The Fight To Patent A 'Paradigm' For Marketing

from the fantastic dept

Slashdot points us to a story about Scott Harris' ongoing attempt to get a patent on a way to market software. Harris is effectively trying to claim a patent on a "paradigm" of marketing software for other companies. For a variety of reasons this should be unpatentable, and so far (thankfully), the USPTO and the courts have agreed -- but Harris keeps trying to appeal, claiming that a company is no different than a machine -- and if a machine can be patented, so can the "paradigm" of the company.

Whenever we discuss patents around here, and say anything about patenting an "idea" or a "concept" the patent system supporters in the crowd are quick to yell and scream about how you can only patent "inventions" or the "reduction to practice" rather than the idea or the concept. But as anyone who's been watching the patent system over the past couple of decades knows, the definitions are being pushed, tweaked and stretched beyond recognition -- and Harris's attempts here are representative of that fact. It's great that they haven't succeed yet -- but plenty of other such twists on patent law have been happening for years.

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  • identicon
    Ima Fish, 12 Mar 2009 @ 2:49pm

    "patent system supporters in the crowd are quick to yell and scream about how you can only patent "inventions" or the "reduction to practice" rather than the idea or the concept"

    Can someone please explain how Amazon's "On-Click" patent is not patent on an idea?! Heck, how any business model patents are not merely patents on ideas?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2009 @ 2:55pm

      Re:

      Maybe the courts can explain. It was their stupid fucking decision that opened this can of worms on the first place. And now, look, they think maybe they've screwed up, and would like to put the genie back in the bottle. Good luck with that, assholes. Judges should render judgements, not write new law.

      reply to this | link to this | view in chronology ]

    • identicon
      ehrichweiss, 12 Mar 2009 @ 4:02pm

      Re:

      What I find crazy is that with all the patent lawsuits I've read about are about the goddamn ideas, not a process, method or machine. For example, back in the day they created the loom because it did what knitters did(well, kinda). Now if that happened today and someone created another machine that used a method different from the loom and anything your average knitter might do, the person who got the patent on the loom would be suing them senseless because it was their *idea* even if the method was different. 1-Click, "Buy It Now", etc = ideas. So WTF!?!?! Why are they even getting past the initial hearing? They should be settled with "I'm sorry your honor but this is a frivolous suit because this thing that was patented was nothing more than an idea, not an invention. The plaintiff has been lax in showing how my METHOD is related to theirs so they're trying to lay claim on an idea. Move to dismiss."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Mar 2009 @ 6:18am

        Re: Re: It is a process...

        Read the claims. They spell out specific steps for their business method. It is not an "idea." Unfortunately, too many people throw around a summary of a claim and then somehow think it is a substitute for the claim.

        Regardless, the USPTO, the BPAI and now the CAFC have all found the subject matter to be unpatentable. Once again, the system did what is was supposed to do.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2009 @ 3:03pm

    Perhaps this current court decision can bring down the rest of this house of cards.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2009 @ 4:09pm

    The Harris application has not left the USPTO. The application was initially rejected as anticipated, obvious and not properly disclosed and claimed. On appeal to the USPTO BPAI the rejection was overturned, but on its own accord the BPAI entered a new ground of rejection that the invention was not subject matter eligible for a patent under our patent laws. While I may be proven wrong, it is doubtful the applicant will file an appeal with the CAFC in view of its decision in In re Bilski et al.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Mar 2009 @ 6:15am

      Re: Already said, done and out...

      Actually, the last case was from the CAFC, which rejected Harris again, based on Bilski. In fact, the case was pretty much a slam dunk from the CAFC viewpoint. The only remaining avenue for Harris is to the Supreme Court. I doubt the Supreme Court would take the case even if it was filed.

      reply to this | link to this | view in chronology ]

  • identicon
    Bizzaro Angry Dude, 12 Mar 2009 @ 9:37pm

    Frivolous Litigation

    Why are these types of not held in contempt and charged with frivolous litigation?

    reply to this | link to this | view in chronology ]

    • identicon
      Willton, 13 Mar 2009 @ 7:22am

      Re: Frivolous Litigation

      Why are these types of not held in contempt and charged with frivolous litigation?

      Because in ex parte decisions like this, there is no defendant. Hence, there's no attorney's fees to charge.

      reply to this | link to this | view in chronology ]

      • identicon
        Bizzaro Angry Dude, 13 Mar 2009 @ 7:50am

        Re: Re: Frivolous Litigation

        So, it is loophole.

        A means to continually submit the same frivolous case with the hope that it will eventually be accepted.

        Sounds like a child asking for a cookie, over and over ...

        reply to this | link to this | view in chronology ]

        • identicon
          Willton, 13 Mar 2009 @ 8:42am

          Re: Re: Re: Frivolous Litigation

          So, it is loophole.

          A means to continually submit the same frivolous case with the hope that it will eventually be accepted.

          Sounds like a child asking for a cookie, over and over ...


          How is anyone here continually submitting the same case?

          reply to this | link to this | view in chronology ]

          • identicon
            Bizzaro Angry Dude, 13 Mar 2009 @ 9:43am

            Re: Re: Re: Re: Frivolous Litigation

            Did you not read the summary at the top of this page? Specifically the part which says Harris has submitted his claim more than once.

            here is an excerpt:

            "For a variety of reasons this should be unpatentable, and so far (thankfully), the USPTO and the courts have agreed -- but Harris keeps trying to appeal, claiming that a company is no different than a machine"

            Or are you saying that Harris has changed his claim slightly each time and therefore it is somehow different? He wants a patent on his "idea" and will try to justifiy it in any way possible.

            Can I have a cookie?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 13 Mar 2009 @ 10:11am

              Re: Re: Re: Re: Re: Frivolous Litigation

              Obviously you need a cookie. Harris applied for a patent, and was rejected. Harris then appealed to the BPAI, which is kind of a watchdog of the USPTO, and was rejected. He then appealed to the CAFC, and lost. That is not submitting the same case over and over again, that is following the appeals process with the same case.

              reply to this | link to this | view in chronology ]

              • identicon
                Bizzaro Angry Dude, 13 Mar 2009 @ 10:16am

                Re: Re: Re: Re: Re: Re: Frivolous Litigation

                Mommy, can I have a cookie
                - No
                Daddy, can I have a cookie?
                - No
                Gramma, can I have a cookie
                - No
                Grandpa, can I have a cookie?
                - No

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 13 Mar 2009 @ 11:14am

                  Re: Re: Re: Re: Re: Re: Re: Frivolous Litigation

                  Except, in this case it is more like:

                  Mommy, can I have a cookie?
                  - No
                  Local child welfare authorities, my mommy would not give me a cookie, which I believe to be abuse. May I now have a cookie?
                  - No
                  State child welfare authorities, I believe the local authorities erred in finding I was not entitled to a cookie, and I believe they are wrong. Am I not entitled to a cookie?
                  - No

                  That is not "resubmission" of the same claims. In fact, it is not "submission" of anything at all. Each appeal (BPAI and CAFC) is for the finding of error in examination. No error was found, so in fact, RESUBMISSION OF THE CLAIMS IS NOT POSSIBLE.

                  Any other questions or examples?

                  reply to this | link to this | view in chronology ]

  • identicon
    Gene Cavanaugh, 13 Mar 2009 @ 7:59pm

    Patenting concepts

    Good article. Unfortunately, some of the more malicious folks in our country have succeeded in patenting (or otherwise "protecting") concepts.
    It needs to stop, but that is not the real problem. The real problem(s) are:
    1. Lack of campaign finance reform, allowing the wealthy to "buy" legislators, and
    2. Forcing the USPTO to be self-supporting.
    Until these are fixed, it will be the "rubber blanket" problem; push down a bulge here and it will reappear there.

    reply to this | link to this | view in chronology ]


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