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- Newsgroups: sci.crypt
- Path: sparky!uunet!usc!rpi!uwm.edu!linac!uchinews!law-mac-50.uchicago.edu!user
- From: DDFr@Midway.UChicago.Edu (David Friedman)
- Subject: Re: Legal Stuff!
- Message-ID: <DDFr-210193134845@law-mac-50.uchicago.edu>
- Followup-To: sci.crypt,alt.security.pgp,alt.security.ripem
- Sender: news@uchinews.uchicago.edu (News System)
- Organization: University of Chicago Law School
- References: <wingo-110193161420@90.190.20.24> <C0t67p.5rq@mentor.cc.purdue.edu> <wingo-130193131057@90.190.20.24> <C0uouu.96I@mentor.cc.purdue.edu>
- Date: Thu, 21 Jan 1993 20:04:31 GMT
- Lines: 41
-
- In article <C0uouu.96I@mentor.cc.purdue.edu>, hrubin@pop.stat.purdue.edu
- (Herman Rubin) wrote:
- >
- > In article <wingo-130193131057@90.190.20.24> wingo@apple.com (Tony Wingo) writes (assuming I have correctly untangled the attributions):
- If you want to claim that their invention was not unique and original,
- you'll demonstrate that someone else used it or described it earlier. The
- fact that someone else COULD have come up with it can be said of any
- invention, so is not in and of itself sufficient.
-
- If I am correct in interpreting this as a comment on patentability (I am
- just entering the thread), it seems to confuse two different
- requirements--novelty and non-obviousness (paragraphs 102 and 103 of the
- patent act).
-
- The novelty requirement is that the whole idea was not present in one place
- in the past (publication, in public use, etc.--I oversimplify a little).
- The non-obviousness requirement is that the thing would not have been
- obvious to a (hypothetical) person skilled in the relevant art. This is a
- much fuzzier concept and allows the argument that the person skilled in the
- relevant art would have known about elements of the invention present in
- different publications, existing objects, etc. A further ambiguity is that
- the "relevant art" may not be obvious--in this case is it cryptography or
- number theory?
-
- A further problem is that laws of nature, principles of mathematics, and
- the like are not patentable. The Supreme Court, in some opinions, holds
- that an invention using a law of nature must be analyzed as if the law of
- nature was already known in deciding whether the invention is non-obvious,
- hence patentable. The CAFC (where appeals of patent cases go before they
- reach the Supreme Court) has generally been more pro-patent, and has I
- believe held that while an algorithm, equation, etc. cannot itself be
- patentable, its non-obviousness can be used in demonstrating the
- non-obviousness of an invention using it (at least, that clearly seems to
- be Judge Rich's position).
-
- I hope this helps.
-
- David Friedman
- Olin Fellow in Law and Economics
- University of Chicago Law School
- (312) 702-9589
-