[768] in libertarians
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daemon@ATHENA.MIT.EDU (Kevin THEOBALD)
Sat Feb 25 14:12:11 1995
From: theobald@duke.cs.mcgill.ca (Kevin THEOBALD)
Date: Sat, 25 Feb 1995 14:10:59 -0500
In-Reply-To: Paddington Bear's message [] as of Feb 25, 12:33
To: Paddington Bear <deanjens@midway.uchicago.edu>, libertarians@MIT.EDU
| >possible. Independent invention is no defense. Before you can produce
| >any product, you should technically clear everything with the government
| >to make sure no part of the rights of that creation have been assigned
| >by it to someone else.
|
| This seems to me your strongest point; I think ideally independent invention
| should be allowed, but of course it would in most cases be very difficult to
| prove one way or the other. I think that a temporary monopolies are,
| ignoring ethical grounds, a lesser evil than the substantial disolution of a
| reason to develop new technologies, as far as utility goes. As far as actual
| rights go, I still believe you have a right to your creation, though I am
| bothered by the point made above. I currently see it as an imperfection of
| the real world.
Independent invention is a flaw in the current system. Remember that the
patent system was set up in a time when inventions were happening at a much
slower pace, so simultaneous inventions were rare.
My former employer's patent attorney told me that a patent can be invalidated
if independent invention can be proven. For instance, supposed I file, on
March 1st, a patent application which is granted. After the patent is
granted, you see that you invented the same thing, which you had felt wasn't
patentable. You go ahead and violate my patent, and I take you to court.
You show documentation showing that you had the idea on February 15. I
go back and find documentation showing I had the idea on February 1. But
you go back and show that you had the basic concept on January 15. Now a
judge has to decide whether or not that concept was developed enough to
constitute an independent invention.
One thing is clear: if you sold a product containing the invention more
than 6 months before my patent application, then it doesn't matter who
invented it first -- it is considered "prior art." (In Japan, there is
no lag time -- if you sell a product on February 28, my patent is
invalid. I think beta sites count too.)
I would like to see the system changed to improve the weeding out of
frivilous or "prior art" inventions. I would advocate giving patents a
"review period" before being assigned an official number. Members of the
public could raise objections to the patent, either arguing that they
are "obvious" or that there is prior art. Perhaps there could be some
small incentive for people to participate: invalidate a patent, and
whatever the government saves by not granting the patent (in record
keeping costs) goes to you.
Kevin Theobald
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