Sunday, December 06, 2009

No patent for patent leather shoes

Our attitudes regarding patents, and their cousins, copyrights, struggle to be clear and simple. Recalling the basic premise of patent law, that, to be patentable, an invention must be novel, non-obvious, and have utility. It's got to be new, creative, and work.
The basic premise, that a creative individual ought to benefit from that creativity, but that society at large also has a countervailing interest of having ideas freely available for our use and for future invention, is defined in the Article 1, Section 8, of the U. S. 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;
Note that the words patent, copyright, and trademark are not used; those terms were established by later legislation and affirmed by court cases.
From simple and noble, honoring the garage tinkerer, we've reach point, as one Microsoft engineer and holder of eight patents, notes,
never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section—the only section that counts—was indecipherable by anyone but a patent attorney.
Originally, patents were intended to reward physical inventions, such as the cotton gin, light bulb, or transistor. With the  patenting of software, and the establishment of the U. S. Court of Appeals and its jurisdiction over patents, the number and type of patents has grown including business process patents that are now the subject of a U. S. Supreme Court case. (See The Court of Appeals for the Federal Circuit's Impact on Patent Litigation.)
The Supreme Court, in Bilski v. Kappos, is now considering whether business processes that ideas and processes are patentable. Groklaw's transcript shows that the justices are skeptical of the claim. (The official transcript is available on the Supreme Court site.)
JUSTICE SCALIA: You know, you mention that there are all these -- these new areas that didn't exist in the past because of modern business and what-not, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.

MR. JAKES: They might have, yes.

JUSTICE SCALIA: Well, why didn't anybody patent those things?

MR. JAKES: I think our economy was based on industrial process.

JUSTICE SCALIA: It was based on horses, for Pete's sake. You -- I would really have thought somebody would have patented that.
While we await the Court's decision, we're left to ponder how  such a noble idea wound up with such silly attempts and/or results:
and contention:
A whole new industry, called by non-practicing entities (commonly known as patent trolls), whereby companies buy up patents, sue others who might be infringing on those patents. The patent trolls don't actually make anything, except money.

So where do we go from here?  Likely, we're going to spend the winter waiting for the SCOTUS ruling on Bilski. While doing that, we can sit back and admire an American inventiveness with no apparent limits :

U.S. Pat. No. 6,805,607: Scented doll with the appearance of an aged person.via They Invented What? (No. 142) « Anticipate This!™ | Patent and Trademark Law Blog

U.S. Patent No. 7,574,752 Garment with Integral faux thong extension and associated method

The patent is for a process for creating patent leather which, in turn, is an old process for treating leather so that it has a high gloss finish. You can start your research here. I'm tired and the Simpson's are on.

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