> From: Carl Oppedahl <carl(a)oppedahl.com>
> Date: March 16, 2013, 9:31:46 AM PDT
> To: "ipprofs(a)listserv.law.unh.edu" <ipprofs(a)listserv.law.unh.edu>
> Subject: [Ipprofs] FirstToDisclose.org
>
> My reaction as a patent practitioner is that this web site, despite the good intentions of its creators, is likely to do far more harm than good.
>
> The paradigm user is the inventor who gets the impression that he or she (a) can publish and (b) can now relax and postpone the pesky business of filing a patent application for almost a year (a so-called one-year "grace period"). As another poster (Ted Sichelman) points out, ill-advised reliance upon this one-year grace period can lead to the problem of a third party reading the publication and filing a prompt patent application on slight improvements thereof.
>
> But it is likely to be far worse than that for some inventors, due to a different problem, namely the irrevocable loss of any hope of patent protection in most countries of the world outside of the US. The great majority of countries around the world have a grace period that is not one year, but instead is negative one day. By this I mean that if the inventor publishes on a Monday and contemplates filing outside of the US on the subsequent Tuesday in a given country, it is (depending on which country we are talking about) too late to file the patent application and all possible patent rights will have been lost.
>
> A defender of this "disclose early and file your patent application later" approach might say "oh, don't you realize, the inventors that this approach is intended for are the inventors who won't ever want or need patent protection outside of the US, but will find their business needs more than fully served by US patent protection alone."
>
> Inventors who might imagine that they fall into this category are many, but most are mistaken.
>
> Example 1. The inventor who may eventually seek an investor to help commercialize the invention. The first or second due diligence question from the mouth of a potential investor will be "did you get your patent application filed chronologically prior to your first public disclosure?" The answer had better be "yes" or the potential investor will likely drop the inquiry and go find some other inventor who was not so unwise. Only if the answer is "yes" will the potential investor feel that foreign patent rights are still potentially available. The inventor who says "see how smart I was, I publicly disclosed my invention in a highly visible way that is easy to find, almost a year before filing my patent application" will be shown the door very quickly. Indeed the potential investor who sees that the inventor got this part wrong will figure that the inventor probably also got other things wrong that are not as easy to sniff out.
>
> Example 2. The inventor who looks to get rich by selling or licensing the invention. Suppose it's a better way to make paper clips. The would-be licensee who catches on that all foreign rights were lost will probably say "thank you for showing me a better way to make paper clips" and will set up the paper clip factory in Mexico or wherever.
>
> Yes I am aware that there are a handful of countries outside of the US where you get a very limited grace period (often much shorter than a year) for your own disclosures.
>
> The creators of this web site could do a great service to the inventing community if they wish. They could develop and post a detailed survey of the 180 or so countries of the world that have patent offices, listing for each country the nature and duration of the filing-after-publication grace period if any. Potential users of the publication feature of the web site would then have a clearer sense of how many countries' patent rights would be irrevocably lost by such publication and the relatively few countries' patent rights that might remain in prospect despite such publication.
>
An interesting development to follow for those interested in fundamental patent reform.
> Clinician Colleagues:
>
> I wanted to let you folks know that a team of students from the Brooklyn Law Incubator & Policy ("BLIP") Clinic and I have launched www.firsttodisclose.org today (in advance of America's move tomorrow,March 16, from a “first-to-invent” to a “first-to-file” patent regime). I’ve posted the announcement to the www.BLIPclinic.org blog.
>
> Our objective is to provide a platform for small innovators to post their ideas for the world before a well-heeled enterprise can file a patent on the same idea with the Patent Office. One consequence of the move from “first to invent” to “first to file” is that it will likely be difficult for small inventors to beat larger enterprises to the patent office with their innovations. First-to-Disclose is an effort to counterbalance the burden imposed on small inventors.
>
> We’ll likely get some minor attention from the patent law community, but I hope the positive ramifications will resonate for years.
>
> Anyway, I thought you folks might appreciate it.
>
> All my best,
> Jonathan
>
> Prof. Jonathan Askin
> Founder/Director Brooklyn Law Incubator & Policy Clinic
> Brooklyn Law School
> One Boerum Place Third Floor
> Brooklyn,NY 11201
>
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To the Sudo Kopimist congregation -
This week fort Friday Filosophy we will be having something from the Athenian Deli on Franklin off of Sudo Square. (http://www.atheniandeli.com/). Since last week's email got lost in the abyss of the mail server switch, I am also including last week's email as well below.
Following up on last week's discussion of manufacturing and consumer culture, we will be picking up the thread focusing on Planned Obsolescence. The excerpt below is from Giles Slade, Made to Break: Technology and Obsolescence in America (2006) pgs. 23-24. http://books.google.com/books?isbn=0674022033.
A bit of context for the quote - Slade describes the break-through in shifting cultural norms about disposable products with the popularity of sanitary napkins for women, in the inter-war period when women were exercising more control over family budgets. Slade digs up fascinating research on the explicit Anti-Thrift campaigns after World War I, when American advertisers linked together conspicuous consumption for social status and disposable products as patriotic support of the American economy.
> Anti-Thrift Campaigns
>
> Encouraged by the repetitive consumption of disposable paper products for both men and women, paper manufacturers developed toilet paper, paper cups, paper towels, and paper straws (rendering rye stalks obsolete). Gradually, the popularity of disposable personal products, purchased and used in the name of hygiene and health, caused Americans to generalize their throwaway habits to other goods. This was a significant development in the history of product obsolesence. As a throwaway culture emerged, an ethic of durability, of thrift, of what the consumer historian Susan Strasser calls "the stewardship of objects," was slowly modified. At first, people just threw their paper products into the fire. But as the disposable trend continued, it became culturally permissible to throw away objects that could not simply and conveniently be consumed by flames.
----
Friday Filosophy 3/8: Stuxnet & the Problem of Evil
Dear Sudo folk.
The spanakopita are just about ready to take out of the oven - ricotta & cheese (sorry, vegans). My daughter, Eva, will be coming today (home with a bit of a fever), but likely not participating in the discussion. She wants to be an epidemiologist, like her mom, and may chime in about viruses - which apparently kind of look like nasty little monsters and have crooked teeth.
We will be picking up the subject left off last time of the communicative value of executable virus software with a real-life example about which to ruminate. Stuxnet (see http://www.stuxnet.net/) will be the focus, with an emphasis on the implications for the techno-social role of programmers, and the future of cyberwarfare.
sent from eddan.com
Dear Kopimists and the People who Love Them.
For the featured Filo delicacy for Friday Filosophy, we will have potato burekas.
I propose we talk about the difference between source code, object code, and executable code in regards to 1st Amendment protection. In other words, when is code speech and when is it a speech-act subject to less legal protection?
Below is an excerpt from an essay by Lee Tien, a brilliant EFF attorney for more than a decade, on Software as Speech (2000). These two paragraphs are in the section: Viruses and other "dangerous" software.
Of course, as always, we can talk about whatever else. Such as conscience and the unconscionable, perhaps.
Lee Tien, Publishing Software as a Speech Act, Vol. 15 Berkeley Tech. Law Journal (2000)
http://www.law.berkeley.edu/journals/btlj/articles/vol15/tien/tien.html
> Let’s return to the virus hypothetical.192 The main concern lies in the fact that the software may be “diverted” toward unlawful purposes, regardless of the speaker’s intent. This concern is, however, not unique to software. It also applies to other types of information usable for mischief or harassment, whether highly technical like information about nuclear weapons, or utterly mundane like a person’s name, address or telephone number.
> Even if the virus author merely posts the source code and fails to release it in active form, the issue remains whether the posting was done with an intent to communicate. If the author claims that she intended it to communicate, we would need to examine the context to decide the plausibility of that claim. There will often be a plausible claim. There is no question that people study viruses and other dangerous software in order to prevent or relieve harm.193 One way to control a virus is to publish its source code so that systems operators can disable or protect against it. Communicating a virus’ source code as part of such an effort qualifies as a speech act because the publisher intends to communicate how the virus works in a conventional way. In fact, one could imagine entire journals or Internet sites devoted to viruses and other dangerous software.194 When such publications aim to alert the world to these dangers, their intent is clearly communicative.
sent from eddan.com
