JPEG Extinct? Send as input to Innovation Strategy!!
russell at flora.ca
Sat Jul 27 09:49:19 EDT 2002
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
Please remember: The GoC is looking for input on their Innovation
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
Here is what I have so far on patents - feedback would be appreciated:
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:
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"
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
+ 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
* 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
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
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