[Commons-Law] Fwd: 1970 patent law quick review (Anivar Aravind)
Hasit seth
hbs.law at gmail.com
Wed Feb 16 20:57:59 IST 2005
Hi Arvind,
I try to address some of your general concerns below.
> 1. It has to be stressed that patent law is an incentive system, an
> instrument which a state applies to
> reach certain effects. I miss something like: Why is there a patent law at all?
Patent law has three goals 1. Encourage disclosure and
dissemination of scientific and technical knowledge, hence create a
public domain 2. Create a central respository of knowledge, hence
providing a secured and long-lasting public domain repository 3.
Provide incentives to the inventors in return for his/her agreeing to
disclose his/her invention to the public. This is the
"contract/barter between government and inventor" view of patent law .
Another, view is that patent provides "a currency for inventions" in
the sense that if a inventor has a patent then he/she can specifically
license rights to those patents to others. Without such a concrete
"currency" form of invention, it would require a new type of contract
each time the rights to the invention need to be transferred.
> 2. The so called property theory has to be rejected which causes so
> much confusion.
In US, patent is considered a "right to exclude" and not a right
to exclusively make something. Patent is a valuble proprietary right
in practical commerce and industry, whatever be its theoretical
foundations. I do not know if considering patent as property really
causes "confusion" . To me question is whether patent law (or some
part of it) is hampering or promoting quantity and quality of
inventions and innovations?
> Undefined however is what's a non-invention! The wording is dangerous
> because even when you say it is not an invention under Indian law
> you agree that it is an "invention", in invention which is not granted
> the right to get patented.
The 1970 Act defines "invention" in the sense of "patentable
inventions". It does not mean that other inventions not covered by
the Act are non-inventions. It just means by inference that
inventions not covered by the Act are "non-patentable inventions".
Your other concerns about statutory language are valid and need to looked into.
Regards,
Hasit Seth
>
> 1. Fwd: 1970 patent law quick review (Anivar Aravind)
> 2. "Bill Gates and other communists" article by RMS (Anivar Aravind)
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Wed, 16 Feb 2005 07:18:53 +0530
> From: Anivar Aravind <anivar.aravind at gmail.com>
> Subject: [Commons-Law] Fwd: 1970 patent law quick review
> To: commons-law at sarai.net
> Message-ID: <35f96d47050215174852aff4b at mail.gmail.com>
> Content-Type: text/plain; charset="ISO-8859-1"
>
> -------- Original Message --------
> From: "André Rebentisch" <arebenti at web.de>
> To: in-parl at ffii.org
> Subject: 1970 patent law quick review
> List-Id: FFII India <in-parl.ffii.org>
>
> I just read the 1970th. Very detailed.
>
> For a good patent law it is also useful to describe what a patent actually is,
> what it is indended for, why it is granted by state and so on.
>
> This is not important for the patent granted under a patent law itself
> but for patent law's further development.
> Often attorneys adopt their normative theories from the law.
>
> 1. It has to be stressed that patent law is an incentive system, an
> instrument which a state applies to
> reach certain effects. I miss something like: Why is there a patent law at all?
>
> 2. The so called property theory has to be rejected which causes so
> much confusion.
>
> The problem with the 1970 act is that it says these inventions are not
> patentable rather than these issues are no inventions
> and thus not patentable.
>
> "CHAPTER II
> INVENTIONS NOT PATENTABLE"
>
> where 3. What are not inventions
>
> The following are not inventions within the meaning of this Act, -
> a. an invention which is frivolous or which claims anything obvious contrary
> to well established natural laws;
> b. an invention the primary or intended use of which would be contrary to law
> or morality or injurious to public health;
> c. the mere discovery of a scientific principle or the formulation of
> an abstract
> theory;
> ....
>
> It is somehow illogical to say an invention is a not invention. This
> can only be understood when you stress the "within the meaning..."
> So there are two subsets "inventions under Indian Patent law" and "
> other inventions"
>
> Undefined however is what's a non-invention! The wording is dangerous
> because even when you say it is not an invention under Indian law
> you agree that it is an "invention", in invention which is not granted
> the right to get patented.
>
> Further it is better to say that these are not inventions and
> non-patentable, because there might be "other acts" under which it
> could be patentable.
>
> a) and b) are better under 4), because these are exeptions for other
> reasons and systematically break the Article.
>
> "an invention which is frivolous or which claims anything obvious
> contrary to well established natural laws;
> b. an invention the primary or intended use of which would be contrary
> to law or morality or injurious to public health;"
>
> It is difficult for me to understand what inpact this actually has so
> I assume it is the same you find in all patent laws.
>
> 6) "First to Invent" rule, no first to file!
>
> "p. "person" includes the Government;" --- ???
>
> Person is not defined, but I believe that only natural persons may apply here.
>
> Intresting:
> - no language regulation so far I can see
> - no specification what can be done with a patent,
> no real enforcement regulation. You get a patent ... and what then?
> - how long is it granted?
> - regulation of revocation is weak.
> - general clause 3 a/b can be used in pratice to withdraw a patent
> - are there patents "by the Government"?
>
> Very intresting for us: The 2002 industry definition
>
> (ac) "capable of industrial application", in relation to an invention,
> means that the invention is capable of being made or used in an
> industry.
>
> However it remains somehow recursive. What is industry? Here the
> economic sector theory could apply. Good.
>
> Ah, 2002 3a) was touched.
>
> Well, from my perspective the law looks more or less chaotic. It is
> not that bad. It seemed to be subject of serious struggle.
> The systematics is somehow broken. It has to be reorganised.
>
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> ---
> Anivar Aravind
>
> ------------------------------
>
> Message: 2
> Date: Wed, 16 Feb 2005 12:09:02 +0530
> From: Anivar Aravind <anivar.aravind at gmail.com>
> Subject: [Commons-Law] "Bill Gates and other communists" article by
> RMS
> To: bytesforall_readers at yahoogroups.com, reader-list at sarai.net,
> commons-law at sarai.net
> Message-ID: <35f96d47050215223966875816 at mail.gmail.com>
> Content-Type: text/plain; charset="US-ASCII"
>
> This is a Followup of CNET interview with Bill Gates
> http://news.com.com/Gates+taking+a+seat+in+your+den/2008-1041_3-5514121.html?tag=nl
>
> >From Slash dot:
> soloport writes "C|Net has published an article, written by RMS, in
> which Stallman points out that Gates is merely calling the kettle
> communist. Toward the end of the article, Stallman strengthens his
> point by feeding Bill his own words. Back in 1991, Bill said, in an
> internal memo: 'If people had understood how patents would be granted
> when most of today's ideas were invented and had taken out patents,
> the industry would be at a complete standstill today...A future
> start-up with no patents of its own will be forced to pay whatever
> price the giants choose to impose.' Now, if only Bill were as
> clear-minded on the subjects of Innovation and Interoperability."
>
> Bill Gates and other communists
> ===========================
> February 15, 2005, 3:55 AM PT
> By Richard Stallman
>
> http://tinyurl.com/5ouyy
>
> When CNET News.com asked Bill Gates about software patents, he shifted
> the subject to "intellectual property," blurring the issue with
> various other laws.
>
> Then he said anyone who won't give blanket support to all these laws
> is a communist. Since I'm not a communist but I have criticized
> software patents, I got to thinking this might be aimed at me.
>
> When someone uses the term "intellectual property," typically he's
> either confused himself, or trying to confuse you. The term is used to
> lump together copyright law, patent law and various other laws, whose
> requirements and effects are entirely different. Why is Mr. Gates
> lumping these issues together? Let's study the differences he has
> chosen to obscure.
>
> Software developers are not up in arms against copyright law, because
> the developer of a program holds the copyright on the program; as long
> as the programmers wrote the code themselves, no one else has a
> copyright on their code. There is no danger that strangers could have
> a valid case of copyright infringement against them.
>
> Thanks to Mr. Gates, we now know that an open Internet with protocols
> anyone can implement is communism.
> Patents are a different story. Software patents don't cover programs
> or code; they cover ideas (methods, techniques, features, algorithms,
> etc.). Developing a large program entails combining thousands of
> ideas, and even if a few of them are new, the rest needs must have
> come from other software the developer has seen. If each of these
> ideas could be patented by someone, every large program would likely
> infringe hundreds of patents. Developing a large program means laying
> oneself open to hundreds of potential lawsuits. Software patents are
> menaces to software developers, and to the users, who can also be
> sued.
>
> A few fortunate software developers avoid most of the danger. These
> are the megacorporations, which typically have thousands of patents
> each, and cross-license with each other. This gives them an advantage
> over smaller rivals not in a position to do likewise. That's why it is
> generally the megacorporations that lobby for software patents.
>
> Today's Microsoft is a megacorporation with thousands of patents.
> Microsoft said in court that the main competition for MS Windows is
> "Linux," meaning the free software GNU/Linux operating system. Leaked
> internal documents say that Microsoft aims to use software patents to
> stop the development of GNU/Linux.
>
> When Mr. Gates started hyping his solution to the problem of spam, I
> suspected this was a plan to use patents to grab control of the Net.
> Sure enough, in 2004 Microsoft asked the IETF (Internet Engineering
> Task Force) to approve a mail protocol that Microsoft was trying to
> patent. The license policy for the protocol was designed to forbid
> free software entirely. No program supporting this mail protocol could
> be released as free software--not under the GNU GPL (General Public
> License), or the MPL (Mozilla Public License), or the Apache license,
> or either of the BSD licenses, or any other.
>
> The IETF rejected Microsoft's protocol, but Microsoft said it would
> try to convince major ISPs to use it anyway. Thanks to Mr. Gates, we
> now know that an open Internet with protocols anyone can implement is
> communism; it was set up by that famous communist agent, the U.S.
> Department of Defense.
>
> ------------------------------
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