this graph. Real people have wide varieties of views and opinions.

  • Aren't they currently suing in ISP in the US over their claimed hyperlink patent ? If they win, or if the ISP relents and agrees to settle an out-of-court deal, this might make a wider range of people think again about the stupidity of software patents.

    And don't just think it can't be changed because all the big tech companies love making money from patents. Just wait until loads of tin-pot little companies start screwing the big boys with some of the same ridiculous patents they've started using on others. Once they realise that they're just tying themselves up in stupid, expensive legal knots, they might decide that the whole idea was stupid in the first place, and we're all better off without them.
  • For such an organization to grant a patent on swinging sideways only goes to prove that it's strength as an organization to deal out property rights is to be questioned and certainly having lessor weight of respect.

    A patent doesn't grant insured protection and as such it'd be interesting to see how they are losing their ability to grant paperwork having value.

    What's the rate of challenging patents of worth challenging in court?

    Seems to me the court system is where IP rights get enforced or not, not the patent offices of the world.
  • Make sure you don't violate the End User Licensing Agreement [despair.com].

    (included below for reference...)
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  • Humix? Or would that be GNU/Humix?

  • The assumptions are wrong? (Score:3, Interesting)

    by ilmarin ( 570092 ) on Sunday May 12, 2002 @06:56PM (#3507777)

    I haven't thought about this enough, but something is seriously wrong with the ground rules. The purpose of patent law is to motivate private industry to develop inventions for the public good. Patent law is created and maintained by we the public for our benefit, by definition. Here there is some notion that an invention can itself become part of the public, which sounds like someone (besides just me) is confused. That is, something that was not someone has become someone by human invention. !.

    This is a collision of a several loaded issues in one place. The two most obvious to me are the "right to life vs. right to choose" issue, and the "capitalist vs. socialist" debate. The "capitalist vs. socialist" issue is not so obvious so I will address it first.

    Suppose we succeeded in defining "life" and decided that life shall not be patentable. Then private industry would stop working on all life containing products, and the public would loose the benefit of oil eating bacteria and similar products. But these products may be so compelling that the public does not want to loose these benefits. So let the public develop them. Furthermore, let the public nationalize inventions surfaced by private industry that encompass "life." Practically speaking, this would mean an absorption by the government of most biotech talent, wherein all research and results would naturally be in the public domain. This may well be in the best interest of the public. There is a qualitative difference between the benefit of a light bulb or a hyperlink and that of a humouse.

    Nationalizing biotech would also defuse the "ownership" issue and let people concentrate on the more pertinent issue of ethics.

    Which brings me to the "right to life vs. right to choose" issue. If the public cannot decide on the entity status of a human embryo, how on earth is the patent office going to make decisions regarding the property ownership of modifications of the embryo? But then again, perhaps the current status of the law is that an embryo is not an entity. But apparently it is possible for an industry to invent it into an entity, though hopefully not a human entity? Addressing this in the context of patent law is fascinating and insane.

  • MonkMan Patent (Score:3, Interesting)

    by ealbers ( 553702 ) on Sunday May 12, 2002 @07:59PM (#3507944)
    Actually, modifying the monkey genome to increase their intelligence a bit, then addict them to a drug for their survival, would make excellent workers. Just keep them looking like monkeys, and keep the IQ down, and keep the agression in check and you've got a patent worth billions.
    • Read David Brin's Uplift Series, All about making Monkeys and gorillas and dolphins smarter than they actually are.
    • Why would they want that? You have people willing to work for food all around the globe, with IQs ranging from near idiot to brillian (but uneducated). Why would you want an expensive chimp if you can have cheapo humans. And even in that case, it appers that the "economy" doesn't necesarilly mean this people that would work for food.

      (note the sarcasm please before trolling me, thanks)
    • this look too much like many persons I've worked with. The funniest part being, they actually were on the management side of the compagny.
      So, either it's prior art,though not yet recognized as genetic engeenering, or you didn't actually succeed in describing a new specie.
      • modifying the monkey genome to increase their intelligence a bit, then addict them to a drug for their survival, would make excellent workers

      Yeah, right, until the ACLU has them declared human and they all go on welfare and take over the trailer parks. Still, at least they'll provide a higher standard of guest for Gerry Springer, being capable of doing more than screaming, thumping their chests, and flinging their faeces at each other.

    • I think 'Mankey' would be better.
      Otherwise, i think of men dressed in cowls.

  • Anyone else notice? (Score:3, Interesting)

    by pete-classic ( 75983 ) <hutnick@gmail.com> on Sunday May 12, 2002 @11:05PM (#3508403) Homepage Journal
    Did anyone else notice that this bears a striking resemblance to Asimov's "The Bicentennial Man"?

    Specifically, petitioning the system to get "partly not human" declared not human, with the hopes of losing, to set a precedent that "partly human" is legally human.

    To me that is a pretty striking example of life imitating art.

    I can never get over how ahead of his time that man was.

    -Peter
    • Specifically, petitioning the system to get "partly not human" declared not human, with the hopes of losing, to set a precedent that "partly human" is legally human.

      You are making the unwarranted assumption that U.S. laws must be logically consistent. I think it much more likely that "partly human" would be considered "human" for patent purposes, and "not human" for civil rights purposes.

      Don't forget, you're talking about the country where a slave used to count as 3/5 of a person for determining a state's representation in the House of Representatives, and also as 3/5 of a person for determining each state's tax burden to the federal government, but not a person for the purpose of basic civil rights.

      • How, exactly, is the consistency of the US government relevant to the parallel I drew?

        And what are you trying to prove by dragging out the old 3/5 rule?

        I've read some of your other posts, and you seem to be a rational person, but you have me stumped.

        -Peter
        • How, exactly, is the consistency of the US government relevant to the parallel I drew?

          The assumption being made is that, if the patent office declares "partly human" to be unpatentable on the grounds that "partly human" is "human," then "partly human" will mean "human" in other areas of the law as well. I am merely pointing out that one should not assume that, just because "partly human=human" in one area of the law, "partly human=human" holds in all areas of the law.

          And what are you trying to prove by dragging out the old 3/5 rule?

          Merely a demonstration that there is not necessarily any logical consistency in U.S. law. No more, no less. (A slave was 3/5 of a person for some purposes; a slave was not a person at all for other purposes. A sentient robot, or a humouse, may be human for some legal purposes, and not for other legal purposes.)

          I've read some of your other posts, and you seem to be a rational person, but you have me stumped.

          While I'm flattered that you find me rational based on my previous posts, what relevance does that have here? If I "stumped" you because I didn't make my point clearly, then I apologize; but if this post was unclear, it matters little whether posts I've made in the past were clear or not.

          • The assumption being made is that, if the patent office declares "partly human" to be unpatentable on the grounds that "partly human" is "human," then "partly human" will mean "human" in other areas of the law as well. I am merely pointing out that one should not assume that, just because "partly human=human" in one area of the law, "partly human=human" holds in all areas of the law.

            Assumed by whom? I assume nothing of the kind. In fact I hesitate to say I assume that the opposite is true, but I would guess that it is. Which is to say that it appears we are on the same side of the argument.

            I don't know what I could have said to make you believe I assume otherwise.

            Merely a demonstration that there is not necessarily any logical consistency in U.S. law. No more, no less. (A slave was 3/5 of a person for some purposes; a slave was not a person at all for other purposes. A sentient robot, or a humouse, may be human for some legal purposes, and not for other legal purposes.)

            Okay, but you seem to be debating this with yourself. I never asserted that the US government has a consistent set of laws. Beyond that, I find the trotting out of the 3/5 rule to be inflammatory unless it is very specifically relevant. This parallels (HA!) Godwin's Law. [tuxedo.org]

            While I'm flattered that you find me rational based on my previous posts, what relevance does that have here? If I "stumped" you because I didn't make my point clearly, then I apologize; but if this post was unclear, it matters little whether posts I've made in the past were clear or not.

            You aren't that new to slashdot! Slashdot is populated with trolls, rambling freaks, people with inscrutable agendas, and ones who can't put together a rational train of though to save their lives.

            With that in mind, what I meant is that what you said doesn't sense, but I don't get the impression that there is a mental disconnect on your end of the wire, so we must just not be communicating.

            Make better sense?

            -Peter

  • Some of these ideas are to morally outrage, some are just to have a litigious tool against others using them (to stop negative innovations)

    - Torture Enhancement. A method of using software to aid in torture and other forceable information extraction.

    - Virus Ads. A method of invasively forcing advertizing into people's computer systems against their will.

    - HumanTaste. A method of taste simulation and stimulation to allow a person to feel what it would be like to be a cannibal.

    - Virtual Prison. A method of implanting small memories to make a person believe they've spent a potentially indefinite number of years in prison, so that they may feel hopeless and ashamed of whatever they are accused of.

    - iPermanant Record. A method of keeping an international public database based on all the bad acts a person has ever been accused of, along with all aliases that person has ever taken or been assigned.

    - Virtual Indoctrination. A method of punishments and rewards provided through software to shape a persons total view of reality towards some new ideal.

    - Opt-out Finantial Agreement E-Messages. A method of sending an electronic message to someone, whereby if they do not specifically reply otherwise, they implicitly agree to owning an arbitrary debt to the sending party. Great for the economy!

    - Virtual Mutilations. A method of using images supplied by the purchaser to create a video of a random murder, sexual mutilation, and/or other similar reprehesible act, then post those videos publically online.

    - Antisocial EncourageWare. A method of using software to partially simulate illegal actions in real-life scenarios, and to show positive results from all anti-social actions. With such software, a child could simply type in the name of their school, choose the type and layout of their school, and enter in a few friends and teachers names, then see a way to start a remarkably beautiful fire at the school, followed by moments of celebration with friends remarking how much they hated those teachers.

    Any other ideas?

    :^)

    Ryan Fenton

  • Abuse of process (Score:3, Interesting)

    by Paul Johnson ( 33553 ) on Monday May 13, 2002 @04:35AM (#3509117) Homepage
    They are happy to go to court. A judge's denial of a humouse patent would probably bar patents on all human-animal hybrids and possibly on human embryos. And even if they win a patent in court, they expect a public outcry that also could force Congress to act.

    This would be an abuse of process. The courts (rightly) take a dim view of people manufacturing a controversy and then coming to court aiming to lose. Imagine if the 2600 case over DeCSS had not happened. Instead suppose the MPAA had created a small company to host a copy of DeCSS and then sued that company. The front company would put up a lawyer who would make a very weak case, and the MPAA would have gotten a binding precedent set without giving the real opponents of the DMCA a day in court to argue their corner.

    These guys are proposing exactly the same abuse. They want a broad precedent against organisms with human cells in, and they propose to get it by creating a court case that does not give the proponents of patenting such organisms a chance to argue against it.

    Incidentally, check out Friday [amazon.com] by Robert Heinlein for more on this subject.

    Paul.

    Paul.

    • Re:Abuse of process (Score:2, Interesting)

      by Catiline ( 186878 )
      Two problems with that argument:

      They aren't creating the controversy (just trying to bring it to national attention). IIRC, the school segregation case (Brown vs. Ed of Kansas) was taken to court... and deliberatly lost... up until the Spreme Court appeal. Sometimes, the lines are so clear anyone would rule against the law, but a deliberate loss is the only way to have the Highest Court rule on an issue.

      Secondly, they aren't really aiming to lose. They plan on winning- and to thus force Congress to do something about it. Otherwise, they will get a good, crisp, legal line drawn for reference by the patent office.

      Now, if there were only some way to do this with software... hmm... (starts thinking about how to patent addition)
  • Don't allow patents on life. Instead, allow them on the processes that lead to that life. Patent a certain cloning process or method for creating a bacteria. If you patent a process, not individually, but the idea for a process to create something (ie. any and all processes to create this oil eating bacteria) it would prevent others from creating it, but would not involve a patent on the object itself. Its kludgy, but it'd work.

  • This strategy has been proven futile. (Score:3, Interesting)

    by hey! ( 33014 ) on Monday May 13, 2002 @07:37AM (#3509398) Homepage Journal
    Many people find patenting living organisms offensive. Most people find the idea that a copmany can have a patent on a gene that is in their family repugnant. Nonetheless, there is commercial support for these ideas, and so they go ahead more repugnance be damned. The only result is a weakening of the public capacity to fell moral repugnance.

  • Okay (Score:4, Funny)

    by ghjm ( 8918 ) on Monday May 13, 2002 @09:46AM (#3510012) Homepage
    Here's an idea. Let's see how the shoe fits on the other foot.

    1. Apply for a patent for: "A method for the promotion of the sciences and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

    2. Sue the USPTO for infringing your patent.

    -Graham
  • Life should be researchable, but not patentable.

    Even research on human embryo's should be legal -- Roe v. Wade (and Casey) clearly state that embryo's are NOT PERSONS and have NO RIGHTS (at least not before the end of the first trimester). Thus, any research on human embryo's is clearly protected under Roe v. Wade (and Casey) at least until the embryo reaches the third trimester.

    But research and patents are two different things. Research is about discovery, and using that discovery for progress. Patents are about ownership, more specifically invention. No one can claim ownership over any form of life; furthermore, no one can claim to have "invented a life". Claims that companies should be able to say patent "oil-eating bacteria" ignore the fact that such "inventions" are really modifications of things naturally evolved, which belong to us all (or to "God" or "mother nature" if you believe in that sort of nonsense). Furthermore, I oppose patents on life for becaues patents on life do not promote progress and in fact hinder it, by creating barriers for future researchers. Furthermore, patents on life deny the the public important treatments and cures, which would otherwise be provided in a competitive marketplace at lower costs.

    I oppose patents in general, as they are completely unnecessary. Business patents and the like are pure bullshit -- successful business practices produce their own rewards. Furthermore, all patents are unnecessary because of "finders fees". See Lawrence Lessig and "The Future of Ideas".

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