It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith.

--U.S. Supreme Court, Atlantic Works vs. Brady, 1882

(I found the above here.)

Basic Patent Law for Programmers

            Posted by Roblimo on Tuesday October 19, @12:30PM EDT
            from the what-you-didn't-know-you-needed-to-know dept.
            Steven Young writes "As an intellectual property attorney,
            and a regular Slashdot reader, I
            would like to share a few of my thoughts regarding patent
            issues, especially as they relate
            to programmers. Although patents (for better or worse) are
            playing an ever-expanding role
            in the software field, many programmers do not know much
            about them." (Full story below.) 

            Independent Invention is Not a Defense to a Claim of
            Patent Infringement
            - by Steven Young 

            People sometimes get confused about whether or not
            independent invention (i.e. inventing something
            without reference to the work of an earlier inventor)
            protects them from patent liability. This confusion is
            likely due to their familiarity with copyright law. Under
            copyright law, you only have liability to a copyright
            owner if you actually copy their copyrighted work. If you
            create a work of your own without reference to
            their copyrighted work, you are not liable to them for
            copyright infringement, even if your work closely
            resembles theirs. 

            Liability for patent infringement, however, does not
            depend on your having copied the work of another.
            You can be held liable for patent infringement if you have
            made, used, sold or imported, without a license,
            something that is claimed by a valid patent owned by
            another. Your lack of knowledge about the work (or
            patents) of another is irrelevant to the question of
            whether you are liable for infringing that person's
            patent. 

            Because you cannot realistically compare your own creation
            against the millions of existing patents, or
            even against the thousands that might be in the same
            field, there is no way to completely shield yourself
            from liability for patent infringement. Even if you could
            compare your work to those existing patents,
            there would be ever present danger from those patents that
            might issue next Tuesday. I see this potential
            "gotcha" as one of the most problematic aspects of current
            patent law. 

            The legal fiction that supposedly justifies this result is
            that a patentee (i.e. patent owner) is given this
            very strong right in exchange for disclosing an invention
            to the public. Upon the publication of a patent,
            everyone is constructively (i.e. by legal fiction) put on
            notice that they are no longer free to do the
            particular things claimed by the patent. As I mentioned,
            however, there are millions of patents currently in
            effect -- no one is really aware of the scope of coverage
            of any sizeable portion of them. Although there
            might be some individuals who are aware of the general
            state of patent coverage in particular niches,
            even they would be exposed to potential liability for
            those patent claims they are not aware of. 

            To compound the silliness of all this, the courts have
            held that no one but a patent attorney can really
            know what the scope of coverage of a patent claim
            is. Therefore, even the theoretical justification for
            absolute liability in patent law is not applicable to
            individuals who cannot afford to keep a small army of
            patent attorneys on retainer. 

            Software patents (of one kind or another) are valid in
            most countries of the world (even those that
            officially do not grant software patents). 

            In the U.S. software is clearly patentable. What many
            people are unaware of, however, is that, for
            practical purposes, software has been patentable in the
            U.S., and most other countries of the world, for
            quite some time. The current debate about software patents
            in certain non-U.S. jurisdictions is a matter
            of form over substance. 

            While you may not be able to patent "a computer program
            that performs the steps of X, Y and Z" in some
            countries, you can generally claim something like, a
            computer apparatus conle for patent infringement, they are
            prohibited from continuing the
            infringing activity, and they are ordered to pay the
            patent holder damages equal to a reasonable royalty for
            the use of the patent, or the patentee's lost profits. The
            law permits judges to increase the monetary
            damages by up to three times, however, if there is a
            finding of willful infringement, meaning that the
            infringer had knowledge of the patent before engaging in
            the actions which constitute infringement. 

            If someone brings a patent to your attention, and you
            decide that you are safe because it does not cover
            what you are doing, you are entering into a legally shaky
            area. The Court of Appeals for the Federal
            Circuit (effectively the final word on patent law, since
            the Supreme Court rarely takes patent cases) has
            ruled that anyone who is not a patent attornd that it
            would be unreasonable for you to determine that a
            particular patent is not applicable to
            what you are doing unless you first get a legal opinion
            from a patent attorney. Because, as a matter of
            law, you couldn't really have believed that you understood
            the patent (yes, our federal courts can be quite
            condescending), you will likely be found liable for triple
            damages if it turns out that you were wrong, and
            that you really are infringing the patent. 

            Because of this, lawyers routinely advise their clients to
            avoid reading patents in areas they are working
            in. The danger posed by the willful infringement doctrine
            is seen as outweighing any benefit that can be
            gained from reading patents. This state of affairs, of
            course, negates even the theoretical benefit of the
            patent system, that the public at large learns about new
            technology once it is patented. As it stands, the
            people who should be learning from patents in any given
            field are the same people who stand to lose the
            most if they dare to take a peek. 

            The standard of invention for patents is much thinner than
            most people believe. 

            When a new patent is announced, one of the most common
            criticisms is that the patent is invalid because
            the patented invention is merely an obvious extension of
            something that is already done. Theoretically,
            this is a valid criticism. Two requirements for a valid
            patent are that it is novel (the inventor was the first
            (sort of) to invent that particular thing or method), and
            non-obviousness (that the invention is not an
            obvious extension of something that is already known). 

            In practice, the level of inventiveness required for
            patentability is vanishingly small. It is relatively easy
            to show that a patent claim is invalid for a lack of
            novelty: you simply find something in the prior art (prior
            art is typically something that was published more than a
            year before the patent was applied for, although
            there are many exceptions) that includes all of the
            elements of the claim. Showing that a patent claim is
            invalid because of obviousness is considerably more
            difficult. First, you have to find examples in the prior
            art that, when taken together, add up to the patented
            invention. That is not enough, however. You also
            have to find something in the prior art that suggests
            putting these prior art pieces together. That is often
            difficult to find, even where a modification does seem
            obvious. 

            During the examination of patent applications by the
            Patent Office, many claims slip through that are
            clearly obvious. This can happen for a number of
            reasons. One is that the patent examiner has not found
            any prior art that can be combined to give all of the
            elements of the claimed invention. Another is that the
            patent examiner has not found any suggestion to combine
            prior art that has been found. Still another
            reason is psychological: a rejection on obviousness
            grounds is rarely clear-cut, and some patent
            examiners are uncomfortable making such an inherently
            subjective call. So, when a claim to an obvious
            invention makes it through the Patent Office, what
            happens? Generally, the validity of the patent is only
            challenged by a defendant when the patent owner sues for
            infringement (assuming the defendant has
            enough money for a defense). In court, however, much
            deference is given to the judgment of the patent
            examiner who originally allowed the claims, and
            invalidating an issued patent is a very high hurdle.
            Unless the obviousness is extraordinarily clear (and it
            rarely is), the patent will not be invalidated on
            grounds of obviousness, and the patentee will be able to
            stop others from using the claimed invention. 

            The consequence of this is that very little inventiveness
            is necessary in order for a patent to be valid. As
            a rule of thumb, it is probably safe to assume that every
            trifling modification, no matter how small, will be
            patentable by someone -- as long as that someone gets to
            the patent office in time. In practice, there is a
            strong possibility that any given patent will be ruled
            valid, unless you can find something in the prior art
            that is exactly what is claimed in the patent. 

            Patents are national in scope, however... 

            A patent offers exclusive rights to the owner of the
            patent only within the country that granted the patent.
            International treaties, however, have made it relatively
            easy to get almost identical patents issued in
            many countries. While each country independently examines
            each application, patents that are allowed in
            one country generally get allowed in other countries as
            well. The existence of a U.S. patent suggests the
            possible existence of corresponding non-U.S. patents (and
            vice versa). 

            The U.S. is one of the only major countries that does not
            publish patent applications until they are issued
            as patents. In most other nations, patent applications are
            published 18 months after filing. This
            publication gives the public some notice of what is coming
            down the pike. Although the U.S. does not
            publish, many U.S. companies routinely file foreign
            counterparts to their U.S. patent applications,
            typically using the system put in place by the Patent
            Cooperation Treaty (PCT). The PCT provides for
            publication 18 months after the patent was first filed,
            even if that filing was in the U.S. As a result, even
            though the U.S. does not publish patents that are being
            examined, searching through international patent
            publications can tip you off as to what is currently being
            examined in the U.S. 

            Determining whether a patent is valid and enforceable is a
            non-trivial exercise. 

            Determining whether a patent is valid and can be enforced
            is very complicated. Some of the reasons a
            patent might not be valid or enforceable include: 

                   (i) someone else invented the same thing first; 
                   (ii) the invention was described in a publication
                   more than a year before the patent application
                   was filed; 
                   (iii) the invention was offered for sale (by
                   anyone) more than a year before the patent
                   application
                   was filed; 
                   (iv) less than all of the actual inventors were
                   named in the patent application; 
                   (v) the inventor misled the patent examiner during
                   examination of the application; 
                   (vi) the inventor failed to disclose material prior
                   art to the patent examiner during examination;
                   and 
                   (vii) the patent owner has misused the patent (the
                   "misuse" doctrine is similar to antitrust). 

            This list is not nearly exhaustive, and each point on it
            is qualified by many exceptions. I provide this
            merely as a suggestion for ways to go about trying to get
            a patent declared invalid or unenforceable. If
            you intend to invalidate a patent, you will need to
            consult a patent attorney. 

            Disclaimer My remarks here are intended to be of general
            use, but (of course) they should not be taken as
            legal advice -- if you have questions about any particular
            patent issues, you should see your friendly
            neighborhood patent attorney.