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From: jimomura@lsuc.UUCP
Newsgroups: can.politics
Subject: Re: patent office closure
Message-ID: <662@lsuc.UUCP>
Date: Tue, 4-Jun-85 23:23:49 EDT
Article-I.D.: lsuc.662
Posted: Tue Jun  4 23:23:49 1985
Date-Received: Tue, 4-Jun-85 23:41:48 EDT
References: <1926@watcgl.UUCP> <656@lsuc.UUCP> <5652@utzoo.UUCP>
Reply-To: jimomura@lsuc.UUCP (Jim Omura)
Organization: Law Society of Upper Canada, Toronto
Lines: 60
Summary: HenryDon't be so sure.


     Henry, I'm trained in Patent law and you aren't.  The fact is
that the breadth of a patent for a word processor *could* have been
that wide.  It depended on when it was patented (what the state of the
art was at the time) and who drafted the patent (possibly how good
your lawyer was at the time).  This is no false 'bogeyman' but a real
problem that occurs (and often circumvented by  other skilled lawyers)
on a fairly regular basis.  The related problem is who is a person
'skilled in the art' (and what exactly is the state of the art, with
all the legal restrictions).
 
     At heart I don't mind people making a fair gain on their sweat
(and often dumb luck), but why only the first person who makes it
to the Patent office?  Often this is the real criterion.  The real
test supposed to be who came up with the idea (the *whole* working
idea and not just a general theory).  Often more than one person
is working towards the same goal somewhere else.  Through no fault
of his own he gets beaten out.  Is this really so fair?  I'd rather
that in such a situation, the other person, if he can prove he
worked independently and came up with the same thing at roughly
the same time (or at least there was no way for him to have learned
about the other person working to the same goal) would be able
to share in the riches.  This will be a rare case, but is quite
workable.  This is the basis of Copyright Law.  I can write the
same poem you write, as long as I don't copy your work (unlikely,
but possible--usually the works are just 'similar' in such a
case).
 
     Do you appreciate the fact that if you think of a better way
of doing something than what is already a patented way, you are
*still* barred from proceeding if it's too close to the prior patent?
This is also a *real* restriction which has occured in the real
world.  In these times the situation is bound to get worse too.
 
     You know that trick of 'Copyrighting' a printed circuit board?
It looks now like that won't work in Canada (would have been an Industrial
Design and required registration as such anyway, I should add).  We
need law to protect circuit boards too.  Patents won't help (or *very*
rarely--you'd have to patent the method of making the board or the
materials in some way, although you can usually get around this problem
if it's part of a whole patentable machine).  A fully integrated
Industrial and Intellectual Property law should include protection
of circuit boards under a Copyright-like law.  This *can* be done
in Canada.  You really *can't* do it in the US.  The Patent law is
restricted to 'useful' works and Copyright law to 'artistic' works
by what is called the 'parallel reading' doctrine of the relevant
provision of the U.S. Constitution.  All our Constitution says, on
the otherhand is that Copyrights and Patents are in the Federal
Jurisdiction and Property and Civil Rights are in the Provincial
sphere.  We have no strong basis for rejecting the unification of
the laws.
 
     This is my goal.  Better law, rather then no law.  The repealing
of Patents (and for that matter even Copyrights) has been suggested
by some scholars on both sides of the boarder at time.  I'm *not*
in favour of that.  But it's my feeling that we can do better.

-- 
James Omura, Barrister & Solicitor, Toronto
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