jeff: you've got a few things mixed up re ipr's; don't worry though, even the lawyers get confused sometimes. :0)
a quick primer:
you can "patent" machines, formulas, devices, processes, plants, certain biotech discoveries, etc. to get a patent, the idea has to be useful, novel, and unobvious. the first test was devised to get rid of perpetual motion machines; the pto (patent and trademark office) said they wdn't be useful even if discovered. (not sure that makes sense to me, but usefulness is the easy test.)
"novel" means the idea can't have been published anywhere in the world before you file (the u.s. has a one-year grace period in certain circumstances, but most of the rest of the world doesn't follow that principle). i was working w/ some inventors, who presumably knew the state of the art when they applied for their patent, but the pto examiner knocked out some of their claims b/c a magazine published only in russian was discovered to ahve discussed the ideas before they filed.
"unobvious" means that someone of "ordinary skill in the art" wouldn't have thought of the idea anyway.
needless to say that's a pretty subjective test. how it plays out depends on the facts in every case (and perhaps how the judge is feeling that day :) ).
let's say you come up with the idea of a stool, ie. a 3-legged chair, and you get a patent. someone else may come up with the idea a 4th leg to make a chair. if it wasn't obvious and it was novel, the second fellow gets a patent too. however, he can't practice his invention w/t infringing on your patent. you, of course, can't add the 4th leg w/t a license from the later inventor. this is why you get cross-licenses and other deals. but it's a good idea to allow others to patent improvements.
it may be considered harder in some respects to come up with the idea for the "mousetrap" (i.e., the stool) than an "improvement" to the mousetrap (the 4th leg), but which is more valuable is hard to say w/t the facts in each instance.
the pto is recognizing, i think, both in the area of biotech and software that some of the early patents may have been too broad for a number of reasons, and, from what i understand, they're not being as generous now. of course a decision by the pto merely is that a patent is presumptively valid. it doesn't mean it can't be challenged on one of the grounds i mentioned. it doesn't even mean that the pto didn't give an ok to a patent that infringes another existing patent.
"trademarks" are a consumer protection device and identify the origin of goods/services (it's a servicemark in the latter case). when you see the "golden arches," you know how the french fries are going to taste. when you see "bridgestone," you know how good the tires are. (i use the last example to show what can happen to a trademark. remember the tylenol scare and how j&j quickly contained the damage.)
you can't trademark a merely descriptive or generic name, e.g., "quickcopy" for a copy shop, but you cd use "kinko's" which didn't mean anything until it came to be associated w/ a copy shop.
"copyrights" protect the tangible expression of an idea, but not the idea itself. that's why leonard bernstein could write "west side story" w/t infringing on shakespeare's "r&j" (i'm ignoring the fact that the copyright on r&j wd have run out long ago). so you can copyright software, but not the idea behind it. (of course, depending on the circumstances, you might be able to patent the software b/c patents can protect ideas.)
turning to your examples of folks enforcing their "patents":
mattel hauled a publisher into court b/c it was infringing on the "barbie" trademark, which includes barbie's distinctive shape (remember the golden arches?).
nbc trademarked its chimes; just like harley davidson tried to trademark its roar. several companies have trademarked their goods by color, e.g., "pink" (panther) insulation.
athletes trying to patent or trademark their moves i don't think will get far, but we'll see.
if david brinkley paid someone off b/c he used a book title before brinkley, brinkley had a bad lawyer. you cannot copyright a book title. you can use "gone w/ the wind" w/t worrying about margaret mitchell's estate. of course if your book resembled a story about the south and the civil war and had similar characters and the plot was similar, etc., you might be in trouble.
to answer some of your questions:
1. i don't know how broad gmst's patents are, but i hope they're very broad.
2. therefore i can't tell how they might be affected by an infringement suit.
3. i don't know when the rights of the public trump those of the inventor. on rare occasions, the govt can force an inventor to license but it's almost unheard of.
haven't got time to tell the whole story, but, ignoring why i think the bill of rights was a mistake, the only time the word "right" is mentioned in the constitution (all the rest of it is process, unlike any other written constitutions, which mistakenly believe you can "guarantee" the right to a job, healthcare, etc.) is art. 1, section 8, where it says that "congress shall for limited periods of time protect the rights of authors and inventors to their respective writings and discoveries."
think about it. over 200 years ago the men who counted their wealth in slaves, wheatfields, and specie said we're only going to protect intellectual property. that, imho, is one of the reasons the u.s. is leading the charge in this new revolution. china barely recognizes this fundamental right of ours.
so, to touch on questions 4/5, while it ain't perfect, our system which allows intellectual property to be protected
isn't all bad. yes, it could stand some reforms, but the burden of proof sd be on those who want to change it. it's been a blessing for the most part b/c it gives an incentive to succeed and has thereby created wealth for many: shareholders, employees, and other thrd party companies and individuals, e.g., suppliers.
you say that tv used to be free and now you pay for cable. well c'mon, where is your constitutional right to free tv. if you don't want cable, you're free not to choose it. and ask yourself, isn't better to have tv and cable than just cable? part of the problem, imho, is that the airwaves are treated like free goods and therefore aren't used efficiently. one thing to watch in the next few years is the spectrum of airwaves congresss a long time ago allocated to the education sector. that part of the spectrum is becoming valuable but it's not clear who owns it. again, imho, i think the fcc has held up progress, but that's too long to go into.
i don't disagree entirely with jqadam's idea that "the preservation of the means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country," but the question is how to get it to them. it'd be cheaper to subsidize their tv habits than to deprive/prevent those that can create wealth from the spectrum.
and ask yourself, how can you best protect the economically disadvantaged? by creating wealth. for example, it's the wealthy countries that can do someting about pollution. during the cold war, the communists were lauded by many in the west for their protection of the environment. when the wall fell we learned how many rivers, etc., were killed in the effort to produce.
the problem w/ gore is that his programs, by and large, will tend to kill the goose. you want the safety net, but you also want to have more gnp per capita (again subject to society's choice re pollution etc.) the point is that a poor society cannot choose, except at a significant price, less pollution. and, of course, if you look at immigration trends, many people are willing to be poor here rather than stay in their homelands (do you detect a mass exodus for india? haiti? cuba?). the rationale of the emigres is impeccable. it's the rich (not all of course) that want to want to pull up the ladder rather than allow others to try to. (i'm starting to rant, so i'll stop. :0) )
i will only say that i distrust any attempt to put "society's" goals ahead of my own. i don't know what society's goals are. i believe w/ adam smith that despite the fact that it's not the baker's benevolence i rely on to get my bread, if i allow him to compete to make bread for me, we're both better off. yes, i want the world a better place for my grandchildren (assuming i have any) and that colors some of the decisions i make. but i think we better off summing all the individual choices rather than having gore (or bush for that matter) make them for us. there sd be less power in d.c. and albany (to name the two capitals that affect me most).
i'm also hopeful for the gmst longs.
best, red jinn |
