That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 13:16:57 UTC 2002

Niall Douglas wrote:
> On 11 Dec 2002 at 13:22, Arnoud Galactus Engelfriet wrote:
> > Well, I think for infringement it would be sufficient if your program
> > carried out the same steps as the patented technique. But yes, usually
> > this means there is some degree of similarity.
> The acid test in my view of whether a patent should apply is if there 
> is a striking resemblence. 

I agree. That's where the claims come in: they define the
invention, and if your device matches the claims, it infringes.
If it does not match the claims, it does not infringe (ignoring
provisions on "equivalence" for a second).

> So for example, if Dyson patented his 
> vortex vacumn cleaner then nothing should prohibit anyone else using 
> a vortex in their vacumn cleaner so long as it's substantially 
> different from the way he employed his vortex. 

That's correct, *BUT* you have to take a look at the claims to
see in which way he used his vortex. It does not matter which
variation he sells. 

If the claim says "characterized by means for producing a vortex
in a chamber connected to the vacuum cleaner hose", then any
vortex-based cleaner would infringe. Do you agree with this

> I know this isn't the 
> case in reality, but it should be given the founding principles of 
> the patent system.

You should not confuse particular embodiments as sold by the
inventor with what the actual invention is. In Dyson's case,
as I understand it the invention *is* that you should create
a vortex to suck up dirt. So he should get a patent on that
invention, because that is his contribution to society: "Hey
people, you should cause a vortex in your cleaners, it sucks
much better that way!"

> > This is actually exactly what happens when somebody comes up with a
> > new hardware widget. In the early 1900s, the German company Singer had
> > the patent on the sewing machine. Before that, there were several
> > patents supposedly covering the steam engine, and development of
> > steam-based engines didn't take off until the courts determined which
> > one was the steam engine patent. In 1907 an American invented the
> > supermarket and patented it. The transistor, in all its shapes and
> > forms was patented, and nobody could use a transistor without paying
> > royalties to Bell. There is still a big fight going on about who owns
> > the patent to the semiconductor.
> These are all good examples of what is bad for society. Patents 
> should be there to encourage entrepreneurship because *that* is good 
> for society. 

How can the inventor compete with people who copy his invention?

> If one were to go with complete bans of all competing 
> devices (for simplicity purposes), then a variable length maximum 
> duration should be in effect. For software, I think three years - for 
> something like vacumn cleaners, possibly ten. Twenty years for 
> everything is too much.

That is quite possible. The reward should be sufficient to
encourage innovation, but not so much that it outweighs the
benefits to society.

> > Encouraging competition and stimulate rip-offs, yes. If a patent
> > cannot protect you against differing implementations of your
> > invention, it is of little use. Other laws are already available to
> > protect against people making copies of your device. The whole idea
> > behind patent law is to give you protection for your technical idea.
> I wasn't aware that there is any other law preventing say Dyson 
> producing his vacumn cleaner and then Hoover replicating the exact 
> design but sold for fifty euro less? I had thought patents were the 
> only thing preventing direct copies?

The legal term is "slavish copying". It generally only applies
if it's basically a clone in function & form. You could maybe
also claim copyright or model/design protection against people
who copy your device. Unfair competition may also apply.

Patents are much broader. They protect against copying technical
ideas, even if the implementation is different. And then a
competitor is forced to come up with a really different way of
solving the problem. This gives him a different idea to patent,
and then society has two ways of solving the problem.

> In my view, there should always be scope for competitor improvement. 
> The reward still remains high enough for the inventor to keep them 
> interested.

I think a better solution is that if you come up with an
improvement, you should patent that as well. And that should
give you a right to demand a license from the original inventor.
This is called 'compulsory licensing'. 

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

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