Trade names, patents, incrementalism and simple-clever

["Crispin" <crispin@newdawn.sz>]

Dear Stovers and World Developers (which is what I think you all are!)

First, Paul: you said that the name 'Turbostove' was someone's province or
something like that.  I feel that it has to be a 'type' of stove rather than
a trade name because there was already someone useing the name before, and
it is associated with a particular layout.  If the name were to be
registered as a trademark, that is a different thing, and two people in
different countries can do that if they want, but no matter how much we like
each other, we can't generate legal protection without the legal process
routes being plodded.

Sorry about that.

I think Paul's desire to give credit where is it due is the essence of a
future legal milieu where people thankfully give a portion of what they are
or achieve or gain to the ones responsible for getting them to that stage of
economc development.  I could call it the 'teacher's share'.

Richard wrote about patents saying, "These regulations designed to protect
one's individual rights are awkward in light of the internet's ability to
allow immediate and widespread information exchange."

That may explain the high lurker ratio of this group.  People at work are
not allowed by their bosses to make comments here on the chance that they
might accidentally give something away.  Well, I give away things all day
long because if I didn't, I would feel like a grinch. I do not feel like a
one-hit-wonder looking for my first (and last) million.  And sharing credit
doesn't cost anything.

>How much of that is, as Daniel suggests,
>traditional knowledge and how much belongs to Elk
>or others..

Anything posted on this group belongs to the public, 100%, legally, unless
that information was given out by someone who has signed a confidentiality
agreement not to do so.

This brings me around to the topic I have been avoiding for two days because
I am not an intellectual property lawyer.  However I feel obliged to offer
the following:

If you have been made to sign a confidentiality agreement, then you are
bound by its conditions.  If you deliberately or accidentally (it makes no
difference) divulge on the internet or to someone the secret recipe for Coke
or coking or water heating that was to be the essence of a future patent,
then those who heard it from the confidence breaker are not allowed to
freely access the information, even though it was revealed to them or
published in a public place.

The world is not the wild west it once was.  A person finding out
confidential information prior to the patenting of an invention has learned
the information illegally and should not have come into its possession, even
if they themselves did nothing wrong.  A patent can still be issued later
on.  A person hoping to break the patent by claiming that such information
was published in the Stoves Digest in January 2002 will be told that the
person who revealed the information had broken a confidentiality agreement
and thus the information was obtained illegally.  Simple and ultimately
fair.

I will give you a sample of a tail-ender to put at the bottom of an email
sent from you to someone else in which you are discussing something that
will be patented later on.

++++++++++++++++
CONFIDENTIALITY NOTICE:
This Message is confidential and may also be legally privileged. If you are
not the intended recipient please notify the sender IMMEDIATELY. Any
disclosure, copying, distributing or the taking of any action in reliance on
the contents of this message is prohibited.

############################################################################

Note:
This message is for the named person's use only.  It may contain
confidential, proprietary or legally privileged information.  No
confidentiality or privilege is waived or lost by any mistransmission.  If
you receive this message in error, please immediately delete it and all
copies of it from your system, destroy any hard copies of it and notify the
sender.  You must not, directly or indirectly, use, disclose, distribute,
print, or copy any part of this message if you are not the intended
recipient.

Thank You.
++++++++++++++++

This is attached to every message I get on email (which is a 'clear as
glass' form of communication) to snoops.  If someone accesses the
information and uses or publicly discloses it they are doing so illegally
and the validity of a future claim to a first invention is (perhaps) upheld.
It is not a substitute for a confidentiality agreement.

Kevin noted that:
>It is also my understanding that one cannot patent anything that
>".... is obvious to one skilled in the trade..."

This refers to a small change made in an existing patent or intellectually
property-expired or public device upon which an inventor claims to have made
an improvement.  It is not normally (in practice) done with non-patented
things though that is an untrue generalization.

People with an intimate knowledge of a complex process or machine frequently
make slight improvements in them and wish to patent the advance so as to
profit from their innovative effort.  For example a maker of hand operated
double knitting machines decides to speed up his machine and puts a rubber
baby buggy bumper on each end to have the shuttle mechanism come to a soft
stop instead of bashing into a rigid stop at the end of the bed and this
bumper is granted a patent as a useful invention.  One year later another
innovator changes this to a small air cylinder and piston that allows the
shuttle to come to a stop from a much higher speed over a longer distance
displacing air from a small hole in the end of the cylinder.  In the new
configuration the machine can be run even faster without damage.  He patents
the air piston and cylinder on such a hand operated knitting machine.

The first inventor can proceed with making his invention.  The second
cannot, without first making an agreement with the holder of the first
patent.  This type of patent can be decribed as an 'incremental' advance in
the technology or process.

Courts these days tend to favour the second inventor if he or she can't get
a reasonable licence to carry on from the first.  They may grant what is
called a compulsory licence.  The AIDS drug busines is filling up with these
documents because the inventors are shafting the sufferers and making
billions while the poor die young.  Believe you me, the international patent
system is presently under threat from the shenanigans of giant, wealthy
corporations and some, like the Thai, are saying 'stuff you' and setting up
AIDS medicine factories all over Africa this year to produce some drugs 99%
cheaper.

>Patents are intended to protect ones invention.

Patents are a licence to sue so you can make money.  Someone merely
protecting an invention (from exploitation, for example) would find
competitors granted compulsory licences, esp in the USA.

One can be on very shaky ground claiming that
>This is obvious to me, as someone skilled in the trade.

This is bound to lead to a court case where the words 'obvious' and
'skilled' are expounded.

Obviousness in hindsight is not a good enough reason to deny a patent's
validity, whether the obviousness is by one skilled or unskilled in the
trade.  'Obvious' has a whole corpus of precedent.  For example, changing
the colour of a patented device is obvious, as is scaling it up or down, or
putting it together with a high speed rivetting system or spot welding it
instead of bolting it and so on.  If the device has the same function, then
the patent stands and violators cough up $$.  However, extending the
functionality of a nearly identical existing device is not 'obvious',
especially if the person filing the original patent did not describe a
basically identical 'arrangement' in the section of the patent devoted to
'variations on this theme'.  If it was obvious then the argument will be
made in court that the original grantee would have included it in the
variations and similar ways to construct the device.

Sorry I am going on so long here.

Kevin will tolerate me a little longer because I need his next two
statements to make a point:
>I articulated the concept before you did

If there was confidentiality agreement Kevin had signed and he violated it,
the revelation is illegal.  You might not know about that for a while.  It
might be a patent pending and anyone can use the idea while that is pending,
but must stop if it is ultimately granted.  If teh U Hawaii gets a
provisional patent (allowing it to be further worked on for a year) and
publishes what it is doing, everyone can freely use the invention until a
patent is granted.  If perchance it is not, those who made the early
investment in copying it can take the market share first.

>By posting to the internet, the concept is in the public Domain

Yes, it is, but it may be so illegally.  Don't assume that you can just take
something that is pretty obviously or probably a secret development and make
$$ out if it because you gotit off the net or email.  In court you will look
pretty silly finding out that it was in violation of an agreement and all
the money you made has to be turned over to the real inventor.  Sometimes
inventors, realizing that they have someone really up the creek on this
point, keep quiet until a lot of money has been made and then sue for it.
The South African Kreepy-Krawly pool cleaner's inventor was the subject of
an action similar (though not identical) to this.

Continuing to use Kevin's lines (thanks!):
>On the other hand, if you were using square holes, this may be
>patentable

Not really, that is 'obvious'.  If it did something that the other stove did
not, OK.  Or you can sometimes (weakly) argue that it is cheaper to produce.
The first is an important point.  A patent can only be issued to the
original inventor of a novel, useful device or process.  If you steal an
idea and patent it first, you lose in court, even if the originator kept his
(verified) notes secret for years.  Witness Rubic's Cube.  If you make a
similar device with no apparent additional usefulness, you will not be
granted it to begin with.  It is not a protection for being different - that
is what design copyrights are for, it is a protection for a useful, novel
device.

And finaliy in brief, a comment on:
"a new process to make charcoal"...using a high pressure process..."

As this is a well known action it is not making charcoal under pressure that
will be patented, but either the useful and unique device in which it is
done, or the unique and productive process that achieves what previous
practitioners have not achieved, for example 51% yield of carbon.  It has to
work in a new way or demonstrate novelty.

Some devices fall into the other class of invention: the 'simple-clever'
device.  One such thing is the little hand-held charcoal briquette lighter
that is available all across America.  This is a South African invention
that has swept the bar-b-q world.  These are the type of things that we
garage mechanics come up with after years of trying to solve a problem in
our own back yard.  There are thousands of them.  Another is the Swaziland
based 4 MHz induction bearing heater now sold globally by SKF.  Increasing
the frequency 200-fold increased its efficiency and speed enormously.

I agree that:
>It is my feeling that the Stoves list is intended to be more
>"for the general betterment of Humanity"

...but you have to eat and so sometimes we make a living selling training in
things that are well known - selling someone else's public domain
inventions.  There is nothing wrong with that.  English and math teachers do
it all the time.  Just because it is a practical skill or technology does
not mean we have to give it away.  Some people are better trainers than
others.  Some are more adaptable to different raw material environments.

Daniel asks:
>What does the system in place reward these brave souls with?

Not much, really.  We little people have to develop a 'shareware' method of
cooperation: use my invention and if you like it, gimme $10.

Dean feels:
>...that invention which serves humanity is its own reward.

That pretty much describes me but my wife objects saying that I give away
TOO much assistance and information to ever get rich.

In a nutshell
Crispin


-
Stoves List Archives and Website:
http://www.crest.org/discussion/stoves/current/
http://www.ikweb.com/enuff/public_html/Stoves.html

Stoves List Moderators:
Ron Larson, ronallarson@qwest.net
Alex English, english@adan.kingston.net
Elsen L. Karstad, elk@wananchi.com www.chardust.com

List-Post: <mailto:stoves@crest.org>
List-Help: <mailto:stoves-help@crest.org>
List-Unsubscribe: <mailto:stoves-unsubscribe@crest.org>
List-Subscribe: <mailto:stoves-subscribe@crest.org>

Sponsor the Stoves List: http://www.crest.org/discuss3.html
-
Other Biomass Stoves Events and Information:
http://www.bioenergy2002.org
http://solstice.crest.org/renewables/biomass-info/
http://solstice.crest.org/renewables/biomass-info/carbon.shtml

For information about CHAMBERS STOVES
http://www.ikweb.com/enuff/public_html/Chamber.htm