To Promote the Progress of Science and Useful Arts

Absurd legal threat of the day:

Back in 2000, David Roth had one of those "eureka" moments that are the stuff of American entreprenurial legend. After spotting a box of Cocoa Puffs hidden behind the desk of a Wall Street executive, Roth dreamed up a retail business that would sell cereal all the time. He and a partner opened the first Cereality in Tempe, Arizona, on the campus of Arizona State University. College students flocked; Roth followed up with stores in Philadelphia and Chicago; and news outlets from Time to CNN fawned.

But as is so often the case with good ideas, Roth wasn't the only one to have it. Across the country, Rocco Monteleone was getting set to open Bowls, a cereal cafe in Gainesville, Florida, (near the University of Florida) when he found out that Cereality had beaten him to the punch. OK, he figured, no harm, no foul: It's America. Anyone can open a restaurant selling cereal. Right?

Well, kind of. In May, Monteleone received a letter from Cereality's attorney warning him that he may be in violation of a patent application the company had filed for its "methods and system" of selling cereal. These included: "displaying and mixing competitively branded food products" and adding "a third portion of liquid."

You'll have to read the whole story to get to the happy ending, but it's worth it -- it's a pretty good report on the ways business method patents can stifle innovation.

Comments

[MattL]

adding "a third portion of liquid"

Dang it. I knew I should have filed my patent application for putting milk on cereal back in '93.

[Randolph Carter]

In other news, Starbucks has been sued by McDonalds for use of the McDonalds "proprietary employee hand-washing technique" and for stealing the idea of serving liquids in tapering cylindrical tubes with bottoms.

[Yogi]

Here in Iowa City, another college town, they tried to open a place called Cerealogy (or something similar) and the Cereality people claimed trademark enfringement (or something like that, i'm not a lawyer). I think they changed the name and are still planning on opening soon.

Back to the college thing, I think this may be related to the piece earlier on H&R about how much more money college students have to spend these days. Going out to eat to order Cocoa Puffs? Holy Buddha.

[Qbryzan]

Why didn't Mr. Roth take the same kind of action against Sammy Hagar when he took his spot in Van Halen?

[James Anderson Merritt]

Come on now! At my house, we mix cocoa krispies and rice crispies, and on other occasions, kix and cocoa puffs, into what we call "black and tans." We love 'em, and have done it for years. Long ago, we had the idea to open a store and do the same kind of creative combinations with cereal that places such as Coldstone provide for ice cream. We didn't think the idea would support an entire store, and we also worried about whether the major cereal companies would simply take our mix ideas and market their own blends to undercut us. It didn't seem like an idea with legs. So we never pursued it. But if somebody else did, and is making a go of it, wonderful! I hope that any lawsuit in this matter is laughed out of court. Or that the patent is rejected with howls of laughter. I understand that the lawyers must defend the patent application, but how can you defend the indefensible? What about Cereality's application is novel and beyond the natural strategies of any competent practitioner in the industry?

[thoreau]

Maybe Jerry Seinfeld should sue all of them. He ate cereal in a restaurant in almost every episode of his show.

[Yogi]

Daily Iown article about Cerealogy

[Russ 2000]

They could try a unique method. First pour some milk into a bowl, THEN add the cereal. Totally different from the patent pending method.

[Danimal]

Russ: Yeah, it's different, but it also leads to massive cereal spill-over. The cereal just floats atop the milk and spills out of the bowl. At least with Cheerios.

[James Anderson Merritt]

I read through the linked article and see that common sense prevailed in this case, but I was chagrined to see the extent to which patent law had changed (deteriorated!) since I last paid attention to it.

The person quoted as saying, "if business methods are successful, they make money, which is its own reward," is -- pardon the expression -- right on the money. No additional incentive or "protection" is needed!

I was very interested to read how the latest court rulings and subsequent USPTO policy changes have led to "patent thickets," which allow big business to freeze out smaller, less-well-heeled innovators: a perverse result if ever I heard one. What are these people thinking? Where is a Thomas Jefferson (who sat on the first board of patent examiners) when you need one?

I am conflicted about whether patents for genetic material ought ever to be granted, but I certainly wouldn't grant a patent for a single gene, or a combination of genes that were or could be found in nature. Only something that were completely artificial, or combined in a mix that was not only not found in nature, but unlikely ever to be of natural origin, would earn a patent in my eyes.

[smacky]

Come on now! At my house, we mix cocoa krispies and rice crispies, and on other occasions, kix and cocoa puffs, into what we call "black and tans." We love 'em, and have done it for years.

FREAKS!

[smacky]

But seriously, Coco Puffs? They're not even worth eating anymore. They changed the recipe some time ago so that there is something like 1/3 or 2/3 less sugar in them. What's the point (of living)? I bought a box many months ago and couldn't even muster the spirit to finish it...they just tasted like burnt styrofoam. The box is still sitting in my apartment, I think. I don't have to worry about ants getting into it...they wouldn't want it, either.

[Shawn Smith]

<soapbox_rant>

It's about fucking time that these patents start getting laughed out of court! Hey, all you "IP" lawyers out there, how would you like it if legal arguments started to get patented, especially by your political opponents, who won't let you use them for any price?! Thoreau, you say you've written code in the past as part of your work--have you done a patent search to be sure that you aren't infringing on someone else's invention? I write computer programs for a living, and I don't have time to be sure every fucking method in every fucking class I put together isn't fucking infringing. Patents on methods and algorithms fucking felch!

</soapbox_rant>

[Timothy]

Smacky: Cocoa Krispies are still delicous, especially now that they've changed the name back. But they should bring back the monkey on the box. MONKEY!

[Jennifer]

In other news, Starbucks has been sued by McDonalds for use of the McDonalds "proprietary employee hand-washing technique" and for stealing the idea of serving liquids in tapering cylindrical tubes with bottoms.

Our legal system is so screwed up these days, I honestly don't know if this is sarcastic or serious. I'm guessing sarcastic, but I wouldn't be surprised if someone actually did try such a lawsuit.

They could try a unique method. First pour some milk into a bowl, THEN add the cereal. Totally different from the patent pending method.

I've always eaten cereal that way. Otherwise, the cereal on the bottom gets soggy before you have time to get to it. Yucko.

[Timothy]

Jennifer: Sogginess is a function of the all important milk-to-cereal ratio and consumption speed. When in doubt, eat faster.

[Shawn Smith]

I remember an All in the Family episode where Mike (meathead) eats the cereal in the bowl without milk and then washes each spoonful down with milk from the bottle. Archie asks why he's doing that, and Stivic says something like, "That way the cereal stays crunchy."

[Trotter Hardy]

Amidst all their understandable outrage at patents on simple ideas, commenters will, I hope, keep in mind that "patents" per se are not the problem. Nor are even "business methods" patents the problem.

The problem is that the Patent Office has too few examiners who have any experience in business. Examiners all have to know some sort of science: chemistry, electrical engineering, etc. But there's no requirement that they know anything about entrepreneurship or the world of business. Hence patent examiners may regard trivial advances in business methods as more extraordinary than they really are.

Moreover, though I don't know how comprehensive the PTO's files are on business method patents and business methods generally, I would guess that those files are substantially less comprehensive than the files on developments in chemistry, electronics, etc. If true, that would also make it much harder for examiners to put business developments into the proper perspective.

Finally, if I'm right about these assumptions, then the situation should improve with time, as examiners do become more experienced with business methods.

[kevrob]

The "milk-in-the-bowl-first" method was a staple of Kix commercials in the 60s. Those tasty spheres of corn float on the alabaster liquid in a way that flakes, chex and shreds don't.

Kevin

[Jennifer]

Jennifer: Sogginess is a function of the all important milk-to-cereal ratio and consumption speed. When in doubt, eat faster.

Cereal should be modified to fit the needs of the eater, rather than have the eater modify to fit the needs of the cereal. I refuse to contort myself to fit some Cereal Bowl of Procrustes, and if you were a real libertarian you wouldn't either.

If I were Mona I'd threaten to cancel my subsciption.

[SR]

One of the big problems is that the Federal Circuit (which is virtually the "Supreme Court" of patent law) has introduced rules whose major effect is simply to promote the continued existence of the USPTO. Particularly harmful is the doctrine of the "crowded field" in which ever smaller increments of change are considered to be patentable, even though they should logically be considered ever more obvious.

[scape]

When does the next wave of lawyers and bureaucrats step in to stop all this sugar coated, cavity causing madness? Isn't this a national health issue?

[Anon]

James,

Re the serious point on gene patents, whether they should be valid is an interesting question.

A valid patent has to be "non obvious" to a fictional legal character, a man of ordinary skill in the art. (They get around the fact that genes are found in nature by patenting the "isolated molecule" or some such. That pretty much covers industrial applications but means they can't sue you for metabolising your lunch.)

The interesting thing about genes is that this standard of obviousness has dramatically changed. The first genes took years of work to sequence. But now sequencing is utterly routine and mechanised.

Practically speaking I don't think things are too bad in biotech, at least compared to the idiocy in IT and business methods. While business is obviously happy to keep out competition as far as possible, it has informally been recognised that pure gene patents aren't really tenable any more - you have to say something more, e.g. about medical applications. There is also some recognition that enforcing such patents would close down research, hurting everyone in the long term.

Of course the anti-biotech crowd have jumped on the bandwagon with their "moral objections to owning life", which makes me more circumspect in my criticisms than I might otherwise be.

[Timothy]

Jennifer: If you were a real libertarian you'd understand that cereal makers are responding to the dictates of the market and that your preferences do not amount to a market shift. If you want to make a statement about cereal and its milk worthiness, speak with your wallet by buying only cereals that demonstrate sog resistance. Recruit enough to your cause through the marketplace of ideas and cereal produces will recognize the opportunity for profit and thusly modify cereals to resist sogging. Q.E.D.

If I were Mona I'd...well, I'd certainly be confused about my testicles.

[Jesse Walker]

I realize that it defies several hundred Peanuts strips to say this, but cereal should be soggy.

[Jennifer]

cereal should be soggy.

Only if your teeth are, too.

[Timothy]

A Pox on your soggy cereal house, Walker!

[B.P.]

James Anderson Merritt asks: "...but how can you defend the indefensible?"

Please consult joe for talking points on this matter.

[NoStar]

Cap'n Crunch tears up the roof of my mouth.
Does this happen with everyone or is there something wrong with the pink lining of my oral orafice?

[SK]

It is not you. I believe Cap'n Crunch checks in somewhere around corundum on the hardness scale.

There's a scene in Neal Stephenson's immensely entertaining Cryptonomicon in which the main character's Cap'n Crunch eating ritual - similar to Meathead's above - is described in almost fetishistic detail, as though he were an addict getting his fix.

[smacky]

CocoPuffs cuts the roof of my mouth, too. But not anymore. Not anymore.

[ChicagoTom]

Cap'n Crunch tears up the roof of my mouth.
Does this happen with everyone or is there something wrong with the pink lining of my oral orafice?

I dunno which particular type of Cap'n Crunch you are eating, but as a Crunch Berries eater myself I only occasianally get slight injuries to the roof of my mouth when yellow crunchy happens to connect corner up. I hear there are no such problems with the Cap'n Crunch Peanut Butter Crunch since those are round.

[David]

I realize that it defies several hundred Peanuts strips to say this, but cereal should be soggy.

So Jesse, would you advocate a form of cereal police to enforce a five-minute wait from milk addition to consumption so that everyone eats their cereal the way you like it?

[Lazlo]

Coco Puffs? They're not even worth eating anymore. They changed the recipe some time ago so that there is something like 1/3 or 2/3 less sugar in them.

Infant. I stopped being "kooky" for Cocoa Puffs when they changed from near-perfect hollow frosted chocolate spheres to misshapen solid dusty chocolate chunks.

Bring back Sugar Chex, dammit!

[Swillfredo Pareto]

Sogginess is a function of the all important milk-to-cereal ratio and consumption speed. When in doubt, eat faster.

Another factor is the milk temperature and fat content. 33 degree whole milk makes for less soggy cereal longer than room temperature powdered skim milk.

[sulla]

Jennifer, what you're really looking for is a good non-nutritive cereal-varnish.

[David]

Only if you're going sledding!

[B.P.]

Cap'n Crunch also packs into molars like caulk. And how about a shout-out for Quisp?

[Dave W.]

Kind of a superficial analysis in this post. The patent system was designed to guard against somebody having a "Eureka" moment and not following up because the idea can be copied. It is possible that neither entrepreneur could have or would have pursued the idea without the possibility of patent protection. To put it another way, before 1998 (when it became clear that business methods were potentially patentable in the US), a lot of people might have had the cereal cafe idea, but not pursued it for fear of copycats. We will never know.

Now in this case, two people got the idea at about the same time (presumably independently of each other). To me, that is strong evidence that the idea was "obvious" (legal ground for denying and/or invalidating a patent). Sadly, US law does not always work that way. In other words, I think the problem is not that the patent system "stifles innovation" as Mr. Sanchez overbroadly concludes. Rather, it is that the system does not do a good job knocking out the obvious patents. If it did, then the 2d comer (Monteleone) could operate with relative impunity once he showed his evidence of contemporaneous independent invetion. No stifling that way.

Now I didn't read the article. It may be possible that Monteleone did not independently invent. Maybe he heard about the first guy or heard about his restaurant. If this were the case, then this would be a great demonstration of why the patent system is good. Here's why:

Timeline:

1000 years ago (or so): restaurants invented
150 years ago (or so): modern ceral invented and combined with milk
5 years ago: 1st guy invents
4 years ago: 2d guy copies

If this timeline were true, then we would have the case of an invention that could easily have been invented for 146 years, but nobody did because nobody had the "eureka moment." We know the invention is valuable because it is quickly copied. What we don't know is how long we would have had to wait for the cereal restaurant idea if the first guy had never been born. Since it took 146 years for the first guy, it seems pretty reasonable to assume that we would be waiting 50 years or more for the idea if the first guy's dad had used a condom. that is what the patent system is all about -- making sure we don't wait those 50 additional years.

You all probably think the invention is obvious because it involves things you are familiar with like restaurants and ceral and milk. But think again: Doesn't society's broad familiarity with these concepts mean that we **should not have had to wait** 146 years for the initial cereal restaurant? Yet we did. That lil factoid should re-jigger your layperson thoughts on what obviousness *really* is.

[NoStar]

LIFE (The cereal Mikey likes)and Cinnamon LIFE are the best cereals. MMMMM, the sugary oatie goodness of it, the mild satisfying crunch and NO ABRASIONS TO THE MOUTH'S MUCAS MEMBRANES.

Although my younger brother will tell you it's Coco Krispies served with chocolate milk.

[anon2]

Trotter,

Patents may indeed be the problem; it's certainly a possibility. There is good reason to believe that we'd have more and cheaper food without any farming subsidies and price supports. In the absence of these things, farmers won't quit farming, and uncertainty about the future can be hedged with options.

Although the Constitution says

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

we don't really have good tools for determining that patents do indeed, in the net, promote the progress of science. There's good reason to believe that software patents are thoroughly unneeded. The software industry was born and was flourishing long before software patents were first recognized. Coders will still crank out code even if their algorithms can't be patented; the cost of entry is far too low for them to quit.

Law, and not just IP, is more a child of social forces than science. There is very little honest evaluation of the effects of laws. For example, the war on drugs appears to be an utter failure (I personally believe it is, although perhaps we'd all be incapacitated due to our addiction to scarey-drug-of-the-day were not the "war" being fought), yet it's persisted for decades. It's very possible that the downside to patents is greater than the upside and even if that's not true today, it may be true in the future.

Reverse-engineers are damn-good at figuring out how all sorts of things work; they have tools unthinkable at the dawn of patents. There is very little risk that without patents people would create great new things and be able to hide the inner workings. The argument for patents is no longer that people will create inventions and hide the mechanisms, but that the act of inventing requires so many resources that without an inducement, the inventor won't invent. That's the same argument for farming price-supports.

Even without patents, there are a variety of incentives to develop new things, including securing tenure at a University, prestige in general and the occasional awarding of prizes for specific accomplishments. Math, by and large, isn't patented, but people have still worked very hard to solve a wide variety of problems. Inventors have more incentive to invent than farmers have to farm, yet most libertarians oppose farm subsidies.

If patents outlive their usefulness, how will we know?

[thoreau]

You'll have to read the whole story to get to the happy ending

What kind of story is this?

[mediageek]

I hear it's the corn syrup that causes the abrasions and whatnot on the roof of your mouth.

[Dave W.]

I meant Mr. Walker (sorry Mr. Sanchez)

been trying to correct this for awhile now -- darn servers

[Crushinator]

Sulla is on the money. There was an enterprising young chemist in Chicago named Clark Griswold who developed a non-osmotic, non-nutritive crunch enhancer. I don't believe he patented the idea because he spent too much time on vacation.

[The British Tabloid Press]

DAVE W. IN DEFENDING STUPID IP LAW OUTCOME SHOCKER!!

Doesn't society's broad familiarity with these concepts mean that we **should not have had to wait** 146 years for the initial cereal restaurant?

We didn't. We had to wait for the restaurant that sells ONLY CEREAL AND MILK AND NOTHING ELSE. An innovation that is not only, I suppose, not obvious, but until America was occupied by a demographic consumed by the concepts of laziness, nostaligia and its own adolescence, would have been considered frivolous and pointless.

[Michael A. Clem]

You guys have got it all wrong! Cereal is supposed to be semi-soggy, not dry or over-soggy! So it's a matter of timing from when you pour the milk to get it 'just right'.

it's just one small part of a growing trend toward privatizing more and more of what free culture proponents refer to as the "knowledge commons."

This is what worries me. Commons refer to areas of scarce resources that have no private owner. But knowledge and ideas don't constitute 'scarce resources' because one person's use of an idea or knowledge doesn't preclude any number of other people from using the same idea or knowledge. Ergo, patent law is about forcing a non-scarce resource into being scarce. It's not solving a problem, but creating a problem.

[anon2]

If you think that your lil factoid should re-jigger people's thoughts, you're inappropriately assuming static conditions. People eat out more than they used to, even when you only consider the time span of twenty years (versus the 150 in your post). As more people eat out and the population grows, niche markets will increasingly appear attractive.

There was a huge growth in the software industry after software patents sprung up. However, it would be a post hoc ergo propter hoc fallacy to believe that the growth was due to the courts recognizing software patents rather than the increased sales of computers (and hence a larger market for software). At least that's what it appears to me. After all, the open software movement, which eschews software patents, has grown exponentially too. The growth in commercial software started long before software patents appeared, so it's rational to believe that software patents were not the primary cause of the growth of the commercial software industry. It's similarly rational to believe that the cereal restaurant wasn't held back due to a lack of business model patents.

In a narrow sense, you're right "we will never know." But in that same narrow sense there's tons of stuff "we will never know," e.g. the explanation for the growth of the commercial software industry. The question is, "how can we know well enough to set policy?" and the meta-question is "if we get good enough tools to allow us to know well enough, what mechanism do we have to actually get a rational policy set?". From my vantage point, the meta question is more important. It has implications for a lot more than the patent system and yet it's much more overlooked.

[smacky]

Forget Quisp. Can I get a "hell yes" for Fruit Brute? How about Yummy Mummy?

*actually too young to have ever eaten either nostalgic cereal*

...ok then, how about Crispy Critters? That's more my speed.

By the way, they don't call cereals things like "Crispy" and "Quisp" and "Crunch" because they're supposed to be all soggy and mushy...common sense also dictates that characters like Sugar Bear advertise products that are indeed saturated with sugar.

(Returning to the Coco Puffs scandal, upon the back of said box of "reduced sugar" Coco Puffs getting stale in my apartment, there were "health tips" and tips for "staying fit" from Sonny! The outrage!! In my day, we got a tiny, useless toy that came with a choking hazard warning and we choked on it and liked it.)

[Timothy]

Mediageek: perhaps we should file a tort and seek out the information in the discovery phase. Think of the mouths of the fat little children!

[Dave W.]

We didn't. We had to wait for the restaurant that sells ONLY CEREAL AND MILK AND NOTHING ELSE.

Assuming you have correctly restated the claim scope (chances are: you haven't), then this is all the patentee has exclusive rights to.

If the benefit of such a restaurant, as opposed to other conventional types of restaurants, is small, then it cannot be considered as "stifling" when others are prevented from operating similar restaurants.

On the other hand, if other entrepreneurs really, truly find themselves stifled by this seemingly marginal patent, then that argues for the value of the invention. I mean it would seem easy to add a non-cereal item or 20 to the menu, but if the 2d guy didn't want to do that, then you should understand that you don't understand this particular market.

People eat out more than they used to, even when you only consider the time span of twenty years (versus the 150 in your post). As more people eat out and the population grows, niche markets will increasingly appear attractive.

I addressed this possibility already in the 2d paragraph of my long response. My answer to your concern is there.

[fishbane]

A spectre is haunting cereal manufacturing. All the powers of Old Grainery have entered into a holy alliance to exorcise this spectre: Pope and Tsar, Kellogs and General mills, French Radicals and German police-spies.

Where is the manufacturer in opposition that has not been decried as soggy by its opponents in power? Where is the opposition that has not hurled back the branding reproach of soggines, against the more advanced opposition graineries, as well as against its reactionary adversaries?

Two things result from this fact:

I. Cap'n Crunch is already acknowledged by all cereal eaters to be itself a mouth shredder.

II. It is high time that Free Thinking Cereal Eaters should openly, in the face of the whole world, publish their views, their aims, their tendencies, and meet this nursery tale of the spectre of sogginess with a manifesto of the party itself.

To this end, cereal eaters of various nationalities have assembled in London and sketched the following manifesto, to be published in the English, French, German, Italian, Flemish and Danish languages.

[...]

[Timothy]

Man, lucky McDonald's was able to patent that whole "fast burger, fries, and cola" deal. I mean, good that *nobody* offers a similar service.

McDonald's: Founded 1954
Wendy's: Founded 1969
Burger King: Founded 1954

Clearly Wendy's should've been sued out of existence by either The King or Ronald because, you know, they'd already thought of fast food first.

[Dave W.]

Timothy,
your concern is addressed at paragraph 2 of my long post.

[Larry N. Martin]

If the benefit of such a restaurant, as opposed to other conventional types of restaurants, is small, then it cannot be considered as "stifling" when others are prevented from operating similar restaurants.

McDonald's: Founded 1954
Wendy's: Founded 1969
Burger King: Founded 1954

And if the benefit is big, as Wendy's obviously is, then previous entrants have much more incentive to stifle competitors, given the broader scope of patents.
On the other hand, if the benefit is small, why bother preventing others from trying to operate similar restaurants?
Either way, you haven't made a good case for such broad patents.

[calliope]

Dave W,

You are slightly mistaken about the function of patents. The temporaty monopoly of a patnet is granted in exchange for the inventor disclosing the details of the invention, thus making the invention for all to use after the monopoly expires.

The constitution (by way of patents) "promotes the useful arts" by encouraging inventors to disclose their invention, not by guarunteeing a patentee will make money from his invention. If an inventor wants to try to make money without disclosing his invention he is free to do so, think "secret formulas" and "trade secrets" but those inventions are not protected if they are disclosed in a legal way

[calliope]

anon2

your comment about the reverse engineering abilities today versus years ago (say - 1820) are also a little off. things being patented back then, (grain threshers, sewing machines) were just a suceptible then to reverse engineering as cancer drugs and stock market algorhthyms are now. the compelling reason for patents remains disclosure of the invention to the public

[calliope]

edit

a stock market algorhythm is probably not patentable, but the overall argument still holds

[sulla]

1. I fart in the general direction of anyone who can't see that the idea of patenting a stock trading system is utterly ridiculous.

2. The softer parts of my mouth are pretty sure that Cap'n Crunch actually contains tiny bits of crushed glass.

[JD]

fishbane: Bravo!

[Dave W.]

And if the benefit is big, as Wendy's obviously is, then previous entrants have much more incentive to stifle competitors, given the broader scope of patents.

Your concern is addressed at the 2d paragraph of my long reply. Geez, how many more times must I write that.

[Dave W.]

You are slightly mistaken about the function of patents. The temporaty monopoly of a patnet is granted in exchange for the inventor disclosing the details of the invention, thus making the invention for all to use after the monopoly expires.

Not mistaken. What do you think I keep asking questions like why did we wait 146 years? Will we need to wait 50 years more? Was the 2d guy independent of the 1st guy? Of course, its all about disclosure, specifically super-duper-special disclosures.

[The British Tabloid Press]

On the other hand, if other entrepreneurs really, truly find themselves stifled by this seemingly marginal patent, then that argues for the value of the invention

Not really. It argues for a patent office that is granting patents for things that have no business being patented, requiring later adopters to pay license fees to the first guy in, thus creating those monopolies and trust you seem to generally dislike.

. I mean it would seem easy to add a non-cereal item or 20 to the menu, but if the 2d guy didn't want to do that, then you should understand that you don't understand this particular market.

Um, we already have that. It's called IHOP. Or Bob Evans. Or Roy Rogers. Or . . .

[Dave W.]

British Tabloid Press,

Okay, so the 2d guy has a quite palatable choice:

pay the fee or else open a Bob Evans (or Roys or Friendly's or Elby's or Zim's). If the idea ain't that special, then the Bob Evan's style restaurant (aka practicing the prior art) will suit fine. If it is that special then the 2d guy can pay the fee. Where is the bad outcome?

[Dave W.]

TBTP's posts do give me an idea:

what about a suit against no-bid military supply contracts based on the pat & copyrght clause. That's a free markets, free minds kinda thing to wanna do. Can any of you lawyer types see why I would suggest this seriously? (besides Prof. I got a post of my own 2day)

[anon2]

calliope,

I grant you that the things that were previously patented were larger and therefore required less sophisticated reverse-engineering techniques, but you yourself say:

"The temporaty monopoly of a patnet is granted in exchange for the inventor disclosing the details of the invention, thus making the invention for all to use after the monopoly expires."

I am just pointing out that no such revelation is needed today, since we can get a lot more information through reverse-engineering than is actually made available in the patent documents. Do you disagree?

[workaround]

Is it not possible to avoid this sort of specious litigation by creating a division between assets and income streams?

For example, establishing licencing/franchising arrangement where the intellectual property (and possibly a client database) are held in a seperate legal entity, preferably domiciled in a foreign jurisdiction with privacy legislation.

With periodic shifting/stripping of the domestic licencees/franchisees income by way of increasing royalty/advertising/administration fees. Coupled with the owners of the domestic incorporated lincencee/franchisee periodically shifting maximum income out of the business into seperate legal entities. Add to that an open ended revolving line of credit or deliberately high debt levels in order to perpetrate the facade of strawman and you pretty much eliminate the threat of opportunistic scoundrels.

In my experience, telling competitors to 'let the judge decide (after 5 yrs of aggravation, sleepless nights, energy diverted from business endeavour, paying for a lawyers 3rd car and 2nd storey extension, plus a 50/50% chance of success/failure... pretty much sends the scoundrel s off to look for an easier target.

[edgr]

On the other hand, if other entrepreneurs really, truly find themselves stifled by this seemingly marginal patent, then that argues for the value of the invention

Not really. The idea is obvious, its just that there was probably not a significant market for it until recently. As another commenter pointed out, the chances of a college student 20 years or so ago going out to eat cereal was negligible, due to the general state of their finances.

We didn't have to wait 146 years for this invention; we had to wait 146 years for it to become economically viable (or at least for an entrepeneur to think it is economically viable).

[Tom]

Your concern is addressed at the 2d paragraph of my long reply. Geez, how many more times must I write that.

'The patent system isn't stifling, because it's broken, and if it weren't broken, it wouldn't be stifling' isn't even coherent, much less reassuring.

If the idea ain't that special, then the Bob Evan's style restaurant (aka practicing the prior art) will suit fine. If it is that special then the 2d guy can pay the fee. Where is the bad outcome?

The bad outcome is the arbitrary restriction of one person's economic freedom for the benefit of some random who's done nothing to deserve it.

[Rhywun]

Good grief, what a ridiculously stupid idea for an enterprise this seems to me. Why would a college student choose to go "out" for cereal when it's likely available (a) in his room or (b) a short walk over to the dining hall or (c) at the vast majority of other morning dining establishments?! I guess that's why I'm not an entrepreneur. 🙂

[sheeple]

It sure is a stupid idea, but like many stupid ideas prolly makes a lot of dough. In business one is rarely rewarded for innovation. The biggest rewards come from plagiarising, copying, stealing and borrowing from others. The simpler and more 'stupid' the idea, the better. Lookit the internet... a whole bunch of stuff as old as the hill repackaged as new and innovative because they now utilise the nre delivery/distribution stream of the internet. Its a bit like a lawyer saying he is now in the telecommunications business when he installed a telephone way back when to talk to his clients.

Also, the sheeple must at all cost now seek every potential niche, function and service from a homogonised, one service business, all nicely packaged with a suitable fitout and store front so he doesnt get confused. Sheesh, imagine going to a n eatery for a coffee, eggs and a doughnut, when l could so much more conveniently avoid confusing multitasking efforts like reading a variant menu by simply7 going to 3 seperate establishments.

And thank god for it too as the crumbling economic prowess of USA would be starving without it.

[Dave W.]

[Me:] Your concern is addressed at the 2d paragraph of my long reply. Geez, how many more times must I write that.

[A poor reader:] 'The patent system isn't stifling, because it's broken, and if it weren't broken, it wouldn't be stifling' isn't even coherent, much less reassuring.

Poor reader: that is not what the 2d paragraph of my long reply says. Your concern is addressed at the 2d paragraph of my long reply. Geez how many more times must I write that?

[Dave W.]

We didn't have to wait 146 years for this invention; we had to wait 146 years for it to become economically viable (or at least for an entrepeneur to think it is economically viable).

Your concern is addressed at the 2d paragraph of my long reply. Geez how many more times must I write that?

[Dave W.]

Tom 'The patent system isn't stifling, because it's broken, and if it weren't broken, it wouldn't be stifling' isn't even coherent, much less reassuring.

I didn't quite do this comment justice in the previous reply. Let me try again.

The patent system has a problem with its obviousness standards right now. If that problem got fixed then the system would work better, preserving the good outcomes, while reducing or eliminating the bad outcomes. The whole system is not broken, just the obviousness part.

Examiner Tom does not object to my particular fix for obviousness, but merely the idea that fixing obviousness could possibly make the system work as intended. He cites no support for this. In fact the Examiner Tom does not address obviousness at all, merely keeping with his implicit assumption that the patent system is beyond repair no matter what reforms are made. Such a conclusory statement is no substitute for actual discussion. Examiner Tom, in other words, does not make a good prima facie rejection of my argument here.

I respectfully submit to Examiner Tom that the idea that an imperfect system can be made good through reform is a coherent and commonly applied concept. The advantages of my proposed obviousness reform are stated above in my long post and need not be reiterated here. As such, my argument is now in condition for immediate allowance and the same is earnestly solicited. If not by Mr. Foregone Conclusion, then by you, gentle reader.

[Otis]

Timothy:
RE:Jennifer: Sogginess is a function of the all important milk-to-cereal ratio and consumption speed. When in doubt, eat faster.

From my pending patent app:
"By following this method, you create a fluid-solid barrier which preserves the integrity of the dry consumable over time without the need for additional additives."

Couple this with a "specially designed", oversized bowl and you have an even better business model to apply with. But it would seem to me taht it would be unpatentable since if it was obvious to a casual cereal eater such as myself, it would also be obvious to any skilled practitioner.

[Dave W.]

Couple this with a "specially designed", oversized bowl and you have an even better business model to apply with. But it would seem to me taht it would be unpatentable since if it was obvious to a casual cereal eater such as myself, it would also be obvious to any skilled practitioner.

If it is so obvious, then somebody has done this at some point in the previous 146 years. That is why it is obvious. Not because some random anonymous guy on the Net thinks so. C'mon, Otis. Do yer homework.

[The British Tabloid Press]

If it is so obvious, then somebody has done this at some point in the previous 146 years.

And if there were really a $10 bill on the sidewalk, somebody would have picked it up already.

And if flying cars were really useful, someone would have invented one by now.

And if the goddamned Dyson vacuum is so great, why didn't we have it in 1962? Huh? Answer me that, smart guy?

[Dave W.]

And if flying cars were really useful, someone would have invented one by now.

Here is the obviousness analysis I am proposing on this thread (this is not neccessarily US law):

the first workable flying car was made by the Wright Brothers of Dayton, Ohio in 1903. So you have to ask yourself:

if the Wright Brothers had never been born, when would we have gotten the first workable flying car. If the answer is 1904, then I would say that the Wright Bros. invention was obvious (at least at the broad level we are now considering). If the answer is 1923, then the Wright Bros. invention was non-obvious and they deserve a flying car patent.

And if the goddamned Dyson vacuum is so great, why didn't we have it in 1962? Huh? Answer me that, smart guy?

If Dyson had never been born, then would we have a Dyson vacuum (or something just like it) today? When would we or will we have gotten it? 1962 has nothing to do with my suggested method of obviousness analysis. my method focusses on how long of a lead the inventor is giving us when she *discloses* her invention. Big lead: patentable. Small lead: obvious. (Again, this is not neccessarily the current state of US law, but Congreess should make it so).

[Tom]

Examiner Tom does not object to my particular fix for obviousness, but merely the idea that fixing obviousness could possibly make the system work as intended.

Actually, I object to you contradicting yourself in the second paragraph of your long reply, to your repeated irrelevant citation of same, and now to your characterization of it as "particular".

In fact the Examiner Tom does not address obviousness at all, merely keeping with his implicit assumption that the patent system is beyond repair no matter what reforms are made.

I hope you're better at lawyering than mind-reading.

If it is so obvious, then somebody has done this at some point in the previous 146 years. That is why it is obvious.

That's novelty, not obviousness.

[calliope]

@ anon2

I agree with you that disclosure is not the end all be all, given reverse engineering, and that without financial incentive to invent (and thus patent) companies would not produce/invent anything to reverse engineer in the first place. I was referring about the intent of the law, rather than it practical implications which you identified

@ dave w

there are guidelines used for determining if something is obvious or not (in the eyes of the uspto) they involve what has been specifically writings in prior publications to perform a certain task.

so if someone had published a the plans of a kite/toy glider for instance, in the rough shape of an airplane and then suggested that such a design, if enlarged, could carry a person, then the wright brother's invention would have been obvious. if no such writings exist, you can't prove an invention is obvious, nor can you prove that it would have neccesarily been invented.

as far as the "lead" (which i interpret you to mean a "eureka!" vs "ho-hum-yawn") an invention gives us, that is a very subjective question. the uspto rejects some, and lets others through that are later later struck down on this very argument. i think the problem has more to do with overworked examiners and overzealous attorneys than any specific legislation that congress could provide (except expanding the ustpo's budget for more examiners)

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