Lets talk Patent Law And O U Open source!

[Savvypro]

If the goal is to stop public domain/open source devices (for example) from being patented, after the information has been released to the world.

I did a quick Google search on: how to put something into the public domain
The first wikipedia result (Wikipedia:Granting work into the public domain - Wikipedia, the free encyclopedia) is quite interesting. based on what it states my earlier suggestion my not actually work - in terms of putting the work into the pubic domain (as based on what Aaron posted about his experiences: simply posting information up on the Internet isn't public domain in the eyes of the US patent office). However, you would still gain protection under copyright law (which will also apply in almost 100 country's), and you gain a concrete filing date with a Government department. Which could be use for prior art claims.

The main issue here is that the US patent system is a joke, the new patent law just makes it even worse. Else where in the world, there is still some sanity - at least for the time being.

P.s. woo hoo 300 posts - this being it. I shall now stop spamming the forum
(for those without a sense of humor - that was a joke)

[RAMSET]

This I really Like!!

Aaron
this doesn't seem to jive with your personal experience??
Does it fit all the criteria listed bellow?


FarmHand
Quote:


What exactly leads people to believe that a device that is publicly disclosed
can be patented ? Or more to the point patent something they did not invent.

http://www.uspto.gov/aia_implementat...2hr1249enr.pdf

Quote:
‘‘§ 102. Conditions for patentability; novelty
‘‘(a) NOVELTY; PRIOR ART.—A person shall be entitled to a
patent unless-

H. R. 1249—3
‘‘(1) the claimed invention was patented, described in a
printed publication, or in public use, on sale, or otherwise
available to the public before the effective filing date of the
claimed invention; or
‘‘(2) the claimed invention was described in a patent issued
under section 151, or in an application for patent published
or deemed published under section 122(b), in which the patent
or application, as the case may be, names another inventor
and was effectively filed before the effective filing date of the
claimed invention.
This is the only exception I can see that would allow an inventor to patent a
publicly disclosed invention, but I still don't see how a person or company that
did not invent a device that was publicly disclosed by the inventor could
patent a publicly disclosed invention they did not even invent, when there is
proof that someone else invented it.

I don't think first to file is relevant to public dislcosure, novelty or prior art.

Quote:
‘‘(b) EXCEPTIONS.—
‘‘(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure
made 1 year or less before the effective filing date of a claimed
invention shall not be prior art to the claimed invention under
subsection (a)(1) if—
‘‘(A) the disclosure was made by the inventor or joint
inventor or by another who obtained the subject matter
disclosed directly or indirectly from the inventor or a joint
inventor; or
‘‘(B) the subject matter disclosed had, before such
disclosure, been publicly disclosed by the inventor or a
joint inventor or another who obtained the subject matter
disclosed directly or indirectly from the inventor or a joint
inventor.
I don't think a person can patent something they did not invent.
-------------------------------------

[kcarring]

Money Talks BS walks

Obamas new law has thrown the money on the table for OS inventions indeed.

An invention truly remarkable, truly capable - truly worldly NEEDED,
must:

First be patented by the inventor, unless this cannot be afforded

Secondly, (or First if the above cannot be done) be disclosed to an entity such as Panacea

Thirdly capital must be raised collectively to get patents to protect it

THEN it can be released to the public.

So that brings creedence to a new role for someone like Panacea.

Raising capital to protect worldly needed technologies from suppression, keeping technology available to the masses.

The OS community has been forced to act like any other corporate, essentially. Put the money down.
There needs to be a supportive (read in wealthy) collective, with the interest lying in protecting public from suppression.
Fortunately, there is a strong movement towards such individuals, at this very time.

[Aaron]

@Andrew

I hate to sound "detached" But what harm is there in freely giving, without anything in return. I have done this for years...Carefully...(want to keep learning)

I tried to make money(once upon a time)...tried to patent...tried to start an r&d company...talked to all the best in the field (literally). made it my mission to know who is in the know. (no disrespect to those I purposefully do not talk to)

are we here to "protect" information? or to learn? if you give without asking, is it for nothing?

Andrew,

There is no harm in freely giving unless you have experienced what I experienced - I was ripped off multiple times more than once. In one situation, the legal process could stop me from doing anything with my own invention! This is NOT a hypothetical situation, it happened with a crook right here in the forum and most long time members know exactly who this crook is that always presented himself as some benevolent person who isn't interested in money! lol - He made more demands about what he should get out of something than anyone I ever encountered - and for something he wasn't even entitled to - literally, a thief.

You say you have done this carefully, which implies you could be holding back. And you have said in the past you are under some agreements, which is understandable as I'm in the same position with multiple parties.

But because of what you have posted and what you have said over time, are you telling me you are freely sharing without holding anything back?

I'm not sure how being careful and freely sharing are compatible.

Here is what it boils down to:

"what harm is there in freely giving, without anything in return"

The distinction in what you are saying actually means - is that what you do choose to freely give (which isn't everything), is given without asking for anything in return. That is a totally separate issue of if someone is actually freely giving everything - and there is a huge difference.

That is all I want to point out. What you have said isn't about sharing everything freely - it is about sharing what you want to share and whatever it is you choose to share is shared freely without expecting anything in return.

I agree that if something is freely shared (whether it is just a little or a lot is irrelevant), nothing should be asked in return.

But the conversation of IF everything should be freely shared - that is a completely different conversation that your post doesn't actually cover.

The only reason I am responding to your post is because Jetijs posts that your post is "Gold" - but WHAT is Gold about it?

From an open source developer, I would have to believe ONLY that part about something being freely shared shouldn't require something
in return.

But to call it "Gold" could be taken by someone as meaning that you are simply freely sharing everything know - is that actually the case?

[Aaron]

ip protection

Bare with me here:

I think the use of copyright (like Eagle-Research do) - by actually filing a document containing drawings and explanations, at the Copyright Office, before releasing the info. Especially if its declared as public domain when filed at the Copyright Office. Someone else may file first for a patent, but you then have a Government department to back you up on the filing of the public domain information.

If the person has been stupid enough to just simply copy the information without any changes. Then you would have a case under copyright law. Which could go some way to invalidating the patent.

Copyright law has changed so much over the years that quite literally, online, you do NOT have to even post a copyright notice.

Anyway, I can comment from experience... I was attacked by an attorney on a copyright issue a few years ago. I'm not going into details but it involved a manuscript published without copyright in the 50's and 60's. They later filed for a copyright in the 80's AFTER IT WAS ALREADY RELEASED INTO THE PUBLIC DOMAIN. I agreed to stop using the manuscript because although the later copyright application was 100% "Fraud on the Copyright Office", it would take me a lot of time and money to have it overturned by a judge's decision that isn't guaranteed to be in my favor.

In that case, the copyright is valid no matter if it was fraudulently obtained or not. That means I'm forced into spending a fortune to show that it isn't.

Not to go into the actual details, but you do NOT have to give a copyright notice or file at the copyright office for your drawings to be copyrighted, etc... This depends year to year but over the years, trend is more lenient on having to notify. My post here is copyrighted automatically just by posting it online even if there is no copyright notice at the bottom of this page or in my post. This is accepted these days.

My simplified ignition drawings were ALREADY copyrighted when I posted them here as is anyone else's. I could have a copyright case against the thief that claimed my circuits were his for purposes of getting a patent app, it has to be weighed if it is worth it or not.

Here is the thing that everyone must understand. It DOES NOT MATTER what patent, copyright or any other protection you have. If you do not have the money to enforce your protection, IT DOES NOT MATTER. The little dog that beats the big dog in court on something like this is an EXCEPTION - it is NOT the rule. And if you don't have the money, you can't do anything!

But, I suppose there could be a grassroots protest against some company that does it.

I do NOT have to register anything at the copyright office to protect my material against someone else that wants to plagiarize me. Online, I can file a DMCA with the web host amand it is as simple as that.

But to protect your copyrighted drawings against someone that wants to patent it - that is another story. How much money do you have?

I'm not saying this to discourage anyone from sharing anything open source - I AM saying that most protection that people think they have is nothing but an illusion.

You can make some company or product name and put TM at the end to indicate it is a trademark. And that IS a valid trademark. IF anyone actually registers the trademark at the copyright and trademark office, then they can put the letter R in a circle to indicate it is registered. But having it registered doesn't seem to make a difference if you can prove that you have actually been using TM in service for a longer time for a certain category than someone that applies for a registered trademark that is the same as yours for the same category.

I applied for a trademark before (again - based on experience) for "The Eight Element" for a mobile oxygen bar that I am co-owners of. The trademark office came back with a denial because they claimed I was trying to trademark an element???!!! That is pathetic considering it was specifically for an oxygen bar name in a very specific category (which I don't recall).

It was obvious they just want us to pump money into the legal system to get an attorney involved to rebuttal it with the same rebuttal that I already had. I still own this oxygen bar. And I never paid an attorney to rebuttal the denial. So my partner and I just stuck with The Eighth Element TM as our name and if anyone ever tries to get a registered trademark for that for the same category, we can simply show overwhelming evidence that has been publicly online for quite a few years that we have been using this name for a long time. That should be done in application status and not after it is granted or it is much harder. Same with patents

[Aaron]

patenting someone else's invention

Aaron
this doesn't seem to jive with your personal experience??

Quote:
‘‘(b) EXCEPTIONS.—
‘‘(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure
made 1 year or less before the effective filing date of a claimed
invention shall not be prior art to the claimed invention under
subsection (a)(1) if—
‘‘(A) the disclosure was made by the inventor or joint
inventor or by another who obtained the subject matter
disclosed drectly or indirectly from the inventor or a joint
inventor; or
‘‘(B) the subject matter disclosed had, before such
disclosure, been publicly disclosed by the inventor or a
joint inventor or another who obtained the subject matter
disclosed directly or indirectly from the inventor or a joint
inventor.

I don't think a person can patent something they did not invent.
-------------------------------------

What I say is true. You are making the assumption that someone filing is telling the truth. The intrinsic fact that they are filing based on someone else's invention is the key point.

If they file and convince an attorney they are the inventor within 1 year of something posted publicly, and the attorney files, they will get patent pending status. That is indisputable.

It is nearly impossible to remove an inventor from a patent application or patent without the consent of the person claiming to be an inventor! They signed a form to begin with stating under oath they are the first and original inventor. Do you think they will easily sign something stating they aren't?

They CAN sign something stating they are not the inventor and that their original claim was not under deception - meaning it was some misunderstanding, etc... blah blah blah. And if so, they can be removed and the patent app or patent can remain valid if there is a legit inventor that can take the place - unless there are other inventors on it that can claim inventorship too..

But IF they do sign something stating they did it by deception, then they are liable for a felony AND the entire patent application is nullified.

So the almost bottom line - if you put something in the public domain and some thief/liar files a patent app for your invention, in the end, you have to get them to sign a document stating they are not the inventor and it was not under deception (meaning they didn't violate their oath that they are the inventor). What are the chances of that? Another option is for them to admit they lied and are subject to fines and jail time.

I am NOT giving legal advice - this is simply from my EXPERIENCE.

So basically, what you quote does not limit someone from lying - then you have to go through hell proving they did with no guarantee you can do anything about it.

[Aaron]

patenting as the solution?

Obamas new law has thrown the money on the table for OS inventions indeed.

An invention truly remarkable, truly capable - truly worldly NEEDED,
must:

First be patented by the inventor, unless this cannot be afforded

Secondly, (or First if the above cannot be done) be disclosed to an entity such as Panacea

Thirdly capital must be raised collectively to get patents to protect it

THEN it can be released to the public.

So that brings creedence to a new role for someone like Panacea.

Raising capital to protect worldly needed technologies from suppression, keeping technology available to the masses.

The OS community has been forced to act like any other corporate, essentially. Put the money down.
There needs to be a supportive (read in wealthy) collective, with the interest lying in protecting public from suppression.
Fortunately, there is a strong movement towards such individuals, at this very time.

Kyle,

The third point on a patent is conditional i think.

What I mean is that something can be kept proprietary - even in a patent the magic formula doesn't have to be revealed and many of the best inventions being used are not patented and if they are, the "magic secret" is not disclosed.

So IF someone wants to patent something for protection purposes but with the goal that anyone can use it - then everything has to be disclosed in the patent and this keeps anyone else from patenting it, which does protect it.

You may have just stated the solution.

An organization could be the assignees for the patent and there is a public contract stating that the assignees give everyone a right to personal use or even commercial use and this prevents anyone else from patenting it. Thereby protecting it and making it open source.

The only caveat I see is IF it is something that is really "ou" for example, it could be classified and taken away as Chet has mentioned. There certainly are plenty of non "ou" things worthy of open source like different agricultural technologies, etc...

From experience, someone unnamed patented her circuits. Claimed they were to prevent anyone else from patenting them. Claimed they were for open source. Then claimed she had a right to any commercial application.

[Farmhand]

Hi Aaron,

The way I see it, all that needs to be done is to prove in court that the
fraudulent patent applicant did not invent the invention. If that is proved then
his patent application is by default fraudulent. That's how I see it.

Are you saying that if a person claims to have invented something and signs a
form under oath, that they and only they can prove if they have lied or not ?

I wouldn't be asking them to withdraw or admit to not having invented the
invention. I would be defending my right to use the invention I invented,
because I would not be seeking a patent. If I was successful in my defence
it would be proving the patent invalid or the applicant fraudulent, I couldn't
sue for damages or losses of income, unless it was a result of their patent
infringement actions against me.

Even if I wasn't the inventor I could still prove the applicant was not the
inventor if he wasn't and I had sufficient proof of that fact.

The court proceedings are to ascertain the truth of the matter and implement
or enforce the law and/or damages or penalties.

A person can represent themselves in court.

Cheers

[Aaron]

patent corrections

Farmhand,

I agree with all the principles that you state. But actualizing them in this day and age is virtually impossible.

Originally, common law was such that anyone COULD represent themself almost on common sense alone in a court but that hasn't been the case since we are not under common law jurisdiction by default for many, many years. That is a long conversation. We can put ourselves into common law jurisdiction, at the risk of ending up in jail because of contempt of court if we don't know how to do it exactly right. So I strongly disagree that anyone can represent themselves in court. They'll get throw around like a ragdoll based on ignorance and it is a very rare breed that know how to represent themselves and get away with it.

Right NOW, you MAY be able, in court to prove someone wasn't the inventor, but you need bottomless pockets.

But in 18 months when the "First to File" bill comes into play, it doesn't matter who invented something it seems, it matters who files first - so all conversations on that issue are a moot point - unless there are different exemptions or loopholes we don't know about. Intellectual Property law is a different world compared to a lot of other areas of law to my understanding.

You can see this:
§ 1.48 Correction of inventorship in a patent application, other than a reissue application, pursuant to 35 U.S.C. - Appendix R Patent Rules

I'm talking from experience and what I'm saying is accurate - and I'm NOT giving legal advice (general disclaimer)

I'm not arguing with you, but just look at what it says. I don't base my statements only on what it says, it is based on going through the actual legal motions with an attorney filing the paperwork in order to realize that what it says is how it is. I spent a few thousand hours in this process and I have a good memory of it.

§ 1.48 Correction of inventorship in a patent application, other than a reissue application, pursuant to 35 U.S.C. 116.

(a) Nonprovisional application after oath/declaration filed. If the inventive entity is set forth in error in an executed § 1.63 oath or declaration in a nonprovisional application, and such error arose without any deceptive intention on the part of the person named as an inventor in error or on the part of the person who through error was not named as an inventor, the inventorship of the nonprovisional application may be amended to name only the actual inventor or inventors. Amendment of the inventorship requires:


(2) A statement from each person being added as an inventor and from each person being deleted as an inventor that the error in inventorship occurred without deceptive intention on his or her part;


------------


Basically, the person that lied has to give a statement that they did not do it by deception. That will let the application or patent remain valid.



IF they lied and admit it, they are guilty of a felony subject to fines and jail time AND the patent or application are null and void and the invention goes into the public domain.


Bottom line, outside of the court, you have the situation that they have to admit they aren't the inventor and it wasn't deception otherwise they admit they are a felon. lol Otherwise, the patent office WILL NOT change or nullify the patent. So yes, it is on the liar to admit they aren't the inventor. This is OUTSIDE and BEFORE the court of course IF you file suit.



It is possible that if there is a strong enough case and this was sent to the commissioner at the patent office during patent pending time that they might not issue the patent for obvious fraud. I don't know from experience if this will work but it warrants investigation.


Your opinions on what you should be able to do are about all of this are idealistic. I had idealistic expectations too of what should happen but the law doesn't work on idealism or any kind of morals - it works on sly manipulation of the language and general ignorance of this so that common people like myself have to spend money to pay a lawyer to go to bat for us and we don't know if they are even batting in our favor.


And, you have to remember, this is not the USA that there used to be long ago before any of us were born. We're under fascist rule of the corporations and they have created laws to benefit them and undermine the people. Until there is some serious revolution, this is how it is.

[Farmhand]

Aaron I think we are just looking at this from different angles is all. I am only
looking at it from the point of view that If I invented something and publicly
disclosed it, then someone tried to enforce a patent infringement me I could
defend my right to use and build/sell the invention.

I think you are looking at it from the point of view that if someone filed for
patent on an invention you invented you would try to stop it.

My outlook would be to ignore the patent and do as I wish, because I could
prove both the conception and building of the device as well as the public
disclosure by me the inventor.

I don't live in the U.S. but our system overall is just as corrupt and run by the
same bunch of criminals. I try not to agree to their rules. But if i was forced to
defend myself I would do it.

I can see your point, but someone actually getting a patent on my invention
would not bother me too much. If they tried to stop me using or selling my
own invention I would fight like hell if I had the proof to back me.

The first to file thing is in my opinion meant to be for inventors who invent the
same thing at the same time without knowing of the other one or even if they
did know of the other one but not the specifics of the invention to know it is
the same thing, the first to file if the two inventions are the same gets the
patent, thus saving any argument about who invented it first. They must still
have invented it to be not fraudulent in my opinion. And if found in court to
have knowingly filed for and received a patent by fraudulent means ie, not
having invented the device, the patent should be nullified or dismissed or
whatever.

Cheers

[Savvypro]

Here is the thing that everyone must understand. It DOES NOT MATTER what patent, copyright or any other protection you have. If you do not have the money to enforce your protection, IT DOES NOT MATTER. The little dog that beats the big dog in court on something like this is an EXCEPTION - it is NOT the rule. And if you don't have the money, you can't do anything!

Totally agree, however, even though you don't need to file anything at the copyright office. Doing so, gives you extra evidence that can be used, to prove prior art and or to prove that people claiming to have invented something - didn't actually do so.

For example: I could easily put up a website, or add a page to an existing one that shows that I came up with everything in the water spark plug thread - in say May 2000. But that doesn't actually prove I actually did so. Things on the Internet can be easily manipulated.

An alternative to the copyright office could be to use a Notary, to prove a time line. They stamp the document as being produced before them on whatever date they stamp it.

If you file a copy of that document at the copyright office, you then get a second point in a prior art time line (you could get the Notary to file it for you). The copyright can then be licensed.

My point being: the more third party evidence you have (from trusted* sources like a Government department and a Notary), the better your chances will be.

* in the eyes of another Government department or a Judge etc.

[Cherryman]

Time.. time... time...

Just thinking out loud:

Let's say I was an evil business crook, reading these fora's.

Now I did read the stuff about the heater and followed it closely, because you never know. Suddenly some users start silencing and start talking about patent and open sourcing. Will it work? I don't know, but hey.. it's word a gamble of a few bucks.

This is even not necessary, but it helps: I copy the basic information, make my own drawing ( copied of course from the forum) , I even bought a Ikea bottle, cut it up and make a few pictures and a video.

Now I rush to my lawyer and have him to file a provisional patent application. The much cheaper provisional patent provides one year of protection, allows patent pending status, and does not require writing claims. However, before one year expires you must file a non-provisional patent application for your invention. During this year, you can promote and sell your product and hopefully raise the money for a non-provisional patent. Many successful experts advocate provisional patents and other alternatives as a better path to follow.

So here I am, Just some forum reading, and now I have the rights, can even make already profits and have a year to come up with better strategies, or sell it to a major company.

Goodby Inventors.

Now I'm not a business man... But:

In other words, Chet, whatever you do, DO something now, not tomorrow.


PS. I once heard you can go to a notary public, solicitor and let them DATE STAMP your papers. It is not a patent, but gives you something for not so much money.

[daemonbart]

Good input!

Someone could easy do as you describe! This would maybe work in some cases also?

The biggest problem for this guy, I think, should be to have a working product to sell?

Inventor could in some cases change his product so he to could have a patent and start selling an OU pruduct, the other guy probably dont have OU?

So I think it is a big risk the first guy only loose money?

Kind rgds D

Just thinking out loud:

Let's say I was an evil business crook, reading these fora's.

Now I did read the stuff about the heater and followed it closely, because you never know. Suddenly some users start silencing and start talking about patent and open sourcing. Will it work? I don't know, but hey.. it's word a gamble of a few bucks.

This is even not necessary, but it helps: I copy the basic information, make my own drawing ( copied of course from the forum) , I even bought a Ikea bottle, cut it up and make a few pictures and a video.

Now I rush to my lawyer and have him to file a provisional patent application. The much cheaper provisional patent provides one year of protection, allows patent pending status, and does not require writing claims. However, before one year expires you must file a non-provisional patent application for your invention. During this year, you can promote and sell your product and hopefully raise the money for a non-provisional patent. Many successful experts advocate provisional patents and other alternatives as a better path to follow.

So here I am, Just some forum reading, and now I have the rights, can even make already profits and have a year to come up with better strategies, or sell it to a major company.

Goodby Inventors.

Now I'm not a business man... But:

In other words, Chet, whatever you do, DO something now, not tomorrow.


PS. I once heard you can go to a notary public, solicitor and let them DATE STAMP your papers. It is not a patent, but gives you something for not so much money.

[Cherryman]

Someone could easy do as you describe! This would maybe work in some cases also?

The biggest problem for this guy, I think, should be to have a working product to sell?

Inventor could in some cases change his product so he to could have a patent and start selling an OU product, the other guy probably dont have OU?

So I think it is a big risk the first guy only loose money?

Kind rgds D

To sell you indeed need a product that works (or look likes it works ;- )
But you do not have to sell, you just bought a year in time and the first rights! Or you sell the concept to some big company for $$

Besides: If you claim OU you never get a patent, so you claim an efficient water heater. And we all have seen how easy that is. And that is sellable.

So for example:

You file: "Apparatus to efficiently heat water, by conducting electricity between two shells, resonating in harmony, extracting heat and byproducts."

No numbers, no OU claims. You can show a working product, and have a year to work out more details. Heck, you can even sell the heater, as long as you do not claim OU.

The patent office does not have an all purpose lab, and even if they do, you can show them a "working" prototype (Just look at my vids) and you are still not lying.

When the "other" guy comes out and have real OU, but if his apparatus is on the same principle, he did not "invent" a new product, no you just claim he discovered a new use for your product..

Anyway, i'm not a lawyer, so do not use my hypothetical models or at own risk ; -)

But again: If this is real OU, forget patenting, forgot about the history of every OU claiming inventor?

A real OU device is a risk for:

- Power, as long as the government can shut of the peoples power, gasoline etc they control you for a large part
- Taxation ; energy is heavy income for governments
- Big (oil) companies)
- Terrorism ( imagine free energy in terrorist hands)
- Army (never refuel , this way Hitler could have taken Russia)
- Big food ( And food is power as well ) Imagine everyone having it's own heated and light powered in- or outdoor greenhouse
- Etc
- Etc

So you guys really think you can patent, protect or else OU ??
And if so, you think you are gonna win from big money, Chinese, DOD, army , etc?

OU has so many red flags for the establishment, it would look like a North Korean party gathering,

Only way IMHO: Spread the word as fast as you can, to as many people as you can.

So DB Hurry!

Peace, C'man


Edit: Now i brought the idea to the crooks, I guess you will have untill monday, oops....

[RAMSET]

The purpose of this discussion

C'Man
The intent is to make a better world ...not a bigger bank acc't !

It would seem the patent process will amount to no more than a slippery slope.

I have to say I am a bit confused by Aarons actual life experience and the info presented By FarmHand?

If What Farmhand has presented is true [from the minutes in the law] .I personally would take his position!
I believe Rob {EvolvingApe] has done the same?
Prove its yours [meeting that "Proof" protocol] and go about your business?

The bad Guys will be vetted in a heartbeat as the Thieves they are?

Naive ???
Perhaps....Why would we ever need a patent office if this were the case?

Chet