Swinging [Really About Patents!]
Thu, 18 Apr 2002 07:37:55 -0700
Ah, publishing is not required - if that were true, then most patent
infringement suits between inventors would simply come down to who
published first and the dates on lab notebooks wouldn't be an issue. Prior
art is anything made, used, or known in the U.S., or published anywhere in
the world. 35 U.S.C. §102, See also Donald S. Chisum, Patents §3.01,
"Novelty," page 3-4. And I've certainly been using the swinging method
described in the patent without concealment!
There's a structural problem with "obviousness," which is that lawyers and
judges are extremely poorly positioned to put themselves in the shoes of a
"practitioner having ordinary skill" in most "arts," and therefore can't
figure out whether something is obvious from that standpoint or not.
And in fact in most cases where judges are asked to evaluate technology qua
technology, they get it wrong. Sometimes inconsequential errors, but
sometimes huge ones. We're stuck with a First Amendment that leaves us less
free in radio communications than in newspaper communications, and it's
almost entirely because Justice Frankfurter and his yotzball colleagues
decided in Red Lion (a 1920's Supreme Court case) that radio bandwidth was
inherently limited and hence must belong to the government. But
multiplexing techniques were in use even then - it's a factual error that
leads to a change in doctrine that essentially is still law, even if the
FCC has decided lately not to be as stringently censorious as it could be.
At 07:22 PM 4/17/02 -0400, you wrote:
>First, the present standard for "obviousness" is extremely low, and I
>doubt that swinging sideways or in an oval pattern on a steel swing
>set; second, if you did not publish your method, it is not "prior art"
>for the purpose of patent. Where did you publish it?