Linked by Thom Holwerda on Sat 30th Jun 2012 19:34 UTC
Legal Yesterday, we were treated to another preliminary injunction on a product due to patent trolling. Over the past few years, some companies have resorted to patent trolling instead of competing on merit, using frivolous and obvious software and design patents to block competitors - even though this obviously shouldn't be legal. The fact that this is, in fact, legal, is baffling, and up until a few months ago, a regular topic here on OSNews. At some point - I stopped reporting on the matter. The reason for this is simple: I realised that intellectual property law exists outside of regular democratic processes and is, in fact, wholly and utterly totalitarian. What's the point in reporting on something we can't change via legal means?
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lemur2
Member since:
2007-02-17

I get the impression that you don't like software patents at all, why? What in principal is different about owning the legal rights to a piece of code or software design compared to say owning the rights to a novel or a piece of music?


A novel or a piece of music can be protected by copyright, but not by patents. There is no issue with software copyright ... if one wants to make a competing software product one should write one's own code rather than selling a literal copy of someone else's code, in exactly the same way that if one wants to be a best-selling novelist, one should write one's own novel and not copy the words of another writer.

No problem with that, copyright is fine as IP protection for software, just as it is for writing or music. Note that Android is not a copy of iOS, it is a work-alike. No, the problem is software patents.

Having software patents is akin to disallowing Harry Potter novels from ever being written because someone else had earlier written a novel about a young male wizard character named, say, Merlin growing up. No more lullabys ever to be allowed to be written except for the one by Brahms.

Insanity of the highest order, and totally inappropriate.

What about hardware patents? Are some OK but some not? In which case what are the dividing lines?


There are very reasonable dividing lines in European law:
https://en.wikipedia.org/wiki/Patentable_subject_matter


The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.


You will note that software is excluded twice since software is "programs for computers" and it also is "mathematical methods".

Suppose someone sets up a company and makes shoes that look just like the latest Nike shoes and has a logo on them that looks very similar to a Nike logo and uses a product name similar to the Nike shoes? Should Nike have the opportunity to claim in court that their designs are being infringed?


Now you are getting very confused indeed, and totally silly. You are talking now about another totally different IP law called trademark. Android does not infringe on Apple's trademark ... no one can possibly confuse a little comic green robot icon for an apple.

Edited 2012-07-01 23:59 UTC

Reply Parent Score: 6

Savior Member since:
2006-09-02

No, the problem is software patents.


While you are right with respect to the question you answered, in the big picture, the other two IP systems, copyright and trademark, are flawed too.

Copyright lasts way too long. After the author's death? Why? How come people who had nothing to do with the work in question are entitled to royalties? My great-grandchildren won't get a penny from my current employer, and that's how it should be. Imagine if all companies had an obligation to pay your salary to your grandchildren, 70 years after you are gone. Plus extensions. And also in that time, nobody would be allowed to fill your job (OK, this last one is not entirely accurate).

Trademark is no better. From the Wikipedia page http://en.wikipedia.org/wiki/Snow_white : "The Walt Disney Company currently has a trademark application pending with the US Patent and Trademark Office, filed November 19, 2008, for the name "Snow White" that would cover all live and recorded movie, television, radio, stage, computer, Internet, news, and photographic entertainment uses, except literature works of fiction and nonfiction."

So it's OK to write a story about Snow White, -- maybe not on the Internet, though, -- but creating a TV series or drama act is not? How can a company have an exclusive trademark for a name that was invented by someone else probably centuries ago, (two times, no less,) when even the copyright for the Brothers Grimm's book has long since expired?

(And sadly, judging from how they treat software patents, I have not a second's doubt that the UPSTO will grant the trademark.)

Edited 2012-07-02 07:33 UTC

Reply Parent Score: 4

Thom_Holwerda Member since:
2005-06-29

How can a company have an exclusive trademark for a name that was invented by someone else probably centuries ago, (two times, no less,) when even the copyright for the Brothers Grimm's book has long since expired?


Because Disney is one of the most evil companies this world has ever seen. Virtually their entire business is built upon stealing European public domain works and charging money for their adaptations. Walt Disney's earliest work were adaptations of Alice's Adventures in Wonderland by Lewis Carroll, right after the 17-year copyright term on the original books had transpired.

Disney then proceeded to push through the insane copyright terms we have today. Disney is pure, concentrated evil. Stealing European public domain works because the company has virtually zero creativity of its own. It's despicable.

Reply Parent Score: 4

zima Member since:
2005-07-06

Copyright lasts way too long. After the author's death? Why? How come people who had nothing to do with the work in question are entitled to royalties? My great-grandchildren won't get a penny from my current employer, and that's how it should be. Imagine if all companies had an obligation to pay your salary to your grandchildren, 70 years after you are gone. Plus extensions. And also in that time, nobody would be allowed to fill your job (OK, this last one is not entirely accurate).

It's not so simple; this kind of argument can be easily struck down (or at least, it has a not bad counterargument).

Our descendants can (and usually do, yours most likely will) benefit from physical inherited property, or from virtual, really, financial assets (just some data entries in a database somewhere) - how come people who had nothing to do with the work (in broader sense) in question are entitled to benefits from its results?

So why not for continuing benefits of work which produced "intellectual property"?

Reply Parent Score: 2