JPEG Extinct? Send as input to Innovation Strategy!!

[Russell McOrmond]

On Fri, 26 Jul 2002, Tom Trottier wrote (in canada-dmca-opponents):

> For Your Information - the problem with patented "Standards"

> The ISO may withdraw the JPEG image format as a formal standard 
> because of a dispute over royalties. See 
> <http://theregister.co.uk/content/4/26339.html> for further 
> information.


Please remember: The GoC is looking for input on their Innovation
Strategy.

Notes at: http://www.flora.org/dmca/forum/940


  Patent and copyright policy are promoted as incentives towards
innovation.  This makes any commentary on these policies very relevant to
any input to the Innovation Strategy!

  Even if you want to narrow your input to saying "Please read my
submission to the copyright reform, and the following comments on patent
policy", that is still worth submitting!!

  There is also a survey that can be filled out if you don't want to write
it as a document, although it would be useful to the members of this forum
if you copied us here.  http://www.flora.org/dmca/forum/838



  My own submission (In extreme draft at
http://www.flora.ca/russell/drafts/innovation.html ) will call upon the
government to question the assumptions behind patents and copyright as
they relate to incentives for innovation.  They need to explore the
considerable risks to real innovation that improper handling of these
policies represent!


Here is what I have so far on patents - feedback would be appreciated:

---cut---

  Patents
  
   The most critical problem with patent policy is that the fundamental
   tests are being ignored. We are also witnessing the addition of new
   patent types such as software and business model patents where the
   creation of the monopoly does not serve the public.
   
   There are patents registered with the US patent office which obviously
   should never have been accepted, with the most often referenced being
   patent number 5,443,036 , " Method of exercising a cat" (Google
   Search). As recently as March 26, 2002 we see patent number 6,360,693
   , "Animal toy" (Link to USPTO) , which appears to cover a wooden stick
   or tree branch used for an animal to play with.
   
   To suggest that the patent system has become a joke is to forget that
   this extremely flawed system receives the full force of national and
   international legal protection. Invalid patents are a considerable
   threat to any business, especially SME's who cannot afford the legal
   fees to fight invalid patents.
   
   One needs to look no further than the Amazon.com "1-click" patent
   (See: http://www.noamazon.com/) to see the pains that even a large
   corporation like Barnes & Noble must go through in order to protect
   itself against an invalid patent. This battle has included
   considerable public outcry, with people like myself and other
   organizations requesting all citizens boycott Amazon (See:
   http://www.gnu.org/philosophy/amazon.html )
   
   Another example is the controvercy around the JPEG patent claims made
   by Forgent Networks Inc. The JPEG working group has released a
   document on their website called "Concerning recent patent claims"
   which includes:
   
     As a response to this, the JPEG committee will be collecting,
     through its new web site (to be launched shortly) a substantial
     repository of prior art and it invites submissions, particularly
     where the content may be applied to claims of intellectual
     property. A note will be placed on the web site shortly explaining
     the process for such submissions.
     ...
     It has always been a strong goal of the JPEG committee that its
     standards should be implementable in their baseline form without
     payment of royalty and license fees, and the committee would like
     to record their disappointment that some organisations appear to be
     working in conflict with this goal. Considerable time has been
     spent in committee in attempting to either arrange licensing on
     these terms, or in avoiding existing intellectual property, and
     many hundreds of organisations and academic communities have
     supported us in our work.
     
   Because of the huge risk to my business that Patents represent, I am a
   subscriber to the bustpatents.com PATNEWS Email newsletter. I have
   never considered the possibility that patents (especially software or
   business models patents) could ever help my business, and have always
   searched for resources to keep me informed on the threats.
   
   There are a number of things that the Canadian Government can do as
   part of its Innovation Agenda to help reduce the considerable risk the
   patent system represents to the innovative SME.
   
     * A first requirement is to not accept a patent in Canada simply
       because it is filed with the US Patent and Trademark office. Until
       such time as the USA cleans up their own patent system, the
       Canadian system must separate itself from that system. This should
       also mean that Canada should not sign on to any multilateral
       patenting system (See: http://patentagenda.wipo.int/) unless this
       system has been adequately reformed to protect small-scale and
       distributed innovation from the patent system itself.
     * Riggourous testing of whether an application is "useful, novel,
       and unobvious" should not just apply to when patent is applied
       for, but continuous. More pratical meanings for these tests must
       be considered:
          + useful - with the alternative to a patent being the idea kept
            secret, useful needs to be evaluated in this context. Is
            there a benefit to the public (not simply the pocketbook of
            the patent filer) to having the patent published?
          + novel - this requires considerable research of both patent
            and non-patent prior art, with this aspect of the patent
            continuously being re-evaluated.
          + unobvious - this requires someone skilled in the art to test,
            not whether it is unobvious to an unskilled examiner.
     * Where there is uncertainty as to the patentability of an
       application, the default should be to reject the patent and defer
       the decision to the courts. The organizations that are applying
       for patents have more resources and potential rewards to fight for
       valid patents than the general public and/or SME's have to fight
       invalid patents that were approved. It should be obvious in that
       it should be those wishing the protections of patents to pay the
       costs of examination of complex or controvercial patents, not
       those trying to invalidate the patent, and definitely not
       taxpayers.
     * Filing of prior-art (statutory filing) should be free, and should
       cause the automatic re-evaluation (and potential invalidation) of
       existing and pending patents.
     * Filing of "State of the art" would be added. This would be a new
       test to see if the current state of the art is such that an idea
       which seemed novel and unobvious in the past was no longer the
       case. Any independant researcher who was able to come up with the
       same idea as a patent without knowledge of the patent could be
       used to invalidate current patents. Students in Universities could
       be given similar problems to test if they would come up with
       similar solutions.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 See http://weblog.flora.ca/ for announcements, activities, and opinions
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